HomeMy WebLinkAboutTransportation Management & Design, Inc. - Consultant Agrmnt - 7-1-2022DocuSign Envelope ID: 7F060567-0CD7-4584-B485-F1 C099F33B04
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into effective! July 1, 2022,I by and
between the City of Fresno, a California municipal corporation (the City), and
Transportation MarlagenJent and Design, Inc. (the Consultant).
The City desires to obtain professional services and the Consultant is capable, legally
qualified and willing to furnish said services.
THE PARTIES THEREFORE AGREE as follows:
1. Scope of Services. The Consultant shall perform to the satisfaction of the City
the Scope of Services described in Exhibit A, including all work incidental to,
or necessary to perform, such services even though not specifically
described in Exhibit A.
2. Term of Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above and shall continue in full force and
effect through the earlier of complete rendition of the servjces hereunder o!r
November 1, 2022, subject to any earlier termination in accordance with this
Agreement. The services of the Consultant as described in Exhibit A are to
commence upon the City's issuance of a written "Notice to Proceed." Work
shall be undertaken and completed in a professional and expeditious
manner.
3. Compensation.
(a) The Consultant's sole compensation for satisfactory performance of all
services requ ired or rendered pursuant to this Agreement shall be a
total fee not to exceed nine thousand nine hundred ninety-nine dollars
($9,999) payable on such terms and in such amounts as set forth in
the Bid Proposal / Schedule of Fees in EXHIBIT A. Such fees include
all expenses incurred by the Consultant in performance of such
services.
(b) Detailed statements shall be rendered monthly and will be payable in
the normal course of City business.
(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required
by this Agreement, which modification shall include an adjustment to
the Consultant's compensation. Any change in the scope of services
must be in compliance with all Federal Transit Administration (FTA)
procurement guidelines and be made by written amendment to the
Agreement signed by an authorized representative for each party. The
Consultant shall not be entitled to any additional compensation if
services are performed prior to a signed written amendment.
4 . Termination, Remedies, and Force Majeure.
(a) This Agreement shall terminate without any liability of the City to the
Consultant upon the earlier of: (i) the Consultant's filing for protection
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(b)
(c)
(d)
(e)
(f)
under the federal bankruptcy laws, or any bankruptcy petition or
petition for receiver commenced by a third party against the
Consultant; (ii) seven calendar days prior written notice with or without
cause by the City to the Consultant; (iii) the City's non-appropriation of
funds sufficient to meet its obligations hereunder during any City fiscal
year of this Agreement, or insufficient funding for the services provided
hereunder; or (iv) expiration of this Agreement.
Upon any termination or expiration of this Agreement, the Consultant
shall (i) immediately stop all work hereunder; (ii) immediately cause
any and all of its subcontractors to cease work; and (iii) immediately
return to the City any and all unearned payments and all properties
and materials in the possession of the Consultant that are owned by
the City. Subject to the terms of this Agreement, the Consultant shall
be paid compensation for services satisfactorily performed prior to the
effective date of termination. The Consultant shall not be paid for any
work or services performed or costs incurred which reasonably could
have been avoided.
In the event of termination due to failure of the Consultant to
satisfactorily perform in accordance with the terms of this Agreement,
the City may withhold an amount that would otherwise be payable as
an offset to, but not in excess of, the City's damages caused by such
failure. In no event shall any payment by the City pursuant to this
Agreement constitute a waiver by the City of any breach of this
Agreement which may then exist on the part of the Consultant, nor
shall such payment impair or prejudice any remedy available to the
City with respect to the breach.
Upon any breach of this Agreement by the Consultant, the City may (i)
exercise any right, remedy (in contract, law or equity), or privilege
which may be available to it under applicable laws of the State of
California or any other applicable law; (ii) proceed by appropriate court
action to enforce the terms of the Agreement; and/or (iii) recover all
direct, indirect, consequential, economic and incidental damages for
the breach of the Agreement. If it is determined that the City
improperly terminated this Agreement for default, such termination
shall be deemed a termination for convenience.
The Consultant shall provide the City with adequate written
assurances of future performance, upon Director's request, in the
event the Consultant fails to comply with any terms or conditions of
this Agreement.
The Consultant shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of the
Consultant and without its fault or negligence such as, acts of God or
the public enemy, acts of the City in its contractual capacity, fires,
floods, epidemics, quarantine restrictions, strikes, unusually severe
weather, and delays of common carriers. The Consultant shall notify
Director in writing as soon as it is reasonably possible after the
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commencement of any excusable delay, setting forth the full
particulars in connection therewith, and shall remedy such occurrence
with all reasonable dispatch, and shall promptly give written notice to
Director of the cessation of such occurrence.
(g) The Consultant agrees that, notwithstanding any contrary provision in
this Agreement, any dispute arising from or relating to this Agreement
(including, without limitation, disputes based on contract, tort, equity or
statute) may, at the City's option, be joined and consolidated with any
other dispute or disputes arising from or relating to the services
provided hereunder so that all disputes arising from or relating to the
services provided hereunder may be resolved in a single proceeding.
The Consultant hereby specifically waives any objection it may
otherwise have to such joinder and consolidation and specifically
consents to mediation, arbitration or any other dispute resolution
mechanism, forum or proceeding necessary to effectuate the joinder
and consolidation contemplated by this provision.
(h) Any notice of termination sent to the Consultant shall include the
reason(s) for such termination or state that it is without cause.
5 . Confidential Information.
(a) Any reports, information, or other data prepared or assembled by the
Consultant pursuant to this Agreement shall not be made available to
any individual or organization by the Consultant without the prior
written approval of the City. During the term of this Agreement, and
thereafter, the Consultant shall not, without the prior written consent of
the City, disclose to anyone any Confidential Information. The term"
Confidential Information" for the purposes of this Agreement shall
include all proprietary and confidential information of the City, including
but not limited to business plans, marketing plans, financial
information, designs, drawings, specifications, materials, compilations,
documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other
medium or media. All Confidential Information shall be and remain
confidential and proprietary in the City.
i. Permission granted to the Consultant to disclose information
on one occasion shall not authorize the Consultant to further
disclose such information or any other information or
disseminate the same on any other occasion.
ii. The Consultant shall not comment publicly to the press or any
other media regarding the Agreement or the City's actions on
the same, except to the City's personnel or the Consultant's
personnel involved in the performance of this Agreement at
public hearings or in response to questions from a Legislative
committee.
iii. The Consultant shall not issue any news releases or any public
relations item of any nature, whatsoever, regarding work
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6.
7.
8.
performed or to be performed under this Agreement without
prior review of the contents thereof by the City and receipt of
the City's written permission.
(b) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall cause
each subcontractor to also comply with the requirements of this
Section 5.
(c) This Section 5 shall survive expiration or termination of this
Agreement.
Licenses. It is further mutually understood and agreed by and between the
parties hereto that inasmuch as the Consultant represents to the City that the
Consultant and its employees and subcontractors, if any, are skilled and
properly licensed by the State of California to perform in accordance with the
standards necessary to perform the services agreed to be done by it under
this Agreement, the City relies upon the skill of the Consultant and any
subcontractors to do and perform such services in a skillful manner and the
Consultant agrees to thus perform the services and require the same of any
subcontractors. Therefore, any acceptance of such services by the City shall
not operate as a release of the Consultant or any subcontractors from said
standards.
Indemnification. To the furthest extent allowed by law, the Consultant shall
indemnify, hold harmless and defend the City and each of its officers,
officials, employees, agents, and volunteers from any and all loss, liability,
fines, penalties, forfeitures, costs and damages (whether in contract, tort or
strict liability, including but not limited to personal injury, death at any time
and property damage) incurred by the City, the Consultant or any other
person, and from any and all claims, demands and actions in law or equity
(including attorney's fees and litigation expenses), arising or alleged to have
arisen directly or indirectly out of performance of this Agreement. The
Consultant's obligations under the preceding sentence shall apply regardless
of whether the City or any of its officers, officials, employees, agents, or
volunteers are actively or passively negligent, but shall not apply to any loss,
liability, fines, penalties, forfeitures, costs or damages caused by the sole
negligence or willful misconduct of the City or any of its officers, officials,
employees, agents, or volunteers, except when such officers, officials,
employees, agents, or volunteers are under the direct supervision and
controlof the Consultant.
If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall require each
subcontractor to indemnify, hold harmless and defend the City and each of its
officers, officials, employees, agents, and volunteers in accordance with the
terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
Insurance.
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(a)
(b)
(c)
(d)
Throughout the life of this Agreement, the Consultant shall pay for and
maintain in full force and effect all insurance as required in Exhibit B,
which is incorporated into and part of this Agreement, with an
insurance company(ies) either (i) admitted by the California
Insurance Commissioner to do business in the State of California
and rated no less than "A-VII" in the Best's Insurance Rating Guide, or
(ii) as may be authorized in writing by the City's Risk Manager or
designee at any time and in his or her sole discretion. The required
policies of insurance as stated in Exhibit B shall maintain limits of
liability of not less than those amounts stated therein. However, the
insurance limits available to the City, its officers, officials, employees,
agents, and volunteers as additional insureds, shall be the greater of
the minimum limits specified therein or the full limit of any insurance
proceeds to the named insured.
If at any time during the life of the Agreement or any extension, the
Consultant or any of its subcontractors/sub-consultants fail to maintain
any required insurance in full force and effect, all services and work
under this Agreement shall be discontinued immediately, and all
payments due or that become due to the Consultant shall be withheld
until notice is received by the City that the required insurance has
been restored to full force and effect and that the premiums
therefore have been paid for a period satisfactory to the City. Any
failure to maintain the required insurance shall be sufficient cause for
the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Consultant of its
responsibilities under this Agreement. The phrase "fail to maintain any
required insurance" shall include, without limitation, notification
received by the City that an insurer has commenced proceedings, or
has had proceedings commenced against it, indicating thatthe insurer
is insolvent.
The fact that insurance is obtained by the Consultant shall not be
deemed to release or diminish the liability of the Consultant, including,
without limitation, liability under the indemnity provisions of this
Agreement. The duty to indemnify the City shall apply to all claims
and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount
of indemnification to be provided by the Consultant. Approval or
purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability ofthe Consultant, its principals,
officers, agents, employees, persons under the supervision of the
Consultant, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of
them.
If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall require
each subcontractor/sub-consultant to provide insurance protection, as
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an additional insured, to the City and each of its officers, officials,
employees, agents, and volunteers in accordance with the terms of
this section, except that any required certificates and applicable
endorsements shall be on file with the Consultant and the City prior to
the commencement of any services by the subcontractor. The
Consultant and any subcontractor/sub-consultant shall establish
additional insured status for the City, its officers, officials, employees,
agents, and volunteers by using Insurance Service Office (ISO) Form
CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an
executed manuscript company endorsement providing additional
insured status as broad as that contained in ISO Form CG 20 10 11
85.
9. Conflict of Interest and Non-Solicitation.
(a) Prior to the City's execution of this Agreement, the Consultant shall
complete a City of Fresno conflict of interest disclosure statement
in the form as set forth in Exhibit C. During the term of this
Agreement, the Consultant shall have the obligation and duty to
immediately notify the City in writing of any change to the information
provided by the Consultant in such statement.
(b) The Consultant shall comply, and require its subcontractors to comply,
with all applicable
(i) professional canons and requirements governing avoidance of
impermissible client conflicts; and
(ii) federal, state and local conflict of interest laws and regulations
including, without limitation, California Government Code
Section 1090 et. seq., the California Political Reform Act
(California Government Code Section 87100 et. seq.), the
regulations of the Fair Political Practices Commission
concerning disclosure and disqualification (2 California Code of
Regulations Section 18700 et. seq.) and Section 4-112 of the
Fresno Municipal Code (Ineligibility to Compete). At any time,
upon written request of the City, the Consultant shall provide a
written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, the Consultant and the
respective subcontractor(s) are in full compliance with all laws
and regulations. The Consultant shall take, and require its
subcontractors to take, reasonable steps to avoid any
appearance of a conflict of interest. Upon discovery of any facts
giving rise to the appearance of a conflict of interest, the
Consultant shall immediately notify the City of these facts in
writing.
(c) In performing the work or services to be provided hereunder, the
Consultant shall not employ or retain the services of any person while
such person either is employed by the City or is a member of any City
council, commission, board, committee, or similar City body. This
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requirement may be waived in writing by the City Manager, if no actual
or potential conflict is involved.
(d) The Consultant represents and warrants that it has not paid or agreed
to pay any compensation, lawful or unlawful, contingent or otherwise,
direct or indirect, to any party to solicit or procure this Agreement or
any rights/benefits hereunder. The City shall have the right, in its
discretion, to deduct from any payment to the Consultant under this
Agreement, or otherwise recover the full amount of, any rebate,
kickback or other consideration paid by the Consultant in violation of
any representation or warranty under this section .
(e) Neither the Consultant, nor any firm affiliated with the Consultant, nor
any of the Consultant's subcontractors performing any services
provided hereunder, shall bid for, assist anyone in the preparation of a
bid for, or perform any services pursuant to, any other contract in
connection with this Agreement with the exception of any
subcontractor whose services are limited to providing surveying or
materials testing information. The Consultant and any of its
subcontractors shall have no interest, direct or indirect, in any other
contract with a third party in connection with this Agreement unless
such interest is in accordance with all applicable law and fully
disclosed to and approved by the City Manager, in advance and in
writing. An affiliated firm is one which is subject to the control of the
same person(s) through joint-ownership or otherwise. The Consultant
shall disclose any financial, business, or other relationship with the
City that may have an impact upon the outcome of this Agreement or
any ensuing the City project or agreement. The Consultant shall also
disclose any current clients who may have a financial interest in the
outcome of this Agreement or any ensuing the City project or
agreement, which will follow.
(f) The Consultant hereby certifies that it does not now have, nor shall it
acquire any financial or business interest that would conflict with the
performance of services under this Agreement.
(g) If the Consultant should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, the
Consultant shall include the provisions of this Section 9 in each
subcontract and require its subcontractors to comply therewith.
(h) This Section 9 shall survive expiration or termination of this
Agreement.
10 . General Terms. Federal and State Assurances and Requirements.
(a) Except as otherwise provided by law, all notices expressly required of
the City within the body of this Agreement, and not otherwise
specifically provided for, shall be effective only if signed by the Director
or designee.
(b) Records of the Consultant's expenses pertaining to the services
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provided under this Agreement shall be kept on a generally recognized
accounting basis. The Consultant and its subcontractors shall maintain
all books, documents, papers, accounting records, and other evidence
pertaining to the performance of the Agreement including, but not
limited to, the costs of administering the Agreement. The Consultant
and its subcontractors shall make such materials available at their
respective offices at all reasonable times during the period of this
Agreement and for three years, or longer if required by law, from the
date of final payment under the Agreement. The City, the State, the
State Auditor, FTA or any duly authorized representative of the federal
government shall have access to any books, records, papers,
accounting records and other documents of the Consultant and its
subcontractors that are pertinent to the Agreement for audit,
examinations, excerpts, and transcriptions. Copies thereof shall be
furnished by the Consultant, if requested.
(c) If any litigation, claim, negotiations, audit or other action is commenced
before the expiration of the three-year time period, all records shall be
retained and made available until such action is resolved, or until the
end of said time period whichever shall later occur. If the Consultant
should subcontract all or any portion of the services to be performed
under this Agreement, the Consultant shall cause each subcontractor
to also comply with the requirements of this section and in the event a
subcontract is entered into for an amount in excess of $25,000, the
subcontract shall include this paragraph in its entirety. This Section
11 (b) shall survive expiration or termination of this Agreement.
(d) Prior to execution of this Agreement by the City, the Consultant shall
have provided evidence to the City that the Consultant is licensed to
perform the services called for by this Agreement (or that no license is
required). If the Consultant should subcontract all or any portion of the
work or services to be performed under this Agreement, the
Consultant shall require each subcontractor to provide evidence to the
City that subcontractor is licensed to perform the services called for by
this Agreement (or that no license is required) before beginning work.
(e) The Consultant's services pursuant to this Agreement shall be
provided under 1he supervision of China Lang~r. and she shall not
assign another to supervise the Consultant's performance of this
Agreement without the prior written approval of the Director.
(f) The City will carry out any applicable federal requirements in the
administration of this Agreement. Notwithstanding Section 25 herein,
the Consultant agrees to comply with and give precedence to all
applicable federal and state assurances and requirements, if any,
identified in Exhibit D along with any attachments it may have and
require that each subcontract include the same assurances by and
requirements of each of its subcontractors.
11. Nondiscrimination. To the extent required by controlling federal, state and
local law, the Consultant shall not employ discriminatory practices in the
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provision of services, employment of personnel, or in any other respect on
the basis of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran, or veteran of the Vietnam
era. Subject to the foregoing and during the performance of this Agreement,
the Consultant agrees as follows:
(a) The Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed,
color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation,
ethnicity, status as a disabled veteran, or veteran of the Vietnam era
be excluded from participation in, be denied the benefits of, or be
subject to discrimination under any program or activity made possible
by or resulting from this Agreement.
(b) The Consultant will not discriminate against any employee or applicant
for employment because of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition,
marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran, or veteran of the Vietnam era. The Consultant shall
ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status
as a disabled veteran, or veteran of the Vietnam era. Such
requirement shall apply to the Consultant's employment practices
including, but not be limited to, the following: employment, upgrading,
demotion or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection
for training, including apprenticeship. The Consultant agrees to post in
conspicuous places, available to employees and applicants for
employment, notices setting forth the provision of this
nondiscrimination clause.
(c) The Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of the Consultant in pursuit hereof, state that all
qualified applicants will receive consideration for employment without
regard to race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran, or veteran of
the Vietnam era.
(d) The Consultant will send to each labor union or representative of
workers with which it has a collective bargaining agreement or other
contract or understanding, a notice advising such labor union or
workers' representatives of the Consultant's commitment under this
section and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
(e) If the Consultant should subcontract all or any portion of the services
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to be performed under this Agreement, the Consultant shall cause
each subcontractor to also comply with the requirements of this
Section 12.
12. Independent Contractor.
(a) In the furnishing of the services provided for herein, the Consultant is
acting solely as an independent contractor. Neither the Consultant, nor
any of its officers, agents, or employees shall be deemed an officer,
agent, employee, joint venturer, partner or associate of the City for any
purpose. The City shall have no right to control or supervise or direct
the manner or method by which the Consultant shall perform its work
and functions. However, the City shall retain the right to administer this
Agreement so as to verify that the Consultant is performing its
obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between the Consultant and the City. The Consultant shall have no
authority to bind the City absent the City's express written consent.
Except to the extent otherwise provided in this Agreement, the
Consultant shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, the Consultant
and its officers, agents, and employees shall have absolutely no right
to employment rights and benefits available to City employees. The
Consultant shall be solely liable and responsible for all payroll and tax
withholding and for providing to, or on behalf of, its employees all
employee benefits including, without limitation, health, welfare and
retirement benefits. In addition, together with its other obligations
under this Agreement, the Consultant shall be solely responsible,
indemnify, defend and save the City harmless from all matters relating
to employment and tax withholding for and payment of the
Consultant's employees, including, without limitation, (i) compliance
with Social Security and unemployment insurance withholding,
payment of workers' compensation benefits, and all other laws and
regulations governing matters of employee withholding, taxes and
payment; and (ii) any claim of right or interest in the City employment
benefits, entitlements, programs and/or funds offered employees of
the City whether arising by reason of any common law, de facto,
leased, or co-employee rights or other theory. It is acknowledged that
during the term of this Agreement, the Consultant may be providing
services to others unrelated to the City or to this Agreement.
13. Notices. Any notice required or intended to be given to either party under the
terms of this Agreement shall be in writing and shall be deemed to be duly
given if delivered personally, transmitted by facsimile followed by telephone
confirmation of receipt, or sent by United States registered or certified mail,
with postage prepaid, return receipt requested, addressed to the party to
which notice is to be given at the party's address set forth on the signature
page of this Agreement or at such other address as the parties may from time
to time designate by written notice. Notices served by United States mail in
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14 .
15 .
16.
17 .
18.
19.
20.
the manner above described shall be deemed sufficiently served or given at
the time of the mailing thereof.
B i nd i ng. Subject to Section 15, below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties,
and each parties' respective heirs, successors, assigns, transferees, agents,
servants, employeesand representatives.
Assignme nt.
(a) This Agreement is personal to the Consultant and there shall be no
assignment by the Consultant of its rights or obligations under this
Agreement without the prior written approval of the City Manager or
designee. Any attempted assignment by the Consultant, its
successors or assigns, shall be null and void unless approved in
writing by the City Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any
monies due the Consultant from the City under the terms of this
Agreement to any otherindividual(s), corporation(s) or entity(ies). The
City retains the right to pay any and all monies due the Consultant
directly to the Consultant.
Compliance With Law. In providing the services required under this
Agreement, the Consultant shall at all times comply with all applicable
laws of the United States, including, but not limited to, the Americans with
Disabilities Act (42 U.S.C. §§ 12101 et seq.), the State of California and the
City, and with all applicable regulations promulgated by federal, state,
regional, or local administrative and regulatory agencies, now in force and as
they may be enacted, issued, or amended during the term of this Agreement.
Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any
subsequent breach of either the same or a different provision of this
Agreement. No provisions of this Agreement may be waived unless in
writing and signed by all parties to this Agreement. Waiver of any one
provision herein shall not be deemed to be a waiver of any other provision
herein.
Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
California, excluding, however, any conflict of laws rule which would apply the
law of another jurisdiction. Venue for purposes of the filing of any action
regarding the enforcement or interpretation of this Agreement and any rights
and duties hereunder shall be Fresno County, California.
Headi ngs. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain,
modify, or add to the interpretation or meaning of the provisions of this
Agreement.
Severabil ity. The provisions of this Agreement are severable. The invalidity,
or unenforceability of any one provision in this Agreement shall not affect the
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21.
22.
23.
24.
25.
26.
27.
28.
29.
other provisions.
Interpretation. The parties acknowledge that this Agreement in its final form
is the result of the combined efforts of the parties and that,· should any
provision of this Agreement be found to be ambiguous in any way, such
ambiguity shall not be resolved by construing this Agreement in favor of or
against either party, but rather by construing the terms in accordance with
their generally accepted meaning.
Attorney's Fees. If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this
Agreement, the prevailing party in such proceeding or action shall be entitled
to recover from the other party its reasonable attorney's fees and legal
expenses.
Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
Precedence of Documents. In the event of any conflict between the body of
this Agreement and any exhibit or attachment hereto, the terms and
conditions of the body of this Agreement shall control and take precedence
over the terms and conditions expressed within the exhibit or attachment.
Furthermore, any terms or conditions contained within any exhibit or
attachment hereto which purport to modify the allocation of risk between the
parties provided for within the body of this Agreement, shall be null and void.
Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or inequity.
No Third Party Beneficiaries. The rights, interests, duties and obligations
defined within this Agreement are intended for the specific parties hereto as
identified in the preamble of this Agreement. Notwithstanding anything stated
to the contrary in this Agreement, it is not intended that any rights or
interests in this Agreement benefit orflow to the interest of any third parties.
Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the
entire and integrated agreement between the parties with respect to the
subject matter hereof and supersedes all prior negotiations, representations
or agreements, either written or oral. This Agreement may be modified only
by written instrument duly authorized and executed by both the City and the
Consultant.
RFQ or RFP Document. Any Request for Qualifications, Request for
Proposal, or Request for Qualifications and Proposal, and documents issued
therewith (collectively referred to herein as RFQ) by the City that resulted in
selection of the Consultant for entry into this Agreement are hereby
incorporated into and made a partof this Agreement. In the event of a conflict
between the RFQ and this Agreement (including any Exhibit hereto), this
Agreement (including any Exhibit hereto) shall take precedence.
The City Manager, or designee, is hereby authorized and directed to execute
-12-
DocuSign Envelope ID : 7F060567-0CD7-4584-B485-F1C099F33B04
and implement this Agreement. The previous sentence is not intended to
delegate any authority to the City Manager to administer the Agreement, any
delegation of authority must be expressly included in the Agreement.
[SIGNATURES FOLLOW ON NEXT PAGE.]
-13-
-------------
---------
DocuSign Envelope ID: 7F060567-0CD7-4584-B485-F1 C099F33804
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, effective the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
~~·
4~ef&g'~r:fn ne White, City Manager
APPROVED AS TO FORM:
RINA M. GONZALES
Interim City Attorney c-:DocuSlg ned by:
e!~IA1., &rfrk~
90P1~mt'~8B rickey
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
Ci tY. Clerk
IPOocuSlgned by:
~6-~-CF-42-4.. ----------
Deputy
REVIEWED BY
[?=..~;lo+
tlricf~~lo r
Interim Administrative Manager
Fresno Area Express/
Transportation Department
China Langer
Transportation Management and Design,
Inc.
~="{~~13F54C 8 1FF50-l8B ... chi na LangerName:. ____________ _
Title : President
(If corporation or LLC., Board Chair,
Pres.or Vice Pres.)
U DocuSigned by:
'c!_~~
Melody Kitchensame:._____________N
Title: CFO/Controller
(If corporation or LLC, CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License:
Number:.__________ _ _
Name :
Date of Issuance :
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DocuSign Envelope ID : 7F060567-0CD7-4584-B485-F1C099F33B04
Addresses:
CITY: CONSULTANT:
City of Fresno Transportation Management
Attention: Linda Taylor, and Design, Inc.
Administrative Manager Attention: China Langer,
2223 G Street President
Fresno, CA 93706 2701 Loker Ave West,
Phone: (559) 621-1456 Suite #110
Carlsbad, CA 92010
Phone: (760) 4 76-9600
Attachments:
1 . Exhibit A -Scope of Services and Bid Proposal / Schedule of Fees
2. Exhibit B -Insurance Requirements
3 . Exhibit C -Conflict of Interest Disclosure Form
4 . Exhibit D -Federal Requirements
5 . Exhibit E -Debarment and Suspension Certification
6 . Exhibit F -DBE Declaration
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EXHIBIT A
SCOPE OF SERVICES AND
BID PROPOSAL/ SCHEDULE OF FEES
Consultant Service Agreement between City of Fresno (the City)
and Transpo~ation Management & Design, Inc. (the Consultant)
SCOPE OF SERVICES
Background: In Spring 2021, FAX implemented a six-month pilot program for free fares for
all FAX passengers. In Fall 2021, FAX changed its fare structure, reducing fares across all
fare types and establishing new categories for free rides, including for children between 7
and 12 years old and for veterans and active members of the military. FAX also removed
restrictions from its transfer policy. A fare equity analysis was completed for this work.
Current State: In 2022, the City of Fresno received a $500,000 grant from Kaiser
Permanente for public transit. On May 12, 2022, the Fresno City Council approved a
Resolution directing FAX to temporarily subsidize bus fares on fixed route transit for seniors
65 and older, Medicare card holders, and persons with disability placards. The subsidies
start on July 1, 2022, and continue until the grant funds have been expended, resulting in
free fares for program participants. If additional grants are secured in the future, either from
Kaiser or from other entities, this could become a permanent change.
Request for Proposals: FAX is seeking consultant assistance to prepare a Title VI Fare
Equity Analysis for under $10,000, with an anticipated completion date of Summer 2022.
FAX will conduct public outreach and education on the subsidized free fares.
The scope of work for consultant assistance consists of the following tasks:
Task 1: Prepare Draft Title VI Fare Equity Analysis and associated maps
Review FAX's Title VI Program (attached as exhibit) as well as Title VI fare equity
analyses of other transit agencies who provide free fares for reduced fare eligible
participants.
Deliverables :
• Collect and analyze data from FAX's 2022 on-board passenger survey as
well as data from the US Census/American Community Survey to
determine if the proposed fare change will impact low-income and minority
populations; prepare associated minority and low-income maps as
necessary.
• Identify whether there will be a disproportionate burden or disparate impact
on Title VI and EJ populations.
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• Identify methods to avoid, minimize, and mitigate identified disproportionate
impacts.
• Prepare preliminary Title VI Fare Equity Analysis report.
• Update preliminary report incorporating staff comments.
Task 2: Produce Final Title VI Fare Equity Analysis report and present to FAX
Detail the process and conclusions, including alternatives identified and mitigations
for any disparate impacts/disproportionate burdens on minority/low-income
populations.
Deliverables:
• Prepare draft final report.
• Revise final report, incorporating public comments received on draft, for
City Council approval.
• Presentation to FAX/City staff, as warranted.
Page 2 of 2
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BID PROPOSAL/ SCHEDULE OF FEES
Page 3 of 2
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M ay 6, 2022 ■TMD
"TRANSPORTATION
MANAGEMENT &
DESIGN, INC.
SAHDIEGO
Un ited States
1902 Wrisht Place
Su ite 180
Car lsbad, CA 92008
760.476.9600 tel
760.476.9602 fax
www.tmdinc.net
MDBOURNE
Austra lia
carolina Ilic
Planning Manager, Department oflransp0rtati0n
Oty of Fresno
2223 G Street
Fresno, CA 93706
Stibject: Ti tle V I / En vironmental Justice Analysis of ,Free Fares for Reduced Fare Program
Participants
Dea r M s. Ilic
T ransportation Management & Des i gn, Inc. (TMD) ls pleased lO subm it our pfoposal to support FAX
by conducting a Title V1 Fare Equity Analysis of providing free fares to its Reduced Fare Program
participants, which indudes seniors, persons with disabilities and Medicare Card holders.
FAX is required to evaluate the potential impacts of this fare changes as required under the k!deral
Transit Administration's (FTA) Title VI guidelines as promulgated in Fl'A Proposed Orcular C 4702.18 -
TITLE VI REQUIREMENTS ANO GUIDELINES FOR F'EDEAAL TRANS IT ADMINISTRATION REC IPIE NTS and
the FTA Env i ronmenta l Justice guldeliMs a documented u'I the l=TA Proposed Circu lar C 4703.l -
ENVIRONMENTALJUSTINCE POLICY GUIDANCE !=OR FEDERAL TRANSIT ADM INISTRAT ION RECIPIENTS.
In compliance with FTA drCtJlar C 4702-18 and C 4703.1, TMD !Iii! work collaboratively with FAX staff
to:
• Collect and analyte data from FAX's 2022 on-board survey and Remix to determine if the
proposed fare change will impact low-i ncome nd minority populations;
• Identify whether there will be a dispfoportionate burden or disparate impact on Title Vl and
EJ populations; and
• Identify methods to avoid, min i mi ze, an d m i gate id1!11 tifiea d sproportionate Impacts .
Deliv@rable: TMD will document all analysis and maps into a technical memorandum. TMO wm submit
draft and fi nal versions of the Title VI/ Environmen tal Justice Analysis of Free Fa.res for Re duced Fare
Program Portid pants to FAX fo r review.
Schedule: TMD will complete the Title Vl/£.J AnalyS1s within a four-week time period.
Budget Not to exceed $9,999. A detailed budget is endose.'!f.
China Langer, President of TMO, Is authorlz.ed to represen,t the firm in all matters regarding this
proposal. She can be contacted at 2701 Loker Ave.. W., Suite 110, cartsbad, CA 92010, by telephone at
(760) 476-9600, or via email at clanger @t m d i nc.net_ Tn i proposal sha ll remain valid for n o long~r
than ninety (90) days. We look forward to the opportunity of working with the City of Fresno on this
important project.
Respectfully yours,
Transportation Management & Des ign, Inc.
China Langer, President
Page 4 of 2
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EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (the City)
and Transpor-J:ation Management & Design, Inc. (the Consultant)
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on
an occurrence form and shall provide coverage for "bodily injury," "property
damage" and "personal and advertising injury" with coverage for premises and
operations (including the use of owned and non-owned equipment), products and
completed operations, and contractual liability (including without limitation
indemnity obligations under the Agreement) with limits of liability not less than
those set forth under "Minimum Limits of Insurance ."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance or use of
automobiles in the course of your business operations. The Automobile Policy
shall be written on an occurrence form and shall provide coverage for all owned,
hired, and non-owned automobiles or other licensed vehicles (Code 1-Any Auto).
If personal automobile coverage issued, the CITY, its officers, officials, employees,
agents, and volunteers are to be listed as additional insureds.
3. Workers' Compensation insurance is required by the State of California and
Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
CONTRACTOR'S profession.
MINIMUM LIMITS OF INSURANCE
CONTRACTOR, or any party the CONTRACTOR subcontracts with, shall maintain
limits of liability of not less than those set forth below. However, insurance limits
available to CITY, its officers, officials, employees, agents and volunteers as additional
insureds, shall be the greater of the minimum limits specified herein or the full limit of
any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $2,000,000 per occurrence for bodily injury and property damage;
(ii) $2,000,000 per occurrence for personal and advertising injury;
(iii) $4,000,000 aggregate for products and completed operations, and,
(iv) $4,000,000 general aggregate applying separately to the work performed
under the Agreement.
COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.
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WORKER'S COMPENSATION INSURANCE as required by the State of California
with statutory limits.
2. EMPLOYER'S LIABILITY
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
3. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate
UMBRELLA OR EXCESS INSURANCE
________________In the event CONTRACTOR,
purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits
of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage
than the primary insurance policy(ies). In addition, such Umbrella or Excess
insurance policy(ies) shall also apply on a primary and non-contributory basis for
benefit of the CITY, its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
CONTRACTOR shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and CONTRACTOR shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions
must be declared to on the Certificate of Insurance, and approved by, the CITY'S Risk
Manager or his/her designee. At the option of the CITY'S Risk Manager or his/her
designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects CITY, its officers, officials, employees, agents,
volunteers; or
(ii) CONTRACTOR shall provide a financial guaranteeing payment of losses
and related investigations, claim administration and defense expenses. At
no time shall CITY be responsible for the payment of any deductibles or
self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The Commercial General and Automobile Liability insurance policies are to contain, or
be endorsed to contain, the following provisions:
1. CITY, its officers, officials, employees, agents and volunteers are to be covered as
additional insureds. CONTRACTOR shall establish additional insured status for
the CITY for all ongoing and completed operations by use of ISO form CG 20 10
11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript
insurance company endorsement providing additional insured status as broad as
that contained in ISO Form CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to CITY, its officers, officials, employees, agents, and volunteers. Any
available insurance proceeds in excess of the specified minimum limits and
Page 6 of 4
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coverage shall be available to the Additional Insured.
3. For any claims related to this Agreement, CONTRACTOR'S insurance coverage
shall be primary insurance with respect to the CITY, its officers, officials,
employees, agents, and volunteers. Any insurance or self-insurance maintained
by the CITY, its officers, officials, employees, agents and volunteers shall be
excess of CONTRACTOR'S insurance and shall not contribute with it.
CONTRACTOR shall establish primary and non-contributory status for both
ongoing and completed operations coverage by using ISO Form CG 20 01 04 13
or by an executed manuscript insurance company endorsement that provides
primary and non-contributory status as broad as that contained in ISO Form CG 20
01 04 13.
The Worker's Compensation, Commercial General and Automobile Liability
insurance policy are to contain, or be endorsed to contain, the following provision:
CONTRACTOR and its insurer shall waive any right of subrogation against CITY,
its officers, officials, employees, agents and volunteers.
If the Professional Liability insurance policy is written on a claims-made form:
1. The retroactive date must be shown and must be before the effective date of the
Agreement or the commencement of work by CONTRACTOR.
2. Insurance must be maintained, and evidence of insurance must be provided for at
least five (5) years after completion of the Agreement work or termination of the
Agreement, whichever occurs first, or, in the alternative, the policy shall be
endorsed to provide not less than a five (5) year discovery period.
3. If coverage is canceled or non-renewed, and not replaced with another claims
made policy form with a retroactive date prior to the effective date of the
Agreement or the commencement of work by CONTRACTOR, CONTRACTOR
must purchase "extended reporting" coverage for a minimum of five (5) years
completion of the Agreement work or termination of the Agreement, whichever
occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for review.
5. These requirements shall survive expiration or termination of the agreement.
All policies of insurance required herein shall be endorsed to provide that the
coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except
after thirty (30) calendar days written notice by certified mail, return receipt requested,
has been given to CITY, CONTRACTOR is also responsible for providing written
notice to the CITY under the same terms and conditions. Upon issuance by the
insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in
coverage or in limits, CONTRACTOR shall furnish CITY with a new certificate and
applicable endorsements, evidencing renewal of such policy not less than (15)
calendar days prior to the expiration date of the expiring policy.
Should any of these policies provide that the defense costs are paid within the Limits
of Liability, thereby reducing the available limits by defense costs, then the
requirement for the Limits of Liability of these policies will be twice the above stated
limits.
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The fact that insurance is obtained by CONTRACTOR shall not be deemed to release
or diminish the liability of CONTRACTOR, including, without limitation, liability under
the indemnity provisions of this Agreement. The policy limits do not act as a limitation
upon the amount of indemnification to be provided by CONTRACTOR. Approval and
purchase of any insurance contracts or policies shall in no way relieve from liability nor
limit the liability of CONTRACTOR, its principals, officers, agents, employees, persons
under the supervision of CONTRACTOR, vendors, suppliers, invitees, Contractors,
subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTRACTORS -If CONTRACTOR subcontracts any of al of the services to be
performed under this Agreement, CONTRACTOR shall require, at the discretion of the
CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side
Agreement with the City to provide required indemnification and insurance protection.
Any required Side Agreement(s) and associated insurance documents for the
subcontractor must be reviewed and preapproved by CITY Risk Manager or designee.
If no Side Agreement is required, CONTRACTOR will be solely responsible for
ensuring that it's subcontractors maintain insurance coverage at levels no less than
those required by applicable law and is customary in the relevant industry.
VERIFICATION OF COVERAGE
CONTRACTOR shall furnish CITY with all certificate(s) and applicable
endorsements affecting coverage required hereunder. All certificates and applicable
endorsements are to be received and approved by the CITY'S Risk Manager or
his/her designee prior to CITY'S execution of the Agreement and before work
commences. All non-ISO endorsements amending policy coverage shall be executed
by a licensed or authorized agent or broker. Upon request of CITY, CONTRACTOR
shall immediately furnish CITY with a complete copy of any insurance policy required
under this Agreement, including all endorsements, with said copy certified by the
underwriter to be a true and correct copy of the original policy. Thi~ requirement shall
survive expiration or termination of this Agreement.
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EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Consultant Service Agreement between City of Fresno
and Transport~tion Management and D~sign, Inc.
YES* NO
1 Are you currently in litigation with the City of Fresno or any of
its agents?
□ ~
2 Do you represent any firm, organization, or person who is in
litigation with the City of Fresno?
□ [g]
3 Do you currently represent or perform work for any clients
who do business with the City of Fresno?
□ GJ
4 Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with
the City of Fresno, or in a business which is in litigation with
the City of Fresno?
□ ~
5 Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee
who has any significant role in the subject matter of this
service?
l
□ ~
6 Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in
connection with this Agreement?
I □ ~
* If the answer to any question is yes, please explain in full below.
·uocu::;1gnea ny:
Explanation : __________ ~M~
15~'8~-
6/30/2022
Date
china Langer
(name)
President
(company)
2701 Loker Ave. west, suite 110
(address)
Carlsbad, CA 92010
Y Additional page(s) attached.
(city state zip)
DocuSign Envelope ID : 7F060567-0CD7-4584-B485-F1 C099F33B04
EXHIBIT D
FEDERAL CONDITIONS
FOR PROFESSIONAL SERVICES
EQUAL TO OR LESS THAN $10,000
This contract/purchase agreement is subject to a financial assistance contract between the
City of Fresno and the Federal Transit Administration, which requires that this
contract/agreement contain the following clauses:
NO GOVERNMENT OBLIGATION TO THIRD PARTIES
(1) The City and contractor/vendor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any obligations
or liabilities to the purchaser, contractor, or any other party (whether or not a party to that
contract) pertaining to any matter resulting from the underlying contract.
(2) The contractor agrees to include the above clause in each subcontract financed in whole
or in part with Federal assistance provided by FT A. It is further agreed that the clause shall
not be modified, except to identify the subcontractor who will be subject to its provisions.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS
(1) The contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. 3801 et seq. and U.S. DOT regulations, "Program
Fraud Civil Remedies, "49 CFR Part 31, apply to its actions pertaining to this Project. Upon
execution of the underlying contract, the contractor certifies or affirms the truthfulness and
accuracy of any statement it has made, it makes, it may make, or causes to be made,
pertaining to the underlying contract or the FT A assisted project for which this contract work
is being performed. In addition to other penalties that may be applicable, the contractor
further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent
claim, statement, submission, or certification, the Federal Government reserves the right to
impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the contractor to
the extent the Federal Government deems appropriate.
(2) The contractor also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. 5307,
the Government reserves the right to impose the penalties of 18 U.S.C. 1001 and 49 U.S.C.
§ 5323(1) on the contractor, to the extent the Federal Government deems appropriate.
(3) The contractor agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
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clauses shall not be modified, except to identify the subcontractor who will be subject to the
provisions.
ACCESSTORECORDSANDREPORTS
(1) Record Re t en t io n. The Contractor will retain, and will require its subcontractors of all tiers
to retain, complete and readily accessible records related in whole or in part to the contract,
including, but not limited to, data, documents, reports, statistics, sub-agreements, leases,
subcontracts, arrangements, other third party agreements of any type, and supporting
materials related to those records.
(2) Reten t ion Period. The Contractor agrees to comply with the record retention
requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all
books, records, accounts and reports required under this Contract for a period of at not less
than three (3) years after the date of termination or expiration of this Contract, except in the
event of litigation or settlement of claims arising from the performance of this Contract, in
which case records shall be maintained until the disposition of all such litigation, appeals,
claims or exceptions related thereto.
(3) Access t o Reco rds. The Contractor agrees to provide sufficient access to FTA and its
contractors to inspect and audit records and information related to performance of this
contract as reasonably may be required.
(4) Access to t he Sites of Performance. The Contractor agrees to permit FTA and its
contractors access to the sites of performance under this contract as reasonably may be
required.
FEDERAL CHANGES
(1) Contractor shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference in
the Master Ag reement between Purchaser and FTA, as they may be amended or
promulgated from time to time during the term of this contract. Contractor's failure to so
comply shall constitute a material breach of this contract.
CIVIL RIGHTS
The City is an Equal Opportunity Employer. As such, the City agrees to comply with all
applicable Federal civil rights laws and implementing regulations. Apart from inconsistent
requirements imposed by Federal laws or regulations, the City agrees to comply with the
requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA
to support procurements using exclusionary or discriminatory specifications,
DocuSign Envelope ID : 7F060567-0CD7-4584-B485-F1 C099F33B04
Under this Agreement, the Contractor shall at all times comply with the following requirements
and shall include these requirements in each subcontract entered into as part thereof.
(1) Nondiscrimination -In accordance with Federal transit law at 49 U.S.C. § 5332, the
Contractor agrees that it will not discriminate against any employee or applicant for
employment because of race, color, religion, national origin, sex, disability, or age. In
addition, the Contractor agrees to comply with applicable Federal implementing regulations
and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity -The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49
U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of
Federal Contract Compliance Programs, Equal Employment Opportunity, Department of
Labor," 41 C.F.R. chapter 60, and Executive Order No. 11246, "Equal Employment
Opportunity in Federal Employment," September 24, 1965, 42 U.S.C. § 2000e note, as
amended by any later Executive Order that amends or supersedes it, referenced in 42
U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without
regard to their race, color, religion, national origin, or sex (including sexual orientation
and gender identity). Such action shall include, but not be limited to, the following:
employment, promotion, demotion or transfer, recruitment or recruitment advertising,
layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. In addition, the Contractor agrees to comply with any
implementing requirements FT A may issue.
(b) Age -In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§
621-634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations,
"Age Discrimination in Employment Act," 29 C.F.R. part 1625, the Age Discrimination
Act of 1975, as amended, 42 U.S.C . § 6101 et seq., U.S. Health and Human Services
regulations, "Nondiscrimination on the Basis of Age in Programs or Activities Receiving
Federal Financial Assistance," 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. §
5332, the Contractor agrees to refrain from discrimination against present and
prospective employees for reason of age. In addition, the Contractor agrees to comply
with any implementing requirements FTA may issue.
(c) Disabilities -In accordance with section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42
U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C.
§4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it
will not discriminate against individuals on the basis of disability. In addition, the
Contractor agrees to comply with any implementing requirements FT A may issue.
(3) The contractor also agrees to include these requirements in each subcontract financed
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whole or in part with Federal assistance provided by FTA, modified only if necessary to
identify the affected parties.
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
(1) Policy: It is the policy of the Department of Transportation that disadvantaged business
enterprises as defined in 49 CFR Part 26 shall have the maximum opportunity to participate
in the performance of contracts financed in whole or part with Federal funds under this
agreement. Consequently, the DBE requirements of 49 CFR Part 26 applies to this
agreement.
(2) DBE Obligation: The recipient or its contractor agrees to ensure that disadvantaged
business enterprises as defined in 49 CFR Part 26 have the maximum opportunity to
participate in the performance of contracts and subcontracts financed in whole or in part with
Federal funds provided under this agreement. In this regard, all recipients or contractors
shall take all necessary and reasonable steps in accordance with 49 CFR Part 26 to ensure
that disadvantaged business enterprises have the maximum opportunity to compete for and
perform contracts. Recipients and their contractors shall not discriminate on the basis of
race, color, national origin, or sex in the award and performance of DOT-assisted contracts."
(3) This Contract is subject to the requirements of Title 49, Code of Federal Regulations,
Part 26, Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs. The national goal for participation of
Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE
participation is 13%. A separate contract goal has not been established for this
procurement.
INCORPORATION OF FTA 4220.1 F TERMS
(1) The preceding provisions include, in part, certain Standard Terms and Conditions
required by DOT, whether or not expressly set forth in the preceding contract provisions. All
contractual provisions required by DOT, as set forth in FTA Circular 4220.1 F, dated
November 1, 2008, are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA-mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. The contractor shall not perform
any act, fail to perform any act, or refuse to comply with any City of Fresno request, which
would cause the City of Fresno to be in violation of the FTA terms and conditions.
(2) Flow Down -The incorporation of FTA terms has unlimited flow down .
FLY AMERICA
Fly America Requirements:
(1) Definitions. As used in this clause-"International air transportation" means transportation
by air between a place in the United States and a place outside the United States or
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between two places both of which are outside the United States. "United States" means the
50 States, the District of Columbia, and outlying areas. "U.S.-flag air carrier" means an air
carrier holding a certificate under 49 U .S.C. Chapter 411.
(2) When Federal funds are used to fund travel, Section 5 of the International Air
Transportation Fair Competitive Practices Act of 197 4 (49 U.S.C. 40118) (Fly America Act)
requires contractors, recipients, and others use U.S.-flag air carriers for U.S. Government
financed international air transportation of personnel (and their personal effects) or property,
to the extent that service by those carriers is available. It requires the Comptroller General of
the United States, in the absence of satisfactory proof of the necessity for foreign-flag air
transportation, to disallow expenditures from funds , appropriated or otherwise established
for the account of the United States, for international air transportation secured aboard a
foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services.
(3) If available, the contractor, in performing work under this contract, shall use U.S.-flag
carriers for international air transportation of personnel (and their personal effects) or
property.
(4) In the event that the contractor selects a carrier other than a U.S.-flag air carrier for
international air transportation, the contractor shall include a statement on vouchers
involving such transportation essentially as follows:
Statement of Unavailability of U.S.-Flag Air Carriers
International air transportation of persons (and their personal effects) or property by
U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier
service for the following reasons. See FAR§ 47.403.
Stated
Reason(s):_________________________
(5) The contractor shall include the substance of this clause, including this paragraph, in
each subcontract or purchase under this contract that may involve international air
transportation.
ENERGY CONSERVATION
(1) The contractor agrees to comply with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
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SAFE OPERATION OF MOTOR VEHICLES
(1) Seat Belt Use -The Contractor is encouraged to adopt and promote on-the-job seat belt
use policies and programs for its employees and other personnel that operate company
owned vehicles, company-rented vehicles, or personally operated vehicles. The terms
"company-owned" and "company-leased" refer to vehicles owned or leased either by the
Contractor or City.
(2) Distracted Driver -The Contractor agrees to adopt and enforce workplace safety policies
to decrease crashes caused by distracted drivers, including policies to ban text messaging
while using an electronic device supplied by an employer, and driving a vehicle the driver
owns or rents, a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when
on official business in connection with the work performed under this agreement.
PROMPT PAYMENT
(1) The Prime Contractor shall pay any Subcontractor for work that has been satisfactorily
performed no later than thirty (30) days from the date of the Prime Contractor's receipt of
each payment made by the City of Fresno. Additionally, within thirty (30) days of satisfactory
completion of all work required of the Subcontractor, the Prime Contractor shall release any
retainage payments withheld to the Subcontractor.
PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE
SERVICES OR EQUIPMENT
The Contractor agrees to comply with 2 CFR 200.216 and Public Law 115-232, Section 889,
and may not 1) procure or obtain; 2) extend or renew a contract to procure; or 3) enter into a
contract (or extend or renew a contract) to procure or obtain equipment, services, or
systems that uses covered telecommunications equipment or services as a substantial or
essential component of any system, or as critical technology as part of any system for this
federally funded agreement. As described in Pub lic Law 115-232, section 889, covered
telecommunications equipment is telecommunications equipment produced by Huawei
Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
a) For the purpose of public safety, security of government facilities, physical security
surveillance of critical infrastructure, and other national security purposes, video
surveillance and telecommunications equipment produced by Hytera
Communications Corporation, Hangzhou Hikvision Digital Technology Company, or
Dahua Technology Company (or any subsidiary or affiliate of such entities).
b) Telecommunications or video surveillance services provided by such entities or using
such equipment.
c) Telecommunications or video surveillance equipment or services produced or
provided by an entity that the Secretary of Defense, in consultation with the Director
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of the National Intelligence or the Director of the Federal Bureau of Investigation,
reasonably believes to be an entity owned or controlled by, or otherwise connected
to, the government of a covered foreign country.
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Exhibit E
DEBARMENT AND SUSPENSION CERTIFICATION
Contractor and all subcontractors shall meet debarment, suspension, ineligibility, and
voluntary exclusion requirements pursuant to Executive Order 12549. See Exhibit D,
Federal Requirements, of these Specifications. A list of excluded parties may be found at
the following website : https :/ /www .sam.gov/SAM/pages/pu blic/searchRecords/search .jsf.
Contractor shall return with its Bid Proposal this form.
Note: Providing false information may result in criminal prosecution or administrative
sanctions.
The above certification is part of the Proposal. Signing this Proposal on the
signature portion thereof shall also constitute signature of this Certification.
Date ----------------------------
Signature_________________________
Company Name __________________________
Title
-------
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Exhibit F
DBE DECLARATION
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
This information is being gathered for informational purposes only.
All information submitted on this form is subject to review by the DBE Coordinator
Disabled Business Enterprise (DBE), Small Business or Women Owned {DBE's, MBE or WBE's)
for contract of goods and/or services must be certified
SECTION 1. TO BE COMPLETED BY ALL DBE's, MBE's orWBE's:
Name ---------Firm number:
SECTION 2. TO BE COMPLETED BY ALL DBE's, MBE's or WBE's
Check box in Section 2 and provide original signatures of all DBE's, MBE's or WBE owners and
managers.
D I (we) declare that I (we) the DBE, MBE or WBE, are not brokers or agents for goods
and/or services provided in connection with this solicitation identified above.
DBE owners and mana ers of the DBE , MBE or WBE: attach additional sheets if necessary)
ted Name of DBE, MBE or WBE owner/manager Date signed
Signature of DBE, MBE or WBE owner/manager
Printed Name of DBE, MBE or WBE owner/manager Date signed
Signature of DBE, MBE or WBE owner/manager
Printed Name of DBE, MBE or WBE owner/manager Date signed
Signature of DBE, MBE or WBE owner/manager