HomeMy WebLinkAboutProfessional Services Agreement Template (Rev 7-23) (2)Contract No. ___________
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CITY OF PALM DESERT
PROFESSIONAL SERVICES AGREEMENT
1.Parties and Date. This Agreement is made and entered into this 14th day of December,
2023, by and between the City of Palm Desert, a municipal corporation organized under the laws
of the State of California with its principal place of business at 73-510 Fred Waring Drive, Palm
Desert, California 92260-2578 (“City”) and [***INSERT NAME OF COMPANY***], Choose an
item., with its principal place of business at [***INSERT ADDRESS***] ("Vendor"). The City and
Vendor are sometimes individually referred to herein as "Party" and collectively as "Parties."
2.Recitals.
2.1 Project.
The City is a public agency of the State of California and is in need of professional services
for the following project:
Vision Zero Strategy
(hereinafter referred to as “the Project”).
2.2 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant is duly licensed and has the necessary qualifications to provide such services.
3.Terms.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to
the City all labor, materials, tools, equipment, services, and incidental and customary work
necessary to fully and adequately supply the services necessary for the Project ("Services"). The
Services are more particularly described in Exhibit "A" attached hereto and incorporated herein
by reference. All Services shall be subject to, and performed in accordance with, this Agreement,
the exhibits attached hereto and incorporated herein by reference, and all applicable local, state
and federal laws, rules and regulations. Additionally, Consultant shall comply with all Federal
requirements applicable to the Services as set forth in Exhibit “A-I” and attached hereto and
incorporated herein by reference (“Federal Requirements”). With respect to any conflict between
such Federal Requirements and the terms of this Agreement and/or the provisions of state law,
the more stringent requirement shall control.
3.1.2 Term. The term of this Agreement shall be from December 14,
2023, to June 30, 2025, unless earlier terminated as provided herein. Contractor shall complete
the Services within the term of this Agreement and shall meet any other established schedules
and deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Independent Contractor; Control and Payment of Subordinates.
The Services shall be performed by Consultant or under its supervision. Consultant will determine
the means, methods, and details of performing the Services subject to the requirements of this
Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services shall not be employees of City and shall at all times be
under Consultant's exclusive direction and control. Neither City, or any of its officials, officers,
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directors, employees, or agents shall have control over the conduct of Consultant or any of
Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall
pay all wages, salaries, and other amounts due such personnel in connection with their
performance of Services under this Agreement and as required by law. Consultant shall be
responsible for all reports and obligations respecting such additional personnel, including, but not
limited to: social security taxes, income tax withholding, unemployment insurance, disability
insurance, and workers' compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services in a
prompt and timely manner in accordance with the Schedule of Services set forth in Exhibit "B"
attached hereto and incorporated herein by reference. Consultant represents that it has the
professional and technical personnel required to perform the Services expeditiously. Upon
request of City, Consultant shall provide a more detailed schedule of anticipated performance to
meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City
that certain key personnel will perform and coordinate the Services. Should one or more of such
personnel become unavailable, Consultant may substitute other personnel of at least equal
competence upon written approval of City. In the event that City and Consultant cannot agree as
to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause.
The key personnel for performance of this Agreement are as follows: [***INSERT NAME AND/OR
TITLE OF CONSULTANT’S REPRESENTATIVE***].
3.2.5 City's Representative. The City hereby designates [***INSERT
NAME AND/OR TITLE OF CITY EMPLOYEE***], or his/her designee, to act as its representative
in all matters pertaining to the administration and performance of this Agreement ("City's
Representative"). City's Representative shall have the power to act on behalf of the City for review
and approval of all products submitted by Consultant but not the authority to enlarge the scope of
Services or change the total compensation due to Consultant under this Agreement. The City
Manager shall be authorized to act on City's behalf and to execute all necessary documents which
enlarge the scope of services or change the Consultant's total compensation subject to the
provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or
orders from any person other than the City Manager, City's Representative or his/her designee.
3.2.6 Consultant's Representative. Consultant hereby designates
[***INSERT NAME OR TITLE OF CONTRACTOR DESIGNEE***], or his/her designee, to act as
its representative for the performance of this Agreement ("Consultant's Representative").
Consultant's Representative shall have full authority to represent and act on behalf of the
Consultant for all purposes under this Agreement. The Consultant's Representative shall
supervise and direct the Services, using his/her best skill and attention, and shall be responsible
for all means, methods, techniques, sequences, and procedures and for the satisfactory
coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with
City staff in the performance of Services and shall be available to City's staff, consultants, and
other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall
perform all Services under this Agreement in a skillful and competent manner, consistent with the
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standards generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant represents and maintains that it is skilled in the professional calling
necessary to perform the Services. Consultant warrants that all employees and subconsultants
shall have sufficient skill and experience to perform the Services assigned to them. Consultant
represents that it, its employees and subconsultants have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Services, and that such
licenses and approvals shall be maintained throughout the term of this Agreement. Consultant
shall perform, at its own cost and expense and without reimbursement from the City, any services
necessary to correct errors or omissions which are caused by the Consultant's failure to comply
with the standard of care provided herein. Any employee of the Consultant or its sub-consultants
who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely
completion of the Project, a threat to the safety of persons or property, or any employee who fails
or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed
from the Project by the Consultant and shall not be re-employed to perform any of the Services
or to work on the Project.
3.2.9 Period of Performance. Consultant shall perform and complete all
Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance
Time”). Consultant shall also perform the Services in strict accordance with any completion
schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be
separately agreed upon in writing by the City and Consultant (“Performance Milestones”).
Consultant agrees that if the Services are not completed within the aforementioned Performance
Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of
this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
Neither City nor Consultant shall be considered in default of this Agreement for delays in
performance caused by circumstances beyond the reasonable control of the non-performing
Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A
Force Majeure Event shall mean an event that materially affects a Party’s performance and is one
or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a
public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable
and unforeseeable delay in the issuance of permits or approvals by governmental authorities that
are required for the services); (4) strikes and other organized labor action occurring at the site
and the effects thereof on the services, only to the extent such strikes and other organized labor
action are beyond the control of Consultant and its subcontractors, and to the extent the effects
thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or
quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes
ordinances, emergency proclamations and orders, rules to protect the public health, welfare and
safety, and other actions of a public agency applicable to the services and Agreement.
Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of
being prevented from performing, give written notice to the other Party describing the
circumstances preventing continued performance and the efforts being made to resume
performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party
responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in
accordance with the termination provisions of this Agreement.
3.2.10 Laws and Regulations; Employee/Labor Certification. Consultant shall
keep itself fully informed of and in compliance with all local, state and federal laws, rules and
regulations in any manner affecting the performance of the Project or the Services and shall give
all notices required by law. Consultant shall be liable for all violations of such laws and regulations
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in connection with the Services and this Agreement. All violations of such laws and regulations
shall be grounds for the City to terminate the Agreement for cause.
3.2.10.1 Employment Eligibility; Consultant. Consultant
certifies that it fully complies with all requirements and restrictions of state and federal law
respecting the employment of undocumented aliens, including, but not limited to, the Immigration
Reform and Control Act of 1986, as may be amended from time to time and shall require all
subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has
not committed a violation of any such law within the five (5) years immediately preceding the date
of execution of this Agreement and shall not violate any such law at any time during the term of
the Agreement.
3.2.10.2 Equal Opportunity Employment. Consultant represents that
it is an equal opportunity employer, and it shall not discriminate against any subconsultant,
employee or applicant for employment because of race, religion, color, national origin, physical
disability, ancestry, sex, age, marital status, gender, gender identity, gender expression, sexual
orientation, reproductive health decision making, veteran or military status, or any other
consideration made unlawful by federal, state, or local laws. Such non-discrimination shall
include, but not be limited to, all activities related to initial employment, upgrading, demotion,
transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply
with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan
or other related programs or guidelines currently in effect or hereinafter enacted.
3.2.10.3 Safety. Consultant shall execute and maintain its work so as
to avoid injury or damage to any person or property. In carrying out its Services, the Consultant
shall at all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees appropriate
to the nature of the work and the conditions under which the work is to be performed.
3.2.11 Insurance.
3.2.11.1 Minimum Requirements. Without limiting Consultant’s
indemnification of City, and prior to commencement of the Services, Consultant shall obtain,
provide, and maintain at its own expense during the term of this Agreement, policies of insurance
of the type and amounts described below and in a form that is satisfactory to City.
(A) General Liability Insurance. Consultant shall maintain
commercial general liability insurance with coverage at least as broad as Insurance Services
Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general
aggregate, for bodily injury, personal injury, and property damage. The policy must include
contractual liability that has not been amended. Any endorsement restricting standard ISO
“insured contract” language will not be accepted.
(B) Automobile Liability Insurance. Consultant shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering
bodily injury and property damage for all activities of the Consultant arising out of or in connection
with Work to be performed under this Agreement, including coverage for any owned, hired, non-
owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each
accident. The City’s Risk Manger may modify this requirement if it is determined that Consultant
will not be utilizing a vehicle in the performance of his/her duties under this Agreement.
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(C) Professional Liability (Errors & Omissions) Insurance.
Consultant shall maintain professional liability insurance that covers the Services to be performed
in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the
aggregate. Any policy inception date, continuity date, or retroactive date must be before the
effective date of this Agreement and Consultant agrees to maintain continuous coverage through
a period no less than three years after completion of the Services required by this Agreement.
(D) Workers’ Compensation Insurance. Consultant shall
maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance
(with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of the City, its officers, agents,
employees, volunteers, and representatives.
(E) Umbrella or Excess Liability Insurance. Consultant may opt
to utilize umbrella or excess liability insurance in meeting insurance requirements. In such
circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance
policy with limits that will provide bodily injury, personal injury and property damage liability
coverage at least as broad as the primary coverages set forth above, including commercial
general liability and employer’s liability. Such policy or policies shall include the following terms
and conditions:
(1) A drop-down feature requiring the policy to respond if
any primary insurance that would otherwise have
applied proves to be uncollectible in whole or in part for
any reason;
(2) Pay on behalf of wording as opposed to reimbursement;
(3) Concurrency of effective dates with primary policies; and
(4) Policies shall “follow form” to the underlying primary
policies.
(5) Insureds under primary policies shall also be insureds
under the umbrella or excess policies.
(F) Fidelity Coverage. Reserved.
(G) Cyber Liability Insurance. Reserved.
If coverage is maintained on a claims-made basis, Consultant shall maintain such coverage for
an additional period of three (3) years following termination of the Agreement.
3.2.11.2 Other Provisions or Requirements.
(A) Proof of Insurance. Consultant shall provide certificates of
insurance to City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers’ compensation. Insurance certificates and endorsements
must be approved by City’s Risk Manager prior to commencement of performance. Current
certification of insurance shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
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(B) Duration of Coverage. Consultant shall procure and
maintain for the duration of the Agreement insurance against claims for injuries to persons or
damages to property, which may arise from or in connection with the performance of the Services
hereunder by Consultant, his/her agents, representatives, employees or subconsultants.
(C) Primary/Non-Contributing. Coverage provided by
Consultant shall be primary and any insurance or self-insurance procured or maintained by City
shall not be required to contribute with it. The limits of insurance required herein may be satisfied
by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of City before the City’s own insurance or self-
insurance shall be called upon to protect it as a named insured.
(D) City’s Rights of Enforcement. In the event any policy of
insurance required under this Agreement does not comply with these specifications, or is
canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems
necessary, and any premium paid by City will be promptly reimbursed by Consultant, or City will
withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City
may terminate this Agreement.
(E) Acceptable Insurers. All insurance policies shall be issued
by an insurance company currently authorized by the Insurance Commissioner to transact
business of insurance or is on the List of Approved Surplus Line Insurers in the State of California,
with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or
larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise
approved by the City’s Risk Manager.
(F) Waiver of Subrogation. All insurance coverage maintained
or procured pursuant to this agreement shall be endorsed to waive subrogation against the City,
its elected or appointed officers, agents, officials, employees, volunteers, and representatives or
shall specifically allow Consultant or others providing insurance evidence in compliance with
these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its
own right of recovery against the City, its elected or appointed officers, agents, officials,
employees, volunteers and representatives and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
(G) Enforcement of Contract Provisions (non estoppel).
Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non-compliance with any requirement imposes no additional obligations on
the City nor does it waive any rights hereunder.
(H) Requirements Not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by any insurance.
Specific reference to a given coverage feature is for purposes of clarification only as it pertains to
a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher limits than the
minimums shown above, the City requires and shall be entitled to coverage for the higher limits
maintained by the Consultant. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
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(I) Notice of Cancellation. Consultant agrees to oblige its
insurance agent or broker and insurers to provide City with a thirty (30) day notice of cancellation
(except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for
each required coverage.
(J) Additional Insured Status. General liability, automobile
liability, and if applicable, pollution liability and cyber liability, policies shall provide or be endorsed
to provide that the City and its officers, officials, employees, agents, volunteers and
representatives shall be additional insureds with regard to liability and defense of suits or claims
arising out of the performance of the Agreement, under such policies. This provision shall also
apply to any excess/umbrella liability policies.
(K) Prohibition of Undisclosed Coverage Limitations. None of
the coverages required herein will be in compliance with these requirements if they include any
limiting endorsement of any kind that has not been first submitted to City and approved of in
writing.
(L) Separation of Insureds. A severability of interests provision
must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately
to each insured against whom claim is made or suit is brought, except with respect to the insurer’s
limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
(M) Pass Through Clause. Consultant agrees to ensure that its
subconsultants, subcontractors, and any other party involved with the Project who is brought onto
or involved in the Project by Consultant, provide the same minimum insurance coverage and
endorsements required of Consultant. Consultant agrees to monitor and review all such coverage
and assumes all responsibility for ensuring that such coverage is provided in conformity with the
requirements of this section. Consultant agrees that upon request, all agreements with
subconsultants, subcontractors, and others engaged in the Project will be submitted to City for
review.
(N) City’s Right to Revise Specifications. The City and the City’s
Risk Manager reserve the right at any time during the term of the Agreement to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in additional cost to the Consultant, the City
and Consultant may renegotiate Consultant’s compensation. If the City reduces the insurance
requirements, the change shall go into effect immediately and require no advanced written notice.
(O) Self-Insured Retentions. Any self-insured retentions must
be declared to and approved by City. City reserves the right to require that self-insured retentions
be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to
comply with these specifications unless approved by City.
(P) Timely Notice of Claims. Consultant shall give City prompt
and timely notice of claims made or suits instituted that arise out of or result from Consultant’s
performance under this Agreement, and that involve or may involve coverage under any of the
required liability policies.
(Q) Additional Insurance. Consultant shall also procure and
maintain, at its own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the Services.
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3.2.12 Water Quality Management and Compliance. Consultant shall keep itself
and all subcontractors, staff, and employees fully informed of and in compliance with all local,
state and federal laws, rules and regulations that may impact, or be implicated by the performance
of the Services including, without limitation, all applicable provisions of the City’s ordinances
regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C.
§ 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000
et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority.
Consultant must comply with the lawful requirements of the City, and any other municipality,
drainage district, or other local agency with jurisdiction over the location where the Services are
to be conducted, regulating water quality and storm water discharges. Failure to comply with laws,
regulations, and ordinances listed in this Section is a violation of federal and state law. Consultant
warrants that all employees and subcontractors shall have sufficient skill and experience to
perform the work assigned to them without impacting water quality in violation of the laws,
regulations, and policies of this Section.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates set forth
in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall
not exceed nine hundred and fifty thousand dollars ($950,000.00) without written approval of the
City Council or City Manager, as applicable.
3.3.2 Payment of Compensation. Consultant shall submit to City monthly
invoices which provide a detailed description of the Services and hours rendered by Consultant.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed
and approved charges. If the City disputes any of Consultant's fees, the City shall give written
notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth
therein. Consultant shall submit its final invoice to City within thirty (30) days from the last date of
provided Services or termination of this Agreement and failure by the Consultant to submit a timely
invoice may constitute a waiver of its right to final payment. Payment shall not constitute
acceptance of any Services completed by Consultant. The making of final payment shall not
constitute a waiver of any claims by the City for any reason whatsoever.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City or included in Exhibit "C" of this Agreement.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which
is determined by City to be necessary for the proper completion of the Project, but which the
Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization
from the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California
Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations,
Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing
wage rates and the performance of other requirements on "public works" and "maintenance"
projects. If the Services are being performed as part of an applicable "public works" or
"maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply
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with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates
of per diem wages in effect at the commencement of this Agreement. Consultant shall make
copies of the prevailing rates of per diem wages for each craft, classification or type of worker
needed to execute the Services available to interested parties upon request and shall post copies
at the Consultant's principal place of business and at the project site. It is the intent of the parties
to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the
Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code
sections to the fullest extent required by law. Consultant shall defend, indemnify, and hold the
City, its officials, officers, employees, agents, volunteers and representatives, free and harmless
from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing
Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a
public works project of over $25,000 when the project is for construction, alteration, demolition,
installation, or repair work, or a public works project of over $15,000 when the project is for
maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and
1771.1, the Consultant and all subconsultants must be registered with the Department of
Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project
and require the same of any subconsultants. This Project may also be subject to compliance
monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with
all applicable registration and labor compliance requirements, including the submission of payroll
records directly to the DIR. Any stop orders issued by the DIR against Consultant or any
subconsultant that affect Consultant’s performance of Services, including any delay, shall be
Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall
be considered Consultant caused delay and shall not be compensable by the City. Consultant
shall defend, indemnify, and hold the City, its officials, officers, employees, agents, volunteers
and representatives free and harmless from any claim or liability arising out of stop orders issued
by the DIR against Consultant or any subconsultant.
3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require every
employer to be insured against liability for Worker's Compensation or to undertake self-insurance
in accordance with the provisions of that Code and agrees to comply with such provisions before
commencing the performance of the Services.
3.5 Accounting Records.
3.5.1 Maintenance and Inspection. Consultant shall maintain complete and
accurate records with respect to all costs and expenses incurred under this Agreement. All such
records shall be clearly identifiable. Consultant shall allow a representative of City during normal
business hours to examine, audit, and make transcripts or copies of such records and any other
documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data,
documents, proceedings, and activities related to the Agreement for a period of three (3) years
from the date of final payment under this Agreement.
3.6 General Provisions.
3.6.1 Termination of Agreement.
3.6.1.1 Grounds for Termination. City may, by written notice to
Consultant, terminate the whole or any part of this Agreement at any time and without cause by
giving written notice to Consultant of such termination, and specifying the effective date thereof,
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at least seven (7) days before the effective date of such termination. Upon termination, Consultant
shall be compensated only for those Services which have been adequately rendered to City, and
Consultant shall be entitled to no further compensation. Consultant may not terminate this
Agreement except for cause. The rights and remedies of the City provided in this section shall not
be exclusive and are in addition to any other rights and remedies provided by law, equity or under
this Agreement.
3.6.1.2 Effect of Termination. If this Agreement is terminated as
provided herein, City may require Consultant to provide all finished or unfinished Documents and
Data and other information of any kind prepared by Consultant in connection with the performance
of Services under this Agreement. Consultant shall be required to provide such document and
other information within fifteen (15) days of the request.
3.6.1.3 Early Termination. Notwithstanding any provision herein to
the contrary, if for any fiscal year of this Agreement the City Council fails to appropriate or allocate
funds for future payment under the Agreement after exercising reasonable efforts to do so, the
City may upon seven (7) days’ written notice, order work on the Project to cease. Upon
termination, Consultant shall be compensated only for those Services which have been
adequately rendered to City, and Consultant shall be entitled to no further compensation.
3.6.1.4 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms and in such
manner as it may determine appropriate, services similar to those terminated.
3.6.2 Delivery of Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
Consultant: [INSERT BUSINESS NAME]
[INSERT STREET ADDRESS]
[INSERT CITY STATE ZIP]
ATTN: [INSERT NAME AND TITLE]
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
ATTN: Chris Gerry
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48)
hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
3.6.3 Ownership of Materials and Confidentiality.
3.6.3.1 Documents & Data; Licensing of Intellectual Property. This
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or
sublicense any and all copyrights, designs, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, and other documents or works of authorship fixed in
any tangible medium of expression, including but not limited to, physical drawings or data
magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be
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prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall
be and remain the property of City and shall not be used in whole or in substantial part by
Consultant on other projects without the City’s express written permission. Within thirty (30) days
following the completion, suspension, abandonment or termination of this Agreement, Consultant
shall provide to City reproducible copies of all Documents & Data, in a form and amount required
by City. City reserves the right to select the method of document reproduction and to establish
where the reproduction will be accomplished. The reproduction expense shall be borne by City at
the actual cost of duplication. In the event of a dispute regarding the amount of compensation to
which the Consultant is entitled under the termination provisions of this Agreement, Consultant
shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant
shall have no right to retain or fail to provide to City any such documents pending resolution of
the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a
minimum of fifteen (15) years following completion of the Project and shall make copies available
to City upon the payment of actual reasonable duplication costs. Before destroying the
Documents & Data following this retention period, Consultant shall make a reasonable effort to
notify City and provide City with the opportunity to obtain the documents.
3.6.3.2 Subconsultants. Consultant shall require all subconsultants
to agree in writing that City is granted a non-exclusive and perpetual license for any Documents
& Data the subconsultant prepares under this Agreement. Consultant represents and warrants
that Consultant has the legal right to license any and all Documents & Data. Consultant makes
no such representation and warranty in regard to Documents & Data which were prepared by
professionals other than Consultant or its subconsultants, or those provided to Consultant by the
City.
3.6.3.3 Right to Use. City shall not be limited in any way in its use
or reuse of the Documents and Data or any part of them at any time for purposes of this Project
or another project, provided that any such use not within the purposes intended by this Agreement
or on a project other than this Project without employing the services of Consultant shall be at
City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project,
it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless
Consultant and its officers, directors, agents, and employees from claims arising out of the
negligent use or re-use of the Documents & Data on such other project. Consultant shall be
responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only
with respect to the condition of the Documents & Data at the time they are provided to the City
upon completion, suspension, abandonment, or termination. Consultant shall not be responsible
or liable for any revisions to the Documents & Data made by any party other than Consultant, a
party for whom the Consultant is legally responsible or liable, or anyone approved by the
Consultant.
3.6.3.4 Indemnification – Documents and Data. Consultant shall
defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers, agents
and representatives free and harmless, pursuant to the indemnification provisions of this
Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name,
trademark, or any other proprietary right of any person or entity in consequence of the use on the
Project by City of the Documents & Data, including any method, process, product, or concept
specified or depicted.
3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents & Data either created by or provided to Consultant in
connection with the performance of this Agreement shall be held confidential by Consultant. Such
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materials shall not, without the prior written consent of City, be used by Consultant for any
purposes other than the performance of the Services. Nor shall such materials be disclosed to
any person or entity not connected with the performance of the Services or the Project. Nothing
furnished to Consultant which is otherwise known to Consultant or is generally known, or has
become known, to the related industry shall be deemed confidential. Consultant shall not use
City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or
the Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of City.
3.6.3.6 Confidential Information. The City shall refrain from
releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal
counsel determines that the release of the Proprietary Information is required by the California
Public Records Act or other applicable state or federal law, or order of a court of competent
jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary
Information. Consultant shall have five (5) working days after receipt of the release notice to give
City written notice of Consultant's objection to the City's release of Proprietary Information.
Consultant shall indemnify, defend, and hold harmless the City, and its officers, directors,
employees, agents, volunteers and representatives from and against all liability, loss, cost or
expense (including attorney’s fees) arising out of a legal action brought to compel the release of
Proprietary Information. City shall not release the Proprietary Information after receipt of an
objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of
legal counsel), and hold City harmless from any legal action brought to compel such release;
and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City
release such information.
3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one
another and shall take any additional acts or sign any additional documents as may be necessary,
appropriate, or convenient to attain the purposes of this Agreement.
3.6.5 [Reserved]
3.6.6 Indemnification.
3.6.6.1 To the fullest extent permitted by law, Consultant shall
defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers,
employees, volunteers, agents, and representatives free and harmless from any and all claims,
demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or
equity, to property or persons, including wrongful death, in any manner arising out of, pertaining
to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials,
officers, employees, subconsultants or agents in connection with the performance of the
Consultant’s Services, the Project or this Agreement, including without limitation the payment of
all expert witness fees, attorney’s fees and other related costs and expenses except such loss or
damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation
to indemnify shall survive expiration or termination of this Agreement and shall not be restricted
to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees,
agents, volunteers, or representatives.
3.6.6.2 If Consultant’s obligation to defend, indemnify, and/or hold
harmless arises out of Consultant’s performance as a “design professional” (as that term is
defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code
section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be
limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful
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misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of
competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not
exceed the Consultant’s proportionate percentage of fault.
3.6.7 Entire Agreement. This Agreement contains the entire agreement of the
Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings, or agreements.
3.6.8 Governing Law. This Agreement shall be governed by the laws of the State
of California. Venue shall be in Riverside County.
3.6.9 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.6.10 City's Right to Employ Other Consultants. City reserves right to employ
other consultants in connection with this Project.
3.6.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
3.6.12 Assignment; Subcontracting. Consultant shall not assign, sublet, or
transfer this Agreement or any rights under or interest in this Agreement without the written
consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer
without such consent shall be void and without legal effect and shall constitute grounds for
termination. Consultant shall not subcontract any portion of the Services required by this
Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in
this Agreement.
3.6.13 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any term
referencing time, days or period for performance shall be deemed calendar days and not
workdays. All references to Consultant include all personnel, employees, agents, and
subconsultants of Consultant, except as otherwise specified in this Agreement. All references to
City include its elected officials, officers, employees, agents, volunteers, and representatives
except as otherwise specified in this Agreement. The captions of the various articles and
paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or
describe the scope, content, or intent of this Agreement.
3.6.14 Amendment; Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.15 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
3.6.16 No Third-Party Beneficiaries. There are no intended third-party
beneficiaries of any right or obligation assumed by the Parties.
3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid,
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illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not
paid, nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or violation
of this warranty, City shall have the right to rescind this Agreement without liability. For the term
of this Agreement, no member, officer, or employee of City, during the term of his or her service
with City, shall have any direct interest in this Agreement, or obtain any present or anticipated
material benefit arising therefrom.
3.6.19 Authority to Enter Agreement. Consultant has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and bind each respective Party.
3.6.20 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.6.21 Survival. All rights and obligations hereunder that by their nature are to
continue after any expiration or termination of this Agreement, including, but not limited to, the
indemnification obligations, shall survive any such expiration or termination.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BY AND BETWEEN THE CITY OF PALM DESERT
AND [***INSERT COMPANY NAME, ALL CAPS***]
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on the day and year first above written.
CITY OF PALM DESERT
By:
L. Todd Hileman
City Manager
Attest:
By:
Anthony J. Mejia
City Clerk
Approved as to form:
By:
Best Best & Krieger LLP
City Attorney
[***INSERT NAME OF CONSULTANT***(All
CAPS)], Choose an item.
[IF CORPORATION, TWO SIGNATURES,
PRESIDENT OR VICE PRESIDENT AND
SECRETARY OR TREASURER REQUIRED]
By:
Its:
Printed Name:
[DELETE THE FOLLOWING SIGNATURE LINE
AND SECOND NOTARY ACKNOWLEDGEMENT
IF SECOND SIGNATURE NOT REQUIRED]
By:
Its:
Printed Name:
QC: _____
Insurance:
_____ Initial Review
_____
Final Approval
Contract No. ___________
Exhibit “A”
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BBK 72500.00001\32374915.1
EXHIBIT “A”
SCOPE OF SERVICES
[***INSERT SCOPE***]
Contract No. ___________
Exhibit “A-I”
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BBK 72500.00001\32374915.1
EXHIBIT "A-I"
FEDERALLY REQUIRED PROVISIONS FOR SERVICES
SEE FOLLOWING PAGES
U.S. DEPARTMENT OF TRANSPORTATION
EXHIBITS TO FHWA GRANT AGREEMENTS UNDER THE FISCAL YEAR 2022 SAFE STREETS AND ROADS FOR ALL GRANT PROGRAM February 8, 2023
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EXHIBIT A APPLICABLE FEDERAL LAWS AND REGULATIONS
By entering into this agreement for a FY 2022 Safe Streets and Roads for All Grant, the Recipient assures and certifies, with respect to this Grant, that it will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, and requirements as they relate to the application, acceptance, and use of Federal funds for this Project. Performance under this
agreement shall be governed by and in compliance with the following requirements, as
applicable, to the type of organization of the Recipient and any applicable sub-recipients. The applicable provisions to this agreement include, but are not limited to, the following: General Federal Legislation
a. Federal Fair Labor Standards Act – 29 U.S.C. 201, et seq.
b. Hatch Act – 5 U.S.C. 1501, et seq. c. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 – 42 U.S.C. 4601, et seq. d. National Historic Preservation Act of 1966 - Section 106 – 54 U.S.C. 306108
e. Archeological and Historic Preservation Act of 1974 – 54 U.S.C. 312501, et seq.
f. Native American Graves Protection and Repatriation Act – 25 U.S.C. 3001, et seq. g. Clean Air Act, P.L. 90-148, as amended – 42 U.S.C. 7401, et seq. h. Section 404 of the Clean Water Act, as amended – 33 U.S.C. 1344 i. Section 7 of the Endangered Species Act, P.L. 93-205, as amended – 16 U.S.C. 1536
j. Coastal Zone Management Act, P.L. 92-583, as amended – 16 U.S.C. 1451, et seq.
k. Flood Disaster Protection Act of 1973 - Section 102(a) – 42 U.S.C. 4012a l. Age Discrimination Act of 1975 – 42 U.S.C. 6101, et seq. m. American Indian Religious Freedom Act, P.L. 95-341, as amended n. Drug Abuse Office and Treatment Act of 1972, as amended – 21 U.S.C. 1101, et seq.
o. The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970, P.L. 91-616, as amended – 42 U.S.C. 4541, et seq. p. Sections 523 and 527 of the Public Health Service Act of 1912, as amended – 42 U.S.C. 290dd through 290dd-2 q. Architectural Barriers Act of 1968 – 42 U.S.C. 4151, et seq.
r. Power Plant and Industrial Fuel Use Act of 1978, P.L. 100-42 - Section 403 – 42 U.S.C.
8373 s. Contract Work Hours and Safety Standards Act – 40 U.S.C. 3701, et seq. t. Copeland Anti-kickback Act, as amended – 18 U.S.C. 874 and 40 U.S.C. 3145 u. National Environmental Policy Act of 1969 – 42 U.S.C. 4321, et seq.
v. Wild and Scenic Rivers Act, P.L. 90-542, as amended – 16 U.S.C. 1271, et seq.
w. Federal Water Pollution Control Act, as amended – 33 U.S.C. 1251-1376 x. Single Audit Act of 1984 – 31 U.S.C. 7501, et seq. y. Americans with Disabilities Act of 1990 – 42 U.S.C. 12101, et seq. z. Title IX of the Education Amendments of 1972, as amended – 20 U.S.C. 1681 through
1683 and 1685 through 1687
aa. Section 504 of the Rehabilitation Act of 1973, as amended – 29 U.S.C. 794 bb. Title VI of the Civil Rights Act of 1964 – 42 U.S.C. 2000d, et seq.
cc. Title IX of the Federal Property and Administrative Services Act of 1949 – 40 U.S.C.
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1101 -1104, 541, et seq. dd. Limitation on Use of Appropriated Funds to Influence Certain Federal Contracting and
Financial Transactions – 31 U.S.C. 1352
ee. Freedom of Information Act – 5 U.S.C. 552, as amended ff. Magnuson-Stevens Fishery Conservation and Management Act – 16 U.S.C. 1855 gg. Farmland Protection Policy Act of 1981 – 7 U.S.C. 4201, et seq. hh. Noise Control Act of 1972 – 42 U.S.C. 4901, et seq.
ii. Fish and Wildlife Coordination Act of 1956 – 16 U.S.C. 661, et seq.
jj. Section 9 of the Rivers and Harbors Act and the General Bridge Act of 1946 – 33 U.S.C. 401 and 525 kk. Section 4(f) of the Department of Transportation Act of 1966 – 49 U.S.C. 303 ll. Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), as amended – 42 U.S.C. 9601, et seq.
mm. Safe Drinking Water Act – 42 U.S.C. 300f to 300j-26 nn. Wilderness Act – 16 U.S.C. 1131-1136 oo. Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 – 42 U.S.C. 6901, et seq.
pp. Migratory Bird Treaty Act – 16 U.S.C. 703, et seq.
qq. The Federal Funding Transparency and Accountability Act of 2006, as amended (Pub. L. 109–282, as amended by section 6202 of Public Law 110–252) rr. Cargo Preference Act of 1954 – 46 U.S.C. 55305 ss. Section 889 of the John D. McCain National Defense Authorization Act for Fiscal Year
2019, Pub. L. 115-232
Executive Orders a. Executive Order 11246 – Equal Employment Opportunity b. Executive Order 11990 – Protection of Wetlands
c. Executive Order 11988 – Floodplain Management
d. Executive Order 12372 – Intergovernmental Review of Federal Programs e. Executive Order 12549 – Debarment and Suspension f. Executive Order 12898 – Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations
g. Executive Order 13166 – Improving Access to Services for Persons With Limited
English Proficiency h. Executive Order 13985 – Advancing Racial Equity and Support for Underserved Communities Through the Federal Government i. Executive Order 14005 – Ensuring the Future is Made in All of America by All of
America’s Workers
j. Executive Order 14008 – Tackling the Climate Crisis at Home and Abroad General Federal Regulations a. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for
Federal Awards – 2 C.F.R. Parts 200, 1201
b. Non-procurement Suspension and Debarment – 2 C.F.R. Parts 180, 1200 c. Investigative and Enforcement Procedures – 14 C.F.R. Part 13 d. Procedures for predetermination of wage rates – 29 C.F.R. Part 1
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e. Contractors and subcontractors on public building or public work financed in whole or part by loans or grants from the United States – 29 C.F.R. Part 3
f. Labor standards provisions applicable to contracts governing federally financed and
assisted construction (also labor standards provisions applicable to non-construction contracts subject to the Contract Work Hours and Safety Standards Act) – 29 C.F.R. Part 5 g. Office of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor (Federal and federally assisted contracting requirements) – 41
C.F.R. Parts 60, et seq. h. New Restrictions on Lobbying – 49 C.F.R. Part 20 i. Nondiscrimination in Federally Assisted Programs of the Department of Transportation –Effectuation of Title VI of the Civil Rights Act of 1964 – 49 C.F.R. Part 21
j. Uniform relocation assistance and real property acquisition for Federal and Federally
assisted programs – 49 C.F.R. Part 24 k. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance – 49 C.F.R. Part 25 l. Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or
Benefiting from Federal Financial Assistance – 49 C.F.R. Part 27
m. DOT’s implementation of DOJ’s ADA Title II regulations compliance procedures for all programs, services, and regulatory activities relating to transportation under 28 C.F.R. Part 35 n. Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities
Conducted by the Department of Transportation – 49 C.F.R. Part 28
o. Denial of public works contracts to suppliers of goods and services of countries that deny procurement market access to U.S. contractors – 49 C.F.R. Part 30 p. Governmentwide Requirements for Drug-Free Workplace (Financial Assistance) – 49 C.F.R. Part 32
q. DOT’s implementing ADA regulations for transit services and transit vehicles, including
the DOT’s standards for accessible transportation facilities in Part 37, Appendix A – 49 C.F.R. Parts 37 and 38 r. Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs – 49 C.F.R. Part 26 (as applicable under section 18.3 of
this agreement)
Office of Management and Budget Circulars a. Any applicable OMB Circular based upon the specific FY 2022 Safe Streets and Roads for All Grant Recipient.
Highway Federal Legislation a. Agreements relating to the use of an access to rights-of-way—Interstate System, 23 U.S.C. 111 b. Planning, 23 U.S.C. 134 and 135 (except for projects that are not regionally significant
that do not receive funding under Title 23 or Chapter 53 of Title 49)
c. Tolls, 23 U.S.C. 301 (to the extent the recipient wishes to toll an existing free facility that has received Title 23 funds in the past); except as authorized by 23 U.S.C. 129 and 166. d. Efficient Environmental Reviews - 23 U.S.C. 139
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e. Policy on lands, wildlife and waterfowl refuges, and historic sites - 49 U.S.C. 303
Federal Highway Regulations
a. Planning – 23 C.F.R. Part 450 (except for projects that are not regionally significant that do not receive funding under Title 23 or Chapter 53 of Title 49) b. National Highway System Design Standards – 23 C.F.R. Part 625 c. Location and Hydraulic Design of Encroachments on Flood Plains – 23 C.F.R. Part 650
Subpart A
d. Manual on Uniform Traffic Control Devices – 23 C.F.R. Part 655 e. Length, Width and Weight Limitations – 23 C.F.R. Part 658 f. Environmental Impact and Related Procedures – 23 C.F.R. Part 771 g. Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section
4(f)) – 23 C.F.R. Part 774
h. Permitting Requirements under the National Pollutant Discharge Elimination System – 40 C.F.R. Part 122 Specific assurances required to be included in the FY 2022 Safe Streets and Roads for All Grant
agreement by any of the above laws, regulations, or circulars are hereby incorporated by
reference into this agreement.
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EXHIBIT B ADDITIONAL STANDARD TERMS
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TERM B.1 TITLE VI ASSURANCE
(Implementing Title VI of the Civil Rights Act of 1964, as amended) ASSURANCE CONCERNING NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITING FROM FEDERAL FINANCIAL ASSISTANCE
(Implementing the Rehabilitation Act of 1973, as amended, and the Americans With Disabilities Act, as amended) 49 C.F.R. Parts 21, 25, 27, 37 and 38
The United States Department of Transportation (USDOT) Standard Title VI/Non-Discrimination Assurances
DOT Order No. 1050.2A By signing and submitting the Technical Application and by entering into this agreement under the FY 2022 Safe Streets and Roads for All (SS4A) grant program, the Recipient HEREBY
AGREES THAT, as a condition to receiving any Federal financial assistance from the U.S.
Department of Transportation (DOT), through the Federal Highway Administration (FHWA), it is subject to and will comply with the following: Statutory/Regulatory Authorities
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin);
• 49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs Of The
Department Of Transportation—Effectuation Of Title VI Of The Civil Rights Act Of
1964);
• 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964);
The preceding statutory and regulatory cites hereinafter are referred to as the “Acts” and “Regulations,” respectively. General Assurances
In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that:
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“No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise
subjected to discrimination under any program or activity,” for which the
Recipient receives Federal financial assistance from DOT, including the FHWA. The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and
Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope
and coverage of these non-discrimination statutes and requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted. Specific Assurances
More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to its Federally assisted FY 2022 SS4A grant program:
1. The Recipient agrees that each “activity,” “facility,” or “program,” as defined in §§ 21.23
(b) and 21.23 (e) of 49 C.F.R. § 21 will be (with regard to an “activity”) facilitated, or will be (with regard to a “facility”) operated, or will be (with regard to a “program”) conducted in compliance with all requirements imposed by, or pursuant to the Acts and the Regulations.
2. The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work, or material subject to the Acts and the Regulations made in connection with the FY 2022 SS4A Grant and, in adapted form, in all proposals for negotiated agreements regardless of funding source:
“The Recipient, in accordance with the provisions of Title VI of the Civil Rights
Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that for any contract entered into pursuant to this advertisement, disadvantaged business enterprises
will be afforded full and fair opportunity to submit bids in response to this
invitation and will not be discriminated against on the grounds of race, color, or
national origin in consideration for an award.” 3. The Recipient will insert the clauses of Appendix A and E of this Assurance in every
contract or agreement subject to the Acts and the Regulations.
4. The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a
Recipient.
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5. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in
connection therewith.
6. That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property.
7. That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the Recipient with other parties:
a. for the subsequent transfer of real property acquired or improved under the
applicable activity, project, or program; and b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program.
8. That this Assurance obligates the Recipient for the period during which Federal financial
assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the Assurance obligates the Recipient, or any transferee for the longer of the following periods:
a. the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or b. the period during which the Recipient retains ownership or possession of the
property.
9. The Recipient will provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub-recipients, contractors,
subcontractors, consultants, transferees, successors in interest, and other participants of
Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance. 10. The Recipient agrees that the United States has a right to seek judicial enforcement with
regard to any matter arising under the Acts, the Regulations, and this Assurance.
By signing this ASSURANCE, the Recipient also agrees to comply (and require any sub-recipients, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing the FHWA’s access to records, accounts, documents, information,
facilities, and staff. You also recognize that you must comply with any program or compliance
reviews, and/or complaint investigations conducted by the FHWA. You must keep records, reports, and submit the material for review upon request to FHWA, or its designee in a timely,
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complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance.
The Recipient gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts, agreements, property, and/or discounts, or other Federal-aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation under the FY 2022 SS4A grant program. This ASSURANCE is binding on the
Recipient, other recipients, sub-recipients, contractors, subcontractors and their subcontractors’,
transferees, successors in interest, and any other participants in the FY 2022 SS4A grant program.
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APPENDIX A
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination
prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 C.F.R. Part 21. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment:
In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor’s obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin.
4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the FHWA to be pertinent to ascertain
compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the Recipient or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor’s noncompliance with the Non-discrimination provisions of this contract, the Recipient will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
a. withholding payments to the contractor under the contract until the contractor
complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one
through six in every subcontract, including procurements of materials and leases of
equipment, unless exempt by the Acts, the Regulations and directives issued pursuant
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thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the FHWA may direct as a means of enforcing such provisions including
sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is
threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States.
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APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Specific Assurance 4:
NOW, THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the Recipient will accept title to the lands and maintain the project constructed thereon in accordance with the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 (Nov. 15, 2021), the Consolidated Appropriations Act, 2022, Pub. L. No. 117-103 (Mar. 15, 2022), 49
U.S.C. § 6702, the Regulations for the Administration of FY 2022 SS4A grant program, and the
policies and procedures prescribed by the Federal Highway Administration (FHWA) of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department
of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act
of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the Recipient all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE) TO HAVE AND TO HOLD said lands and interests therein unto Recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or
structures are used for a purpose for which Federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits and will be binding on the Recipient, its successors and assigns. The Recipient, in consideration of the conveyance of said lands and interests in lands, does hereby
covenant and agree as a covenant running with the land for itself, its successors and assigns, that
(1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the Recipient will use the lands and interests in lands and interests in lands so conveyed, in
compliance with all requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended[, and (3) that in the event of breach of any of the above-mentioned non-discrimination
conditions, the Department will have a right to enter or re-enter said lands and facilities on said
land, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
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(*Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to make clear the purpose of Title VI.)
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APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE ACTIVITY, FACILITY, OR PROGRAM The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the Recipient pursuant to the provisions of Specific Assurance 7(a):
A. The (Recipient, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (Recipient,
licensee, lessee, permittee, etc.) will maintain and operate such facilities and services
in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discrimination covenants, Recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.*
C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the Recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the Recipient and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
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APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE ACTIVITY, FACILITY OR PROGRAM The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by Recipient pursuant to the provisions of Specific
Assurance 7(b):
A. The (Recipient, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant
running with the land”) that (1) no person on the ground of race, color, or national origin,
will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits
of, or otherwise be subjected to discrimination, (3) that the (Recipient, licensee, lessee,
permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance. B. With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above
Non-discrimination covenants, Recipient will have the right to terminate the (license, permit,
etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.*
C. With respect to deeds, in the event of breach of any of the above Non-discrimination
covenants, Recipient will there upon revert to and vest in and become the absolute property of Recipient and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is
necessary to make clear the purpose of Title VI.)
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APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in
interest (hereinafter referred to as the “contractor”) agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended,
(prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as
amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of
the terms “programs or activities” to include all of the programs or activities of the
Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on
the basis of disability in the operation of public entities, public and private transportation
systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations at 49 C.F.R. Parts 37 and 38;
• The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123)
(prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with
disproportionately high and adverse human health or environmental effects on minority and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes
discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 U.S.C. § 1681 et
seq).
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TERM B.2 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER
RESPONSIBILITY MATTERS -- PRIMARY COVERED TRANSACTIONS
2 C.F.R. Parts 180 and 1200
These assurances and certifications are applicable to all Federal-aid construction contracts,
design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements,
consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 C.F.R. Parts 180 and 1200. By signing and submitting the Technical Application and by entering into this agreement under
the FY 2022 SS4A grant program, the Recipient is providing the assurances and certifications for
First Tier Participants and Lower Tier Participants in the FY 2022 SS4A Grant, as set out below.
1. Instructions for Certification – First Tier Participants:
a. The prospective first tier participant is providing the certification set out below.
b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The
certification or explanation will be considered in connection with the department or agency’s
determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction.
c. The certification in this clause is a material representation of fact upon which reliance was
placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default.
d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
e. The terms “covered transaction,” “civil judgment,” “debarred,” “suspended,” “ineligible,” “participant,” “person,” “principal,” and “voluntarily excluded,” as used in this clause, are defined in 2 C.F.R. Parts 180 and 1200. “First Tier Covered Transactions” refers to any covered transaction between a Recipient or subrecipient of Federal funds and a participant (such as the
prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction
under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a Recipient or subrecipient of
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Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers to any participant who has entered into a covered transaction with a First Tier Participant or other
Lower Tier Participants (such as subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless authorized by the department or
agency entering into this transaction. g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transactions,” provided by the department or
contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold.
h. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of
its principals, as well as the eligibility of any lower tier prospective participants, each participant
may, but is not required to, check the System for Award Management website (https://www.sam.gov/), which is compiled by the General Services Administration. i. Nothing contained in the foregoing shall be construed to require the establishment of a
system of records in order to render in good faith the certification required by this clause. The
knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j. Except for transactions authorized under paragraph (f) of these instructions, if a participant
in a covered transaction knowingly enters into a lower tier covered transaction with a person who
is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants:
a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency;
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(2) Have not within a three-year period preceding this proposal been convicted of or had
a civil judgment, including a civil settlement, rendered against them for commission of fraud
or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification; and
(4) Have not within a three-year period preceding this application/proposal had one or
more public transactions (Federal, State or local) terminated for cause or default. b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Participants: (Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 C.F.R. Parts 180 and 1200)
a. The prospective lower tier participant is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower
tier participant knowingly rendered an erroneous certification, in addition to other remedies
available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. c. The prospective lower tier participant shall provide immediate written notice to the person
to which this proposal is submitted if at any time the prospective lower tier participant learns that
its certification was erroneous by reason of changed circumstances. d. The terms “covered transaction,” “civil settlement,” “debarred,” “suspended,” “ineligible,” “participant,” “person,” “principal,” and “voluntarily excluded,” as used in this clause, are
defined in 2 C.F.R. Parts 180 and 1200. You may contact the person to which this proposal is
submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a Recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as
subcontracts). “First Tier Participant” refers to the participant who has entered into a covered
transaction with a Recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered
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transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or
agency with which this transaction originated.
f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” without modification, in all lower tier
covered transactions and in all solicitations for lower tier covered transactions exceeding the
$25,000 threshold. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it knows that the certification is
erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website
(https://www.sam.gov/), which is compiled by the General Services Administration.
h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction,
in addition to other remedies available to the Federal Government, the department or agency
with which this transaction originated may pursue available remedies, including suspension and/or debarment. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion --
Lower Tier Participants:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or
agency.
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
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TERM B.3 REQUIREMENTS REGARDING DELINQUENT TAX LIABILITY OR A FELONY
CONVICTION UNDER ANY FEDERAL LAW
As required by sections 744 and 745 of Title VII, Division E of the Consolidated Appropriations Act, 2023, Pub. L. No. 117-328 (Dec. 29, 2022), and implemented through USDOT Order 4200.6, the funds provided under this award shall not be used to enter into a contract,
memorandum of understanding, or cooperative agreement with, make a grant to, or provide a
loan or loan guarantee to, any corporation that: (1) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in
a timely manner pursuant to an agreement with the authority responsible for collecting
the tax liability, where the awarding agency is aware of the unpaid tax liability, unless a Federal agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government; or
(2) Was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless a Federal agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the
Government.
The Recipient therefore agrees: 1. Definitions. For the purposes of this exhibit, the following definitions apply:
“Covered Transaction” means a transaction that uses any funds under this award and that is a contract, memorandum of understanding, cooperative agreement, grant, loan, or loan guarantee.
“Felony Conviction” means a conviction within the preceding 24 months of a felony
criminal violation under any Federal law and includes conviction of an offense defined in a section of the United States Code that specifically classifies the offense as a felony and conviction of an offense that is classified as a felony under 18 U.S.C. 3559.
“Participant” means the Recipient, an entity who submits a proposal for a Covered
Transaction, or an entity who enters into a Covered Transaction. “Tax Delinquency” means an unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not
being paid in a timely manner pursuant to an agreement with the authority responsible for
collecting the tax liability.
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2. Mandatory Check in the System for Award Management. Before entering a Covered Transaction with another entity, a Participant shall check the System for Award Management
(the “SAM”) at http://www.sam.gov/ for an entry describing that entity.
3. Mandatory Certifications. Before entering a Covered Transaction with another entity, a Participant shall require that entity to:
(1) Certify whether the entity has a Tax Delinquency; and
(2) Certify whether the entity has a Felony Conviction. 4 Prohibition. If
(1) the SAM entry for an entity indicates that the entity has a Tax Delinquency or a Federal Conviction; (2) an entity provides an affirmative response to either certification in section 3; or
(3) an entity’s certification under section 3 was inaccurate when made or became inaccurate after being made then a Participant shall not enter or continue a Covered Transaction with that entity unless
the USDOT has determined in writing that suspension or debarment of that entity are not
necessary to protect the interests of the Government. 5. Mandatory Notice to the USDOT.
(a) If the SAM entry for a Participant indicates that the Participant has a Tax Delinquency or
a Felony Conviction, the Recipient shall notify the USDOT in writing of that entry. (b) If a Participant provides an affirmative response to either certification in section 1, the Recipient shall notify the USDOT in writing of that affirmative response.
(c) If the Recipient knows that a Participant’s certification under section 1 was inaccurate when made or became inaccurate after being made, the Recipient shall notify the USDOT in writing of that inaccuracy.
6. Flow Down. For all Covered Transactions, including all tiers of subcontracts and subawards,
the Recipient shall: (1) require the SAM check in section 2;
(2) require the certifications in section 3;
(3) include the prohibition in section 4; and
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(4) require all Participants to notify the Recipient in writing of any information that would require the Recipient to notify the USDOT under section 5.
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TERM B.4 RECIPIENT POLICY TO BAN TEXT MESSAGING WHILE DRIVING
(a) Definitions. The following definitions are intended to be consistent with the definitions in DOT Order 3902.10, Text Messaging While Driving (Dec. 30, 2009) and Executive Order 13513, Federal Leadership on Reducing Text Messaging While Driving (Oct. 1, 2009). For clarification purposes, they may expand upon the definitions in the executive order.
For the purpose of this Term B.4, “Motor Vehicles” means any vehicle, self-propelled or drawn by mechanical power, designed and operated principally for use on a local, State or Federal roadway, but does not include a military design motor vehicle or any other vehicle excluded under Federal Management Regulation 102-34-15.
For the purpose of this Term B.4, “Driving” means operating a motor vehicle on a roadway, including while temporarily stationary because of traffic congestion, a traffic signal, a stop sign, another traffic control device, or otherwise. It does not include being in your vehicle (with or without the motor running) in a location off the roadway where it is safe and legal to remain
stationary.
For the purpose of this Term B.4, “Text messaging” means reading from or entering data into any handheld or other electronic device (including, but not limited to, cell phones, navigational tools, laptop computers, or other electronic devices), including for the purpose of Short Message
Service (SMS) texting, e-mailing, instant messaging, obtaining navigational information, or
engaging in any other form of electronic data retrieval or electronic data communication. The term does not include the use of a cell phone or other electronic device for the limited purpose of entering a telephone number to make an outgoing call or answer an incoming call, unless this practice is prohibited by State or local law. The term also does not include glancing at or
listening to a navigational device that is secured in a commercially designed holder affixed to the
vehicle, provided that the destination and route are programmed into the device either before driving or while stopped in a location off the roadway where it is safe and legal to remain stationary.
For the purpose of this Term B.4, the “Government” includes the United States Government and
State, local, and tribal governments at all levels. (b) Workplace Safety. In accordance with Executive Order 13513, Federal Leadership on Reducing Text Messaging While Driving (Oct. 1, 2009) and DOT Order 3902.10, Text
Messaging While
Driving (Dec. 30, 2009), the Recipient, subrecipients, contractors, and subcontractors are encouraged to: (1) adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers including policies to ban text messaging while driving—
(i) Company-owned or -rented vehicles or Government-owned, leased or rented
vehicles; or (ii) Privately-owned vehicles when on official Government business or when performing any work for or on behalf of the Government.
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(2) Conduct workplace safety initiatives in a manner commensurate with the size of the business, such as—
(i) Establishment of new rules and programs or re-evaluation of existing programs
to prohibit text messaging while driving; and (ii) Education, awareness, and other outreach to employees about the safety risks associated with texting while driving.
(c) Subawards and Contracts. To the extent permitted by law, the Recipient shall insert the
substance of this exhibit, including this paragraph (c), in all subawards, contracts, and subcontracts under this award that exceed the micro-purchase threshold, other than contracts and subcontracts for the acquisition of commercially available off-the-shelf items.
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EXHIBIT C QUARTERLY PROJECT PROGRESS REPORTS AND RECERTIFICATIONS:
FORMAT AND CONTENT 1. Purpose. The purpose of the Quarterly Project Progress Reports and Recertifications under this agreement for the FY 2022 SS4A grant program are to ensure that the project scope, schedule, and budget will be maintained to the maximum extent possible.
2. Format and Content. The Recipient shall produce a quarterly cost, schedule, and status report that contains the sections enumerated in the following list. At the discretion of the USDOT, modifications or additions can be made to produce a quarterly reporting format that will most effectively serve both the Recipient and the USDOT. Some projects will have a more
extensive quarterly status than others. For smaller projects, the USDOT may determine that the
content of the quarterly reports will be streamlined and project status meetings will be held on a less-frequent basis. The first quarterly progress report should include a detailed description and, where appropriate, drawings of the items funded.
(a) Project Overall Status. This section provides an overall status of the project’s scope,
schedule and budget. The Recipient shall note and explain any deviations from the scope of work, the schedule, or the budget that are described in this agreement. (b) Project Significant Activities and Issues. This section provides highlights of key
activities, accomplishments, and issues occurring on the project during the previous
quarter. Activities and deliverables to be reported on should include meetings, audits and other reviews, design packages submitted, advertisements, awards, construction submittals, construction completion milestones, submittals related to any applicable Recovery Act requirements, media or Congressional inquiries, value
engineering/constructability reviews, and other items of significance.
(c) Action Items/Outstanding Issues. This section should draw attention to, and track the progress of, highly significant or sensitive issues requiring action and direction in order to resolve. The Recipient should include administrative items and outstanding
issues that could have a significant or adverse effect on the project’s scope, schedule,
or budget. Status, responsible person(s), and due dates should be included for each action item/outstanding issue. Action items requiring action or direction should be included in the quarterly status meeting agenda. The action items/outstanding issues may be dropped from this section upon full implementation of the remedial action,
and upon no further monitoring anticipated.
(d) Project Scope Overview. The purpose of this section is to provide a further update regarding the project scope. If the original scope contained in the grant agreement is still accurate, this section can simply state that the scope is unchanged.
(e) Project Schedule. An updated master program schedule reflecting the current status of the program activities should be included in this section. A Gantt (bar) type chart is probably the most appropriate for quarterly reporting purposes, with the ultimate
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format to be agreed upon between the Recipient and the USDOT. It is imperative that the master program schedule be integrated, i.e., the individual contract milestones tied
to each other, such that any delays occurring in one activity will be reflected
throughout the entire program schedule, with a realistic completion date being reported. Narratives, tables, and/or graphs should accompany the updated master program schedule, basically detailing the current schedule status, delays and potential exposures, and recovery efforts. The following information should also be included:
• Current overall project completion percentage vs. latest plan percentage.
• Completion percentages vs. latest plan percentages for major activities such as right-of-way, major or critical design contracts, major or critical construction
contracts, and significant force accounts or task orders. A schedule status description should also be included for each of these major or critical elements.
• Any delays or potential exposures to milestone and final completion dates.
The delays and exposures should be quantified, and overall schedule impacts assessed. The reasons for the delays and exposures should be explained, and initiatives being analyzed or implemented in order to recover the schedule should be detailed.
(f) Project Cost. An updated cost spreadsheet reflecting the current forecasted cost vs. the latest approved budget vs. the baseline budget should be included in this section. One way to track project cost is to show: (1) Baseline Budget, (2) Latest Approved Budget, (3) Current Forecasted Cost Estimate, (4) Expenditures or Commitments to Date, and (5) Variance between Current Forecasted Cost and Latest Approved
Budget. Line items should include all significant cost centers, such as prior costs, right-of-way, preliminary engineering, environmental mitigation, general engineering consultant, section design contracts, construction administration, utilities, construction packages, force accounts/task orders, wrap-up insurance, construction contingencies, management contingencies, and other contingencies. The line items
can be broken-up in enough detail such that specific areas of cost change can be sufficiently tracked and future improvements made to the overall cost estimating methodology. A Program Total line should be included at the bottom of the spreadsheet. Narratives, tables, and/or graphs should accompany the updated cost spreadsheet, basically detailing the current cost status, reasons for cost deviations,
impacts of cost overruns, and efforts to mitigate cost overruns. The following information should be provided:
• Reasons for each line item deviation from the approved budget, impacts
resulting from the deviations, and initiatives being analyzed or implemented
in order to recover any cost overruns.
• Transfer of costs to and from contingency line items, and reasons supporting
the transfers.
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• Speculative cost changes that potentially may develop in the future, a
quantified dollar range for each potential cost change, and the current status of
the speculative change. Also, a comparison analysis to the available contingency amounts should be included, showing that reasonable and sufficient amounts of contingency remain to keep the project within the latest approved budget.
• Detailed cost breakdown of the general engineering consultant (GEC) services (if applicable), including such line items as contract amounts, task orders issued (amounts), balance remaining for tasks, and accrued (billable) costs.
• Federal obligations and/or disbursements for the project, compared to planned obligations and disbursements. (g) Federal Financial Report (SF-425). The Federal Financial Report (SF-425) is a
financial reporting form used throughout the Federal Government Grant system. Recipients shall complete this form and attach it to each quarterly Project Progress and Monitoring Report. The form is available at https://www.grants.gov/forms/post-award-reporting-forms.html.
(h) Certifications.
i. A certification that the Recipient is in compliance with 2 C.F.R. 200.303 (Internal Controls) and 2 C.F.R. Part 200, Subpart F (Audit Requirements).
ii. The certification required under 2 C.F.R. 200.415(a).
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EXHIBIT D FORM FOR SUBSEQUENT OBLIGATION OF FUNDS
The USDOT and [recipient name] entered a grant agreement for the [project name] that was
executed by the USDOT on [date of USDOT signature on original agreement] (the “Agreement”).
This instrument obligates [$XXX] for [insert portion of project listed in the Agreement].
[Recipient name] states that:
(1) the Agreement accurately describe the Project’s activities;
(2) for each completion date listed in the Agreement, the Recipient’s estimate for that milestone is not more than six months after the date listed in the Agreement;
(3) comparing the Project’s current budget with the amounts listed in the Agreement, the “Non-Federal Funds” amount has not decreased and the total eligible project
costs amount has not decreased; and
(4) under the terms of article 21 of the General Terms and Conditions, the Recipient is not presently required to request a modification to the Agreement.
[Recipient name] acknowledges that USDOT is acting in reliance on the Recipient’s statements above.
of Recipient’s Authorized Representative
[insert name]
[insert title]
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The USDOT has determined that all applicable Federal requirements for obligating these funds are satisfied.
of USDOT’s Authorized Representative
[insert name]
[insert title]
Contract No. ___________
Exhibit “B”
Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT "B"
SCHEDULE OF SERVICES
[***INSERT SCHEDULE***]
Contract No. ___________
Exhibit “C”
Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT "C"
COMPENSATION
[***INSERT RATES & AUTHORIZED REIMBURSABLE EXPENSES***]