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HomeMy WebLinkAbout25A - REGIONAL TRANSPORATION CENTER MASTER PLAN REQUEST FOR ~ ~ ;a~ ~ COUNCIL ACTION ' :a.:,. CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MARCH 15, 2010 II TITLE APPROVED CONSULTANT SELECTION SANTA ? As Recommended ANA REGIONAL TRANSPORTATION ? As Amended ? Ordinance on 15i Reading CENTER MASTER PLAN (PROJECT ? Ordinance on 2"d Reading 10-6729) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO / 'i 7 FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute an agreement with IBI Group in an amount not to exceed $1,400,000 to prepare the Santa Ana Regional Transportation Center Master Plan, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION In spring 2009, the Orange County Transportation Authority (OCTA) issued a call for projects under the Renewed Measure M Metrolink Gateways (Project T) program. The City of Santa Ana submitted applications and received a total of $3 million for two regionally significant transit improvement projects -the Santa Ana Regional Transportation Center (SARTC) Master Plan and the Santa Ana Boulevard Grade Separation. The funding will be split evenly between the two projects. The SARTC Master Plan is one of the key components of the Santa Ana-Garden Grove Transit Vision. It will serve as the blueprint for addressing transportation provider and passenger needs at SARTC for the next 30 years and beyond, including the integration of the Santa Ana-Garden Grove fixed guideway system. The goals for the SARTC Master Plan are to: • Provide a transportation facility where people can easily transfer between services • Design a transportation facility that integrates well with the surrounding community • Create an attractive, sustainable transportation facility with low maintenance costs • Efficiently provide parking and support facilities for each service offered at SARTC 25A 1 SARTC Master Plan March 15, 2010 Page 2 of 3 • Evaluate and integrate transit supporting commercial, retail and/or residential uses as feasible • Ensure that passenger safety and security are adequately addressed • Support and encourage pedestrian and bicycle access I' On December 21, 2009, the City sent Requests for Proposals (RFPs) to eleven firms. Two proposals were received and reviewed by an evaluation committee that consisted of OCTA's Go Local fixed guideway project manager, the Deputy City Manager for Development Services, City Engineer, and Planning Manager. On February 9, 2010, the Consultant Selection Committee interviewed both consultant teams and scored them based on their proven experience leading the design of multi-modal transportation hubs, capability of the lead team, project leader, project team, project understanding and approach, and oral interview. The consultant team led by IBI Group scored significantly higher than the other team. The team scores are shown below: Firm Score IBI Group 95.75% MVE International, Inc. 67.50% The reasons for IBI Group receiving such a high score are many. First and most significantly, the IBI Group has direct experience on point with the scope of this project; several of the multi-modal transportation centers designed by the firm have actually been built. Among them is the Salt Lake City Intermodal Hub, which encompasses Amtrak, Greyhound Bus, and Utah Transit Authority city bus, TRAX, and commuter rail services in a 35,000 square foot Leadership in Energy and Environmental Design (LEED) certified facility. The Salt Lake City Intermodal Hub has many characteristics in common with SARTC. Another notable example of IBI Group's experience relative to developing master plans for facilities like SARTC is the Waterloo Station Area Plan in Ontario, Canada. This master plan focused on adaptive re-use of the Waterloo transit plaza to create an attractive destination supported by a quality retail environment, quality urban landscape, and economic revitalization area. Beyond the intermodal hub itself, the Waterloo Station Area Plan encourages mixed use and pedestrian friendly neighborhoods centered around Waterloo, and shapes future transit hubs in the region of Waterloo. 25A-2 Santa Ana Go Local Step 2 March 15, 2010 Page 3 of 3 In addition to its tremendous transit and transit-oriented development experience, the IBI Group team demonstrated an excellent understanding of the SARTC Master Plan scope of work, provided a thorough work approach, put forward an excellent project manager, and verified that it had ample, positive experience with OCTA and the Federal Transit Administration, both of whom are important partners for the SARTC Master Plan. It should also be noted that IBI Group is a full-service international engineering and architectural firm with local offices in Irvine. They have a myriad of in-house resources to pull from, if needed. Based on the Evaluation Committee's scoring and IBI Group's superior performance and related experience of their lead team, key personnel and project team, staff recommends that Council award an agreement with the IBI Group team to prepare the SARTC Master Plan. The contract is for an amount not to exceed $1,400,000. Following approval, staff anticipates that IBI Group will be given a Notice to Proceed for preparation of the SARTC Master Plan in March 2010. The work is projected to take approximately 12 months to complete. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The City has received a grant from OCTA that will pay the full cost of the study. Funds are available in the Select Street Construction fund (accounting unit 05917660-66220, project no. 10- 6729). APPROVED AS TO FUNDS AND ACCOUNTS: ~ Rau Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency Exhibit 1: Agreement 25A-3 ill i 2 5A-4 AGREEMENT FOR PROVISION OF PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into this 15t" day of March, 2010 by and between IBI GROUP, a California corporation (hereinafter "Consultant"), and the City of Santa ~ Ana, a charter city and municipal corporation organized and existing under the Constitution and ~ laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of multimodal transportation planning to develop a master plan for addressing transportation provider and passenger needs at the Santa Ana Regional Transportation Center. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. The project will be funded in part through funds administered by the Federal Transit Administration and the Orange County Transportation Authority. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES a. Scope of Work. Consultant shall provide project management, planning, analysis of existing and envisioned facilities and constraints, preliminary designs, environmental assessment, cost estimates and funding sources identification, in developing a phased Master Plan for the Santa Ana Regional Transportation Center (SARTC).Said services shallinclude environmental evaluation; space needs study; on-site and off-site parking requirements; station area study for different transit modes; study of the maintenance facility requirements for a fixed guideway system; circulation study for buses and vehicles; in addition to studies relating to integration of land use and transportation, pedestrian access and circulation, Fly away destination and ZIP car rental facility, as set forth in City's Request For Proposal dated December 21, 2009, attached hereto as Exhibit A and incorporated by reference, and Consultant's Proposal dated January 25, 2010, attached hereto as Exhibit A-land incorporated by reference. 1 25A-5 b. Time for Performance. Consultant shall perform and complete all services as may be requested pursuant to the Scope of Work in a timely and expeditious manner. Consultant shall perform such services in accordance with the schedules which Consultant and City may mutually agree as to any particular deliverable, study, job or analysis. In the event that Consultant determines that a proposed schedule for work as requested by the City is not possible or achievable, Consultant shall immediately notify the City's Representative, in writing and seek modifications. No extension of time shall be accepted unless it is evidenced in a writing executed by each Party's Representative. i c. Consultant shall not commence services until it receives a written Notice to Proceed (NTP) executed by the Executive Director of Public Works. Said NTP is contingent on 1) City's receipt of Federal Transit Authority's (FTA) approval of the Project and appropriation of FTA funds for completion of the SARTC Master Plan, or 2) allocation of alternative funds by the Orange County Transportation Agency. 2. REPRESENTATIVES a. For purposes of implementing this Agreement, the representative of City shall be the Executive Director of the Public Works Agency, or his designated representative, and the representative of the Consultant shall be David Chow, Director or his designated representative. Except as may be otherwise stated herein, such representatives shall have the authority to act on behalf of their respective parties in carrying out the terms of this Agreement. b. Consultant shall assign the appropriate key personnel to perform the services required by this Agreement, as set forth in the RFP and Consultant's Proposal. Consultant shall maintain the Project Manager identified in its Proposal, and approved by the City. 3. OWNERSHIP OF REPORTS AND DOCUMENTS A. The originals of all letters, documents, reports and other products and data produced under this Agreement shall be delivered to, and become the property of City. Copies may be made for Consultant's records but shall not be furnished to others without written authorization from City. Such deliverables shall be deemed works made for hire and all rights in copyright therein shall be retained by City. B. All ideas, memoranda, specifications, plans, manufacturing, procedures, drawings, descriptions, and all other written information submitted to Consultant in connection with the performance of this Agreement shall not, without prior written approval of City, be used for any purposes other than the performance under this Agreement, nor be disclosed to an entity not connected with the performance of the project. Consultant shall comply with City's policies re ardin such material. g g C. No copies, sketches, computer graphics or graphs, including graphic artwork, are to be released by Consultant to any other person or agency except after prior written approval by City, except as necessary for the performance of services under this Agreement. All press releases, including graphic display information to be published in newspapers, magazines, etc., are to be handled onl b Cit unless otherwise a reed to b Consultant and Cit . Y Y Y g Y Y 2 25A-6 4. FINISHED AND PRELIMINARY DATA All of Consultant's finished technical data, including but not limited to illustrations, photographs, tapes, software, software design documents, including without limitation source code, binary code, all media, technical documentation and user documentation, photoprints and other graphic information required to be furnished under this Agreement, shall be City's property upon payment and shall be furnished with unlimited rights and, as such, shall be free from proprietary restriction except as elsewhere authorized in this Agreement. Consultant further agrees that it shall have no interest or claim to such finished, City-owned, technical data; furthermore, said data is subject to the provisions of the Freedom of Information Act, 5 USC 552. 5. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Consultant's Fee Schedule, attached hereto as Exhibit B. The total sum to be expended under this Agreement shall not exceed One Million, Four Hundred Thousand Dollars ($1,400,000.00) during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. The invoice shall include a detailed breakdown of the services, the tasks, the hours, and hourly rates. It should be noted that no more than 90 percent of the total payment amount will be made prior to the final completion and approval of all work and delivery of final deliverables. 6. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2011, unless terminated earlier in accordance with Section 15, below. 7. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create anemployer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 3 25A-7 8. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 combined single limit. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, and $2,000,000 in the aggregate. 4 25A-8 (i) The following requirements apply to the insurance to be provided by Consultant pursuant to this section: Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. £ If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 9. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liabilityfor personal injury, damages, just compensation, restitution, judicial or equitable relief caused by the negligent acts,omissionsor willful misconduct of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf, arising out of the performance of this Agreement, except to the extent caused by the sole negligence, active negligence or intentional misconduct of the City or any other indemnified party.. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 5 25A-9 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 facsimile 714- 647-6956 With courtesy copies to: Executive Director of the Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-36) P.O. Box 1988 Santa Ana, California 92702 facsimile 714- 647-5635 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. BOX 1988 Santa Ana, California 92702 facsimile 714- 647-6515 To Consultant: IBI Group Mr. David Chow 18401 Von Karman Avenue, Suite 110 Irvine, California 92612 facsimile 949-833-5511 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to 6 25A-10 have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION a. This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: (i). As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. (ii). Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. b. City may terminate this Agreement for Consultant's default if a federal or state proceeding for the relief of debtors is undertaken by or against Consultant, or if Consultant makes an assignment for the benefit of creditors, or if Consultant breaches any term(s) or 7 25A-11 violates any provision(s) of this Agreement and does not cure such breach or violation within ten (10) calendar days after written notice thereof by City. Consultant shall be liable for any and all ~ reasonable costs incurred by City as a result of such default, including but not limited to reprocurement costs of the same or similar services defaulted by Consultant under this Agreement except that, Consultant shall not be liable for any costs exceeding the amount of total ' compensation payable under this Agreement to Consultant by the City, as identified in Exhibit B. 16. AUDIT AND INSPECTION OF RECORDS Consultant shall provide City, the Orange County Transportation Authority, the U. S. III Department of Transportation (DOT), the Comptroller General of the United States or other agents of the City, such access to Consultant's accounting books, records, payroll documents and facilities of the Consultant which are directly pertinent to this Agreement for the purposes of examining, auditing and inspecting all accounting books, records, work data, documents and activities related hereto. Consultant shall maintain such books, records, data and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during Consultant's performance hereunder and for a period of four (4) years from the date of final payment by City. Consultant shall permit any of the foregoing parties to reproduce documents by any means whatsoever or to copy excerpts and transcriptions as reasonably necessary. 17. FORCE MAJEURE Either party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by an unforeseeable cause beyond its control, including but not limited to: any incidence of fire, flood; acts of God; commandeering of material, products, plants or facilities by the federal, state or local government; national fuel shortage; or a material act or omission by the other party; when satisfactory evidence of such cause is presented to the other party, and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the party not performing. 18. INCORPORATION OF FTA TERMS All contractual provisions required by Department of Transportation (DOT), whether or not expressly set forth in this Agreement, as set forth in Federal Transit Administration (FTA) Circular 4220.1 F, as amended or promulgated from time to time during the term of this Agreement, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. Consultant shall not perform any act, fail to perform any act, or refuse to comply with any requests, which would cause City to be in violation of the FTA terms and conditions. 19. NO OBLIGATION BY THE FEDERAL GOVERNMENT City and Consultant acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of this Agreement, absent the express written consent by the Federal Government, the Federal Government is not a party to this 8 25A-12 Agreement and shall not be subject to any obligations or liabilities to the City, Consultant, or any other party (whether or not a party to this Agreement) pertaining to any matter resulting from this Agreement. Consultant agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 20. PROGRAM FRAUD /FALSE OR FRAUDULENT STATEMENTS a. Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et sec .and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Accordingly, by signing this Agreement, Consultant certifies the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to this Agreement or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, 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 the penalties of the Program Fraud Civil Remedies Act of 1986 on Consultant to the extent the Federal Government deems appropriate. b. Consultant 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 a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307 et seq., the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307, et seq. on the Consultant, to the extent the Federal Government deems appropriate. c. Consultant agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 21. SUSPENSION AND DEBARMENT This Agreement is a covered transaction for purposes of 49 CFR Part 29. As such, Consultant is required to verify that neither the Consultant nor its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. Consultant is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting this Agreement, Consultant certifies as follows: The certification in this clause is a material representation of fact relied upon by the City of Santa Ana. If it is later determined that Consultant knowingly rendered an 9 25A-13 erroneous certification, in addition to remedies available to the City of Santa Ana, the Federal Government may pursue available remedies, including but not limited to suspension andlor debarment. Consultant agrees to comply with the requirements of 49 ii CFR 29, Subpart C during the term of this Agreement. Consultant further agrees to include a provision requiring such compliance in its lower tier covered transactions. 22. DISADVATAGED BUSINESS ENTERPRISES a. This Agreement is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The DBE goal for this project is 1.67%. The Underutilized Disadvantaged Business Enterprise (UDBE) goal for this project is 2.22% b. Consultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Consultant shall carry out 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 a material breach of this Agreement, which may result in the termination of this contract or such other remedy as City deems appropriate. Each subcontract the Consultant enters with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). 23. LOBBYING Consultant shall submit to the City a Certification Regarding Lobbying, in accordance with 49 CFR PART 20, in the form attached hereto as Exhibit C, attached hereto and incorporated by this reference. 24. CIVIL RIGHTS ASSURANCE During the performance of this Agreement, Consultant, for itself, its assignees and successors in interest agree as follows: A. Compliance with Regulations: Consultant shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they maybe amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Agreement. B. Nondiscrimination: Consultant, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers a program set forth in Appendix B of the Regulations. C. Solicitations for Subcontracts, Including Procurement of Materials and 10 25A-14 Equipment: In all solicitations either by competitive bidding or negotiation made by Consultant for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by Consultant of Consultant's obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. D. Information and Reports: Consultant shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of Consultant is in the exclusive possession of another who fails or refuses to furnish this information Consultant shall so certify to the City as appropriate, and shall set forth what efforts it has made to obtain the information. E. Sanctions for Noncompliance: In the event of Consultant's noncompliance with nondiscrimination provisions of this Agreement, the City shall impose Agreement sanctions as it may determine to be appropriate, including, but not limited to: 1. Withholding of payments to Consultant under the Agreement until Consultant complies; and/or 2. Cancellation, termination, or suspension of the Agreement, in whole or in part. F. Incorporation of Provisions: Consultant shall include the provisions of paragraphs (A) through (F) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Consultant shall take such action with respect to any subcontract or procurement as the City may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event Consultant becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Consultant may request the City to enter into such litigation to protect the interests of the City, and, in addition, Consultant may request the United States to enter into such litigation to protect the interests of the United States. 25. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 26. JURISDICTION -VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the 11 25A-15 validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 27. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 28. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 12 25A-16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Laura Sheedy Assistant City Attorney IBI GROUP RECOMMENDED FOR APPROVAL: RAUL GODINEZ DAVID CHOW, P.E., AICP Executive Director Director Public Works Agency Tax ID# 13 25A-17 25A-18