HomeMy WebLinkAbout25F - AGMT - STREETCAR CONSTRUCTIONREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
APRIL 4, 2017
TITLE:
COOPERATIVE AGREEMENT WITH THE
ORANGE COUNTY TRANSPORTATION
AUTHORITY FOR THE CONSTRUCTION OF
THE OC STREETCAR PROJECT
(PROJECT 17 -6766)
(NON - GENERAL FUND)
{STRATEGIC PLAN NOS. 3, 2 , 46; 6, 1G}
CtTYMANAGER
o �.
CLERK OF COUNCIL USE ONLY:
❑
As Recommended
❑
As Amended
❑
Ordinance on 1" Reading
❑
Ordinance on 2 "a Reading
❑
Implementing Resolution
❑
Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute a cooperative agreement with
the Orange County Transportation Authority, whereby the City will be reimbursed up to
$1,500,000 for staff labor to provide construction inspection and support for the OC Streetcar
Project, for the term beginning with construction until one year past the beginning of revenue
service, subject to nonsubstantive changes approved by the City Manager and City Attorney.
DISCUSSION
On July 7, 2015, a Memorandum of Understanding (MOU) was approved by City Council with the
Orange County Transportation Authority (OCTA) for implementation of the OC Streetcar Project
(Project). The MOU outlines the general roles and responsibilities for the development,
implementation, operations, and maintenance phases of the Project between the City of Santa
Ana and OCTA. The MOU was subsequently approved by the OCTA Board of Directors on July
13, 2015.
On March 15, 2016, a Design Cooperative Agreement with OCTA was approved by City Council
for design of the OC Streetcar Project. On February 7, 2017, a Use of City Right of Way
Agreement was approved by City Council to allow the OC Streetcar to operate in Santa Ana's
public right of way.
Consistent with the MOU approved by Council, staff has been negotiating the specific terms and
conditions for the construction phase of the Project with OCTA. Consensus has been reached
with OCTA on the specific terms and conditions of the draft cooperative agreement. A summary
of the key provisions of the draft cooperative agreement is as follows:
25F -1
OC Streetcar Construction Cooperative Agreement
April 4, 2017
Page 2
• The term of the cooperative agreement is from the beginning of construction until one year
past the beginning of revenue service.
• OCTA shall lead the construction of the Project.
• The Project shall be constructed consistent with the plans and specifications developed
during the design phase.
• The cooperative agreement outlines key construction coordination activities, including:
• Project Management
• Schedule
• Reporting
• Records Management
• Construction Coordination
• Business Access
• Street Closures/Traffic Control
• Water Service Shutdowns
• Public Notification
• Construction Access
• Construction Inspection
• Project Submittals
• Construction Acceptance
• Permits
• Safety
• Testing and Startup
• Coordination with Other City
Projects
• Public Involvement
• The City will provide construction inspection support services and project submittal
reviews on City -owned facilities, such as sidewalks, roadways, and traffic signals, as well
as project coordination with OCTA staff.
• The City's participation ensures City inspection of City infrastructure, input on Project
elements through meetings and design reviews, and overall collaboration.
• Consistent with OCTA's practice on major capital projects, OCTA agrees to compensate
the City for its participation on the Project.
• A detailed work plan has been developed and serves as the budget estimate for City
support reimbursement.
• The cost of the City's participation in the Project will be covered as a Project cost following
federal guidelines.
• The amount is a maximum obligation; the specific amount reimbursed to the City will be
based upon the level of City participation.
• The City shall only use indirect cost recovery rates that are compliant with federal
regulations and approved by a cognizant agency that is able to audit overhead rates to
meet federal guidelines.
The City is required to submit monthly invoices to OCTA for review, which shall include
signed timesheets and a summary of work performed during the month.
• The City is responsible for all betterment costs requested by the City. A betterment is an
element added to the Project by the City that is not needed for the Project.
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OC Streetcar Construction Cooperative Agreement
April 4, 2017
Page 3
• Staff will return to the Council for approval of any additional required agreements with
OCTA, including an operations and maintenance agreement.
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet the following Strategic Plan Goals:
1. Goal #3 - Economic Development, Objective #2 (create new opportunities for business /job
growth and encourage private development through new General Plan and Zoning
Ordinance policies), Strategy C (support business development and job growth along transit
corridors through the completion of critical transit plans /projects including: The Fixed
Guideway Project, Santa Ana Regional Transportation Center Master Plan, Complete Streets
and General Plan Circulation Element update).
2. Goal #3 - Economic Development, Objective #4 (continue to pursue objectives that shape
downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment
destination), Strategy B (create a comprehensive program to manage parking that includes
innovative strategies to provide parking, create revenue and enhance accessibility in the
downtown).
3. Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a
Community Investment Plan for all City assets), Strategy G (develop and implement the
City's Capital Improvement Program in coordination with the Community Investment and
Deferred Maintenance Plans; e.g., transit vision, street car, fixed guideway project, SARTC
master plan, Bristol Street widening, neighborhood streets, traffic improvements, park
facilities, sport fields, soccer fields, senior centers, bike master plan, etc.).
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
Funds will be available in the FY 2017/18, FY 2018/19, and FY 2019/20 expenditure accounts
and reimbursed by OCTA as identified in the attached expenditure plan (Exhibit 2) and as
follows:
FISCAL YEAR
Account
AMOUNT
FY 2017/18
03217664
$ 400,000
FY 2018/19
03217664
$ 700,000
FY 2019/20
03217664
$ 400,000
TOTAL
$1,500,000
25F -3
OC Streetcar Construction Cooperative Agreement
April 4, 2017
Page 4
F ed Mousavipour
Executive Director
Public Works Agency
FM /EWG /JG
APPROVED AS TO FUNDS & ACCOUNTS:
`�nw��h ���1:�
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
Exhibits: 1. Construction Cooperative Agreement
2. Expenditure Plan
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COOPERATIVE AGREEMENT NO. C -6 -1516
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SANTA ANA
FOR
THE CONSTRUCTION PHASE
OF THE
OC STREETCAR PROJECT
THIS COOPERATIVE AGREEMENT ( "Agreement "), is effective this day of
, 2017, by and between the Orange County Transportation Authority, a public
entity of the State of California (herein referred to as "AUTHORITY ") and the City of Santa Ana, a
charter city and municipal corporation duly organized and existing under the laws of the State of
California (hereinafter referred to as "CITY "), each individually known as "Party" and collectively known
as the "Parties ".
RECITALS:
WHEREAS, the OC Streetcar Project ( "Project ") refers to the implementation of the OC
Streetcar as illustrated in Exhibit A and as specifically described in this Agreement; and
WHEREAS, the Santa Ana /Garden Grove Streetcar Locally Preferred Alternative was
identified by the CITY's City Council at its public meeting on August 5, 2014; and
WHEREAS, on August 11, 2014, the AUTHORITY's Board of Directors approved the
AUTHORITY to construct the Project and be the implementing agency on all remaining phases of the
OC Streetcar System, including operation and maintenance; and
WHEREAS, the CITY's City Council considered and certified the Revised Environmental
Assessment (REA) /Final Environmental Impact Report (EIR) at its public meeting on January 20,
2015; and
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 WHEREAS, the AUTHORITY and the CITY entered into a Memorandum of Understanding on
2 August 31, 2015 for this Project (MOU); and
3 WHEREAS, the AUTHORITY and the CITY entered into a Design Agreement on May 9, 2016
4 for the design phase of this Project; and
5 WHEREAS, the AUTHORITY and the CITY entered into the City Right of Way Agreement on
6 March 17, 2017 whereby CITY granted AUTHORITY the right to construct the OC Streetcar Project
7 and operate and maintain the OC Streetcar System within CITY Right of Way; and
8 WHEREAS, the AUTHORITY is a grantee of a Federal Transit Administration (FTA) grant and
9 in cooperation with the FTA and the CITY, is proposing to design, construct, operate and maintain the
10 OC Streetcar; and
11 WHEREAS, this Agreement defines the roles, responsibilities, commitments and obligations,
12 for the AUTHORITY and the CITY as they relate to the construction of the Project including financial
13 obligations; and
14 WHEREAS it is the intent of the AUTHORITY and the CITY that the CITY shall be acting at all
15 times in respect to the Project as a Vendor as that term is used for federal funding requirements
16 purposes; and
17 WHEREAS, the OC Streetcar Project becomes the "OC Streetcar System" upon the initiation
18 of revenue service; and
19 WHEREAS, the Parties intend to enter into an agreement, prior to Revenue Service, to
20 establish each Party's roles and responsibilities as they relate to the operations and maintenance of
21 the OC Streetcar System; and
22 WHEREAS, the award of the Project to a Construction Contractor is subject to receipt of
23 federal, state, and /or local funds adequate to carry out the provisions of the Project; and
24 WHEREAS, the AUTHORITY's Board of Directors authorized this Agreement on
25 March 27, 2017; and
26 /
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COOPERATIVE AGREEMENT NO. C -6 -1516
WHEREAS, the CITY's City Council approved this Agreement on
NOW, THEREFORE, it is mutually understood and agreed by the AUTHORITY and the CITY
as follows:
ARTICLE 1.
"Betterment" means any work or items that are requested by the CITY or a third party that go
beyond what is needed for the basic functioning of the Project. Betterments must i) not be prohibited
by a governing state or federal standard ii) not adversely impact the operation of the Project and iii)
not unreasonably delay or interfere with the Project schedule. Notwithstanding the foregoing, none of
the following shall be considered Betterments:
(a) A change in scope to which the Parties mutually agree, is necessary for the construction,
operation or maintenance of the Project;
(b) A requirement of applicable law;
(c) A requirement of applicable CITY standards, in effect at the execution of the Design
Agreement,;
(d) Any measures to mitigate environmental or other impacts of the Project arising from the
construction or operation or maintenance of the Project, including measures identified in
the Project's EIR or any required supplemental or addenda environmental report once
cleared.
"CEQK means California Environmental Quality Act.
"City Bike Lane Project" means the CITY's implementation of new bike lane facilities, including
design and construction, within CITY streets and within the construction limits of the Project. The Bike
Lane Project is not using Project funds.
"City Right of Way Agreement" means the agreement established between the Parties
establishing the AUTHORITY's right to use the CITY's right of way for the OC Streetcar.
"Construction Contractor" means the firms(s) procured by the AUTHORITY to construct the
Project or portions of the Project.
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 "Day" or "Days" means calendar days unless a different meaning clearly appears from the
2 context.
3 "Design Agreement" means Cooperative Agreement No. C -5 -3583 between AUTHORITY and
4 CITY for the design phase of the OC Streetcar Project, dated May 9, 2016, which sets forth the terms
5 and conditions to which the OC Streetcar Project will be designed.
6 "Design Consultant" means the firm(s) procured by the AUTHORITY to perform preliminary
7 and /or final design services to produce the Plans and Specifications.
8 "Effective Date" means the date this Agreement is executed by the Parties.
9 "FEIR" means the Revised Environmental Assessment (REA) /Final Environmental Impact
10 Report certified by the CITY's City Council on January 20, 2015.
11 "Mitigation Monitoring and Reporting Program" means the program for the implementation of,
12 the mitigation measures adopted for the Project in the Revised Environmental Assessment
13 (REA) /Final Environmental Impact Report (FEIR) approved by the CITY's City Council on January 20,
14 2015.
15 "OC Streetcar System" means the OC Streetcar passenger transportation system to be owned,
16 operated, and maintained by the AUTHORITY, including all tracks, stations, streetcar vehicles,
17 conduits, electrical lines, traction power poles, traction power substations, cross -span wires, streetcar
18 signal equipment, maintenance facilities and other functionally related and appurtenant equipment
19 and facilities.
20 "Operations and Maintenance Agreement" means the cooperative agreement between the
21 AUTHORITY and the CITY establishing the roles and responsibilities with respect to the operations
22 and maintenance of the OC Streetcar.
23 "PE ROW" means the property owned by the AUTHORITY intended to be used for the OC
24 Streetcar between Raitt Street and Harbor Boulevard.
25 /
26 /
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COOPERATIVE AGREEMENT NO. C -6 -1516
"Plans and Specifications" means the Project plans, specifications, and special provisions
prepared by the Design Consultant and /or the AUTHORITY providing the information necessary to
construct the Project.
" Proiect Submittals" means all drawings, product data, test data, specifications, design
submittals, schedules, cost estimates, erection drawings or similar documents which are produced by
or on behalf of the AUTHORITY during the construction of the Project, and which relate to the
requirements in the Plans and Specifications or otherwise affect the interests of the CITY under this
Agreement.
"Ready to Bid" is a design package level of completeness indicating the design is complete,
the CITY's comments have been addressed, all drawings and specifications have been affixed with a
seal as required, and the title sheet has been signed by both the AUTHORITY and the CITY.
"Revenue Service" means the streetcar is operational and providing service to the public as
intended.
"Site Plan Review" is the process by which the CITY reviews project development submittals
and identifies the requirements and conditions of approval for a development project.
"Work Plan" is the CITY's staffing budget for the responsibilities identified in this Agreement
and as provided for in Exhibit E.
ARTICLE 2. COMPLETE AGREEMENT
A. This Agreement (which includes the above Recitals and those attachments
incorporated herein by reference), the Design Agreement, City Right of Way Agreement Construction
Agreement, and Operations and Maintenance Agreement executed or intended to be executed by the
Parties that are incorporated herein by reference, constitute the entire terms and conditions for the
subject matter addressed in this Agreement between the AUTHORITY and the CITY. The invalidity
in whole or in part of any term or condition of this Agreement shall not affect the validity of other terms
or conditions of this Agreement. To the extent there is any conflict as between this Agreement and
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 other agreements entered into by the Parties that are referenced herein, this Agreement shall control
2 with respect to the subject matter covered herein.
3 B. The AUTHORITY's failure to insist on any instances of the CITY's performance of any
4 terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the
5 AUTHORITY's right to such performance or to future performance of such terms or conditions, and
6 the CITY's obligation in respect thereto shall continue in full force and effect. Changes to any portion
7 of this Agreement shall not be binding upon the AUTHORITY except when specifically confirmed in
8 writing by an authorized representative of the AUTHORITY by way of a written amendment to this
9 Agreement and issued in accordance with the provisions of this Agreement.
10 C. The CITY's failure to insist on any instances of the AUTHORITY's performance of any
11 terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the
12 CITY's right to such performance or to future performance of such terms or conditions, and the
13 AUTHORITY's obligation in respect thereto shall continue in full force and effect. Changes to any
14 portion of this Agreement shall not be binding upon the CITY except when specifically confirmed in
15 writing by an authorized representative of the CITY by way of a written amendment to this Agreement
16 and issued in accordance with the provisions of this Agreement.
17 ARTICLE 3. SCOPE OF AGREEMENT
18 This Agreement specifies the roles and responsibilities of the Parties as they pertain to the
19 construction phase of the Project and subjects addressed herein. Both the AUTHORITY and the CITY
20 shall cooperate and coordinate with the other in all activities covered by this Agreement and other
21 supplemental agreements that may be required to facilitate purposes thereof.
22 ARTICLE 4. RESPONSIBILITIES OF THE AUTHORITY
23 The AUTHORITY shall carry out the responsibilities for the Project assigned herein to the
24 AUTHORITY as such are further detailed in Exhibit B, entitled "Project Scope" and Exhibit C, entitled
25 "Financial Obligations ".
26 /
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 ARTICLE 5. RESPONSIBILITIES OF THE CITY
2 The CITY shall carry out the responsibilities for the Project assigned herein to the CITY as
3 such are further detailed in Exhibit B, entitled "Project Scope" and Exhibit C, entitled "Financial
4 Obligations'.
5 ARTICLE 6. DELEGATED AUTHORITY
6 The actions required to be taken by the CITY in the implementation of this Agreement are
7 delegated to its City Manager, or designee. The actions required to be taken by the AUTHORITY in
8 the implementation of this Agreement are delegated to the AUTHORITY's Chief Executive Officer or
9 designee.
10 ARTICLE 7. MAXIMUM OBLIGATION
11 Notwithstanding any provisions of this Agreement to the contrary, the AUTHORITY and the
12 CITY mutually agree that the AUTHORITY's maximum cumulative payment obligation under this
13 Agreement shall be One Million Five Hundred Thousand Dollars ($1,500,000), unless agreed to and
14 amended in writing by both Parties.
15 ARTICLE 8. AUDIT AND INSPECTION
16 The AUTHORITY and the CITY shall maintain a complete set of records in accordance with
17 generally accepted accounting principles for a period of time from when the record is first generated
18 until four (4) years after Project completion or until any on -going audit is completed. Upon reasonable
19 notice, the CITY shall permit the authorized representatives of the AUTHORITY to inspect and audit
20 all work, materials, payroll, books, accounts, and other data and records of the CITY. The
21 AUTHORITY may conduct an audit of such records at any time during the period in which the records
22 are required to be maintained. The AUTHORITY shall have the right to reproduce any such books,
23 records, and accounts. The above provision with respect to maintenance of records and audits shall
24 be included in all CITY contracted work which is paid for with Project funds.
25 /
26 /
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 ARTICLE 9. INDEMNIFICATION
2 A. To the fullest extent permitted by law, the CITY shall defend (at the CITY's sole cost
3 and expense with legal counsel reasonably acceptable to the AUTHORITY), indemnify, protect, and
4 hold harmless the AUTHORITY, its officers, directors, employees, and agents from and against any
5 and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards,
6 settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney
7 fees, including but not limited to claims arising from injuries to or death of persons (the CITY's
8 employees included), for damage to property, including property owned by the AUTHORITY, or from
9 any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent
10 acts, omissions or willful misconduct of the CITY, its officers, directors, employees or agents in
11 connection with or arising out of the performance of this Agreement.
12 B. To the fullest extent permitted by law, the AUTHORITY shall defend (at the
13 AUTHORITY's sole cost and expense with legal counsel reasonably acceptable to the CITY),
14 indemnify, protect, and hold harmless the CITY, its officers, directors, employees, and agents from
15 and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration
16 awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and
17 attorney fees, including but not limited to claims arising from injuries to or death of persons (the
18 AUTHORITY's employees included), for damage to property, including property owned by the CITY,
19 or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the
20 negligent acts, omissions or willful misconduct of the AUTHORITY, its officers, directors, employees
21 or agents in connection with or arising out of the performance of this Agreement.
22 C. The indemnification and defense obligations of this Agreement shall survive its
23 expiration or termination.
24 ARTICLE 10. INSURANCE
25 A. AUTHORITY shall require its Construction Contractor to maintain general liability and
26 automotive liability insurance coverages with minimum liability limits of no less than $2 Million per
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 occurrence, and $5 Million in aggregate throughout Project construction covering all Project work
2 performed under contract with the AUTHORITY. The Parties shall require all contractors retained to
3 construct or inspect any portion of the Project, exclusive of Construction Contractor's subcontractors,
4 to maintain general liability and automotive liability insurance coverages with minimum liability limits
5 of no less than $1 Million per occurrence, and $2 Million in aggregate throughout Project construction
6 unless otherwise agreed to by the Parties. The AUTHORITY shall require the Construction Contractor
7 to maintain contractor's pollution liability insurance (CPL) with a total liability of no less than $5 Million,
8 per occurrence and $10 Million in the aggregate. The CPL shall include coverage for cleanup costs,
9 third -party bodily injury and property damage resulting from pollution conditions caused by contracting
10 operations. The CPL shall also provide coverage for transportation and off -site disposal of materials,
11 if any. All contractors shall carry Workers' Compensation as required by law. Each insurer shall be
12 licensed to do business in California with an A.M. Best rating level of A -Class VII or better, unless
13 otherwise agreed to by the Parties.
14 B. All policies of insurance required herein, other than Workers' Compensation insurance,
15 shall name the CITY and AUTHORITY and their respective officers, agents and employees as
16 additional insureds. An endorsement to that effect or a copy of the policy adding such additional
17 insureds shall be required prior to the contractor commencing any Project construction. All such
18 policies shall waive any right of subrogation as against the additional insureds and shall provide that
19 no policy shall be suspended, cancelled or reduced except after a minimum of 15 days prior written
20 notice has been provided to CITY and AUTHORITY.
21 ARTICLE 11. ADDITIONAL PROVISIONS
22 A. Term of Agreement: This Agreement shall be in full force and effect from the Effective
23 Date until one year past the first day of Revenue Service, unless earlier terminated as provided herein.
24 The indemnification and defense obligations shall survive the termination of this Agreement.
25 B. Termination: In the event either Party materially defaults in the performance of their
26 obligations under this Agreement or breaches any of the provisions of this Agreement, the non -
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 defaulting Party shall have the option to terminate this Agreement upon thirty (30) days prior written
2 notice to the other Party. However, prior to any such termination, the non - defaulting Party shall have
3 provided the defaulting Party written notice of the alleged default or breach, specifying the nature of
4 the default and the cure. In the absence of a default that poses an immediate health and safety risk,
5 the notice shall provide at least fifteen (15) days to cure such default or if the default cannot be cured
6 in such time, a reasonable amount of time to cure the default, but in no event longer than forty -five
7 (45) days unless the Parties agree otherwise.
8 C. Termination for Convenience: This Agreement may not be terminated by either Party
9 except as specifically provided in this Agreement.
10 D. Termination for Lack of Funding: The AUTHORITY may, in its absolute discretion,
11 terminate this Agreement in the event sufficient funding is not available to construct the Project.
12 E. Compliance: The AUTHORITY and the CITY shall comply with all controlling federal,
13 state, and local laws, statues, ordinances and regulations of any governmental authority having
14 jurisdiction over the Project.
15 F. Legal Authority: The AUTHORITY and the CITY represent that the persons executing
16 this Agreement are authorized to execute this Agreement on behalf of their respective Parties and
17 that, by so executing this Agreement each Party shall be formally bound to the provisions of this
18 Agreement.
19 G. Severability: If any term, provision, covenant or condition of this Agreement is held to
20 be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the
21 remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or
22 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
23 H. Counterparts of Agreement: This Agreement may be executed and delivered in any
24 number of counterparts, each of which, when executed and delivered shall be deemed an original and
25 all of which together shall constitute the same agreement. Facsimile or emailed PDF documents with
26 signatures will be permitted.
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 I. Force Maieure: Either Party shall be excused from performing its obligations under this
2 Agreement due to any event beyond the control of the Party to the extent the event materially and
3 adversely affects a Party's ability to perform its obligations under this Agreement and could not have
4 been avoided by reasonable due diligence. Force Majeure events shall include, but not be limited to:
5 (1) discovery of any resources or a change in law which requires a state or federal approval that was
6 not previously required for the Project; (ii) regulatory and technical changes not previously required
7 for the Project; (iii) fire, flood, earthquake, or other natural disaster; (iv) strikes and labor disputes of
8 greater than 30 days; (v) delays caused by permitting agencies that exceed the reasonably anticipated
9 review times; (vi) failure of utilities to relocate in a reasonable time; and (vii) war, terrorist activities,
10 government sanctions, embargos, civil unrest, and material or labor shortages. A Party's performance
11 will only be excused for the length of the delay and any reasonable time thereafter that is necessary
12 to commence performance of a Party's obligations under this Agreement.
13 J. Assignment: Neither this Agreement, nor any of the Parties' rights, obligations, duties,
14 or authority hereunder may be assigned in whole or in part by either Party without the prior written
15 consent of the other Party. Any such attempt of assignment shall be deemed void and of no force and
16 effect. Consent to one assignment shall not be deemed consent to any subsequent assignment, nor
17 the waiver of any right to consent to such subsequent assignment. Notwithstanding the foregoing,
18 AUTHORITY may assign this Agreement to another public entity provided that it provides notice to
19 CITY at least six (6) months prior to the effective date of such assignment. The notice shall include
20 evidence that such public entity is authorized by law to construct and /or operate the Streetcar System
21 and has the financial capability, infrastructure and personnel to meet AUTHORITY's obligations under
22 this Agreement. CITY shall approve such assignment within 45 days of such notice from
23 AUTHORITY, unless CITY reasonably determines that the proposed assignee cannot meet the
24 obligations of this Agreement. AUTHORITY shall provide such additional information as is reasonably
25 required by CITY to make its determination.
26 /
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COOPERATIVE AGREEMENT NO. C -6 -1516
1 K. Governing Law and Venue: The laws of the State of California and applicable local
2 and federal laws, regulations and guidelines shall govern this Agreement.
3 L. Dispute Resolution: All disputes arising under this Agreement shall be resolved in
4 accordance with the dispute resolution process in this Article. The Parties shall diligently cooperate
5 with each other in an effort to resolve any dispute during the dispute resolution process. If a dispute
6 arises under this Agreement, either Party may file a written request with the other Party to invoke the
7 dispute resolution process. Upon receipt of such a request each Party shall designate a staff
8 representative, which representatives shall meet within 14 days of the date of the written request in
9 an effort to resolve the dispute. If the dispute has not been resolved within 14 days or any extension
10 thereof mutually agreed upon by the Parties, the dispute shall be referred to each Party's Executive
11 Director, who shall meet within 14 days of the referral in an effort to resolve the dispute. If the
12 Executive Directors are unable to resolve the dispute within 14 days or any extension thereof mutually
13 agreed upon by the Parties, then the dispute shall be referred to the AUTHORITY'S Chief Executive
14 Officer and the CITY's City Manager, who shall meet within 14 days of the referral in an effort to
15 resolve the dispute. If the dispute remains unresolved within such 14 days or any extension thereof
16 mutually agreed upon by the Parties, either Party may initiate litigation.
17 M. Litigation fees: Should litigation arise out of this Agreement for the performance
18 thereof, each Party shall be responsible for its own costs and expenses, including attorney's fees.
19 N. Notices: Any notices, requests, or demands made between the Parties pursuant to this
20 Agreement shall be in writing and delivered by certified mail. Phone and e -mail may be used for
21 convenience but are not considered as official notice. Notice information may be changed by either
22 Party at any time upon written notification being received by the other Party of the change in notice
23 information with the information provided below. Notices are to be directed as follows:
24 /
25 /
26 /
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COOPERATIVE AGREEMENT NO. C -6 -1516
To CITY:
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92701
To AUTHORITY:
Orange County Transportation Authority
550 South Main Street
P.O. Box 14184
Orange, CA 92863 -1584
ATTENTION:
ATTENTION:
Jason Gabriel
Robert Webb
Principal Civil Engineer
Senior Contract Administrator
Tel: (714) 647 -5664
Contracts Administration and Management
E -Mail: jgabriel @santa - ana.org
Tel: (714) 560 -5743
E -Mail: rwebb @octa.net
Cc:
Cc:
Fred Mousavipour
James G. Bell
Executive Director, Public Works Agency
Executive Director, Capital Programs
Tel: (714) 647 -5654
Tel: (714) 560 -5646
E -Mail: fmousavipour @santa- ana.org
E -Mail: JBeil @octa.net
Cc: City Attorney
O. Amendments: This Agreement may be modified or amended only by a written
document executed by both the AUTHORITY and the CITY. Such document shall expressly state
that it is intended by the Parties to amend specifically identified terms and conditions of this
Agreement.
P. Compliance with FTA Requirements: The CITY and AUTHORITY shall comply with all
Federal Transit Administration (FTA) requirements, including but not limited to, Circular C 5010 1D
and Circular 4220.1F as updated from time to time. The CITY shall include Exhibit D, entitled
"Required Federal Clauses' in any contract entered into with any third party related to this Project.
Page 13 of 15
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COOPERATIVE AGREEMENT NO. C -6 -1516
Q. Incorporation of Exhibits: This Agreement includes the exhibits listed below, all of
which are incorporated herein by this reference and made part hereof as though fully set forth.
EXHIBIT A— PROJECT MAP
EXHIBIT B — PROJECT SCOPE
EXHIBIT C— FINANCIAL OBLIGATIONS
EXHIBIT D — REQUIRED FEDERAL CLAUSES
EXHIBIT E — CITY SUPPORT WORK PLAN
CITY OF SANTA ANA
By:
Gerardo Mouet
Acting City Manager
APPROVED AS TO FORM:
ORANGE COUNTY TRANSPORTATION AUTHORITY
By:
Darrell Johnson
Chief Executive Officer
APPROVED AS TO FORM:
By: s A, _ By: _
onia Carvalho• -- ^ James M, Donich
City Attorney General Counsel
APPROVAL RECOMMENDED: APPROVAL RECOMMENDED:
By: By:
Fred Mousavipour James G. Bell
Executive Director, Public Works Agency Executive Director, Capital Programs
Dated :
ATTEST:
By:
Dated :
Maria D. Hulzar
Clerk of Council
11cammWe r1ca1\wordproc \agree \ag61516.docx
Dated :
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LIST OF EXHIBITS
Exhibit A — Project Map
Exhibit B — Project Scope
Exhibit C — Financial Obligations
Exhibit D — Required Federal Clauses
Exhibit E — City Support Work Plan
COOPERATIVE AGREEMENT NO. C -6 -1516
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
PROJECT SCOPE
1.0 DEFINITIONS
Capitalized terms used herein shall have the same meaning as set forth in Article 1 of this
Agreement.
2.0 STATEMENT OF MUTUAL SUPPORT
The CITY and the AUTHORITY hereby acknowledge their mutual support of the Project. Each
Party agrees to cooperate with the other Party in a manner consistent with the commitments made
and obligations assumed in this Agreement. Such cooperation and assistance shall include the
dedication and reallocation of personnel, as required and is reasonably feasible, to meet Project goals
including budget, schedule, and quality.
3.0 PROJECT MANAGEMENT
3.1 AUTHORITY MANAGEMENT
The AUTHORITY shall be responsible for project management. The AUTHORITY is
responsible for the overall Project and to ensure that all federal and State requirements are met.
The AUTHORITY shall identify a single point of contact (the AUTHORITY Project Manager)
for the Project. The AUTHORITY Project Manager will be empowered to make certain decisions on
behalf of the AUTHORITY and will manage the AUTHORITY's responsibilities as defined in this
Agreement. The AUTHORITY Project Manager or designee will provide the CITY clear and concise
direction in situations where conflicting information is received from different AUTHORITY
departments. All coordination with the AUTHORITY departments regarding the Project will be through
the AUTHORITY Project Manager or designee.
3.2 CITY MANAGEMENT
The CITY shall identify a CITY Representative for the Project as a single point of contact for
the Project. The CITY Representative will convey all direction provided by the CITY on behalf of the
CITY and will manage the CITY's responsibilities as defined in this Agreement. The CITY
Representative will provide the AUTHORITY with clear and concise direction in situations where
Exhibit B
Page 1
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
conflicting information is received from different CITY departments. All coordination with CITY
departments regarding the Project will be through the CITY Representative, or designee, unless
otherwise agreed upon by the CITY and the AUTHORITY. The CITY will make available a dedicated
inspector with the technical expertise necessary to quickly respond and address concerns related to
the day -to -day field construction oversight.
3.3 SCHEDULE
The CITY shall support the AUTHORITY in its efforts to meet Project milestones in order to
achieve timely implementation of the Project. The AUTHORITY agrees to provide weekly updates of
the two week look ahead schedule to accurately reflect upcoming construction activities. The CITY
also agrees to cooperate and assist the AUTHORITY to mitigate adverse schedule conditions that
jeopardize on -time Project completion.
3.4 REPORTING
The AUTHORITY will produce a monthly progress report providing an update on Project status,
budget, schedule and other information agreed upon by the Parties. The AUTHORITY shall provide
the CITY access to the monthly progress report electronically. The AUTHORITY agrees to provide
the CITY progress and status updates related to the Project in a timely manner.
The CITY and AUTHORITY shall have joint access to the document management software
used to track and monitor the Project.
3.5 RECORDS MANAGEMENT
The Parties shall maintain all Project records for a minimum of four (4) years or as required
meeting the intent of Article 8 of this Agreement unless required otherwise to meet federal regulations.
4.0 CONSTRUCTION
The AUTHORITY is responsible for the advertisement, award and administration of Project
construction and to carry out such efforts with AUTHORITY's staff, consultants and contractors all in
accordance with the Plans and Specifications. The Project shall be awarded to the lowest responsive,
Exhibit B
Page 2
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
responsible bidder in accordance with the AUTHORITY's Board of Director's approved procedures for
public works projects after a sealed bidding process.
4.1 CONSTRUCTION COORDINATION
The AUTHORITY is responsible for providing all direction to the Construction Contractor. Any
CITY direction related to AUTHORITY Project construction shall be directed through the
AUTHORITY's Project Manager or designee, who will coordinate with the Construction Contractor,
supplier, inspector, or designer.
The CITY shall approve all construction phasing affecting CITY Right of Way including
amendments to the Plans and Specifications.
4.2 BUSINESS ACCESS
The AUTHORITY shall coordinate with the CITY and shall reasonably minimize impacts to
vehicle and pedestrian access to affected businesses.
4.3 STREET CLOSURES & TRAFFIC CONTROL
The CITY recognizes that street closures are necessary for construction of the Project and will
be identified to the extent possible in the Plans and Specifications. Regardless, the AUTHORITY is
required to submit traffic control plans and possible street closures for CITY approval in advance to
all street closures related to the Project. The AUTHORITY shall submit all requests for street closures,
regardless of duration, a minimum of 30 days prior to the date of the proposed closure and the CITY
shall approve, approve with conditions, or not approve such street closures within twenty -one (21)
days of such submittals. Once a closure has been approved, AUTHORITY shall notify the public
consistent with CITY traffic control requirements and Project Specifications.
The AUTHORITY will be responsible for all traffic signing and striping modifications and
additions necessary to provide safe and efficient vehicular and pedestrian movements during the
Project. All temporary traffic control shall be in compliance with the Work Area Traffic Control
Handbook (latest edition) or the California Manual of Uniform Traffic Control Devices (latest edition)
as applicable.
Exhibit B
Page 3
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
The AUTHORITY shall require that the Construction Contractor keep the traffic signal system
in operations at all times during construction by providing temporary overhead wiring except for
switchover shutdowns as described in the specifications. Additionally, the AUTHORITY shall require
the Construction Contractor to comply with CITY approved working hours and shutdown periods. The
AUTHORITY and CITY will coordinate to ensure that the appropriate Traffic Engineering staff are in
attendance for all traffic related milestones.
4.4 WATER SERVICE SHUTDOWNS
All water service shutdowns shall be coordinated with the CITY Representative. CITY shall
provide a list of all affected customers. Affected customers shall be notified in writing by the
AUTHORITY at least two weeks in advance of all shutdowns and once more forty -eight (48) hours
prior to shutdown. Information shall include date, time and duration of shutdown. Turning the water
system mains on and off shall be performed by the CITY. Under no circumstances shall the
Construction Contractor operate valves, hydrants, and other appurtenant equipment on the existing
public water system.
4.5 PUBLIC NOTIFICATION
All public notifications will be coordinated with the CITY Representative. The AUTHORITY will
make all public notifications required in advance for CITY utility shutdowns, road closures, and other
activities related to the AUTHORITY's construction activities as required.
4.6 CONSTRUCTION ACCESS
The Plans and Specifications identify limits of construction, other than the CITY's right of way,
that will be required to construct the Project including property at the Civic Center parking lot, the
vacated section of 4th Street at Sasscer Park, and the Santa Ana Regional Transportation Center. The
City shall cooperate with the AUTHORITY to provide access to such CITY property consistent with
the requirements provided in the Plans and Specifications; provided that AUTHORITY's use thereof
shall not unreasonably interfere with the CITY's use for its purposes. In obtaining such access,
AUTHORITY shall be responsible for maintaining such CITY property in at least as good a condition
Exhibit B
Page 4
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
as was provided at the time of access and to repair any damages caused thereby. This access shall
be at no charge.
4.7 CONSTRUCTION INSPECTION
All CITY and AUTHORITY inspections shall ensure compliance with the Project Plans and
Specifications.
The AUTHORITY is responsible for the overall Project construction inspection. The CITY shall
perform inspections related to CITY facilities, including but not limited to pavement, striping, traffic
signals, water, sewer, storm drain, hardscape, street lighting, and landscaping. The CITY will
coordinate with the AUTHORITY on any deficiencies observed.
The CITY shall perform building inspections on the OC Streetcar Maintenance and Storage
Facility and traction power substation structures as required and consistent with the CITY's Planning
and Building department procedures. The CITY shall otherwise be permitted to conduct inspection of
any Project - related work by AUTHORITY requiring a CITY permit.
4.8 PROJECT SUBMITTALS
In advance of construction the AUTHORITY and the CITY shall develop a mutually agreed
upon submittal review process. The Parties agree to follow the process developed once the notice to
proceed for construction has been issued to the Construction Contractor. If the CITY believes a
submittal is materially incomplete and a complete response cannot be provided, written notice must
be provided to the AUTHORITY identifying what information is missing and what information is
necessary to complete a response.
4.8.1 Shop Drawings
Shop drawings will be submitted by the Construction Contractor to the AUTHORITY as
required in the Plans and Specifications. Shop drawings generally require review and an
acknowledgement of acceptance, rejection, or acceptance with modification. The AUTHORITY shall
route all shop drawings related to CITY facilities for CITY approval.
Exhibit B
Page 5
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
4.8.2 Requests for Information
Requests for Information (RFI) are submitted by the Construction Contractor requesting
information, clarification, or providing a recommendation for a design modification. The AUTHORITY
shall address in writing all RFIs to the extent possible. All RFIs related to CITY facilities shall be routed
to the CITY by the AUTHORITY for response approval.
4.8.3 Design Changes During Construction
Modifications to the Plans and Specifications shall be reviewed in the weekly construction
meeting and those modifications related to facilities within the CITY Right of Way shall be approved
by the CITY prior to issuance to the Construction Contractor.
4.9 CONSTRUCTION ACCEPTANCE
The AUTHORITY and the CITY shall jointly develop a procedure that allows the AUTHORITY
and the CITY to review the progress of the Project, develop lists of items requiring correction, and
otherwise determine that the Project is being completed in a satisfactory manner and consistent with
the Plans and Specifications.
The AUTHORITY shall provide the CITY with as -built drawings of CITY facilities in PDF format.
The AUTHORITY shall provide and maintain up -to -date as -built drawings as changes are
implemented and complete project as- builts within three (3) months afterthe start of Revenue Service.
4.10 PERMITS
The CITY shall issue a Project permit and any riders thereto for the construction of the Project
consistent with the Plans and Specifications. The CITY shall be responsible for reviewing and issuing
encroachment and other applicable permits to third party utilities for the construction of the Project.
The CITY shall issue permits within thirty (30) days contingent no corrections are needed. The
AUTHORITY agrees to comply with the requirements for permits issued by the CITY; provided such
requirements are typical for similarly situated persons or entities.
Exhibit B
Page 6
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
4.11 SAFETY
The AUTHORITY shall develop construction safety procedures for AUTHORITY and CITY
employees conducting inspection or oversight activities on the Project. The CITY agrees to adhere to
the construction safety procedures developed for the Project.
4.12 TESTING AND STARTUP
The AUTHORITY is responsible for the startup and testing of the constructed facilities.
AUTHORITY shall coordinate with the CITY with respect to traffic control, signal adjustments, and
other activities associated with activating the OC Streetcar System.
5.0 COORDINATION WITH CITY PROJECTS
5.1 CITY BIKE LANE PROJECT
The CITY intends to construct the City Bike Lane Project within the construction limits of the
Project during Project construction. The following provisions shall be followed:
A. The CITY shall utilize the Project horizontal and vertical control for the City Bike Lane Project.
B. The CITY shall utilize the Project track and roadway horizontal alignment in the design of the
City Bike Lane project;
C. The CITY shall provide the AUTHORITY with the City Bike Lane Project design plans at the
30 %, 60 %, 90 %, and 100% stage of development and provide the AUTHORITY with an
opportunity to review and provide comments. The CITY shall provide the AUTHORITY a three
(3) week advance notice prior to the release of each design review package. The total review
time shall be thirty (30) days for each formal review package submittal. The thirty (30) day
period begins when the AUTHORITY receives the submittals. The AUTHORITY shall provide
written comments on hard -copy prints, in PDF format, or tabular comments with clear reference
to where the comment applies in the review set. Comments must be clear, concise, and
legible. Prior to submission to the CITY, the AUTHORITY shall resolve conflicting comments;
D. The AUTHORITY shall reserve all comments to only those that may impact the Project or
Revenue Service. All comments provided by the AUTHORITY which the CITY does not
Exhibit B
Page 7
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
accept, shall be further discussed and resolved in accordance with this Agreement and if not
resolved in a timely manner shall be resolved using the Dispute Resolution process in Article
11 L of this Agreement; and
E. The construction phasing of the City Bike Lane Project shall be coordinated with the
construction of the Project hardscape elements such as curbs, trackway, platforms,
pavements, and ramps. Prior to initiating construction of the City Bike Lane Project, the CITY
shall coordinate with the AUTHORITY to ensure the timing of the City Bike Lane Project
construction will not negatively affect Project construction.
5.2 OTHER CITY PROJECTS
If the CITY implements any capital projects within the Project construction limits, notification
shall be sent to the AUTHORITY identifying the location of the project and timing of the
implementation. The CITY and AUTHORITY agree to coordinate construction activities recognizing,
the OC Streetcar Project cannot be negatively impacted by the initiation of an adjacent project.
The AUTHORITY will make its Construction Contractor aware of other CITY projects that may
impact or may have impacts on Project construction to the extent notified by the CITY of such
projects. The AUTHORITY shall provide in its contract with the Construction Contractor that to the
extent reasonably feasible the Construction Contractor will coordinate its activities with contractors
working on CITY projects and will not interfere with such work or cause damage thereto; provided that
such coordination and /or non - interference does not result in any change orders, delay Project
construction, or create safety concerns.
For any capital projects within the construction limits of the Project that commence after the
award of the Project, the CITY shall include language that requires its contractors to coordinate their
activities with the Project construction and to perform such work in a manner which does not interfere
with Project construction or cause any damage to such Project construction.
Exhibit B
Page 8
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT B
5.3 INFRASTRUCTURE IMPACTS
Within the construction limits of the Project, if the CITY damages AUTHORITY infrastructure
or the AUTHORITY damages CITY infrastructure, the Party causing the damage shall notify the other
Party in a timely manner, but in no event more than 24 hours after such Party becomes award of the
damage. The Party causing the damage shall take reasonable steps to mitigate the extent of the
damage. The Parties shall diligently cooperate with each other in an effort to determine the cost of
the damage, the steps required to repair the damage and the cost responsibility for such damage.
Disputes between the Parties arising out of such damage that are not timely resolved, shall be subject
to the dispute resolution process set forth in this Agreement. In the event the matter is submitted to
dispute resolution, either Party may, in its sole discretion, choose to repair damage to its own
infrastructure. If it is determined during the dispute resolution process that the other Party bears the
cost responsibility for the repairs, that Party shall pay all reasonable costs and expenses incurred in
making such repairs within 45 days of receipt of an invoice which reasonably specifies the repair work
performed and cost thereof.
6.0 PUBLIC INVOLVEMENT
The AUTHORITY shall lead Project public involvement. The AUTHORITY shall develop and
implement a public awareness campaign (PAC) in collaboration with and including input from the CITY
that includes business outreach to advise businesses, residents, elected officials, motorists, and
media of Project status. The AUTHORITY shall report on activities and collateral material
development during the Project. The AUTHORITY shall keep the CITY informed on PAC events,
notices, and Project updates.
Exhibit B
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT C
FINANCIAL OBLIGATIONS
1.0 DEFINITIONS
Capitalized terms used herein shall have the same meaning as set forth in Article 1 of this
Agreement.
2.0 PROJECT FUNDING
Except for Betterments, the AUTHORITY is responsible for securing and administering all
federal, state, and local funding for the Project and for all Project costs.
3.0 BETTERMENTS
3.1 BETTERMENT REQUESTS
Betterment requests submitted by the CITY to the AUTHORITY shall be established as
separate cooperative agreements or as amendments to existing cooperative agreements under the
framework established herein. CITY shall be responsible for the cost of all Betterments it submits.
The following steps for including a Betterment in the Project are:
1. The CITY shall submit to the AUTHORITY a Betterment request in writing. Each request
shall include a detailed scope of work including identification of work the CITY intends to
self - perform.
2. The AUTHORITY shall review the Betterment request and prepare and submit to the CITY
a proposal identifying scope clarifications, design costs, construction costs, and
administration /management costs.
3. The CITY shall review the AUTHORITY's Betterment proposal. If acceptable, the CITY
shall submit written authorization for the AUTHORITY to move forward. If further
negotiations are necessary before authorization is provided, the CITY and the AUTHORITY
shall negotiate and update the proposal to accurately reflect the negotiated terms and
conditions. The AUTHORITY reserves the right to decline Betterment requests that
materially impact the Project schedule.
Exhibit C
Page 1
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT C
4. All Betterment reimbursements by the CITY shall be lump sum and shall equal the agreed
upon budget amount. The AUTHORITY agrees to segregate the Betterment with respect
to accounting and cost reporting.
Design work done by the AUTHORITY's Design Consultant on a Betterment, and incorporated
into the Plans and Specifications, shall be constructed by the AUTHORITY's Construction Contractor,
as part of the Project construction effort.
3.2 BETTERMENT REIMBURSEMENT
The CITY's reimbursement of AUTHORITY costs associated with a Betterment shall be on a
lump sum basis. Each Betterment cooperative agreement shall identify the timing and methodology
for reimbursement.
4.0 CITY COSTS
4.1 CITY SUPPORT SCOPE
4.1.1 City Staff Support
CITY staff support is CITY staff time spent in direct support of the Project as identified in Exhibit
B and includes, but is not limited to, administering the CITY's support efforts, Project meetings,
construction package reviews related to Project Submittal review, construction oversight activities,
construction inspection activities related to water supply inspections, traffic control reviews, and public
outreach efforts. The City Representative is responsible for managing CITY staff support on the
Project and shall ensure time charged is reasonable and necessary to the Project. Support costs are
only for Project construction and shall be reimbursed only to the extent incurred after issuance by
AUTHORITY of the notice to proceed, including any form of limited notice to proceed, to the
Construction Contractor. The notice to proceed is written authorization for the Construction Contractor
to begin work. The AUTHORITY shall provide the CITY written notice that a notice to proceed has
been issued for construction and that CITY staff support charges shall discontinue under the Design
Agreement and proceed under this Agreement.
Exhibit C
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT C
4.1.2 City Consultant Services
Consultant services used by the CITY on behalf of the Project shall be coordinated with and
approved by the AUTHORITY. Existing contracts the CITY intends to use for Project support must be
submitted to AUTHORITY for review. AUTHORITY will review such contracts for compliance with
FTA requirements; to ensure there is not duplication of effort; to ensure they do not pose unsatisfactory
risks to Project schedule and /or budget; to ensure no existing conflicts of interests; and for eligibility
for reimbursement. The CITY agrees to follow the AUTHORITY's requirements for contract
modifications or task order language, if applicable, prior to advancing Project support work.
The CITY agrees to include information regarding conflict of interest with current AUTHORITY
contracts and future AUTHORITY procurements related to the Project in all CITY support
procurements.
4.2 CITY WORK PLAN BUDGET
4.2.1 City Staff Support
The CITY staff support budget has been developed by identifying positions, hours, and rates
in the categories shown in the City Support Work Plan ( "Work Plan ") in Exhibit E.
AUTHORITY will reimburse CITY for actual CITY staff support costs incurred in accordance
with the Work Plan budget. Actual costs include all eligible CITY direct and indirect costs that are
supported by documentation that meets federal requirements. The applied indirect cost recovery rate
applied to direct labor costs shall be established following federal regulations and be either the
deminimus rate or documented in a cost allocation plan approved by a federal agency or Caltrans.
The cost to develop a Cost Allocation Plan to determine an indirect cost recovery rate is not eligible
for reimbursement.
4.2.2 Periodic Cost Reviews
The AUTHORITY and the CITY agree to regularly monitor CITY costs expended in comparison
to the CITY support budget and the remaining effort anticipated. A formal review of funds expended
Exhibit C
Page 3
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT C
shall be conducted quarterly by the Parties. In the event the remaining level of effort required, as
agreed to by the Parties, exceeds the remaining budget, the Work Plan Budget shall be updated
through an amendment to this Agreement.
4.3 INVOICING PROCEDURES
Prior to invoicing, the CITY shall provide the AUTHORITY with an updated schedule of staff,
their anticipated role on the Project, their salary and benefit labor rates, and supporting payroll
documentation. This schedule will be used in the review of invoices. This schedule shall be updated
as necessary to reflect staff that will be listed in any invoice submitted to the AUTHORITY. Each
month, the CITY shall submit an invoice to the AUTHORITY for actual costs incurred the prior month.
Invoices shall be submitted within 30 days of the end of the monthly invoice period. Invoices shall be
submitted in duplicate to AUTHORITY's Accounts Payable office. The CITY may also submit invoices
electronically to the AUTHORITY's Accounts Payable Department at vendorinvoices @octa.net. The
AUTHORITY shall remit payment within thirty (30) days of the receipt and approval of each complete
invoice. Each invoice shall include the following information:
1. Reference to Agreement No. C -6 -1516;
2. The time period covered by the invoice;
3. An identification of the execution date of this Agreement;
4. Work Plan budget and cumulative invoice amount;
5. Hours worked per person in the invoiced period;
6. Burdened Rate per person invoiced;
7. Indirect cost recovery rate applied to the total cost of CITY direct labor, if applicable;
8. Current invoice payment amount due;
9. Signed personnel timesheets that are also signed and certified by management as eligible,
reasonable, and necessary to the Project; labor detail report generated from the CITY's
accounting system that shows total hours charged to the Project by employee each week.
Exhibit C
Page 4
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT C
10. Description of work performed adequate to correlate hours shown and work performed,
signed and certified by management as eligible, reasonable, and necessary to the Project;
11. Consultant invoices for the invoice period with the same information as required above and
shall be accompanied with proof of payment, and
12, Other information requested by the AUTHORITY to reasonably substantiate the validity of
an invoice.
In the event invoicing will be delayed, at a minimum, the CITY shall provide the AUTHORITY
signed timesheets on a monthly basis.
5.0 FEES
5.1 PERMIT FEES
The AUTHORITY, and /or its Construction Contractor(s), shall not be charged for the CITY's
fixed cost permit issuance fees for building and street work permits deemed necessary for the Project.
5.2 DEVELOPMENT IMPACT FEES
The AUTHORITY shall pay for CITY adopted and third party development impact fees such as
water and sewer connections, among others, which are related to site improvements for individual
stations, maintenance facilities and other similar structures supporting the Project.
Exhibit C
Page 5
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
REQUIRED FEDERAL CLAUSES FOR THIRD PARTY AGREEMENTS
The followina provisions apply to all purchases regardless of its value:
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CONSULTANT shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference in the
agreement between the AUTHORITY and FTA , as they may be amended or promulgated from time
to time during this Agreement. CONSULTANT's failure to comply shall constitute a material breach
of contract.
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AUTHORITY and CONSULTANT acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the underlying
Agreement, absent the express written consent by the Federal Government, the Federal Government
is not a party to this Agreement and shall not be subject to any obligations or liabilities to the
AUTHORITY, CONSULTANT, or any other party (whether or not a party to this Agreement) pertaining
to any matter resulting from the underlying Agreement. CONSULTANT agrees to include these
requirements in all of its subcontracts.
ARTICLE 3. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
A. CONSULTANT acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. § §3801 at seq. and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this project. Accordingly, by signing
this Agreement, CONSULTANT certifies or affirms the truthfulness and accuracy of any statement it
has made, it makes, it may make, or causes to be made, pertaining to the underlying Agreement of
the FTA assisted project for which this Agreement's work is being performed. CONSULTANT also
acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement,
submission, or certification, the Federal Government reserves the right to impose penalties of the
Program Fraud Civil Remedies Act of 1986 on CONSULTANT to the extent the Federal Government
deems appropriate.
B. 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 FTA under the authority of 49 U.S.C. §5307 et seq., the Government reserves the right to
impose the penalties of 18 U.S.C. §1001 and 49 U.S.C. §5307(n) (1) et seq. on CONSULTANT, to the
extent the Federal Government deems appropriate. CONSULTANT agrees to include this
requirement in all of its subcontracts.
ARTICLE 4. CIVIL RIGHTS ASSURANCE
During the performance of this Agreement, CONSULTANT, for itself, its assignees and
successors in interest agree as follows:
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
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 may be amended from
time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference
and made a part of this Agreement.
B. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the
Agreement, shall not discriminate on the grounds of race, color, 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 Includinq Procurement of Materials and 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
AUTHORITY to be pertinent to ascertain compliance with such Regulations, orders and instructions.
Where any information required of a CONSULTANT is in the exclusive possession of another who
fails or refuses to furnish this information CONSULTANT shall so certify to the AUTHORITY as
appropriate, and shall set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of CONSULTANT's noncompliance with
nondiscrimination provisions of this Agreement, the AUTHORITY shall impose Agreement sanctions
as it may determine to be appropriate, including, but not limited to:
Withholding of payments to CONSULTANT under the Agreement until
CONSULTANT complies; and /or
Cancellation, termination, or suspension of the Agreement, in whole or in part.
F. Title VI of the Civil Rights Act. In determining the types of property or services to
acquire, no person in the United States shall, on the grounds of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination
under any program or activity receiving Federal financial assistance in violation of Title VI of the Civil
Rights Act of 1964, as amended, 42 U.S.C. Sections 2000d at seq. and DOT regulations,
"Nondiscrimination in Federally Assisted Programs of the Department of Transportation— Effectuation
of Title A of the Civil Rights Act of 1964," 49 CFR Part 21. In addition, FTA Circular 4702.1, "Title VI
and Title VI- Dependent Guidelines for FTA Recipients," 05- 13 -07, provides FTA guidance and
instructions for implementing DOT's Title VI regulations.
G. The Americans with Disabilities Act of 1990 as amended (ADA), 42 U.S.C. Sections
12101 at seq., prohibits discrimination against qualified individuals with disabilities in all programs,
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
activities, and services of public entities, as well as imposes specific requirements on public and
private providers of transportation.
H. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs
(A) through (H) in every subcontract, including procurements of materials and leases of equipment,
unless exempt by the Regulations, or directives issued pursuant thereto. CONSULTANT shall take
such action with respect to any subcontract or procurement as the AUTHORITY may direct as a means
of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the
event CONSULTANT becomes involved in, or is threatened with, litigation with a subcontractor or
supplier as a result of such direction, CONSULTANT may request the AUTHORITY to enter into such
litigation to protect the interests of the AUTHORITY, and, in addition, CONSULTANT may request the
United States to enter into such litigation to protect the interests of the United States.
ARTICLE 5. DBE CONTRACT PROVISIONS FOR FTA- ASSISTED CONTRACTS WITH
DISADVANTAGED BUSINESS ENTERPRISE (DBE) GOALS
DBE Participation
It is the Consultant's responsibility to be fully informed regarding the requirements of 49
CFR, Part 26 and the Orange County Transportation Authority's (Authority's) DBE program
developed pursuant to these regulations. Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through
the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime consultant, subconsultant, joint venture partner, as
a vendor of material or supplies, or as a trucking company.
C. A DBE must perform a commercially useful function pursuant to 49 CFR 26.55 that is, a DBE
firm must be responsible for the execution of a distinct element of the work and must carry out
its responsibility by actually performing, managing and supervising the work.
D. Consultant must not claim DBE participation as attained until the amount to be claimed is paid
and fully adheres to DBE crediting provisions.
If the Consultant has committed to utilize DBE(s) in the performance of this DOT - assisted
contract, the Consultant's submitted "DBE Participation Commitment Form" will be utilized to
monitor Consultant's DBE commitments, unless otherwise directed and /or approved by the
Authority prior to the Consultant effectuating any changes to its DBE participation commitment(s)
(Refer to Subsection H: "Performance of DBE Subconsultants').
Consultant must complete and submit all required DBE documentation to effectively
capture all DBE utilization on the Authority's DOT - assisted contracts whether achieved race
neutrally or race consciously. Even if a Consultant has not committed to utilize DBE(s) in the
performance of this contract, the Consultant must execute and submit all required DBE forms and
other related documentation as specified under this contract or as otherwise requested by the
Authority. No changes to the Consultant's DBE Commitment must be made until proper protocols
for review and approval of the Authority are rendered in writing.
To ensure full compliance with the requirements of 49 CFR, Part 26 and the Authority's
DBE Program, the Consultant must:
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
A. Take appropriate actions to ensure that it will continue to meet the DBE Commitment at the
minimal level committed to at award or will satisfy the good faith efforts to meet the DBE
Commitment, when change orders or other contract modifications alter the dollar amount of
the contract or the distribution of work. The Consultant must apply and report its DBE goal
commitments against the total Contract Value, including any contract change orders and /or
amendments.
II. DBE Policy and Applicability
In accordance with federal financial assistance agreements with the U.S. Department of
Transportation (U.S. DOT), the Authority has adopted a Disadvantaged Business Enterprise (DBE)
Policy and Program, in conformance with Title 49 CFR, Part 26, "Participation by Disadvantaged
Business Enterprises in Department of Transportation Programs ".
The project is subject to these stipulated regulations and the Authority's DBE program. In
order to ensure that the Authority achieves its overall DBE Program goals and objectives, the
Authority encourages the participation of DBEs as defined in 49 CFR, Part 26 in the performance
of contracts financed in whole or in part with U.S. DOT funds. Pursuant to the intent of these
Regulations, it is also the policy of the Authority to:
Fulfill the spirit and intent of the Federal DBE Program regulations published under U.S.
DOT Title 49 CFR, Part 26, by ensuring that DBEs have equitable access to participate in all of
Authority's DOT - assisted contracting opportunities.
Ensure that DBEs can fairly compete for and perform on all DOT- assisted contracts and
subcontracts.
Ensure non - discrimination in the award and administration of Authority's DOT - assisted
contracts.
Create a level playing field on which DBEs can compete fairly for DOT - assisted contracts.
Ensure that only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to
participate as DBEs.
Help remove barriers to the participation of DBEs in DOT - assisted contracts.
Assist in the development of firms that can compete successfully in the marketplace
outside the DBE Program.
Consultant must not discriminate on the basis of race, color, national origin, or sex in the
award and performance of subconsultant.
Any terms used in this section that are defined in 49 CFR, Part 26, or elsewhere in
the Regulations, must have the meaning set forth in the Regulations. In the event of any
conflicts or inconsistencies between the Regulations and the Authority's DBE Program
with respect to DOT - assisted contracts, the Regulations must prevail.
Exhibit D
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COOPERATIVE AGREEMENT NO. C- 6.1516
EXHIBIT D
III. Authority's DBE Policy Implementation Directives
Pursuant to the provisions associated with federal regulation 49 CFR, Part 26, the
Disadvantaged Business Enterprise (DBE) program exists to ensure participation, equitable
competition, and assistance to participants in the USDOT DBE program. Accordingly, based on
the Authority's analysis of its past utilization data, coupled with its examination of similar Agencies'
Disparity Study and recent Goal Methodology findings the Authority has implemented the
reinstatement of the DBE program utilizing both race - conscious and race - neutral means across
the board as all protected groups participation have been affected using strictly race neutral means
on its FTA- assisted contracts.
The Authority reinstates the use of contract goals and good faith efforts. Meeting the
contract - specific goal by committing to utilize DBEs or documenting a bona fide good faith effort
to do so, is a condition of award. Additionally, contract - specific goals are now specifically targeted
at DBEs (DBEs owned and controlled by Black Americans, Hispanic Americans, Asian- Pacific
Americans, Native Americans, Asian - Pacific Americans, Sub - Continent Asian Americans, and
Women). In the event of a substitution, a DBE must be substituted with another DBE or
documented adequate good faith efforts to do so must be made, in order to meet the contract goal
and DBE contract requirements.
Definitions
The following definitions apply to the terms used in these provisions:
"Disadvantaged Business Enterprise (DBE) "means a small business concern: (a) which is
at least 51 percent owned by one or more socially and economically disadvantaged individuals
or, in the case of any publicly -owned business, at least 51 percent of the stock of which is
owned by one or more socially and economically disadvantaged individuals; and (b) whose
management and daily business operations are controlled by one or more of the socially and
economically disadvantaged individuals who own it.
2. "Small Business Concern" means a small business as defined pursuant to Section 3 of the
Small Business Act and relevant regulations promulgated pursuant thereto, except that a small
business concern must not include any concern or group of concerns controlled by the same
socially and economically disadvantaged individual or individuals which has annual average
gross receipts in excess of $19.57 million over the previous three fiscal years.
3. "Socially and Economically Disadvantaged Individuals" means those individuals who are
citizens of the United States (or lawfully admitted permanent residents) and who are Black
Americans, Hispanic Americans, Native Americans, Asian - Pacific Americans, or Asian - Indian
Americans, women and any other minorities or individuals found to be disadvantaged by the
Small Business Administration pursuant to Section 8(a) of the Small Business Act, or by the
Authority pursuant to 49 CFR part 26.65. Members of the following groups are presumed to
be socially and economically disadvantaged:
A. "Black Americans," which includes persons having origins in any of the Black racial groups
of Africa;
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
B. "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Central
or South American, or other Spanish or Portuguese culture or origin, regardless of race;
C. "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts,
or Native Hawaiians;
D. "Asian- Pacific Americans," which includes persons whose origins are from Japan, China,
Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust
Territories of the Pacific, and the Northern Marianas;
E. "Asian- Indian Americans," which includes persons whose origins are from India, Pakistan,
and Bangladesh; and
F. Women, regardless of ethnicity or race.
4. "Owned and Controlled" means a business: (a) which is at least 51 percent owned by one
or more "Socially and Economically Disadvantaged Individuals" or, in the case of a publicly -
owned business, at least 51 percent of the stock of which is owned by one or more "Socially
and Economically Disadvantaged Individuals "; and (b) whose management and daily business
operations are controlled by one or more such individuals.
5. "Manufacturer" means a firm that operates or maintains a factory or establishment that
produces on the premises the materials or supplies obtained by the Consultant.
6. 'Regular Dealer" means a firm that owns, operates or maintains a store, warehouse, or other
establishment in which the materials or supplies required for the performance of the contract
are bought, kept in stock, and regularly sold to the public in the usual course of business. The
firm must engage in, as its principal business, and in its own name, the purchase and sale of
the product in question. A regular dealer in such bulk items as steel, cement, gravel, stone and
petroleum products need not keep such products in stock if it owns or operates distribution
equipment.
"Fraud" includes a firm that does not meet the eligibility criteria of being a certified DBE and
that attempts to participate in a DOT - assisted program as a DBE on the basis of false,
fraudulent, or deceitful statements or representations or under circumstances indicating a
serious lack of business integrity or honesty. The Authority may take enforcement action under
49 CFR, Part 31, Program Fraud and Civil Remedies, against any participant in the DBE
program whose conduct is subject to such action under 49 CFR, Part 31. The Authority may
refer the case to the Department of Justice, for prosecution under 18 U.S.C. 1001 or other
applicable provisions of law, any person who makes a false or fraudulent statement in
connection with participation of a DBE in any DOT - assisted program or otherwise violates
applicable Federal statutes.
8. "Other Socially and Economically Disadvantaged Individuals" means those individuals
who are citizens of the United States (or lawfully admitted permanent residents) and who, on
a case -by -case basis, are determined by Small Business Administration or a recognized
California Unified Certification Program Certifying Agency to meet the social and economic
disadvantage criteria described below.
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
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
IV. Submission of DBE Information and Ongoing Reporting Requirements (Post - Award)
If there is a DBE goal on the contract, Consultant must complete and submit the
following DBE exhibits (forms) consistent with Consultant DBE Goal Commitment within the
specified timelines. Even if no DBE participation will be reported, the Consultant must execute
and return the form:
"Monthly DBE Subconsultant Commitment and Attainment Report Summary
and Payment Verification " (Form 103)
The purpose of this form is to ensure Consultant DBE commitments are attained,
properly reported and credited in accordance with DBE crediting provisions based on
the capacity the DBE performs the scope of work /service. This form further serves to
collect DBE utilization data required under 49 CFR, Part 26.
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
The Consultant is required to complete and submit a Form 103 to the Authority
by the 10th of each month until completion of the contract. The Consultant must submit
its first Form 103 following the first month of contract activity. Upon completion of the
contract, the Consultant must complete and submit a "Final: Monthly DBE Subconsultant
Commitment and Attainment Report Summary and Payment Verification" (Form 103) to
facilitate reporting and capturing actual DBE attainments at conclusion of the contract.
The Form 103 must include the following information:
A. General Contract Information — Including Contract Number and Name, Prime
Consultant and the following:
1. Original Contract Amount
2. Running Total of Change Order Amount
3. Current Contract Amount
4. Amount Paid to Consultant during Month
5. Amount Paid to Consultant from Inception to Date
6. DBE Contract Goal
7. Total Dollar Amount of DBE Commitment
8. DBE Commitment as Percentage of Current Contract Amount
B. Listed and /Proposed Consultant /Subconsultant Information — For All DBE
participation being claimed either Race Neutrally or Race Consciously,
regardless of tier:
1. DBE Firm Name, Address, Phone Number, DBE Type of Operation,
Certification Type and Certification Number.
2. DBE Firm Contract Value Information:
Original contract amount, running total of change order amount, Current
contract amount, Amount paid to Consultant during month and Amount paid
to Consultant to date.
2. Consultant Assurance of Full Compliance with Prompt Payment Provisions
Consultant to sign the prompt payment assurance statement of compliance
contained within the Form 103. Consultant is to further maintain and submit at the
request of Authority a detailed running tally of related invoices submitted by DBE(s)
and Non DBE(s), including dates of invoice submission, dates accepted and
corresponding dates and amount of payments made. The Payment and Retention
Reporting tally must also include:
DBE(s) and Non DBE(s) Invoice Number, Invoice Amount, Invoice Date,
Prime Consultant's Invoice Number that incorporated the corresponding DBE and
Non DBE invoice(s) for billing purposes, Date of Invoice submission to Authority,
Date and amount Authority paid on Prime Consultant's Invoice. The report must also
reflect a breakout of retention withheld (including retention as specified in
subcontract agreement(s) and disputed invoice retention) and retention payments
made, check number and date paid to DBE and Non DBE.
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
Consultant is advised not to report the participation of DBE(s) toward the
Consultant's DBE attainment until the amount being claimed has been paid to the
DBE. Verification of payments and /or a signed Verification of Payment by the
applicable DBE or Non DBE must be submitted with Form 103 to authenticate
reported payments.
3. DBE Subcontract Agreements
The Consultant must submit to the Authority copies of executed subcontracts
and /or purchase orders (PO) for all DBE firms participating on the contract within ten
(10) working days of award. The Consultant must immediately notify the Authority in
writing of any problems it may have in obtaining the subcontract agreements from
listed DBE firms within the specified time.
4. "Monthly DBE Trucking Verification" Form
Prior to the 10th of each month, the Consultant must submit documentation
on the "Monthly DBE Trucking Verification" Form to the Authority showing the
amount paid to DBE trucking companies. The Consultant must also obtain and
submit documentation to the Authority showing the amount paid by DBE trucking
companies to all firms, including owner - operators, for the leasing of trucks. If the
DBE leases trucks from a non -DBE, the Contactor may count only the fee or
commission the DBE receives as a result of the lease arrangement.
The Consultant must also obtain and submit documentation to the Authority
showing the truck number, owner's name, California Highway Patrol CA number,
and if applicable, the DBE certification number of the owner of the truck for all trucks
used during that month.
5. "Final Report- Utilization of Disadvantaged Business Enterprises (DBE), First
Tier Subconsultants"
Upon completion of the contract, a summary of these records must be
prepared on the: "Final Report- Utilization of Disadvantaged Business Enterprises
(DBE), First Tier Subconsultants" and certified correct by the Consultant or the
Consultant's authorized representative, and must be furnished to the Engineer. The
form must be furnished to the Authority within ninety (90) days from the date of
contract acceptance. The amount of $10,000 will be withheld from payment until a
satisfactory form is submitted.
6. "Disadvantaged Business Enterprises (DBE) Certification Status Change"
If a DBE Sub is decertified during the life of the project, the decertified
Subconsultant must notify the Consultant in writing with the date of decertification.
If a Subconsultant becomes a certified DBE during the life of the project, the
Subconsultant must notify the Consultant in writing with the date of certification
(Attach DBE certification /Decertification letter). The Consultant must furnish the
written documentation to the AUTHORITY.
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
Upon completion of the contract, the "Disadvantaged Business Enterprises
(DBE) Certification Status Change" must be signed and certified correct by the
Consultant indicating the DBEs' existing certification status. If there are no changes,
please indicate "No Changes ". The certified form must be furnished to the Authority
within ninety (90) days from the date of contract acceptance.
V. DBE Eligibility and Commercially Useful Function Standards
A DBE must be certified at the time of Proposal submission:
A certified DBE must be a small business concern as defined pursuant to Section 3 of
the U.S. Small Business Act and relevant regulations promulgated pursuant thereto.
2. A DBE may participate as a Prime Consultant, Subconsultant, joint venture partner with
a Prime or Subconsultant, vendor of material or supplies, or as a trucking company.
3. A DBE joint venture partner must be responsible for specific contract items of work, or
clearly defined portions thereof. Responsibility means actually performing, managing
and supervising the work with its own forces. The DBE joint venture partner must share
in the capital contribution, control, management, risks and profits of the joint venture
commensurate with its ownership interest.
4. At time of proposal submission, DBEs must be certified by the California Unified
Certification Program (CUCP). Listings of DBEs certified by the CUCP are available
from the following sources:
A. The CUCP web site, which can be accessed at
htto: / /www.californiaucp.com; or the Caltrans "Civil Rights" web site at
hftp://www.dot.ca.gov/hq/bep.
5. A DBE 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 DBE 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.
VI. DBE Crediting Provisions
1. When a DBE is proposed to participate in the contract, either as a Prime Consultant or
Subconsultant, at any tier, only the value of the work proposed to be performed by the
DBE with its own forces may be counted towards DBE participation. If the Consultant
is a DBE joint venture participant, only the DBE proportionate interest in the joint
venture must be counted.
2. If a DBE intends to subcontract part of the work of its subcontract to a lower -tier
Subconsultant, the value of the subcontracted work may be counted toward DBE
participation only if the Subconsultant is a certified DBE and actually performs the work
with their own forces. Services subcontracted to a Non -DBE firm may not be credited
toward the Prime Consultant's DBE attainment.
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
3. Consultant is to calculate and credit participation by eligible DBE vendors of equipment,
materials, and suppliers toward DBE attainment, as follows:
A. Sixty percent (60 %) of expenditure(s) for equipment, materials and supplies
required under the Contract, obtained from a regular dealer; or
B. One hundred percent (100 %) of expenditure(s) for equipment, materials
and supplies required under the Contract, obtained from a DBE
manufacturer.
4. The following types of fees or commissions paid to DBE Subconsultants, Brokers, and
Packagers may be credited toward the prime Consultant's DBE attainment, provided
that the fee or commission is reasonable, and not excessive, as compared with fees or
commissions customarily allowed for similar work, including:
A. Fees and commissions charged for providing bona fide professional or
technical services, or procurement of essential personnel, facilities,
equipment, materials, or supplies required in the performance of the
Contract;
B. Fees charged for delivery of material and supplies (excluding the cost of
materials or supplies themselves) when the licensed hauler, trucker, or
delivery service is not also the manufacturer of, or a regular dealer in, the
material and supplies;
C. Fees and commissions charged for providing any insurance specifically
required in the performance of the Contract.
5. Consultant may count the participation of DBE trucking companies toward DBE
attainment, as follows:
A. The DBE must be responsible for the management and supervision of the
entire trucking operation for which it is responsible on a particular contract.
B. The DBE must itself own and operate at least one fully licensed, insured,
and operational truck used on the contract.
C. The DBE receives credit for the total value of the transportation services it
provides on the contract using trucks it owns, insures, and operates using
drivers it employs.
D. The DBE may lease trucks from another DBE firm, including an owner -
operator who is certified as a DBE. The DBE who leases trucks from
another DBE receives credit for the total value of the transportation services
the lessee DBE provides on the contract.
E. The DBE may also lease trucks from a non -DBE firm, including an owner -
operator. The DBE who leases trucks from a non -DBE is entitled to credit
only for the fee or commission it receives as a result of the lease
arrangement. The DBE does not receive credit for the total value of the
transportation services provided by the lessee, since these services are not
provided by a DBE.
F. For purposes of this paragraph, a lease must indicate that the DBE has
exclusive use of and control over the truck. This does not preclude the
leased truck from working for others during the term of the lease with the
consent of the DBE, so long as the lease gives the DBE absolute priority for
use of the leased truck. Leased trucks must display the name and
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
identification number of the DBE.
6. If the Consultant listed a non - certified 15t tier Subconsultant to perform work on this
contract, and the non - certified Subconsultant subcontracts a part of its work or
purchases materials and /or supplies from a lower tier DBE certified Subconsultant or
Vendor, the value of work performed by the lower tier DBE firm's own forces can be
counted toward DBE participation on the contract. If a DBE Consultant performs the
installation of purchased materials and supplies they are eligible for full credit of the
cost of the materials.
VII. Performance of DBE Subconsultants
DBEs must perform work or supply materials as listed in the "DBE Participation
Commitment Form" specified under "DBE Proposal Submission Requirements" of these special
provisions. Do not terminate a DBE listed Subconsultant for convenience and perform the work
with your own forces or obtain materials from other sources without prior written authorization from
the AUTHORITY.
The AUTHORITY grants authorization to use other forces or sources of materials for
requests that show any of the following justifications (written approval from the AUTHORITY must
be obtained prior to effectuating a substitution):
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications
for the project.
2. You stipulate a bond is a condition of executing the subcontract and the listed DBE fails to
meet your bond requirements.
3. Work requires a Consultants' license and listed DBE does not have a valid license under
Consultants License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials.
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE delays or disrupts the progress of the work.
7. Listed DBE becomes bankrupt or insolvent.
If a listed DBE Subconsultant is terminated, you must make good faith efforts to find
another DBE Subconsultant to substitute for the original DBE. The substitute DBE must perform
at least the same amount of work as the original DBE under the contract to the extent needed to
meet the DBE goal.
The substitute DBE must be certified as a DBE at the time of request for substitution. The
AUTHORITY does not pay for work or material unless it is performed or supplied by the listed
DBE, unless the DBE is terminated in accordance with this section.
VIII. Additional DBE Subconsultants
In the event Consultant identifies additional DBE Subconsultants or suppliers not
previously identified by Consultantfor DBE participation under the contract, Consultant must notify
Exhibit D
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COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
the Authority by submitting "Request for Additional DBE Firm" to enable Consultant to capture all
DBE participation. Consultant must also submit, for each DBE identified after contract execution,
a written confirmation from the DBE acknowledging that it is participating in the contract for a
specified value, including the corresponding scope of work (a subcontract agreement can serve in
lieu of the written confirmation).
IX. DBE "Frauds" and "Fronts"
Only legitimate DBEs are eligible to participate as DBEs in the Authority's federally -
assisted contracts. Proposers are cautioned against knowingly and willfully using "fronts." The
use of "fronts" and "pass through" subcontracts to non - disadvantaged firms constitute criminal
violations. Further, any indication of fraud, waste, abuse or mismanagement of Federal funds
should be immediately reported to the Office of Inspector General, U.S. Department of
Transportation at the toll -free hotline: (800) 424 -9071; or to the following: 245 Murray Drive,
Building 410, Washington, DC 20223; Telephone: (202) 406 -570.
X. Consultant's Assurance Clause Regarding Non - Discrimination
In compliance with State and Federal anti - discrimination laws, the Consultant must affirm
that they will not exclude or discriminate on the basis of race, color, national origin, or sex in
consideration of contract award opportunities. Further, the Consultant must affirm that they will
consider, and utilize Subconsultants and vendors, in a manner consistent with non - discrimination
objectives.
XI. Prompt Payment Clause
Upon receipt of payment by Authority, Consultant agrees to promptly pay each
Subconsultant for the satisfactory work performed under this Agreement, no later than seven (7)
calendar days. Consultant agrees further to return retainage payments to each Subconsultant
within thirty (30) calendar days after the Subconsultant's work is satisfactorily completed. Authority
reserves the right to request the appropriate documentation from Consultant showing payment
has been made to the Subconsultants. Any delay or postponement of payment from the above
referenced time frames may occur only for good cause following written approval by Authority.
In accordance with 49 CFR part 26.29 "Prompt Payment Provisions" (DBE Final Rule) the
Authority will elect to utilize the following method to comply with the prompt payment of retainage
requirement:
Hold retainage from the Consultant and provide for prompt and regular incremental
acceptances of portions of the Consultant, pay retainage to prime Consultants based on these
acceptances, and require a contract clause obligating the Consultant to pay all retainage owed to
the Subconsultants for satisfactory completion of the accepted work within thirty (30) days after
payment to the Consultant.
Failure to comply with this provision or delay in payment without prior written approval from
Authority will constitute noncompliance, which may result in appropriate administrative sanctions,
including, but not limited to a withhold of two (2 %) percent of the invoice amount due per month
for every month that payment is not made.
Exhibit D
Page 13
25F -47
COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
These prompt payment provisions must be incorporated in all subcontract agreements
issued by Consultant under this Agreement. Each subcontract must require the Subconsultant to
make payments to sub - Subconsultants and suppliers in a similar manner.
XII. Administrative Remedies and Enforcement
Consultant must fully comply with the DBE contract requirements, including the Authority's
DBE Program and Title 49 CFR, Part 26 "Participation of Disadvantaged Businesses in
Department of Transportation Financial Assistance Programs" and ensure that all Subconsultants
regardless of tier are also fully compliant. Consultant's failure to comply constitutes a material
breach of contract, wherein the Authority will impose all available administrative sanctions
including payment withholdings, necessary to effectuate full compliance. In instances
of identified non - compliance, a Cure Notice will be issued to the Consultant identifying the DBE
non - compliance matter(s) and specifying the required course of action for remedy.
The Consultant must be given ten (10) working days from the date of the Cure Notice to
remedy or to (1) File a written appeal accompanied with supporting documentation and /or (2)
Request a hearing with the Authority to reconsider the Authority's DBE determination. Failure to
respond within the ten (10) working day period must constitute a waiver of the Consultant's right
to appeal. If the Consultant files an appeal, the Authority, must issue a
written determination and /or set a hearing date within ten (10) working days of receipt of the
written appeal, as applicable. A final Determination will be issued within ten (10) working days after
the hearing, as applicable.
If, after review of the Consultant's appeal, the Authority decides to uphold the decision to
impose DBE administrative remedies on the Consultant, the written determination must state the
specific remedy(s) to be imposed.
Failure to comply with the Cure Notice and /or to remedy the identified DBE non - compliance
matter(s) is a material breach of contract and is subject to administrative remedies, including,
withholding at minimum of two (2 %) percent of the invoice amount due per month for every month
that the identified non - compliance matter(s) is not remedied. Upon satisfactory compliance the
Authority will release all withholdings.
In addition to administrative remedies defined in this section, the Authority is not precluded
from invoking other contractual and /or legal remedies available under federal, state or local laws.
ARTICLE 6. ACCESS TO RECORDS AND REPORTS
CONSULTANT shall provide AUTHORITY, the U.S. Department of Transportation (DOT), the
Comptroller General of the United States, or other agents of AUTHORITY, such access to
CONSULTANT's accounting books, records, payroll documents and facilities of 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 AUTHORITY. AUTHORITY's right to audit books and records directly related to this
Agreement shall also extend to all first -tier subcontractors identified in this Agreement. CONSULTANT
Exhibit D
Page 14
25F -48
COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
shall permit any of the foregoing parties to reproduce documents by any means whatsoever or to copy
excerpts and transcriptions as reasonably necessary.
ARTICLE 7. INCORPORATION OF FTA TERMS
All contractual provisions required by Department of Transportation (DOT), whether or not
expressly set forth in this document, as set forth in Federal Transit Administration (FTA) Circular
4220.1F, as amended, are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with
other provisions contained in this Agreement. CONSULTANT shall not perform any act, fail to perform
any act, or refuse to comply with any requests, which would cause AUTHORITY to be in violation of
the FTA terms and conditions.
ARTICLE 8. ENERGY CONSERVATION REQUIREMENTS
CONSULTANT shall comply with mandatory standards and policies relating to energy
efficiency which are contained in the state energy conservation plan issued in compliance with the
Energy Policy Conservation Act.
ARTICLE 9. FLY AMERICA REQUIREMENTS
CONSULTANT agrees to comply with 49 U.S.C. 40118 (the "Fly America' Act) in accordance
with the General Services Administration's regulations at 41 CFR Part 301 -10, which provide that
recipients and sub - recipient of Federal funds and their contractors are required to use U.S. Flag air
carriers for U.S. Government - financed international air travel and transportation of their personal
effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter
of necessity, as defined by the Fly America Act. CONSULTANT shall submit, if a foreign air carrier
was used, an appropriate certification or memorandum adequately explaining why service by a U.S.
flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any
event, provide a certificate of compliance with the Fly America requirements. CONSULTANT agrees
to include the requirements of this section in all subcontracts that may involve international air
transportation.
ARTICLE 10. TRANSPORTATION OF EQUIPMENT, MATERIALS OR COMMODITIES BY OCEAN
VESSEL
A. CONSULTANT shall utilize privately owned United States -flag commercial vessels to
ship at least 50% of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners and
tankers) involved, whenever shipping any equipment, materials or commodities pursuant to this
section, to the extent such vessels are available at fair and reasonable rates for United States -flag
commercial vessels.
B. CONSULTANT shall furnish within twenty (20) working days following the date of
loading for shipments originating within the United States, or within thirty (30) working days following
the date of loading for shipping originating outside the United States, a legible copy of a rated, "on-
board" commercial ocean bill -of lading in English for each shipment of cargo described in paragraph
0 of this Article to AUTHORITY (through CONSULTANT in the case of subcontractor bills -of- lading)
Exhibit D
Page 15
25F -49
COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
and to the Division of National Cargo, Office of Market Development, Maritime Administration,
Washington, DC 20590, marked with appropriate identification of the project.
ARTICLE 11. PROHIBITED INTERESTS
A. CONSULTANT covenants that, for the term of this Agreement, no director, member,
officer or employee of AUTHORITY during his /her tenure in office or for one (1) year thereafter, shall
have any interest, direct or indirect, in this Agreement or the proceeds thereof.
B. No member of or delegate to, the Congress of the United States shall have any interest,
direct or indirect, in this Agreement or to the benefits thereof.
ARTICLE 12. ALCOHOL AND DRUG POLICY
A. CONSULTANT agrees to establish and implement an alcohol and drug program that
complies with 41 U.S.0 sections 701 -707, (the Drug Free Workplace Act of 1988),which is attached
to this Agreement as Exhibit B, and produce any documentation necessary to establish its compliance
with sections 701 -707.
B. Failure to comply with this Article may result in nonpayment or termination of this
Agreement.
ARTICLE 13. PRIVACY ACT
CONSULTANT shall comply with, and assures the compliance of its employees with, the
information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. §552a.
Among other things, CONSULTANT agrees to obtain the express consent of the Federal Government
before CONSULTANT or its employees operate a system of records on behalf of the Federal
Government. CONSULTANT understands that the requirements of the Privacy Act, including the civil
and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to
comply with the terms of the Privacy Act may result in termination of the underlying Agreement.
ARTICLE 14. CONFLICT OF INTEREST
CONSULTANT agrees to avoid organizational conflicts of interest. An organizational conflict
of interest means that due to other activities, relationships or contracts, CONSULTANT is unable, or
potentially unable to render impartial assistance or advice to the Authority; CONSULTANT's objectivity
in performing the work identified in the Scope of Work is or might be otherwise impaired; or
CONSULTANT has an unfair competitive advantage. CONSULTANT is obligated to fully disclose to
the AUTHORITY in writing Conflict of Interest issues as soon as they are known to CONSULTANT.
CONSULTANT is obligated to fully disclose to the AUTHORITY in writing Conflict of Interest issues
as soon as they are known to CONSULTANT. All disclosures must be submitted in writing to
AUTHORITY pursuant to the Notice provision herein. This disclosure requirement is for the entire term
of this Agreement.
Exhibit D
Page 16
25F -50
COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
ARTICLE 15. CODE OF CONDUCT
CONSULTANT agrees to comply with the AUTHORITY's Code of Conduct as it relates to Third
Party contracts which is hereby referenced and by this reference is incorporated herein.
CONSULTANT agrees to include these requirements in all of its subcontracts.
ARTICLE 16. PROTEST PROCEDURES
The Authority has on file a set of written protest procedures applicable to this solicitation that
may be obtained by contacting the Contract Administrator /Buyer responsible for this procurement.
Any protest filed by CONSULTANT in connection with this solicitation must be submitted in
accordance with the Authority's written procedures.
The following additional provisions apply to all purchases over $10,000
ARTICLE 17. TERMINATION
A. AUTHORITY may terminate this Agreement for its convenience at any time, in whole
or part, by giving CONSULTANT written notice thereof. Upon termination, AUTHORITY shall pay
CONSULTANT its allowable costs incurred to date of that portion terminated. Said termination shall
be construed in accordance with the provisions of CFR Title 48, Chapter 1, Part 49, of the Federal
Acquisition Regulation (FAR) and specific subparts and other provisions thereof applicable to
termination for convenience. If AUTHORITY sees fit to terminate this Agreement for convenience,
said notice shall be given to CONSULTANT in accordance with the provisions of the FAR referenced
above. Upon receipt of said notification, CONSULTANT agrees to comply with all applicable
provisions of the FAR pertaining to termination for convenience.
B. AUTHORITY 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 for cause if CONSULTANT fails
to perform in accordance with the scope of work or breaches any term(s) or violates any provision(s)
of this Agreement and does not cure such breach or violation within ten (10) calendar days after written
notice thereof by AUTHORITY. CONSULTANT shall be liable forany and all reasonable costs incurred
by AUTHORITY as a result of such default or breach including, but not limited to, reprocurement costs
of the same or similar services defaulted by CONSULTANT under this Agreement. Such termination
shall comply with CFR Title 48, Chapter 1, Part 49, of the FAR.
ARTICLE 18. RECYCLED PRODUCTS
CONSULTANT shall comply with all the requirements of Section 6002 of the Resource
Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to
the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the
procurement of the items designated in subpart B of 40 CFR Part 247. CONSULTANT agrees to
include this requirement in all of its subcontracts.
Exhibit D
Page 17
25F -51
COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
The following additional provisions apply to all purchases over $25,000
ARTICLE 19. DEBARMENT & SUSPENSION:
CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY
MATTERS - PRIMARY PARTICIPANT AND LOWER -TIER PARTICIPANTS
Unless otherwise permitted by law, any person or firm that is debarred, suspended, or
voluntarily excluded, as defined in the Federal Transit Administration (FTA) Circular 2015.1, dated
April 28, 1989, may not take part in any federally funded transaction, either as a participant or a
principal, during the period of debarment, suspension, or voluntary exclusion. Accordingly, the
Authority, acting on behalf of the District, may not enter into any transaction with such debarred,
suspended, or voluntarily excluded persons or firms during such period.
A certification process has been established by 49 CFR Part 29, as a means to ensure that
debarred suspended or voluntarily excluded persons or firms do not participate in Federally assisted
projects. The inability to provide the required certification will not necessarily result in denial of
participation in a covered transaction. A person or firm that is unable to provide a positive certification
as required by this solicitation must submit a complete explanation attached to the certification. FTA
will consider the certification and any accompanying explanation in determining whether or not to
provide assistance for the project. Failure to furnish a certification or an explanation may disqualify
that person or firm from participating in the project.
The followina additional provisions apply to all purchases over $100,000
ARTICLE 20. DISPUTES
A. Except as otherwise provided in this Agreement, any dispute concerning a question of
fact arising under this Agreement which is not disposed of by supplemental agreement shall be
decided by AUTHORITY's Director, Contracts Administration and Materials Management (CAMM),
who shall reduce the decision to writing and mail or otherwise furnish a copy thereof to CONSULTANT.
The decision of the Director, CAMM, shall be final and conclusive.
B. The provisions of this Article shall not be pleaded in any suit involving a question of fact
arising under this Agreement as limiting judicial review of any such decision to cases where fraud by
such official or his representative or board is alleged, provided, however, that any such decision shall
be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous
as necessarily to imply bad faith or is not supported by substantial evidence. In connection with any
appeal proceeding under this Article, CONSULTANT shall be afforded an opportunity to be heard and
to offer evidence in support of its appeal.
C. Pending final decision of a dispute hereunder, CONSULTANT shall proceed diligently
with the performance of this Agreement and in accordance with the decision of AUTHORITY's
Director, CAMM. This "Disputes" clause does not preclude consideration of questions of law in
connection with decisions provided for above. Nothing in this Agreement, however, shall be construed
as making final the decision of any AUTHORITY official or representative on a question of law, which
questions shall be settled in accordance with the laws of the state of California.
Exhibit D
Page 18
25F -52
COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
ARTICLE 21. CLEAN WATER REQUIREMENTS
CONSULTANT shall comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.
CONSULTANT shall report each violation to AUTHORITY and understands and agrees that the
AUTHORITY who will in turn, report each violation as required to assure notification to FTA and
appropriate EPA Regional Office. CONSULTANT agrees to include this requirement in all of its
subcontracts.
ARTICLE 22. CLEAN AIR
CONSULTANT shall comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 at seq. CONSULTANT shall report
each violation to AUTHORITY, who will in turn, report each violation as required to assure notification
to FTA and the appropriate EPA Regional Office. CONSULTANT agrees to include this requirement
in all of its subcontracts.
ARTICLE 23. LOBBYING
CONSULTANT's who apply or bid for an award of $100,000 or more shall file the certification
required by 49 CFR part 20, "New Restrictions on Lobbying ". Each tier certifies to the above that it
will not or has not used Federal appropriated funds to pay any person or organization for influencing
or attempting to influence an officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in connection with obtaining any
Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose
the name of any registrant underthe Lobbying Disclosure Act of 1995 who has made lobbying contacts
on its behalf with non - Federal funds with respect to that Federal contract, grant or award covered by
31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.
The following additional provisions apply to all purchases over $150,000
ARTICLE 24. BUY AMERICA
A. CONSULTANT is directed to the "Buy America" requirements of the Surface
Transportation Assistance Act of 1982 (Section 165) and the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA) Sections 1041(a) and 1048(a) and the regulations adopted pursuant
thereto. In conformance with the law and regulations, all manufacturing processes for steel and iron
materials furnished for incorporation into the work on this Project shall occur in the United States; with
the exception that pig iron and processed, pellitized and reduced iron ore manufactured outside of the
United States may be used in domestic manufacturing process for such steel and iron materials. The
application of coatings, such as epoxy coating, galvanizing, painting, and other coating that protects
or enhances the value of steel or iron materials shall be considered a manufacturing process subject
to the "Buy America" requirements.
B. A Certificate of Compliance, conforming to the provisions of this Article shall be
furnished for steel and iron materials. The certificates, in addition to certifying that the materials
Exhibit D
Page 19
25F -53
COOPERATIVE AGREEMENT NO. C -6 -1516
EXHIBIT D
comply with the specifications, shall specifically certify that all manufacturing processes for the
materials occurred in the United States, except for the exceptions listed herein.
C. The requirements imposed by law and regulations do not prevent a minimal use of
foreign steel and iron materials of the total combined cost of the materials used does not exceed one -
tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater.
CONSULTANT shall furnish the AUTHORITY acceptable documentation of the quantity and value of
the foreign steel and iron prior to incorporating the materials in the work.
Exhibit D
Page 20
25F -54
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Public Works
OC STREETCAR EXPENDITURE PLAN
03217664 1 66220
Consultant Services 1 03217664 1 66220
FY TOTAL:
CONSTRUCTION PHASE TOTAL: $ 1,500,000
Exhibit 2
25F -57
25F -58