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HomeMy WebLinkAbout04b_Exhibit D - Special Federal Requirements_05_2014Exhibit D Special Federal Requirements The Project covered by this Agreement may be partially funded by various Program funds administered through the California Department of Transportation (Caltrans) As Such, the Consultant shall comply with the requirements of 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31 et seq.; 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and Caltrans Local Procedures Manual Processing Procedures for Implementing Federal and/or State Funded Local Public Transportation Projects. D1.0 DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION D1.1 Consultants must give consideration to DBE firms as specified in 23 CFR §172.5(b), 49 CFR, Part 26. If the contract has a DBE goal, Consultant must meet the goal by using DBEs as subconsultants or document a good faith effort to have met the goal. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant if the goal is not otherwise met. D1.2 A DBE may be terminated only with written approval by City and only for the reasons specified in 49 CFR 26.53 (f). Prior to requesting City's consent for the proposed termination, the prime consultant must meet the procedural requirements specified in 49 CFR 26.53(f). D2.0 CERTIFICATIONS D2.1 Caltrans LAPM Exhibits 10-F Certification of Consultant is attached and a part of this Agreement. D3.0 COST PRINCIPLES D3.1 Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. D3.2 Consultant also agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. D3.3 Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 49 CFR Part 18 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to City. Exhibit D Special Federal Requirements 1 D4.0 CONTINGENT FEE D4.1 Consultant warrants, by execution of this contract that no person or selling agency has been employed, or retained, to solicit or secure this contract upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, City has the right to annul this contract without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee. D5.0 DISPUTES D5.1 Any dispute, other than audit, concerning a question of fact arising under this contract that is not disposed of by agreement shall be decided by the City’s Contact Officer, who may consider written or verbal information submitted by Consultant. D5.2 Not later than 30 days after completion of all deliverables necessary to complete the plans, specifications and estimate, Consultant may request review by City Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. D5.3 Neither the pendency of a dispute, nor its consideration by the Contract Officer will excuse Consultant from full and timely performance in accordance with the terms of this contract. D6.0 AUDIT REVIEW PROCEDURES D6.1 Any dispute concerning a question of fact arising under an interim or post audit of this contract that is not disposed of by agreement, shall be reviewed by City’s Chief Financial Officer. D6.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by City’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. D6.3 Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this contract. D6.4 Consultant and subconsultants’ contracts, including cost proposals and indirect cost rates (ICR), are subject to audits or reviews such as, but not limited to, a Contract Audit, an Incurred Cost Audit, an ICR Audit, or a certified public accountant (CPA) ICR Audit Workpaper Review. If selected for audit or review, the contract, cost proposal and ICR and related workpapers, if applicable, will be reviewed to verify Exhibit D Special Federal Requirements 2 compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR Audit Workpaper Review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s workpapers. The contract, cost proposal, and ICR shall be adjusted by Consultant and approved by City contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the contract by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the Federal, State, or local governments have access to CPA workpapers, will be considered a breach of contract terms and cause for termination of the contract and disallowance of prior reimbursed costs. D7.0 SUBCONTRACTING D7.1 Consultant shall perform the work contemplated with resources available within its own organization; and no portion of the work pertinent to this contract shall be subcontracted without written authorization by City’s Contact Officer, except that, which is expressly identified in the approved Cost Proposal. D7.2 Nothing contained in this Contract or otherwise, shall create any contractual relation between the Agency and any subconsultants, and no subcontract shall relieve the Consultant of his/her responsibilities and obligations hereunder. The Consultant agrees to be as fully responsible to the Agency for the acts and omissions of its subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the Consultant. The Consultant's obligation to pay its subconsultants is an independent obligation from the Agency's obligation to make payments to the Consultant. D7.3 Any subcontract in excess of $25,000 entered into as a result of this contract, shall contain all the provisions stipulated in this contract to be applicable to subconsultants. D7.4 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to the Consultant by the Agency. D7.5 Any substitution of subconsultants must be approved in writing by City’s Contact Officer prior to the start of work by the subconsultant. D8.0 INSPECTION OF WORK D8.1 Consultant and any subconsultant shall permit City, the state, and the FHWA if federal participating funds are used in this contract; to review and inspect the project activities and files at all reasonable times during the performance period of this contract including review and inspection on a daily basis. Exhibit D Special Federal Requirements 3 D9.0 SAFETY D9.1 Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by City Safety Officer and other City representatives. Consultant personnel shall wear hard hats and safety vests at all times while working on the construction project site. D9.2 Pursuant to the authority contained in Section 591 of the Vehicle Code, City has determined that such areas are within the limits of the project and are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. D9.3 Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article. D10.0 CLAIMS FILED BY CITY’s CONSTRUCTION CONTRACTOR D10.1 If claims are filed by City’s construction contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with City’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. D10.2 Consultant’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this contract. D10.3 Services of Consultant’s personnel in connection with City’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this contract in order to resolve the construction claims. D10.4 Any subcontract in excess of $25,000 entered into as a result of this contract, shall contain all of the provisions of this Article. D11.0 CONFIDENTIALITY OF DATA D11.1 All financial, statistical, personal, technical, or other data and information relative to City’s operations, which are designated confidential by City and made available to Consultant in order to carry out this contract, shall be protected by Consultant from unauthorized use and disclosure. Exhibit D Special Federal Requirements 4 D11.2 Permission to disclose information on one occasion, or public hearing held by City relating to the contract, shall not authorize Consultant to further disclose such information, or disseminate the same on any other occasion. D11.3 Consultant shall not comment publicly to the press or any other media regarding the contract or City’s actions on the same, except to City’s staff, Consultant’s own personnel involved in the performance of this contract, at public hearings or in response to questions from a Legislative committee. D11.4 Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this contract without prior review of the contents thereof by City, and receipt of City’s written permission. D11.5 Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article. D11.6 All information related to the construction estimate is confidential, and shall not be disclosed by Consultant to any entity other than City. D12.0 NATIONAL LABOR RELATIONS BOARD CERTIFICATION D12.1 In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board. D13.0 EVALUATION OF CONSULTANT D13.1 Consultant’s performance will be evaluated by City. A copy of the evaluation will be sent to Consultant for comments. The evaluation together with the comments shall be retained as part of the contract record. D14.0 STATEMENT OF COMPLIANCE D14.1 Consultant’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103. D14.2 During the performance of this Contract, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against Exhibit D Special Federal Requirements 5 any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. D15.0 DEBARMENT AND SUSPENSION CERTIFICATION D15.1 Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to City. D15.2 Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. D15.3 Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration. D16.0 STATE PREVAILING WAGE RATES D16.1 Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the work. D16.2 Any subcontract entered into as a result of this contract if for more than $25,000 for public works construction or more than $15,000 for the alteration, Exhibit D Special Federal Requirements 6 demolition, repair, or maintenance of public works, shall contain all of the provisions of this Article. D17.0 CONFLICT OF INTEREST D17.1 Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this contract, or any ensuing City construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this contract, or any ensuing City construction project, which will follow. D17.2 Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this contract. D17.3 Any subcontract in excess of $25,000 entered into as a result of this contract, shall contain all of the provisions of this Article. D17.4 Consultant hereby certifies that neither Consultant, nor any firm affiliated with Consultant will bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. An affiliated firm is one, which is subject to the control of the same persons through joint- ownership, or otherwise. D17.5 Except for subconsultants whose services are limited to providing surveying or materials testing information, no subconsultant who has provided design services in connection with this contract shall be eligible to bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. D18.0 REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION D18.1 Consultant warrants that this contract was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right in its discretion; to terminate the contract without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration. D19.0 PROHIBITION OF EXPENDING CITY STATE OR FEDERAL FUNDS FOR LOBBYING D19.1 Consultant certifies to the best of his or her knowledge and belief that: a. No state, federal or City appropriated funds have been paid, or will be paid by-or-on behalf of Consultant to any person for influencing or attempting to influence an Exhibit D Special Federal Requirements 7 officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. b. If any funds other than federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement; Consultant shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions. D19.3 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, US. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. D19.4 Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000, and that all such sub recipients shall certify and disclose accordingly. D20.0 EQUIPMENT PURCHASE D20.1 Prior authorization in writing, by City's Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or Consultant Services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. D20.2 For purchase of any item, service or consulting work not covered in Consultant's Cost Proposal and exceeding $5,000 prior authorization by City's Contract Administrator; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified. D20.3 Any equipment purchased as a result of this contract is subject to the following: "Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the contract, or if the contract is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best Exhibit D Special Federal Requirements 8 price obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant's expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by City and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by City." 49 CFR, Part 18 requires a credit to Federal Funds when participating equipment with a fair market value greater than $5,000 is credited to the project. D20.4 All subcontracts in excess of $25,000 shall contain the above provisions. Exhibit D Special Federal Requirements 9