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2025-On-Call-Agreement-Net Positive.pdf
On-Call Agreement for Architectural and Engineering Consultant and Other Related Services Agreement Contents 1. Obligations of the Consultant.................................................................................4 2. Obligations of the County .......................................................................................7 3. Term of Agreement ..................................................................................................8 4. Termination...............................................................................................................9 A. Non-Allocation of Funds / Funding Requirements ........................................................9 B. Breach of Contract........................................................................................................9 C. Without Cause............................................................................................................10 5. Compensation, Allowable Costs and Payments .................................................10 A. Maximum Cumulative Amount Available .................................................................... 10 B. Consultant Fee ........................................................................................................... 11 C. Indirect Cost Rate........................................................................................................ 13 D. Retention.................................................................................................................... 13 E. Payments.................................................................................................................... 14 F. Notice to Proceed / Task Orders / Project Cost Proposal ............................................ 15 6. Independent Contractor......................................................................................... 16 7. Modification / Change In Terms............................................................................ 17 8. Non-Assignment .................................................................................................... 18 9. Hold Harmless........................................................................................................ 18 10. Liability Insurance.................................................................................................. 19 A. Commercial General Liability....................................................................................... 19 B. Automobile Liability...................................................................................................... 19 C. Professional Liability Insurance: ..................................................................................20 D. Worker's Compensation .............................................................................................20 E. Additional Requirements Relating to Insurance..........................................................20 11. Audits / Retention of Record.................................................................................22 12. Notices ....................................................................................................................23 13. Governing Law .......................................................................................................23 14. Disclosure of Self-Dealing Transactions..............................................................23 15. Electronic Signature ..............................................................................................23 16. Subconsultants ......................................................................................................24 I. Prompt Progress Payment............................................................................................26 J. Prompt Payment of Withheld Funds to Subconsultants ..............................................26 17. Conflict of Interest .................................................................................................27 18. Errors or Omissions Claims and Disputes ..........................................................29 19. Ownership of Data .................................................................................................31 20. Consultant's Legal Authority ................................................................................33 21. Binding Upon Successors.....................................................................................33 22. Severability.............................................................................................................33 23. State Prevailing Wage Rates.................................................................................34 C. Payroll Records...........................................................................................................34 1 E. Penalty.....................................................................................................................36 2 F. Hours of Labor .........................................................................................................38 G. Employment of Apprentices .....................................................................................39 3 24. Disadvantaged Business Enterprises (DBE) Participation.................................39 F. Contract Assurance .....................................................................................................41 4 G. Termination and Replacement of DBE Subconsultants .............................................41 H. Termination of DBE Subconsultants ........................................................................42 5 1. Replacement of DBE Subconsultants 43 6 H. Commitment and Utilization.........................................................................................45 25. Cost Principles.......................................................................................................49 7 26. Audit Review Procedures......................................................................................49 27. Equipment Purchase .............................................................................................52 8 28. Rebates, Kickbacks or Other Unlawful Consideration........................................53 29. Prohibition of Expending County, State, or Federal Funds for Lobbying.........53 9 30. Non-Discrimination Clause and Statement of Compliance ................................54 10 31. Debarment and Suspension Certification............................................................56 32. Funding Requirements ..........................................................................................57 11 33. Contingent Fees.....................................................................................................58 34. Inspection of Work.................................................................................................58 12 35. Safety ......................................................................................................................58 13 36. Claims Filed by the County's Construction Contractor......................................59 37. Confidentiality of Data ...........................................................................................59 14 38. National Labor Relations Board Certification......................................................60 39. Evaluation of the Consultant.................................................................................61 15 40. Entire Agreement ...................................................................................................61 41. Signatures...............................................................................................................62 16 17 Appendices 18 Appendix A — Listing of all consultants, including CONSULTANT'S "Project Manager" 19 Appendix B — Scope Appendix C — Project Team 20 Appendix D — Deliverables Appendix E — Cost Proposal 21 Appendix F — Indirect Cost Rate (ICR) Form(s) Appendix G — Self Dealing Transaction Disclosure Form 22 Appendix H — Subconsultants 23 Appendix I — Conflict of Interest Code Appendix J — DBE Information 24 Appendix K — DBE Forms Appendix L — Disclosure Form to Report Lobbying 25 Appendix M — Debarment and Suspension Certification 26 27 28 2 Agreement# D-25-257 1 CONSULTANT AGREEMENT 2 THIS AGREEMENT for Architectural and Engineering Consultant Services, 3 hereinafter referred to as "Agreement," is made and entered into this 24th day of 4 June 2025 , by and between the County of Fresno, a Political Subdivision of the State 5 of California, hereinafter referred to as "County"; and Net Positive Consulting Engineers, a 6 Corporation, whose address is 5 E River Park PI East Suite 303, Fresno, CA 93720-1560 7 hereinafter referred to as "Consultant". 8 Recitals 9 WHEREAS, the County desires to retain the Consultant as one of a number of 10 consultant firms to provide, pursuant to separate agreements, on-call architectural and 11 engineering consulting services, encompassing landscape architecture, electrical, 12 mechanical, transportation planning, water & natural resources, and such other 13 architectural and engineering disciplines for which each such consultant is qualified, as 14 necessary to assist the County in performing projects (hereinafter referred to as 15 "Project(s)") proposed by the County; and 16 WHEREAS, the Consultant has been selected in accordance with the County's 17 Ordinance Code Chapter 4.10 on the selection of architects, engineers, and other 18 professionals, and in accordance with Chapter 10 of the California Department of 19 Transportation's (CALTRANS) Local Assistance Procedures Manual (LAPM), to provide 20 certain professional services necessary for the Projects, as specified herein; and 21 WHEREAS, the individual listed below 22 Erin Haagenson, Program Manager 23 2220 Tulare Street, 6th Floor, Fresno, CA 93721 24 559-388-7292 25 ehaagen son fresnocountyca.gov 26 is designated as the Contract Administrator for this Agreement on behalf of the County, and 27 shall remain so unless the Consultant is otherwise notified in writing by the County's 28 3 1 Director of Public Works and Planning or his/her designee(s) (hereinafter referred to as the 2 "Director"); and 3 WHEREAS, the individual listed in Appendix A, as the firm's "Consultant Project 4 Manager" is designated as the Consultant's Project Manager for this Agreement, and shall 5 remain so unless the Consultant requests and the Director approves, in writing, a change o 6 the Consultant's Project Manager, which approval will not be unreasonably withheld; and 7 NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions g herein contained, the parties hereto agree as follows: 9 1. Obligations of the Consultant 10 A. The County hereby Contracts with the Consultant as an independent 11 Contractor to provide the professional services enumerated in "Consultant's Scope of 12 Services" attached as Appendix B. 13 B. The Consultant's services shall be performed as expeditiously as is 14 consistent with professional skill and the orderly progress of the work, based on schedules 15 for each specific Project mutually agreed upon in advance by the Contract Administrator, 16 and the Consultant. 17 C. The Consultant's Project team staff shall be as listed in Appendix C, attached 18 hereto and incorporated herein. Any substitutions of personnel must be approved in 19 advance by the Contract Administrator, which approval shall not be unreasonably withheld. 20 The Consultant shall notify the Contract Administrator of the names and classifications of 21 employees assigned to each specific Project, and shall not reassign such employees to 22 other projects of the Consultant without notification to and prior approval by the Contract 23 Administrator. 24 D. The Consultant may retain, as subconsultants, specialists as the Consultant 25 requires to assist in completing the work in accordance with Article 16 "Subconsultants" 26 (and, if applicable to this Agreement, Article 24 "Disadvantaged Business Enterprises"). 27 E. Services provided by Consultant on Projects relating to the construction or 28 improvement of roads and bridges shall be done in accordance with American Association 4 1 of State Highway and Transportation Officials (AASHTO) requirements for applicable 2 structures. 3 F. All projects funded wholly or in part by CALTRANS must conform to all 4 requirements imposed by CALTRANS and the Federal Highway Administration (FHWA), as 5 specified in Chapter 10 of the CALTRANS LAPM. 6 G. The services that may be furnished by the Consultant under this Agreement 7 are for all or a portion of the services the Consultant is allowed to provide within the 8 applicable professional discipline limits, as defined in California State License Law, for 9 various Projects on an as needed basis. 10 H. The Consultant agrees to provide the professional services that are 11 necessary for each Project when expressly authorized in writing by the Contract 12 Administrator. Such work by the Consultant shall not begin until the CONSULTANT has 13 received a written Notice to Proceed (NTP) or Task Order from the Contract Administrator 14 authorizing the necessary service, agreed upon fee, and scope of work. 15 I. The Consultant shall submit proposals in response to requests issued by the 16 Contract Administrator on a project-by-project basis. The Consultant's proposal at a 17 minimum shall include, but not be limited to, staff qualifications, proposed method and 18 schedule for completing the task(s), completed federal forms and a sealed cost proposal. 19 The Consultant agrees that each professional or other individual performing work on any 20 such Project(s) shall be adequately trained to perform the work and shall possess the 21 proper license, certification or registration as required by law or by accepted standards of 22 the applicable profession. The Consultant agrees to provide the professional services that 23 are necessary to complete the requested tasks consistent with the scope of its Contracted 24 discipline(s), as listed in Appendix B ("Scope"), when expressly authorized in writing by the 25 Contract Administrator. 26 J. Submissions of reports, plans, specifications, and estimates will be submitted 27 in the formats, quantities, and delivery methods delineated in Appendix D "Deliverables" 28 hereto unless other formats, quantities, and/or delivery methods have been mutually 5 1 agreed upon, in writing, prior to the Consultant's submittal. The Consultant shall verify 2 compatible format and quantity prior to final delivery. 3 K. Assist the County, at the Director's express, written authorization, with any 4 claim resolution process involving the construction Contractor and the County as specified 5 hereunder, including serving as a witness in connection with any public hearings or legal 6 proceeding, and also including dispute resolutions required by law or hereunder. The 7 parties recognize that this clause is provided as a means of expediting resolution of claims 8 among the construction Contractor, the County, and the Consultant. However, it is 9 understood the construction Contractor is not an intended third-party beneficiary of this 10 clause. Compensation for these services shall be computed and invoiced at the same 11 hourly rates listed in Appendix E hereto, including travel costs that are being paid for the 12 Consultant's personnel services under this Agreement. Any assistance provided by the 13 Consultant as described in this Article 1, Section K shall be subject to the provisions of 14 Article 5 hereinafter, and shall also be subject to the following: 15 1. The Director may believe the Consultant's work under this Agreement 16 to have included negligent errors or omissions, or that the Consultant may otherwise have 17 failed to comply with the provisions of this Agreement, either generally or in connection with 18 its duties as associated with a particular Project; and that the cause(s) for a claim by the 19 construction Contractor may be attributable, in whole or in part, to such conduct on the part 20 of the Consultant. Upon notice by the Director, the payments to the Consultant for such 21 arguably deficient services shall be held in suspense by the County until a final 22 determination has been made, of the proportion that the Consultant's fault bears to the fault 23 of all other parties concerned. 24 2. Such amounts held in suspense shall not be paid to the Consultant, 25 pending the final determination as to the Consultant's proportional fault. However, the 26 appropriate percentage of such amount held in suspense shall be paid to the Consultant, 27 once a final determination has been made, and the Consultant thereafter submits a proper 28 invoice to the County. Payment shall be issued in accordance with the procedure outlined 6 1 in Article 5, Section E, Paragraph 2. 2 L. The Consultant's personnel shall typically be assigned to and remain on 3 specific Department projects/deliverables until completion and acceptance of the 4 project/deliverables by the Department. Personnel assigned by the Consultant shall be 5 available at the start of a Task Order and after acceptance of the project/deliverable by the 6 Department. 7 M. After the Contract Administrator's approval of the Consultant's personnel 8 proposal and finalization of a Task Order, the Consultant may not add or substitute 9 personnel without the Contract Administrator's prior written approval. 10 2. Obligations of the County 11 The County will: 12 A. Provide eligible consultants the opportunity to compete for Task Orders on a 13 project-by-project basis by providing a miniature Request for Proposal (mini-RFP), except 14 as specified under Section B. The Consultant's eligibility for project types, disciplines, and 15 services is listed in Appendix B. 16 B. The County reserves the right to suspend competition under this Agreement 17 and engage the services of an eligible qualified consultant from the listing attached as 18 Appendix A, in the event that one or more of the following circumstances apply to the 19 needed work: 20 1. Service is available only from a single source; 21 2. There is an emergency which will not permit the time necessary to 22 conduct competitive negotiations; 23 3. After the mini-RFP is issued (as provided in the immediately preceding 24 Section A) competition is determined to be inadequate; 25 4. Services of expert witnesses for litigation or special counsel to assist 26 the County are needed. 27 C. Issue Task Orders on a project-by-project basis. Task Orders will at a 28 minimum include scope of work, location, and schedule for the Project. 7 1 D. Provide the Consultant with a Project Scope and Schedule, and compensate 2 the Consultant as provided in this Agreement. 3 E. Provide an individual Project Administrator to serve as a representative of the 4 County who will coordinate and communicate with the Consultant on all Project technical 5 work, to the extent appropriate, in an effort to facilitate the Consultant's performance of its 6 obligations in accordance with the provisions of this Agreement. 7 F. Provide basic plan sheet layouts as required. 8 G. Examine documents submitted to the County by the Consultant and timely 9 render decisions pertaining thereto. 10 H. Provide aerial photographs as required. 11 I. Provide copies of any available existing as-built plans and right-of-way 12 drawings from the County's files. 13 J. Provide list of property owners with addresses for notification of property 14 owners upon the Consultant's request. 15 K. Provide preliminary engineering survey data on existing structures and 16 topographic mapping in the formats, quantities, and delivery methods delineated in 17 Appendix D to the Consultant, if available. 18 L. Prepare all legal descriptions and drawings required for right-of-way 19 acquisition and/or temporary construction permits. 20 M. Provide limited assistance to Consultant, as may be appropriate under the 21 circumstances, in connection with Consultant's processing of required permits. 22 N. Give reasonably prompt consideration to all matters submitted for approval by 23 the Consultant in an effort to assist the Consultant in avoiding any substantial delays in the 24 Consultant's program of work. An approval, authorization or request to the Consultant given 25 by the County will be binding upon the County under the terms of this Agreement only if it is 26 made in writing and signed on behalf of the County by the Contract Administrator. 27 3. Term of Agreement 28 A. The term of this Agreement shall be for a period of three (3 years), commencing 8 1 upon execution by the County, through and including the third anniversary of the execution 2 date. 3 B. The Consultant shall commence work promptly after receipt of a Notice to 4 Proceed or Task Order issued by the Contract Administrator. The period of performance for 5 Task Orders shall be in accordance with dates specified in the Task Order. No Task Order 6 will be written which would extend the period of performance beyond the expiration date of 7 this Agreement, the maximum term of which shall not exceed three (3) years. g 4. Termination 9 A. Non-Allocation of Funds / Funding Requirements 10 The terms and conditions of this Agreement, and the services to be provided 11 hereunder, are contingent on the approval of funds by the appropriating government 12 agency. Should sufficient funds not be allocated, the services provided may be modified, or 13 this Agreement terminated, at any time by giving the Contractor thirty (30) days advance 14 written notice. This Agreement may be terminated without cause at any time by the County 15 upon thirty (30) calendar days' written notice. If the County terminates this Agreement, the 16 Consultant shall be compensated for services satisfactorily completed to the date of 17 termination based upon the compensation rates and subject to the maximum amounts 18 payable agreed to in Article 5, together with such additional services satisfactorily 19 performed after termination which are expressly authorized by the County to conclude the 20 work performed to date of termination. 21 B. Breach of Contract 22 The County may immediately suspend or terminate this Agreement in whole or in 23 part, where in the determination of the County there is: 24 1. An illegal or improper use of funds; 25 2. A failure to comply with any term of this Agreement; 26 3. A substantially incorrect or incomplete report submitted to the County; 27 4. Improperly performed service. 28 In no event shall any payment by the County constitute a waiver by the County of 9 1 any breach of this Agreement or any default which may then exist on the part of the 2 Consultant, nor shall any such payment impair or prejudice any remedy available to the 3 County with respect to the breach or default. The Director shall have the right to demand of 4 the Consultant the repayment to the County of any funds disbursed to the Consultant under 5 this Agreement, which, in the sole judgment of the County were not expended in 6 accordance with the terms of this Agreement. The Consultant shall promptly refund any 7 such funds upon demand. This Section survives the termination of this Agreement. 8 C. Without Cause 9 Under circumstances other than those set forth above, this Agreement may be 10 terminated by County upon the giving of thirty (30) days advance written notice of an 11 intention to terminate to Contractor. 12 5. Compensation, Allowable Costs and Payments 13 A. Maximum Cumulative Amount Available 14 The County has or will enter into up to 21 separate agreements, including this 15 Agreement, for performance of the Scope of Services identified hereinabove in Article 1, 16 Section A and more thoroughly in Appendix B attached hereto. The other Agreements are 17 to be entered into by the County with the other consultant firms listed, together with the 18 Consultant, on the list of consultant firms attached hereto as Appendix A. The total amount 19 payable by the County for all the Agreements combined shall not exceed a cumulative 20 maximum total value of Six Million Five Hundred Thousand Dollars ($6,500,000), which 21 "Not to Exceed Sum" hereinafter shall be referenced as the "NTE Sum". 22 It is understood and agreed that there is no guarantee, either expressed or implied, 23 that all or any specific portion of this maximum NTE Sum will be authorized under the On- 24 Call Engineering Consultant Agreements through Task Orders. It is further understood and 25 agreed that there is no guarantee, either expressed or implied, that any Task Order will be 26 assigned to the Consultant or that the Consultant will receive any payment whatsoever, 27 under the terms of this Agreement. Each time a Task Order is awarded under any of the 28 Agreements, the County shall send written notification to the Consultant and each of the 10 1 other consultants that entered into the Agreements. Each such notice shall identify the 2 cumulative total of funds allocated under all Task Orders issued hereunder as of that date, 3 and the remaining unencumbered amount of the NTE Sum. The Consultant acknowledges 4 and agrees that the County shall not pay any amount under this Agreement that would 5 cause the NTE Sum to be exceeded, and the Consultant shall not enter into a Task Order 6 that exceeds the remaining unencumbered amount of the NTE Sum. 7 B. Consultant Fee 8 1. The approved Consultant's Cost Proposal is attached hereto as 9 Appendix E and is incorporated by this reference as though fully set forth herein. If there is 10 any conflict between the provisions set forth in the text of this Agreement and the approved 11 Cost Proposal (Appendix E), this Agreement shall take precedence. 12 2. The hourly and cost rates listed in Appendix E for services 13 rendered by the Consultant and subconsultants shall remain in effect for the entire duration 14 of this Agreement unless adjusted in accordance with the provisions of Paragraphs 3, 5, or 15 6 of this Article 5, Section B. 16 3. The hourly rates paid for services performed by the Consultant and 17 by subconsultants of the Consultant and the rates for expenses incidental to the 18 Consultant's and its subconsultant's performance of services may be adjusted no more 19 than once annually for inflation, in accordance with the following provisions: the Consultant 20 may request new labor rates and new rates for expenses incidental to the Consultant's and 21 subconsultant's performance of services subject to written approval of the Contract 22 Administrator in accordance with the provisions of this Article 5, Section B. The Consultant 23 shall initiate the rate adjustment process by submitting to the Contract Administrator a 24 proposed adjusted fee schedule. The proposed adjusted fee schedule shall include 25 proposed hourly rates for all categories of the Consultant's and any subconsultant's wage 26 classifications and proposed rates for incidental expenses listed in Appendix E. The 27 proposed adjusted fee schedule shall not take effect unless approved in writing by the 28 Contract Administrator. The Consultant hereby acknowledges its understanding that 11 1 approval by the Contract Administrator of any upward adjustment in the hourly and cost 2 rates shall not provide a basis for any increase in the NTE Sum as set forth in Article 5, 3 Section A. 4 4. Expenses incidental to the Consultant's and any subconsultant's 5 performance of services under Article 5 of this Agreement shall be charged at the rates 6 listed in Appendix E, subject to any adjustments that may be approved in accordance with 7 Paragraphs 3, 5, or 6 of this Article 5, Section B. Unless incorporated in an adjusted fee 8 schedule approved by the Contract Administrator in accordance with Paragraphs 3, 5, or 6 9 of this Article 5, Section B, all other expenses incidental to the Consultant's and any 10 subconsultant's performance of the services under Article 1 of this Agreement that are not 11 specifically listed in Appendix E shall be borne by the Consultant. 12 5. In the event that, in accordance with Article 1, Section D, the 13 Contract Administrator approves the Consultant to retain additional subconsultants not 14 listed in Appendix H, hourly rates paid for services performed by such additional 15 subconsultants of the Consultant and the rates for expenses incidental to those additional 16 subconsultants' performance of services may be adjusted no more than once annually for 17 inflation, in accordance with Article 5, Section B, Paragraph 3. The first annual adjustment 18 of hourly and incidental expense rates for such additional subconsultants shall not be 19 submitted for approval prior to one year after the Contract Administrator's approval of the 20 retention of such additional subconsultant(s) by the Consultant. 21 6. Notwithstanding any other provisions in this Agreement, the 22 Contract Administrator may, at any time, authorize in writing the revision of the Consultant's 23 or subconsultant's list of rates for incidental expenses to include additional categories of 24 such expenses if, in the opinion of the Contract Administrator, such revision is necessary to 25 facilitate the Consultant's performance of the Project(s). 26 7. Reimbursement for transportation and subsistence costs shall not 27 exceed the rates as specified in the approved Cost Proposal (Appendix E). The Consultant 28 will be responsible for transportation and subsistence costs in excess of State rates. 12 1 8. The consideration to be paid to Consultant as provided herein, shall 2 be in compensation for all of Consultant's expenses incurred in the performance hereof, 3 including travel and per diem, unless otherwise expressly so provided. 4 C. Indirect Cost Rate 5 1. In accordance with Article 16, the Indirect Cost Rate (ICR) listed in the 6 Consultant's Cost Proposal (Appendix E) shall match the ICR listed for the Consultant's 7 ICR Forms and all subconsultant's ICR Forms, attached hereto as Appendix F and 8 incorporated by reference. g The ICR Forms attached as Appendix F for Consultant or subconsultant with an 10 approved ICR are: 11 a. Consultant Annual Certification of Indirect Costs and Financial 12 Management System (Exhibit 10-K); 13 b. The ICR Schedule with FAR References for Disallowed Costs; 14 c. The Cognizant Approval Letter for the ICR FYE Proposed. 15 The ICR Forms attached as Appendix F for Consultant or subconsultant without an 16 approved ICR is an approved California Safe Harbor Indirect Cost Rate Program 17 Consultant Certification of Eligibility of Contract Costs and Financial Management, 18 otherwise known as a Safe Harbor Rate (SHR) Request Form. 19 2. All parties agree to fix the ICR for the term of the Contract. 20 D. Retention 21 In addition to any amounts withheld under Article 1, the Consultant agrees that the 22 County, at the discretion of the Contract Administrator, may withhold a five percent (5%) 23 retention from the earned compensation of the Consultant. If the Contract Administrator 24 determines that retention will not be withheld for a Project, the Contract Administrator will 25 so state in writing prior to commencement of the Project by the Consultant. The Contract 26 Administrator will identify in writing prior to commencement of the Project the Project- 27 28 13 1 specific prerequisites (such as successful completion of a Project phase, as an example) 2 for the release of retentions. 3 E. Payments 4 1. Progress payments will be made by the County upon receipt of the 5 Consultant's monthly invoices and approval by the Contract Administrator thereof based on 6 the Contract Administrator's evaluation of the completion of the respective components of 7 the assigned Project. Invoices shall clearly identify the Project by Name(s), the Phase and 8 Task(s) comprising the work that is the subject of the invoice, the Notice to Proceed or 9 Task Order number, and the date(s) on which the work was performed. Invoices shall be 10 submitted together with the documentation identified below in Paragraph 5 of this Article 5, 11 Section E. Invoices shall be forwarded electronically to: 12 PWPBusinessOffice(a-),fresnocountyca.gov 13 2. Upon receipt of a proper invoice, the Contract Administrator will take 14 15 a maximum of ten (10) working days to review, approve, and submit it to the County 16 Auditor-Controller/Treasurer-Tax Collector. Unsatisfactory or inaccurate invoices will be 17 returned to the Consultant for correction and resubmittal. Payment, less retention, if 18 applicable, will be issued to the Consultant within forty-five (45) calendar days of the date 19 the Auditor-Controller/Treasurer-Tax Collector receives the approved invoice. 20 3. The County is entitled to withhold a five percent (5%) retention from 21 the Consultant's earned compensation in accordance with the provisions of Article 5, 22 Section D of this Agreement. 23 4. An unresolved dispute over a possible error or omission may cause 24 payment of the Consultant fees in the disputed amount to be withheld by the County. 25 5. Concurrently with the invoices, the Consultant shall certify (through 26 copies of issued checks, receipts, or other County pre-approved documentation) that 27 complete payment, less a five percent (5%) retention if applicable, has been made to all 2s 14 1 subconsultants as provided herein for all previous invoices paid by the County. However, 2 the parties do not intend that the foregoing creates, as to any subconsultants or 3 subcontractors, any purported third-party beneficiary status or any third-party beneficiary 4 rights whatsoever, and the parties do hereby expressly disclaim any such status or rights. 5 6. Final invoices, and separate invoices for retentions, shall be 6 submitted to the Contract Administrator no later than thirty (30) days after the phase is 7 completed. Payment for retentions, if any, shall not be made until all services for the phase 8 are completed. 9 7. In the event the Director reduces the scope of the Consultant's work 10 under this Agreement for a specific Project (or discontinues a specific Project), whether due 11 to a deficiency in the appropriation of anticipated funding or otherwise, the Consultant will 12 be compensated on a pro rata basis for actual work completed and accepted by the 13 14 Director in accordance with the terms of this Agreement. 15 8. Credits due Consultant that include any equipment purchased under 16 the provisions of Article 27 Equipment Purchase, must be reimbursed by Consultant prior to 17 the expiration or termination of this Agreement. 18 F. Notice to Proceed / Task Orders / Project Cost Proposal 19 1. Upon the acceptance of a project proposal submitted by the 20 Consultant in accordance with the provisions of Article 1, Section I, and if an agreement 21 has been reached on the negotiable items and total cost in connection therewith, then a 22 specific Project will be assigned to the Consultant through issuance by the Contract 23 Administrator of one or more Task Orders or Notices to Proceed (NTP). Task Orders may 24 be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both 25 of which must be based on the labor and other rates set forth in the Consultant's approved 26 Cost Proposal (Appendix E to this Agreement). 27 28 15 1 2. A Project Cost Proposal is of no force or effect and no expenditures 2 are authorized on a Project and work shall not commence until an NTP for that Project has 3 been issued by the County. 4 3. If the Consultant fails to satisfactorily complete a deliverable 5 according to the schedule set forth in a Task Order, no payment will be made until the 6 deliverable has been satisfactorily completed. 7 4. When milestone or phase cost estimates are included in the Project 8 Cost Proposal and/or Task Order, the Consultant shall obtain prior written approval for a 9 revised Project Cost Proposal from the Contract Administrator before exceeding such 10 estimate. 11 5. The Consultant shall not commence performance of any work or 12 services hereunder until this Agreement has been formally approved by the County and an 13 14 NTP on a specific Project has been issued by the County's Contract Administrator. No 15 payment will be made prior to approval or for any work performed by the Consultant prior to 16 the County's formal approval of this Agreement. 17 6. The period of performance for each NTP shall be in accordance with 18 dates specified in the NTP. Consistent with the provisions of Article 3, Section B, no NTP 19 will be issued that would extend the Consultant's period of performance beyond the 20 expiration date of this Agreement. 21 7. NTP's may not be used to amend any provision of this Agreement or 22 to expand the scope of the Consultant's work as authorized under the provisions of this 23 Agreement. 24 6. Independent Contractor 25 A. In performance of the work, duties and obligations assumed by the Consultant 26 under this Agreement, it is mutually understood and agreed that the Consultant, including any 27 and all of the Consultant's officers, agents, and employees will at all times be acting and 28 16 1 performing as an independent Contractor, and shall act in an independent capacity and not as 2 an officer, agent, servant, employee, joint venturer, partner, or associate of the County. 3 Furthermore, the County shall have no right to control or supervise or direct the manner or 4 method by which the Consultant shall perform its work and function. However, the County 5 shall retain the right to administer this Agreement so as to verify that the Consultant is 6 performing its obligations in accordance with the terms and conditions thereof. 7 B. The Consultant and the County shall comply with all applicable provisions of law 8 and the rules and regulations, if any, of governmental authorities having jurisdiction over 9 matters the subject thereof. 10 C. Because of its status as an independent Contractor, the Consultant shall have 11 absolutely no right to employment rights and benefits available to County employees. The 12 Consultant shall be solely liable and responsible for providing to, or on behalf of, its 13 employees all legally-required employee benefits. In addition, the Consultant shall be solely 14 responsible and save the County harmless from all matters relating to payment of the 15 Consultant's employees, including compliance with Social Security withholding and all other 16 regulations governing such matters. It is acknowledged that during the term of this 17 Agreement, the Consultant may be providing services to others unrelated to the County or to 18 this Agreement. 19 7. Modification / Change In Terms 20 A. This Agreement may be amended or modified only by mutual written agreement 21 of both parties. Except to the limited extent allowed under Article 5, Section B, and Article 22 7, Section C, and Article 16, Section A, any such written amendment to this Agreement 23 may be approved on the County's behalf only by its Board of Supervisors. 24 B. The Consultant shall only commence work covered by an amendment after the 25 amendment has been fully executed and a written NTP has been issued by the Contract 26 Administrator. 27 C. There shall be no change in Consultant's Project Manager or members of the 28 project team, as listed in Appendix A and the approved Cost Proposal (Appendix E, which 17 1 is incorporated as a part of this Agreement as provided in Article 5, Section 1), without prior 2 written approval by the County's Contract Administrator. Any substitutions of personnel 3 must be approved in advance by the Contract Administrator, which approval shall not be 4 unreasonably withheld. The Consultant shall notify the Contract Administrator of the names 5 and classifications of employees assigned to each specific Project and shall not reassign 6 such employees to other projects of the Consultant without notification to and prior approval 7 by the Contract Administrator. 8 8. Non-Assignment 9 Neither party shall assign, transfer or sub-Contract this Agreement or any of its 10 respective rights or duties under this Agreement hereunder, without the prior written 11 consent of the other party. 12 9. Hold Harmless 13 A. The Consultant shall defend, hold harmless and indemnify the County, its 14 officers, agents, and employees, against the payment of any and all costs and expenses 15 (including reasonable attorney fees and court costs), damages, claims, suits, losses, and 16 liability for bodily and personal injury to or death of any person or for loss of any property, 17 economic loss or otherwise resulting from or arising out of any negligent or wrongful acts, 18 errors or omissions of the Consultant, its officers, agents, and employees, in performing or 19 failing to perform any work, services, or functions under this Agreement. Provided, 20 however, and notwithstanding the immediately preceding sentence, with respect to any 21 Project on which the Consultant has provided design professional services as defined by 22 Civil Code Section 2782.8(c), the Consultant has no obligation to pay for any defense 23 related cost prior to a final determination of its liability, based upon the percentage of 24 comparative fault (if any) finally determined to be attributable to the Consultant's 25 negligence, recklessness or willful misconduct. Following any such determination, the 26 Consultant shall be responsible to pay to the County the dollar amount of all such defense 27 costs incurred by the County that is commensurate with the finally determined percentage 28 of the Consultant's liability, based upon the final determination of the Consultant's 18 1 comparative fault. The provisions of this Article 9, Section A shall survive termination of this 2 Agreement. 3 B. The County and the Consultant hereby declare their mutual intent to 4 cooperate in the defense of any claim, suit, or other action alleging liability, arising from the 5 negligent performance or failure to perform of any County construction Contractor (or its 6 subcontractor(s)) involved in the construction of any Project(s). Such cooperation may 7 include an agreement to prepare and present a cooperative defense after consultation with 8 the Consultant's professional liability insurance carrier. 9 10. Liability Insurance 10 Without limiting the County's right to obtain indemnification from the Consultant or 11 any third parties, the Consultant, at its sole expense, shall maintain in full force and effect, 12 the following insurance policies prior to commencement of any work for the County and, 13 thereafter, throughout the entire term of this Agreement. 14 A. Commercial General Liability 15 Commercial General Liability Insurance with limits of not less than Two Million 16 Dollars ($2,000,000.00) per occurrence and an annual aggregate of not less than Four 17 Million Dollars ($4,000,000.00). This policy shall be issued on a per occurrence basis. The 18 County may require specific coverages including completed operations, products liability, 19 Contractual liability, Explosion-Collapse-Underground, fire legal liability or any other liability 20 insurance deemed necessary because of the nature of this Agreement. 21 B. Automobile Liability 22 Comprehensive Automobile Liability Insurance with limits of not less than One 23 Million Dollars ($1,000,000.00) per accident for bodily injury and for property damages. 24 Coverage should include any auto used in connection with this Agreement. 25 26 27 28 19 1 C. Professional Liability Insurance: 2 1. If the Consultant employs licensed professional staff in providing 3 services, Professional Liability Insurance with limits of One Million Dollars ($1,000,000.00) 4 per claim, Three Million Dollars ($3,000,000.00) annual aggregate is required. 5 2. The Professional Liability Insurance shall be kept in full force and 6 effect for a period of five (5) years from the date of substantial completion of the 7 Consultant's work as determined by the County. 8 D. Worker's Compensation 9 A policy of Worker's Compensation insurance as may be required by the California 10 Labor Code. 11 E. Additional Requirements Relating to Insurance 12 The Consultant shall obtain endorsements to the Commercial General Liability 13 insurance naming the County of Fresno, its officers, agents, and employees, individually and 14 collectively, as additional insured, but only insofar as the operations under this Agreement 15 are concerned. Such coverage for additional insured shall apply as primary insurance and 16 any other insurance, or self-insurance, maintained by the County, its officers, agents, and 17 employees shall be excess only and not contributing with insurance provided under the 18 Consultant's policies required herein. This insurance shall not be cancelled or changed 19 without a minimum of thirty (30) days advance written notice given to the County. 20 The CONSULTANT hereby waives its right to recover from the County, its officers, 21 agents, and employees any amounts paid by the policy of worker's compensation insurance 22 required by this Agreement. The Consultant is solely responsible to obtain any endorsement 23 to such policy that may be necessary to accomplish such waiver of subrogation, but the 24 Consultant's waiver of subrogation under this paragraph is effective whether or not the 25 Consultant obtains such an endorsement. 26 Prior to commencing any such work under this Agreement, the Consultant shall 27 provide certificates of insurance and endorsements as stated above for all of the foregoing 2s 20 1 policies, as required herein, to the County of Fresno, Erin Haagenson, Program Manager, 2 2220 Tulare St., Sixth Floor, Fresno, CA 93721, stating that such insurance coverages have 3 been obtained and are in full force; that the County of Fresno, its officers, agents and 4 employees will not be responsible for any premiums on the policies; that for such worker's 5 compensation insurance the Consultant has waived its right to recover from the County, it 6 officers, agents, and employees any amounts paid under the insurance policy and that waive 7 does not invalidate the insurance policy; that such Commercial General Liability insurance 8 names the County of Fresno, its officers, agents and employees, individually and collectively, 9 as additional insured, but only insofar as the operations under this Agreement are concerned; 10 that such coverage for additional insured shall apply as primary insurance and any other 11 insurance, or self-insurance, maintained by the County, its officers, agents and employees, 12 shall be excess only and not contributing with insurance provided under the Consultant' 13 policies herein; and that this insurance shall not be cancelled or changed without a minimum 14 of thirty (30) days advance, written notice given to the County. 15 All policies shall be issued by admitted insurers licensed to do business in the State 16 of California, and such insurance shall be purchased from companies possessing a current 17 A.M. Best, Inc. rating of A FSC VII or better. 18 The Consultant agrees that the bodily injury liability insurance herein provided for, 19 shall be in effect at all times during the term of this Agreement. In the event said insurance 20 coverage expires at any time or times during the term of this Agreement, Consultant agrees 21 to provide at least thirty (30) calendar days prior notice to said expiration date; and a new 22 Certificate of Insurance evidencing insurance coverage as provided for herein, for not less 23 than either the remainder of the term of the Agreement, or for a period of not less than one 24 (1) year. New Certificates of Insurance are subject to the approval of County. 25 In the event the Consultant fails to keep in effect at all times the insurance 26 coverages as required by this Article 10, the County may, in addition to any other remedies 27 it may have, suspend or terminate this Agreement upon occurrence of such failure, or may 28 purchase such insurance coverage and charge the cost of the coverage to the Consultant. 21 1 The County may offset such charges against any amounts owed by the County to the 2 Consultant under this Agreement. 3 11. Audits / Retention of Record 4 A. The Consultant shall at any time during business hours, and as often as the 5 County may deem necessary, make available to the County for examination all of its 6 records and data with respect to the matters covered by this Agreement. The Consultant 7 shall, upon request by the County, permit the County to audit and inspect all of such 8 records and data, including but not limited to, the costs of administering this Agreement, 9 necessary to ensure the Consultant's compliance with the terms of this Agreement (and 10 compliance with Public Contract Code 10115, et seq. and Title 21, California Code of 11 Regulations, Chapter 21, Section 2500 et seq., when applicable). 12 B. For the purpose of determining compliance with Government Code section 13 8546.7, the Consultant, its subconsultants, and County shall maintain all books, 14 documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate 15 workpapers, and other evidence pertaining to the performance of the Agreement including, 16 but not limited to, the costs of administering the Agreement. All parties, including the 17 Consultant's Independent CPA, shall make such workpapers and materials available at 18 their respective offices at all reasonable times during the Agreement period and for three 19 (3) years from the date of final payment under the Agreement. The County, Caltrans 20 Auditor, FHWA, or any duly authorized representative of the Federal government having 21 jurisdiction under Federal laws or regulations (including without limitation when such 22 jurisdiction is based upon Federal funding of the Project in whole or in part) shall have 23 access to any books, records, and documents of the Consultant, its subconsultants, and 24 the Consultant's Independent CPA, that are pertinent to the Agreement for audits, 25 examinations, workpaper review, excerpts, transactions, and copies thereof shall be 26 furnished if requested without limitation. It shall be the responsibility of the Consultant to 27 ensure that all subcontracts in excess of$25,000 shall contain this provision. 28 C. This Article 11 survives the termination of this Agreement. 22 1 12. Notices 2 The delivery of all notices hereunder and communications regarding interpretation of 3 the terms of this Agreement and any proposed changes thereto, shall be accomplished by 4 sending an e-mail, addressed to the Contract Administrator and the Consultant's Project 5 Manager as identified on Pages 3 and 4 of this Agreement. For all claims arising out of or 6 related to this Agreement, nothing in this section establishes, waives, or modifies any 7 claims presentation requirements or procedures provided by law, including but not limited 8 to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning 9 with section 810). 10 13. Governing Law 11 Venue for any action arising out of or related to this Agreement shall only be in 12 Fresno County, California. 13 The rights and obligations of the parties and all interpretation and performance of 14 this Agreement shall be governed in all respects by the laws of the State of California. 15 14. Disclosure of Self-Dealing Transactions 16 This provision is only applicable if the Consultant is operating as a corporation (a for- 17 profit or non-profit corporation) or if during the term of this Agreement, the Consultant 18 changes its status to operate as a corporation. Members of the Consultant's Board of 19 Directors shall disclose any self-dealing transactions that they are a party to while the 20 Consultant is providing goods or performing services under this Agreement. A self-dealing 21 transaction shall mean a transaction to which the Consultant is a party and in which one or 22 more of its directors has a material financial interest. Members of the Board of Directors 23 shall disclose any self-dealing transactions that they are a party to by completing and 24 signing a Self-Dealing Transaction Disclosure Form, attached hereto as Appendix G and 25 incorporated herein by reference, and submitting it to the County prior to commencing with 26 the self-dealing transaction or immediately thereafter. 27 15. Electronic Signature 28 The parties agree that this Agreement may be executed by electronic signature as 23 1 provided in this section. 2 A. An "electronic signature" means any symbol or process intended by an 3 individual signing this Agreement to represent their signature, including but not limited to: 4 (1) a digital signature; (2) a faxed version of an original handwritten signature; or (3) an 5 electronically scanned and transmitted (for example by PDF document) version of an 6 original handwritten signature. 7 B. Each electronic signature affixed or attached to this Agreement: (1) is 8 deemed equivalent to a valid original handwritten signature of the person signing this 9 Agreement for all purposes, including but not limited to evidentiary proof in any 10 administrative or judicial proceeding; and (2) has the same force and effect as the valid 11 original handwritten signature of that person. 12 C. The provisions of this section satisfy the requirements of Civil Code section 13 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, 14 Part 2, Title 2.5, beginning with section 1633.1). 15 D. Each party using a digital signature represents that it has undertaken and 16 satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs 17 (1) through (5), and agrees that each other party may rely upon that representation. 18 E. This Agreement is not conditioned upon the parties conducting the 19 transactions under it by electronic means and either party may sign this Agreement with an 20 original handwritten signature. 21 16. Subconsultants 22 A. The Consultant may retain, as subconsultants, specialists in such engineering 23 disciplines (including, but not limited to, structural, mechanical, transportation, 24 environmental, water resources, electrical, surveying and geotechnical) as the Consultant 25 requires to assist in completing the work. The subconsultants listed in Appendix H, 26 attached hereto and incorporated herein, shall be considered as approved by the Contract 27 Administrator. Any other subconsultants proposed for use by the Consultant shall be 28 approved in writing by the Contract Administrator before they are retained by the 24 1 Consultant, which approval shall not be unreasonably withheld. 2 B. Should the Consultant retain any subconsultants, the maximum amount of 3 compensation to be paid to the Consultant under Article 5 shall not be increased. Any 4 additional compensation to be paid to the Consultant for such subconsultants' work shall be 5 limited to administrative time as defined in the fee proposal. Additional fees other than 6 those defined in the fee proposal shall not be reimbursed. 7 C. Consultant shall be as fully responsible to the County for the negligent acts 8 and omissions of its Contractors and subcontractors or subconsultants, and of persons 9 either directly or indirectly employed by them, in the same manner as persons directly 10 employed by Consultant. 11 D. Nothing contained in this Agreement shall create any Contractual relationship 12 between the County and any of the Consultant's subconsultants, and no subconsultant 13 agreement shall relieve the Consultant of any of its responsibilities and obligations 14 hereunder. The Consultant agrees to be as fully responsible to the County for the acts and 15 omissions of its subconsultants and of persons either directly or indirectly employed by any 16 of them as it is for the acts and omissions of persons directly employed by the Consultant. 17 The Consultant's obligation to pay its subconsultants is a separate and independent 18 obligation that is entirely unrelated to the County's obligation to make payments to the 19 Consultant. 20 E. The Consultant shall perform the work contemplated with resources available 21 within its own organization; and no portion of the work pertinent to this Contract shall be 22 subcontracted without prior written authorization by the Contract Administrator, excepting 23 only those portions of the work and the responsible subconsultants that are expressly 24 identified in Appendix H. 25 F. Any subcontract in excess of $25,000 entered into as a result of this 26 Agreement, shall contain all the provisions stipulated in this Agreement to be applicable to 27 subcontractors. 28 G. The Consultant shall pay its subconsultants within fifteen (15) calendar days 25 1 from receipt of each progress payment made to the Consultant by the County. 2 H. Any substitution of subconsultant(s) must be approved in writing by the 3 Contract Administrator in advance of assigning work to a substitute subconsultant. 4 I. Prompt Progress Payment 5 The Consultant or subconsultant shall pay to any subconsultant, not later than fifteen 6 (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the 7 respective amounts allowed Consultant on account of the work performed by the 8 subconsultants, to the extent of each subconsultant's interest therein. In the event that 9 there is a good faith dispute over all or any portion of the amount due on a progress 10 payment from the Consultant or subconsultant to a subconsultant, the Consultant or 11 subconsultant may withhold no more than 150 percent (150%) of the disputed amount. Any 12 violation of this requirement shall constitute a cause for disciplinary action and shall subject 13 the violator to a penalty, payable to the subconsultant, of two percent (2%) of the amount 14 due per month for every month that payment is not made. 15 In any action for the collection of funds wrongfully withheld, the prevailing party shall 16 be entitled to his or her attorney's fees and costs. The sanctions authorized under this 17 requirement shall be separate from, and in addition to, all other remedies, either civil, 18 administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants. 19 J. Prompt Payment of Withheld Funds to Subconsultants 20 The County may hold retainage from the Consultant as provided in Article 5, Section 21 D. 22 1. If the County has elected to hold retainage for a Project under Article 5, 23 Section D, the County shall hold retainage from the Consultant and shall make prompt and 24 regular incremental acceptances of portions, as determined by the County of the Contract 25 work and pay retainage to the Consultant based on these acceptances. The Consultant or 26 subconsultant shall return all monies withheld in retention from all subconsultants within 27 fifteen (15) days after receiving payment for work satisfactorily completed and accepted 28 including incremental acceptances of portions of the Contract work by the County. Any 26 1 delay or postponement of payment may take place only for good cause and with the 2 County's prior written approval, in order to ensure prompt and full payment of any retainage 3 kept by the Consultant or subconsultant to a subconsultant. 4 Any violation of these provisions shall subject the violating Consultant or 5 subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of 6 the California Civil Code. This requirement shall not be construed to limit or impair any 7 Contractual, administrative or judicial remedies otherwise available to the Consultant or 8 subconsultant in the event of a dispute involving late payment or nonpayment by the 9 Consultant, or deficient subconsultant performance and/or noncompliance by a 10 subconsultant. This clause applies to both DBE and non-DBE subconsultants. 11 2. If the County has elected not to hold retainage for a Project under Article 5, 12 Section D, no retainage will be held by the County from progress payments due to the 13 Consultant; and in such case, the Consultant and its subconsultants are prohibited from 14 holding retainage from their subconsultants. Any delay or postponement of payment may 15 take place only for good cause and with the County's prior written approval. Any violation of 16 these provisions shall subject the violating Consultant or subconsultant to the penalties, 17 sanctions, and other remedies specified in Section 3321 of the California Civil Code. This 18 requirement shall not be construed to limit or impair any Contractual, administrative or 19 judicial remedies otherwise available to the Consultant or subconsultant in the event of a 20 dispute involving late payment or nonpayment by the Consultant, or deficient subconsultant 21 performance and/or noncompliance by a subconsultant. This clause applies to both DBE 22 and non-DBE subconsultants. 23 17. Conflict of Interest 24 A. The Consultant shall comply with the provisions of the Fresno County 25 Department of Public Works and Planning Conflict of Interest Code, attached hereto as 26 Appendix I and incorporated herein by this reference. Such compliance shall include the 27 filing of annual statements pursuant to the regulations of the State Fair Political Practices 28 Commission including, but not limited to, portions of Form 700. 27 1 B. During the term of this Agreement, the Consultant shall disclose any financial, 2 business, or other relationship with the County that may have an impact upon the outcome 3 of this Contract, or any ensuing County construction project. The Consultant shall also list 4 current clients who may have a financial interest in the outcome of this Contract, or any 5 ensuing County construction project, which will follow. 6 C. The Consultant certifies that it has disclosed to the County any actual, apparent, 7 or potential conflicts of interest that may exist relative to the services to be provided 8 pursuant to this Agreement. The Consultant agrees to advise the County of any actual, 9 apparent or potential conflicts of interest that may develop subsequent to the date of 10 execution of this Agreement. The Consultant further agrees to complete any statements of 11 economic interest if required by either County ordinance or State law. 12 D. The Consultant hereby certifies that it does not now have nor shall it acquire any 13 financial or business interest that would conflict with the performance of services under this 14 Agreement. 15 E. The Consultant hereby certifies that the Consultant or subconsultant and any firm 16 affiliated with the Consultant or subconsultant that bids on any construction Contract or on 17 any Agreement to provide construction inspection for any construction project resulting 18 from this Agreement, has established necessary controls to ensure a conflict of interest 19 does not exist. An affiliated firm is one, which is subject to the control of the same persons, 20 through joint ownership or otherwise. 21 F. The Consultant and affiliated subconsultants shall not submit bids, or sub-bids, 22 for the Contract construction phase of the Project(s) assigned to the Consultant. The 23 Consultant and its subconsultants, and all other service providers, shall not provide any 24 Project-related services for, or receive any Project-related compensation from any 25 construction Contractor, subcontractor or service provider awarded a construction Contract 26 (hereinafter referred to as "Contractor") for all or any portion of the Project(s) for which the 27 Consultant provides services hereunder. The Consultant and its subconsultants, and all 28 other service providers, may provide services for, and receive compensation from a 28 1 Contractor who has been awarded a construction Contract for all or any portion of the 2 Project(s), provided that any such services which are rendered, and any compensation 3 which is received therefor, relates to work outside the scope of the Agreement and does 4 not pose a conflict of interest. 5 G. Except for subconsultants or subcontractors whose services are limited to 6 providing surveying or materials testing information, no subcontractor who has provided 7 design services in connection with this Contract shall be eligible to bid on any construction 8 Contract, or on any Contract to provide construction inspection for any construction project 9 resulting from this Contract; provided, however, that this shall not be construed as 10 disallowing subcontractors who have provided design services for the Project from 11 performing, pursuant to this Agreement or other agreement with the County, construction 12 inspection services on behalf of the County for the Project. 13 18. Errors or Omissions Claims and Disputes 14 A. Definitions: 15 1. A "Consultant" is a duly licensed Architect or Engineer, or other provider of 16 professional services, acting as a business entity (owner, partnership, corporation, joint 17 venture or other business association) in accordance with the terms of an agreement with 18 the County. 19 2. A "Claim" is a demand or assertion by one of the parties seeking, as a 20 matter of right, adjustment or interpretation of Contract terms, payment of money, extension 21 of time, change orders, or other relief with respect to the terms of the Contract. The term 22 "Claim" also includes other disputes and matters in question between the County and the 23 Consultant arising out of or relating to the Contract. Claims must be made by written notice. 24 The provisions of Government Code section 901, et seq., shall apply to every claim made 25 to the County. The responsibility to substantiate claims shall rest with the party making the 26 claim. The term "Claim" also includes any allegation of an error or omission by the 27 Consultant. 28 B. In the spirit of cooperation between the County and the Consultant, the following 29 1 procedures are established in the event of any claim or dispute alleging a negligent error, 2 act, or omission, of the Consultant. 3 1. Claims, disputes or other matters in question between the parties, arising 4 out of or relating to this Agreement, shall not be subject to arbitration, but shall be subject 5 to the following procedures. 6 2. The County and the Consultant shall meet and confer and attempt to 7 reach agreement on any dispute, including what damages have occurred, the measure of 8 damages and what proportion of damages, if any, shall be paid by either party. The parties 9 agree to consult and consider the use of mediation or other form of dispute resolution prior 10 to resorting to litigation. 11 3. If the County and the Consultant cannot reach agreement under Article 18, 12 Section B, Paragraph 2, the disputed issues may, upon concurrence by all parties, be 13 submitted to a panel of three (3) for a recommended resolution. The Consultant and the 14 County shall each select one (1) member of the panel, and the third member shall be 15 selected by the other two panel members. The discovery rights provided by California Code 16 of Civil Procedure for civil proceedings shall be available and enforceable to resolve the 17 disputed issues. Either party requesting this dispute resolution process shall, when invoking 18 the rights to this panel, give to the other party a notice describing the claims, disputes and 19 other matters in question. Prior to twenty (20) working days before the initial meeting of the 20 panel, both parties shall submit all documents such party intends to rely upon to resolve 21 such dispute. If it is determined by the panel that any party has relied on such 22 documentation but has failed to previously submit such documentation on a timely basis to 23 the other party, the other party shall be entitled to a twenty (20) working day continuance of 24 such initial meeting of the panel. The decision by the panel is not a condition precedent to 25 arbitration, mediation or litigation. 26 4. Upon receipt of the panel's recommended resolution of the disputed 27 issue(s), the County and the Consultant shall again meet and confer and attempt to reach 28 agreement. If the parties still are unable to reach agreement, each party shall have 30 1 recourse to all appropriate legal and equitable remedies. 2 C. The procedures to be followed in the resolution of claims and disputes may be 3 modified any time by mutual agreement of the parties hereto. 4 D. The Consultant shall continue to perform its obligations under this Agreement 5 pending resolution of any dispute, and the County shall continue to make payments of all 6 undisputed amounts due under this Agreement. 7 E. When a claim by either party has been made alleging the Consultant's negligent 8 error, act, or omission, the County and the Consultant shall meet and confer within twenty- 9 one (21) working days after the written notice of the claim has been provided. 10 19. Ownership of Data 11 A. All documents, including preliminary documents, calculations, and survey data, 12 required in performing services under this Agreement shall be submitted to, and shall 13 remain at all times the property of the County regardless of whether they are in the 14 possession of the Consultant or any other person, firm, corporation or agency. 15 B. The Consultant understands and agrees the County shall retain full ownership 16 rights of the drawings and work product of the Consultant for the Project, to the fullest 17 extent permitted by law. In this regard, the Consultant acknowledges and agrees the 18 Consultant's services are on behalf of the County and are "works made for hire," as that 19 term is defined in copyright law, by the County; that the drawings and work product to be 20 prepared by the Consultant are for the sole and exclusive use of the County, and that the 21 County shall be the sole owner of all patents, copyrights, trademarks, trade secrets and 22 other rights and Contractual interests in connection therewith which are developed and 23 compensated solely under this Agreement; that all the rights, title and interest in and to the 24 drawings and work product will be transferred to the County by the Consultant to the extent 25 the Consultant has an interest in and authority to convey such rights; and the Consultant 26 will assist the County to obtain and enforce patents, copyrights, trademarks, trade secrets, 27 and other rights and Contractual interests relating to said drawings and work product, free 28 and clear of any claim by the Consultant or anyone claiming any right through the 31 1 Consultant. The Consultant further acknowledges and agrees the County's ownership 2 rights in such drawings or work product, shall apply regardless of whether such drawings or 3 work product, or any copies thereof, are in possession of the Consultant, or any other 4 person, firm, corporation, or entity. For purposes of this Agreement the terms "drawings 5 and work product" shall mean all reports and study findings commissioned to develop the 6 Project design, drawings and schematic or preliminary design documents, certified 7 reproducibles of the original final construction Contract drawings, specifications, the 8 approved estimate, record drawings, as-built plans, and discoveries, developments, 9 designs, improvement, inventions, formulas, processes, techniques, or specific know-how 10 and data generated or conceived or reduced to practice or learning by the Consultant, 11 either alone or jointly with others, that result from the tasks assigned to the Consultant by 12 the County under this Agreement. 13 C. If this Agreement is terminated during or at the completion of any phase under 14 Article 3, electronic and reproducible copies of report(s) or preliminary documents shall be 15 submitted by the Consultant to the County, which may use them to complete the Project(s) 16 at a future time. 17 D. If the Project is terminated at the completion of a construction document phase o 18 the Project, electronic and certified reproducibles on 4 mil thick double matte film of the 19 original final construction Contract drawings, specifications, and approved engineer's 20 estimate shall be submitted by the Consultant to the County. 21 E. Documents, including drawings and specifications, prepared by the Consultant 22 pursuant to this Agreement are intended to be suitable for reuse by the County or others on 23 extensions of the services provided for the Project. Any use of completed documents for 24 projects other than Project(s) and/or any use of uncompleted documents will be at the 25 County's sole risk and without liability or legal exposure to the Consultant. 26 The electronic files provided by the Consultant to the County are submitted for an 27 acceptance period lasting until the expiration of this Agreement (i.e., throughout the 28 duration of the Contract term, including any extensions). Any defects the County discovers 32 1 during such acceptance period will be reported to the Consultant and will be corrected as 2 part of the Consultant's "Basic Scope of Work." 3 F. The Consultant shall not be liable for claims, liabilities or losses arising out of, or 4 connected with (1) the modification or misuse by the County or anyone authorized by the 5 County, of such CAD data, or (2) decline of accuracy or readability of CAD data due to 6 inappropriate storage conditions or duration; or (3) any use by the County, or anyone 7 authorized by the County, of such CAD data or other Project documentation for additions to 8 the Project for the completion of the Project by others, or for other projects; except to the 9 extent that said use may be expressly authorized, in writing, by the Consultant. 10 G. The County, in the discretion of its Board of Supervisors, may permit the 11 copyrighting of reports or other products. If copyrights are permitted, the Consultant hereby 12 agrees and this Agreement shall be deemed to provide that the Federal Highway 13 Administration shall have the royalty-free nonexclusive and irrevocable right to reproduce, 14 publish, or otherwise use, and to authorize others to use, the work for government 15 purposes. 16 20. Consultant's Legal Authority 17 The Consultant represents and warrants to the County that: 18 A. The Consultant is duly authorized and empowered to sign and perform its 19 obligations under this Agreement; and 20 B. The individual signing this Agreement on behalf of the Consultant is duly 21 authorized to do so and his or her signature on this Agreement legally binds the Consultant 22 to the terms of this Agreement. 23 21. Binding Upon Successors 24 This Agreement shall be binding upon and inure to the benefit of the parties and 25 their respective successors in interest, assigns, legal representatives, and heirs. 26 22. Severability 27 If any part of this Agreement is determined by a court of competent jurisdiction to be 2s 33 1 unlawful or otherwise unenforceable, then this Agreement shall be construed as not 2 containing such provision, and all other provisions which are otherwise lawful shall remain 3 in full force and effect, and to this end the provisions of this Agreement are hereby declared 4 to be severable. 5 23. State Prevailing Wage Rates 6 A. No Consultant or subconsultant may be awarded an Agreement containing public 7 work elements unless registered with the Department of Industrial Relations (DIR) pursuant 8 to Labor Code section 1725.5. Registration with DIR must be maintained throughout the 9 entire term of this Agreement, including any subsequent amendments. 10 B. The Consultant shall comply with all of the applicable provisions of the California 11 Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate 12 Determinations applicable to work under this Agreement are available from the Department 13 of Industrial Relations website http://www.dir.ca.gov. These wage rates are made a specific 14 part of this Agreement by reference pursuant to Labor Code section 1773.2 and will be 15 applicable to work performed at a construction project site. Prevailing wages will be 16 applicable to all inspection work performed at County construction sites, at County facilities 17 and at off-site locations that are set up by the construction Contractor or one of its 18 subcontractors solely and specifically to serve County projects. Prevailing wage 19 requirements do not apply to inspection work performed at the facilities of vendors and 20 commercial materials suppliers that provide goods and services to the general public. 21 C. Payroll Records 22 1. Each Consultant and subconsultant shall keep accurate certified 23 payroll records and supporting documents as mandated by Labor Code section 1776 and 24 as defined in California Code of Regulations, Title 8, Section 16000, showing the name, 25 address, social security number, work classification, straight time and overtime hours 26 worked each day and week, and the actual per diem wages paid to each journeyman, 27 apprentice, worker, or other employee employed by the Consultant or subconsultant in 28 connection with the public work. Each payroll record shall contain or be verified by a written 34 1 declaration that it is made under penalty of perjury, stating both of the following: 2 a. The information contained in the payroll record is true and correct. 3 b. The employer has complied with the requirements of Labor Code sections 4 1771, 1811, and 1815 for any work performed by his or her employees on the public works 5 project. 6 2. The payroll records enumerated under paragraph (1) above shall be 7 certified as correct by the Consultant under penalty of perjury. The payroll records and all 8 supporting documents shall be made available for inspection and copying by County 9 representatives at all reasonable hours at the principal office of the Consultant. The 10 Consultant shall provide copies of certified payrolls or permit inspection of its records as 11 follows: 12 a. A certified copy of an employee's payroll record shall be made 13 available for inspection or furnished to the employee or the employee's authorized 14 representative on request. 15 b. A certified copy of all payroll records enumerated in paragraph (1) 16 above, shall be made available for inspection or furnished upon request to a representative 17 of the County, the Division of Labor Standards Enforcement and the Division of 18 Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls 19 submitted to the County, the Division of Labor Standards Enforcement and the Division of 20 Apprenticeship Standards shall not be altered or obliterated by the Consultant. 21 C. The public shall not be given access to certified payroll records by the 22 Consultant. The Consultant is required to forward any requests for certified payrolls to the 23 County Contract Administrator by both email and regular mail on the business day following 24 receipt of the request. 25 3. Each Consultant shall submit a certified copy of the records 26 enumerated in paragraph (1) above, to the entity that requested the records within ten (10) 27 calendar days after receipt of a written request. 28 4. Any copy of records made available for inspection as copies and 35 1 furnished upon request to the public or any public agency by the County shall be marked or 2 obliterated in such a manner as to prevent disclosure of each individual's name, address, 3 and social security number. The name and address of the Consultant or subconsultant 4 performing the work shall not be marked or obliterated. 5 5. The Consultant shall inform the County of the location of the records 6 enumerated under paragraph (1) above, including the street address, city and county, and 7 shall, within five (5) working days, provide a notice of a change of location and address. 8 6. The Consultant or subconsultant shall have ten (10) calendar days in 9 which to comply subsequent to receipt of written notice requesting the records enumerated 10 in paragraph (1) above. In the event the Consultant or Subconsultant fails to comply within 11 the ten (10) day period, he or she shall, as a penalty to the County, forfeit one hundred 12 dollars ($100) for each calendar day, or portion thereof, for each worker, until strict 13 compliance is effectuated. Such penalties shall be withheld by the County from payments 14 then due. The Consultant is not subject to a penalty assessment pursuant to this section 15 due to the failure of a subconsultant to comply with this section. 16 D. When prevailing wage rates apply, the Consultant is responsible for verifying 17 compliance with certified payroll requirements. Invoice payment will not be made until the 18 invoice is approved by the County Contract Administrator. 19 E. Penalty 20 1. The Consultant and any of its subconsultants shall comply with Labor 21 Code sections 1774 and 1775. Pursuant to Labor Code section 1775, the Consultant and 22 any subconsultant shall forfeit to the County a penalty of not more than two hundred dollars 23 ($200) for each calendar day, or portion thereof, for each worker paid less than the 24 prevailing rates as determined by the Director of DIR for the work or craft in which the 25 worker is employed for any public work done under the Agreement by the Consultant or by 26 its subconsultant in violation of the requirements of the Labor Code and in particular, Labor 27 Code sections 1770 to 1780, inclusive. 28 2. The amount of this forfeiture shall be determined by the Labor 36 1 Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of 2 the Consultant or subconsultant in failing to pay the correct rate of prevailing wages, or the 3 previous record of the Consultant or subconsultant in meeting their respective prevailing 4 wage obligations, or the willful failure by the Consultant or subconsultant to pay the correct 5 rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct 6 rates of prevailing wages is not excusable if the Consultant or subconsultant had 7 knowledge of the obligations under the Labor Code. The Consultant is responsible for 8 paying the appropriate rate, including any escalations that take place during the term of the 9 Agreement. 10 3. In addition to the penalty and pursuant to Labor Code section 1775, the 11 difference between the prevailing wage rates and the amount paid to each worker for each 12 calendar day or portion thereof for which each worker was paid less than the prevailing 13 wage rate shall be paid to each worker by the Consultant or subconsultant. 14 4. If a worker employed by a subconsultant on a public works project is 15 not paid the general prevailing per diem wages by the subconsultant, the prime Consultant 16 of the project is not liable for the penalties described above unless the prime Consultant 17 had knowledge of that failure of the subconsultant to pay the specified prevailing rate of 18 wages to those workers or unless the prime Consultant fails to comply with all of the 19 following requirements: 20 a. The Agreement executed between the Consultant and the 21 subconsultant for the performance of work on public works projects shall include a copy of 22 the requirements in Labor Code sections 1771, 1775, 1776, 1777.5, 1813, and 1815. 23 b. The Consultant shall monitor the payment of the specified general 24 prevailing rate of per diem wages by the subconsultant to the employees by periodic review 25 of the certified payroll records of the subconsultant. 26 C. Upon becoming aware of the subconsultant's failure to pay the 27 specified prevailing rate of wages to the subconsultant's workers, the Consultant shall 28 diligently take corrective action to halt or rectify the failure, including but not limited to, 37 1 retaining sufficient funds due the subconsultant for work performed on the public works 2 project. 3 d. Prior to making final payment to the subconsultant for work performed 4 on the public works project, the Consultant shall obtain an affidavit signed under penalty of 5 perjury from the subconsultant that the subconsultant had paid the specified general 6 prevailing rate of per diem wages to the subconsultant's employees on the public works 7 project and any amounts due pursuant to Labor Code section 1813. 8 5. Pursuant to Labor Code section 1775, the County shall notify the 9 Consultant on a public works project within fifteen (15) calendar days of receipt of a 10 complaint that a subconsultant has failed to pay workers the general prevailing rate of per 11 diem wages. 12 6. If the County determines that employees of a subconsultant were not 13 paid the general prevailing rate of per diem wages and if the County did not retain sufficient 14 money under the Agreement to pay those employees the balance of wages owed under the 15 general prevailing rate of per diem wages, the Consultant shall withhold an amount of 16 moneys due the subconsultant sufficient to pay those employees the general prevailing rate 17 of per diem wages if requested by the County. 18 F. Hours of Labor 19 Eight (8) hours of labor constitutes a legal day's work. The Consultant shall forfeit, as 20 a penalty to the County, twenty-five dollars ($25) for each worker employed in the 21 execution of the Agreement by the Consultant or any of its subconsultants for each 22 calendar day during which such worker is required or permitted to work more than eight (8) 23 hours in any one calendar day and forty (40) hours in any one calendar week in violation of 24 the provisions of the Labor Code, and in particular sections 1810 to 1815 thereof, inclusive, 25 except that work performed by employees in excess of eight (8) hours per day, and forty 26 (40) hours during any one week, shall be permitted upon compensation for all hours 27 worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less 28 than one and one half (1.5) times the basic rate of pay, as provided in section 1815. 38 1 G. Employment of Apprentices 2 1. Where either the prime Agreement or the subconsultant agreement 3 exceeds thirty thousand dollars ($30,000), the Consultant and any subconsultants under 4 him or her shall comply with all applicable requirements of Labor Code sections 1777.5, 5 1777.6 and 1777.7 in the employment of apprentices. 6 2. Consultant and all subconsultants are required to comply with all Labor 7 Code requirements regarding the employment of apprentices, including mandatory ratios of 8 journey level to apprentice workers. Prior to commencement of work, the Consultant and 9 subconsultants are advised to contact the DIR Division of Apprenticeship Standards 10 website at https://www.dir.ca.gov/das/, for additional information regarding the employment 11 of apprentices and for the specific journey-to-apprentice ratios for the Agreement work. The 12 Consultant is responsible for all subconsultants' compliance with these requirements. 13 Penalties are specified in Labor Code section 1777.7. 14 24. Disadvantaged Business Enterprises (DBE) Participation 15 A. This Agreement is subject to 49 Code of Federal Regulations (hereinafter referred 16 to as "49 CFR"), Part 26 Participation by Disadvantaged Business Enterprises in 17 Department of Transportation Financial Assistance Programs, Disadvantaged Business 18 Enterprise programs established by other federal agencies and/or the County's 19 Disadvantaged Business Enterprise Program (all of which are hereinafter referred to as 20 "DBE Program(s)"), 21 B. The Consultant is responsible for being fully informed regarding the requirements 22 of 49 CFR, Part 26 and the CALTRANS Disadvantaged Business Enterprise program 23 developed pursuant to the regulations, as detailed in Appendix J, attached hereto and 24 incorporated herein. 25 C. The Consultant, subrecipient (the County), or subconsultant shall take necessary 26 and reasonable steps to ensure that DBEs have opportunities to participate in the Contract 27 (49 CFR Part 26). To ensure equal participation of DBEs as provided in 49 CFR Section 28 26.5, the County specifies a Contract goal for DBEs. The Consultant shall make work 39 1 available to DBEs and allocate portions of the work consistent with available DBE 2 subconsultants and suppliers. 3 The Consultant shall meet the DBE goal shown elsewhere in these special 4 provisions or demonstrate its having made adequate good faith efforts to meet this goal. It 5 is the Consultant's responsibility to verify that the DBE firm is certified as DBE at date of 6 proposal opening and document the record by printing out the California Unified 7 Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP 8 can be found at .https://californiaucp.dbesystem.com. 9 All DBE participation will count toward the California Department of Transportation's 10 federally mandated statewide overall DBE goal. Credit for materials or supplies Consultant 11 purchases from DBEs counts towards the goal in the following manner: 12 • 100 percent (100%) counts if the materials or supplies are obtained from a 13 DBE manufacturer. 14 • 60 percent (60%) counts if the materials or supplies are purchased from a 15 DBE regular dealer. 16 • Only fees, commissions, and charges for assistance in the procurement 17 and delivery of materials or supplies count if obtained from a DBE that is neither a 18 manufacturer nor regular dealer. 49 CFR Section 26.55 defines "manufacturer" and 19 "regular dealer." 20 This Agreement is subject to 49 CFR Part 26 entitled "Participation by 21 Disadvantaged Business Enterprises in Department of Transportation Financial Assistance 22 Programs". Any Consultant who enters into a federally funded agreement will assist the 23 County in a good faith effort to achieve California's statewide overall DBE goal. 24 D. The goal for DBE participation for this Agreement is thirteen percent (13.0%). 25 Participation by a DBE Consultant or subconsultants shall be in accordance with 26 information contained in Exhibit 10-02: Consultant Contract DBE Commitment attached 27 hereto and incorporated as part of the Agreement as Appendix K. If a DBE subconsultant is 28 unable to perform, the Consultant must make a good faith effort to replace them with 40 1 another DBE subconsultant, if the goal is not otherwise met. 2 E. The Consultant can meet the DBE participation goal by either documenting 3 commitments to DBEs to meet the Agreement goal, or by documenting adequate good faith 4 efforts to meet the Agreement goal. An adequate good faith effort means that the 5 Consultant must show that it took all necessary and reasonable steps to achieve a DBE 6 goal that, by their scope, intensity, and appropriateness to the objective, could reasonably 7 be expected to meet the DBE goal. If the Consultant has not met the DBE goal, the 8 Consultant must then complete and submit Exhibit 15-H: DBE Information — Good Faith 9 Efforts to document its efforts to meet the goal. Refer to 49 CFR Part 26 for guidance 10 regarding evaluation of good faith efforts to meet the DBE goal. 11 F. Contract Assurance 12 Under 49 CFR Section 26.13(b): 13 The Consultant, subrecipient or subconsultant shall not discriminate on the basis of 14 race, color, national origin, or sex in the performance of this Contract. The Consultant shall 15 carry out applicable requirements of 49 CFR Part 26 in the award and administration of 16 federal-aid Contracts. 17 Failure by the Consultant to carry out these requirements is a material breach of this 18 Contract, which may result in the termination of this Contract or such other remedy as the 19 recipient deems appropriate, which may include, but is not limited to: 20 (1) Withholding monthly progress payments; 21 (2) Assessing sanctions; 22 (3) Liquidated damages; and/or 23 (4) Disqualifying Consultant from future proposing as non-responsible. 24 G. Termination and Replacement of DBE Subconsultants 25 The Consultant shall utilize the specific DBEs listed to perform the work and supply 26 the materials for which each is listed unless the Consultant or DBE subconsultant obtains 27 the County's written consent. The Consultant shall not terminate or replace a listed DBE for 28 convenience and perform the work with their own forces or obtain materials from other 41 1 sources without authorization from the County. Unless the County's consent is provided, 2 the Consultant shall not be entitled to any payment for work or material unless it is 3 performed or supplied by the listed DBE on the Exhibit 10-02 Consultant Contract DBE 4 Commitment form. 5 H. Termination of DBE Subconsultants 6 After execution of the Agreement, termination of a DBE may be allowed for the following, 7 but not limited to, justifiable reasons with prior written authorization from the County: 8 The County authorizes a request to use other forces or sources of materials if the 9 Consultant shows any of the following justifications: 10 1. Listed DBE fails or refuses to execute a written Contract based on plans 11 and specifications for the project. 12 2. The County stipulated that a bond is a condition of executing the 13 subcontract and the listed DBE fails to meet the County's bond requirements. 14 3. Work requires a consultant's license, and listed DBE does not have a valid 15 license under Contractors License Law. 16 4. Listed DBE fails or refuses to perform the work or furnish the listed 17 materials (failing or refusing to perform is not an allowable reason to remove a DBE if the 18 failure or refusal is a result of bad faith or discrimination). 19 5. Listed DBE's work is unsatisfactory and not in compliance with the 20 Contract. 21 6. Listed DBE is ineligible to work on the project because of suspension or 22 debarment. 23 7. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness. 24 8. Listed DBE voluntarily withdraws with written notice from the Contract 25 9. Listed DBE is ineligible to receive credit for the type of work required. 26 10. Listed DBE owner dies or becomes disabled resulting in the inability to 27 perform the work on the Contract. 28 11. The County determines other documented good cause. 42 1 Consultant must use the following procedures to request the termination of a DBE or 2 portion of a DBE's work: 3 1. Send a written notice to the DBE of the Consultant's intent to use other 4 forces or material sources and include one or more justifiable reasons listed above. 5 Simultaneously send a copy of this written notice to the County. The written notice to the 6 DBE must request they provide any response within five (5) business days to both the 7 Consultant and the County by either acknowledging their agreement or documenting their g reasoning as to why the use of other forces or sources of materials should not occur. 9 2. If the DBE does not respond within five (5) business days, Consultant may 10 move forward with the request as if the DBE had agreed to Consultant's written notice. 11 3. Submit Consultant's DBE termination request by written letter to the Count 12 and include: 13 • One or more above listed justifiable reasons along with supporting 14 documentation. 15 • Consultant's written notice to the DBE regarding the request, including proof 16 of transmission and tracking documentation of Consultant's written notice 17 • The DBE's response to Consultant's written notice, if received. If a written 18 response was not provided, provide a statement to that effect. 19 The County shall respond in writing to Consultant's DBE termination request 20 within five (5) business days. 21 I. Replacement of DBE Subconsultants 22 After receiving the County's written authorization of DBE termination request, 23 Consultant must obtain the County's written agreement for DBE replacement. 24 Consultant must find or demonstrate GFEs to find qualified DBE replacement 25 firms to perform the work to the extent needed to meet the DBE commitment. 26 The following procedures shall be followed to request authorization to replace a DBE 27 firm: 28 1. Submit a request to replace a DBE with other forces or material sources in writing 43 1 to the County which must include: 2 a. Description of remaining uncommitted work item made available for replacement 3 DBE solicitation and participation. 4 b. The proposed DBE replacement firm's business information, the work they have 5 agreed to perform, and the following: 6 • Description of scope of work and cost proposal. 7 • Proposed subcontract agreement and written confirmation of agreement to 8 perform on the Contract 9 • Revised Exhibit 10-02: Consultant Contract DBE Commitment 10 2. If Consultant has not identified a DBE replacement firm, submits documentation of 11 Consultant's GFEs to use DBE replacement firms within seven (7) days of County 12 authorization to terminate the DBE. Consultant may request the County 's approval to 13 extend this submittal period to a total of 14 days. Submit documentation of actions taken to 14 find a DBE replacement firm, such as: 15 • Search results of certified DBEs available to perform the original DBE work 16 identified and or other work Consultant had intended to self-perform, to the extent needed 17 to meet DBE commitment 18 • Solicitations of DBEs for performance of work identified 19 • Correspondence with interested DBEs that may have included Contract 20 details and requirements 21 • Negotiation efforts with DBEs that reflect why an agreement was not 22 reached • If a DBE's quote was rejected, provide reasoning for the rejection, such as why 23 the DBE was unqualified for the work, or why the price quote was unreasonable or 24 excessive 25 • Copies of each DBE's and non-DBE's price quotes for work identified, as the 26 County may contact the firms to verify solicitation efforts and determine if the DBE quotes 27 are substantially higher 28 • Additional documentation that supports Consultant's GFE The County shall 44 1 respond in writing to Consultant's DBE replacement request within five (5) business days. 2 H. Commitment and Utilization 3 The County's DBE program must include a monitoring and enforcement mechanism 4 to ensure that DBE commitments reconcile to DBE utilization. 5 The County shall request the Consultant to: 6 1. Notify the County's Contract Administrator or designated representative of 7 any changes to its anticipated DBE participation 8 2. Provide this notification before starting the affected work 9 3. Maintain records including: 10 • Name and business address of each 1 st-tier subconsultant 11 • Name and business address of each DBE subconsultant, DBE vendor, 12 and DBE trucking company, regardless of tier 13 • Date of payment and total amount paid to each business (see Exhibit 9-F 14 Monthly Disadvantaged Business Enterprise Payment) 15 If the Consultant is a DBE Consultant, it shall include the date(s) of work performed 16 by its own forces and the corresponding value of all such work. If a DBE is decertified 17 before completing its work, the DBE must notify Consultant in writing of the decertification 18 date. If a business becomes a certified DBE before completing its work, the business must 19 notify the Consultant in writing of the certification date. The Consultant shall submit the 20 notifications to the County. On work completion, the Consultant shall complete a 21 Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-0, form 22 and submit the form to the County within thirty (30) days of Contract acceptance. 23 Upon work completion, the Consultant shall complete Exhibit 17-F Final Report— 24 Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and 25 submit it to the County within ninety (90) days of Contract acceptance. The County will 26 withhold $10,000 until the form is submitted. The County will release the withhold upon 27 submission of the completed form. In the County's reports of DBE participation to Caltrans, 28 the County must display both commitments and attainments. 45 1 I. Commercially Useful Function 2 DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when 3 performing work or supplying materials listed on the DBE Commitment form. The DBE 4 value of work will only count toward the DBE commitment if the DBE performs a CUF. A 5 DBE performs a CUF when it is responsible for execution of the work of the Agreement and 6 is carrying out its responsibilities by actually performing, managing, and supervising the 7 work involved. To perform a CUF, the DBE must also be responsible, with respect to 8 materials and supplies used on the Agreement, for negotiating price, determining quality 9 and quantity, ordering the material and installing (where applicable), and paying for the 10 material itself. Consultant must perform CUF evaluation for each DBE working on a federal- 11 aid Contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the 12 DBE's work and continue to monitor the performance of CUF for the duration of the project. 13 Consultant must provide written notification to the County at least 15 days in 14 advance of each DBE's initial performance of work or supplying materials for the Contract. 15 The notification must include the DBE's name, work the DBE will perform on the Contract, 16 and the location, date, and time of where their work will take place. 17 Within 10 days of a DBE initially performing work or supplying materials on the 18 Contract, Consultant shall submit to the County the initial evaluation and validation of DBE 19 performance of a CUF using the LAPM 9-J: Disadvantaged Business Enterprise 20 Commercially Useful Function Evaluation. Include the following information with the 21 submittal: 22 • Subcontract agreement with the DBE 23 • Purchase orders 24 • Bills of lading 25 0 Invoices 26 • Proof of payment 27 Consultant must monitor all DBE's performance of CUF by conducting quarterly 28 evaluations and validations throughout their duration of work on the Contract using the 46 1 LAPM 94 DBE Commercially Useful Function Evaluation. Consultant must submit to the 2 County these quarterly evaluations and validations by the 5th of the month for the previous 3 three months of work. 4 Consultant must notify the County immediately if they believe the DBE may not be 5 performing a CUF. 6 The County will verify DBEs performance of CUF by reviewing the initial and 7 quarterly submissions of LAPM 94 DBE Commercially Useful Function Evaluation, 8 submitted supporting information, field observations, and through any additional County 9 evaluations. The County must evaluate DBEs and their CUF performance throughout the 10 duration of a Contract. The County will provide written notice to the Consultant and the 11 DBE at least two (2) business days prior to any evaluation. The Consultant and the DBE 12 must participate in the evaluation. Upon completing the evaluation, the County must share 13 the evaluation results with the Consultant and the DBE. An evaluation could include items 14 that must be remedied upon receipt. If the County determines the DBE is not performing a 15 CUF, the Consultant must suspend performance of the noncompliant work. 16 Consultant and DBEs must submit any additional CUF related records and 17 documents within five (5) business days of County's request such as: 18 Proof of ownership or lease and rental agreements for equipment 19 Tax records 20 Employee rosters 21 Certified payroll records 22 -Inventory rosters 23 Failure to submit required DBE Commercially Useful Function Evaluation forms or 24 requested records and documents can result in withholding of payment for the value of 25 work completed by the DBE. 26 If Consultant and/or the County determine that a listed DBE is not performing a CUF 27 in performance of their DBE committed work, Consultant must immediately suspend 28 performance of the noncompliant portion of the work. County may deny payment for the 47 1 noncompliant portion of the work. County will ask the Consultant to submit a corrective 2 action plan (CAP) to the County within five (5) days of the noncompliant CUF 3 determination. The CAP must identify how the Consultant will correct the noncompliance 4 findings for the remaining portion of the DBE's work. County has five (5) days to review the 5 CAP in conjunction with the Consultant's review. The Consultant must implement the CAP 6 within five (5) days of the County's approval. The County will then authorize the prior 7 noncompliant portion of work for the DBE's committed work. 8 If corrective actions cannot be accomplished to ensure the DBE performs a 9 commercially useful function on the Contract, Consultant may have good cause to request 10 termination of the DBE. 11 J. A DBE does not perform a CUF if its role is limited to that of an extra participant 12 in a transaction, Agreement, or project through which funds are passed in order to obtain 13 the appearance of DBE participation. In determining whether a DBE is such an extra 14 participant, examine similar transactions, particularly those in which DBEs do not 15 participate. 16 K. If a DBE does not perform or exercise responsibility for at least thirty percent 17 (30%) of the total cost of its Agreement with its own work force, or the DBE subcontracts a 18 greater portion of the work of the Agreement than would be expected on the basis of 19 normal industry practice for the type of work involved, it will be presumed that it is not 20 performing a CUF. 21 L. The Consultant shall maintain records of materials purchased or supplied from all 22 subcontracts entered into with certified DBEs. The records shall show the name and 23 business address of each DBE or vendor and the total dollar amount actually paid each 24 DBE or vendor, regardless of tier. The records shall show the date of payment and the total 25 dollar figure paid to all firms. DBE Consultants shall also show the date of work performed 26 by their own forces along with the corresponding dollar value of the work. 27 M. If a DBE subconsultant is decertified during the life of the Agreement, the 28 decertified subconsultant shall notify Consultant in writing with the date of decertification. If 48 1 a subconsultant becomes a certified DBE during the life of the Agreement, the 2 subconsultant shall notify the Consultant in writing with the date of certification. Any 3 changes should be reported to County's Contract Administrator within thirty (30) calendar 4 days. 5 N. After submitting an invoice for reimbursement that includes a payment to a DBE, 6 by the 15th of the month following the month of any payment(s), the Consultant must now 7 submit Exhibit 9-P to the County administering the Contract. If the Consultant does not 8 make any payments to subconsultants, supplier(s), and/or manufacturers they must report 9 "no payments were made to subs this month" and write this visibly and legibly on Exhibit 9- 10 P. 11 O. Any subcontract entered into as a result of this Agreement shall contain all of the 12 provisions of this Article 24. 13 25. Cost Principles 14 A. The Consultant agrees that the 48 CFR Part 31 Contract Cost Principles and 15 Procedures shall be used to determine the allowability of cost. 16 B. The Consultant also agrees to comply with federal procedures in accordance 17 with Title 49 CFR, Part 18 Uniform Administrative Requirements, Cost Principles, and Audit 18 Requirements for Federal Awards. 19 C. Any costs for which payment has been made to the Consultant that are 20 determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 21 200 are subject to repayment by the Consultant to the County. 22 D. When a Consultant or subconsultant is a Non-Profit Organization or an Institution 23 of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative 24 Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply. 25 26. Audit Review Procedures 26 A. Any dispute concerning a question of fact arising under an interim or post audit of 27 this Agreement that is not disposed of by agreement between the parties, shall be reviewed 28 by the County's Auditor/Controller/Treasurer/Tax-Collector. 49 1 B. Not later than thirty (30) days after issuance of the final audit report, the 2 Consultant may request a review by the County's Auditor/Controller/Treasurer/Tax- 3 Collector of unresolved audit issues. The request for review will be submitted in writing. 4 C. Neither the pendency of a dispute nor its consideration by the County will excuse 5 the Consultant from full and timely performance, in accordance with the terms of this 6 Agreement. 7 D. The Consultant and subconsultants' Contracts, including cost proposals and 8 indirect cost rates (ICR), are subject to audits or reviews such as, but not limited to, a 9 Contract Audit, an Incurred Cost Audit, an ICR Audit, or a certified public accountant (CPA) 10 ICR Audit Workpaper Review. If selected for audit or review, the Contract, cost proposal 11 and ICR and related workpapers, if applicable, will be reviewed to verify compliance with 48 12 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR Audit 13 Workpaper Review it is the Consultant's responsibility to ensure federal, state, or local 14 government officials are allowed full access to the CPA's workpapers, including making 15 such copies as the auditor deems necessary. This Agreement, the Consultant's Cost 16 Proposal (Appendix E), and ICR shall be adjusted by the Consultant and approved by the 17 Contract Administrator to conform to the audit or review recommendations. The Consultant 18 agrees that individual terms of costs identified in the audit report shall be incorporated into 19 the Contract by this reference if directed by the County at its sole discretion. Refusal by the 20 Consultant to incorporate audit or review recommendations, or to ensure that the Federal, 21 State, or local governments have access to CPA workpapers, will be considered a breach 22 of Contract terms and cause for termination of this Agreement and disallowance of prior 23 reimbursed costs. 24 E. The Consultant's Cost Proposal (Appendix E) may be subject to a CPA ICR Audit 25 Work Paper Review and/or audit by the Independent Office of Audits and Investigations 26 (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR 27 documentation. The Cost Proposal shall be adjusted by the Consultant and approved by 28 the County's Contract Administrator to conform to the Work Paper Review 50 1 recommendations included in the management letter or audit recommendations included in 2 the audit report. Refusal by the Consultant to incorporate the Work Paper Review 3 recommendations included in the management letter or audit recommendations included in 4 the audit report will be considered a breach of the Agreement terms and cause for 5 termination of the Agreement and disallowance of prior reimbursed costs. 6 1. During IOAI's review of the ICR audit work papers created by the Consultant's 7 independent CPA, IOAI will work with the CPA and/or the Consultant toward a resolution of 8 issues that arise during the review. Each party agrees to use its best efforts to resolve any 9 audit disputes in a timely manner. If IOAI identifies significant issues during the review and 10 is unable to issue a cognizant approval letter, the County will reimburse the Consultant at 11 an accepted ICR until a Federal Acquisition Regulation (FAR) compliant ICR (e.g. 48 CFR 12 Part 31 ; Generally Accepted Auditing Standards (GALAS); Cost Accounting Standards 13 (CAS), if applicable; in accordance with procedures and guidelines of the American 14 Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and 15 other applicable procedures and guidelines) is received and approved by IOAI. 16 Accepted rates will be as follows: 17 a. If the proposed rate is less than one hundred fifty percent (150%) - the 18 accepted rate reimbursed will be ninety percent (90%) of the proposed rate. 19 b. If the proposed rate is between one hundred fifty percent (150%) and 20 two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of 21 the proposed rate. 22 C. If the proposed rate is greater than two hundred percent (200%) - the 23 accepted rate will be seventy-five percent (75%) of the proposed rate. 24 2. If IOAI is unable to issue a cognizant letter per Paragraph E.1. above, IOAI 25 may require the Consultant to submit a revised independent CPA-audited ICR and audit 26 report within three (3) months of the effective date of the management letter. IOAI will then 27 have up to six (6) months to review the Consultant's and/or the independent CPA's 28 revisions. 51 1 3. If the Consultant fails to comply with the provisions of this Section E, or if IOAI 2 is still unable to issue a cognizant approval letter after the revised independent CPA 3 audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR 4 that was established upon initial rejection of the ICR and set forth in Paragraph E.1. above 5 for all rendered services. In this event, this accepted ICR will become the actual and final 6 ICR for reimbursement purposes under this Agreement. 7 4. The Consultant may submit to the County final invoice only when all of the 8 following items have occurred: (1) IOAI accepts or adjusts the original or revised 9 independent CPA audited ICR; (2) all work under this Agreement has been completed to 10 the satisfaction of the COUNTY; and (3) IOAI has issued its final ICR review letter. The 11 Consultant must submit its final invoice to the County no later than sixty (60) calendar 12 days after occurrence of the last of these items. The accepted ICR will apply to this 13 Agreement and all other agreements executed between the County and the Consultant, 14 either as a prime or subconsultant, with the same fiscal period ICR. 15 27. Equipment Purchase 16 A. Prior authorization, in writing, by the Contract Administrator shall be required 17 before the Consultant enters into any unbudgeted purchase order, or subcontract 18 exceeding five thousand dollars ($5,000) for supplies, equipment, or Consultant services. 19 The Consultant shall provide an evaluation of the necessity or desirability of incurring such 20 costs. 21 B. Prior authorization by the Contract Administrator shall be required for purchase o 22 any item, service or consulting work in excess of five thousand dollars ($5,000) that is not 23 covered in the Consultant's Cost Proposal; and the Consultant's request must be 24 accompanied by at least three competitive quotations, unless the absence of proposal is 25 adequately justified, to the satisfaction of the Contract Administrator in his/her discretion, by 26 written explanation provided by the Consultant with its submittal. 27 C. Any authorized purchase of equipment as a result of this Agreement is subject to 28 the following: "The Consultant shall maintain an inventory of all nonexpendable property. 52 1 Nonexpendable property is defined as having a useful life of at least two years and an 2 acquisition cost of$5,000 or more. If the purchased equipment needs replacement and is 3 sold or traded in, the County shall receive a proper refund or credit at the conclusion of the 4 Contract, or if the Contract is terminated, the Consultant may either keep the equipment 5 and credit the County in an amount equal to its fair market value, or sell such equipment at 6 the best price obtainable at a public or private sale, in accordance with established County 7 procedures; and credit the County in an amount equal to the sales price. If the Consultant 8 elects to keep the equipment, fair market value shall be determined at the Consultant's 9 expense, on the basis of a competent independent appraisal of such equipment. Appraisals 10 shall be obtained from an appraiser mutually agreeable to the County and the Consultant, if 11 it is determined to sell the equipment, the terms and conditions of such sale must be 12 approved in advance by the County." Title 2 CFR, Part 200 requires a credit to Federal 13 funds when participating equipment with a fair market value greater than five thousand 14 dollars ($5,000.00) is credited to the Project. 15 28. Rebates, Kickbacks or Other Unlawful Consideration 16 The Consultant warrants that this Agreement was not obtained or secured through 17 rebates, kickbacks or other unlawful consideration, either promised or paid to any County 18 employee. For breach or violation of this warranty, the County shall have the right, in its 19 discretion, to terminate this Agreement without liability; or to pay only for the value of the 20 work actually performed; or to deduct from this Agreement price or otherwise recover the 21 full amount of such rebate, kickback or other unlawful consideration. 22 29. Prohibition of Expending County, State, or Federal Funds for Lobbying 23 A. The Consultant certifies (Appendix L) to the best of his or her knowledge and 24 belief that: 25 1. No state, federal or County appropriated funds have been paid, or will be paid 26 by or on behalf of the Consultant to any person for influencing or attempting to influence an 27 officer or employee of any state or federal agency; a Member of the State Legislature or 28 United States Congress; an officer or employee of the Legislature or Congress; or any 53 1 employee of a Member of the Legislature or Congress, in connection with any of the 2 following: 3 a. the awarding of any state or federal Contract; 4 b. the making of any state or federal grant; 5 c. the making of any state or federal loan; 6 d. the entering into of any cooperative agreement, or 7 e. the extension, continuation, renewal, amendment, or modification of 8 any state or federal Contract, grant, loan, or cooperative agreement. 9 2. If any funds other than federally appropriated funds have been paid, or will be 10 paid to any person for influencing or attempting to influence an officer or employee of any 11 federal agency; a Member of Congress; an officer or employee of Congress, or an 12 employee of a Member of Congress; in connection with this federal Contract, grant, loan, or 13 cooperative agreement, then the Consultant shall complete and submit Standard Form- 14 LLL, "Disclosure Form to Report Lobbying" (Appendix L), in accordance with its 15 instructions. 16 B. The certification required by the provisions of this Article is a material 17 representation of fact upon which reliance was placed when this transaction was made or 18 entered into. Submission of this certification is a prerequisite for making or entering into this 19 transaction imposed by Title 31, U.S. Code Section 1352. Any person who fails to file the 20 required certification shall be subject to a civil penalty of not less than $10,000 and not 21 more than $100,000 for each such failure. 22 C. The Consultant also agrees by signing this document that he or she shall require 23 that the language of this certification be included in all lower-tier subcontracts, which 24 exceed $100,000, and that all such sub-recipients shall certify and disclose accordingly. 25 30. Non-Discrimination Clause and Statement of Compliance 26 A. The Consultant's signature affixed herein, and dated, shall constitute a 27 certification under penalty of perjury under the laws of the State of California that the 28 Consultant has, unless exempt, complied with, the nondiscrimination program requirements 54 1 of Government Code section 12990 and 2 CCR section 8103. 2 B. During the performance of this Agreement, the Consultant and its subconsultants 3 shall not deny this Agreement's benefits to any person on the basis of race, religious creed, 4 color, national origin, ancestry, physical disability, mental disability, medical condition, 5 genetic information, marital status, sex, gender, gender identity, gender expression, age, 6 sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, 7 harass, or allow harassment against any employee or applicant for employment because of 8 race, religious creed, color, national origin, ancestry, physical disability, mental disability, 9 medical condition, genetic information, marital status, sex, gender, gender identity, gender 10 expression, age, sexual orientation, or military and veteran status. The Consultant and 11 subconsultants shall ensure that the evaluation and treatment of their employees and 12 applicants for employment are free from such discrimination and harassment. 13 C. The Consultant and subconsultants shall comply with the provisions of the Fair 14 Employment and Housing Act (Gov. Code § 12990 et seq.) and the applicable regulations 15 promulgated thereunder (2 CCR § 11000 et seq.), the provisions of Government Code 16 sections 11135 et seq., and the regulations or standards adopted by the County to 17 implement such provisions. The applicable regulations of the Fair Employment and 18 Housing Commission implementing Government Code Section 12990 (a-f), set forth in 19 Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated 20 into this Agreement by reference and made a part hereof as if set forth in full. 21 D. Consultant shall permit access by representatives of the Department of Fair 22 Employment and Housing and the County upon reasonable notice at any time during 23 normal business hours, but in no case less than twenty-four (24) hours' notice, to such of 24 its books, records, accounts, and all other sources of information and its facilities as said 25 Department or the County shall require in order to ascertain compliance with the 26 requirements of this Article 30. 27 E. The Consultant and subconsultants shall give written notice of their obligations 28 under this Article 30 to labor organizations with which they have a collective bargaining or 55 1 other agreement. 2 F. The Consultant and subconsultants shall include the nondiscrimination and 3 compliance provisions of this Article 30 in all subcontracts to perform work under this 4 Agreement. 5 G. The Consultant, with regard to the work performed under this Agreement, shall 6 act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). 7 Title VI provides that the recipients of federal assistance will implement and maintain a 8 policy of nondiscrimination in which no person in the United States shall, on the basis of 9 race, color, national origin, religion, sex, age, disability, be excluded from participation in, 10 denied the benefits of or subject to discrimination under any program or activity by the 11 recipients of federal assistance or their assignees and successors in interest. 12 H. The Consultant shall comply with regulations relative to non-discrimination in 13 federally assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - 14 Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the Consultant shall not 15 participate either directly or indirectly in the discrimination prohibited by 49 CFR § 21.5, 16 including employment practices and the selection and retention of subconsultants. 17 I. The Consultant, subrecipient or subconsultant will never exclude any person from 18 participation in, deny any person the benefits of, or otherwise discriminate against anyone 19 in connection with the award and performance of any Contract covered by 49 CFR 26 on 20 the basis of race, color, sex, or national origin. In administering the County components of 21 the DBE Program Plan, the Consultant, subrecipient or subconsultant will not, directly, or 22 through Contractual or other arrangements, use criteria or methods of administration that 23 have the effect of defeating or substantially impairing accomplishment of the objectives of 24 the DBE Program Plan with respect to individuals of a particular race, color, sex, or national 25 origin. 26 31. Debarment and Suspension Certification 27 A. The Consultant's signature affixed herein, shall constitute a certification under 28 penalty of perjury under the laws of the State of California, that the Consultant has 56 1 complied with Title 49, Code of Federal Regulations, Appendix A to Part 29, Debarment 2 and Suspension Certificate, which certifies that the Consultant or any person associated 3 therewith in the capacity of owner, partner, director, officer, or manager: 4 1. Is not currently under suspension, debarment, voluntary exclusion, or 5 determination of ineligibility by any federal agency; 6 2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible 7 by any federal agency within the past three (3) years; 8 3. Does not have a proposed debarment pending; and 9 4. Has not been indicted, convicted, or had a civil judgment rendered against it by a 10 court of competent jurisdiction in any matter involving fraud or official misconduct 11 within the past three (3) years. 12 B. Any exceptions to this certification must be disclosed to the County on Appendix 13 M. Exceptions will not necessarily result in denial of recommendation for award but will be 14 considered in determining Consultant responsibility. Disclosures must indicate to whom 15 exceptions apply, initiating agency, and dates of action. 16 C. Exceptions to the Federal Government Excluded Parties Listing System 17 maintained by the General Services Administration are to be determined by the Federal 18 Highway Administration. 19 32. Funding Requirements 20 A. It is mutually understood between the parties that this Agreement may have been 21 written before ascertaining the availability of funds or appropriation of funds, for the mutual 22 benefit of both parties, in order to avoid program and fiscal delays that would occur if this 23 Agreement were executed after that determination was made. 24 B. This Agreement is subject to any additional restrictions, limitations, conditions, or 25 any legislation enacted by the Congress, State Legislature or the County's Board of 26 Supervisors that may affect the provisions, terms, or funding of this Agreement in any 27 manner. 28 C. It is mutually agreed that if sufficient funds are not appropriated, this Agreement 57 1 may be amended to reflect any reduction in funds. 2 D. The County has the option to void this Agreement under the 30-day cancellation 3 clause, or to amend this Agreement by mutually acceptable modification of its provisions to 4 reflect any reduction of funds. 5 33. Contingent Fees 6 The Consultant warrants, by execution of this Agreement that no person or selling 7 agency has been employed, or retained, to solicit or secure this Agreement upon an 8 agreement or understanding, for a commission, percentage, brokerage, or contingent fee, 9 excepting bona fide employees, or bona fide established commercial or selling agencies 10 maintained by the Consultant for the purpose of securing business. For breach or violation 11 of this warranty, the County has the right to: annul this Agreement without liability, and to 12 pay only for the value of the work actually performed; or in its discretion to deduct from the 13 Agreement price or consideration, or otherwise recover, the full amount of such 14 commission, percentage, brokerage, or contingent fee. 15 34. Inspection of Work 16 The Consultant and any subcontractor shall permit the County, the state, and the 17 FHWA to review and inspect the Project activities and files at all reasonable times during 18 the performance period of this Agreement including review and inspection on a daily basis. 19 35. Safety 20 A. The Consultant shall comply with OSHA regulations applicable to Consultant 21 regarding necessary safety equipment or procedures. The Consultant shall comply with 22 safety instructions issued by the County Safety Officer and other County representatives. 23 The Consultant's personnel shall wear hard hats and safety vests at all times while working 24 on the construction project site. 25 B. Pursuant to the authority contained in Vehicle Code section 591, the County has 26 determined that such areas are within the limits of the project and are open to public traffic. 27 The Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 28 14, and 15 of the Vehicle Code. The Consultant shall take all reasonably necessary 58 1 precautions for safe operation of its vehicles and the protection of the traveling public from 2 injury and damage from such vehicles. 3 C. The Consultant must have a Division of Occupational Safety and Health (CAL- 4 OSHA) permit(s), as outlined in Labor Code section 6500 and 6705, prior to the initiation of 5 any practices, work, method, operation, or process related to the construction or excavation 6 of trenches which are five (5) feet or deeper. 7 36. Claims Filed by the County's Construction Contractor g A. If claims are filed by the County's construction Contractor relating to work 9 performed by the Consultant's personnel, and additional information or assistance from the 10 Consultant's personnel is required in order to evaluate or defend against such claims, then 11 the Consultant hereby agrees in such event to make its personnel available for consultation 12 with the County's construction Contract administration and legal staff and for testimony, if 13 necessary, at depositions and at trial or arbitration proceedings. 14 B. The Consultant's personnel that the County considers essential to assist in 15 defending against construction Contractor claims will be made available on reasonable 16 notice from the County. Consultation or testimony will be reimbursed at the same rates, 17 including travel costs that are being paid for the Consultant's personnel services under this 18 Agreement. 19 C. Services of the Consultant's personnel in connection with the County's 20 construction Contractor claims will be performed pursuant to a written Contract 21 amendment, if necessary, extending the termination date of this Agreement in order to 22 resolve the construction claims. 23 37. Confidentiality of Data 24 A. All financial, statistical, personal, technical, or other data and information relative 25 to the County's operations, which are designated confidential by the County and made 26 available to the Consultant in order to carry out this Agreement, shall be protected by the 27 Consultant from unauthorized use and disclosure. 28 B. Permission to disclose information on one occasion, or public hearing held by the 59 1 County relating to the Contract, shall not authorize the Consultant to further disclose such 2 information, or disseminate the same on any other occasion. 3 C. The Consultant shall not comment publicly to the press or any other media 4 regarding this Agreement or the County's actions on the same, except to the County's staff, 5 the Consultant's own personnel involved in the performance of this Agreement, at public 6 hearings or in response to questions from a legislative committee. 7 D. The Consultant shall not issue any news release or public relations item of any 8 nature, whatsoever, regarding work performed or to be performed under this Agreement 9 without prior review of the contents thereof by the County, and receipt of the County's 10 written permission. 11 E. All information related to the construction estimate is confidential and shall not be 12 disclosed by the Consultant to any entity other than the County, Caltrans, and/or FHWA. All 13 of the materials prepared or assembled by the Consultant pursuant to performance of this 14 Agreement are confidential and the Consultant agrees that they shall not be made available 15 to any individual or organization without the prior written approval of the County or except 16 by court order. If the Consultant or any of its officers, employees, or subcontractors does 17 voluntarily provide information in violation of this Agreement, the County has the right to 18 reimbursement and indemnity from the Consultant for any damages caused by the 19 Consultant's releasing the information, including, but not limited to, the County's attorney's 20 fees and disbursements, including without limitation experts' fees and disbursements. 21 38. National Labor Relations Board Certification 22 In accordance with Public Contract Code section 10296, the Consultant hereby 23 states under penalty of perjury that no more than one final unappealable finding of 24 contempt of court by a federal court has been issued against the Consultant within the 25 immediately preceding two-year period, because of the Consultant's failure to comply with 26 an order of a federal court that orders the Consultant to comply with an order of the 27 National Labor Relations Board. 28 60 1 39. Evaluation of the Consultant 2 The Consultant's performance will be evaluated by the County. A copy of the 3 evaluation will be sent to the Consultant for comments. The evaluation together with the 4 comments shall be retained as part of the Contract record. 5 40. Entire Agreement 6 This Agreement constitutes the entire agreement between the Consultant and the 7 County with respect to the subject matter hereof and supersedes all previous negotiations, 8 proposals, commitments, writings, advertisements, publications, and understandings of any 9 nature whatsoever unless expressly included in this Agreement. In the event of any 10 inconsistency in interpreting the documents which constitute this Agreement, the 11 inconsistency shall be resolved by giving precedence in the following order of priority: (1) 12 the text of this Agreement (2) the County's Request for Qualification "On-Call A&E and 13 Related Services"; and (3) the Consultant's Statement of Qualification made in response to 14 County's Request for Qualification. In consideration of promises, covenants and conditions 15 contained in this Agreement, the Consultant and the County, and each of them, do hereby 16 agree to diligently perform in accordance with the terms and conditions of this Agreement, 17 as evidenced by the signatures below. 18 19 20 21 22 23 24 25 26 27 28 61 1 41. Signatures 2 IN WITNESS WHEREOF, the parties have executed this Agreement on the date 3 set forth above. 4 5 CONTRACTOR COUNTY OF FRESNO Digitally signed by Steve Steve White White 6 :Ezzazzz� 91 Date:2025.06.24 (Authori d S44 tr6fuT67Steven White, Director 7 Department of Public Works and 8 Jonathan Schlundt, CEO Planning Print Name & Title 9 10 Net Positive Consulting Engineers 5 E River Park PI East Suite 303 11 Fresno, CA 93720-1560 12 APPROVED AS TO LEGAL FORM 13 Daniel C. Cederborg, County Counsel Digitally signed by 14 Zachary Zachary Adams By: Adams D,ate�q2,,025 15 .06.10 " _mnn 16 APPROVED AS TO ACCOUNTING 17 FORM Oscar J. Garcia, CPA, 18 Auditor-Controller/Treasurer- Tax Collector 19 ©scan�-�Oucw 20 By: Oscar Garcia(Jun 11,202512:30 PDT) 21 7 22 FOR ACCOUNTING USE ONLY: 23 Fund: 0001 / 0010 / 0400 / 0700 / 0701 / 0710 / 0720 / 0801 24 Subclass: 10000 / 11000 / 15000 / 15001 / 16900 25 Org: 4360 /4365 /4511 /4512 /4513 /4514 /7205 / 7910 / 8852 / 8853 / 8861 / 8863 / 8865 26 / 8867 / 9015 / 9020 / 9026 / 9028 / 9140 27 Account- 7295 28 62 Appendix A — List of All Consultants and Project Managers Bedrock Engineering, Inc. Dixon &Associates, Inc PO Box 25783 620 Dewitt Avenue, Ste 101 Fresno, CA 93729-5783 lovis, CA 93612-1860 Project Manager: Michael Hartley Project Manager: Aaron Spray sales(a)bed rockeng.com aaron dixonsurveying.com (559) 645-4849 (559) 297-4200 Black Water Consulting Engineers DLR Group 155 E Shaw Avenue, Suite 206 1050 20th Street, #250 Fresno, CA 93710 Sacramento, CA 95811 Project Manager: Nick Zaninovich Project Manager: Kevin Quan nick _blackwater-eng.com kguan(a-�dlrgroup.com (559) 375-1522 (702) 271-2983 Blair, Church & Flynn Consulting Engineers EKI Environment &Water, Inc. 451 Clovis Ave Suite 200 2001 Junipero Serra Blvd Ste 300 Clovis, CA 93612-1194 Daly City, CA 94014-3887 Project Manager: David Mowry, PE Project Manager: Susan Xie, PE dmowry anbcf-engr.com sxie anekiconsult.com (559) 326-1400 (650) 292-9135 Construction Scheduling Experts Luhdorff and Scalmanini Consulting Engineers 80 Powers Drive 500 1 st Street El Dorado Hills, CA 95762-4493 Woodland, CA 95695-4026 Project Manager: Dave Somanchi Project Manager: William Halligan dsomanchi(a)schedulingexperts.com whalligan(cDlsce.com (916) 396-1588 (530) 661-0109 Page 1 of 3 Melton Design Group, Inc. Provost & Pritchard Consulting Group 820 Broadway St 455 W Fir Avenue Chico, CA 95928-5529 Clovis, CA 93611-0242 Project Manager: Greg Melton Project Managers: Analisa Gonzales - Surveying, greg(ameltondg.com Josh Bridegroom - Transportation Planning, Gretchen Heisdorf— SWPPP (530) 518-7593 agonzales(cDppenq.com (surveying) 0bridegroom(@ppenq.com (Transportation Planning) Net Positive Consulting Engineers gheisdorf(aDppeng.com (SWPPP) 5 E River Park PI E Suite 303 (559) 449-2700 Fresno, CA 93720-1560 Project Manager: Jonathan Schlundt, PE Sierra West Consulting Group, Inc 0schlundt(a-�npceng.com 9700 Business Park Drive Ste. 102 (559) 365-0974 Sacramento, CA 95827-1712 Project Manager: John Moreno PBK Architects I more no(a)_sierrawestgrouP.com 895 W. Ashlan Avenue, Suite 101 (916) 925-4000 Clovis, CA 93612 Project Manager: Garen Lencioni TDG Engineering, Inc. (Toole Design Group, LLC) garen.lencioni(aD-leafengineers.com 360 22nd Street, Suite 501 559) 223-9600 Oakland, CA 94612 Project Manager: Alison Mills Pezzoni Engineering, Inc. amills(cDtooledesign.com 1150 9th Street, Ste 1415 (510) 298-0740 x168 Modesto, CA 95354-0823 Project Manager: Kevin Pezzoni TJKM Transportation Consultants KPezzoni(a)Pezengr.com 4305 Hacienda Drive, Suite 550 (209) 554-4602 Pleasanton, CA 94588 Project Manager: Ruta Jariwala Precision Civil Engineering jariwala(cDtikm.com 1234 O Street (408) 421-0768 Fresno, CA 93721-1830 Project Manager: Craig Roberts, MS, PE gcroberts(aD-precisioneng.net (559) 449-4500 Page 2of3 VRPA Technologies 4630 W Jennifer Avenue, Suite 105 Fresno, CA 93722-6415 Project Manager: Erik Ruehr, P.E., T.E. comeruehr(aD-vrpatechnologies.com (858) 361-7151 Westwood Professional Services 1165 Scenic Drive, Suite A Modesto, CA 95350-6155 Project Manager: Kristen Scheidt kristen.scheidt(a�westwoodps.com (209) 571-1765 Willdan Engineering 2014 Tulare Street, Suite 515 Fresno, CA 93721-2011 Project Manager: Tyrone Peter teeter willdan.com (714) 393-1963 Woodard & Curran, inc. 2175 N. California Boulevard, Suite 315 Walnut Creek, CA 94596 Project Manager: Jim Strandberg, PG, CHG, CEG I strand berg(a woodardcurran.com (925) 627-4122 Page 3of3 Consultant's Scope of Services — Appendix B Consultant Eligible Services Form Consultant Firm: Net Positive Consulting Engineers CONSULTANT is approved for these services: Discipline On-Call Federally Funded Projects Architectural Drafting and Design Assessment Engineering Certified Access Specialist (CASP) Certification Cost Estimating Validation Construction Scheduling Analysis Electrical Engineering Landscaping Architecture Plumbing and Mechanical Engineering X X Qualified SWPPP Developer and/or Practitioner Surveying Traffic Engineering Transportation Planning Utility Locating Water Resource Operators Water and Natural Resources En ineerin CONSULTANT is responsible for all services listed within this scope document for the discipline(s), funding sources and category of service (on-call and/or on-call staff augmentation) which they have been indicated above as well as services listed across discipline. Rev. 01/09/25 Agreement Appendix B — Consultant's Scope of Services On-Call Architectural and Engineering Consultant and Related Services Table of Contents Tableof Contents............................................................................................................2 Descriptions of Work by Discipline .................................................................................. 3 Plumbing and Mechanical Engineering........................................................................ 3 On-Call Services ............................................................................................................. 3 TechnicalReports........................................................................................................ 3 Preparation of Various Reports and Studies................................................................4 PreliminaryEngineering...............................................................................................4 Prepare Design Plans, Technical Specifications and Construction Estimate...............4 Construction Observation ............................................................................................6 EngineeringSupport.................................................................................................... 9 2 of 9 Agreement Appendix B — Consultant's Scope of Services On-Call Architectural and Engineering Consultant and Related Services Descriptions of Work by Discipline Plumbing and Mechanical Engineering 1. Provide Plumbing and Mechanical engineering design, drawings, specifications, and Title 24 calculations. Plumbing and Mechanical consultant will be expected to review and respond to related RFIs and Submittals during Bidding and Construction. 2. Preliminary evaluation and recommendations with regard to Plumbing and Mechanical Systems in existing facilities. On-Call Services Technical Reports Applies to all disciplines Description of Work Prepare a detailed preliminary engineering report for the project in Department format. The report shall contain all necessary information in sufficient detail to propose the project design. Requirements of Specified Services 1. Ascertain the requirements for Technical Reports through meetings with the PROJECT ADMINISTRATOR and a review of existing information on the PROJECT(S). 2. The CONSULTANT shall prepare and submit technical reports to the PROJECT ADMINISTRATOR for each assigned PROJECT. Technical reports shall be prepared in accordance with the appropriate format required by local, state and federal laws, regulations and guidelines. 3. When requested by the PROJECT ADMINISTRATOR, the CONSULTANT shall attend meetings with the COUNTY, federal, state and/or local representatives to discuss and review the technical report. The CONSULTANT shall prepare brief minutes of meetings attended and promptly submit the minutes to the PROJECT ADMINISTRATOR within seven (7) days. 4. The CONSULTANT shall submit each technical report to the PROJECT ADMINISTRATOR for transmittal to other appropriate agencies for their review and 3 of 9 Agreement Appendix B — Consultant's Scope of Services On-Call Architectural and Engineering Consultant and Related Services approval. The CONSULTANT shall revise and resubmit each technical report as necessary until approved by all appropriate agencies. 5. The CONSULTANT shall prepare and submit technical studies and estimates in the formats, quantities, and delivery methods delineated in Appendix C. The CONSULTANT shall verify compatible format and quantity prior to final delivery. Preparation of Various Reports and Studies Applies to all disciplines. Description of Work 1. Analyze project budget; 2. Review existing engineering reports from the Department as available; 3. Prepare a detailed project cost estimate, which shall identify the components and requirements of the project; and 4. Prepare a detailed report or study in Department format. Preliminary Engineering Applies to the following disciplines: Electrical Engineering Landscape Architecture Plumbing and Mechanical Engineering Traffic Engineering Water and Natural Resources Architectural Design and Drafting Engineering Description of Work 1. Prepare a detailed preliminary engineering report for the project in Department format. The report shall contain all necessary information in sufficient detail to propose the project design; and 2. Prepare site plans and grading plans identifying basis of bearing, location of benchmark used and source of elevation (vertical) datum. Prepare Design Plans, Technical Specifications and Construction Estimate Applies to the following disciplines: Electrical Engineering Landscape Architecture 4 of 9 Agreement Appendix B — Consultant's Scope of Services On-Call Architectural and Engineering Consultant and Related Services Plumbing and Mechanical Engineering Traffic Engineering Water and Natural Resources Architectural Design and Drafting Engineering General Description of Work 1. Complete fully the project designs to include comprehensive construction plans, earthwork volumes, required permits, technical specifications, cross-sections and final opinion of probable construction cost (Engineer's Estimate) for construction. 2. Apply urban design principals that meet the needs of the individual communities. 3. Submit the recommended construction period for bidding purposes to the County for approval and identify materials and equipment requiring long delivery times that will control the length of the construction Agreement. 4. Prepare addenda as necessary for bid documents. Requirements of Specified Services When Requested The CONSULTANT shall: 1. Ascertain the requirements for the assigned PROJECT(S) through meetings with the PROJECT ADMINISTRATOR and a review of an existing schematic layout of the PROJECT(S). 2. Ascertain any requirements, unforeseen criteria, or issues for the PROJECT(S) that may be unknown to the PROJECT ADMINISTRATOR and communicate these requirements, criteria, or issues to the PROJECT ADMINISTRATOR. 3. Design the PROJECT(S) to conform to requirements of the reviewing agencies having jurisdiction over the PROJECT(S). 4. Design PROJECT(S) to include mitigation measures as required or specified in the environmental documents. 5. Monitor and keep the PROJECT ADMINISTRATOR informed regarding the impact of design issues on the PROJECT budget. Upon the written request, the CONSULTANT shall incorporate into the design, such reasonable design and operational changes as the PROJECT ADMINISTRATOR deems appropriate as a result of the COUNTY'S review processes and impact on each PROJECT budget or estimate. 6. Assist the COUNTY in determining all permits that may be required for the PROJECT and prepare all necessary permits for the COUNTY'S submittal to outside agencies. 5of9 Agreement Appendix B — Consultant's Scope of Services On-Call Architectural and Engineering Consultant and Related Services 7. Work with the PROJECT ADMINISTRATOR to ensure that the plans, specifications and estimate meet all requirements to be advertised for construction bids. 8. If required by approval agencies or PROJECT ADMINISTRATOR, submit to the COUNTY in the appropriate agency forms, the PROJECT background information and recommended testing and inspection list for materials to be used, identifying type, quantity, frequency, and schedule, for each PROJECT. Submit required numbers of sets of plans, specifications, and other documents required by approval agencies to the PROJECT ADMINISTRATOR. 9. Submit to the PROJECT ADMINISTRATOR plans, specifications and estimates for review in the formats, quantities, and delivery methods delineated in Appendix C. Prior to submission of plans, the CONSULTANT shall request from the PROJECT ADMINISTRATOR examples of acceptable drafting format and reproducible standards. Verification of compatible format will be required prior to final file delivery. The PROJECT ADMINISTRATOR, at his/her discretion, may reject a submittal that is determined insufficient. 10. The original drawings and specifications index sheet shall be stamped by a seal with the CONSULTANT'S and subconsultant's license numbers and/or signed in accordance with the California Business and Professions Code. Construction Observation Applies to the following disciplines: Certified Access Specialist (CASP) Cost Estimating Validation Certification Electrical Engineering Landscape Architecture Plumbing and Mechanical Engineering Traffic Engineering Qualified SWPPP Developer and/or Water and Natural Resources Practitioner Engineering Professional Project Scheduler Architectural Design and Drafting General Description of Work 1. Attend the pre-construction conference scheduled by the Department; and 2. Provide services during construction including, but not limited to: a. Make recommendations to the Department on all claims of the Department or construction contractor and all other matters relating to the execution and progress of work, including interpretation of the Agreement documents. b. Review and make recommendations for samples, schedules, shop drawings and other submissions for general conformance with the design concept of the 6 of 9 Agreement Appendix B — Consultant's Scope of Services On-Call Architectural and Engineering Consultant and Related Services project and for general compliance with the plans and specifications and information given by the consultant's contract documents. c. Respond timely to requests from the Department and contractor for information needed from consultant in order to clarify construction plans and specification to review the contractor's estimates for all other charges. d. Recommend and prepare necessary change orders and associated engineer's estimate. e. Assist the Department, at the Department's express, written authorization, with any claim resolution process involving the Department's construction contractor and the Department, including serving as a witness in connection with any legal proceedings or dispute resolution processes required by law. Requirements of Specified Services When Requested The CONSULTANT shall: 1. When requested by the PROJECT ADMINISTRATOR, attend meetings with the COUNTY, and/or any federal, state and/or local representatives. The CONSULTANT shall prepare brief minutes of all meetings attended and promptly submit those minutes to the PROJECT ADMINISTRATOR within seven (7) calendar days. 2. Make recommendations to the COUNTY on all claims of the COUNTY or the construction contractor and all other matters relating to the execution and progress of work, including interpretation of the contract documents for the PROJECT. 3. Within seven (7) calendar days of the COUNTY'S request, review and make recommendations for samples, schedules, shop drawings, and other submissions for general conformance with the design concept of the PROJECT(S) and for general compliance with the plans and specifications and information provided by the contract documents for the PROJECT. 4. Within two (2) working days, respond to requests from the PROJECT ADMINISTRATOR for information needed from the CONSULTANT in order to clarify construction plans and specifications and to review the construction contractor's cost estimates for all change orders. 5. Recommend and assist in the preparation of such change orders as deemed necessary with supporting documentation, calculations and estimate, for review and issuance of change orders by the COUNTY Construction Engineer to obtain appropriate agency acceptance and approval. 6. At intervals appropriate to the stage of construction, or as otherwise deemed necessary by the CONSULTANT, visit the site of the PROJECT(S) as 7 of 9 Agreement Appendix B — Consultant's Scope of Services On-Call Architectural and Engineering Consultant and Related Services necessary to become familiar generally with the progress and quality of the work and to determine whether the work is proceeding in general accordance with the contract documents. The CONSULTANT shall not be required to make exhaustive or continuous onsite inspections but shall give direction to the Construction Inspector as hereinafter more specifically provided. The CONSULTANT shall not be responsible for the construction contractor's failure to carry out the construction work in accordance with the contract documents. However, the CONSULTANT shall immediately advise the PROJECT ADMINISTRATOR of any known or observed deviation from the contract documents. 7. Not have control over or charge of, and shall not be responsible for construction means, methods, techniques, sequence, or procedure, or for the safety precautions, programs, or equipment in use in connection with the work, since these are solely the construction contractor's responsibility under the contract for construction. 8. Submit progress reports on each specific PROJECT in accordance with the task order. These reports shall be submitted at least once a month. The report shall be sufficiently detailed for PROJECT ADMINISTRATOR to determine if the CONSULTANT is performing to expectations or is on schedule, to provide communication of interim findings, and so sufficiently address any difficulties or special problems encountered so remedies can be developed. 9. Advise the PROJECT ADMINISTRATOR of defects and deficiencies observed in the work of the construction contractor and may recommend that the DIRECTOR reject work as failing to conform to the contract documents. 10. Conduct site visits and field observations to facilitate recommendations by the CONSULTANT regarding: a. dates of substantial completion b. dates of final completion c. the DIRECTOR'S acceptance of the work d. the DIRECTOR'S filing of the Notice of Completion and Issuance of Final Certificate for payment e. other issues which may require site visits 11. Control of Construction Project Site The COUNTY agrees that in accordance with generally accepted practices, the COUNTY'S construction contractor will be required to assume sole and complete responsibility for job site conditions during the course of construction projects; including safety of all persons and property, and that this requirement shall be made to apply continuously during projects and not be limited to normal working hours. The CONSULTANT shall not have control over or charge of, and shall not be responsible 8 of 9 Agreement Appendix B — Consultant's Scope of Services On-Call Architectural and Engineering Consultant and Related Services for, project means, methods, techniques, sequences or procedures, as these are solely the responsibility of the construction contractor. The CONSULTANT shall not have the authority to stop or reject the work of the construction contractor. Engineering Support Applies to all disciplines. Description of Work 1. Provide technical data for the preparation of various funding paperwork. 2. Provide technical data for the preparation of various permit applications. 3. Provide technical data for the preparation of cooperative agreements. 4. Provide technical data for the preparation of utility agreements. 5. Prepare and stamp legal descriptions for the acquisition of right of way. 6. Conduct meetings with property owners regarding projects 7. Review of existing designs for compliance with development plans 8. Provide presentation materials for the Board of Supervisors to be presented by COUNTY staff. 9. Prepare various tables, maps, charts and diagrams. 10. Provide technical support for request for proposal processes. 11. Serve as a plan checker and independent quantity checker. 9 of 9 Appendix C 2. ATTACHMENTS d. List of current staff PRINCIPALS Jonathan Schlundt, PE Hannah Brigdon, PE _NGINEERING DESIGNERS Logan Costa-Smith, PE Jack Davis Jordan Darchuck, NICET 3 Breahna Shahan, PE ENGINEERING PRODUCTION Matthew Ilagan, EIT Michael Barrera, EIT Chase Pafford Richard Gerber Emma Wilson COMMISSIONING X CA Rick Schoenwalk, AIA Alex Rodriguez, PMP, CxA Amador Camacho, PMP ADMINISTRATIVE Laura Schlundt, Controller Cynthia Guzman-Beahm, Marketing Coordinator Appendix D - Deliverables Last updated: March 27, 2025 Prior to submissions, the CONSULTANT shall request from the PROJECT ADMINISTRATOR examples of acceptable drafting format and reproducible standards. Verification of compatible format will be required prior to final file delivery. A. Technical Report Standard Submittal Formats: 1. Standard submittal formats: a. Electronic copy sent via email: i. Microsoft Word (.docx) formatted for printing on 8 1/2" by 11" pages ii. Microsoft Excel (.xlsx) formatted for printing on 8 1/2" by 11" or 11" by 17" pages iii. Adobe (.pdf) formatted for printing on 8 '/2" by 11" or 11" by 17" pages iv. AutoCAD Civil 3D, as .DXF or .DWG files V. Other mutually agreed upon format. Hardcopies upon request. 2. Technical studies and estimates: a. Electronic copy sent via email: i. Microsoft Word (.docx) ii. Microsoft Excel (.xlsx) iii. Signed Final Version in Adobe (.pdf) iv. Other mutually agreed upon format. Hardcopies upon request. 3. Drawings: a. Electronic copy sent via email: i. AutoCAD Civil 3D as .DXF or .DWG files ii. Hardcopies upon request. B. Design Plans, Technical Specifications and Construction Estimate: 1. 30%, 60%, and 90% plans, specifications and estimates for review a. Progress prints and final originals of the plans, specifications, and estimates. b. Standard submittal format c. Hardcopies on 22" X 34" pages (up to 10 copies) upon request. 2. Accepted Final original plans, specifications and estimates shall include Page 1 of 2 a. Electronic copy sent via email i. Final plans, cross sections and slope stake information, design calculations, quantity calculations, and other design information as applicable to the PROJECT. ii. Final specifications and estimates iii. Plan sheets, cross sections, earthwork calculations and slope stake information shall be in: • AutoCAD Civil 3D iv. Specifications shall be in: • Microsoft Word (.docx) formatted for printing on 8 '/2" by 11" pages V. Final engineer's estimates shall be in: • Microsoft Excel (.xlsx) b. Hardcopies (Upon request) i. Plan Set: One (1) original reproducible plan set on 22" by 34" sheets of bond paper and 4 mil thick double matte film. ii. Cross Sections: One (1) reproducible copy of cross sections on 22" by 34" sheets of bond paper and 4 mil thick double matte film. iii. Final Specifications and Engineer's Estimates: One (1) stamped and wet signed paper copy on 8 '/2" by 11" pages. C. County-provided preliminary engineering survey data on existing structures and topographic mapping shall be in: a. AutoCAD Civil 3D b. Or other mutually agreed upon format Page 2 of 2 Appendix E Cost Proposal Consultant: Net Positive Consulting Engineers 0 Prime Consultant Project No. Contact No. Contact Amount$ Date: 4/11/2025 Home Office Rate: Fringe Benefit%+General&Administrative% (Field Office Not Applicable) = 47.72% ICR% Fee = 25.00% Classification Employee Direct Labor Hourly Billing Rate Effective Date Actual Hourly Rate Straight OT(1.5x) OT(2x) From To Engineering and Design for Mech.,Elec.,Plmbg., and Fire Sprinkler Principal Mechanical Engineer Jonathan Schlundt,PE $ 108.69 $ 162.59 $ 214.85 1/1/2025 12/31/2025 $ 296 Hannah Brigdon,PE $ 108.69 $ 162.59 $ 214.85 1/1/2025 12/31/2025 $ 296 Senior Engineer/Senior Specialty Designer Andrew Haning,PE $ 73.70 $ 110.62 $ 145.90 1/1/2025 12/31/2025 $ 201 Engineer/Specialty Designer Jack Davis $ 87.50 $ 132.90 $ 176.65 1/1/2025 12/31/2025 $ 239 Jordan Darchuck $ 46.82 $ 70.42 $ 92.37 1/1/2025 12/31/2025 $ 128 Logan Costa-Smith,PE $ 58.59 $ 87.96 $ 115.68 1/1/2025 12/31/2025 $ 160 Designer Breahna Shahan,PE $ 49.62 $ 74.51 $ 97.75 1/1/2025 12/31/2025 $ 135 Mark Bennett,PE $ 47.57 $ 71.43 $ 93.64 1/1/2025 12/31/2025 $ 130 Engineer in Training Michael Barrera $ 39.21 $ 58.89 $ 76.92 1/1/2025 12/31/2025 $ 107 Matthew Ilagan $ 39.66 $ 59.57 $ 77.83 1/1/2025 12/31/2025 $ 108 Chase Pafford $ 30.44 $ 47.30 $ 62.52 1/1/2025 12/31/2025 $ 83 Engineering Assistant Patrick O'Neal $ 23.91 $ 37.52 $ 49.47 1/1/2025 12/31/2025 $ 65 Benjamin Egeline $ 27.17 $ 42.41 $ 56.00 1/1/2025 12/31/2025 $ 74 Engineering Intern Emma Wilson $ 22.28 $ 35.07 $ 46.21 1/1/2025 12/31/2025 $ 61 Richard Gerber $ 22.28 $ 35.07 $ 46.21 1/1/2025 12/31/2025 $ 61 Commissioning Authority Commissioning Agent Alex Rodriguez $ 51.40 $ 78.62 $ 104.19 1/1/2025 12/31/2025 $ 140 Construction and Project Administration Senior Construction Engineer RickSchoenwald $ 65.22 $ 99.48 $ 132.09 1/1/2025 12/31/2025 $ 178 CA Engineer AmadorCamacho $ 53.16 $ 81.37 $ 107.93 1/1/2025 12/31/2025 $ 145 Construction Administrator Rebekah O'Connell $ 30.32 $ 45.55 $ 59.14 1/1/2025 12/31/2025 $ 83 Project Administrator Jessica Goforth $ 33.58 $ 50.44 $ 65.66 1/1/2025 12/31/2025 $ 92 Schedule of Other Direct Costs Quantity Unit Unit Cost Total Mileage Costs mile $ 0.70 Plan Sheets sheet $ 2.00 Permit Fee's ea Cost+15% SAMPLE COST PROPOSAL Sample Only-Required Cost Proposal Template To Be Determined By Agency SAMPLE COST PROPOSAL 2 Certification of Direct Costs: I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements: 7. Generally Accepted Accounting Principles (GAAP) S. Terms and conditions of the contract 9. Title 23 United States Code Section 112.- Letting of Contracts 10.48 Code of Federal Regulations Part 31-- Contract Cost Principles and Procedures 11.23 Code of Federal Regulations Part 172- Procurement, Management, and Administration of Engineering and Design Related Service 12.48 Code of Federal Regulations Part 9904 -Cost Accounting Standards Board_(when applicable) All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement. Prime Consultant or Subconsultant Certifying Name:Jonathan Schlundt Title*: CEO/ Principal Mechanical Engineer Signature: Date of Certification (mm/dd/yyyy): 03/14/2025 Email: jschlundt@npceng.com Phone Number: 559.940.7293 Address: 5 River Park PI East Suite 303, Fresno, Ca 93720 *An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract. List services the consultant is piriovilding under the proposed contract: Plumbing and Mechanical Engineering Page 4 of 4 Appendix F Inspector General California Department of Transportation Certification of Indirect Costs and Financial Management System (Note: If a Safe Harbor Indirect Cost Rate is approved,this form is not required) Consultant's Full Legal Name: Net Positive Consulting Engineers, Inc. Important: Consultant means the individual or consultant providing engineering and design related services as a party of a contract with a recipient or sub-recipient of Federal assistance. Therefore, the Indirect Cost Rate(s) shall not be combined with its parent company or subsidiaries. Indirect Cost Rate (ICR): Combined Rate: Or Home Office Rate: 47.72 and Field Office Rate (if applicable): Facilities Capital Cost of Money (if applicable): Fiscal Period:* 01//01/2025-12/31/2025 Fiscal period is annual one year applicable accounting period that the ICR was developed(not the contract period).The ICR is based on the consultant's one-year applicable accounting period for which financial statements are regularly prepared by the consultant. I have reviewed the proposal to establish an ICR(s) for the fiscal period as specified above and have determined to the best of my knowledge and belief that: • All costs included in the cost proposal to establish the ICR(s)are allowable in accordance with the cost principles of the Federal Acquisition Regulation (FAR)48, Code of Federal Regulations (CFR), Chapter 1, Part 31 (48 CFR Part 31). • The cost proposal does not include any costs which are expressly unallowable under the cost principles of 48 CFR Part 31. • The accounting treatment and billing of prevailing wage delta costs are consistent with our prevailing wage policy as either direct labor, indirect costs, or other direct costs on all federally-funded A&E Consultant Contracts. • All known material transactions or events that have occurred subsequent to year-end affecting the consultant's ownership, organization, and indirect cost rates have been disclosed as of the date of this certification. I am providing the required and applicable documents as instructed on the Financial Document Review Request form. Financial Management System: Our labor charging,job costing, and accounting systems meet the standards for financial reporting, accounting records, and internal control adequate to demonstrate that costs claimed have been incurred, appropriately accounted for, are allocable to the contract, and comply with the federal requirements as set forth in Title 23 United States Code (U.S.C.) Section 112(b)Q2 48 CFR Part 31.201-2(d): 23 CFR, Chapter 1, Part 172.11(a)(21: and all applicable state and federal rules and regulations. Our financial management system has the following attributes: • Account numbers identifying allowable direct, indirect, and unallowable cost accounts; • Ability to accumulate and segregate allowable direct, indirect, and unallowable costs into separate cost accounts; Certification of Indirect Costs and Financial Management System -Independent Office of Audits and Investigations-Revised 9/2022 1 • Ability to accumulate and segregate allowable direct costs by project, contract and type of cost; • Internal controls to maintain integrity of financial management system; • Ability to account and record costs consistently and to ensure costs billed are in compliance with FAR; • Ability to ensure and demonstrate costs billed reconcile to general ledgers and job costing system; and • Ability to ensure costs are in compliance with contract terms and federal and state requirements. Cost Reimbursements on Contracts: I also understand that failure to comply with 48 CFR Part 16.301-3 or knowingly charge unallowable costs to Federal-Aid Highway Program (FAHP)contracts may result in possible penalties and sanctions as provided by the following: • Sanctions and Penalties- 23 CFR Part 172.11(c)(4) • False Claims Act-Title 31 U.S.C. Sections 3729-3733 • Statements or entries generally-Title 18 U.S.C. Section 1001 • Major Fraud Act-Title 18 U.S.C. Section 1031 All A&E Contract Information: • Total participation amount 437,445.00 on all State and FAHP contracts for Architectural & Engineering services that the consultant received in the last three fiscal periods. • The number of states in which the consultant does business is 1 • Years of consultant's experience with 48 CFR Part 31 is 4 • Identify the type of audits listed below that the consultant has had performed (if applicable): Cognizant ICR Audit ❑ Local Govt ICR Audit ❑ Caltrans ICR Audit ❑ CPA ICR Audit ❑ Federal Govt ICR Audit ❑ I, the undersigned, certify all of the above to the best of my knowledge and belief and that I have reviewed the ICR Schedule to determine that any costs which are expressly unallowable under the Federal cost principles have been removed and comply with Title 23 U.S.C. Section 112(b)(2), 48 CFR Part 31, 23 CFR Part 172, and all applicable state and federal rules and regulations. I also certify that I understand that all documentation of compliance must be retained by the consultant. I hereby acknowledge that costs that are noncompliant with the federal and state requirements are not eligible for reimbursement and must be returned to Caltrans. Name:** Jonathan Schlundt Title**.. CEO/ Principal Mechanical Engineer Signature: Date: 05/12/2025 Phone**: (559) 940-7293 Email**. jschlundt@npceng.com **An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President,a Chief Financial Officer,or equivalent,who has authority to represent the financial information used to establish the indirect cost rate. Note: Both prime and subconsultants as parties of a contract must complete their own forms. Caltrans will not process local agency's invoices until a complete form is accepted and approved by the Independent Office of Audits and Investigations. Certification of Indirect Costs and Financial Management System -Independent Office of Audits and Investigations-Revised 9/2022 2 County of Fresno - On-Call Engineering Consultant Services Appendix G SELF-DEALING TRANSACTION DISCLOSURE FORM In order to conduct business with the County of Fresno (hereinafter referred to as "County'), members of a contractor's board of directors (hereinafter referred to as "County Contractor"), must disclose any self-dealing transactions that they are a party to while providing goods, performing services, or both for the County. A self-dealing transaction is defined below: "A self-dealing transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest" The definition above will be utilized for purposes of completing this disclosure form. INSTRUCTIONS (1) Enter board member's name,job title (if applicable), and date this disclosure is being made. (2) Enter the board member's company/agency name and address. (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a. The name of the agency/company with which the corporation has the transaction; and b. The nature of the material financial interest in the Corporation's transaction that the board member has. (4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. (5) Form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). County of Fresno - On-Call Engineering Consultant Services Appendix G (1)Company Board Member Information: Name: N/A Date: 5/29/2025 Job Title: N/A (2)Company/Agency Name and Address: N/A (3)Disclosure(Please describe the nature of the self-dealing transaction you are a party to): N/A (4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233(a): N/A (5)Authorized Signature Signature: Date: 5/29/2025 Appendix H Subconsultants None -- -- ---- -- --. _ _ _. Appendix Resolution No. 07-525 1 BEFORE THE BOARD OF SUPERVISORS 2 OF THE COUNTY OF FRESNO 3 STATE OF CALIFORNIA 4 } No. 5 In the matter of ) } 6 Amendment of Standard Conflict of ) Interest Code for All County ) 7 Departments ) s 9 Whereas, the Political Reform Act, Government Code section 81000 et seq., 10 requires state and local government agencies to adopt and promulgate conflict of interest 11 codes; and 12 Whereas, the Fair Political Practices Commission has adopted a regulation, Title 13 2, California Code of Regulations, section 18730, which contains the terms of a standard 14 conflict of interest code, and which may be amended by the Fair Political Practices 15 Commission after public notices and hearings to conform to amendments to the Political 16 Reform Act; and 17 Whereas, any local agency may incorporate this standard conflict of interest code, 18 and thereafter need not amend its code to conform to future amendments to the Political 19 Reform Act or its regulations; and 20 Whereas, the Board of Supervisors may adopt the standard conflict of interest 21 code on behalf of all County departments. 22 Now therefore be it resolved, that the terms of Title 2, California Code of 23 Regulations, section 18730, and any amendments to it duly adopted by the Fair Political 24 Practices Commission, are hereby incorporated by reference and, along with the Exhibits A 25 and B approved previously, today, or in the future, by this Board for each County 26 department, in which officers and employees are designated and disclosure categories are 27 set forth, constitute the conflict of interest codes of each County department. 28 COUNTY OF FRESNO Fresno,California 1 - 1 1 Conflict of interest forms shall be filed as follows: 2 1. As required by Government Code section 87500, subdivision(e),the County 3 Administrative Officer, District Attorney, County Counsel, and Auditor-Controller/Treasurer- 4 Tax Collector shall file one original of their statements with the County Clerk,who shall make 5 and retain a copy and forward the original to the Fair Political Practices Commission, which 6 shall be the filing officer. 7 2. As required b Government Code section 87500, subdivision q y Q), all other 8 department heads shall file one original of their statements with their departments. The filing 9 officer of each department shall make and retain a copy and forward the original to the Clerk 10 to the Board of Supervisors, who shall be the filing officer. 11 3. All other designated employees shall file one original of their statements 12 with their departments. 13 Adopted at a regular meeting of the Board of Supervisors, held on the 2nd day of 14 October, 2007, by the following vote, to wit: 15 Ayes: Supervisors Larson, Perea, Anderson, Case and Waterston I 16 Noes: None 1 17 Absent: None 18 19 F 20 Chairman, Board of Supervisors 21 22 Attest: 23 _0/ 24 (�J� 25 Clerk 26 i 27 28 i COUNTY OF FRESNO Fresno,Cellfarnia 2 County of Fresno Fresno,California COUV rl Conflict of Interest Code [n Email Me] Double click! 1eS ! Local Agency Annual / Biennial Report F-RE`s. In accordance with Government Code Section 87306.5, this department has reviewed its Conflict of Interest Code and has determined that (check one of the following): 1. ❑ Our department's Conflict of Interest Code accurately designates all positions within our department which make or participate in the making of decisions which may foreseeably have a material effect on any financial interest; and the disclosure category assigned to each such position accurately requires the disclosure of all of the specific types of investments, business positions, interests in real property, and sources of income that are reportable under Government Code Section 87302 ("reportable under Government Code Section 87302" means: an investment, business position, interest in real property, or source of income shall be made reportable by the Conflict of Interest Code if the business entity in which the investment or business position is held, the interest in real property, or the income or source of income may foreseeably be affected materially by any decision made or participated in by the designated employee by virtue of his or her position); or, 2. ❑ Our department's Conflict of Interest Code is in need of amendment. We have determined that the following amendments are necessary (check applicable items, and refer to Exhibits "A" and "B" for detail if appropriate): A. ❑ Include new positions (including consultants) that must be designated. B. ❑ Include or delete positions because changes in duties. C. ❑ Include positions that manage public investments. D. ❑ Revise disclosure categories. E. ® Revise the titles of existing positions. F. ❑ Delete titles of positions that have been abolished. G. ❑ Other (describe) CONTACT PERSON DEPARTMENT Sam Mann PWP I hereby approve the foregoing reported information for our department: stwhite 12/28/2023 9:48:57 AM [a Sign] Double click! Department Head Signature/Date Note: Government Code Section 87306 requires that when an agency (e.g., your department) has determined that amendments or revisions are necessitated by changed circumstances, the amendments or revisions shall be submitted to the code reviewing body within 90 days after the changed circumstances have become apparent. EXHIBIT "A" PUBLIC WORKS AND PLANNING Classification Category Accountant I / II 2 Architect 1 Building Inspector I / II 1 Building Plans Engineer 1 Chief Building Inspector 1 Chief of Field Surveys 1 Consultant Deputy Director of Planning 1 Deputy Director of Public Works 1 Development Services & Capital Projects Manager 1 Director of Public Works and Planning 1 Disposal Site Supervisor 2 Engineer I / II / III 1 Field Survey Supervisor 3 Financial Analyst I / 11 / III 1 Housing Rehabilitation Specialist I / 11 1 Information Technology Analyst I / II / III / IV 2 Landfill Operations Manager 1 Planner I / II / III 1 Planning and Resource Management Official 1 Principal Accountant 1 Principal Planner 1 PFORoipal Staff ARalyst Program Manager 1 P NOG Works and DlonniRg B iciness MaRa ver I Public Works and Planning Finance Division Manager 1 R bliG Works and Planning Information TeGhn y onager 1 Departmental Information Technology Manager 1 Public Works Division Engineer 1 Resources Division Manager 1 Right-of-Way Agent II / III 1 Road Maintenance & Operations Division Manager 1 Road Maintenance Supervisor 1 Road Superintendent 1 Senior Accountant 2 Senior Engineer 1 Senior Engineering Technician 2 Senior Information Technology Analyst 2 Senior Planner 1 Senior Staff Analyst 1 Classification Category Staff Analyst I / 11 / 111 1 Supervising Accountant 1 Supervising Architect 1 Supervising Building Inspector 1 Supervising Engineer 1 Supervising Water/Wastewater Specialist 1 Traffic Maintenance Supervisor 2 Water & Natural Resources Manager 1 Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation: The Director of Public Works and Planning may determine in writing that a particular consultant, although a "designated position", is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The Director of Public Works and Planning's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code. EXHIBIT "B" PUBLIC WORKS AND PLANNING 1. Persons in this category shall disclose all reportable investments, interests in real property, sources of income (including gifts), and business positions. Financial interests (other than gifts) are reportable only if located within or subject to the jurisdiction of Fresno County, or if the business entity is doing business or planning to do business in the jurisdiction, or has done business within the jurisdiction at any time during the two years prior to the filing of the statement. Real property shall be deemed to be within the jurisdiction of the County if the property or any part of it is located within or not more than two miles outside the boundaries of the County (including its incorporated cities) or within two miles of any land owned or used by the County. 2. Persons in this category shall disclose all reportable investments in, income from (including gifts), and business positions with any business entity which, within the last two years, has contracted or in the future foreseeably may contract with Fresno County through its Public Works and Planning Department, Solid Waste Commissions within the jurisdiction, or to any other joint powers agency which Fresno County is a member to provide services, supplies, materials, machinery, or equipment to the County. 3. Persons in this category shall disclose all interests in real property within the jurisdiction of Fresno County. Real Property shall be deemed to be within the jurisdiction if the property or any part of it is located within or not more than two miles outside the boundaries of Fresno County (including its incorporated cities) or within two miles of any land owned or used by the County. ti co�WIPRE Macros Must Be Enabled --Please Re-open and Enable Conflict of Interest Code [0 Email Me] Double click! °� of the County of Fresno Steven E. White, HEREBY SUBMITS THE FOLLOWING AMENDED CONFLICT OF INTEREST CODE TO THE BOARD OF SUPERVISORS OF THE COUNTY OF FRESNO. AGENCY: Public Works and Planning stwhite 12/29/2023 11-46-28 AM [a Sign] Double click! Department Head Signature/Date RECEIVED ON BEHALF OF THE BOARD OF SUPERVISORS OF THE COUNTY OF FRESNO. Q , e•��yQ , [Q Sign] Doubleaick! Clerk of the Board of Supervisors THE FOLLOWING CONFLICT OF INTEREST CODE, HAVING BEEN SUBMITTED BY THE AGENCY DESIGNATED ABOVE, WAS APPROVED BY ORDER OF THE CODE- REVIEWING BODY ON 2,&1a24 OTHER ACTION (IF ANY): c r L. [Q Sign] Double click! Clerk of the Board of Supervisors Appendix J Local Assistance Procedures Manual EXHBIT 10-1 Notice to Proposers DBE Information EXHIBIT 10-1 NOTICE TO PROPOSERS DBE INFORMATION (Federally funded projects only) The Agency has established a DBE goal for this Contract of 2 1 1. TERMS AS USED IN THIS DOCUMENT • The term "Disadvantaged Business Enterprise" or"DBE" means a for-profit small business concern owned and controlled by a socially and economically disadvantaged person(s) as defined in Title 49, Code of Federal Regulations (CFR), Part 26.5. • The term "Agreement" also means "Contract." • Agency also means the local entity entering into this contract with the Contractor or Consultant. • The term "Small Business" or"SB" is as defined in 49 CFR 26.65. 2. AUTHORITY AND RESPONSIBILITY A. DBEs and other small businesses are strongly encouraged to participate in the performance of Contracts financed in whole or in part with federal funds (See 49 CFR 26, "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs"). The Consultant must ensure that DBEs and other small businesses have the opportunity to participate in the performance of the work that is the subject of this solicitation and should take all necessary and reasonable steps for this assurance. The proposer must not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts. B. Proposers are encouraged to use services offered by financial institutions owned and controlled by DBEs. 3. SUBMISSION OF DBE INFORMATION If there is a DBE goal on the contract, Exhibit 10-01 Consultant Proposal DBE Commitment must be included in the Proposal. In order for a proposer to be considered responsible and responsive, the proposer must make good faith efforts to meet the goal established for the contract. If the goal is not met, the proposer must document adequate good faith efforts. All DBE participation will be counted towards meeting the contract goal; therefore, all DBE participation shall be collected and reported. Exhibit 10-02 Consultant Contract DBE Information must be included in best qualified consultant's executed consultant contract. Even if no DBE participation will be reported, the successful proposer must execute and return the form. 4. DBE PARTICIPATION GENERAL INFORMATION It is the proposer's responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the Department's DBE program developed pursuant to the 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 proposer not proposing as a joint venture with a non-DBE, will be required to document one or a combination of the following: 1. The proposer is a DBE and will meet the goal by performing work with its own forces. 2. The proposer will meet the goal through work performed by DBE subconsultants, suppliers or trucking companies. 3. The proposer, prior to proposing, made adequate good faith efforts to meet the goal. Page 1 of 2 January 2020 Local Assistance Procedures Manual EXHBIT 10-1 Notice to Proposers DBE Information D. 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. E. 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. F. The proposer shall list only one subconsultant for each portion of work as defined in their proposal and all DBE subconsultants should be listed in the bid/cost proposal list of subconsultants. G. A prime consultant who is a certified DBE is eligible to claim all of the work in the Contract toward the DBE participation except that portion of the work to be performed by non-DBE subconsultants. 5. RESOURCES A. The CUCP database includes the certified DBEs from all certifying agencies participating in the CUCP. If you believe a firm is certified that cannot be located on the database, please contact the Caltrans Office of Certification toll free number 1-866-810-6346 for assistance. B. Access the CUCP database from the Department of Transportation, Office of Civil Rights website 1. Click on the link titled Disadvantaged Business Enterprise; 2. Click on Search for a DBE Firm link; 3. Click on Access to the DBE Query Form located on the first line in the center of the page. Searches can be performed by one or more criteria. Follow instructions on the screen. 6. MATERIALS OR SUPPLIES PURCHASED FROM DBES COUNT TOWARDS THE DBE GOAL UNDER THE FOLLOWING CONDITIONS: A. If the materials or supplies are obtained from a DBE manufacturer, count 100 percent of the cost of the materials or supplies. A DBE manufacturer is a firm that operates or maintains a factory, or establishment that produces on the premises the materials, supplies, articles, or equipment required under the Contract and of the general character described by the specifications. B. If the materials or supplies purchased from a DBE regular dealer, count 60 percent of the cost of the materials or supplies. A DBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a DBE regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a DBE regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section. C. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers' own distribution equipment shall be, by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section. D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services. Page 2 of 2 January 2020 Appendix K Local Assistance Procedures Manual Exhibit 10-02 Consultant Contract DBE Commitment EXHIBIT 10-02 CONSULTANT CONTRACT DBE COMMITMENT 1. Local Agency: County of Fresno 2. Contract DBE Goal: 21% 3. Project Description: On-call A&E consultants and other related services- Public Works and Planning 4. Project Location: Various locations in Fresno County 5.Consultant's Name: Net Positive Consulting Engd 6. Prime Certified DBE: ❑ 7.Total Contract Award Amount: On-call 8.Total Dollar Amount for ALL Subconsultants: 9.Total Number of ALL Subconsultants: 10. Description of Work,Service,or Materials 11. DBE 13. DBE Supplied Certification 12. DBE Contact Information Dollar Number Amount TBD TBD TBD Local Agency to Complete this Section 20. Local Agency Contract $ nlii he TBD 14.TOTAL CLAIMED DBE PARTICIPATION 21. Federal-Aid Project Number: TBD 22. Contract Execution nata Local Agency certifies that all DBE certifications are valid and information on IMPORTANT: Identify all DBE firms being claimed for credit, this form is complete and accurate. regardless of tier.Written confirmation of each listed DBE is required. `::�7 6/10/25 23.Local Agency Representative's Signature 24. Date 15.Preparer's Signature 16. Date Jonathan Schlundt 559-940-7293 25. Local Agency Representative's Name 26.Phone 17.Preparer's Name 18. Phone CEO 27. Local Agency Representative's Title 19.Preparer's Title DISTRIBUTION: 1.Original—Local Agency 2.Copy—Caltrans District Local Assistance Engineer(DLAE). Failure to submit to DLAE within 30 days of contract execution may result in de-obligation of federal funds on contract. ADA Notice: For individuals with sensory disabilities,this document is available in alternate formats. For information call(916)654-6410 or TDD(916)654- 3880 or write Records and Forms Management,1120 N Street,MS-89,Sacramento,CA 95814. Page 1 of 2 July 23,2015 Local Assistance Procedures Manual Exhibit 10-02 Consultant Contract DBE Commitment INSTRUCTIONS—CONSULTANT CONTRACT DBE COMMITMENT CONSULTANT SECTION 1.Local Agency-Enter the name of the local or regional agency that is funding the contract. 2. Contract DBE Goal-Enter the contract DBE goal percentage as it appears on the project advertisement. 3.Project Description-Enter the project description as it appears on the project advertisement(Bridge Rehab, Seismic Rehab, Overlay,Widening, etc). 4.Project Location-Enter the project location as it appears on the project advertisement. 5. Consultant's Name-Enter the consultant's firm name. 6.Prime Certified DBE-Check box if prime contractor is a certified DBE. 7.Total Contract Award Amount-Enter the total contract award dollar amount for the prime consultant. 8.Total Dollar Amount for ALL Subconsultants—Enter the total dollar amount for all subcontracted consultants. SUM=(DBEs+all Non-DBEs).Do not include the prime consultant information in this count. 9.Total number of ALL subconsultants—Enter the total number of all subcontracted consultants. SUM=(DBEs+all Non-DBEs).Do not include the prime consultant information in this count. 10.Description of Work,Services,or Materials Supplied-Enter description of work, services, or materials to be provided. Indicate all work to be performed by DBEs including work performed by the prime consultant's own forces, if the prime is a DBE. If 100%of the item is not to be performed or furnished by the DBE, describe the exact portion to be performed or furnished by the DBE. See LAPM Chapter 9 to determine how to count the participation of DBE firms. 11.DBE Certification Number-Enter the DBE's Certification Identification Number. All DBEs must be certified on the date bids are opened. 12.DBE Contact Information-Enter the name, address, and phone number of all DBE subcontracted consultants. Also, enter the prime consultant's name and phone number, if the prime is a DBE. 13.DBE Dollar Amount-Enter the subcontracted dollar amount of the work to be performed or service to be provided. Include the prime consultant if the prime is a DBE. See LAPM Chapter 9 for how to count full/partial participation. 14.Total Claimed DBE Participation- $: Enter the total dollar amounts entered in the"DBE Dollar Amount"column. %: Enter the total DBE participation claimed("Total Participation Dollars Claimed"divided by item"Total Contract Award Amount"). If the total% claimed is less than item"Contract DBE Goal,"an adequately documented Good Faith Effort(GFE)is required(see Exhibit 15-H DBE Information-Good Faith Efforts of the LAPM). 15.Preparer's Signature-The person completing the DBE commitment form on behalf of the consultant's firm must sign their name. 16.Date-Enter the date the DBE commitment form is signed by the consultant's preparer. 17.Preparer's Name-Enter the name of the person preparing and signing the consultant's DBE commitment form. 18.Phone-Enter the area code and phone number of the person signing the consultant's DBE commitment form. 19.Preparer's Title-Enter the position/title of the person signing the consultant's DBE commitment form. LOCAL AGENCY SECTION 20.Local Agency Contract Number-Enter the Local Agency contract number or identifier. 21.Federal-Aid Project Number-Enter the Federal-Aid Project Number. 22. Contract Execution Date-Enter the date the contract was executed. 23.Local Agency Representative's Signature-The person completing this section of the form for the Local Agency must sign their name to certify that the information in this and the Consultant Section of this form is complete and accurate. 24.Date-Enter the date the DBE commitment form is signed by the Local Agency Representative. 25.Local Agency Representative's Name-Enter the name of the Local Agency Representative certifying the consultant's DBE commitment form. 26.Phone-Enter the area code and phone number of the person signing the consultant's DBE commitment form. 27.Local Agency Representative Title-Enter the position/title of the Local Agency Representative certifying the consultant's DBE commitment form. Page 2 of 2 July 23,2015 Appendix L Local Assistance Procedures Manual EXHBIT 10-Q Disclosure of Lobbying Activities EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352 1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type: ✓ a. contract a. bid/offer/application ❑✓ a. initial b. grant ✓ b. initial award ❑ b. material change c. cooperative agreement c. post-award d. loan For Material Change Only: e. loan guarantee year 208 quarter f loan insurance date of last report 4. Name and Address of Reporting Entity 5. If Reporting Entity in No.4 is Subawardee, Enter Name and Address of Prime: P/lPrime Subawardee Tier if known Net Positive Consulting Engineers Congressional District,if known Congressional District,if known 6. Federal Department/Agency: 7. Federal Program Name/Description: n/a n/a CFDA Number,if applicable n/a 8. Federal Action Number,if known: 9. Award Amount,if known: n/a n/a 10. Name and Address of Lobby Entity 11. Individuals Performing Services (If individual,last name,first name,MI) (including address if different from No. 10) n/a (last name,first name,MI) n/a (attach Continuation Sheet(s)if necessary) 12. Amount of Payment(check all that apply) 14. Type of Payment(check all that apply) g n/a actual ❑planned a. retainer 1 b. one-time fee 13. Form of Payment(check all that apply): ❑l c. commission 11 a. cash _ d. contingent fee 13 b. in-kind;specify:nature e deferred Value f other,specify n/a 15. Brief Description of Services Performed or to be performed and Date(s)of Service,including officer(s),employee(s),or member(s)contacted,for Payment Indicated in Item 12: n/a (attach Continuation Sheet(s)if necessary) 16. Continuation Sheet(s)attached: Yes ❑ No ❑✓ 17.Information requested through this form is authorized by Title 31 U.S.C.Section 1352. This disclosure of lobbying reliance Signature: was placed by the tier above when his transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. print Name: Jonathan Schlundt 1352. This information will be reported to Congress semiannually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject Title: CEO to a civil penalty of not less than$10,000 and not more than $100,000 for each such failure. Telephone No.: 559-940-7293 Date:5/29/25 Authorized for Local Reproduction Federal Use Only: Standard Form-LLL Standard Form LLL Rev.04-28-06 Distribution: Orig-Local Agency Project Files Page 1 LPP 13-01 May 8,2013 Local Assistance Procedures Manual EXHBIT 10-Q Disclosure of Lobbying Activities INSTRUCTIONS FOR COMPLETING EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES This disclosure form shall be completed by the reporting entity,whether subawardee or prime federal recipient at the initiation or receipt of covered federal action or a material change to previous filing pursuant to title 31 U.S.C. Section 1352. The filing of a form is required for such payment or agreement to make payment to lobbying entity for influencing or attempting to influence an officer or employee of any agency,a Member of Congress an officer or employee of Congress or an employee of a Member of Congress in connection with a covered federal action. Attach a continuation sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information. 1. Identify the type of covered federal action for which lobbying activity is or has been secured to influence,the outcome of a covered federal action. 2. Identify the status of the covered federal action. 3. Identify the appropriate classification of this report. If this is a follow-up report caused by a material change to the information previously reported,enter the year and quarter in which the change occurred. Enter the date of the last,previously submitted report by this reporting entity for this covered federal action. 4. Enter the full name,address,city,state,and zip code of the reporting entity. Include Congressional District if known. Check the appropriate classification of the reporting entity that designates if it is or expects to be a prime or subaward recipient. Identify the tier of the subawardee,e.g.,the first subawardee of the prime is the first tier. Subawards include but are not limited to: subcontracts,subgrants,and contract awards under grants. 5. If the organization filing the report in Item 4 checks"Subawardee"then enter the full name,address,city,state,and zip code of the prime federal recipient. Include Congressional District,if known. 6. Enter the name of the federal agency making the award or loan commitment. Include at least one organization level below agency name,if known. For example,Department of Transportation,United States Coast Guard. 7. Enter the federal program name or description for the covered federal action(item 1). If known,enter the full Catalog of Federal Domestic Assistance(CFDA)number for grants,cooperative agreements,loans and loan commitments. 8. Enter the most appropriate federal identifying number available for the federal action identification in item 1 (e.g.,Request for Proposal(RFP)number,Invitation for Bid(IFB)number,grant announcement number,the contract grant.or loan award number, the application/proposal control number assigned by the federal agency). Include prefixes,e.g.,"RFP-DE-90-001." 9. For a covered federal action where there has been an award or loan commitment by the Federal agency,enter the federal amount of the award/loan commitments for the prime entity identified in item 4 or 5. 10. Enter the full name,address,city,state,and zip code of the lobbying entity engaged by the reporting entity identified in Item 4 to influence the covered federal action. 11. Enter the full names of the individual(s)performing services and include full address if different from 10(a). Enter Last Name, First Name and Middle Initial(Ml). 12. Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity(Item 4)to the lobbying entity (Item 10). Indicate whether the payment has been made(actual)or will be made(planned). Check all boxes that apply. If this is a material change report,enter the cumulative amount of payment made or planned to be made. 13. Check all boxes that apply. If payment is made through an in-kind contribution,specify the nature and value of the in-kind payment. 14. Check all boxes that apply. If other,specify nature. 15. Provide a specific and detailed description of the services that the lobbyist has performed or will be expected to perform and the date(s)of any services rendered. Include all preparatory and related activity not just time spent in actual contact with federal officials. Identify the federal officer(s)or employee(s)contacted or the officer(s)employee(s)or Member(s)of Congress that were contacted. 16. Check whether or not a continuation sheet(s)is attached. 17. The certifying official shall sign and date the form,and print his/her name title and telephone number. Public reporting burden for this collection of information is estimated to average 30-minutes per response,including time for reviewing instruction,searching existing data sources,gathering and maintaining the data needed,and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information,including suggestions for reducing this burden,to the Office of Management and Budget,Paperwork Reduction Project(0348-0046),Washington,D.C.20503. SF- LLL-Instructions Rev.06-04 Page 2 LPP 13-01 May 8,2013 County of Fresno - On-Call Architecture and Engineering Consulting Appendix M and Related Services DEBARMENT AND SUSPENSION CERTIFICATION TITLE 49, CODE OF FEDERAL REGULATIONS, PART 29 The consultant, under penalty of perjury, certifies that, except as noted below, he/ she or any other person associated therewith in the capacity of owner, partner, director, officer, and 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 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 3 years. If there are any exceptions to this certification, insert the exceptions in the following space. n/a For any exception noted above, indicate below to whom it applies, initiating agency, and dates of action. Notes: Providing false information may result in criminal prosecution or administrative sanctions. Signature: Date: 5/29/2025 Page 1 of 1