Project Management Project – Report

OMNITRANS BUS FACILITY

KEY RFP DATES

RFP Issue Date:

September 7, 2011

Pre-Proposal Conference Date:

September 12, 2011

Question Submittal Deadline:

September 19, 2011

Proposal Due Date:

September 29, 2011

Interview Date:

Week of October 10, 2011

Board Of Directors Approval:

November 2, 2011

Notice To Proceed:

November 3, 2011

San Bernardino Associated Governments

1170 W. 3rd Street, 2nd Fl, San Bernardino, CA 92410

Phone: (909) 884-8276 Fax: (909) 885-4407

Web:

www.sanbag.ca.gov

San Bernardino County Transportation Commission San Bernardino County Transportation Authority

San Bernardino County Congestion Management Agency Service Authority for Freeway Emergencies

RFP A&E Template Page

RFP 12077 rev 9/13/11

San Bernardino Associated Governments

September 7, 2011

SUBJECT: NOTICE OF REQUEST FOR PROPOSALS (RFP) 12077

“SAN BERNARDINO TRANSIT CENTER OMNITRANS BUS FACILITY” (HEREINAFTER REFERRED TO AS “PROJECT”)

San Bernardino Associated Governments, (SANBAG), acting as the San Bernardino County Transportation Authority (“Authority”) invites proposals from qualified firms to architectural and engineering services for the design of the San Bernardino Transit Center Omnitrans Facility located the southwest quadrant of Rialto Avenue and E Street in downtown San Bernardino as identified in this RFP.

Firms intending to submit a proposal should note the procurement schedule contained in the attached RFP. It is our intention, subject to Board approval, to have the selected firm under contract by November 2011. Firms submitting a proposal for this Project will be evaluated based on qualifications, prior experience with the same or similar type of services identified herein, and the firm’s understanding of the Project’s needs and requirements as identified in the RFP.

Attached for your reference is the following:

· Contract with Scope of Work (hereinafter “Contract”)

The RFP and the materials listed below are available on Authority’s website: www.sanbag.ca.gov under “Contracting Opportunities”. Proposers are requested to check the website periodically, and no less frequently than weekly, for RFP schedule updates, addenda, and other information. Proposers are responsible for accessing information posted on Authority’s website.

· SANBAG Cost Proposal Guidelines

· SANBAG generic Cost Proposal Template

· SANBAG generic Schedule Template

· SANBAG’s Contracting and Procurement Policy (Policy No. 11000)

· SANBAG’s Major Projects Negotiating Guidelines (Policy No. 3

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04)

One (1) original plus eight (8) copies of the proposal must be submitted to SANBAG on or before 2:00 p.m., September 29, 2011.

Proposals shall be submitted to:

Mitch Alderman, P.E.

Director of Transit and Rail Programs

San Bernardino Associated Governments

1170 W. 3rd Street, 2nd Floor

San Bernardino, California 92410-1715

A Pre-Proposal conference is scheduled 11:00 a.m., September 12, 2011, at Authority’s office, located at 1170 W. 3rd Street, 2nd Floor, San Bernardino, CA 92410, Super Chief Conference Room.  This Pre-Proposal conference is not mandatory, though we encourage all interested firms to attend. The time and location of the conference may change so proposers are advised to check the Authority’s website often.

All questions related to this RFP must be put in writing and submitted to Authority no later than 4:00 p.m., September 19, 2011. All questions must be clearly labeled, “Written Questions for RFP 12077 and submitted electronically to:

Kathleen Murphy-Perez

Contracts Manager

Kmurphy-perez@sanbag.ca.org

Questions received after the deadline may not be responded to. Questions received by the deadline including the written responses will be posted via written addendum on Authority’s website at www.sanbag.ca.gov under “Bids, RFP’s & RFQ’s”. Firms are solely responsible for checking the website, at least weekly or more frequently, for additional information related to this RFP.

This is a Federal-aid project
: The Contract to be awarded is financed in part by the U.S. Department of Transportation (US DOT). Proposers are required to certify that they meet all federal requirements identified in this RFP, including but not limited to all applicable equal opportunity laws and regulations and state and/or Federal Prevailing Wages.

This project is subject to to Title 49, Part 26, Code of Federal Regulations (CFR) entitled “Participation of Disadvantaged Business Enterprises in the Department of Transportation Financial Assistance Programs (herein referred to as the “Regulations”). The Regulations in their entirety are incorporated into this RFP by this reference. Proposers are to be fully informed respecting the DBE/UDBE requirements and the Regulations. As required under the Regulations, the Authority has established a UDBE contract goal of 3.2% for this Project.

Certain labor categories under this Project may be subject to prevailing wages as identified in the State of California Labor Code commencing in Section 1770 et. seq., It is required that all mechanics and laborers employed or working on this Project shall be paid not less than the basic hourly rates of pay and fringe benefits as shown in the current wage schedules of the Department of Labor. Proposers must use the current wage schedules applicable at the time the work is in progress.

The firm, who is awarded the Contract, if awarded, will be required to comply with all applicable equal opportunity laws and regulations.

Firms are encouraged to subcontract with small and disadvantaged businesses to the maximum extent possible.

The award of this Contract is subject to receipt of Federal, state, and/or local funds sufficient to carry out the work identified in this RFP.

SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY

REQUEST FOR PROPOSALS 12077

FOR

ARCHITECTURAL AND ENGINEERING SERVICES FOR THE SAN BERNARDINO TRANSIT CENTER OMNITRANS BUS FACILITY

I. INTRODUCTION

San Bernardino Associated Governments (“SANBAG”), acting as the San Bernardino County Transportation Authority (“Authority”) is soliciting proposals from qualified firms to assist the Authority with the Design and construction of a 22-bay Omnitrans bus facility which is part of the San Bernardino Transit Center located at the southwest quadrant of Rialto Avenue and E Street in downtown San Bernardino. This RFP is only for the Omnitrans facility. All other components for the rail system including track, signals, platforms, and the surface parking lot located south of the train platforms are in the process of the final design by others.

The contract, if awarded, will be awarded without consideration of race, religion, color, age, sex, or national origin.

II.
PROJECT AND SERVICES DESCRIPTION

Through a mutual agreement between SANBAG, the City of San Bernardino, Redevelopment Agency of the City of San Bernardino, and Omnitrans, is jointly developing the San Bernardino Transit Center (SBTC). The SBTC is comprised of the following.

1. Expanded Metrolink service from and to the San Bernardino Santa Fe Depot known as the Downtown San Bernardino Passenger Rail Project. For this expansion, the SBTC will include four tracks, platforms and their associated amenities, a Metrolink crew base, and other related commuter rail components. All work for DSBPRP is in final design being performed by others.

2. The SBTC will include a surface parking lot adjacent and south of the Metrolink platforms. All work related to this is in final design being performed by others.

3. For this RFP, the Project consists of environmental clearance and design services to construct a 22-bay bus facility with associated buildings and related off-site improvements for Omnitrans.

General Project components include:

· All necessary work to obtain CEQA/NEPA environmental clearance

· Preliminary design to define the Project

· Final design of on-site improvements, including but not limited to the bus way, amenities, support buildings, and pads for future development opportunities.

· Final design of off-site improvements, including but not limited to the reconfiguration of Rialto Avenue, a new F Street/Rialto Avenue intersection, and frontage improvements along E Street.

Services

Services are anticipated to generally include, but are not limited to all necessary environmental studies and support functions so that SANBAG can obtain NEPA clearance with the FTA and to be able to certify the CEQA portion of the document; prepare conceptual plans to meet the available funding, prepare construction documents and obtain all approvals for on-site and off-site improvements, and provide construction support services. In general, the Consultant will need to provide all services necessary, including but not limited to architecture, landscape architecture, civil, mechanical, electrical, structural, geotechnical, and traffic engineering.

It is expected that the Consultant will assign a full-time senior Project Manager to coordinate all contract and personnel activities for the project. Other personnel may be assigned to direct and coordinate all project specific activities and responsibilities as needed for satisfactory performance on the project. The Project Manager shall be licensed as a Professional Civil Engineer or an Architect in the State of California. The Consultant shall provide a public outreach liaison to assist the SANBAG Public Information Office in implementing the Public Outreach Program established for this project.

Insofar as the Consultant’s approach described in the Proposal, the scope of responsibility and the total number of personnel assigned to the Project is left to the discretion of the Consultant. The Proposal shall include a staffing plan, an organization chart and a resource-loaded schedule that establish the firm’s ability to adequately and appropriately staff and manage the project.

The Consultant shall demonstrate their understanding of the scope and project approach for the Project.

The selected Consultant shall prepare a detailed and comprehensive Scope of Services, which shall include all work necessary for the completion of the Project, including full definition of the tasks, sub-tasks, and deliverables that are required for the services as described in this RFP. Selected firm shall prepare a Work Breakdown Structure (WBS) and schedule acceptable to the Authority, detailed scope of services.

III.
MATERIALS FURNISHED BY AUTHORITY

All software, data, reports, surveys, drawings, and other documents furnished to the Consultant by Authority for the Consultant’s use in the performance of services shall be made available only for use in performing the assignment and shall remain the property of Authority. All such materials shall be returned to Authority upon completion of services, termination of the Contract, or other such time as Authority may determine.

IV. CONTACT INFORMATION

All inquiries, contacts or questions related to this RFP shall be directed for:

Mitchell A. Alderman, PE

Director of Transit and Rail Programs

San Bernardino Associated Governments

1170 W. 3rd Street, 2nd Floor

San Bernardino, CA 92410-1715

Proposers are cautioned not to discuss this RFP with any official, Board Member, or employee of SANBAG, other than the staff identified herein. Neither proposers, nor anyone representing the proposer, are to discuss this RFP with any consultant or contractor engaged by SANBAG for assistance in preparing a response to this RFP. Violation of this prohibition may result in disqualification of the proposer.

V.
CONTRACT TYPE

A Time and Materials contract, with a not-to-exceed amount, and fixed hourly rates will be issued for the Project. Any services provided by the Consultant, which are not specifically covered by the Contract, will not be reimbursed.

VI.
DISADVANTAGED BUSINESS ENTERPISE

In conformance with title 49 CFR Part 26, the Authority has established a project specific goal of 3.2% for Underutilized Disadvantage Business Enterprise (UDBE). The Proposer is required to meet this goal or demonstrate Good Faith Efforts as a condition of the award of this Contract. Proposer’ shall complete and submit form 10 O-1, “Local Agency Bidder UDBE Commitment” and Form 12-G, “Bidders List” at the time proposal submittal. Form 10-O2, “Local Agency Bidder-DBE Commitment” and 15-H, “Good Faith Efforts” are to be submitted in a sealed envelope with their proposal, but no later than four (4) working days following the proposal due date identified herein.

As there is a UDBE goal on this Contract, the Proposer, in order to be considered responsible and responsive, must meet the contract specific UDBE goal identified in herein or 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 firms certified through the CUCP will be counted towards the contract goal; however, all DBE participation shall be collected and reported. Please refer to Attachments C and C-1 to this RFP for further information and instructions.

VII.
INFORMED PROPOSER

Proposer’s shall review the Scope of Services, (identified herein as Attachment A) and Contract (identified herein as Attachment B), for a complete understanding of the terms and conditions included therein. Proposers are expected to be fully aware of the conditions, requirements, and scope of services before submitting any proposal. Failure to do so will be at the Proposer’s own risk. By submitting a proposal, the Proposer represents that it is capable of performing quality work to achieve the Authority’s objectives identified in this RFP.

VIII.
CONFLICT OF INTEREST

Any person or firm that has assisted the Authority in preparing any aspect of this RFP or any cost estimate associated with this procurement is prohibited from submitting a proposal in response to this RFP. Consultants that received assistance from any such person or entity, or who will use the services of such person or entity in performing the services will be disqualified.

A consultant who is prohibited from submitting a proposal in response to this RFP will not be prevented from participating in future projects to the extent that no direct conflict of interest exists at the time. Consultants responsible for a project’s design may not participate in construction management/construction inspection or on the team of a design/builder for the construction of the project. The determination of a conflict of interest, direct or incidental, shall be at the sole discretion of Authority.

IX.
PRE-PROPOSAL CONFERENCE

A non-mandatory Pre-Proposal meeting is scheduled for 11:00 a.m., September 12, 2011 at Authority’s Office located at 1170 W. 3rd Street, 2nd Floor, San Bernardino in the Super Chief conference room. Interested firms are strongly encouraged to attend this pre-proposal meeting. Firms are asked to check-in with the reception desk on the 2nd floor and wait to be escorted into the conference room.

X.
ADDENDA

Any changes to this RFP will be made by written Addenda. The Authority will not be bound to any modifications to or deviations from the requirements set forth in this RFP as a result of any oral discussions and or instructions. Proposers shall acknowledge receipt of any addenda in their proposal. Proposers are solely responsible for checking the Authority’s website, at least weekly for updated information regarding this RFP.

XI.
WRITTEN QUESTIONS/CLARIFICATIONS

All questions and or clarifications to this RFP, including questions that could not be specifically addressed at the pre-proposal meeting must be put in writing and must be received by Authority no later than 4:00 p.m., September 19, 2011. Questions received after the date and time specified may or may not be responded to, within the sole discretion of Authority. All questions/clarification must be clearly labeled “Written Questions”. Authority is not responsible for failure to respond to questions that are not appropriately marked. Authority’s responses to the questions received by the date and time identified herein, including the Authority’s answers will be posted on the SANBAG’s website at www.sanbag.ca.gov.

XII.
PRE CONTRACTUAL EXPENSES

The Authority shall not be liable for any pre-contractual expenses incurred by the firms in preparation of their proposals. The Proposer shall not include any such expenses as part of their price proposal. Pre-contractual expenses are defined as follows: a) preparing a proposal in response to this RFP; b) submitting price proposal to Authority; and c) any and all expenses incurred by the Proposer prior to award of this Contract.

XIII. PREVAILING WAGES

Certain labor categories under this Scope of Services may be subject to Prevailing Wages as identified in the State of California Labor Code Section 1770 et. seq. Firms are required to pay all mechanics and laborers employed on the project not less than the basic hourly wage rates and fringe benefits shown in the current prevailing wage schedules for this area. The firm, who is awarded this Contract, if awarded, shall comply with all provisions of the State of California Labor Code.

XIV.
PROPOSAL INSTRUCTIONS

Proposals will be accepted until 2:00 p.m., September 29, 2011. One original and eight (8) copies are to be submitted to:

Mitch Alderman, P.E.

Director of Transit and Rail Programs

San Bernardino Associated Governments

1170 W. 3rd Street, 2ndFloor

San Bernardino, CA 92410-1715

All proposals are to be submitted in a sealed package, clearly marked with the RFP number and title and clearly marked with the company’s name and address. Proposals received after the 2:00 p.m. deadline will be rejected and returned to the firm unopened.

Proposers shall include the following information in their proposals.

A. Cover Letter

Firms are to provide the following information:

· A statement requesting Authority to evaluate the submitted proposal.

· Identification of all proposed sub-consultants including description of the work to be performed by the firm and each sub-consultant proposed for the Project and an estimate of the percentage of work to be performed by each firm.

· Indicate the location of the office from which the work will be performed.

· In accordance with SANBAG Policy No. 11000, Sect. VII. A.2.f, provide a response to the following question: Has your firm ever been terminated from a contract? If the answer is yes, see item B below.

· A memorandum from a principal of each sub-consultant firm indicating the specific portion of services the sub-consultant will be performing.

· Acknowledgement of receipt of all addenda, if any.

· A signed statement by an officer of the firm attesting that all information in the proposal is true and correct.

· A signature of an authorized person within the prime firm who can bind the firm to the terms and conditions of the RFP.

· That the proposal is valid for 180 days from the date of submission.

B. Contract Termination Circumstances:

If Consultant has ever been terminated from a contract, describe the facts and circumstances in detail, on a separate sheet. See SANBAG Policy No. 11000, Sect. VII.A.2.f for details. Firms may download the Policy on SANBAG’ website at www.sanbag.ca.gov, under “Bids, RFP’s & RFQ’s”.

C. Technical Proposal Content:

1. Qualifications, Related Experience, and References (Labeled “Section I- Qualifications”)

This section of the proposal should establish the ability of the proposed team to satisfactorily perform the required work by reasons of: experience in performing work of the same or similar nature; demonstrated experience working with agencies and cities directly involved in this Project; staffing capability; work load; record of meeting schedules on similar projects; and supportive client references. Specifically:

a. Provide a brief profile of the firm, including the types of services offered; the year founded; form of the organization (corporation, partnership, sole proprietorship); number, size and location of offices; number of employees.

b. Provide a general description of the firm’s current financial condition; identify any conditions (e.g., bankruptcy, pending litigation, planned office closures, impending merger) that may impede ability to complete the Project.

c. Describe the firm’s experience in performing work of a similar nature to that solicited in this RFP, and the participation in such work by the key personnel proposed for assignment to this Project. Highlight the firm’s and key personnel experience with construction management services as identified in the Scope of Services.

d. Describe experience in working with the various government agencies that may have jurisdiction over the approval of the work specified in this RFP. Please include specialized experience and professional competence in areas directly related to this RFP.

e. Provide a list of past joint work by the firm and each sub-consultant, if applicable. The list should clearly identify the Project and provide a summary of the roles and responsibilities of each party.

f. Provide a minimum of three (3) references for both the firm and the Project Manager (for a total of six references). Furnish the name, title, address and telephone number of the person(s) at the client organization who is most knowledgeable about the work performed. References may also be supplied from other work not cited in this section as related experience.

2. Proposed Staffing and Project Organization (Labeled “Section 2- Organization”)

This section of the proposal should establish the method that will be used to manage the Project as well as identify key personnel assigned. Specifically:

a. Provide education, experience and applicable professional credentials of Project staff. Identify the persons who are licensed architects, registered Professional Engineers (PE) in and Land Surveyor (LS) in the State of California. Licenses can be requested of the selected consultant’s team members as needed.

b. Furnish brief resumes (not more than two [2] pages each) for the proposed Project Manager and other key personnel.

c. Identify key personnel proposed to perform the work in the specified tasks and include major areas of subcontract work. Include the person’s name, current location, proposed position for this Project, current assignment, level of commitment to that assignment, availability for this assignment, and how long each person has been with the firm.

d. Include a Project organization chart that clearly delineates communication/reporting relationships among the Project staff, including sub-consultants. Clearly identify which firm person works for and if they are licensed.

e. Include a statement that key personnel will be available to the extent proposed for the duration of the Project, acknowledging that no person designated as “key” to the Project shall be removed or replaced without the prior written concurrence of Authority.

3. Work Plan (Labeled “Section 3 – Work Plan”)

This section of the proposal shall provide a narrative that addresses the Scope of Services and shows understanding of the Project needs and requirements. Specifically:

a. Describe the approach and work plan for completing the tasks specified in the Scope of Services. The work plan shall be of such detail to demonstrate ability to accomplish the Project objectives and overall schedule.

b. Outline sequentially the activities that would be undertaken in completing the tasks and specify who in the firm would perform them.

c. Furnish a Project schedule for each task and subtask in terms of elapsed weeks from the Project commencement date.

d. Identify methods that will be used to ensure quality control as well as budget and schedule control for the Project.

e. Identify any special issues or problems that are likely to be encountered during this Project and how they will be addressed.

f. Identify potential schedule and construction cost reductions.

g. Consultants are encouraged to propose enhancements or procedural or technical innovations to the Scope of Services that do not materially deviate from the objectives or required content of the Project.

4. Appendices (Labeled “Section 4 – Appendices”)

Information considered pertinent to this Project and which has not been specifically solicited in any of the aforementioned sections may be placed in a separate appendix section. Firms are cautioned, however, that this does not constitute an invitation to submit large amounts of extraneous materials; appendices should be relevant and brief.

5. Price Proposal (Labeled “Section 5 – Price Proposal”)

Proposers are asked to submit only the technical information requested in this RFP. No cost proposal or work hours are to be included in this phase of the RFP process.

Price Proposal and Fees for Services (Interviewed Firms Only)

a. Provide in a separate, sealed envelope a cost proposal, based on the scope of work outlined in Attachment A, and itemized accordingly. The cost proposal shall not be considered until technical proposals have first been evaluated as to the Proposer’s experience, qualifications, professionalism, quality of work, and approach. Cost proposals shall generally be used to evaluate whether a service proposal is reasonable and realistic in light of the program requirements. After selection of the preferred Consultant, the final scope of work and level of compensation shall be negotiated.

b. Hourly fees for services and direct and indirect expense charges for the term of the contract shall also be submitted with the cost estimate in the sealed envelope. Fees for any projected subcontracted services shall also be enclosed.

6. Contract Comments (Labeled “Section 6-Contract Comments”)

Firms are asked to include in their proposals a written discussion of proposed exceptions to or deviations from the Authority’s Contract. Please note that Authority reserves the right to disqualify any Consultant that does not provide a complete written discussion of its contractual objections or to disqualify any Consultant based on objections that Authority considers non-negotiable. Authority does not anticipate making substantive changes to its Terms and Conditions. Should a firm not identify any proposed exceptions in their proposal, they will be deemed to have accepted the contract terms and conditions without exception.

7. Forms (Labeled “Section 7 – Forms”)

Proposers are required to complete and submit the following forms, which are enclosed in this RFP package with their proposals:

a) Non-Lobbying Certification For Federal-Aid Contracts & Disclosure of Lobbying Activities, if applicable.

b) Certification Regarding Debarment, Suspension- Prime and Subcontractors

c) Certification of Consultant, Commissions & Fees

d) UDBE Form 10-O1, “Local Agency Proposer DBE Information”

e) Form 12-G, “Bidders List”

Forms that can either be submitted with the proposal, or up to four working days from the proposal submittal date are:

a) DBE Form 10-O2, “Local Agency Proposer UDBE Information”

b) UDBE Form 15-H, “Good Faith Efforts”

D.
Entire Proposal Package
:

Proposals are limited to 50 (8 ½” x 11”) pages single-sided 25 pages double sided in 11-point font. Charts and schedules may be included in 11” x 17” format. Proposals shall not include any unnecessarily elaborate or promotional material. Lengthy narrative is discouraged, and presentations should be brief and concise. The page limit does not include the outside cover, section dividers, cover letters and sub-consultant commitment memorandum, or appendices. Proposals that do not contain the required information or do not contain the required number of copies may be rejected and may not be considered.

E.
Changes
:

If at any time during the procurement process, a firm makes any changes to proposed key personnel or sub-consultants, the firm must notify the Authority in writing of those proposed changes. Authority reserves the right to accept or reject such proposed changes or to revise the evaluation scoring to reflect the proposed staffing changes.

XV.
ACCEPTANCE OF PROPOSALS

Authority reserves the right to accept or reject any and all proposals, or any item or part thereof, or to waive any informalities or irregularities in proposals. Authority reserves the right to withdraw or cancel this RFP at any time without prior notice and Authority makes no representation that any contract will be awarded to any firm responding to this RFP. Authority reserves the right to re-issue a new RFP for the same or similar services. Authority reserves the right to postpone proposal openings for its own convenience. Proposals received by Authority are public information and must be made available to any person upon request. Submitted proposals are not to be copyrighted. Consultant may withdraw its proposal before the opening of proposals by submitting a written request signed by an authorized representative of the firm and delivered to Authority’s Project Manager, Mitch Alderman.

XVI.
CONSULTANT SELECTION

The primary objective of Authority is to select a qualified firm to perform services identified for Authority at a fair and reasonable cost. Consultants may obtain a copy of the consultant selection policy by accessing SANBAG’s website. In addition, Authority has established the following criteria for the selection process:

A. The selection process shall be fair, open, and competitive.

B. The selection of the consultant firm will be based on clearly stated objectives, identified in this RFP.

C. Selection of consultant shall be based upon demonstrated competence, professional qualifications, experience, and capabilities to perform the required services identified in the Scope of Services.

D. Upon review of the proposals, a shortlist of firms will be invited to an interview tentatively scheduled for the week of October 10, 2011 at SANBAG’s Office at 1170 W. 3rd Street, San Bernardino, CA 92410. The Contract will be awarded to the most technically qualified responsible and responsive firm best conforming to the RFP, and is in the opinion of Authority, most advantageous to Authority.

E. Authority reserves the right to reject any and all proposals. Authority is under no obligation to award a contract for the subject services. At the conclusion of the evaluation process, the evaluation committee will recommend to Authority’s Board of Directors the firm who ranked the highest in overall score.

F. Consultant’s proposal will be evaluated based on the criteria identified in this RFP.

G. Firms who are not awarded a contract may obtain a debriefing concerning the strengths and weaknesses of their proposals after the Authority’s Board of Directors authorizes an award. A request for debriefing must be submitted in writing to: Kathleen Murphy-Perez, Contracts Manger at kmurphy-perez@sanbag.ca.gov.

XVII.
NEGOTIATIONS AND AWARD

The contract, Scope of Services and cost proposal may be negotiated with the selected Consultant. Consultants are to identify in their proposal any comments relating to the Scope of Services and/or the terms and conditions of Authority’s standard contract. Authority reserves the right to disqualify any firm that does not provide written discussions of any disagreements it has relative to Authority’s Terms and Conditions. Authority does not anticipate making any substantive changes to its Terms and Conditions. Consultant is advised that any recommendation for contract award is not binding on Authority until the Contract is fully executed and approved by the Authority’s Board of Directors.

XVIII.
PROCUREMENT SCHEDULE

September 7, 2011

November 2, 2011

Notice To Proceed:

November 3, 2011

Dates are subject to change. Schedule updates will be posted on SANBAG’s website: www.sanbag.ca.govunder “”Bids, RFP’s & RFQ’s”.

ATTACHMENT A

“SCOPE OF SERVICES”

SCOPE OF SERVICES

Through cooperation between SANBAG, the City of San Bernardino, and Omnitrans, a concept plan was developed for the ultimate build-out of the Omnitrans bus facility (Facility) portion of the San Bernardino Transit Center (SBTC). See concept plan following this draft Scope of Services. The Facility will generally be comprised of transit elements listed below and graded pads for future development/revenue generation opportunities. No additional studies have been performed to define the exact scope of the Facility to match funding levels. Therefore, it will be the task of the Consultant to design the Facility, if possible, to match the available funding. However, additional funding is being pursued by all of the agencies involved.

The Consultant will provide all necessary services to meet the design elements below including but not limited to, buildings plans; engineering plans for precise grading depicting the bus roadway, sidewalks and other hardscape surfaces, planters, and utilities; and landscape and irrigation.

The Consultant will extensively coordinate all environmental and design efforts with the Downtown San Bernardino Passenger Rail Project (DSBPRP) consultant who is currently completing the environmental clearance and final design documents. It is anticipated that environmental clearance for this project will be obtained in February 2012 with a start of construction to occur mid to late 2012. SANBAG intends to include the Omnitrans facility as part of the DSBPRP construction bid.

Since the entire site of the Omnitrans facility will be developed, compliance with the County’s MS4 permit for water quality requirements is planned to be achieved by use of the detention basin located in the southerly part of the proposed surface parking lot shown on the following concept site plan.

On-Site Bus Facility Improvements

1. Twenty-two (22) on-site bus bays

2. Capacity for four (4) articulated buses (part of the total twenty-two (22) on-site bus bays)

3. Two (2) bus turn-outs on “E” Street (north of Rialto Avenue)

4. Two (2) vehicular points of egress/ingress from Rialto Avenue

5. Street conversion and landscaping consistent with City’s Downtown Streetscape Planning & Design project

6. Onsite landscaping and irrigation

7. Solar canopies that provide an energy source for the site and other possible uses

8. Public restrooms building

9. Signage and striping

10. Site lighting

11. Coach operator restrooms

12. Coach operator break room

13. Maintenance storage building

14. Parking for maintenance vehicles

15. Customer service building

16. Electronic real time notification

17. Provide for future electric charging for four (4) bus stalls

18. Security office building and cameras

19. Bike lockers

20. Appropriate vehicular and pedestrian signalization to allow for safe and efficient traffic flow within the site.

21. Obtain Leadership in Energy and Environmental Design (“LEED”) Gold certification.

Off-Site Improvements

1. Rialto Avenue improvements including a potential traffic circle at “F” Street.

2. “E” Street improvements including the removal and replacement of the curb, gutter and sidewalk fronting the Project Site.

3. Traffic signal modifications at the intersection of Rialto Avenue and “E” Street as needed for SBTC operations.

4. One (1) potential vehicular traffic signal on Rialto Avenue at the exit of the SBTC.

5. Street landscape for Rialto Avenue and “E” Street following the City’s “Downtown Streetscape Planning & Design.”

6. Potential storm run-off detention basin or other facility needed for compliance with Municipal Separate Storm Sewer Systems (“MS4”) permit to support on-site improvements.

7. Right-of-way acquisition necessary for the potential traffic circle at “F” Street and the two (2) fixed route bus turnouts on “E” Street just north of Rialto Avenue, one (1) being on the west side of “E” Street and one (1) on the east side.

Miscellaneous Studies and Investigations

1. Lot Line Adjustment. As real property ownership of the Omnitrans Facility and the Downtown San Bernardino Passenger Rail Project (DSBPRP) is shared between SANBAG and Omnitrans, SANBAG and Omnitrans will adjust the lot-lines accordingly.

2. Record of Survey (“ROS”). File a ROS with the County of San Bernardino Recorders Office, depicting the final boundary of the Omnitrans Facility site following the recordation of the lot-line adjustment.

3. Perform a geotechnical investigation of the Omnitrans Facility and prepare a preliminary report necessary for the design and construction of all anticipated structures such as buildings, walls, canopies and light poles as well as for grading and paving.

4. Perform a hydraulic and hydrologic study relating to the Omnitrans Facility to determine storm water run-off and compliance with the MS4 permit.

5. Perform all necessary traffic studies related to the Omnitrans Facility development.

SAN BERNARDINO TRANSIT CENTER

CONCEPT LAYOUT OF OMNITRANS BUS FACILITY

ATTACHMENT B

CONTRACT NO: 12077

By and Between

San Bernardino Associated Governments/San Bernardino

County Transportation Authority

And

For

CONTRACT C12077

BY AND BETWEEN

SAN BERNARDINO ASSOCIATED GOVERNMENTS

AND

FOR

“ARCHITECURAL AND ENGINEERING SERVICES FOR THE SAN BERNARDINO TRANSIT CENTER OMNITRANS BUS FACILITY”

This Contract, is effective on the Effective Date as defined herein, by and between the San Bernardino Associated Governments/San Bernardino Transportation Authority (referred to hereafter as “AUTHORITY”), whose address is 1170 W. 3rd Street, 2nd Floor, San Bernardino, California 92410-1715; and the firm of (hereinafter referred to as “CONSULTANT”) whose address is:

AUTHORITY and CONSULTANT are each a “Party” and collectively the “Parties” herein.

RECITALS:

WHEREAS, AUTHORITY requires certain architectural and engineering services as described in Attachment A of this Contract and;

WHEREAS, CONSULTANT has confirmed that they have the requisite personnel, and experience and is fully capable and qualified to perform the services identified herein; and

WHEREAS, CONSULTANT desires to perform all services identified herein and to do so for the compensation and in accordance with the terms and conditions set forth herein.

NOW, THEREFORE, the Parties hereto agree as follows:

ARTICLE 1. DESCRIPTION OF SERVICES

CONSULTANT agrees to perform services set forth in Attachment “A”, Scope of Services, (hereinafter referred to as “Services”) which is incorporated herein by reference in accordance with architectural, professional engineering, and land surveying standards which are generally accepted in the State of California, in accordance with the terms and conditions expressed herein and in the sequence, time, and manner defined therein. The word “Services,” as used herein, includes without limitation, the performance, fulfillment and discharge by CONSULTANT of all obligations, duties, tasks, and services imposed upon or assumed by Authority hereunder; and the Services performed hereunder shall be completed to the satisfaction of Authority, with their satisfaction being based on prevailing engineering standards.

ARTICLE 2. PERIOD OF PERFORMANCE

The Period of Performance by CONSULTANT under this Contract shall commence upon issuance of a written Notice To Proceed (NTP) issued by Authority and shall continue in effect through or until otherwise terminated, or unless extended as hereinafter provided by written amendment.

ARTICLE 3. PRICE

3.1 Total compensation to CONSULTANT for full and complete performance of Services, in compliance with all the terms and conditions of this Contract, payment by CONSULTANT of all obligations incurred in, or application to, CONSULTANT’s performance of Services, and for which CONSULTANT shall furnish all personnel, facilities, equipment, materials, supplies, and services (except as may be explicitly set forth in this Contract as furnished by Authority), shall not exceed the amount set forth in 3.2 below.

3.2 The total Not-To-Exceed Amount is _________ Dollars, ($ ), for Services to be provided under this Contract. Services to be provided under this Contract are to be performed as set forth in Attachment “A”, Scope of Services, and shall be reimbursed on a pursuant to hourly rates in Attachment B “Billing Rate Schedule”, which is which is the AUTHORITY’s approved CONSULTANT’ Cost Proposal and incorporated herein by this reference.

3.3 CONSULTANT’s overhead rates will be fixed, as agreed upon in Attachment “B” for the duration of this Contract and include all costs associated with the administration of this Contract. The fixed overhead rate will not be subject to adjustment. Any percentage increase over the direct labor rate in Attachment “B” is not permitted without prior authorization from AUTHORITY.

3.4 Salary increases for personnel subject to prevailing wage rates as described in the California Labor Code, all salary increased which are the direct result of changes in the prevailing wage rates are reimbursable.

3.5 The cost principles set forth in Part 31, Contract Cost Principles and Procedures, in Title 48, Federal Acquisition Regulations System of the Code of Federal Regulations (CFR) as constituted on the effective date of this Contract shall be utilized to determine allowableness of costs under this Contract and may be modified from time to time by amendment of the Contract.

3.5.1 CONSULTANT agrees to comply with Federal Department of Transportation procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.

3.5.2 Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be un-allowed under 48 CFR, Part 31, Contract Cost Principles and Procedures, or 49 CFR, part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments shall be repaid by CONSULTANT to AUTHORITY.

3.5.3 Any subcontract entered into as a result of this Contract shall contain all of the provisions of this Section 3.5.

3.6 Any services provided by the CONSULTANT not specifically covered by the Scope of Services (Attachment “A”) shall not be compensated without prior written authorization from AUTHORITY. It shall be CONSULTANT’S responsibility to recognize and notify AUTHORITY when services not covered by the Scope of Services have been requested or are required. All changes and/or modifications to the Scope of Services shall be made in accordance with the “Changes” provision.

ARTICLE 4. PAYMENT

4.1 The compensation of CONSULTANT as provided herein shall be payable in 4 week billing period payments and should be within forty-five (45) calendar days after receipt by AUTHORITY of an invoice prepared in accordance with instructions below, except for the final invoice. The final invoice will be withheld until any and all closeout documents are finalized and approved by Authority.

4.2 CONSULTANT shall prepare all invoices in a form satisfactory to and approved by AUTHORITY and it shall be accompanied by documentation supporting each element of measurement and/or cost. Each invoice will be for a four-week billing period and will be marked with AUTHORITY’s Project name, contract number and task order number, if applicable. Invoices shall be submitted within fifteen (15) calendar days for the period covered by the invoice. Invoices shall include request for payment for Services (including additional Services authorized by AUTHORITY) completed by CONSULTANT during each billing period. Any invoice submitted which fails to comply with the terms of this Contract, including the requirements of form and documentation, may be returned to CONSULTANT. Any costs incurred by CONSULTANT in connection with the resubmission of a proper invoice shall be at CONSULTANT’s sole expense.

4.3 CONSULTANT shall furnish evidence, satisfactory to AUTHORITY, that all labor and materials furnished and equipment used during all periods prior to the period covered by any invoice have been paid in full. AUTHORITY shall not be obligated to make payments to CONSULTANT until CONSULTANT furnishes such evidence. Upon furnishing such evidence, satisfactory to AUTHORITY, AUTHORITY shall pay CONSULTANT the full amount of the invoice less disputed amounts.

4.4 Intentionally Left Blank

4.5 CONSULTANT shall include a statement and release with each invoice, satisfactory to AUTHORITY, that CONSULTANT has fully performed the Services invoiced pursuant to this Contract for the period covered, that all information included with the invoice is true and correct and that all payments to and claims of CONSULTANT and its subcontractors for Services during the period will be satisfied upon the making of such payment. AUTHORITY shall not be obligated to make payments to CONSULTANT until CONSULTANT furnishes such statement and release.

4.6 CONSULTANT shall forfeit the fixed fee portion of the progress payment for any billing period that CONSULTANT fails to submit an invoice within sixty (60) calendar days after the cutoff date for the billing period.

4.7 Appearance at Hearings – If and when required by AUTHORITY, CONSULTANT shall render assistance at hearings as may be necessary for the performance of the services.

4.8 CONSULTANT agrees to promptly pay each subcontractor for the satisfactory completion of all work performed under this Contract, no later than thirty (30) calendar days from the receipt of payment from AUTHORITY. AUTHORITY reserves the right to request documentation from CONSULTANT showing payment has been made to its subcontractors.

4.9 No payment will be made prior to approval of any work, nor any work performed prior to approval of this Contract by AUTHORITY’s Board of Directors.

ARTICLE 5. TAXES, DUTIES AND FEES

Except to the extent expressly provided elsewhere in this Contract, CONSULTANT shall pay when due, and the compensation set forth in “Article 3” shall be inclusive of all a) local, municipal, state, and federal sales and use taxes; b) excise taxes; c) taxes on personal property owned by CONSULTANT; and d) all other governmental fees and taxes or charges of whatever nature applicable to CONSULTANT to enable it to conduct business.

ARTICLE 6. AVAILABILITY OF FUNDS

The award and performance of this Contract is contingent on the availability of funds. If funds are not allocated and available to AUTHORITY for the continuance of Services performed by CONSULTANT, Services directly or indirectly involved may be suspended or terminated by AUTHORITY at the end of the period for which funds are available. When AUTHORITY becomes aware that any portion of Services, which will or may be affected by a shortage of funds, it will immediately so notify CONSULTANT. Nothing herein shall relieve AUTHORITY from its obligation to compensate CONSULTANT for Services performed pursuant to this Contract. No penalty shall accrue to AUTHORITY in the event this provision is exercised.

ARTICLE 7. PERMITS AND LICENSES

CONSULTANT shall (without additional compensation) keep current all governmental permits, certificates and licenses (including professional licenses) necessary for CONSULTANT to perform Services.

ARTICLE 8. DOCUMENTATION AND RIGHT TO AUDIT

8.1 CONSULTANT shall provide AUTHORITY, the U.S. Department of Transportation (DOT), the Comptroller General of the United States or other authorized representatives or agents of AUTHORITY, access to CONSULTANT’s records, which are directly related to this Contract for the purpose of inspection, auditing or copying. CONSULTANT shall maintain all records related to this Contract in an organized way in the original format, electronic and hard copy, conducive to professional review and audit, for a period of three (3) years from the date of final payment by AUTHORITY, except in the event of litigation or settlement of claims arising out of this Contract in which case CONSULTANT agrees to maintain records through the conclusion of all such litigation, appeals or claims related to this Contract. CONSULTANT further agrees to maintain separate records for costs of work performed by change amendment. CONSULTANT shall allow AUTHORITY or its representatives of agents to reproduce any materials as reasonably necessary. This Article applies to all subcontractors at any tier that is performing work under this Contract.

8.2 The cost proposal for this Contract is subject to audit at any time. After CONSULTANT receives any audit recommendations are received the cost proposal shall be adjusted by the CONSULTANT and approved by AUTHORITY’s Project Manager to conform to the audit recommendations. CONSULTANT agrees that individual items of cost identified in the audit report may be incorporated into the Contract at AUTHORITY’s sole discretion. Refusal by CONSULTANT to incorporate the audit or post award recommendations will be considered a breach of the Contract terms and cause for termination of the Contract.

ARTICLE 9. RESPONSIBILITY OF CONSULTANT

9.1 CONSULTANT shall be responsible for the professional quality, technical accuracy, and the assurance of compliance with Federal, state, and local laws and regulations, and other services furnished by the CONSULTANT under terms of this Contract.

9.2 In addition to any other requirements of this Contract or duties and obligations imposed on CONSULTANT by law, CONSULTANT shall, as an integral part of its services, employ quality control procedures that identify potential risks and uncertainties related to scope, schedule, cost, quality and safety of the Project and the services performed by CONSULTANT within the areas of CONSULTANT services and expertise. Risks that may be encountered include, but are not limited to, soil conditions, constructability, factors of safety, impact on adjacent properties, public safety, and environmental considerations. At any time during performance of the contracted Scope of Services, should the CONSULTANT observe, encounter, or identify any unusual circumstances or uncertainties which could pose potential risk and uncertainties, CONSULTANT shall immediately document such matters and notify AUTHORITY of said circumstances and related concerns. CONSULTANT shall also similarly notify AUTHORITY in regard to the possibility of any natural catastrophe, potential failure, or any situation that exceeds environmental, design, and/or construction assumptions and could precipitate a failure. Notifications under this paragraph shall be specific, clear and timely, and in a form which will enable AUTHORITY to understand and evaluate the magnitude and effect of the risk and uncertainties involved.

ARTICLE 10. REPORTING AND DELIVERABLES

All reports and deliverables shall be submitted in accordance with Attachment “A”, Scope of Services.

ARTICLE 11. TECHNICAL DIRECTION

11.1 Performance of Services under this Contract shall be subject to the technical direction of the AUTHORITY’s Director of Transit & Rail Programs, or designee, as identified in Attachment “A”, Scope of Services, attached to this Contract. AUTHORITY’s Director of Transit and Rail Programs will identify a designee, in writing to CONSULTANT, with the Notice To Proceed and subsequently with any changes during the Contract term. The term “Technical Direction” is defined to include, without limitation:

11.1.1 Directions to CONSULTANT, which redirect the Contract effort, shift work emphasis between work areas or tasks, require pursuit of certain lines of inquiry, fill in details or otherwise serve to accomplish the contractual Scope of Services.

11.1.2 Provision of written information to CONSULTANT, which assists in the interpretation of drawings, reports, or technical portions of Service described herein.

11.1.3 Review and, where required by the Contract, approval of technical reports, drawings, specifications and technical information to be delivered by CONSULTANT to AUTHORITY under the Contract.

11.2 Technical Direction must be within the Scope of Services under this Contract. AUTHORITY’s Project Manager does not have the AUTHORITY to, and may not, issue any Technical Direction which:

11.2.1 Constitutes an assignment of additional Services outside the Scope of Services;

11.2.2 Constitutes a change as defined in the Contract clause entitled “Changes”;

11.2.3 In any manner causes an increase or decrease in the Contract’s estimated cost or price or the time required for contract performance;

11.2.4 Changes any of the expressed terms, conditions or specifications of the Contract; or

11.2.5 Interferes with the CONSULTANT’s right to perform the terms and conditions of the Contract.

Failure of CONSULTANT and AUTHORITY’s Project Manager to agree that the Technical Direction is within the scope of the Contract, or a failure to agree upon the Contract action to be taken with respect thereto shall be subject to the provisions of the “DISPUTES” Article herein.

11.3 All Technical Direction shall be issued in writing by the AUTHORITY’s Project Manager.

11.4 CONSULTANT shall proceed promptly with the performance of technical directions duly issued by the AUTHORITY’s Project Manager, in the manner prescribed by this Article and within their AUTHORITY under the provisions of this Article. If, in the opinion of CONSULTANT, any instruction or direction by the AUTHORITY’s Project Manager falls within one of the categories defined in 11.2.1 through 11.2.5 above, CONSULTANT shall not proceed but shall notify the Project Manager in writing within five (5) working days after receipt of any such instruction or direction and shall request the Project Manager to modify the Contract accordingly. Upon receiving the notification from the CONSULTANT, the Project Manager shall:

11.4.1 Advise CONSULTANT in writing within thirty (30) days after receipt of the CONSULTANT’s letter that the technical direction is or is not within the scope of Article 12, “CHANGES”.

11.4.2 Advise CONSULTANT within a reasonable time whether AUTHORITY will or will not issue a written amendment.

ARTICLE 12. CHANGES

12.1 The Services shall be subject to changes by additions, deletions, or revisions made by AUTHORITY. CONSULTANT will be advised of any such changes by written notification from AUTHORITY describing the change.

12.2 Promptly after such written notification of change is given to CONSULTANT by AUTHORITY, CONSULTANT and AUTHORITY will attempt to negotiate a mutually agreeable change in compensation or time of performance and amend the Contract accordingly.

ARTICLE 13. EQUAL EMPLOYMENT OPPORTUNITY/DRUG FREE WORKPLACE

13.1 During the term of this Contract, CONSULTANT shall not willfully discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, gender, marital status, sexual orientation, age, political affiliation or disability. CONSULTANT agrees to comply with the provisions of Executive Orders 11246, 11375, 11625, 12138, 12432, 12250, Title VII of the Civil Rights Act of 1964, the California Fair Employment Practice Act and other applicable Federal, State and County laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.

13.2 CONSULTANT agrees to comply with the Drug Free Workplace Act of 1990 per Government Code section 8350 et seq.

ARTICLE 14. CONFLICT OF INTEREST

CONSULTANT agrees that it presently has no interest, financial or otherwise and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required under this Contract. CONSULTANT further agrees that in the performance of this Contract no person having any such interest shall be employed. CONSULTANT is obligated to fully disclose to AUTHORITY, in writing, of any conflict of interest issues as soon as they are known to CONSULTANT and to comply with AUTHORITY’s Policy 10102 regarding disclosure.

ARTICLE 15. KEY PERSONNEL

The personnel specified below are considered to be essential to Services being performed under this Contract. Prior to diverting any of the specified individuals to other projects, or reallocation of tasks and hours of Services, which are the responsibility of key personnel to other personnel, the CONSULTANT shall notify AUTHORITY reasonably in advance and shall submit justifications (including proposed substitutions) in sufficient detail to permit evaluation of the import on the Project. Diversion or reallocation of key personnel shall be subject to written approval by AUTHORITY. AUTHORITY also reserves the right to approve proposed substitutions for key personnel. In the event that AUTHORITY and CONSULTANT cannot agree as to the substitution of key personnel, AUTHORITY shall be entitled to terminate this Contract. Key Personnel are:

Name

Function

ARTICLE 16. REPRESENTATIONS

Services supplied by CONSULTANT under this Contract shall be supplied by personnel who are careful, skilled, experienced and competent in their respective trades or professions. CONSULTANT agrees that they are supplying professional services, findings, and/or recommendations in the performance of this Contract and agrees with AUTHORITY that the same shall conform to professional and engineering and environmental principles and standards, which are generally accepted in the State of California.

ARTICLE 17. PROPRIETARY RIGHTS/CONFIDENTIALITY

17.1 If, as part of this Contract, CONSULTANT is required to produce materials, documents data, or information (“Products”), then CONSULTANT, if requested by AUTHORITY, shall deliver to AUTHORITY the original of all such Products which shall become the sole property of AUTHORITY.

17.2 All materials, documents, data or information obtained from AUTHORITY’s data files or any AUTHORITY medium furnished to CONSULTANT in the performance of this Contract will at all times remain the property of AUTHORITY. Such data or information may not be used or copied for direct or indirect use outside of this Project by CONSULTANT without the express written consent of AUTHORITY.

17.3 Except as reasonably necessary for the performance of Services, CONSULTANT and its employees and agents shall hold in confidence the materials and information referred to in this Article, which are produced by CONSULTANT for AUTHORITY in the performance and completion of CONSULTANT’ Services under this Contract, until released in writing by AUTHORITY, except to the extent such materials and information become a part of public domain information through no fault of CONSULTANT, or its employees or agents.

17.4 CONSULTANT shall not use AUTHORITY’s name or photographs of the Project in any professional publication, magazine, trade paper, newspaper, seminar or other medium without first receiving the express written consent of AUTHORITY.

17.5 All press releases or press inquiries relating to the Project or this Contract, including graphic display information to be published in newspapers, magazines, and other publications, are to be made only by AUTHORITY unless otherwise agreed to by CONSULTANT and AUTHORITY.

17.6 CONSULTANT agrees that it, and its employees, agents, and subcontractors will hold confidential and not divulge to third parties without the prior written consent of AUTHORITY, any information obtained by CONSULTANT from or through AUTHORITY in connection with CONSULTANT’ performance of this Contract, unless (a) the information was known to CONSULTANT prior to obtaining same from AUTHORITY pursuant to a prior contract; or (b) the information was at the time of disclosure to CONSULTANT, or thereafter becomes part of the public domain, but not as a result of the fault or an unauthorized disclosure of CONSULTANT or its employees, agents, or subcontractors, or (c) the information was obtained by CONSULTANT from a third party who did not receive the same, directly or indirectly, from AUTHORITY and who had, to CONSULTANT’ knowledge and belief, the right to disclose the same.

ARTICLE 18. CONSTRUCTION CLAIMS

18.1 If claims are filed by the AUTHORITY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from the CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with the AUTHORITY’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.

18.2 CONSULTANT’s personnel that the AUTHORITY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from the AUTHORITY. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the CONSULTANT’s personnel services under this Contract.

18.3 Services of the CONSULTANT’s personnel in connection with the AUTHORITY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Contract in order to finally resolve the claims.

18.4 Any subcontract in excess of $25,000 entered into as a result of this Contract, shall contain all of the provisions of this Article.

ARTICLE 19. TERMINATIONS

19.1 Termination for Convenience -AUTHORITY shall have the right at any time, with or without cause, to terminate further performance of Services by written notice to CONSULTANT specifying the date of termination. On the date of such termination stated in said notice, CONSULTANT shall discontinue performance of Services and shall preserve work in progress and completed work (“Work”), pending AUTHORITY’ instruction, and shall turn over such Work in accordance with AUTHORITY’ instructions.

19.1.1 CONSULTANT shall deliver to AUTHORITY, all deliverables prepared by CONSULTANT or its subcontracts or furnished to CONSULTANT by AUTHORITY. Upon such delivery, CONSULTANT may then invoice AUTHORITY for payment in accordance with the terms hereof.

19.1.2 If CONSULTANT has fully and completely performed all obligations under this Contract up to the date of termination, CONSULTANT shall be entitled to receive from AUTHORITY as complete and full settlement for such termination a pro rata share of the contract cost and a pro rata share of any fixed fee, for such Services satisfactorily executed to the date of termination.

19.1.3 CONSULTANT shall be entitled to receive the actual cost incurred by CONSULTANT to return CONSULTANT’s field tools and equipment, if any, to it or its suppliers’ premises, or to turn over work in progress in accordance with AUTHORITY’s instructions plus the actual cost necessarily incurred in effecting the termination.

19.2 Termination for Cause- In the event CONSULTANT shall file a petition in bankruptcy court, or shall make a general assignment for the benefit of its creditors, or if a petition in bankruptcy shall be filed against CONSULTANT or a receiver shall be appointed on account of its solvency, or if CONSULTANT shall default in the performance of any express obligation to be performed by it under this Contract and shall fail to immediately correct (or if immediate correction is not possible, shall fail to commence and diligently continue action to correct) such default within ten (10) calendar days following written notice thereof, AUTHORITY may, without prejudice to any other rights or remedies AUTHORITY may have, and in compliance with applicable Bankruptcy Laws, (a) hold in abeyance further payments to CONSULTANT; (b) stop any services of CONSULTANT or its subcontractors related to such failure until such failure is remedied; and/or (c) terminate this Contract by written notice to CONSULTANT specifying the date of termination. In the event of such termination by AUTHORITY, AUTHORITY may take possession of the Products and finish Services by whatever method AUTHORITY may deem expedient. A waiver by AUTHORITY of one default of CONSULTANT shall not be considered to be a waiver of any subsequent default of CONSULTANT, nor be deemed to waive, amend, or modify any term of this Contract.

19.2.1 In the event of termination CONSULTANT shall deliver to AUTHORITY all finished and unfinished Products prepared by CONSULTANT or its subcontractors or furnished to CONSULTANT by AUTHORITY.

19.3 All claims for compensation or reimbursement of costs under any of the foregoing provisions shall be supported by documentation submitted to AUTHORITY, satisfactory in form and content to AUTHORITY and verified by AUTHORITY. In no event shall CONSULTANT be entitled to any prospective profits or any damages because of such termination.

ARTICLE 20. STOP WORK ORDER

Upon failure of CONSULTANT or its subcontractors to comply with any of the requirements of this Contract, AUTHORITY shall have the AUTHORITY to stop any work of CONSULTANT or its subcontractors affected by such failure until such failure is remedied or to terminate this Contract in accordance with Article 19, “TERMINATION”.

ARTICLE 21. CLAIMS

AUTHORITY shall not be bound to any adjustments in the Contract amount or schedule time for CONSULTANT’s claim unless expressly agreed to by AUTHORITY in writing and any such adjustments in the Contract amount so agreed to in writing shall be paid to CONSULTANT by AUTHORITY. No claim hereunder by CONSULTANT shall be allowed if asserted after final payment under this Contract.

ARTICLE 22. INSURANCE

Without anyway affecting the indemnity provision identified in this Contract, CONSULTANT shall, at the CONSULTANT’s sole expense, and prior to the commencement of any work, procure and maintain in full force, insurance through the entire term of this Contract. The policies shall be written by a California admitted carrier with a Best rating of A-VII or better, and shall be written with at least the following limits of liability:

22.1 Professional Liability – Shall be provided in an amount not less than $1,000,000, per claim and $2,000,000 in the aggregate. CONSULTANT shall secure and maintain this insurance or “tail” coverage provided throughout the term of this Contract and for a minimum of three (3) years after Contract completion.

22.2 Workers’ Compensation – Worker’s Compensation insurance shall be provided in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employers Liability with $1,000,000 per occurrence covering all persons providing services on behalf of CONSULTANT and all risks to such persons under this Contract.

22.3 Commercial General Liability -To include coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, Personal Injury Liability, Broad-Form Property Damage and Independent Contractors’ Liability, in an amount of not less than $1,000,000 per occurrence, combined single limit, and $2,000,000 in the aggregate written on an occurrence form. For products and completed operations a $2,000,000 aggregate shall be provided.

22.4 Automobile Liability – To include owned, non-owned and hired automobiles, in an amount of not less than $1,000,000 combined single per occurrence, combined single limit, and in the aggregate written on an occurrence form.

22.5 Railroad Protective Liability

a. Covering the activities and Services performed by Consultant for the Project within fifty-feet (50’) vertically or horizontally of railroad tracks.

b. The AAR-AASHTO (ISO/RIMA) Occurrence Form (claims-made forms are unacceptable) shall be issued in the primary name of the San Bernardino Association of Governments (SANBAG). Additional named insured are: Burlington Northern Santa Fe Railway Company and Southern California Regional Rail Authority.

c. The Railroad Protective Liability Insurance policy shall have limits of liability of not less than $5 million per occurrence, combined single limit, for Coverages A and B, for losses arising out of injury to or death of all persons, and for physical loss or damage to or destruction of property, including the loss of use thereof. Additionally, Policy Endorsement CG 28 31 – Pollution Exclusion Amendment, is required to be endorsed onto the policy. A $5 million annual aggregate shall apply.

d. At SANBAG’s request, Permittee shall submit the original Railroad Protective Liability Insurance Policy to SANBAG prior to entry upon the right-of-way.

e. CONSULTANT, including their sub-consultants and contractors, shall comply will all requirements set forth by the Southern California Regional Rail Authority, Burlington Northern Santa Fe Railway, and the National Railroad Passenger Corporation which shall include but not limited to safety, insurance, right-of-entry, and flagging.

22.6 Proof of Coverage- CONSULTANT shall furnish certificates of insurance to AUTHORITY evidencing the insurance coverage required above, prior to the commencement of performance of Services hereunder, and such certificates shall include San Bernardino Associated Governments/San Bernardino County Transportation Authority, and its officers, employees, agents and volunteers, as additional insured on Comprehensive General Liability Insurance or Commercial General Liability Insurance and auto insurance. Prior to commencing any work, CONSULTANT shall furnish AUTHORITY with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth in this Article. If the insurance company elects to cancel or non-renew coverage for any reason, the CONSULTANT will provide AUTHORITY thirty (30) days notice of such cancellation or nonrenewal. If the policy is cancelled for nonpayment of premium, the CONSULTANT will provide AUTHORITY ten (10) days written notice. CONSULTANT shall maintain such insurance from the time CONSULTANT commences performance of services hereunder until the completion of such Services. The certificate(s) of insurance are to include the Contract number and Project Manager’s name on the face of the certificate(s).

22.7 Additional Insured- All policies, except for Workers Compensation and Professional Liability policies, shall contain endorsements naming AUTHORITY and its officers, employees, agents, and volunteers as additional insureds with respect to liabilities arising out to the performance of Services hereunder. The additional insured endorsements shall not limit the scope of coverage for AUTHORITY to vicarious liability but shall allow coverage for AUTHORITY to the full extent provided by the policy.

22.8 Waiver of Subrogation Rights – CONSULTANT shall require the carriers of Commercial General Liability, Automobile Liability and Worker’s Compensation to waive all rights of subrogation against AUTHORITY, its officers, employees, agents, volunteers, and subcontractors. Such insurance coverage provided shall not prohibit CONSULTANT or CONSULTANT’s employees or agents from waiving the right of subrogation prior to a loss or claim. CONSULTANT hereby waives all rights of subrogation against AUTHORITY.

22.9 Commercial General Liability required herein is to be primary and non-contributory with any insurance carried or administered by AUTHORITY.

ARTICLE 23. INDEMNITY

Except as provided below for those services falling within the scope of Civil Code section 2782.8, CONSULTANT agrees to indemnify, defend (with counsel reasonably approved by AUTHORITY) and hold harmless the AUTHORITY and its authorized officers, employees, agents and volunteers, from any and all claims, actions, losses, damages and/or liability arising out of this Contract from any cause whatsoever, including acts, errors, or omissions of any person and for any costs or expenses incurred by the AUTHORITY on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnitees. CONSULTANT’s indemnification obligation applies to AUTHORITY “active” as well as “passive” negligence but does not apply to the AUTHORITY’s “sole negligence” or “willful misconduct” within the meaning of Civil Code Section 2782. To the extent CONSULTANT’s services fall within the scope of Civil Code section 2782.8, the following indemnification is applicable. CONSULTANT shall defend and indemnify AUTHORITY for claims that arise out of, pertain to, or related to the negligence, recklessness, or willful misconduct of the design professional.

ARTICLE 24. ERRORS AND OMISSIONS

24.1 CONSULTANT shall be responsible for the professional quality, technical accuracy, and coordination of all services required under this Contract. CONSULTANT may be liable for AUTHORITY costs resulting from errors or deficiencies, fines, penalties, and damages in services furnished under this Contract.

24.2 When a modification to a construction contract is required because of an error or deficiency in the services provided under this Contract, the AUTHORITY (with the advice of technical personnel and legal counsel) shall consider the extent to which the CONSULTANT may be reasonably liable.

24.3 AUTHORITY shall enforce the liability and collect the amount due, if the recoverable cost will exceed the administrative cost involved or is otherwise in the AUTHORITY’s interest. AUTHORITY shall include in the Contract file a written statement of the reasons for the decision to recover or not recover the costs from CONSULTANT.

ARTICLE 25. OWNERSHIP OF DOCUMENTS

All deliverables, including but not limited to, drawings, reports, worksheets, and other data developed by CONSULTANT under this Contract shall become the sole property of AUTHORITY when prepared, whether delivered to AUTHORITY or not.

ARTICLE 26. SUBCONTRACTS

26.1 CONSULTANT shall not subcontract performance of all or any portion of Services under this Contract, except those subcontractors listed in the CONSULTANT’s proposal, without first notifying AUTHORITY of the intended subcontracting and obtaining AUTHORITY’s approval in writing of the subcontracting and the subcontractor. The definition of subcontractor and the requirements for subcontractors hereunder shall include all lower-tier subcontracts.

26.2 CONSULTANT agrees that any and all subcontractors of CONSULTANT will comply with the terms of this Contract applicable to the portion of Services performed by them. If requested by AUTHORITY, CONSULTANT shall furnish AUTHORITY a copy of the proposed subcontract for AUTHORITY’s approval of the terms and conditions thereof and shall not execute such subcontract until AUTHORITY has approved such terms and conditions. AUTHORITY approval shall not be unreasonably withheld.

26.3 Approval by AUTHORITY of any services to be subcontracted and the subcontractor to perform said Services will not relieve CONSULTANT of any responsibility or liability in regard to the acceptable and complete performance of said Services. Any substitution of subcontractors must be approved in writing by AUTHORITY’s Project Manager.

ARTICLE 27. RECORD INSPECTION AND AUDITING

AUTHORITY, or any of its designees shall at all times have access during normal business hours to CONSULTANT’s operations and products wherever they are in preparation or progress, and CONSULTANT shall provide sufficient, safe, and proper facilities for such access and inspection thereof. Inspection or lack of inspection by AUTHORITY shall not be deemed to be a waiver of any of their rights to require CONSULTANT to comply with the Contract or to subsequently reject unsatisfactory services or products.

ARTICLE 28. INDEPENDENT CONTRACTOR

CONSULTANT is and shall be at all times an independent contractor. Accordingly, all Services provided by CONSULTANT shall be done and performed by CONSULTANT under the sole supervision, direction and control of CONSULTANT. AUTHORITY shall rely on CONSULTANT for results only, and shall have no right at any time to direct or supervise CONSULTANT or CONSULTANT’s employees in the performance of Services or as to the manner, means and methods by which Services are performed. All workers furnished by CONSULTANT pursuant to this Contract, and all representatives of CONSULTANT, shall be and remain the employees or agents of CONSULTANT or of CONSULTANT’s subcontractor(s) at all times, and shall not at any time or for any purpose whatsoever be considered employees or agents of AUTHORITY.

ARTICLE 29. ATTORNEY’S FEES

If any legal action is instituted to enforce or declare any Party’s rights hereunder, each Party, including the prevailing Party, must bear its own costs and attorneys’ fees. This Article shall not apply to those costs and attorneys’ fees directly arising from any third party legal action against a Party hereto and payable under the Indemnity provision of this Contract.

ARTICLE 30. GOVERNING LAW AND VENUE

This Contract shall be subject to the law and jurisdiction of the State of California. The Parties acknowledge and agree that this Contract was entered into and intended to be performed in whole or substantial part in San Bernardino County, California. The Parties agree that the venue for any action or claim brought by any Party to this Contract will be the Central District of San Bernardino County. Each Party hereby waives any law or rule of court, which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party, the Parties hereto agree to use their best efforts to obtain a change of venue to the Central District of San Bernardino County.

ARTICLE 31. FEDERAL, STATE AND LOCAL LAWS

CONSULTANT warrants that in the performance of this Contract, it shall comply with all applicable Federal, State and local laws, ordinances, rules and regulations.

ARTICLE 32. PRECEDENCE

32.1 The Contract documents consist of these General Terms and Conditions. Attachment “A”, Scope of Services, and Attachment “B”, Billing Rate Schedule, AUTHORITY’s Request For Proposal and CONSULTANT’s Proposal are incorporated herein by this reference.

32.2 The following order of precedence shall apply: this Contract, its General Terms and Conditions, and Attachments; AUTHORITY’s Request For Proposal and CONSULTANT’s Proposal. In the event of a conflict between the Contract and the Scope of Services, the Contract will prevail.

32.3 In the event of an express conflict between the documents listed in this Article, or between any other documents, which are a part of the Contract, CONSULTANT shall notify AUTHORITY in writing within three (3) business days of its discovery of the conflict and shall comply with AUTHORITY’s resolution of the conflict.

ARTICLE 33. COMMUNICATIONS AND NOTICES

Any and all notices permitted or required to be given hereunder shall be deemed duly given (a) upon actual delivery, if delivery is personally made; or (b) upon delivery into the United States Mail if delivery is by postage paid certified mail (return receipt requested), fax or private courier including overnight delivery services. Each such notice shall be sent to the respective Party at the address indicated below or to any other address as the respective parties may designate from time to time by a notice given in accordance with this Article. A change in address may be made by notifying the other Party in writing.

To CONSULTANT

To AUTHORITY

San Bernardino Associated Government

1170 W. 3rd. Street, 2ndFloor

San Bernardino, CA 92410-1715

Attn:

Attn: Mitch Alderman, P.E.

Phone:

Phone: (909) 884-8276

ARTICLE 34. DISPUTES

34.1 In the event any dispute arises between the Parties in connection with this Contract (including but not limited to disputes over payments, reimbursements, costs, expenses, services to be performed, Scope of Services and/or time of performance), the dispute shall be decided by the AUTHORITY within thirty (30) calendar days after notice thereof in writing which shall include a particular statement of the grounds of the dispute. If CONSULTANT does not agree with the decision, then CONSULTANT shall have thirty (30) calendar days after receipt of the decision in which to file a written appeal thereto with the Executive Director of AUTHORITY. If the Executive Director fails to resolve the dispute in a manner acceptable to CONSULTANT, then such appeal shall be decided by a court of competent jurisdiction.

34.2 During resolution of the dispute, CONSULTANT shall proceed with performance of this Contract with due diligence.

ARTICLE 35. GRATUITIES

CONSULTANT, its employees, agents, or representatives shall not offer or give to an officer, official, or employee of AUTHORITY, gifts, entertainment, payments, loans, or other gratuities to influence the award of a contract or obtain favorable treatment under a contract.

ARTICLE 36. REVIEW AND ACCEPTANCE

All Services performed by CONSULTANT shall be subject to periodic review and approval by AUTHORITY at any and all places where such performance may be carried on. Failure of AUTHORITY to make such review, or to discover defective work, shall not prejudice the rights of AUTHORITY at the time of final acceptance. All Services performed by CONSULTANT shall be subject to periodic and final review and acceptance by AUTHORITY upon completion of all Services.

ARTICLE 37. CONFIDENTIALITY

Any AUTHORITY materials to which CONSULTANT or its subcontractors or agents have access to or materials prepared by CONSULTANT during the term of this Contract shall be held in confidence by CONSULTANT, who shall exercise reasonable precautions to prevent the disclosure of confidential information to anyone except as authorized by the AUTHORITY. CONSULTANT shall not release any reports, information of promotional material or allow for the use of any photos related to this Contract for any purpose without prior written approval of AUTHORITY.

ARTICLE 38. EVALUATION OF CONSULTANT

CONSULTANT’s performance will be evaluated by AUTHORITY at the completion of certain milestones as identified in Attachment “A” to this Contract. A copy of the evaluation will be given to CONSULTANT for their information. The evaluation information shall be retained as part of the Contract record.

ARTICLE 39. SAFETY

CONSULTANT shall comply strictly with all local, municipal, state, and federal safety and health laws, orders and regulations applicable to CONSULTANT’ operations in the performance of Services hereunder.

ARTICLE 40. ASSIGNMENT

CONSULTANT shall not assign this Contract in whole or in part, voluntarily, by operation of law, or otherwise without first obtaining the written consent of AUTHORITY. AUTHORITY’s exercise of consent shall be within its sole discretion. Subject to the foregoing, the provisions of this Contract shall extend to the benefit of and be binding upon the successors and assigns of the Parties hereto.

ARTICLE 41. AMMENDMENTS

This Contract may only be changed by a written amendment duly executed by CONSULTANT and AUTHORITY except, that changes to the Contract to implement administrative changes such as approved changes in key personnel as provided in “KEY PERSONNEL” Article above, may be made by administrative amendment signed by CONSULTANT and AUTHORITY’s Project Manager or other duly authorized representative.

ARTICLE 42. PREVAILING WAGES

Labor Laws. By its execution of this Contract, CONSULTANT certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects.  If the Scope of Work is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, CONSULTANT agrees to fully comply with such Prevailing Wage Laws.  CONSULTANT shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Scope of Work available to interested parties upon request, and shall post copies at the CONSULTANT’s principal place of business and at the project site. CONSULTANT will also adhere to any other applicable requirements, including but not limited to, those regarding the employment of apprentices, travel and subsistence pay, retention and inspection of payroll records, workers compensation and forfeiture of penalties prescribed in the Labor Code for violations.  CONSULTANT shall defend, indemnify and hold the AUTHORITY, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with Prevailing Wage Laws.

ARTICLE 43. CONTINGENT FEE

CONSULTANT warrants, by execution of this Contract, that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a Commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, AUTHORITY has the right to annul this Contract without liability, pay only for the value of Services actually performed, or in its discretion, to deduct from the Contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.

ARTICLE 44. INCORPORATION OF FEDERAL TERMS

All contractual provisions required by the U.S. Department of Transportation (DOT), including the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) whether or not expressly set forth in this Contract, are hereby incorporated by this reference. CONSULTANT shall not perform any act, fail to perform any act, or refuse to comply with any requests, which would cause the AUTHORITY to be in violation of FHWA or FTA terms and conditions.

ARTICLE 45. FEDERAL CHANGES

CONSULTANT shall at all times comply with all applicable US DOT regulations, policies and procedures and directives, including without limitation those directly or by this reference in the agreement between the AUTHORITY and the USDOT, as they may be amended from time to time during the term of this Contract. CONSULTANT’s failure to comply shall be considered a material breach of this Contract.

ARTICLE 46. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES

AUTHORITY and CONSULTANT acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of this Contract, absent the express written consent of the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the AUTHORITY, CONSULTANT, or any other party (whether or not a party to this Contract) pertaining to any matter resulting from the underlying Contract. CONSULTANT further agrees to include this Article in all subcontracts.

ARTICLE 47. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS

47.1 CONSULTANT acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 41 U.S.C. §3801 et. seq. and US DOT regulations, “Program Fraud Civil Remedies,” 49 C.F.R. Part 31, apply to its actions pertaining to this project. Accordingly, by signing this Contract, CONSULTANT certifies and affirms the truthfulness and accuracy of any statement it has made, it makes, or causes to be made, pertaining to the underlying agreement of the US DOT assisted project for which this Contract’ work is being performed. CONSULTANT further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose penalties of the Program Fraud Civil Remedies Act of 1986 on the CONSULTANT to the extent the Federal Government deems appropriate.

47.2 CONSULTANT also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under an agreement connected with a project that is financed in whole or part with Federal assistance awarded by the US DOT under the authority of 49 U.S.C. §5307 et seq., the US Government reserves the right to impose penalties of 18 U.S.C. §1001 and 49 U.S.C. §5307 (n) (1) et seq. on the CONSULTANT, to the extend the Federal Government deems appropriate. CONSULTANT agrees to include this Article in all of its subcontracts.

ARTICLE 48. DEBARMENT AND SUSPENSION CERTIFICATION

48.1 CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that CONSULTANT has complied with Title 49, Code of Federal Regulations, Part 29, Debarment and Suspension Certificate, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to AUTHORITY.

48.2 Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining CONSULTANT responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.

ARTICLE 49. REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION

CONSULTANT warrants that this Contract was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any AUTHORITY employee or representative. For breach or violation of this warranty, AUTHORITY shall have the right in its discretion; to terminate this Contract without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.

ARTICLE 50. PROHIBITION OF EXPENDING LOCAL AGENCY STATE OR FEDERAL FUNDS FOR LOBBYING

CONSULTANT certifies to the best of their knowledge and belief that: No state, federal or local agency appropriated funds have been paid, or will be paid by-or-on behalf of CONSULTANT to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000, and that all such subcontracts.

ARTICLE 51. UNDERUTILIZED DISADVANTAGE BUSINESS ENTERPRISES

51.1 AUTHORITY, as a recipient of federal financial assistance, is required to implement a Disadvantaged Business Program in accordance with federal regulation 49 CFR Part 26 issued by the U.S. Department of Transportation (DOT). AUTHORITY has set a 3.2% for this project. CONSULTANT shall furnish all documentation satisfactory to AUTHORITY that the work committed to UDBE’s was actually performed by UDBE’s. Requests for progress payments shall include a summary of payments actually made to UDBE’s during the invoice period (Form 315), which includes a total of all payments made to all subcontractors under this Contract. UDBE participation shall be credited toward the overall UDBE goal only when payments are actually made to the UDBE firms. CONSULTANT shall submit on the 15th of every month to AUTHORITY’ Contract Compliance Officer, Form 315. Upon completion of the Contract, CONSULTANT shall submit “Final Report-Utilization of Disadvantaged Business Enterprises-First Tier Subcontractors”, Form 17-F and submit with the final invoice.

51.2 CONSULTANT shall carry out all applicable requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted contract. Failure by CONSULTANT to carry out these requirements is material breach of this Contract, which may result in the termination of this Contract or such other remedy, as AUTHORITY may deem appropriate.

ARTICLE 52. NONSEGREGATED FACILITIES

52.1 CONSULTANT, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. CONSULTANT agrees that a breach of this certification is a violation of the EEO provisions of this Contract. The firm further certifies that no employee will be denied access to adequate facilities on the basis of sex or disability.

52.2 As used in this certification, the term “segregated facilities” means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, time-clocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, subcontractors or material suppliers prior to award of subcontracts or consummation of material supply agreements of $10,000 or more and that it will retain such certifications in its files.

ARTICLE 53. RECYCLED PRODUCTS

CONSULTANT shall comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act as amended, (42 USC 6962), including but not limited to the

40 CFR part 247 and Executive Order 12873, as applicable. CONSULTANT agrees to include this Article in all of its subcontracts.

ARTICLE 54. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT

54.1 CONSULTANT agrees that any facility that is or will be utilized in the performance of this Contract, unless such contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub.L. 91-604), and under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq., as amended by Pub.L. 92-500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not listed, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20.

54.2 CONSULTANT agrees to comply and remain in compliance with all the requirements of Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder.

54.3 CONSULTANT shall promptly notify AUTHORITY of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for this Contract is under consideration to be listed on the EPA List of Violating Facilities.

54.4 CONSULTANT agrees to include or cause to be included the requirements of paragraph 1 through 4 of this Section in every nonexempt subcontract, and further agrees to take such action as the government may direct as a means of enforcing such requirements.

ARTICLE 55. FORCE MAJEURE

CONSULTANT shall not be in default under this Contract in the event that the services provided/work performed by CONSULTANT are temporarily interrupted or discontinued for any of the following reasons: riots, wars, sabotage, acts of terrorism, civil disturbances, insurrection, explosion, pandemics, quarantines, acts of God, acts of government or governmental restraint, and natural disasters such as floods, earthquakes, landslides, and fires, severe weather or other catastrophic events which are beyond the reasonable control of CONSULTANT and which CONSULTANT could not reasonably be expected to have prevented or controlled.  Other catastrophic events do not include the financial inability of the CONSULTANT to perform or failure of the CONSULTANT to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of CONSULTANT.

ARTICLE 56. ENTIRE DOCUMENT

56.1 This Contract and its attachments constitute the sole and only agreement governing Services and supersedes any prior understandings, written or oral, between the Parties respecting the Project. All previous proposals, offers, and other communications, written or oral, relative to this Contract, are superseded except to the extent that they have been expressly incorporated into this Contract.

56.2 No agent, employee or representative of AUTHORITY has any AUTHORITY to bind AUTHORITY to any affirmation, representation or warranty outside of, or in conflict with, the stated terms of this Contract, and CONSULTANT hereby stipulates that it has not relied, and will not rely, on same.

56.3 As this Contract was jointly prepared by both Parties, the language in all parts of this Contract will be construed, in all cases, according to its fair meaning, and not for or against either Party.

ARTICLE 57. EFFECTIVE DATE

The date that this Contract is executed by AUTHORITY shall be the Effective Date of the Contract.

IN WITNESS WHEREOF, the Parties hereto have executed this Contract on the day and year below written, but effective as of the day and year first set forth above.

CONSULTANT

SAN BERNARDINO ASSOCIATED GOVERNMENTS

By:

By:

Name
Title

Larry McCallon
President, Board of Directors

Date:

Date:

APPROVED AS TO FORM

By:

Penny Alexander-Kelley
General Counsel

CONCURRENCE

By:

Kathleen Murphy-Perez
Contracts Manager

ATTACHMENT “B”

HOURLY RATES

ATTACHMENT “C”

FEDERAL FORMS &

UDBE/DBE SOLICITATION LANGUAGE

FEDERAL FORMS

NON LOBBYING CERTIFICATION FOR FEDERAL-AID CONTRACTS

I, (Firm Name) as the Proposer certifies, by signing and submitting this Proposal, to the best of his or her knowledge and belief, that:

(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

(2) If any funds, other than Federal appropriated funds, have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure of Lobbying Activities,” in conformance with its instructions.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

The prospective participant also agrees by submitting his or her Proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub-recipients shall certify and disclose accordingly.

Executed this day of , 20

By:

Signature of Proposer’s authorized official

SAN BERNARDINO ASSOCIATED GOVERNMENTS

INSTRUCTIONS FOR COMPLETION OF SF-LLL, DISCLOSURE OF LOBBYING ACTIVITIES

This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a covered Federal action or a material change to previous filing pursuant to Title 31 U.S.C. Section 1352. The filing of a form is required for such payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action. Use the SF-LLL-A Continuation Sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.

1. Identify the type of covered Federal action for which lobbying activity is and/or has been secured to influence, the outcome of a covered Federal action.

2. Identify the status of the covered Federal action.

3. Identify the appropriate classification of this report. If this is a follow-up report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action.

4. Enter the full name, address, city, state and zip code of the reporting entity. Include Congressional District if known. Check the appropriate classification of the reporting entity that designates if it is or expects to be a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the first tier. Subawards include but are not limited to subcontracts, subgrants and contract awards under grants.

5. If the organization filing the report in item 4 checks ”Subawardee” then enter the full name, address, city, state and zip code of the prime Federal recipient. Include Congressional District, if known.

6. Enter the name of the Federal agency making the award or loan commitment. Include at least one organization level below agency name, if known. For example, Department of Transportation, United States Coast Guard.

7. Enter the Federal program name or description for the covered Federal action in item 1. If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans and loan commitments.

8. Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (e.g., Request for Proposal (RFP) number, Invitation for Bid (IFB) number, grant announcement number, the contract, grant, or loan award number, the application/proposal control number assigned by the Federal agency. Include prefixes, e.g. RFP-DE-90-001.

9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount of the award/loan commitments for the prime entity identified in item 4 or 5.

10. (a) Enter the full name, address, city, state and zip code of the lobbying entity engaged by the reporting entity identified in item 4 to influence the covered Federal action. (b) Enter the full names of the individual(s) performing services and include full address if different from 10 (a). Enter Last Name, First name and Middle Initial (MI).

11. Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity (item 4) to the lobbying entity (item 10). Indicate whether the payment has been made (actual) or will be made (planned). Check all boxes that apply. If this is a material change report, enter the cumulative amount of payment made or planned to be made.

12. Check the appropriate box(es). Check all boxes that apply. If payment is made through an in-kind contribution, specify the nature and value of the in-kind payment.

13. Check the appropriate box(es). Check all boxes that apply. If other, specify nature.

14. Provide a specific and detailed description of the services that the lobbyist has performed or will be expected to perform and the date(s) of any services rendered. Include all preparatory and related activity, not just time spent in actual contact with Federal official(s). Identify the Federal officer(s) or employee(s) contacted or the officer(s) employee(s) or Member(s) of Congress that were contacted.

15. Check whether or not a SF-LLL-A Continuation Sheet(s) is attached.

16. The certifying official shall sign and date the form print his/her name title and telephone number.

Public reporting burden for this collection of information is estimated to average 30 minutes per response, including time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, D.C. 20503.

DISCLOSURE OF LOBBYING ACTIVITIES

Complete this form to disclose lobbying activities pursuant to 31 U.S.C. 1352

1. Type of Federal Action:

a. contract

b. grant

c. cooperative agreement

d. loan

e. loan guarantee

f. loan insurance

2. Status of Federal Action:

a. bid/offer application

b. initial award

c. post-award

3. Report Type:

a. initial filing

b. material changes

For Material Change Only:

year quarter

date of last report

4. Name and Address of Reporting Entity:

Prime Subawardee

Tier , if known:

Congressional District, if known:

5. If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime:

Congressional District, if known:

6. Federal Department/Agency:

7. Federal Program Name/Description:

CFDA number, if applicable:

8. Federal Action Number, if known:

9. Award Amount, if known:

$

10. a. Name and Address of Lobbying Entity

(if individual, last name, first name, MI)

b. Individuals Performing Services (including address if different from No 10a)

(last name, first name, MI):

(attach Continuation Sheet(s) SF – LLL – A if necessary)

11. Amount of Payment (check all that apply):

$ actual planned

13. Type of Payment (check all that apply):

a. retainer

b. one-time fee

12. Forum of Payment (check all that apply):

a. cash

b. in-kind; specify nature:

value:

c. commission

d. contingent fee

e. deferred

f. other specify:

14. Brief Description of Services Performed or to be Performed and Date(s) of Service, including officer(s), employee(s) or Member(s) contracted for Payment indicated in Item, 11:

(attach Continuation Sheet(s) SF-LLL-A if necessary)

15. Continuation Sheet(s) SF-LLL-A attached: Yes No

16. Information requested through this form is authorized by Code 31 U.S.C. Section 1352. This disclosure of lobbying activities is a material representation of fact upon which reliance was placed by the tier above when this transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be reported to the Congress semi-annually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000.00 and not more than $100,000.00 for each such failure.

Signature:

Print name:

Title:

Telephone No: Date:

DISCLOSURE OF LOBBYING ACTIVITIES CONTINUATION SHEET

Reporting Entity: Page of

SAN BERNARDINO ASSOCIATED GOVERNMENTS

Instructions for Certification Regarding

Debarment, Suspension

Each Proposer shall complete the “Certification of Debarment, Suspension and other Responsibility Matters” included in this RFP for itself and its principals, and submit the certification with its Proposal. Failure to submit the certification may result in the rejection of the Proposal.

If a Firm plans to use subcontractors on this project, the Firm shall have all subcontractors with contracts in excess of $25,000 complete the certification entitled “Certification Regarding Debarment For Lower Tier Covered Transactions “for and submit that certification within ten (10) after Notice of Award.

By signing and submitting this Proposal, the prospective primary participant is providing the certification set out below. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the Authority’s determination whether to enter into this transaction. However, failure of the Proposer to furnish a certification or an explanation shall disqualify such person from participation in this transaction.

The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.

The prospective primary participant shall provide immediate written notice to the department or agency to which this Proposal is submitted if at any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meanings set out in the Definitions and Coverage sections of the rules implementing Executive Order 12549. You may contact Authority to which this Proposal is being submitted for assistance in obtaining a copy of those regulations.

The prospective primary participant agrees by submitting this Proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.

The prospective primary participant further agrees by submitting this Proposal that it will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.

A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.

Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

Except for transactions authorized under these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 29, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.

Instructions for Certification Regarding

Debarment, Suspension – Lower Tier Covered Transactions

Applicable to all subcontracts, purchase orders and other lower tier transactions of $25,000 or more – 49 CFR 29)

By signing and submitting this Proposal, the prospective lower tier (subcontractor) is providing the certification set out below.

The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered 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 debarment.

The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances.

The terms “covered transaction,” “debarred,” “suspended,” “ineligible,” “primary covered transaction,” “participant,” “person,” “principal,” “proposal,” and “voluntarily excluded,” as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.

The prospective lower tier participant agrees by submitting this Proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.

The prospective lower tier participant further agrees by submitting this Proposal that it will include this clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.

A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Non-procurement List.

Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

Except for transactions authorized under these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, 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 debarment.

SAN BERNARDINO ASSOCIATED GOVERNMENTS

CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS – PRIMARY COVERED TRANSACTIONS

The Firm Name/Principal

Certifies to the best of its knowledge and belief, that it and its principals:

1. Are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any Federal department or agency.

2. Have not within a three-year period preceding this Proposal, been convicted of or had a civil judgment rendered against them for commission of fraud or criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;

3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local), with commission of any of the offenses enumerated in paragraph 2 herein; and

4. Have not within a three-year period preceding this Proposal had one or more public transaction (federal, state or local) terminated for cause or default.

If unable to certify to any of these statements in this certification, the primary participant (Proposer) shall attach an explanation to this certification.

THE PRIMARY PARTICIPANT

Firm Name/Principal

Certifies or affirms the truthfulness and accuracy of the content of the statements submitted on or with this certification and understands that the provisions of 31 U.S.C. Sections 3801 et seq., are applicable.

Signature and Title of Authorized Official:

SAN BERNARDINO ASSOCIATED GOVERNMENTS

CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY EXCLUSION –

LOWER TIER COVERED TRANSACTIONS

The Firm Name/Principal

Certifies by submission of this Proposal, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any federal department or agency.

If unable to certify to any of the statements in this certification, such participant(s) shall attach an explanation to this Proposal.

THE LOWER TIER PARTICIPANT: Firm Name/Principal

Certifies or affirms the truthfulness and accuracy of the content of the statements submitted on or with this certification and understands that the provisions of 31 U.S.C. Sections 3801 et seq. are applicable.

Signature and Title of Authorized Official:

ATTACHMENT C – UDBE INFORMATION

UDBE/DBE SOLICITATION LANGUAGE

A. AUTHORITY’S RESPONSIBILITY

It is San Bernardino Associated Government’s (Authority) policy to provide disadvantaged, minority, and women-owned business enterprises, as defined in Title 49 CFR Part 26, an equitable opportunity to participate in all contracting opportunities. The Authority’s agreements with Federal Transit Administration (FTA) and Federal Highways Administration (FHWA) regarding its DBE programs, which include minority and women-owned business enterprises, are designed to administer contracts, consultant selection, and all related procurement activities without regard to race, color, religion, disability, political beliefs, age, national origin, gender, veteran status, or cultural background. Accordingly, no firm or individual shall be denied the opportunity to compete for Authority contracts by reasons so stated or implied.

In accordance with federal financial assistance agreements with the U.S. Department of Transportation (U.S. DOT), Caltrans and the Authority have adopted a Disadvantaged Business Enterprise (DBE) Policy and Program, in conformance with Title 49 CFR Part 26, “Participation by Disadvantaged Business Enterprises in Department of Transportation Programs.”

This DOT-assisted project is subject to these stipulated regulations. In order to ensure that the Authority achieves its overall DBE Program goals and objectives, the Authority encourages the participation of small businesses, including DBEs as defined in 49 CFR 26, in the performance of contracts financed in whole or in part with U.S. DOT funds. In addition, this project is subject to Caltrans Underutilized Disadvantaged Business Enterprise (UDBE) requirements.

In the event of any conflicts or inconsistencies between the CFR and the Authority’s DBE Program with respect to DOT-assisted contracts, the CFR shall prevail.

B. UDBE GOAL

The AUTHORITY, as a recipient of federal financial assistance, is required to implement a Disadvantaged Business Program in accordance with federal regulation 49 CFR Part 26 issued by the U.S. Department of Transportation (DOT).

The Authority has established a goal for the participation by UDBEs of 3.2% of the total contract value. If the awarded firm has a total UDBE commitment (10-O1) in excess of the UDBE goal, the firm will be held to the higher commitment amount.

Only UDBEs who meet the definition contained within these provisions and who have been certified at the time of bid opening may be credited toward the goal.

If the UDBE goal is not met, the firm must demonstrate that adequate good faith efforts were made to meet the goal.

Specific instructions and copies of required forms are included in Attachment B-1.

C. DEFINITIONS

The following definitions apply to the terms as used in these provisions:

i. “Disadvantaged Business Enterprise (DBE)”
means a small business concern: (a) which is at least 51 percent owned by one or more socially and economically disadvantaged individuals or, in the case of any publicly-owned business, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and (b) whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.

ii. “Underutilized Disadvantaged Business Enterprise (UDBE)”
is a certified DBE owned by one (1) of the following four (4) groups: African American, Asian-Pacific American, Native American and Women owned businesses, which were identified in the 2007 Caltrans Availability and Disparity Study.

iii. “Small Business Concern”
means a small business as defined pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto, except that a small business concern shall not include any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals which has annual average gross receipts in excess of $22.41 million over the previous three fiscal years.

iv. “Socially and Economically Disadvantaged Individuals”
means those individuals who are citizens of the United States (or lawfully admitted permanent residents) and who are Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, or Asian-Indian Americans, women and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section 8(a) of the Small Business Act, or by the Authority pursuant to 49 CFR part 26.65. Members of the following groups are presumed to be socially and economically disadvantaged:

a. “Black Americans,” which includes persons having origins in any of the Black racial groups of Africa;

b. “Hispanic Americans,” which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;

c. “Native Americans,” which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;

d. “Asian-Pacific Americans,” which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, Burma, Thailand, Malaysia, Indonesia the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific, and the Northern Marianas, Macao. Fiji, Tonga, Kirbati, Juvalu, Naura, Micronesia, or Hong Kong;

e. “Asian-Indian Americans,” which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka; and

f. Women, regardless of ethnicity or race.

v. “Owned and Controlled”
means a business: (a) which is at least 51 percent owned by one or more “Socially and Economically Disadvantaged Individuals” or, in the case of a publicly-owned business, at least 51 percent of the stock of which is owned by one or more “Socially and Economically Disadvantaged Individuals”; and (b) whose management and daily business operations are controlled by one or more such individuals.

vi. “Manufacturer”
means a firm that operates or maintains a factory or establishment that produces on the premises the materials, supplies articles, or equipment required under the contract and of the general character described by specifications.

vii. “Regular Dealer”
means a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials or supplies required for the performance of the contract are bought, kept in stock, and regularly sold to the public in the usual course of business. The firm must engage in, as its principal business, and in its own name, the purchase and sale of the product in question. A regular dealer in such bulk items as steel, cement, gravel, stone and petroleum products need not keep such products in stock if it owns or operates distribution equipment.

viii.”Other Socially and Economically Disadvantaged Individuals”
means those individuals who are citizens of the United States (or lawfully admitted permanent residents) and who, on a case-by-case basis, are determined by Small Business Administration to meet the social and economic disadvantage criteria described below.

a. Social Disadvantage

1) The individual’s social disadvantage must stem from his/her color, national origin, gender, physical handicap, long-term residence in an environment isolated from the mainstream of American society, or other similar cause beyond the individual’s control.

2) The individual must demonstrate that he/she has personally suffered social disadvantage.

3) The individual’s social disadvantage must be rooted in treatment, which he/she has experienced in American society, not in other countries.

4) The individual’s social disadvantage must be chronic, longstanding and substantial, not fleeting or insignificant.

5) The individual’s social disadvantage must have negatively affected his/her entry into and/or advancement in the business world.

6) A determination of social disadvantage must be made before proceeding to make a determination of economic disadvantage.

b. Economic Disadvantage

1) The individual’s ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities, as compared to others in the same line of business and competitive market area that are not socially disadvantaged.

2) The following criteria will be considered when determining the degree of diminished credit and capital opportunities of a person claiming social and economic disadvantage:

With respect to the individual:

availability of financing

bonding capability

availability of outside equity capital

available markets

With respect to the individual and the business concern:

personal and business assets

personal and business net worth

personal and business income and profits

D. UDBE PROPOSAL SUBMISSION REQUIREMENTS

i. The following forms must be submitted with the bid:

a. Local Agency Proposer UDBE Commitment (Exhibit 10-O1)

If the Proposer is a UDBE or intends to utilize UDBE subcontractors and/or purchase goods or services from UDBE vendors or UDBE suppliers in the performance of this contract, the Proposer shall provide the following information for every UDBE firm who will be proposed and/or listed to participate to facilitate capturing UDBE participation under this contract:

1) The complete name and address of each UDBE who will participate in the contract;

2) A description of the work that each UDBE will perform or provide;

3) The dollar amount of the work to be performed or provided by the UDBE;

4) Valid UDBE Certification eligibility status, in conformance with 49 CFR, Part 26.

b. “Bidders List” (Exhibit 12-G)

The U.S. Department of Transportation (DOT) requires the Authority to maintain a “Bidders List” containing information about all firms (DBE and non-DBE) that bid, propose or quote on the Authority’s DOT-assisted contracts, in accordance with 49 CFR Part 26.11, for use in the Authority’s overall annual DBE goal-setting process. Therefore, the Proposer shall provide the requested information for every firm who submitted a bid, proposal or quote, including the primary Proposer, whether successful or unsuccessful in their attempt to obtain a contract:

1) Firm name;

2) Firm address;

3) Phone number;

4) A description of the work that each DBE will perform;

5) Range of annual gross receipts for the last year.

The “Bidders List” information must be submitted on
Exhibit 12-G
and submitted with the bid.

ii. The following forms must be submitted no later than four (4) working days after bid submittal:

a. Local Agency Proposer DBE Commitment (Exhibit 10-O2)

If the Proposer is a DBE or intends to utilize DBE subcontractors and/or purchase goods or services from DBE vendors or DBE suppliers in the performance of this contract, the Proposer shall provide the following information for every DBE firm who will be proposed and/or listed to participate to facilitate capturing DBE participation under this contract:

1) The complete name and address of each DBE who will participate in the contract;

2) A description of the work that each DBE will perform or provide;

3) The dollar amount of the work to be performed or provided by the DBE;

4) Valid DBE Certification eligibility status, in conformance with 49 CFR, Part 26.

b
.
Good Faith Efforts (Exhibit 15-H)

The Authority has established an Underutilized Disadvantaged Business Enterprise (UDBE) goal of 3.2% for this project. The lowest, second lowest and third lowest Proposers shall submit
Exhibit 15-H
to document adequate good faith efforts. Proposers should submit
Exhibit 15-H
even if the “Local Agency Bidder – UDBE Commitment” form (10-O1) indicates that the Proposer has met the UDBE goal. This will protect the Proposer’s eligibility for award of the contract if the administering agency determines that the Proposer failed to meet the goal for various reasons, e.g., a UDBE firm was not certified at bid opening, or the Proposer made a mathematical error.

Proposers must submit Good Faith Efforts information on
Exhibit 15-H
and include supporting documentation no later than four (4) working days after bid submittal.

iii. The following form must be submitted by the 15th of each month during the course of the project:

a. Summary of Disadvantaged Business Enterprise (DBE) – Subcontractors Paid Monthly Report (SANBAG Form 315

Monthly, the prime contractor must complete Form 315 to report all payments made to DBEs (including UDBEs). It is important to identify all DBE firms that were paid during the reporting period for the project, including all UDBEs listed on the UDBE Commitment Form (Exhibit 15G(1)), regardless of tier. The form must be signed and dated by the prime contractor’s representative that is responsible for reporting DBE compliance matters. The form must be submitted no later than the 15th day of each month to the Contract Compliance Officer (to be designated by the Contract Manager).

iv. The following form must be submitted at the conclusion of the project:

a. Final Report- Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors (Exhibit 17-F)

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,” (Exhibit 17-F), 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 0% of the dollar value of the invoice being withheld from payment until the form is submitted. The 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.

v. The following must be submitted, if applicable:

a. Disadvantaged Business Enterprises (DBE) Certification Status Change (Exhibit 17-O)

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.

b. Notification of Disadvantaged Business Enterprises (DBE) Substitution

Authority must have prior approval of any DBE subconsultant substitutions. If a listed DBE subconsultant is terminated, you must make good faith efforts to find another DBE subconsultant to substitute for the original

DBE.

The substitute DBE must perform at least the same amount of work as the original DBE under the Agreement to the extent needed to meet the UDBE goal. The substitute DBE must be certified as a DBE at the time of request for substitution. Authority does not pay for work or material unless it is performed or supplied by the listed DBE, unless the DBE is terminated in accordance with this section and California Civil Code 4107.

E. UDBE CERTIFICATION

The Authority is participating as a Non-Certifying Member in the California Unified Certification Program (CUCP). The Authority requires all UDBEs listed by Proposer for participation to be certified as eligible UDBEs at the time of bid submission. Only participation by UDBEs certified by the CUCP under the DOT regulations published under 49 CFR Part 26 may be credited towards race-neutral or race-conscious UDBE/DBE participation. It is the responsibility of the Proposer to verify the DBE certification status of all listed UDBEs.

F. UDBE ELIGIBILITY AND COMMERCIALLY USEFUL FUNCTION STANDARDS

i. A UDBE must be a small business concern as defined pursuant to Section 3 of the U.S. Small Business Act and relevant regulations promulgated pursuant thereto.

ii. A UDBE may participate as a prime contractor, subcontractor, joint venture partner with a prime or subcontractor, vendor of material or supplies, or as a trucking company.

iii. A UDBE 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 UDBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint venture commensurate with its ownership interest.

iv. A UDBE must perform a commercially useful function in accordance with 49 CFR 26.55 (i.e., 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). A UDBE should perform at least thirty percent (30%) of the total cost of its contract with its own workforce to presume it is performing a commercially useful function.

v. UDBEs must be certified by the California Unified Certification Program (CUCP). Listings of UDBEs certified by the CUCP are available from the following sources:

a. The CUCP web site, which can be accessed at http://www.californiaucp.com; or the Caltrans “Civil Rights” web site at

http://www.dot.ca.gov/hq/bep

.

b. If you believe a firm is certified that cannot be located on the database, please contact the Caltrans Office of Civil Rights Certification Unit at (916) 324-8347 for assistance.

c. In order to identify certified UDBEs/DBEs, you must only use the California Unified Certification Program Database (CUCP).
Certifications from other agencies or organizations will not be accepted.

vi. “FRAUDS” and “FRONTS” – Proposers are hereby cautioned against knowingly and willfully using “fronts” or doing business with UDBE/DBEs in a manner, which could compromise the UDBE/DBE’s continued eligibility and to meet the UDBE goal of this contract. Only legitimate UDBEs are eligible to participate in any federally funded contract. The use of “fronts” and “pass through” subcontracts to non-disadvantaged firms constitute criminal violations. Any indication of fraud, waste, abuse or mismanagement of federal funds should be immediately reported to the Authority or to the Office of Inspector General, U.S. Department of Transportation at the toll-free hotline (8004249071), or to the following field office: FTA Special Agent-in-Charge, 201 Mission Street, Suite 1650, San Francisco, CA 94105, (4157742729).

G. UDBE CREDITING PROVISIONS

i. When a UDBE is proposed to participate in the contract, either as a prime contractor or subcontractor, only the value of the work proposed to be performed by the UDBE with its own forces may be counted towards UDBE participation. If the contractor is a UDBE joint venture participant, only the UDBE proportionate interest in the joint venture shall be counted.

ii. If a UDBE intends to subcontract part of the work of its subcontract to a lower tier subcontractor, the value of the subcontracted work may be counted toward UDBE participation only if the UDBE subcontractor is a certified UDBE and actually performs the work with their own forces. Services subcontracted to a non-UDBE firm may not be credited toward the prime Contractor’s UDBE attainment.

iii. Materials or supplies purchased from DBEs count toward DBE credit, and if a DBE is also a UDBE, purchases will count toward the UDBE goal under the following conditions:

a. If the materials or supplies are obtained from a UDBE manufacturer, 100 percent of the cost of the materials or supplies count towards the goal. A UDBE manufacturer is a firm that operates, or maintains a factory, or establishment that produces on the premises that 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 UDBE regular dealer, count 60 percent of the cost of the materials or supplies. A UDBE 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 specification and required under the Agreement are bought, kept in bulk items as petroleum products, steel, cement, gravel, stone or in this section.

c. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers’ own distribution 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 UDBE, 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 required or fees or transportation charges for the delivery of materials or supplies on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services.

iv. 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 UDBE 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 UDBE must itself own and operate at least one fully licensed, insured, and operational truck used on the agreement.

c. The UDBE 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 UDBE may lease trucks from another UDBE firm including an owner-operator who is certified as a UDBE. A UDBE who leases trucks from another UDBE receives credit for the total value of the transportation services the lessee UDBE provides on the agreement.

e. The UDBE may lease trucks from another UDBE firm including an owner-operator. A UDBE 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 UDBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by the UDBE.

For the purposes of this section, a lease must indicate that the UDBE 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 UDBE, as long as the lease gives the UDBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the UDBE.

H. GOOD FAITH EFFORTS

If the Proposer fails to meet the established contract-specific UDBE goal, the Proposer must document sufficient Good Faith Efforts to be deemed responsive to the UDBE requirements set forth in this solicitation. This means that the Proposer must demonstrate that it took all necessary and reasonable steps to achieve the UDBE goal that could reasonably be expected to obtain sufficient UDBE participation, even if the Proposer was not fully successful. The efforts employed by the Proposer should be consistent with actively and aggressively trying to obtain UDBE participation sufficient to meet the established UDBE contract goal. Mere pro forma efforts are not Good Faith Efforts to meet the UDBE contract requirements. The Authority will make a fair and reasonable judgment whether a Proposer that did not meet the goal made adequate good efforts to do so.

The apparent successful Proposer (low Proposer), the second low Proposer and the third low Proposer shall submit all Good Faith Efforts documentation (undertaken prior to bidding) to the Authority within four 4 working days after bid submittal. At no time shall contractor begin performance prior to submitting Good Faith Effort documentation.

Good Faith Efforts must be documented on Exhibit 15-H. The following types of actions and documentation are necessary to evidence such efforts:

i. Identifying efforts made to reasonably structure the contract scope of work for purposes of subcontracting with UDBEs. Include documentation showing the portion of the scopes of work UDBEs will be solicited to bid/propose and the associated dollar value of each item. Proposer should also identify the scope of work that the Proposer intends to perform with its own workforce.

ii. Timely place advertisement(s) in one general circulation, one trade association publication and at least one disadvantaged/minority and women business focus medias. The advertisements must include, at a minimum, identification of specific subcontracting opportunities being solicited, project name, location, UDBE goal, including identifying the Authority as Owner, Proposer’s contact person including name, address, phone, fax, bid/proposal solicitation due date, and statement that Proposer intends to conduct itself in good faith with UDBE firms for participation on the project. Advertisements should appear at least 15 calendar days prior to bid submittal due date to considered timely.

iii. Provision of extending written notices to UDBEs to solicit interest in all of the identified subcontracting areas toward promoting participation. There should be a sufficient number of written invitations to UDBE firms for each subcontracting area identified.

Notices should be issued at least 15 calendar days prior to submittal due date to allow sufficient time for the UDBEs to responds to the solicitation.

Subsequent efforts to follow-up on initial solicitations to UDBEs, including contract requirements, plans and specifications timely provided to UDBEs for purposes of soliciting their bids. Documentation should include:

a. Names, addresses and telephone numbers of UDBEs contacted by each subcontracting area identified/solicited;

b. Description of information timely provided to interested UDBEs about the contract requirements, plans and specifications to assist UDBEs in responding to the solicitation; and the dates and manner in which these documents were made available;

c. Statement of justification re: unsuccessful solicitation of UDBEs; and

d. Negotiating in good faith with interested UDBEs, to facilitate UDBE participation. Utilization of a sound basis of selection and/or rejection of UDBEs bids.

iv. A Proposer using good business judgment must consider a number of factors in negotiating with subcontractors, including UDBE subcontractors, and must take a firm’s price and capabilities, as well as, the contract goal into consideration. The fact that there may be some additional costs involved in using UDBEs is not, in itself, sufficient reason for a Proposer’s failure to meet established contract UDBE goal. Also, the ability or desire of the prime contractor to perform the work of a contract with its own organization does not relieve the Proposer of the responsibility to make good faith efforts toward meeting the objectives of UDBE goal. Evidence of a willingness to modify planned prime contractor scope or subcontract packaging to facilitate UDBE participation will demonstrate serious effort.

v. Barring lack of qualifications to perform work, only significant price differences (the relevant Federal regulations reference 10% or more as significant) between the selected firm and rejected UDBE firms’ proposed costs would be considered as valid cause for rejecting bids. Additionally, union vs. non-union employee status is not a legitimate cause for the rejection or non-solicitation of bids in the Proposer’s efforts to meet the project goal.

vi. Documentation of such negotiation includes the names, addresses, and telephone numbers of all subcontractors (UDBEs and non UDBEs) that submitted a bid, including copies of all bids received for each portion of work solicited; and stated reasons for Proposer’s choice of the selected and/or rejected subcontractor bid. Include in the negotiation document the reasons why additional agreements could not be reached with a UDBE to perform the work.

vii. In determining whether a Proposer has made Good Faith Efforts, the Authority will take into account, the performance of other Proposers in meeting the established contract-specific UDBE goal requirements. The individual Proposer’s effort/commitment in meeting the established contract UDBE goal will be evaluated against the average UDBE participation commitments by the three (3) low responsive Proposers. If there are fewer than three (3) responsive Proposers, the average of two (2) Proposers’ goal commitments will be considered.

viii. Provide offer of assistance to interested UDBEs in obtaining bonding, lines of credit, and/or insurance required by the Contractor. A description of assistance extended and made available by Proposer to interested UDBEs in obtaining bonding, lines of credit and/or insurance. At minimum, Proposer must provide evidence of the availability of assistance by providing copies of subcontracting advertisements and UDBE solicitation letters.

ix. Utilization of outreach services available within the UDBE/DBE community, including contractor groups, local, state and federal DBE offices and other organizations that provide assistance in the recruitment and placement of UDBE/DBEs. Notices to community outreach services should be issued at least 15 calendar days prior to submittal due date. Copies of letters, faxes, telephone logs, etc., used to contact organizations, which include the names of organizations/groups, dates, names of contacts, and telephone numbers; and copies of correspondence received from these entities acknowledging contact. The Proposer must document outreach to a minimum of five (5) organizations/groups.

x. Only those efforts made prior to bid/proposal submittal due date will be considered in evaluating Good Faith Efforts. Failure to submit the required Good Faith Effort documentation within four (4) working days after bid submittal will be grounds for finding the bid non-responsive.

ATTACHMENT C-1

UDBE/DBE SOLICITATION INSTRUCTIONS

UDBE/DBE SOLICITATION INSTRUCTIONS

FOR

DOT-ASSISTED CONSULTANT CONTRACTS

The AUTHORITY, as a recipient of federal financial assistance, is required to implement a Disadvantaged Business Program in accordance with federal regulation 49 CFR Part 26 issued by the U.S. Department of Transportation (DOT).

The Authority has established a goal for the participation by UDBEs of 3.2% of the total contract value. If the awarded firm has a total UDBE commitment (15 G-1) in excess of the UDBE goal, the firm will be held to the higher commitment amount.

Only UDBEs who meet the definition contained within these provisions and who have been certified at the time of bid opening may be credited toward the goal.
If the UDBE goal is not met, the firm must demonstrate that adequate good faith efforts were made to meet the goal.
Specific instructions and copies of required forms are included in Attachment B-1.

1. DEFINITIONS

a. 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).

b. The Term “Underutilized Disadvantaged Business Enterprise or UDBE. DBE classes have been determined in the 2007 Caltrans Disparity Study to have a statistically significant disparity in their utilization in previously awarded transportation contracts. UDBE’s include: African Americans, Native Americans, Asian-Pacific Americans and Women.

c. The term “Agreement” also means “Contract”.

d. Agency also means the local entity entering into this contract with the Consultant.

e. The term “Small Business” or “SB” is as defined in 49 CFR 26.65.

2. AUTHORITY AND RESPONSIBILITY

a. DBE’s 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 Part 26, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”). The Contractor should ensure that DBE’s 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 DBE’s.

3. SUBMISSION OF UDBE AND DBE INFORMATION

If there is a UDBE goal on this contract, the Proposer, in order to be considered responsible and responsive, 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 firms certified through the CUCP will be counted towards the contract goal; however, all DBE participation shall be collected and reported.

A “Local Agency Bidder DBE Information (Consultant Contracts)” (Exhibit 10-O1) form shall be included with the Contract. The purpose of this form is to collect data required under 49 CFR Part 26. For contracts with UDBE goals, this form collects DBE participation by DBE’s owned by Hispanic American and Subcontinent Asian American 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 DBE’s, including UDBE’s. Even if no DBE participation will be reported, the successful Proposer must execute and return this form.

4. UDBE PARTICIPATION GENERAL INFORMATION

It is the Proposer’s responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the Authority’s DBE program developed pursuant to the regulations. Particular attention is directed to the following:

a. A UDBE 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 UDBE may participate as a prime contractor, subcontractor, joint venture partner, as a vendor of material or supplies, or as a trucking company.

c. A UDBE Proposer not bidding as a joint venture with a non-DBE, will be required to document one or a combination of the following;

i. The Proposer is a UDBE and will meet the goal by performing with its own forces.

ii. The Proposer will meet the goal through work performed by UDBE subcontractors, suppliers or trucking companies.

iii. The Proposer, prior to bidding, made adequate good faith efforts to meet the goal.

d. A UDBE 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 UDBE must perform a commercially useful function pursuant to 49 CFR 26.55, that is, a UDBE 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.

f. The Proposer shall list only one subcontractor for each portion of work as defined in their bid and all UDBE subcontractors should be listed in the bid list of subcontractors.

g. A prime contractor who is a certified UDBE is eligible to claim all of the work in the agreement toward the UDBE participation except that portion of the work to be performed by non-DBE subcontractors.

h. In order to identify certified DBEs, you must only use the California Unified Certification Program Database (CUCP).
Certifications from other agencies or organizations will not be accepted.

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. Proposers 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 website at:

http://www.dot.ca.gov/hq/bep/find_certified.htm

.

i. Click on the link in the left menu titled
Disadvantaged Business Enterprise

ii. Click on
Search for a DBE Firm
link

iii. Click on
Access to the DBE Query Form
located on the first line in the center of the page

iv. Searches can be performed by one or more criteria

v. Follow instructions on the screen

c. How to obtain a List of Certified DBEs without Internet Access:

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 DBE’s may be ordered at:

California Department of Transportation
Publication Distribution Unit
1900 Royal Oaks Drive
Sacramento, CA 95815-3800

Telephone No. 916-263-0865

Please make checks payable to:  Caltrans.

d. A copy of the directory of certified DBE firms can be downloaded at:

http://caltrans-opac.ca.gov/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 UDBE manufacturer, 100 percent of the cost of the materials or supplies count towards the goal. A UDBE manufacturer is a firm that operates, or maintains a factory, or establishment that produces on the premises that 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 UDBE regular dealer, count 60 percent of the cost of the materials or supplies. A UDBE 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 specification and required under the Agreement are bought, kept in stock, and regularly sold or leased to the public in the usual course of doing business. To be a UDBE 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 UDBE 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 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 UDBE, 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 required or fees or transportation charges for the delivery of materials or supplies on the job 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 UDBE 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 UDBE must itself own and operate at least one fully licensed, insured, and operational truck used on the agreement.

c. The UDBE 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 UDBE may lease trucks from another UDBE firm including an owner-operator who is certified as a UDBE. A UDBE who leases trucks from another UDBE receives credit for the total value of the transportation services the lessee UDBE provides on the agreement.

e. The UDBE may lease trucks from another UDBE firm including an owner-operator. A UDBE 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 UDBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by the UDBE.

f. For the purposes of this section, a lease must indicate that the UDBE 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 UDBE, as long as the lease gives the UDBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the UDBE.

INSTRUCTIONS-EXHIBIT 12-G BIDDER’S LIST OF SUBCONTRACTORS

(DBE AND NON-DBE) PART I AND PART II