HomeMy WebLinkAboutOrange County Transportation Authority (OCTA) - 2015-09-08 Dept ID PW15-054 Page 1 of 2
Meeting Date 9/8/2015
leisCITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 9/8/2015
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A Wilson, City Manager
PREPARED BY: Travis K Hopkins, PE, Director of Public Works
SUBJECT: Approve and authorize execution of Orange County Transportation Authority
(OCTA) Cooperative Agreements C-5-3470 and C-5-3471 to receive a total of
$1,000,000 in Arterial Pavement Management (APM) program matching grants
for the Adams Avenue, Atlanta Avenue, Edinger Avenue and Warner Avenue
Pavement Rehabilitation Projects
Statement of Issue
An executed agreement between the City and Orange County Transportation Authority
(OCTA) is necessary to receive grant funding for the pavement rehabilitation of Adams
® Avenue (Beach Blvd to Newland St ), Atlanta Avenue (Beach Blvd to Newland St ),
Edinger Avenue (Graham St to Springdale St ) and Warner Avenue (Beach Blvd to
Newland St )
Financial Impact
The matching funds for each grant submitted are included in the FY 15-16 proposed
Capital Improvement Program (CIP) in Measure M2 account 21390008 82300
Recommended Action
A) Approve and authorize the Mayor and City Clerk to execute Cooperative Agreement
No C-5-3470, for the City to receive a $500,000 grant from the Arterial Pavement
Management (APM) program for Adams Avenue and Atlanta Avenue Pavement
Rehabilitation Project, and,
B) Approve and authorize the Mayor and City Clerk to execute Cooperative Agreement
No C-5-3471, for the City to receive a $500,000 grant from the Arterial Pavement
Management (APM) program for Edinger Avenue and Warner Avenue Pavement
Rehabilitation Project
Alternative Action(s) Do not approve the agreements and direct staff on how to proceed
Analysis
Two matching grant applications, which were submitted competitively among other Orange
County cities, were awarded to the City by OCTA for the rehabilitation of arterial highways
® within Huntington Beach. The matching grants of $500,000 each for the Arterial Pavement
Management (APM) program are funded with Regional Surface Transportation Program
Funding under the Moving Ahead for Progress in the 21st Century Federal Transportation
Act
HB -Ise- Item 12. - I
1 -
Dept ID PW15-054 Page 2 of 2
Meeting Date 9/8/2015
The two agreements and the associated funding are
APM Local Match
Application Grant Total
Attachment#1 Cooperative Agreement No C-5- $500,000 $881,374 $1,381,374
3470 for the Pavement Rehabilitation of Adams
Avenue (Beach Blvd to Newland St ) and
Atlanta Avenue (Beach Blvd to Newland St )
Attachment#2 Cooperative Agreement No C-5- $500,000 $1,208,033 $1,708,083
3471 for the Pavement Rehabilitation of Edinger
Avenue (Graham St to Springdale St ) and
Warner Avenue (Beach Blvd to Newland St )
If the Cooperative Agreements are approved, the funding would be available in FY
2015/16 The subject agreements reflect a commitment from the City to provide the local
match
Environmental Status
The project is categorically exempt pursuant to Class 1, section 15031 c of the California
® Environmental Quality Act
Strategic Plan Goal
Enhance and maintain infrastructure
Attachment(s)
1 Cooperative Agreement No C-5-3470 for the Pavement Rehabilitation of Adams
Avenue (Beach Blvd to Newland St ) and Atlanta Avenue (Beach Blvd to Newland St )
2 Cooperative Agreement No C-5-3471 for the Pavement Rehabilitation of Edinger
Avenue (Graham St to Springdale St ) and Warner Avenue (Beach Blvd to Newland St )
Item 12. - 2 xs -158-
ATTACHMENT # 1
CTA
BOARD OF DIRECTORS
Jeffrey Lalloway September 28, 2015
Chairman
Lon Donchak
Vice Chair Mr Todd Broussard
Lisa Bartlett City of Huntington Beach
Director
2000 Main Street
Andrew Do Director Huntington Beach, CA 92648
Michael Hennessey
Director
Steve Jones SUBJECT: OCTA'S APM COOPERATIVE AGREEMENT NO. C-5-3470
Director
Jim Katapodis Dear Mr Broussard
Director
GaryA Miller Enclosed please find one executed document of the above referenced subject
Director
for your records
Al Murray
Director
Should you have any contractual related questions, please feel free to contact
Shawn Nelson Director Luis Martinez at (714) 560-5687 or by e-mail at Lmartinez1@octa net
Miguel Pulido
Director Sincerely,
Tim Shaw
Director
Todd Spitzer
Director Luis Martinez
Michelle Steel Intern
Director Contract Administration and Materials Management
Tom Tait
Director
Frank Ury Enclosure(s)
Director
GregoryT Winterbottom
Director
Ryan Chamberlain
Ex-Officio Member
CHIEF EXECUTIVE OFFICE
Darrell Johnson
Chief Executive Officer
Orange County Transportation Authority
550 South Main Street/P 0 Box 14184/Orange/California 92863-1584/(714)560-OCTA(6282)
1 COOPERATIVE AGREEMENT NO. C-5-3470
2 BETWEEN
3 ORANGE COUNTY TRANSPORTATION AUTHORITY
4 AND
5 CITY OF HUNTINGTON BEACH
6 FOR
7 THE ARTERIAL PAVEMENT MANAGEMENT PROGRAM PROJECT
8 ADAMS AVENUE REHABILITATION FROM BEACH BOULEVARD TO NEWLAND STREET AND
9 ATLANTA AVENUE FROM BEACH BOULEVARD TO NEWLAND STREET PROJECT
10
11 THIS COOPERATIVE AGREEMENT is effective this_1_1:1_day of 2P fir [ j1p,Y
12 2015, by and between the Orange County Transportation Authority, 550 South Main Street, P O Box
13 14184, Orange, California 92863-1584, a public corporation of the State of California (hereinafter
14 referred to as "AUTHORITY"), and City of Huntington Beach, California, a municipal corporation duly
15 organized and existing under the constitution and laws of the State of California (hereinafter referred to
16 as "CITY")
17 RECITALS:
18 WHEREAS, AUTHORITY and CITY desire to enter into a Cooperative Agreement to define the
19 roles and responsibilities related to funding between AUTHORITY and CITY for construction of Adams
20 Avenue Rehabilitation from Beach Boulevard to Newland Street and Atlanta Avenue from Beach
21 Boulevard to Newland Street Project as defined in the scope of work provided in the Arterial Pavement
22 Management Program 2014 Call for Projects Application, herein incorporated by reference, (hereinafter
23 referred to as "PROJECT'), and
24 WHEREAS, the Arterial Pavement Management Program is funded with Regional Surface
25 Transportation Program (hereinafter referred to as "RSTP") funds, and
26 WHEREAS, the RSTP program is authorized under Moving Ahead for Progress in the 21st
Page 1 of 11
AGREEMENT NO. C-5-3470
1 Century (MAP-21) Federal Transportation Act, and
2 WHEREAS, CITY is an eligible sub-recipient of Federal funding under the RSTP program, and
3 PROJECT is eligible for RSTP funding contingent on California Department of Transportation
4 (hereinafter referred to as "Caltrans") and the Federal Highway Administration (hereinafter referred to
5 as FHWA) approval, and
6 WHEREAS, on January 12, 2015, AUTHORITY's Board of Directors, approved providing
7 funding of up to Five Hundred Thousand Dollars ($500,000) in RSTP funds to be matched with Eight
8 Hundred Eighty-One Thousand, Three Hundred Seventy-Four Dollars ($881,374 ) in CITY funds for the
9 construction phase, and
10 WHEREAS, CITY and AUTHORITY agree that the total full funding for PROJECT including
11 construction management and construction shall be One Million, Three Hundred Eighty-One Thousand,
12 Three Hundred Seventy-Four Dollars ($1,381,374) in accordance with Exhibit A, entitled "Arterial
13 Pavement Management Program Funding Plan", which is attached herein and incorporated by
14 reference, and
15 WHEREAS, AUTHORITY and CITY agree that RSTP funding for PROJECT is contingent upon
16 funding being available through MAP-21 and PROJECT maintaining its eligibility for this funding, and
17 WHEREAS, AUTHORITY and CITY agree that Caltrans and FHWA authorization is required
18 following AUTHORITY's amendment to the Federal Transportation Improvement Program (hereinafter
19 referred to as "FTIP"), and in order to proceed or commence each phase of PROJECT for performance
20 under this Cooperative Agreement, and
21 WHEREAS, AUTHORITY is responsible for programming the funds to specific projects within
22 Orange County, and Caltrans administers the RSTP program on behalf of the FHWA and is responsible
23 for acquiring federal approvals for PROJECT on behalf of CITY, determining federal eligibility,
24 compliance with federal requirements, and reimbursement for project activities, and
25 WHEREAS, CITY agrees that AUTHORITY reserves the right to change the fund source
26 programmed to the PROJECT, and
Page 2 of 11
AGREEMENT NO. C-5-3470
1 WHEREAS, CITY agrees to act as lead agency for construction engineering, construction
2 management and construction of PROJECT, and
3 WHEREAS, this Cooperative Agreement defines the specific terms and conditions and funding
4 responsibilities between AUTHORITY and CITY (hereinafter collectively referred to as "Parties" or
5 individually as"Party")for completion of PROJECT, and
6 WHEREAS, CITY's Council approved the Cooperative Agreement on day of
7 CSC: 2015
8 NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as
9 follows
10 ARTICLE 1. COMPLETE AGREEMENT
11 A This Agreement, including any attachments incorporated herein and made applicable by
12 reference, constitutes the complete and exclusive statement of the term(s) and condition(s) of this
13 Agreement between AUTHORITY and CITY and it supersedes all prior representations,
14 understandings, and communications The invalidity in whole or in part of any term or condition of this
15 Agreement shall not affect the validity of other term(s) or condition(s) of this Agreement The above
16 referenced Recitals are true and correct and are incorporated by reference herein
17 B AUTHORITY's failure to insist on any instance(s) of CITY's performance of any term(s)
18 or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY's
19 right to such performance or to future performance of such term(s) or condition(s), and CITY's obligation
20 in respect thereto shall continue in full force and effect Changes to any portion of this Agreement shall
21 not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized
22 representative of AUTHORITY by way of a written amendment to this Agreement and issued in
23 accordance with the provisions of this Agreement
24 C CITY's failure to insist on any instance(s) of AUTHORITY's performance of any term(s)
25 or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY's right to
26 such performance or to future performance of such term(s) or condition(s), and AUTHORITY's
Page 3 of 11
AGREEMENT NO. C-5-3470
1 obligation in respect thereto shall continue in full force and effect Changes to any portion of this
2 Agreement shall not be binding upon CITY except when specifically confirmed in writing by an
3 authorized representative of CITY by way of a written amendment to this Agreement and issued in
4 accordance with the provisions of this Agreement
5 ARTICLE 2. SCOPE OF AGREEMENT
6 This Agreement specifies the roles and responsibilities of the Parties as they pertain to the
7 subjects and projects addressed herein Both AUTHORITY and CITY agree that each will cooperate
8 and coordinate with the other in all activities covered by this Agreement and any other supplemental
9 agreements that may be required to facilitate purposes thereof
10 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
11 AUTHORITY agrees to the following responsibilities for PROJECT
12 A AUTHORITY shall formally request on behalf of CITY that the Southern California
13 Association of Governments (hereinafter referred to as "SCAG") amend the FTIP to program up to the
14 amount in accordance with the funding plan outlined in Exhibit A, whereby AUTHORITY's performance
15 under this Cooperative Agreement is contingent upon SCAG, Caltrans and FHWA approval
16 B AUTHORITY shall provide assistance to CITY in securing the RSTP funds
17 C AUTHORITY shall not be obligated to program any amount beyond what has been
18 identified in this Agreement and what is ultimately approved for the PROJECT by Caltrans and FHWA
19 D AUTHORITY shall process any required FTIP amendments
20 E AUTHORITY shall review and approve CITY's request for obligation of RSTP funds prior
21 to submittal to Caltrans District 12
22 F AUTHORITY may cancel projects for which CITY has not submitted request for
23 authorization to proceed (hereinafter referred to as "E-76 Request") or has not advanced PROJECT to
24 ready-to-list stage as determined by Caltrans guidelines by February 1 of the fiscal year identified in
25 Exhibit A as required in Article 4, paragraph E
26 /
Page 4 of 11
AGREEMENT NO. C-5-3470
1 ARTICLE 4. RESPONSIBILITIES OF CITY
2 CITY agrees to the following responsibilities for PROJECT
3 A CITY shall act as the lead agency for the construction engineering, construction and
4 construction management of PROJECT
5 B CITY shall comply with all local, state, and federal project delivery requirements
6 including but not limited to Disadvantaged Business Enterprise, American with Disabilities Act, and Buy
7 America provisions
8 C CITY shall submit National Environmental Policy Act (NEPA) and the California
9 Environmental Quality Act (CEQA) environmental documentation to Caltrans for approval by November
10 1 of the programming fiscal year as provided in the project schedule in Exhibit A
11 D CITY is responsible for preparing and submitting to AUTHORITY an Engineer's
12 Estimate of PROJECT cost ninety (90) days prior to E-76 Request, and no later than November 1 of the
13 fiscal year identified in Exhibit A
14 E CITY is responsible for preparing and submitting all necessary Caltrans-required
15 documentation including E-76 Request CITY agrees to submit an E-76 Request to Caltrans District 12
16 by February 1 of the fiscal year identified in Exhibit A
17 F CITY acknowledges that if the E-76 Request is not submitted to Caltrans with a copy to
18 AUTHORITY by February 1, or CITY has not advanced PROJECT to ready-to-list stage as determined
19 through Caltrans guidelines by this date, the proposed funding shall be cancelled by AUTHORITY
20 G CITY acknowledges that they will not advertise for construction until the E-76 request is
21 approved by FHWA
22 H CITY shall provide Sixty-Four Percent (64%) of the Construction costs in CITY funds as
23 the required local match consistent with Exhibit A Any savings recognized in the Construction Phase
24 will be credited or reimbursed proportionally to the amount contributed to the Construction phase by
25 each fund type
26 I CITY shall invoice Caltrans at minimum once every six (6) months
Page 5 of 11
AGREEMENT NO. C-5-3470
1 J CITY agrees that any cost overruns shall be the responsibility of CITY
2 K CITY shall submit semi-annual status reports for PROJECT to AUTHORITY due on
3 March 1 for the prior six-month (6) period (July through December), and due on September 1 for the
4 prior six-month (6) period (January through June), (EXHIBIT B, entitled "Arterial Pavement
5 Management Program Semi-Annual Report Form")
6 L CITY shall submit a final report to AUTHORITY within six (6) months of Caltrans
7 payment of final progress invoice for PROJECT in accordance with Exhibit C, entitled "Arterial
8 Pavement Management Program Final Project Report Form "
9 M CITY is responsible for completing PROJECT in accordance with the funding plan
10 (EXHIBIT A), and to abide by Caltrans Local Assistance Procedure Manual, all RSTP programming
11 guidelines, and any and all other federal, state, and Caltrans requirements
12 ARTICLE 5. DELEGATED AUTHORITY
13 The actions required to be taken by CITY in the implementation of this Agreement are
14 delegated to its Public Works Director, or designee, and the actions required to be taken by
15 AUTHORITY in the implementation of this Agreement are delegated to AUTHORITY's Chief Executive
16 Officer or designee
17 ARTICLE 6. AUDIT AND INSPECTION
18 AUTHORITY and CITY shall maintain a complete set of records in accordance with generally
19 accepted accounting principles Upon reasonable notice, CITY shall permit the authorized
20 representatives of the AUTHORITY to inspect and audit all work, materials, payroll, books, accounts,
21 and other data and records of CITY for a period of four(4) years after final payment by Caltrans, or until
22 any on-going audit is completed For purposes of audit, the date of completion of this Agreement shall
23 be the date of CITY's payment of AUTHORITY's final billing (so noted on the invoice) under this
24 Agreement AUTHORITY shall have the right to reproduce any such books, records, and accounts The
25 above provision with respect to audits shall extend to and/or be included in contracts with CITY's
26 contractor
Page 6 of 11
AGREEMENT NO. C-5-3470
1 ARTICLE 7. INDEMNIFICATION
2 A To the fullest extent permitted by law, CITY shall defend (at CITY's sole cost and
3 expense with legal counsel reasonably acceptable to AUTHORITY), indemnify, protect, and hold
4 harmless AUTHORITY, its officers, directors, employees, and agents (collectively the "Indemnified
5 Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs,
6 judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses
7 including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising
8 from injuries to or death of persons (CITY's employees included), for damage to property, including
9 property owned by AUTHORITY, or from any violation of any federal, state, or local law or ordinance,
10 alleged to be caused by the negligent acts, omissions or willful misconduct of CITY, its officers,
11 directors, employees or agents in connection with or arising out of the performance of this Agreement
12 B To the fullest extent permitted by law, AUTHORITY shall defend (at AUTHORITY's sole
13 cost and expense with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold
14 harmless CITY, its officers, directors, employees, and agents (collectively the "Indemnified Parties"),
15 from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments,
16 arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal
17 costs and attorney fees (collectively"Claims"), including but not limited to Claims arising from injuries to
18 or death of persons (AUTHORITY's employees included), for damage to property, including property
19 owned by CITY, or from any violation of any federal, state, or local law or ordinance, alleged to be
20 caused by the negligent acts, omissions or willful misconduct of AUTHORITY, its officers, directors,
21 employees 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 /
25 /
26 /
Page 7 of 11
AGREEMENT NO. C-5-3470
3
1 ARTICLE 8. ADDITIONAL PROVISIONS
2 A Term of Agreement This Agreement shall be effective, upon execution by both Parties,
3 and shall be in full force and effect through December 2018 or until final acceptance by AUTHORITY,
4 whichever is later
5 B Termination In the event either Party defaults in the performance of their obligations
6 under this Agreement or breaches any of the provisions of this Agreement, the non-defaulting Party
7 shall have the option to terminate this Agreement upon thirty (30) days' prior written notice to the other
8 Party
9 C Termination for Convenience Either Party may terminate this Agreement for its
10 convenience by providing thirty (30) days' prior written notice of its intent to terminate for convenience to
11 the other Party, provided that all outstanding requests for funding or project approvals by CITY pursuant
12 to this Agreement have been satisfied
13 D Amendments This Agreement may be amended in writing at any time by the mutual
14 consent of both Parties No amendment shall have any force or effect unless executed in writing by
15 both Parties
16 E Compliance AUTHORITY and CITY shall comply with all applicable federal, state, and
17 local laws, statues, ordinances and regulations of any governmental authority having
18 jurisdiction over the PROJECT
19 F Legal Authority AUTHORITY and CITY hereto consent that they are authorized to
20 execute this Agreement on behalf of said Parties and that, by so executing this Agreement, the Parties
21 hereto are formally bound to the provisions of this Agreement
22 G Severability If any term, provision, covenant or condition of this Agreement is held to be
23 invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the
24 remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or
25 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law
26 H Counterparts of Agreement This Agreement may be executed and delivered in any
Page 8 of 11
AGREEMENT NO. C-5-3470
1 number of counterparts, each of which, when executed and delivered shall be deemed an original and
2 all of which together shall constitute the same agreement Facsimile or electronic signatures will be
3 permitted
4 1 Force Majeure Either Party shall be excused from performing its obligations under this
5 Agreement during the time and to the extent that it is prevented from performing by an unforeseeable
6 cause beyond its control, including but not limited to, any incidence of fire, flood, acts of God,
7 commandeering of material, products, plants or facilities by the federal, state or local government,
8 national fuel shortage, or a material act or omission by the other Party, when satisfactory evidence of
9 such cause is presented to the other Party, and provided further that such nonperformance is
10 unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing
11 J Assignment Neither this Agreement, nor any of the Parties' rights, obligations, duties,
12 or authority hereunder may be assigned in whole or in part by either Party without the prior written
13 consent of the other Party in its sole and absolute discretion Any such attempt of assignment shall be
14 deemed void and of no force and effect Consent to one assignment shall not be deemed consent to
15 any subsequent assignment, nor the waiver of any right to consent to such subsequent assignment
16 K Governing Law The laws of the State of California and applicable local and federal
17 laws, regulations and guidelines shall govern this Agreement
18 L Attorney's Fees In the event suit is brought by either party to construe, interpret and/or
19 enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party
20 shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its
21 attorney's fees from the non-prevailing party
22 M Notices Any notices, requests, or demands made between the Parties pursuant to this
23 Agreement are to be directed as follows
24 /
25 /
26 /
Page 9of11
AGREEMENT NO. C-5-3470
1
To CITY: To AUTHORITY:
2 City of Huntington Beach
Orange County Transportation Authority
3 Attn Public Works Department
4 2000 Main Street 550 South Main Street
5 Huntington Beach, CA 92648 P O Box 14184
6 Orange, CA 92863-1584
7 Attention Todd Broussard Attention Ben Ku
Principal Engineer Senior Transportation Funding Analyst
8 Tel 714-536-5247 Tel (714) 560-5473
E-mail tbroussard@surfcity-hb org E-mall Bku .octa net
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Page 10 of 11
AGREEMENT NO. C-5-3470
1 This Agreement shall be made effective upon execution by both Parties
2 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement No C-5-3470 to be
3 executed on the date first written above
4 CITY OF HUNTINGTON BEACH ORANGE COUNTY TRAN PORT AUTHORITY
5
6 By By
ardy V Darrell Johnso
7 Mayor Chief Executiv fficer
8
9
10 ATTEST: APPROVED AS TO FORM:
11
12 By BY
13 Joan L Flynn James M Donich
City Clerk0 General Counsel
14
APPROVED AS TO FORM APPROVAL RECOMME D:
15
t
16
By BY
17 chael Gates Kia Mortazavi
18 City Attorney 11,&V— Executive Director, nmg
19
20 Dated Dated
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Page 11 of 11
AGREEMENT NO. C-5-3470
EXHIBIT A
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
FUNDING PLAN
Project Title: Adams Avenue Rehabilitation from Beach Boulevard to
Newland Street and Atlanta Avenue from Beach Boulevard to
Newland Street Project
Agency: City of Huntington Beach
Date:
Schedule Original
Completion
Date
Begin Environmental Document 2/1/15
Final Environmental Document 11/1/15
Begin Design Engineering Started
Plans Specifications, and Estimates Complete 6/1/15
Submit Request for Authorization to Proceed E-76 2/1/16
Begin Construction 2/1/16
End Construction 6/1/16
Construction $000's
Fund Source Fiscal Planned
Year Obligation
RSTP FY15/16 $500,000
Local Match 64% FY15/16 $881,374
TOTAL $1,381,374
Date By
Project Manager
AGREEMENT NO. C-5-3470
EXHIBIT B
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
SEMI-ANNUAL REPORT FORM
Project Title: Adams Avenue Rehabilitation from Beach Boulevard to
Newland Street and Atlanta Avenue from Beach Boulevard to
Newland Street Project
Agency: City of Huntington Beach
Date:
Schedule Original Current
Completion Completion
Date Date
.Begin Environmental Document 2/1/15
Final Environmental Document 11/1/15
,Begin Design Engineering Started
Plans Specifications, and Estimates Complete 6/1/15
Submit Request for Authorization to Proceed E-76 2/1/16
Begin Construction 2/1/16
End Construction 6/1/16
Construction $000's
Fund Source Fiscal Planned Revised Actual Remaining
Year Obligation Obligation Expenditure Allocation
RSTP FY15/16 $500,000
Local Match 64% FY15/16 $881,374
TOTAL $1,381,374
Major Activities
Status
Issues
Name/Title
Phone Email
Note OCTA may require additional information on performance of the project related to either air quality or transportation
usage
AGREEMENT NO. C-5-3470
EXHIBIT C
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
ps FINAL PROJECT REPORT FORM
Date
OCTA
Instructions
The responsible agency should fill out the following 1) Final Project Form, 2) Final Cost, 3) Certificate of
Completion Page 4, the OCTA Staff Verification will be filled out by OCTA staff In addition, the agency must
attach before (if available) and after photographs of the project site and the address or location of the site under
the Location and Scope of work section
Agency
Project
Location and Scope of Work
Verification of Match
(Actual Expenditures)
Local;1!Itch�4
4` ,; c
5. ���.yr m, ��'i'tr
'rY E.
�, ENTER:r (ENTERr� MENTER �IVlatcti
�'3,Y
hl i Y ��i� �
Phase� ��,PrSOURCE � n,, „S�OU2CE = ASOURCE RSTP, Fundin , ;TotaL�,,a; ,,, R'ate
Engineering $ - $ - $ - $ - $ - $ - 0%
Right-of-Way $ - $ - $ - $ - $ - $ -
Construction $ - $ - $ - $ - $ - $ -
Total $ - $ - $ - $ - $ - $ -
Pro ect Schedule
�,a � '�Actual°
Phase" - �� � � "Pro osed,��
Draft Environmental Document
Final Environmental Document
Begin Design Engineering
Plans, Specifications, and Cost Estimates complete
Start Right-of-Way Acquisition
Right-of-Way Certification
Ready to Advertise
Award Construction
Pro ect Completion (open for use
Page 1
AGREEMENT NO. C-5-3470
EXHIBIT'C
APM: Final Cost
OCTA
Item # Description Unit Quantity Unit Price Amount
Page 1
AGREEMENT NO. C-6-3470
EXHIBIT C
APM: FINAL COST
OCTA
I hereby certify that the statements provided here are true and correct
Proiect Title
Yes No N/A
1 The project is designed to city/county and other participating jurisdictions' standards ❑ ❑ ❑
2 The project contract was awarded on I ENTER DATE ❑ ❑ ❑
3 The total cost of the contract is equal to or less than the total APM ❑ ❑ ❑
funds awarded and matching funds provided
a The city/county provided matching funds to the project ❑ ❑ ❑
6 Right-of-way was'acquired in conformance with city/county procedures ❑ ❑ ❑
6 All required environmental documentation is complete and certified ❑ ❑ ❑
7 An updated project schedule is included with the final invoice ❑ ❑ ❑
8 The final invoice is attached with all the necessary documentation ❑ ❑ ❑
Name
Title
Signature Date
Page 1
AGREEMENT NO. C-5-3470
EXHIBIT C
F0APM: OCTA Staff Verification
OCTA
OCTA STAFF USE ONLY
Orange County Transportation Authority staff has inspected the project site and
certifies that the project is complete and ready for use
Proiect Title
Name
Title
Signature Date
Page 1
AGREEMENT NO. C-5-3470
EXHIBIT D
REQUIRED FEDERAL CLAUSES
DEFINITIONS
The Orange County Transportation Authority, (hereinafter referred to as"AUTHORITY")
, (hereinafter referred to as "CITY")
ARTICLE 1. FEDERAL CHANGES
CITY shall at all times comply with all applicable FTA regulations, policies, procedures
and directives, including without limitation those listed directly or by reference in the agreement
between the AUTHORITY and FTA , as they may be amended or promulgated from time to time
during this Agreement CITY's failure to comply shall constitute a material breach of contract
ARTICLE 2. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES
AUTHORITY and CITY acknowledge and agree that, notwithstanding any concurrence
by the Federal Government in or approval of the solicitation or award of the underlying
Agreement, absent the express written consent by the Federal Government, the Federal
Government is not a party to this Agreement and shall not be subject to any obligations or
liabilities to the AUTHORITY, CITY, or any other party (whether or not a party to this Agreement)
pertaining to any matter resulting from the underlying Agreement CITY agrees to include these
requirements in all of its subcontracts
ARTICLE 3. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND
RELATED ACTS
A CITY acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U S C §§3801 et seq and U S DOT regulations, Program Fraud Civil
Remedies," 49 C F R Part 31, apply to its actions pertaining to this project Accordingly, by
signing this Agreement, CITY certifies or affirms the truthfulness and accuracy of any statement it
has made, it makes, it may make, or causes to be made, pertaining to the underlying Agreement
of the FTA assisted project for which this Agreement's work is being performed CITY also
acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim,
statement, submission, or certification, the Federal Government reserves the right to impose
penalties of the Program Fraud Civil Remedies Act of 1986 on the CITY to the extent the Federal
Government deems appropriate
B CITY also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under an
agreement connected with a project that is financed in whole or part with Federal assistance
awarded by FTA under the authority of 49 U S C §5307 et seq , the Government reserves the
right to impose the penalties of 18 U S C §1001 and 49 U S C §5307(n) (1) et seq on the CITY,
to the extent the Federal Government deems appropriate CITY agrees to include this
requirement in all of its subcontracts
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ARTICLE 4. CIVIL RIGHTS ASSURANCE
During the performance of this Agreement, CITY, for itself, its assignees and successors
in interest agree as follows
A Compliance with Regulations CITY shall comply with the Regulations relative to
nondiscrimination in federally assisted programs of the Department of Transportation
(hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended
from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by
reference and made a part of this Agreement
B Nondiscrimination CITY, with regard to the work performed by it during the
Agreement, shall not discriminate on the grounds of race, color, or national origin in the selection
and retention of subcontractors, including procurements of materials and leases of equipment
The CITY shall not participate either directly or indirectly in the discrimination prohibited by
Section 21 5 of the Regulations, including employment practices when the Agreement covers a
program set forth in Appendix B of the Regulations
C Solicitations for Subcontracts Including Procurement of Materials and Equipment In
all solicitations either by competitive bidding or negotiation made by the CITY for work to be
performed under a subcontract, including procurements of materials or leases of equipment,
each potential subcontractor or supplier shall be notified by the CITY of the CITY's obligations
under this Agreement and the Regulations relative to nondiscrimination on the grounds of race,
color, or national origin
D Information and Reports CITY shall provide all information and reports required by
the Regulations or directives issued pursuant thereto, and shall permit access to its books,
records, accounts, other sources of information and its facilities as may be determined by the
AUTHORITY to be pertinent to ascertain compliance with such Regulations, orders and
instructions Where any information required of a CITY is in the exclusive possession of another
who fads or refuses to furnish this information the CITY shall so certify to the AUTHORITY as
appropriate, and shall set forth what efforts it has made to obtain the information
E Sanctions for Noncompliance In the event of the CITY's noncompliance with
nondiscrimination provisions of this Agreement, the AUTHORITY shall impose Agreement
sanctions as it may determine to be appropriate, including, but not limited to
1 Withholding of payments to the CITY under the Agreement until the CITY
complies, and/or
2 Cancellation, termination, or suspension of the Agreement, in whole or in part
F Title VI of the Civil Rights Act In determining the types of property or services to
acquire, no person in the United States shall, on the grounds of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or otherwise be subjected to
discrimination under any program or activity receiving Federal financial assistance in violation of
Title VI of the Civil Rights Act of 1964, as amended, 42 U S.0 Sections 2000d et seq and DOT
regulations, "Nondiscrimination in Federally Assisted Programs of the Department of
Transportation—Effectuation of Title VI of the Civil Rights Act of 1964," 49 CFR Part 21 In
addition, FTA Circular 4702 1, "Title VI and Title VI-Dependent Guidelines for FTA Recipients,"
05-13-07, provides FTA guidance and instructions for implementing DOT's Title VI regulations
G The Americans with Disabilities Act of 1990 as amended (ADA), 42 U S C Sections
12101 et seq , prohibits discrimination against qualified individuals with disabilities in all
programs, activities, and services of public entities, as well as imposes specific requirements on
public and private providers of transportation
H Incorporation of Provisions CITY shall include the provisions of paragraphs (A)
through (H) in every subcontract, including procurements of materials and leases of equipment,
unless exempt by the Regulations, or directives issued pursuant thereto The CITY shall take
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such action with respect to any subcontract or procurement as the AUTHORITY may direct as a
means of enforcing such provisions including sanctions,for noncompliance Provided, however,
that in the event a CITY becomes involved in, or is threatened with, litigation with a subcontractor
or supplier as a result of such direction, the CITY may request the AUTHORITY to enter into
such litigation to protect the interests of the AUTHORITY, and, in addition, the CITY may request
the United States to enter into such litigation to protect the interests of the United States
ARTICLE 5. DBE CONTRACT PROVISIONS FOR FTA-ASSISTED CONTRACTS WITH
DISADVANTAGED BUSINESS ENTERPRISE (DBE)GOALS
I 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
commitments) (Refer to Subsection H "Performance of DBE Subconsultants')
Consultant must complete and submit all required DBE documentation to effectively capture
all DBE utilization on the Authority's DOT-assisted contracts whether achieved race neutrally
or race consciously Even if a Consultant has not committed to utilize DBE(s) in the
performance of this contract, the Consultant must execute and submit all required DBE forms
and other related documentation as specified under this contract or as otherwise requested
by the Authority No changes to the Consultant's DBE Commitment must be made until
proper protocols for review and approval of the Authority are rendered in writing
To ensure full compliance with the requirements of 49 CFR, Part 26 and the Authority's DBE
Program, the Consultant must
A Take appropriate actions to ensure that it will continue to meet the DBE Commitment
at the minimal level committed to at award or will satisfy the good faith efforts to meet
the DBE Commitment, when change orders or other contract modifications alter the
dollar amount of the contract or the distribution of work The Consultant must apply and
report its DBE goal commitments against the total Contract Value, including any contract
change orders and/or amendments
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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.
III Authority's DBE Policy Implementation Directives
Pursuant to the provisions associated with federal regulation 49 CFR, Part 26, the
Disadvantaged Business Enterprise (DBE) program exists to ensure participation, equitable
competition, and assistance to participants in the USDOT DBE program Accordingly, based
on the Authority's analysis of its past utilization data, coupled with its examination of similar
Agencies' Disparity Study and recent Goal Methodology findings the Authority has
implemented the reinstatement of the DBE program utilizing both race-conscious and race-
neutral means across the board as all protected groups participation have been affected
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using strictly race neutral means on its FTA-assisted contracts
The Authority reinstates the use of contract goals and good faith efforts Meeting the contract-
specific goal by committing to utilize DBEs or documenting a bona fide good faith effort to do
so, is a condition of award Additionally, contract-specific goals are now specifically targeted
at DBEs (DBEs owned and controlled by Black Americans, Hispanic Amencans, Asian-
Pacific Amencans, Native Amencans, Asian-Pacific Amencans, Sub-Continent Asian
Amencans, 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
I Definitions
The following definitions apply to the terms used in these provisions
1. "Disadvantaged Business Enterprise (DBE)" means a small business concern (a)
which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals or, in the case of any publicly-owned business, at least 51
percent of the stock of which is owned by one or more socially and economically
disadvantaged individuals, and (b) whose management and daily business operations
are controlled by one or more of the socially and economically disadvantaged individuals
who own it
2. "Small Business Concern"means a small business as defined pursuant to Section 3 of
the Small Business Act and relevant regulations promulgated pursuant thereto, except
that a small business concern must not include any concern or group of concerns
controlled by the same socially and economically disadvantaged individual or individuals
which has annual average gross receipts in excess of $19 57 million over the previous
three fiscal years
3. Socially and Economically Disadvantaged Individuals"means those individuals who
are citizens of the United States (or lawfully admitted permanent residents) and who are
Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, or
Asian-Indian Americans, women and any other minorities or individuals found to be
disadvantaged by the Small Business Administration pursuant to Section 8(a) of the
Small Business Act, or by the Authority pursuant to 49 CFR part 26 65 Members of the
following groups are presumed to be socially and economically disadvantaged
A "Black Americans," which includes persons having origins in any of the Black racial
groups of Africa,
B "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban,
Central or South American, or other Spanish or Portuguese culture or origin,
regardless of race,
C "Native Americans," which includes persons who are American Indians, Eskimos,
Aleuts, or Native Hawaiians,
D "Asian-Pacific Americans," which includes persons whose origins are from Japan,
China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the
U S Trust Territories of the Pacific, and the Northern Marianas,
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E "Asian-Indian Americans," which includes persons whose origins are from India,
Pakistan, and Bangladesh, and
F Women, regardless of ethnicity or race
4. "Owned and Controlled" means a business (a) which is at least 51 percent owned by
one or more "Socially and Economically Disadvantaged Individuals" or, in the case of a
publicly-owned business, at least 51 percent of the stock of which is owned by one or
more "Socially and Economically Disadvantaged Individuals", and (b) whose
management and daily business operations are controlled by one or more such
individuals
5. "Manufacturer" means a firm that operates or maintains a factory or establishment that
produces on the premises the materials or supplies obtained by the Consultant
6. 'Regular Dealer" means a firm that owns, operates or maintains a store, warehouse, or
other establishment in which the materials or supplies required for the performance of the
contract are bought, kept in stock, and regularly sold to the public in the usual course of
business The firm must engage in, as its principal business, and in its own name, the
purchase and sale of the product in question A regular dealer in such bulk items as steel,
cement, gravel, stone and petroleum products need not keep such products in stock if it
owns or operates distribution equipment
7. "Fraud"includes a firm that does not meet the eligibility criteria of being a certified DBE
and that attempts to participate in a DOT-assisted program as a DBE on the basis of
false, fraudulent, or deceitful statements or representations or under circumstances
indicating a serious lack of business integrity or honesty The Authority may take
enforcement action under 49 CFR, Part 31, Program Fraud and Civil Remedies, against
any participant in the DBE program whose conduct is subject to such action under 49
CFR, Part 31 The Authority may refer the case to the Department of Justice, for
prosecution under 18 U S C 1001 or other applicable provisions of law, any person who
makes a false or fraudulent statement in connection with participation of a DBE in any
DOT-assisted program or otherwise violates applicable Federal statutes
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
A. "Social Disadvantage"
1 The individual's social disadvantage must stem from his/her color, national origin, gender,
physical handicap, long-term residence in an environment isolated from the mainstream
of American society, or other similar cause beyond the individual's control
2 The individual must demonstrate that he/she has personally suffered social disadvantage
3 The individual's social disadvantage must be rooted in treatment, which he/she has
experienced in American society, not in other countries
4 The individual's social disadvantage must be chronic, longstanding and substantial, not
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fleeting or insignificant
5 The individual's social disadvantage must have negatively affected his/her entry into
and/or advancement in the business world '
6 A determination of social disadvantage must be made before proceeding to make a
determination of economic disadvantage
B. "Economic Disadvantage"
1 The individual's ability to compete in the free enterprise system has been impaired due to
diminished capital and credit opportunities, as compared to others in the same line of
business and competitive market area that are not socially disadvantaged
2 The following criteria will be considered when determining the degree of diminished credit
and capital opportunities of a person claiming social and economic disadvantage
With respect to the individual
• availability of financing bonding capability
• availability of outside equity capital
• available markets
With respect to the individual and the business concern
• personal and business assets
• personal and business net worth
• personal and business income and profits
IV. Submission of DBE Information and Ongoing Reporting Requirements (Post-Award)
If there is a DBE goal on the contract, Consultant must complete and submit the following
DBE exhibits (forms) consistent with Consultant DBE Goal Commitment within the
specified timelines Even if no DBE participation will be reported, the Consultant must
execute and return the form
1. "Monthly DBE Subconsultant Commitment and Attainment Report Summary and
Payment Verification " (Form 103)
The purpose of this form is to ensure Consultant DBE commitments are attained, properly
reported and credited in accordance with DBE crediting provisions based on the capacity
the DBE performs the scope of work/service This form further serves to collect DBE
utilization data required under 49 CFR, Part 26
The Consultant is required to complete and submit a Form 103 to the Authority by the 10'h
of each month until completion of the contract The Consultant must submit its first Form
103 following the first month of contract activity Upon completion of the contract, the
Consultant must complete and submit a "Final Monthly DBE Subconsultant Commitment
and Attainment Report Summary and Payment Verification (Form 103) to facilitate
reporting and capturing actual DBE attainments at conclusion of the contract
The Form 103 must include the following information
A General Contract Information — Including Contract Number and Name, Prime
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Consultant and the following v
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 Cons ulta nt/Subconsulta nt 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
Consultant is advised not to report the participation of DBE(s) toward the
Consultant's DBE attainment until the amount being claimed has been paid to
the DBE Verification of payments and/or a signed Verification of Payment by
the applicable DBE or Non DBE must be submitted with Form 103 to
authenticate reported payments
3. DBE Subcontract Agreements
The Consultant must submit to the Authority copies of executed subcontracts
and/or purchase orders (PO) for all DBE firms participating on the contract
within ten working days of award The Consultant must immediately notify the
Authority in writing of any problems it may have in obtaining the subcontract
agreements from listed DBE firms within the specified time
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4. "Monthly DBE Trucking Verification" Form
Prior to the 10th of each month, the Consultant must submit documentation on
the "Monthly DBE Trucking Verification" Form to the Authority showing the
amount paid to DBE trucking companies The Consultant must also obtain and
submit documentation to the Authority showing the amount paid by DBE
trucking companies to all firms, including owner-operators, for the leasing of
trucks If the DBE leases trucks from a non-DBE, the Contactor may count
only the fee or commission the DBE receives as a result of the lease
arrangement
The Consultant must also obtain and submit documentation to the Authority
showing the truck number, owner's name, California Highway Patrol CA
number, and if applicable, the DBE certification number of the owner of the
i. truck for all trucks used during that month
5. "Final Report-Utilization of Disadvantaged Business Enterprises (DBE),
First Tier Subconsultants"
Upon completion of the contract, a summary of these records must be
prepared on the Final Report-Utilization of Disadvantaged Business
Enterprises (DBE), First Tier Subconsultants" and certified correct by the
Consultant or the Consultant's authorized representative, and must be
furnished to the Engineer The form must be furnished to the Authority within
90 days from the date of contract acceptance The amount of$10,000 will be
withheld from payment until a satisfactory form is submitted
6. "Disadvantaged Business Enterprises (DBE) Certification Status
Change"
If a DBE Sub is decertified during the life of the project, the decertified
Subconsultant must notify the Consultant in writing with the date of
decertification If a Subconsultant becomes a certified DBE during the life of
the project, the Subconsultant must notify the Consultant in writing with the
date of certification (Attach DBE certification/Decertification letter) The
Consultant must furnish the written documentation to the AUTHORITY
Upon completion of the contract, the Disadvantaged Business Enterprises
(DBE) Certification Status Change" must be signed and certified correct by the
Consultant indicating the DBEs' existing certification status If there are no
changes, please indicate "No Changes" The certified form must be furnished
to the Authority within 90 days from the date of contract acceptance
V DBE Eligibility and Commercially Useful Function Standards
A DBE must be certified at the time of Proposal submission
1 A certified DBE must be a small business concern as defined pursuant to Section 3 of the
U S Small Business Act and relevant regulations promulgated pursuant thereto
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2 A DBE may participate as a Prime Consultant, Subconsultant,joint venture partner with a
Prime or Subconsultant, vendor of material or supplies, or as a trucking company
3 A DBE joint venture partner must be responsible for specific contract items of work, or
clearly defined portions thereof Responsibility means actually performing, managing and
supervising the work with its own forces The DBE joint venture partner must share in the
capital contribution, control, management, risks and profits of the joint venture
commensurate with its ownership interest
4 At time of proposal submission, DBEs must be certified by the California Unified
Certification Program (CUCP) Listings of DBEs certified by the CUCP are available from
the following sources
A The CUCP web site, which can be accessed at http//www californiaucp com, or the
Caltrans "Civil Rights"web site at http//www dot ca gov/hq/bep
5 A_DBE must perform a commercially useful function in accordance with 49 CFR 26 55
0 a 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 commercially useful function
VI DBE Crediting Provisions
1 When a DBE is proposed to participate in the contract, either as a Prime Consultant or
Subconsultant, at any tier, only the value of the work proposed to be performed by the
DBE with its own forces may be counted towards DBE participation If the Consultant is a
DBE joint venture participant, only the DBE proportionate interest in the joint venture must
be counted
2 If a DBE intends to subcontract part of the work of its subcontract to a lower-tier
Subconsultant, the value of the subcontracted work may be counted toward DBE
participation only if the Subconsultant is a certified DBE and actually performs the work
with their own forces Services subcontracted to a Non-DBE firm may not be credited
toward the Prime Consultant's DBE attainment
3 Consultant is to calculate and credit participation by eligible DBE vendors of equipment,
materials, and suppliers toward DBE attainment, as follows
A Sixty percent (60%) of expenditure(s) for equipment, materials and supplies required
under the Contract, obtained from a regular dealer, or
B One hundred percent (100%) of expenditure(s) for equipment, materials and supplies
required under the Contract, obtained from a DBE manufacturer
4 The following types of fees or commissions paid to DBE Subconsultants, Brokers, and
Packagers may be credited toward the prime Consultant's DBE attainment, provided that
the fee or commission is reasonable, and not excessive, as compared with fees or
commissions customarily allowed for similar work, including
A Fees and commissions charged for providing bona fide professional or technical
services, or procurement of essential personnel, facilities, equipment, materials, or
supplies required in the performance of the Contract,
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B Fees charged for delivery of material and supplies (excluding the cost of materials or
supplies themselves) when the licensed hauler, trucker, or delivery service is not also
the manufacturer of, or a regular dealer in, the material and supplies,
C Fees and commissions charged for providing any insurance specifically required in
the performance of the Contract
5 Consultant may count the participation of DBE trucking companies toward DBE
attainment, as follows
A The DBE must be responsible for the management and supervision of the entire
trucking operation for which it is responsible on a particular contract
B The DBE must itself own and operate at least one fully licensed, insured, and
operational truck used on the contract
C The DBE receives credit for the total value of the transportation services it provides
on the contract using trucks it owns, insures, and operates using drivers it employs
D The DBE may lease trucks from another DBE firm, including an owner-operator who
is certified as a DBE The DBE who leases trucks from another DBE receives credit
for the total value of the transportation services the lessee DBE provides on the
contract
E The DBE may also lease trucks from a non-DBE firm, including an owner-operator
The DBE who leases trucks from a non-DBE is entitled to credit only for the fee or
commission it receives as a result of the lease arrangement The DBE does not
receive credit for the total value of the transportation services provided by the lessee,
since these services are not provided by a DBE
F For purposes of this paragraph, a lease must indicate that the DBE has exclusive use
of and control over the truck This does not preclude the leased truck from working
for others during the term of the lease with the consent of the DBE, so long as the
lease gives the DBE absolute priority for use of the leased truck Leased trucks must
display the name and identification number of the DBE
6 If the Consultant listed a non-certified 15' tier Subconsultant to perform work on this
contract, and the non-certified Subconsultant subcontracts a part of its work or purchases
materials and/or supplies from a lower tier DBE certified Subconsultant or Vendor, the
value of work performed by the lower tier DBE firm's own forces can be counted toward
DBE participation on the contract If a DBE Consultant performs the installation of
purchased materials and supplies they are eligible for full credit of the cost of the
materials
VII Performance of DBE Subconsultants
DBEs must perform work or supply materials as listed in the "DBE Participation Commitment
Form" specified under"DBE Proposal Submission Requirements"of these special provisions
Do not terminate a DBE listed Subconsultant for convenience and perform the work with your
own forces or obtain materials from other sources without prior written authorization from the
AUTHORITY
The AUTHORITY grants authorization to use other forces or sources of materials for
requests that show any of the following justifications (written approval from the AUTHORITY
must be obtained prior to effectuating a substitution)
1 Listed DBE fails or refuses to execute a written contract based on plans and
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specifications for the project
2 You stipulate a bond is a condition of executing the subcontract and the listed DBE
fails to meet your bond requirements -
3 Work requires a Consultants' license and listed DBE does not have a valid license
under Consultants License Law
4 Listed DBE fails or refuses to perform the work or furnish the listed materials
5 Listed DBE's work is unsatisfactory and not in compliance with the contract
6 Listed DBE delays or disrupts the progress of the work
7 Listed DBE becomes bankrupt or insolvent
If a listed DBE Subconsultant is terminated, you must make good faith efforts to find another
DBE Subconsultant to substitute for the original DBE The substitute DBE must perform at
least the same amount of work as the original DBE under the contract to the extent needed to
meet the DBE goal
The substitute DBE must be certified as a DBE at the time of request for substitution The
AUTHORITY does not pay for work or material unless it is performed or supplied by the listed
DBE, unless the DBE is terminated in accordance with this section
VIII Additional DBE Subconsultants
} In the event Consultant identifies additional DBE Subconsultants or suppliers not previously
identified by Consultant for DBE participation under the contract, Consultant must notify the
Authority by submitting "Request for Additional DBE Firm" to enable Consultant to capture all
DBE participation Consultant must also submit, for each DBE identified after contract
execution, a written confirmation from the DBE acknowledging that it is participating in the
contract for a specified value, including the corresponding scope of work (a subcontract
agreement can serve in lieu of the written confirmation)
IX DBE"Frauds" and"Fronts"
Only legitimate DBEs are eligible to participate as DBEs in the Authority's federally -assisted
contracts Proposers are cautioned against knowingly and willfully using "fronts " The use of
"fronts" and "pass through" subcontracts to non-disadvantaged firms constitute criminal
violations Further, any indication of fraud, waste, abuse or mismanagement of Federal funds
should be immediately reported to the Office of Inspector General, U S Department of
Transportation at the toll-free hotline (800) 424-9071, or to the following 245 Murray Drive,
Building 410, Washington, DC 20223, Telephone (202) 406-570
X Consultant's Assurance Clause Regarding Non-Discrimination
In compliance with State and Federal anti-discrimination laws, the Consultant must affirm that
they will not exclude or discriminate on the basis of race, color, national origin, or sex in
consideration of contract award opportunities Further, the Consultant must affirm that they
will consider, and utilize Subconsultants and vendors, in a manner consistent with non-
discrimination objectives
XI Prompt Payment Clause
Upon receipt of payment by Authority, Consultant agrees to promptly pay each Subconsultant
for the satisfactory work performed under this Agreement, no later than seven (7) calendar
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days Consultant agrees further to return retainage payments to each Subconsultant within
thirty (30) calendar days after the Subconsultant's work is satisfactorily completed Authority
reserves the right to request the appropriate documentation from Consultant showing
payment has been made to the Subconsultants Any delay or postponement of payment
from the above referenced time frames may occur only for good cause following written
approval by Authority
In accordance with 49 CFR part 26 29 "Prompt Payment Provisions" (DBE Final Rule) the
Authority will elect to utilize the following method to comply with the prompt payment of
retainage requirement
Hold retainage from the Consultant and provide for prompt and regular incremental
acceptances of portions of the Consultant, pay retainage to prime Consultants based on
these acceptances, and require a contract clause obligating the Consultant to pay all
retainage owed to the Subconsultants for satisfactory completion of the accepted work within
thirty (30)`days after payment to the Consultant
Failure to comply with this provision or delay in payment without prior written approval from
Authority will constitute noncompliance, which may result in appropriate administrative
x sanctions, including, but not limited to a withhold of two (2%) percent of the invoice amount
due per month for every month that payment is not made
These prompt payment provisions must be incorporated in all subcontract agreements issued
by Consultant under this Agreement Each subcontract must require the Subconsultant to
make payments to sub-Subconsultants and suppliers in a similar manner
XII Administrative Remedies and Enforcement
Consultant must fully comply with the DBE contract requirements, including the Authority's
DBE Program and Title 49 CFR, Part 26"Participation of Disadvantaged Businesses in
Department of Transportation Financial Assistance Programs" and ensure that all
Subconsultants regardless of tier are also fully compliant Consultant's failure to comply
constitutes a material breach of contract, wherein the Authority will impose all available
administrative sanctions including payment withholdings, necessary to effectuate full
compliance In instances of identified non-compliance, a Cure Notice will be issued to the
Consultant identifying the DBE non-compliance matter(s) and specifying the required course
of action for remedy
The Consultant must be given ten (10) working days from the date of the Cure Notice to
remedy or to (1) File a written appeal accompanied with supporting documentation and/or (2)
Request a hearing with the Authority to reconsider the Authority's DBE determination Failure
to respond within the ten (10) working day period must constitute a waiver of the Consultant's
right to appeal If the Consultant files an appeal, the Authority, must issue a
written determination and/or set a hearing date within ten (10) working days of receipt of the
written appeal, as applicable A final Determination will be issued within ten (10)working days
after the hearing, as applicable
If, after review of the Consultant's appeal, the Authority decides to uphold the decision to
impose DBE administrative remedies on the Consultant, the written determination must state
the specific remedy(s) to be imposed
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EXHIBIT D
Failure to comply with the Cure Notice and/or to remedy the identified DBE non-compliance
matter(s) is a material breach of contract and is subject to administrative remedies, including,
withholding at minimum of two (2%) percent of the invoice amount due per month for every
month that the identified non-compliance matter(s) is not remedied Upon satisfactory
compliance the Authority will release all withholdings
In addition to administrative remedies defined in this section, the Authority is not precluded
from invoking other contractual and/or legal remedies available under federal, state or local
laws
ARTICLE 6. ACCESS TO RECORDS AND REPORTS
CITY shall provide AUTHORITY, the U S Department of Transportation (DOT), the
Comptroller General of the United States, or other agents of AUTHORITY, such access to
CITY's accounting books, records, payroll documents and facilities of the CITY which are
directly pertinent to this Agreement for the purposes of examining, auditing and inspecting all
accounting books, records, work data, documents and activities related hereto CITY shall
maintain such books, records, data and documents in accordance with generally accepted
accounting principles and shall clearly identify and make such items readily accessible to such
parties during CITY's performance hereunder and for a period of four (4) years from the date of
final payment by AUTHORITY AUTHORITY's right to audit books and records directly related
to this Agreement shall also extend to all first-tier subcontractors identified in this Agreement
CITY shall permit any of the foregoing parties to reproduce documents by any means
whatsoever or to copy excerpts and transcriptions as reasonably necessary
ARTICLE 7. INCORPORATION OF FTA TERMS
All contractual provisions required by Department of Transportation (DOT), whether or
not expressly set forth in this document, as set forth in Federal Transit Administration (FTA)
Circular 42201 F, as amended, are hereby incorporated by reference Anything to the contrary
herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement CITY shall not perform any act, fail
to perform any act, or refuse to comply with any requests, which would cause AUTHORITY to
be in violation of the FTA terms and conditions
ARTICLE 8. ENERGY CONSERVATION REQUIREMENTS
CITY shall comply with mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in compliance with the
Energy Policy Conservation Act
ARTICLE 9. PROHIBITED INTERESTS
A CITY covenants that, for the term of this Agreement, no director, member, officer or
employee of AUTHORITY during his/her tenure in office or for one (1) year thereafter, shall have
any interest, direct or indirect, in this Agreement or the proceeds thereof
B No member of or delegate to, the Congress of the United States shall have any
interest, direct or indirect, in this Agreement or to the benefits thereof
Orange County Transportation Authority 14
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µ AGREEMENT NO. C-5-3470
EXHIBIT D
ARTICLE 10. PRIVACY ACT
CITY shall comply with, and assures the compliance of its employees with, the
information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U S C
§552a Among other things, CITY agrees to obtain the express consent of the Federal
Government before the CITY or its employees operate a system of records on behalf of the
Federal Government CITY understands that the requirements of the Privacy Act, including the
civil and criminal penalties for violation of that Act, apply to those individuals involved, and that
failure to comply with the terms of the Privacy Act may result in termination of the underlying
Agreement
ARTICLE 11. CONFLICT OF INTEREST
CITY agrees to avoid organizational conflicts of interest An organizational conflict of
interest means that due to other activities, relationships or contracts, the CITY is unable, or
potentially unable to render impartial assistance or advice to the Authority, CITY's objectivity
in performing,the work identified in the Scope of Work is or might be otherwise impaired, or
` the CITY has an unfair competitive advantage CITY is obligated to fully disclose to the
AUTHORITY, in writing Conflict of Interest issues as soon as they are known to the CITY
CITY is obligated to fully disclose to the AUTHORITY in writing Conflict of Interest issues as
soon as they are known to the CITY All disclosures must be submitted in writing to
AUTHORITY pursuant to the Notice provision herein This disclosure requirement is for the
entire term of this Agreement
ARTICLE 12. CODE OF CONDUCT
CITY agrees to comply with the AUTHORITY's Code of Conduct as it relates to Third
Party contracts which is hereby referenced and by this reference is incorporated herein CITY
agrees to include these requirements in all of its subcontracts
ARTICLE 13. TERMINATION
A AUTHORITY may terminate this Agreement for its convenience at any time, in whole
or part, by giving CITY written notice thereof Upon termination, AUTHORITY shall pay CITY its
allowable costs incurred to date of that portion terminated Said termination shall be construed in
accordance with the provisions of CFR Title 48, Chapter 1, Part 49, of the Federal Acquisition
Regulation (FAR) and specific subparts and other provisions thereof applicable to termination for
convenience If AUTHORITY sees fit to terminate this Agreement for convenience, said notice
shall be given to CITY in accordance with the provisions of the FAR referenced above Upon
receipt of said notification, CITY agrees to comply with all applicable provisions of the FAR
pertaining to termination for convenience
8 AUTHORITY may terminate this Agreement for CITY's default if a federal or state
proceeding for the relief of debtors is undertaken by or against CITY, or if CITY makes an
assignment for the benefit of creditors, or for cause if CITY flails to perform in accordance with the
scope of work or breaches any term(s) or violates any provision(s) of this Agreement and does
not cure such breach or violation within ten (10) calendar days after written notice thereof by
AUTHORITY CITY shall be liable for any and all reasonable costs incurred by AUTHORITY as a
Orange County Transportation Authority 15
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AGREEMENT NO. C-5-3470
EXHIBIT D
result of such default or breach including, but not limited to, reprocurement costs of the same or
similar services defaulted by CITY under this Agreement Such termination shall comply with
CFR Title 48, Chapter 1, Part 49, of the FAR
ARTICLE 14. RECYCLED PRODUCTS
CITY shall comply with all the requirements of Section 6002 of the Resource
Conservation and Recovery Act (RCRA), as amended (42 U S C 6962), including but not limited
to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the
procurement of the items designated in subpart B of 40 CFR Part 247 CITY agrees to include
this requirement in all of its subcontracts
ARTICLE 15. DEBARMENT & SUSPENSION:
CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER
RESPONSIBILITY MATTERS - PRIMARY PARTICIPANT AND LOWER-TIER PARTICIPANTS
Unless otherwise permitted by law, any person or firm that is debarred, suspended, or
voluntarily excluded, as defined in the Federal Transit Administration (FTA) Circular 2015 1,
dated April 28, 1989, may not take part in any federally funded transaction, either as a
participant or a principal, during the period of debarment, suspension, or voluntary exclusion
Accordingly, the Authority, acting on behalf of the District, may not enter into any transaction
with such debarred, suspended, or voluntarily excluded persons or firms during such period
A certification process has been established by 49 CFR Part 29, as a means to ensure that
debarred suspended or voluntarily excluded persons or firms do not participate in Federally
assisted projects The inability to provide the required certification will not necessarily result in
denial of participation in a covered transaction A person or firm that is unable to provide a
positive certification as required by this solicitation must submit a complete explanation
attached to the certification FTA will consider the certification and any accompanying
explanation in determining whether or not to provide assistance for the project Failure to
furnish a certification or an explanation may disqualify that person or firm from participating in
the project
ARTICLE 16. DISPUTES
A Except as otherwise provided in this Agreement, any dispute concerning a
question of fact arising under this Agreement which is not disposed of by supplemental
agreement shall be decided by AUTHORITY's Director, Contracts Administration and Materials
Management (CAMM), who shall reduce the decision to writing and mail or otherwise furnish a
copy thereof to CONTRACTOR The decision of the Director, CAMM, shall be final and
conclusive
B The provisions of this Article shall not be pleaded in any suit involving a question of
fact arising under this Agreement as limiting judicial review of any such decision to cases where
fraud by such official or his representative or board is alleged, provided, however, that any such
decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or
so grossly erroneous as necessarily to imply bad faith or is not supported by substantial
evidence In connection with any appeal proceeding under this Article, CONTRACTOR shall be
Orange County Transportation Authority 16
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AGREEMENT NO. C-5-3470
EXHIBIT D
afforded an opportunity to be heard and to offer evidence in support of its appeal
C Pending final decision of a dispute hereunder, CONTRACTOR shall proceed
diligently with the performance of this Agreement and in accordance with the decision of
AUTHORITY's Director, CAMM This "Disputes" clause does not preclude consideration of
questions of law in connection with decisions provided for above Nothing in this Agreement,
however, shall be construed as making final the decision of any AUTHORITY official or
representative on a question of law, which questions shall be settled in accordance with the laws
of the state of California
ARTICLE 17. CLEAN WATER REQUIREMENTS
CITY shall comply with all applicable standards, orders or regulations issued pursuant to
the Federal Water Pollution Control Act, as amended, 33 U S C 1251 et seq CITY shall report
each violation to AUTHORITY and understands and agrees that the AUTHORITY who will in
turn, report each violation as required to assure notification to FTA and appropriate EPA
Regional Office CITY agrees to include this requirement in all of its subcontracts
ARTICLE 1B. CLEAN AIR
CITY shall comply with all applicable standards, orders or regulations issued pursuant to
the Clean Air Act, as amended, 42 U S C §§ 7401 et seq CITY shall report each violation to
AUTHORITY, who will in turn, report each violation as required to assure notification to FTA and
the appropriate EPA Regional Office CITY agrees to include this requirement in all of its
subcontracts
ARTCLE 19. LOBBYING
CITY's who apply or bid for an award of $100,000 or more shall file the certification
required by 49 CFR part 20, "New Restrictions on Lobbying" Each tier certifies to the above that
it will not or has not used Federal appropriated funds to pay any person or organization for
influencing or attempting to influence an officer or employee of any agency, a member of
Congress, officer or employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other award covered by 31 U S C
1352 Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act
of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that
Federal contract, grant or award covered by 31 U S C 1352 Such disclosures are forwarded
from tier to tier up to the recipient
Orange County Transportation Authority 17
Revised 05/06/2014
ATTACHMENT #2
k
OCTA
BOARD OF DIRECTORS
Jeffrey Lalloway September 28, 2015
Chairman
Lon Donchak
Vice Chair Mr Todd Broussard
Lisa Bartlett City of Huntington Beach
Director
2000 Main Street
Andrew Do Director Huntington Beach, CA 92648
Michael Hennessey
Director
Steve Jones SUBJECT: OCTA'S APM COOPERATIVE AGREEMENT NO. C-5-3471
Director
Jim Katapodis Dear Mr Broussard
Director
GaryA Miller Enclosed please find one executed document of the above referenced subject
Director
for your records
Al Murray
Director
Should you have any contractual related questions, please feel free to contact
Shawn Nelson Director Luis Martinez at (714) 560-5687 or by e-mail at Lmartinez1@octa net
Miguel Pulido
Director Sincerely,
Tim Shaw
Director
Todd Spitzer �� s
Director Luis Martinez
Michelle Steel Intern
Director Contract Administration and Materials Management
Tom Tait
Director
Enclosure(s)
Frank Ury
Director
GregoryT Winterbottom
Director
Ryan Chamberlain
Ex-Offiao Member
CHIEF EXECUTIVE OFFICE
Darrell Johnson
Chief Executive Officer
Orange County Transportation Authority
550 South Main Street/P 0 Box 14184/Orange/California 92863-1584/(714)560-OCTA(6282)
1 COOPERATIVE AGREEMENT NO. C-5-3471
2 BETWEEN
3 ORANGE COUNTY TRANSPORTATION AUTHORITY
4 AND
5 CITY OF HUNTINGTON BEACH
6 FOR
7 THE ARTERIAL PAVEMENT MANAGEMENT PROGRAM PROJECT
8 EDINGER AVENUE REHABILITATION FROM GRAHAM STREET TO SPRINGDALE STREET AND
9 WARNER AVENUE FROM BEACH BOULEVARD TO NEWLAND STREET PROJECT
10
r�
11 THIS COOPERATIVE AGREEMENT is effective this day of r
12 2015, by and between the Orange County Transportation Authority, 550 South Main Street, P O Box
13 14184, Orange, California 92863-1584, a public corporation of the State of California (hereinafter
14 referred to as "AUTHORITY"), and City of Huntington Beach, California, a municipal corporation duly
15 organized and existing under the constitution and laws of the State of California (hereinafter referred to
16 as"CITY")
17 RECITALS:
18 WHEREAS, AUTHORITY and CITY desire to enter into a Cooperative Agreement to define the
19 roles and responsibilities related to funding between AUTHORITY and CITY for construction of Edinger
20 Avenue Rehabilitation from Graham Street to Springdale Street and Warner Avenue from Beach
21 Boulevard to Newland Street Project as defined in the scope of work provided in the Arterial Pavement
22 Management Program 2014 Call for Projects Application, herein incorporated by reference, (hereinafter
23 referred to as"PROJECT'), and
24 WHEREAS, the Arterial Pavement Management Program is funded with Regional Surface
25 Transportation Program (hereinafter referred to as "RSTP")funds, and
26 WHEREAS, the RSTP program is authorized under Moving Ahead for Progress in the 21s'
Page 1 of 11
AGREEMENT NO. C-5-3471
1 Century (MAP-21) Federal Transportation Act, and
2 WHEREAS, CITY is an eligible sub-recipient of Federal funding under the RSTP program, and
3 PROJECT is eligible for RSTP funding contingent on California Department of Transportation
4 (hereinafter referred to as "Caltrans") and the Federal Highway Administration (hereinafter referred to
5 as FHWA) approval, and
6 WHEREAS, on January 12, 2015, AUTHORITY's Board of Directors, approved providing
7 funding of up to Five Hundred Thousand Dollars ($500,000) in RSTP funds to be matched with One
8 Million, Two Hundred Eight Thousand, Eighty-Three Dollars ($1,208,083) in CITY funds for the
9 construction phase, and
10 WHEREAS, CITY and AUTHORITY agree that the total full funding for PROJECT including
11 construction management and construction shall be One million, Seven Hundred Eight Thousand,
12 Eighty-Three Dollars ($1,708,083) in accordance with Exhibit A, entitled "Arterial Pavement
13 Management Program Funding Plan", which is attached herein and incorporated by reference, and
14 WHEREAS, AUTHORITY and CITY agree that RSTP funding for PROJECT is contingent upon
15 funding being available through MAP-21 and PROJECT maintaining its eligibility for this funding, and
16 WHEREAS, AUTHORITY and CITY agree that Caltrans and FHWA authorization is required
17 following AUTHORITY's amendment to the Federal Transportation Improvement Program (hereinafter
18 referred to as "FTIP"), and in order to proceed or commence each phase of PROJECT for performance
19 under this Cooperative Agreement, and
20 WHEREAS, AUTHORITY is responsible for programming the funds to specific projects within
21 Orange County, and Caltrans administers the RSTP program on behalf of the FHWA and is responsible
22 for acquiring federal approvals for PROJECT on behalf of CITY, determining federal eligibility,
23 compliance with federal requirements, and reimbursement for project activities, and
24 WHEREAS, CITY agrees that AUTHORITY reserves the right to change the fund source
25 programmed to the PROJECT, and
26 WHEREAS, CITY agrees to act as lead agency for construction engineering, construction
Page 2of11
AGREEMENT NO. C-5-3471
1 management and construction of PROJECT, and
2 WHEREAS, this Cooperative Agreement defines the specific terms and conditions and funding
3 responsibilities between AUTHORITY and CITY (hereinafter collectively referred to as "Parties" or
4 individually as "Party" ")for completion of PROJECT, and
5 WHEREAS, CITY's Council approved the Cooperative Agreement on day of
6 ( SC- f 2_- 2015
7 NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as
8 follows
9 ARTICLE 1. COMPLETE AGREEMENT
10 This Agreement, including any attachments incorporated herein and made applicable by
11 reference, constitutes the complete and exclusive statement of the term(s) and condition(s) of this
12 Agreement between AUTHORITY and CITY and it supersedes all prior representations,
13 understandings, and communications The invalidity in whole or in part of any term or condition of this
14 Agreement shall not affect the validity of other term(s) or condition(s) of this Agreement The above
15 referenced Recitals are true and correct and are incorporated by reference herein
16 B AUTHORITY's failure to insist on any instance(s) of CITY's performance of any term(s)
17 or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY's
18 right to such performance or to future performance of such term(s) or condition(s), and CITY's obligation
19 in respect thereto shall continue in full force and effect Changes to any portion of this Agreement shall
20 not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized
21 representative of AUTHORITY by way of a written amendment to this Agreement and issued in
22 accordance with the provisions of this Agreement
23 C CITY's failure to insist on any instance(s) of AUTHORITY's performance of any term(s)
24 or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY's right to
25 such performance or to future performance of such term(s) or condition(s), and AUTHORITY's
26 obligation in respect thereto shall continue in full force and effect Changes to any portion of this
Page 3 of 11
AGREEMENT NO. C-5-3471
1 Agreement shall not be binding upon CITY except when specifically confirmed in writing by an
2 authorized representative of CITY by way of a written amendment to this Agreement and issued in
3 accordance with the provisions of this Agreement
4 ARTICLE 2. SCOPE OF AGREEMENT
5 This Agreement specifies the roles and responsibilities of the Parties as they pertain to the
6 subjects and projects addressed herein Both AUTHORITY and CITY agree that each will cooperate
7 and coordinate with the other in all activities covered by this Agreement and any other supplemental
8 agreements that may be required to facilitate purposes thereof
9 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
10 AUTHORITY agrees to the following responsibilities for PROJECT
11 A AUTHORITY shall formally request on behalf of CITY that the Southern California
12 Association of Governments (hereinafter referred to as "SCAG") amend the FTIP to program up to the
13 amount in accordance with the funding plan outlined in Exhibit A, whereby AUTHORITY's performance
14 under this Cooperative Agreement is contingent upon SCAG, Caltrans and FHWA approval
15 B AUTHORITY shall provide assistance to CITY in securing the RSTP funds
16 C AUTHORITY shall not be obligated to program any amount beyond what has been
17 identified in this Agreement and what is ultimately approved for the PROJECT by Caltrans and FHWA
18 D AUTHORITY shall process any required FTIP amendments
19 E AUTHORITY shall review and approve CITY's request for obligation of RSTP funds prior
20 to submittal to Caltrans District 12
21 F AUTHORITY may cancel projects for which CITY has not submitted request for
22 authorization to proceed (hereinafter referred to as "E-76 Request") or has not advanced PROJECT to
23 ready-to-list stage as determined by Caltrans guidelines by February 1 of the fiscal year identified in
24 Exhibit A as required in Article 4, paragraph E
25 /
26 /
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AGREEMENT NO. C-5-3471
1 ARTICLE 4. RESPONSIBILITIES OF CITY
2 CITY agrees to the following responsibilities for PROJECT
3 A CITY shall act as the lead agency for the construction engineering, construction and
4 construction management of PROJECT
5 B CITY shall comply with all local, state, and federal project delivery requirements
6 including but not limited to Disadvantaged Business Enterprise, American with Disabilities Act, and Buy
7 America provisions
8 C CITY shall submit National Environmental Policy Act (NEPA) and the California
9 Environmental Quality Act (CEQA) environmental documentation to Caltrans for approval by November
10 1 of the programming fiscal year as provided in the project schedule in Exhibit A
11 D CITY is responsible for preparing and submitting to AUTHORITY an Engineer's
12 Estimate of PROJECT cost ninety (90) days prior to E-76 Request, and no later than November 1 of the
13 fiscal year identified in Exhibit A
14 E CITY is responsible for preparing and submitting all necessary Caltrans-required
15 documentation including E-76 Request CITY agrees to submit an E-76 Request to Caltrans District 12
16 by February 1 of the fiscal year identified in Exhibit A
17 F CITY acknowledges that if the E-76 Request is not submitted to Caltrans with a copy to
18 AUTHORITY by February 1, or CITY has not advanced PROJECT to ready-to-list stage as determined
19 through Caltrans guidelines by this date, the proposed funding shall be cancelled by AUTHORITY
20 G CITY acknowledges that they will not advertise for construction until the E-76 request is
21 approved by FHWA
22 H CITY shall provide Seventy-One Percent (71%) of the Construction costs in CITY funds
23 as the required local match consistent with Exhibit A Any savings recognized in the Construction
24 Phase will be credited or reimbursed proportionally to the amount contributed to the Construction phase
25 by each fund type
26 1 CITY shall invoice Caltrans at minimum once every six (6) months
Page 5 of 11
AGREEMENT NO. C-5-3471
1 J CITY agrees that any cost overruns shall be the responsibility of CITY
2 K CITY shall submit semi-annual status reports for PROJECT to AUTHORITY due on
3 March 1 for the prior six-month (6) period (July through December), and due on September 1 for the
4 prior six-month (6) period (January through June), (EXHIBIT B, entitled "Arterial Pavement
5 Management Program Semi-Annual Report Form")
6 L CITY shall submit a final report to AUTHORITY within six (6) months of Caltrans
7 payment of final progress invoice for PROJECT in accordance with Exhibit C, entitled "Arterial
8 Pavement Management Program Final Project Report Form "
9 M CITY is responsible for completing PROJECT in accordance with the funding plan
10 (EXHIBIT A), and to abide by Caltrans Local Assistance Procedure Manual, all RSTP programming
11 guidelines, and any and all other federal, state, and Caltrans requirements
12 N CITY shall comply with all Federal, third party contracting laws and regulations pursuant
13 to FTA Circular 4220 1 F and in accordance with Exhibit D, entitled "Federal Clauses"
14 ARTICLE 5. DELEGATED AUTHORITY
15 The actions required to be taken by CITY in the implementation of this Agreement are
16 delegated to its Public Works Director, or designee, and the actions required to be taken by
17 AUTHORITY in the implementation of this Agreement are delegated to AUTHORITY's Chief Executive
18 Officer or designee
19 ARTICLE 6. AUDIT AND INSPECTION
20 AUTHORITY and CITY shall maintain a complete set of records in accordance with generally
21 accepted accounting principles Upon reasonable notice, CITY shall permit the authorized
22 representatives of AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, and
23 other data and records of CITY for a period of four (4) years after final payment by Caltrans, or until any
24 on-going audit is completed For purposes of audit, the date of completion of this Agreement shall be
25 the date of CITY's payment of AUTHORITY's final billing (so noted on the invoice) under this
26 Agreement AUTHORITY shall have the right to reproduce any such books, records, and accounts The
Page 6 of 11
AGREEMENT NO. C-5-3471
1 above provision with respect to audits shall extend to and/or be included in contracts with CITY's
2 contractor
3 ARTICLE 7. INDEMNIFICATION
4 A To the fullest extent permitted by law, CITY shall defend (at CITY's sole cost and
5 expense with legal counsel reasonably acceptable to AUTHORITY), indemnify, protect, and hold
6 harmless AUTHORITY, its officers, directors, employees, and agents (collectively the "Indemnified
7 Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs,
8 judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses
9 including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising
10 from injuries to or death of persons (CITY's employees included), for damage to property, including
11 property owned by AUTHORITY, or from any violation of any federal, state, or local law or ordinance,
12 alleged to be caused by the negligent acts, omissions or willful misconduct of CITY, its officers,
13 directors, employees or agents in connection with or arising out of the performance of this Agreement
14 B To the fullest extent permitted by law, AUTHORITY shall defend (at AUTHORITY's sole
15 cost and expense with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold
16 harmless CITY, its officers, directors, employees, and agents (collectively the "Indemnified Parties"),
17 from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments,
18 arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal
19 costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to
20 or death of persons (AUTHORITY's employees included), for damage to property, including property
21 owned by CITY, or from any violation of any federal, state, or local law or ordinance, alleged to be
22 caused by the negligent acts, omissions or willful misconduct of AUTHORITY, its officers, directors,
23 employees or agents in connection with or arising out of the performance of this Agreement
24 C The indemnification and defense obligations of this Agreement shall survive its
25 expiration or termination
26 /
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AGREEMENT NO. C-5-3471
1 ARTICLE 8. ADDITIONAL PROVISIONS
2 A Term of Agreement This Agreement shall be effective, upon execution by both Parties,
3 and shall be in full force and effect through December 2018 or until final acceptance by AUTHORITY,
4 whichever is later
5 B Termination In the event either Party defaults in the performance of their obligations
6 under this Agreement or breaches any of the provisions of this Agreement, the non-defaulting Party
7 shall have the option to terminate this Agreement upon thirty (30) days' prior written notice to the other
8 Party
9 1C Termination for Convenience Either Party may terminate this Agreement for its
10 convenience by providing thirty (30) days' prior written notice of its intent to terminate for convenience to
11 the other Party, provided that all outstanding requests for funding or project approvals by CITY pursuant
12 to this Agreement have been satisfied
13 D Amendments This Agreement may be amended in writing at any time by the mutual
14 consent of both Parties No amendment shall have any force or effect unless executed in writing by
15 both Parties
16 E Compliance AUTHORITY and CITY shall comply with all applicable federal, state, and
17 local laws, statues, ordinances and regulations of any governmental authority having
18 jurisdiction over the PROJECT
19 F Legal Authority AUTHORITY and CITY hereto consent that they are authorized to
20 execute this Agreement on behalf of said Parties and that, by so executing this Agreement, the Parties
21 hereto are formally bound to the provisions of this Agreement
22 G Severabihty If any term, provision, covenant or condition of this Agreement is held to be
23 invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the
24 remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or
25 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law
26 H Counterparts of Agreement This Agreement may be executed and delivered in any
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AGREEMENT NO. C-5-3471
1 number of counterparts, each of which, when executed and delivered shall be deemed an original and
2 all of which together shall constitute the same agreement Facsimile or electronic signatures will be
3 permitted
4 1 Force Majeure Either Party shall be excused from performing its obligations under this
5 Agreement during the time and to the extent that it is prevented from performing by an unforeseeable
6 cause beyond its control, including but not limited to, any incidence of fire, flood, acts of God,
7 commandeering of material, products, plants or facilities by the federal, state or local government,
8 'rnational fuel shortage, or a material act or omission by the other Party, when satisfactory evidence of
9 `such cause is presented to the other Party, and provided further that such nonperformance is
10 unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing
11 J Assignment Neither this Agreement, nor any of the Parties' rights, obligations, duties,
12 or authority hereunder may be assigned in whole or in part by either Party without the prior written
13 consent of the other Party in its sole and absolute discretion Any such attempt of assignment shall be
14 deemed voidtand of no force and effect Consent to one assignment shall not be deemed consent to
15 any subsequent assignment, nor the waiver of any right to consent to such subsequent assignment
16 K Governing Law The laws of the State of California and applicable local and federal
17 laws, regulations and guidelines shall govern this Agreement
18 L Attorney's Fees In the event suit is brought by either party to construe, interpret and/or
19 enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party
20 shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its
21 attorney's fees from the non-prevailing party
22 M Notices Any notices, requests, or demands made between the Parties pursuant to this
23 Agreement are to be directed as follows
24 /
25 /
26 /
Page 9 of 11
AGREEMENT NO. C-5-3471
1
To CITY: To AUTHORITY:
2 City of Huntington Beach
Orange County Transportation Authority
3 Attn Public Works Department
4 2000 Main Street 550 South Main Street
5 Huntington Beach, CA 92648 P O Box 14184
6 Orange, CA 92863-1584
7 Attention Todd Broussard Attention Ben Ku
Principal Engineer Senior Transportation Funding Analyst
8 Tel 714-536-5247 Tel (714) 560-5473
E-mail tbroussard@surfcity-hb org E-mad Bku(a)-octa net
9
10
11
12
13
14 /
15 /
16 /
17 /
18 /
19 /
20 /
21 /
22 /
23 /
24 /
25 /
26 /
Page 10 of 11
AGREEMENT NO. C-5-3471
1 This Agreement shall be made effective upon execution by both Parties
2 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement No C-5-3471 to be
3 executed on the date first written above
4 CITY OF HUNTINGTON BEACH ORANGE COU TRANSPORTATION AUTHORITY
5
6 By By
J rdy Darrell J ns
7 a or Chief Exo ive Officer
8
9
10 ATTEST: APPROVED AS TO FORM:
11
12 By
13tJoan lynn ames M Donich
Clerk General Counsel
14
APPROVED AS TO FORM APPROVAL RECOMM DED:
15
16
By By
17 ichael Gates Kia Mortazavi
18 City Attorney ��/ $ �� Executive Director, Planning
19 I
20 Dated Dated '7—M
21
22
23
24
25
26
Page 11 of 11
AGREEMENT NO. C-5-3471
EXHIBIT A
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
SEMI-ANNUAL REPORT FORM
Project Title: Edinger Avenue Rehabilitation from Graham Street to
Springdale Street and Warner Avenue from Beach Boulevard to
Newland Street Project
Agency: Huntington Beach
Date:
Schedule Original
Completion
Date
Begin Environmental Document 2/1/15
Final Environmental Document 11/1/15
Begin Design Engineering Started
Plans Specifications, and Estimates Complete 6/1/15
Submit Request for Authorization to Proceed E-76 2/1/16
Begin Construction 2/1/16
End Construction 6/1/16
Construction $000's
Fund Source Fiscal Planned
Year Obligation
RSTP FY15/16 $500,000
Local Match 71% FY15/16 $1,208,083
TOTAL $1,708,083
Date 1 By
Project Manager
AGREEMENT NO. C-5-3471
EXHIBIT B
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
SEMI-ANNUAL REPORT FORM
Project Title: Edinger Avenue Rehabilitation from Graham Street to
Springdale Street and Warner Avenue from Beach Boulevard to
Newland Street Project
Agency: Huntington Beach
Date:
Schedule Original Current
Completion Completion
Date Date
-Be in Environmental Document 2/1/15
Final Environmental Document 11/1/15
Begin Design Engineering Started
Plans Specifications, and Estimates Complete 6/1/15
Submit Request for Authorization to Proceed E-76 2/1/16
Begin Construction 2/1/16
End Construction 6/1/16
Construction $000's
Fund Source Fiscal Planned Revised Actual Remaining
Year Obligation Obligation Expenditure Allocation
RSTP FY15/16 $500,000
Local Match 71% FY15/16 $1,208,083
TOTAL $1,708,083
Major Activities
Status
Issues
Name/Title
Phone Email
Note OCTA may require additional information on performance of the pro)ect related to either air quality or transportation
usage
AGREEMENT NO. C-5-3471
EXHIBIT C
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
F0 FINAL PROJECT REPORT FORM
Date
OCTA
Instructions
The responsible agency should fill out the following 1) Final Project Form, 2) Final Cost, 3) Certificate of
Completion Page 4, the OCTA Staff Verification will be filled out by OCTA staff In addition, the agency must
attach before(if available) and after photographs of the project site and the address or location of the site under
the Location and Scope of work section
Agency
Project
F I I
Location and Scope of Work
Verification of Match
(Actual Expenditures)
,.=�-i,i s - 9 �3rV SeF r a r r ^k. q }.- A a'h-."�ie x#• ,a� _ - r-,r, �,x w`:a "+' ,a'�:o,.,r,."`"' ' �''?4u! �cP`�t
ther°y '
OCTA� + ',,
'M atc�'h
a
dn" 2STPf Fu Phase,
AE
zT>,otala�;,i2atea,,,r,3
Engineering $ - $ - $ - $ - $ - $ - 0%
Right-of-Way $ - $ - $ - $ - $ - $ -
Construction $ - $ - $ - $ - $ - $ -
Total $ - $ - $ - $ - $ - $ -
Project Schedule
Pha's'e
Draft Environmental Document
Final Environmental Document
Begin Design Engineering
Plans, Specifications, and Cost Estimates complete
Start Right-of-Way Acquisition
Tight-of-Way Certification
Ready to Advertise
Award Construction
Project Completion (open for use)
Page 1
i
AGREEMENT NO. C-5-3471
EXHIBIT C
APM: Final Cost
OCTA
Item # Description Unit Quantity Unit Price Amount
Page 1
AGREEMENT NO. C-5-3471
EXHIBIT C
APM: FINAL COST
OCTA
I hereby certify that the statements provided here are true and correct
Proiect Title
Yes No N/A
1 The project is designed to city/county and other participating jurisdictions' standards ❑ ❑ ❑
2 The project contract was awarded on I ENTER DATE ❑ ❑ ❑
3 The total cost of the contract is equal to or less than the total APM ❑ ❑ ❑
funds awarded and matching funds provided
4 The city/county provided matching funds to the project ❑ ❑ ❑
5 Right-of-way was acquired in conformance with city/county procedures ❑ ❑ ❑
6 All required environmental documentation is complete and certified ❑ ❑ ❑
7 An updated project schedule is included with the final invoice El ❑ ❑
8 The final invoice is attached with all the necessary documentation ❑ ❑ ❑
Name
Title
Signature Date
Page 1
AGREEMENT NO. C-5-3471
EXHIBIT C
APM: OCTA Staff Verification
OCTA
OCTA STAFF USE ONLY
Orange County Transportation Authority staff has inspected the project site and
certifies that the project is complete and ready for use
Proiect Title
Name
Title
Signature Date
Page 1
AGREEMENT NO. C-5-3471
EXHIBIT D
REQUIRED FEDERAL CLAUSES
DEFINITIONS
The Orange County Transportation Authority, (hereinafter referred to as "AUTHORITY")
, (hereinafter referred to as "CITY")
ARTICLE 1. FEDERAL CHANGES
CITY shall at all times comply with all applicable FTA regulations, policies, procedures
and directives, including without limitation those listed directly or by reference in the agreement
between the AUTHORITY and FTA , as they may be amended or promulgated from time to time
during this Agreement CITY's failure to comply shall constitute a material breach of contract
ARTICLE 2. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES
AUTHORITY and CITY acknowledge and agree that, notwithstanding any concurrence
by the Federal Government in or approval of the solicitation or award of the underlying
Agreement, absent the express written consent by the Federal Government, the Federal
Government is not a party to this Agreement and shall not be subject to any obligations or
liabilities to the AUTHORITY, CITY, or any other party (whether or not a party to this Agreement)
pertaining to any matter resulting from the underlying Agreement CITY agrees to include these
requirements in all of its subcontracts
ARTICLE 3. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND
RELATED ACTS
A CITY acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U S C §§3801 et seq and U S DOT regulations, "Program Fraud Civil
Remedies," 49 C F R Part 31, apply to its actions pertaining to this project Accordingly, by
signing this Agreement, CITY certifies or affirms the truthfulness and accuracy of any statement it
has made, it makes, it may make, or causes to be made, pertaining to the underlying Agreement
of the FTA assisted project for which this Agreement's work is being performed CITY also
acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim,
statement, submission, or certification, the Federal Government reserves the right to impose
penalties of the Program Fraud Civil Remedies Act of 1986 on the CITY to the extent the Federal
Government deems appropriate
B CITY also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under an
agreement connected with a project that is financed in whole or part with Federal assistance
awarded by FTA under the authority of 49 U S C §5307 et seq , the Government reserves the
right to impose the penalties of 18 U S C §1001 and 49 U S C §5307(n) (1) et seq on the CITY,
to the extent the Federal Government deems appropriate CITY agrees to include this
requirement in all of its subcontracts
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AGREEMENT NO. C-5-3471
EXHIBIT D
ARTICLE 4. CIVIL RIGHTS ASSURANCE
During the performance of this Agreement, CITY, for itself, its assignees and successors
in interest agree as follows
A Compliance with Regulations CITY shall comply with the Regulations relative to
nondiscrimination in federally assisted programs of the Department of Transportation
(hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended
from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by
reference and made a part of this Agreement
B Nondiscrimination CITY, with regard to the work performed by it during the
Agreement, shall not discriminate on the grounds of race, color, or national origin in the selection
and retention of subcontractors, including procurements of materials and leases of equipment
The CITY shall not participate either directly or indirectly in the discrimination prohibited by
Section 21 5 of the Regulations, including employment practices when the Agreement covers a
program set forth in Appendix B of the Regulations
C Solicitations for Subcontracts Including g Procurement of Materials and Equipment In
all solicitations either by competitive bidding or negotiation made by the CITY for work to be
performed under a subcontract, including procurements of materials or leases of equipment,
each potential subcontractor or supplier shall be notified by the CITY of the CITY's obligations
under this Agreement and the Regulations relative to nondiscrimination on the grounds of race,
color, or national origin
D Information and Reports CITY shall provide all information and reports required by
the Regulations or directives issued pursuant thereto, and shall permit access to its books,
records, accounts, other sources of information and its facilities as may be determined by the
AUTHORITY to be pertinent to ascertain compliance with such Regulations, orders and
instructions Where any information required of a CITY is in the exclusive possession of another
who fails or refuses to furnish this information the CITY shall so certify to the AUTHORITY as
appropriate, and shall set forth what efforts it has made to obtain the information
E Sanctions for Noncompliance In the event of the CITY's noncompliance with
nondiscrimination provisions of this Agreement, the AUTHORITY shall impose Agreement
sanctions as it may determine to be appropriate, including, but not limited to
1 Withholding of payments to the CITY under the Agreement until the CITY
complies, and/or
2 Cancellation, termination, or suspension of the Agreement, in whole or in part
F Title VI of the Civil Rights Act In determining the types of property or services to
acquire, no person in the United States shall, on the grounds of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or otherwise be subjected to
discrimination under any program or activity receiving Federal financial assistance in violation of
Title VI of the Civil Rights Act of 1964, as amended, 42 U S C Sections 2000d et seq and DOT
regulations, "Nondiscrimination in Federally Assisted Programs of the Department of
Transportation—Effectuation of Title VI of the Civil Rights Act of 1964," 49 CFR Part 21 in
addition, FTA Circular 4702 1, "Title VI and Title VI-Dependent Guidelines for FTA Recipients,"
05-13-07, provides FTA guidance and instructions for implementing DOT's Title VI regulations
G The Americans with Disabilities Act of 1990, as amended (ADA), 42 U S C Sections
12101 et seq , prohibits discrimination against qualified individuals with disabilities in all
programs, activities, and services of public entities, as well as imposes specific requirements on
public and private providers of transportation
H Incorporation of Provisions CITY shall include the provisions of paragraphs (A)
through (H) in every subcontract, including procurements of materials and leases of equipment,
unless exempt by the Regulations, or directives issued pursuant thereto The CITY shall take
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AGREEMENT NO. C-5-3471
EXHIBIT D
such action with respect to any subcontract or procurement as the AUTHORITY may direct as a
means of enforcing such provisions including sanctions for noncompliance Provided, however,
that in the event a CITY becomes involved in, or is threatened with, litigation with a subcontractor
or supplier as a result of such direction, the CITY may request the AUTHORITY to enter into
such litigation to protect the interests of the AUTHORITY, and, in addition, the CITY may request
the United States to enter into such litigation to protect the interests of the United States
ARTICLE 5. DBE CONTRACT PROVISIONS FOR FTA-ASSISTED CONTRACTS WITH
DISADVANTAGED BUSINESS ENTERPRISE (DBE) GOALS
I DBE Participation
It is the Consultant's responsibility to be fully informed regarding the requirements of 49 CFR,
Part 26 'and the Orange County Transportation Authority's (Authority's) DBE program
developed pursuant to these regulations Particular attention is directed to the following
A A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified
through the California Unified Certification Program (CUCP)
B A certified DBE may participate as a prime consultant, subconsultant, joint venture
partner, as a vendor of material or supplies, or as a trucking company
C A DBE must perform a commercially useful function pursuant to 49 CFR 26 55 that is, a
DBE firm must be responsible for the execution of a distinct element of the work and must
carry out its responsibility by actually performing, managing and supervising the work
D Consultant must not claim DBE participation as attained until the amount to be claimed is
paid and fully adheres to DBE crediting provisions
If the Consultant has committed to utilize DBE(s) in the performance of this DOT-assisted
contract, the Consultant's submitted "DBE Participation Commitment Form"will be utilized to
monitor Consultant's DBE commitments, unless otherwise directed and/or approved by the
Authority prior to the Consultant effectuating any changes to its DBE participation
commitment(s) (Refer to Subsection H "Performance of DBE Subconsultants')
Consultant must complete and submit all required DBE documentation to effectively capture
all DBE utilization on the Authority's DOT-assisted contracts whether achieved race neutrally
or race consciously Even if a Consultant has not committed to utilize DBE(s) in the
performance of this contract, the Consultant must execute and submit all required DBE forms
and other related documentation as specified under this contract or as otherwise requested
by the Authority No changes to the Consultant's DBE Commitment must be made until
proper protocols for review and approval of the Authority are rendered in writing
To ensure full compliance with the requirements of 49 CFR, Part 26 and the Authority's DBE
Program, the Consultant must
A Take appropriate actions to ensure that it will continue to meet the DBE Commitment
at the minimal level committed to at award or will satisfy the good faith efforts to meet
the DBE Commitment, when change orders or other contract modifications alter the
dollar amount of the contract or the distribution of work The Consultant must apply and
report its DBE goal commitments against the total Contract Value, including any contract
change orders and/or amendments
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AGREEMENT NO. C-5-3471
EXHIBIT D
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.
III Authority's DBE Policy ImRIementation 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
Orange County Transportation Authority 4
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AGREEMENT NO. C-5-3471
EXHIBIT D
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 Amencans, 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
I Definitions
The following definitions apply to the terms used in these provisions
1. "Disadvantaged Business Enterprise (DBE)" means a small business concern (a)
which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals or, in the case of any publicly-owned business, at least 51
percent of the stock of which is owned by one or more socially and economically
disadvantaged individuals, and (b) whose management and daily business operations
are controlled by one or more of the socially and economically disadvantaged individuals
who own it
2. "Small Business Concern"means a small business as defined pursuant to Section 3 of
the Small Business Act and relevant regulations promulgated pursuant thereto, except
that a small business concern must not include any concern or group of concerns
controlled by the same socially and economically disadvantaged individual or individuals
which has annual average gross receipts in excess of $19 57 million over the previous
three fiscal years
3. "Socially and Economically Disadvantaged Individuals"means those individuals who
are citizens of the United States (or lawfully admitted permanent residents) and who are
Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, or
Asian-Indian Americans, women and any other minorities or individuals found to be
disadvantaged by the Small Business Administration pursuant to Section 8(a) of the
Small Business Act, or by the Authority pursuant to 49 CFR part 26 65 Members of the
following groups are presumed to be socially and economically disadvantaged
A "Black Americans," which includes persons having origins in any of the Black racial
groups of Africa,
B "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban,
Central or South American, or other Spanish or Portuguese culture or origin,
regardless of race,
C "Native Americans," which includes persons who are American Indians, Eskimos,
Aleuts, or Native Hawaiians,
D "Asian-Pacific Americans," which includes persons whose origins are from Japan,
China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the
U S Trust Territories of the Pacific, and the Northern Marianas,
Orange County Transportation Authority 5
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AGREEMENT NO. C-5-3471
EXHIBIT D
E "Asian-Indian Americans," which includes persons whose origins are from India,
Pakistan, and Bangladesh, and
F Women, regardless of ethnicity or race
4. "Owned and Controlled" means a business (a) which is at least 51 percent owned by
one or more "Socially and Economically Disadvantaged Individuals" or, in the case of a
publicly-owned business, at least 51 percent of the stock of which is owned by one or
more "Socially and Economically Disadvantaged Individuals", and (b) whose
management and daily business operations are controlled by one or more such
individuals
5. "Manufacturer" means a firm that operates or maintains a factory or establishment that
produces on the premises the materials or supplies obtained by the Consultant
6. "Regular Dealer" means a firm that owns, operates or maintains a store, warehouse, or
other establishment in which the materials or supplies required for the performance of the
contract are bought, kept in stock, and regularly sold to the public in the usual course of
business The firm must engage in, as its principal business, and in its own name, the
purchase and sale of the product in question A regular dealer in such bulk items as steel,
cement, gravel, stone and petroleum products need not keep such products in stock if it
owns or operates distribution equipment
7. "Fraud"includes a firm that does not meet the eligibility criteria of being a certified DBE
and that attempts to participate in a DOT-assisted program as a DBE on the basis of
false, fraudulent, or deceitful statements or representations or under circumstances
indicating a serious lack of business integrity or honesty The Authority may take
enforcement action under 49 CFR, Part 31, Program Fraud and Civil Remedies, against
any participant in the DBE program whose conduct is subject to such action under 49
CFR, Part 31 The Authority may refer the case to the Department of Justice, for
prosecution under 18 U S C 1001 or other applicable provisions of law, any person who
makes a false or fraudulent statement in connection with participation of a DBE in any
DOT-assisted program or otherwise violates applicable Federal statutes
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
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
Orange County Transportation Authority 6
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AGREEMENT NO. C-5-3471
EXHIBIT D
fleeting or insignificant
5 The individual's social disadvantage must have negatively affected his/her entry into
and/or advancement in the business world
6 A determination of social disadvantage must be made before proceeding to make a
determination of economic disadvantage
B. "Economic Disadvantage"
1 The individual's ability to compete in the free enterprise system has been impaired due to
diminished capital and credit opportunities, as compared to others in the same line of
business and competitive market area that are not socially disadvantaged
2 The following criteria will be considered when determining the degree of diminished credit
and capital opportunities of a person claiming social and economic disadvantage
With respect to the individual
• availability of financing bonding capability
• availability of outside equity capital
• available markets
` With respect to the individual and the business concern
• personal and business assets
• personal and business net worth
• personal and business income and profits
IV. Submission of DBE Information and Ongoing Reporting Requirements (Post-Award)
If there is a DBE goal on the contract, Consultant must complete and submit the following
DBE exhibits (forms) consistent with Consultant DBE Goal Commitment within the
specified timelines Even if no DBE participation will be reported, the Consultant must
execute and return the form
1. "Monthly DBE Subconsultant Commitment and Attainment Report Summary and
Payment Verification " (Form 103)
The purpose of this form is to ensure Consultant DBE commitments are attained, properly
reported and credited in accordance with DBE crediting provisions based on the capacity
the DBE performs the scope of work/service This form further serves to collect DBE
utilization data required under 49 CFR, Part 26
The Consultant is required to complete and submit a Form 103 to the Authority by the 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
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AGREEMENT NO. C-5-3471
EXHIBIT D
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
Consultant is advised not to report the participation of DBE(s) toward the
Consultant's DBE attainment until the amount being claimed has been paid to
the DBE Verification of payments and/or a signed Verification of Payment by
the applicable DBE or Non DBE must be submitted with Form 103 to
authenticate reported payments
3. DBE Subcontract Agreements
The Consultant must submit to the Authority copies of executed subcontracts
and/or purchase orders (PO) for all DBE firms participating on the contract
within ten working days of award The Consultant must immediately notify the
Authority in writing of any problems it may have in obtaining the subcontract
agreements from listed DBE firms within the specified time
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AGREEMENT NO. C-5-3471
EXHIBIT D
4. "Monthly DBE Trucking Verification" Form
Prior to the 10th of each month, the Consultant must submit documentation on
the "Monthly DBE Trucking Verification" Form to the Authority showing the
amount paid to DBE trucking companies The Consultant must also obtain and
submit documentation to the Authority showing the amount paid by DBE
trucking companies to all firms, including owner-operators, for the leasing of
trucks If the DBE leases trucks from a non-DBE, the Contactor may count
only the fee or commission the DBE receives as a result of the lease
arrangement
The Consultant must also obtain and submit documentation to the Authority
showing the truck number, owner's name, California Highway Patrol CA
number, and if applicable, the DBE certification number of the owner of the
truck for all trucks used during that month
5. "Final Report-Utilization of Disadvantaged Business Enterprises (DBE),
First Tier Subconsultants"
Upon completion of the contract, a summary of these records must be
prepared on the Final Report-Utilization of Disadvantaged Business
Enterprises (DBE), First Tier Subconsultants" and certified correct by the
Consultant or the Consultant's authorized representative, and must be
furnished to the Engineer The form must be furnished to the Authority within
90 days from the date of contract acceptance The amount of $10,000 will be
withheld from payment until a satisfactory form is submitted
6. "Disadvantaged Business Enterprises (DBE) Certification Status
Change"
If a DBE Sub is decertified during the life of the project, the decertified
Subconsultant must notify the Consultant in writing with the date of
decertification If a Subconsultant becomes a certified DBE during the life of
the project, the Subconsultant must notify the Consultant in writing with the
date of certification (Attach DBE certification/Decertification letter) The
Consultant must furnish the written documentation to the AUTHORITY
Upon completion of the contract, the "Disadvantaged Business Enterprises
(DBE) Certification Status Change" must be signed and certified correct by the
Consultant indicating the DBEs' existing certification status If there are no
changes, please indicate "No Changes" The certified form must be furnished
to the Authority within 90 days from the date of contract acceptance
V DBE Eligibility and Commercially Useful Function Standards
A DBE must be certified at the time of Proposal submission
1 A certified DBE must be a small business concern as defined pursuant to Section 3 of the
U S Small Business Act and relevant regulations promulgated pursuant thereto
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2 A DBE may participate as a Prime Consultant, Subconsultant, joint venture partner with a
Prime or Subconsultant, vendor of material or supplies, or as a trucking company
3 A DBE joint venture partner must be responsible for specific contract items of work, or
clearly defined portions thereof Responsibility means actually performing, managing and
supervising the work with its own forces The DBE joint venture partner must share in the
capital contribution, control, management, risks and profits of the joint venture
commensurate with its ownership interest
4 At time of proposal submission, DBEs must be certified by the California Unified
Certification Program (CUCP) Listings of DBEs certified by the CUCP are available from
the following sources
A The CUCP web site, which can be accessed at http//www californiaucp com, or the
Caltrans"Civil Rights" web site at http//www dot ca gov/hq/bep
5 A DBE must perform a commercially useful function in accordance with 49 CFR 26 55
,f 0 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
x' own workforce to presume it is performing a commercially useful function
VI DBE Crediting Provisions
1 When a DBE is proposed to participate in the contract, either as a Prime Consultant or
Subconsultant, at any tier, only the value of the work proposed to be performed by the
DBE with its own forces may be counted towards DBE participation If the Consultant is a
DBE joint venture participant, only the DBE proportionate interest in the joint venture must
be counted
2 If a DBE intends to subcontract part of the work of its subcontract to a lower-tier
Subconsultant, the value of the subcontracted work may be counted toward DBE
participation only if the Subconsultant is a certified DBE and actually performs the work
with their own forces Services subcontracted to a Non-DBE firm may not be credited
toward the Prime Consultant's DBE attainment
3 Consultant is to calculate and credit participation by eligible DBE vendors of equipment,
materials, and suppliers toward DBE attainment, as follows
A Sixty percent (60%) of expenditure(s) for equipment, materials and supplies required
under the Contract, obtained from a regular dealer, or
B One hundred percent (100%) of expenditure(s) for equipment, materials and supplies
required under the Contract, obtained from a DBE manufacturer
4 The following types of fees or commissions paid to DBE Subconsultants, Brokers, and
Packagers may be credited toward the prime Consultant's DBE attainment, provided that
the fee or commission is reasonable, and not excessive, as compared with fees or
commissions customarily allowed for similar work, including
A Fees and commissions charged for providing bona fide professional or technical
services, or procurement of essential personnel, facilities, equipment, materials, or
supplies required in the performance of the Contract,
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B Fees charged for delivery of material and supplies (excluding the cost of materials or
supplies themselves) when the licensed hauler, trucker, or delivery service is not also
the manufacturer of, or a regular dealer in, the material and supplies,
C Fees and commissions charged for providing any insurance specifically required in
the performance of the Contract
5 Consultant may count the participation of DBE trucking companies toward DBE
attainment, as follows
A The DBE must be responsible for the management and supervision of the entire
trucking operation for which it is responsible on a particular contract
B The DBE must itself own and operate at least one fully licensed, insured, and
operational truck used on the contract
C The DBE receives credit for the total value of the transportation services it provides
on the contract using trucks it owns, insures, and operates using drivers it employs
D The DBE may lease trucks from another DBE firm, including an owner-operator who
is certified as a DBE The DBE who leases trucks from another DBE receives credit
for the total value of the transportation services the lessee DBE provides on the
contract
E The DBE may also lease trucks from a non-DBE firm, including an owner-operator
ThesDBE who leases trucks from a non-DBE is entitled to credit only for the fee or
commission it receives as a result of the lease arrangement The DBE does not
receive credit for the total value of the transportation services provided by the lessee,
since these services are not provided by a DBE
F For purposes of this paragraph, a lease must indicate that the DBE has exclusive use
of and control over the truck This does not preclude the leased truck from working
for others during the term of the lease with the consent of the DBE, so long as the
lease gives the DBE absolute priority for use of the leased truck Leased trucks must
display the name and identification number of the DBE
6 If the Consultant listed a non-certified 1st tier Subconsultant to perform work on this
contract, and the non-certified Subconsultant subcontracts a part of its work or purchases
materials and/or supplies from a lower tier DBE certified Subconsultant or Vendor, the
value of work performed by the lower tier DBE firm's own forces can be counted toward
DBE participation on the contract If a DBE Consultant performs the installation of
purchased materials and supplies they are eligible for full credit of the cost of the
materials
VII Performance of DBE Subconsultants
DBEs must perform work or supply materials as listed in the "DBE Participation Commitment
Form" specified under"DBE Proposal Submission Requirements"of these special provisions
Do not terminate a DBE listed Subconsultant for convenience and perform the work with your
own forces or obtain materials from other sources without prior written authorization from the
AUTHORITY
The AUTHORITY grants authorization to use other forces or sources of materials for
requests that show any of the following justifications (written approval from the AUTHORITY
must be obtained prior to effectuating a substitution)
1 Listed DBE fails or refuses to execute a written contract based on plans and
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specifications for the project
2 You stipulate a bond is a condition of executing the subcontract and the listed DBE
fails to meet your bond requirements
3 Work requires a Consultants' license and listed DBE does not have a valid license
under Consultants License Law
4 Listed DBE fails or refuses to perform the work or furnish the listed materials
5 Listed DBE's work is unsatisfactory and not in compliance with the contract
6 Listed DBE delays or disrupts the progress of the work
7 Listed DBE becomes bankrupt or insolvent
If a listed DBE Subconsultant is terminated, you must make good faith efforts to find another
DBE Subconsultant to substitute for the original DBE The substitute DBE must perform at
least the same amount of work as the original DBE under the contract to the extent needed to
meet the DBE goal
The substitute DBE must be certified as a DBE at the time of request for substitution The
AUTHORITY does not pay for work or material unless it is performed or supplied by the listed
DBE, unless the DBE is terminated in accordance with this section
VIII Additional DBE Subconsultants
In the event Consultant identifies additional DBE Subconsultants or suppliers not previously
identified by Consultant for DBE participation under the contract, Consultant must notify the
Authority by submitting Request for Additional DBE Firm to enable Consultant to capture all
DBE participation Consultant must also submit, for each DBE identified after contract
execution, a written confirmation from the DBE acknowledging that it is participating in the
contract for a specified value, including the corresponding scope of work (a subcontract
agreement can serve in lieu of the written confirmation)
IX DBE "Frauds" and "Fronts"
Only legitimate DBEs are eligible to participate as DBEs in the Authority's federally -assisted
contracts Proposers are cautioned against knowingly and willfully using "fronts" The use of
"fronts" and "pass through" subcontracts to non-disadvantaged firms constitute criminal
violations Further, any indication of fraud, waste, abuse or mismanagement of Federal funds
should be immediately reported to the Office of Inspector General, U S Department of
Transportation at the toll-free hotline (800) 424-9071, or to the following 245 Murray Drive,
Building 410, Washington, DC 20223, Telephone (202) 406-570
X Consultant's Assurance Clause Regarding Non-Discrimination
In compliance with State and Federal anti-discrimination laws, the Consultant must affirm that
they will not exclude or discriminate on the basis of race, color, national origin, or sex in
consideration of contract award opportunities Further, the Consultant must affirm that they
will consider, and utilize Subconsultants and vendors, in a manner consistent with non-
discrimination objectives
XI Prompt Payment Clause
Upon receipt of payment by Authority, Consultant agrees to promptly pay each Subconsultant
for the satisfactory work performed under this Agreement, no later than seven (7) calendar
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days Consultant agrees further to return retainage payments to each Subconsultant within
thirty (30) calendar days after the Subconsultant's work is satisfactorily completed Authority
reserves the right to request the appropriate documentation from Consultant showing
payment has been made to the Subconsultants Any delay or postponement of payment
from the above referenced time frames may occur only for good cause following written
approval by Authority
In accordance with 49 CFR part 26 29 "Prompt Payment Provisions" (DBE Final Rule) the
Authority will elect to utilize the following method to comply with the prompt payment of
retainage requirement
Hold retainage from the Consultant and provide for prompt and regular incremental
acceptances of portions of the Consultant, pay retainage to prime Consultants based on
these acceptances, and require a contract clause obligating the Consultant to pay all
retainage owed to the Subconsultants for satisfactory completion of the accepted work within
thirty (30) days after payment to the Consultant
Failure to comply with this provision or delay in payment without prior written approval from
Authority will constitute noncompliance, which may result in appropriate administrative
sanctions, including, but not limited to a withhold of two (2%) percent of the invoice amount
.5 due per month for every month that payment is not made
These prompt payment provisions must be incorporated in all subcontract agreements issued
by Consultant under this Agreement Each subcontract must require the Subconsultant to
make payments to sub-Subconsultants and suppliers in a similar manner
XII Administrative Remedies and Enforcement
Consultant must fully comply with the DBE contract requirements, including the Authority's
DBE Program and Title 49 CFR, Part 26"Participation of Disadvantaged Businesses in
Department of Transportation Financial Assistance Programs" and ensure that all
Subconsultants regardless of tier are also fully compliant Consultant's failure to comply
constitutes a material breach of contract, wherein the Authority will impose all available
administrative sanctions including payment withholdings, necessary to effectuate full
compliance In instances of identified non-compliance, a Cure Notice will be issued to the
Consultant identifying the DBE non-compliance matter(s) and specifying the required course
of action for remedy
The Consultant must be given ten (10) working days from the date of the Cure Notice to
remedy or to (1) File a written appeal accompanied with supporting documentation and/or (2)
Request a hearing with the Authority to reconsider the Authority's DBE determination Failure
to respond within the ten (10) working day period must constitute a waiver of the Consultant's
right to appeal If the Consultant files an appeal, the Authority, must issue a
written determination and/or set a hearing date within ten (10) working days of receipt of the
written appeal, as applicable A final Determination will be issued within ten (10)working days
after the hearing, as applicable
If, after review of the Consultant's appeal, the Authority decides to uphold the decision to
impose DBE administrative remedies on the Consultant, the written determination must state
the specific remedy(s)to be imposed
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Failure to comply with the Cure Notice and/or to remedy the identified DBE non-compliance
matter(s) is a material breach of contract and is subject to administrative remedies, including,
withholding at minimum of two (2%) percent of the invoice amount due per month for every
month that the identified non-compliance matter(s) is not remedied Upon satisfactory
compliance the Authority will release all withholdings
In addition to administrative remedies defined in this section, the Authority is not precluded
from invoking other contractual and/or legal remedies available under federal, state or local
laws
ARTICLE 6. ACCESS TO RECORDS AND REPORTS
CITY shall provide AUTHORITY, the U S Department of Transportation (DOT), the
Comptroller General of the United States, or other agents of AUTHORITY, such access to
CITY's accounting books, records, payroll documents and facilities of the CITY which are
directly pertinent to this Agreement for the purposes of examining, auditing and inspecting all
accounting,books, records, work data, documents and activities related hereto CITY shall
maintain such books, records, data and documents in accordance with generally accepted
accounting principles and shall clearly identify and make such items readily accessible to such
parties during CITY's performance hereunder and for a period of four (4) years from the date of
a' final payment by AUTHORITY AUTHORITY's right to audit books and records directly related
to this Agreement shall also extend to all first-tier subcontractors identified in this Agreement
CITY shall permit any of the foregoing parties to reproduce documents by any means
whatsoever or to copy excerpts and transcriptions as reasonably necessary
ARTICLE 7. INCORPORATION OF FTA TERMS
All contractual provisions required by Department of Transportation (DOT), whether or
not expressly set forth in this document, as set forth in Federal Transit Administration (FTA)
Circular 4220 1 F, as amended, are hereby incorporated by reference Anything to the contrary
herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement CITY shall not perform any act, fail
to perform any act, or refuse to comply with any requests, which would cause AUTHORITY to
be in violation of the FTA terms and conditions
ARTICLE 8. ENERGY CONSERVATION REQUIREMENTS
CITY shall comply with mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in compliance with the
Energy Policy Conservation Act
ARTICLE 9. PROHIBITED INTERESTS
A CITY covenants that, for the term of this Agreement, no director, member, officer or
employee of AUTHORITY during his/her tenure in office or for one (1) year thereafter, shall have
any interest, direct or indirect, in this Agreement or the proceeds thereof
B No member of or delegate to, the Congress of the United States shall have any
interest, direct or indirect, in this Agreement or to the benefits thereof
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ARTICLE 10. PRIVACY ACT
CITY shall comply with, and assures the compliance of its employees with, the
information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U S C
§552a Among other things, CITY agrees to obtain the express consent of the Federal
Government before the CITY or its employees operate a system of records on behalf of the
Federal Government CITY understands that the requirements of the Privacy Act, including the
civil and criminal penalties for violation of that Act, apply to those individuals involved, and that
failure to comply with the terms of the Privacy Act may result in termination of the underlying
Agreement
ARTICLE 11. CONFLICT OF INTEREST
CITY agrees to avoid organizational conflicts of interest An organizational conflict of
interest means that due to other activities, relationships or contracts, the CITY is unable, or
potentially unable to render impartial assistance or advice to the Authority, CITY's objectivity
in performing-the work identified in the Scope of Work is or might be otherwise impaired, or
,t the CITY has an unfair competitive advantage CITY is obligated to fully disclose to the
AUTHORITY in writing Conflict of Interest issues as soon as they are known to the CITY
CITY is obligated to fully disclose to the AUTHORITY in writing Conflict of Interest issues as
soon as they are known to the CITY All disclosures must be submitted in writing to
AUTHORITY pursuant to the Notice provision herein This disclosure requirement is for the
entire term of this Agreement
ARTICLE 12. CODE OF CONDUCT
CITY agrees to comply with the AUTHORITY's Code of Conduct as it relates to Third
Party contracts which is hereby referenced and by this reference is incorporated herein CITY
agrees to include these requirements in all of its subcontracts
ARTICLE 13. TERMINATION
A AUTHORITY may terminate this Agreement for its convenience at any time, in whole
or part, by giving CITY written notice thereof Upon termination, AUTHORITY shall pay CITY its
allowable costs incurred to date of that portion terminated Said termination shall be construed in
accordance with the provisions of CFR Title 48, Chapter 1, Part 49, of the Federal Acquisition
Regulation (FAR) and specific subparts and other provisions thereof applicable to termination for
convenience If AUTHORITY sees fit to terminate this Agreement for convenience, said notice
shall be given to CITY in accordance with the provisions of the FAR referenced above Upon
receipt of said notification, CITY agrees to comply with all applicable provisions of the FAR
pertaining to termination for convenience
B AUTHORITY may terminate this Agreement for CITY's default if a federal or state
proceeding for the relief of debtors is undertaken by or against CITY, or if CITY makes an
assignment for the benefit of creditors, or for cause if CITY fails to perform in accordance with the
scope of work or breaches any term(s) or violates any provision(s) of this Agreement and does
not cure such breach or violation within ten (10) calendar days after written notice thereof by
AUTHORITY CITY shall be liable for any and all reasonable costs incurred by AUTHORITY as a
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result of such default or breach including, but not limited to, reprocurement costs of the same or
similar services defaulted by CITY under this Agreement Such termination shall comply with
CFR Title 48, Chapter 1, Part 49, of the FAR
ARTICLE 14. RECYCLED PRODUCTS
CITY shall comply with all the requirements of Section 6002 of the Resource
Conservation and Recovery Act (RCRA), as amended (42 U S C 6962), including but not limited
to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the
procurement of the items designated in subpart B of 40 CFR Part 247 CITY agrees to include
this requirement in all of its subcontracts
ARTICLE 15. DEBARMENT& SUSPENSION:
CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER
RESPONSIBILITY MATTERS - PRIMARY PARTICIPANT AND LOWER-TIER PARTICIPANTS
Unless otherwise permitted by law, any person or firm that is debarred, suspended, or
a voluntarily excluded, as defined in the Federal Transit Administration (FTA) Circular 2015 1,
dated April 28, 1989, may not take part in any federally funded transaction, either as a
participant or a principal, during the period of debarment, suspension, or voluntary exclusion
Accordingly, the Authority, acting on behalf of the District, may not enter into any transaction
with such debarred, suspended, or voluntarily excluded persons or firms during such period
A certification process has been established by 49 CFR Part 29, as a means to ensure that
debarred suspended or voluntarily excluded persons or firms do not participate in Federally
assisted projects The inability to provide the required certification will not necessarily result in
denial of participation in a covered transaction A person or firm that is unable to provide a
positive certification as required by this solicitation must submit a complete explanation
attached to the certification FTA will consider the certification and any accompanying
explanation in determining whether or not to provide assistance for the project Failure to
furnish a certification or an explanation may disqualify that person or firm from participating in
the project
ARTICLE 16. DISPUTES
A Except as otherwise provided in this Agreement, any dispute concerning a
question of fact arising under this Agreement which is not disposed of by supplemental
agreement shall be decided by AUTHORITY's Director, Contracts Administration and Materials
Management (CAMM), who shall reduce the decision to writing and mail or otherwise furnish a
copy thereof to CONTRACTOR The decision of the Director, CAMM, shall be final and
conclusive
B The provisions of this Article shall not be pleaded in any suit involving a question of
fact arising under this Agreement as limiting judicial review of any such decision to cases where
fraud by such official or his representative or board is alleged, provided, however, that any such
decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or
so grossly erroneous as necessarily to imply bad faith or is not supported by substantial
evidence In connection with any appeal proceeding under this Article, CONTRACTOR shall be
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afforded an opportunity to be heard and to offer evidence in support of its appeal
C Pending final decision of a dispute hereunder, CONTRACTOR shall proceed
diligently with the performance of this Agreement and in accordance with the decision of
AUTHORITY's Director, CAMM This "Disputes" clause does not preclude consideration of
questions of law in connection with decisions provided for above Nothing in this Agreement,
however, shall be construed as making final the decision of any AUTHORITY official or
representative on a question of law, which questions shall be settled in accordance with the laws
of the state of California
ARTICLE 17. CLEAN WATER REQUIREMENTS
CITY shall comply with all applicable standards, orders or regulations issued pursuant to
the Federal Water Pollution Control Act, as amended, 33 U S C 1251 et seq CITY shall report
each violation to AUTHORITY and understands and agrees that the AUTHORITY who will in
turn, report each violation as required to assure notification to FTA and appropriate EPA
Regional Office CITY agrees to include this requirement in all of its subcontracts
ARTICLE 18. CLEAN AIR
CITY shall comply with all applicable standards, orders or regulations issued pursuant to
the Clean Air Act, as amended, 42 U S C §§ 7401 et seq CITY shall report each violation to
AUTHORITY, who will in turn, report each violation as required to assure notification to FTA and
the appropriate EPA Regional Office CITY agrees to include this requirement in all of its
subcontracts
ARTCLE 19. LOBBYING
CITY's who apply or bid for an award of $100,000 or more shall file the certification
required by 49 CFR part 20, "New Restrictions on Lobbying" Each tier certifies to the above that
it will not or has not used Federal appropriated funds to pay any person or organization for
influencing or attempting to influence an officer or employee of any agency, a member of
Congress, officer or employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other award covered by 31 U S C
1352 Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act
of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that
Federal contract, grant or award covered by 31 U S C 1352 Such disclosures are forwarded
from tier to tier up to the recipient
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City ® f Huntington Beach
� 2000 Main Street o Huntington Beach, CA 92648
(714) 536-5227 ® www.huntingtonbeachca.gov
Office of the City Clerk
0 ` Joan L. Flynn, City Clerk
September 18, 2015
Ben Ku, Senior Transportation Funding Analyst
Orange County Transportation Authority
550 South Main Street
P O Box14184
Orange, CA 92863-1584
Dear Mr Ku
Enclosed are two originals each of the Cooperative Agreement No C-5-3470 and C-5-3471
between OCTA and the City of Huntington Beach for Arterial Pavement Management
Program Projects
Upon complete execution, please return one original to us Please mail the document to
Joan L Flynn
City Clerk
2000 Main Street
Huntington Beach CA 92648
Your attention to this matter is greatly appreciated
Sincerely,
9*wlell 444)
Joan L Flynn, CIVIC
City Clerk
JF pe
Enclosures
Sister Cities Anjo,Japan 4 Wartakere,New Zealand