SJCOG_Sample_Contract_.pdf

MASTER CONSULTANT AGREEMENT

BETWEEN

THE SAN JOAQUIN COUNCIL OF GOVERNMENTS

AND

CONSULTANT NAME

This CONSULTANT AGREEMENT (hereinafter “Agreement”), effective as of, Date, 2024 is made and entered into by and between SAN JOAQUIN COUNCIL OF

GOVERNMENTS a Joint Powers Authority established under California Government

Code section 6500 et seq. (hereinafter “SJCOG”) and, CONSULANT NAME (hereinafter

“Consultant”);

1. Terms and Conditions

1.1. Witnesseth

WHEREAS, pursuant to the most recent SJCOG Joint Powers Agreement, SJCOG is authorized and empowered to employ Consultants and specialists in the performance of its duties and functions; and

WHEREAS, SJCOG has determined that it is necessary and desirable to secure a consultant to prepare the (services to be provided); and

WHEREAS, Consultant represents it is qualified and willing to provide such services pursuant to the terms and conditions of Agreement;

NOW, THEREFORE: The parties hereto do mutually agree as follows:

Agreement is fully comprised of these terms and the attached exhibits which are incorporated herein by reference. The exhibits attached to Agreement are:

Exhibit A - Work Plan

Exhibit B - Project Team

Exhibit C - Project Schedule and Deliverables

Exhibit D - Compensation

1.2. Statement of Work

Subject to the terms and conditions set forth in Agreement, Consultant shall provide to

SJCOG the services described in Exhibit “A,” and according to the schedule and budget identified in Exhibits “C” and “D.” Consultant shall not be compensated for services outside the scope of Exhibit “A” unless otherwise agreed upon pursuant to

Section "Modification of Agreement" of this Agreement.

Contract No.

1.3. Project Managers

During the performance of Agreement, the representative project managers for SJCOG and Consultant will be:

SJCOG:

Consultant:

1.4. Term

Time is of the essence in Agreement. The term of Agreement is, Date, 2024 through

END DATE, unless an extension of time is granted in writing by SJCOG. The various phases involved in this project shall be completed as indicated in Exhibit "C", Schedule and Deliverables. However, Consultant shall not be responsible for delays caused by acts of God, agency reviews or delays from third parties.

1.5. Assignability

Consultant shall not assign any interest in Agreement, and shall not transfer the same, without the prior written consent of SJCOG.

1.6. Modification of Agreement

No alteration, modification or deviation of the terms of Agreement shall be valid unless made in writing and signed by both parties. No oral understanding or agreement not incorporated herein, shall be binding on any of the parties. SJCOG may request, at any time, amendments to Agreement and will notify Consultant in writing regarding changes.

Upon a minimum of ten (10) days notice, Consultant shall determine the impact on both time and compensation of such changes and notify SJCOG in writing. Upon agreement between SJCOG and Consultant as to the extent of these impacts on time and compensation, an amendment to Agreement shall be prepared describing such changes. Such amendments shall be binding on the parties if signed by SJCOG and

Consultant, and shall be effective as of the date of the amending document unless otherwise indicated.

1.7. Costs and Reimbursements

A. Maximum Agreement Amount/Budget Amendments: The total sum billed under Agreement shall not exceed ($Amount) Written Form, including all costs, overhead, and fixed fee expenses. Such billings, up to the specified amount, shall constitute full and complete compensation for Consultant's services.

SJCOG shall pay Consultant for services rendered pursuant to Agreement in accordance with the provisions contained in Exhibit "D". The payments specified in Exhibit "D" shall be the only payments to be made to Consultant for the services rendered pursuant to Agreement unless otherwise agreed pursuant to Section "Modification of Agreement" of Agreement.

B. Progress Payments: Consultant shall invoice SJCOG every month for services performed during the month’s period. Supporting documentation on all expenses is required. Consultant shall be paid following the receipt and approval of each invoice by SJCOG. Progress payment invoices shall be numbered sequentially and identify the total Agreement amount, amount previously invoiced, current invoice, and remaining available amounts. A progress report describing the work performed needs to accompany each invoice. To ensure timely payment, invoices shall be emailed to both the planner and the account payable email address listed below: Payables@sjcog.org Planner email address here

C. Billing Format and Content: Requisitions for payment shall refer to Agreement number, or as may be specified in a written notice by SJCOG. All billings shall be in the same format as Exhibit “D”. Specific budget category detail is given below:

1. Hourly Labor Rates: This project will be billed on a time and materials basis using fixed billing rates, up to the Agreement maximum. All labor charges shall be billed on an hourly rate basis by class of employee, rate per hour and number of hours. (Anticipated personnel cost-of-living or merit increases, if any, should be reflected in the budget).

2. Subconsultant/Subcontractor Charges: All subconsultant/subcontractor billings (as applicable) shall identify the name of the subconsultant/subcontractor, the amount of work performed (as categorized in the budget), the reimbursement rate, the total amount billed, and the date and amount paid by Consultant. A copy of the sub consultant’s invoice is required.

3. Overhead: All overhead shall be included in the fixed billing rate.

4. Direct Costs: All direct costs billed shall be specifically identified. Any travel costs shall not exceed the per diem and mileage rates payable to SJCOG employees. Any direct costs not specifically identified in the Agreement budget cannot be reimbursed.

5. Fixed Fee: A fixed fee on labor shall be included in fixed billing rate.

D. Allowable Costs and Documentation: All costs charged to Agreement by

Consultant shall be supported by properly executed payrolls, time records, invoices, and vouchers, evidencing in proper detail the nature and propriety of the charges. These records shall be maintained by Consultant for three years after SJCOG makes final payment under Agreement and shall be made available upon the request of SJCOG.

E. Final Billing: Final billing shall be received by SJCOG no later than 45 days after the end date of Agreement. Agreement will be closed no later than 90 days following the end date of Agreement.

1.8. Progress Reports

Consultant shall submit written progress reports with each invoice and shall specify, by task, the percentage of work completed to date and since the date of the preceding invoice, if any. The progress reports shall describe the status of work performed as identified in Exhibit “A.” The purpose of the reports is to allow SJCOG to determine if

Consultant is completing the activities identified in Exhibit “A” in accordance with the agreed upon schedule, and to afford occasions for airing difficulties or special problems encountered so remedies can be developed. Consultant's Project Manager shall meet with SJCOG's Project Manager, as identified under Section "Project Manager" in

Agreement, as needed to discuss work progress.

1.9. Inspection of Work

Consultant, and any subcontractors, shall permit SJCOG the opportunity to review and inspect the project activities at all reasonable times during the performance period of

Agreement including review and inspection on a daily basis.

1.10. Staffing

There shall be no change in Consultant's Project Manager, or members of the project team, without prior written approval by SJCOG. The Project Manager shall be responsible for keeping SJCOG informed of the progress of the work and shall be available for meetings with SJCOG Board, and its formal committees.

1.11. Subcontracting

Consultant shall perform the work with resources available within its own organization, unless otherwise specified in Agreement. No portion of the work included in Agreement shall be subcontracted except as identified in Exhibit “B” of Agreement, or with written authorization by SJCOG. All authorized subcontracts shall contain the same applicable provisions specified in Agreement.

1.12. Termination of Agreement

A. Termination by SJCOG: SJCOG may terminate or suspend Agreement at any time by giving written notice to Consultant of such termination, and the effective termination date, at least thirty (30) days before the effective date of such termination. In such event, all finished or unfinished documents and other materials pertaining to Agreement shall become the property of SJCOG. If

Agreement is terminated by SJCOG, as provided herein, Consultant shall be reimbursed for billings incurred prior to the termination date, in accordance with the cost provisions of Agreement.

B. Termination for Cause: If Consultant shall fail to fulfill in a timely and proper manner its obligations under Agreement, or if Consultant violates any of the covenants, provisions, or stipulations of Agreement, SJCOG shall thereupon have the rights to terminate the Agreement by giving not less than ten (10) days written notice to Consultant of the intent to terminate and specifying the effective date thereof. SJCOG shall provide an opportunity for consultation with

Consultant prior to termination. In such an event, all finished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other materials prepared by Consultant under Agreement shall become properties of

SJCOG. If SJCOG terminates Agreement, Consultant shall immediately suspend its activities under Agreement, as specified in such notice. Consultant shall promptly deliver to SJCOG copies of all information prepared pursuant to

Agreement. Consultant shall be entitled to receive compensation for all satisfactory work completed prior to the effective date of termination.

1.13. Prevailing Wage and Compliance with Laws, Rules and Regulations

A. Compliance With All Applicable Laws: All services performed by Consultant pursuant to Agreement shall be performed in accordance and full compliance with all applicable state or local statutes, rules, and regulations. This includes compliance with prevailing wage rates and their payment in accordance with

California Labor Code section 1770 et seq.

B. Pay Prevailing Wage: Pursuant to section 1770 et seq. of the California Labor

Code, Consultant and any subcontractor shall pay not less than the prevailing wage. A determination of the general prevailing rates of per diem wages and holiday and overtime work where the work is to be performed is available for review upon request at the SJCOG offices. The General Prevailing Wage

Determinations and the General Prevailing Wage Apprentice Schedules made by the Director of Industrial Relations are also now available on the Internet at www.dir.ca.gov. Consultant shall post one copy of the prevailing rates of wages at the job site. Consultant shall forfeit as penalty to SJCOG the sum of up to fifty dollars ($50.00) for each calendar day or portion thereof, and for each worker, including subcontractors’ workers, paid less than the prevailing rates under the

Agreement. In addition, the difference between such prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Consultant as provided in section 1775 of the California

Labor Code.

C. Work Day: Eight (8) hours labor constitutes a legal day’s work. Workers shall be paid at a rate of one and one-half times the basic rate of pay for work in excess of eight (8) hours during a calendar day or forty hours during a calendar week of the foregoing hours. Consultant shall keep and make available an accurate record showing the name of each worker and hours worked each day and each week by each worker. As a penalty, Consultant shall forfeit fifty dollars ($50.00) for each worker, including subcontractors’ workers, for each calendar day during which the worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week without being paid the wages required by Labor Code Section 1815.

D. Income Tax Forms: Consultant shall issue W-2 forms or the forms as required by law for income and employment tax purposes for all of Consultant’s assigned personnel.

E. Payroll Record Keeping: Consultant shall also comply with the payroll record keeping requirements of Section 1776 of the California Labor Code and shall be responsible for each subcontractor complying with the requirements of the

California Labor Code sections 1770 et seq.

1.14. Standard of Performance

Consultant shall perform all services required pursuant to Agreement in the manner according to the standards currently observed by a competent practitioner of

Consultant’s profession in California. All products of whatsoever nature which

Consultant delivers to the SJCOG pursuant to Agreement shall be prepared in a professional manner and conform to the standards to quality normally observed by a person currently practicing in Consultant’s profession. Consultant shall assign only competent personnel to perform.

1.15. Conflict of Interest

A. Independent Capacity: Consultant and the agents and employees of

Consultant, shall act in an independent capacity in the performance of

Agreement, and not as officers, employees or agents of SJCOG. No officer, member, or employee of SJCOG or other public official of the governing body of the locality or localities in which the work pursuant to Agreement is being carried out, who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of the aforesaid work shall:

1. Participate in any decision relating to Agreement which affects his or her personal interest or the interest of any corporation, partnership, or association in which he has, directly or indirectly, any interest; or

2. Have any interest, direct or indirect, in Agreement or the proceeds thereof during his or her tenure or for one year thereafter.

B. Covenant of No Interest: Consultant hereby covenants that it has, at the time of the execution of Agreement, no interest, and that it shall not knowingly acquire any interest in the future, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed pursuant to

Agreement. Consultant further covenants that in the performance of this work, no person having any such interest shall be employed.

1.16. Contingency Fees

Consultant warrants, by execution of Agreement, that no person or selling agency has been employed or retained to solicit or secure Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, SJCOG has the right to terminate Agreement without liability allowing payment only for the value of the work actually performed, or to deduct from the

Agreement price, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingency fee.

1.17. Documentation

The Consultant shall document the results of all work to the satisfaction of SJCOG. This may include, but not be limited to, preparation of progress and final reports, calculations, plans, specifications, estimates, evaluations, and other records.

1.18. Ownership of Documents

Aerial photos, topographic mapping, tracings, plans, specifications, as-built plans, electronic files, technical data, evaluations, and all other documents prepared, assembled, or obtained by the Consultant under Agreement shall be delivered to and become properties of SJCOG upon completion of the work pursuant to Agreement. The basic survey notes and sketches, aerial photos, topographic maps, charts, computations and other data assembled and prepared under Agreement shall be made available, at any time, upon request to SJCOG without restriction or limitation on their use.

1.19. Copyrights

The Consultant shall not have copyrights of reports or products of Agreement.

1.20. Publication

A. Written Approval of SJCOG: No report, information, or other data given to or prepared or assembled by Consultant pursuant to Agreement, shall be made available to any individual or organization by Consultant without the prior written approval of SJCOG.

B. Acknowledge SJCOG: Any and all reports published by Consultant shall acknowledge that it was prepared in cooperation with SJCOG. Articles, reports, or works reporting on the work provided for herein or on portions thereof which are published by Consultant shall contain in the forward, preface, or footnote the following statement:

1. “The contents of this report reflect the views of the author who is responsible for the facts and the accuracy of the data presented herein. The contents do not necessarily reflect the official views or policies of the San Joaquin Council of Governments. This report does not constitute a standard, specification, or regulation.”

1.21. Disputes

Except as otherwise provided in Agreement, any dispute concerning a question of fact which is not disposed of by mutual agreement shall be decided by a court of competent jurisdiction in California.

1.22. Hold Harmless

Consultant agrees to indemnify, defend (upon request of SJCOG) and hold harmless

SJCOG, its officers, agents and employees from any and all actions, causes of action, claims, demands, costs, liabilities, judgments, penalties, losses, damages and expenses of whatsoever kind and nature (including attorney's fees) for injuries to or death of any person or persons, or damage to property of third persons to the extent caused by the negligent acts, errors or omissions, recklessness, or willful misconduct of the Consultant, its subcontractors, subconsultants or agents, and their respective employees in the performance of the work to be provided pursuant to Agreement.

Notwithstanding the foregoing, Consultant has no obligation to defend or pay SJCOG’s defense costs incurred prior to a final determination of liability as determined by a court of competent jurisdiction.

1.23. Insurance

On or before beginning any of the services or work called for by any term of Agreement, Consultant, at its own cost and expense, shall procure, carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to SJCOG the insurance specified in subsections A through C below with insurers and under forms of insurance satisfactory in all respects to the SJCOG. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Verification of this insurance shall be submitted and made part of Agreement prior to execution.

A. Workers’ Compensation: Consultant shall, at Consultant’s sole cost and expense, procure and maintain Statutory Workers' Compensation Insurance and

Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. Said Statutory Workers' Compensation Insurance and

Employer’s Liability Insurance shall be provided with limits of not less than the amount required by law. In the alternative, Consultant may rely on a self-insurance program to meet these requirements provided that the program of self-insurance complies fully with the provisions of the California Labor Code. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against SJCOG for loss arising from work performed under Agreement. In signing CONTRACT, the Consultant certifies under section 1861 of the California Labor Code that Consultant is aware of the Workers Compensation provisions contained in section 3700 et seq.

of the Labor Code.

B. Commercial General and Automobile Liability Insurance: Consultant, at

Consultant’s own cost and expense, shall procure and maintain commercial general and automobile liability insurance for the period covered by Agreement in an amount not less than One Million Dollars ($1,000,000) per occurrence, combined single limit coverage for risks associated with the work contemplated by Agreement. If a Commercial General Liability Insurance or an Automobile

Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under

Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under Agreement, including the use of owned and non-owned automobiles. Coverage shall be at least as broad as Insurance Services Office

Commercial General Liability occurrence form CG 0001 (ed. 11/88) and

Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1

(any auto). Each of the following shall be included in the insurance coverage or added as an endorsement to the policy:

1. SJCOG, its officers, employees, agents, and volunteers are to be covered as an additional insured with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insider’s general supervision of Consultant; products and completed operations of

Consultant; premises owned, occupied or used by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to

SJCOG, its officers, employees, agents, or volunteers.

2. The insurance shall cover on an occurrence or an accident basis, and not on a claim made basis.

3. An endorsement must state that coverage is primary insurance and that no other insurance affected by SJCOG shall be called upon to contribute to a loss under the coverage.

4. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to SJCOG and its officers, employees, agents, and volunteers.

5. Insurance is to be placed with California-admitted insurers with a Best’s rating of no less than A: VII.

6. Notice of cancellation or non-renewal must be received by SJCOG at least thirty days prior to such change.

C. Professional Liability Insurance: Consultant, at Consultant’s own cost and expense, shall procure and maintain for the period covered by Agreement professional liability insurance for licensed professionals performing work pursuant to Agreement in an amount not less than One Million Dollars

($1,000,000) per claim made and per policy aggregate covering the licensed professionals’ errors and omissions, as follows:

1. Any deductible or self-insured retention shall not exceed $150,000 per claim.

2. Notice of cancellation, material change, or non-renewal must be received by

SJCOG at least thirty days prior to such change and shall be included in the coverage or added as an endorsement to the policy.

3. The policy must contain a cross liability or severability of interest clause.

4. The following provisions shall apply if the professional liability coverage’s are written on a claims made form:

a. The retroactive date of the policy must be shown and must be before the date of the Agreement.

b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates.

c. If coverage is canceled or not renewed and it is not replaced with other claims made policy form with a retroactive date that precedes the date of

Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work.

SJCOG shall have the right to exercise at the Consultant’s cost, any extended reporting provisions of the policy should the Consultant cancel or not renew the coverage.

d. A copy of the claim reporting requirements must be submitted to SJCOG prior to the commencement of any work under Agreement.

D. Deductibles and Self-Insured Retentions: Consultant shall disclose the self-insured retentions and deductibles before beginning any of the services or work called for by any term of Agreement. During the period covered by Agreement, upon express written authorization of SJCOG’s Project Manager, Consultant may increase such deductibles or self-insured retentions with respect to SJCOG, its officers, employees, agents, and volunteers.

E. Notice of Reduction in Coverage: In the event that any coverage required under subsections A, B, or C of this section of Agreement is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to

SJCOG at Consultant’s earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage.

F. Additional and Alternative Remedies: In addition to any other remedies

SJCOG may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, SJCOG may, at its sole option:

1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under Agreement or withhold any payment which becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof;

3. Terminate Agreement.

Exercise of any of the above remedies, however, is an alternative to other remedies

SJCOG may have and is not the exclusive remedy for Consultant‘s breach.

1.24. Equal Employment Opportunity/Nondiscrimination

Consultant shall comply with Title VI of the Civil Rights Act of 1964, as amended, and with the provisions contained in Title 49, Code of Federal Regulations (CFR), Part 21 through Appendix C and 23 CFR 170.405(b). During the performance of Agreement, Consultant, for itself, its assignees and successors in interest, agrees as follows:

A. Compliance with Regulations: Consultant shall comply with the regulations relative to nondiscrimination in federally-assisted programs of the United States

Department of Transportation (hereinafter "DOT") 49 CFR 21, as they may be amended from time to time (hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of Agreement.

B. Nondiscrimination: Consultant, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, religion, color, disability, sex, age or national origin in the selection or retention of subcontractors, including procurements of materials and leases of equipment.

Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers a program set forth in Appendix B of the

Regulations.

C. Solicitations for Subcontractors, including Procurements of Materials and

Equipment: On all solicitations, either by competitive bidding or negotiations made by Consultant for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by Consultant of Consultant's obligations under

Agreement, and the Regulations relative to nondiscrimination on the grounds of race, religion, color, disability, sex, age or national origin.

D. Information and Reports: Consultant shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by SJCOG to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of Consultant is in the exclusive possession of another who fails or refuses to furnish this information, Consultant shall so certify to SJCOG, as appropriate, and shall set forth what efforts it has made to obtain the information.

E. Sanctions for Noncompliance: In the event of Consultant's noncompliance with the nondiscrimination provisions of Agreement, SJCOG shall impose such sanctions as it may determine to be appropriate, including, but not limited to:

1. Withholding of payments to Consultant under Agreement until Consultant complies; and/or

2. Cancellation, termination or suspension of the Agreement, in whole or in part.

F. Incorporation of Provisions: Consultant shall include the provisions of subsections A through F of this section in every subcontract, including procurements of materials and leases of equipment, unless exempt from the regulations, or directives issued pursuant thereto. Consultant shall take such action with respect to any subcontract or procurement as SJCOG may direct as a means of enforcing such provisions including sanctions for noncompliance.

However, in the event Consultant becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Consultant may request SJCOG to enter into such litigation to protect the interests of

SJCOG.

1.25. Disadvantaged Business Enterprise (DBE)

SJCOG has established a Disadvantaged Business Enterprise (DBE) program in accordance with 49 CFR Part 26 and may utilize Federal Funds. This project is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in

Department of Transportation Financial Assistance Programs”.

Although DBE participation goals have not been set for the agreement, SJCOG encourages the participation of DBEs, as defined in 49 CFR 26, in performing

Agreements financed in whole or in part with federal funds. Disadvantaged Business

Enterprises(DBE) are encouraged to submit proposals to ensure the participation of

DBEs in the performance of agreements financed in whole or in part with Federal Funds to achieve its federally mandated Statewide overall goal, as defined in 49 CFR 26.

Consultants who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal of 22.2%.

DBEs and other small businesses are strongly encouraged to participate in the performance of contracts financed in whole or in part with federal funds. The consultant should ensure that DBEs and other small businesses have the opportunity to participate in the performance of the work that is the subject of this solicitation and should take all necessary and reasonable steps for this assurance. The proposer shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts. Proposers are encouraged to use services offered by financial institutions owned and controlled by DBEs.

Good Faith Efforts

The DBE policy requires contractors to follow Good Faith Effort Guidelines; however, they are limited to UDBEs. UDBEs are limited to these certified DBEs that are owned and controlled by African Americans, Native Americans, Women, and Asian-Pacific

Americans.

Nondiscrimination: The Authority will never exclude any person from participation in, deny any person the benefit of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR, Part 26 on the basis of race, color, sex, or national origin. The Authority will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing the accomplishment of the objectives of the Caltrans DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.

Title VI of the Civil Rights Act of 1964: The selected consultant agrees to comply with all the requirements imposed by Title VI of the Civil Rights Act of 1964 (49 USC 2000d) and the regulations of the U.S. Department of Transportation issued there under in 49

CFR Part 21.

Prompt Payment

Prompt Progress Payment to Subcontractors

SJCOG requires contractors and subcontractors to be timely paid as set forth in Section

7108.5 of the California Business and Professions Code concerning prompt payment to subcontractors. The 7-days is applicable unless a longer period is agreed to in writing.

Any delay or postponement of payment over 30 days may take place only for good cause and with the agency’s prior written approval. Any violation of Section 7108.5 shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies of that Section. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Prompt Payment of Withheld Funds to Subcontractors

SJCOG requires prompt and full payment of retainage from the prime contractor to the subcontractor within thirty (30) days after the subcontractor’s work is satisfactorily completed and accepted. This shall be accompanied with the following provisions:

The agency shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the agency of the contract work and pay retainage to the prime contractor based on these acceptances.

The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Any delay or postponement of payment may take place only for good cause and with the agency’s prior written approval. Any violation of these provisions shall subject the violating prime contractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions

Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or

Subcontractor in the event of a dispute involving late payment or nonpayment by the

Consultant, deficient subcontractor performance, and/or noncompliance by a

Subcontractor. This clause applies to both DBE and non-DBE Subcontractors.

1.26. Audits

At any time during normal business hours, and as often as SJCOG may deem necessary, Consultant shall make available for examination all of its records with respect to all matters covered by Agreement for purposes of audit, examination, or to make copies or transcripts of such records, including, but not limited to, contracts, invoices, material, payrolls, personnel records, conditions of employment and other data relating to all matters covered by Agreement. Such records shall be retained and access to the facilities and premises of Consultant shall be made available during the period of performance of Agreement, and for three years after SJCOG makes final payment under Agreement.

1.27. Clean Air Act/Clean Water Act Requirements

Consultant, in carrying out the requirements of Agreement, shall comply with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air

Act (42 USC 1857[h]), Section 508 of the Clean Water Act (33 USC 1368), Presidential

Executive Order 11738, and those Environmental Protection Agency regulations contained in 40 CFR Part 15.

1.28. Agreement Completion Retainer

SJCOG will not withhold any funds from Agreement billings.

1.29. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Primary Covered Transactions

This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49

CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945.

The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into.

By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:

The certification in this clause is a material representation of fact relied upon by

SJCOG. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to SJCOG, the Federal

Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49

CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.

1.30. CLEAN WATER

The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C.

1251 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

1.31. CLEAN AIR

The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq . The

Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

1.32. Attorney’s Fees

In the event of a dispute arising under Agreement, the prevailing party shall be entitled to an award against the other party of reasonable attorney’s fees and costs incurred in connection with the dispute. The venue for any litigation shall be San Joaquin County, California.

1.33. Notice

Any notice or notices required or permitted to be given pursuant to Agreement may be personally served on the other party by the party giving such notice, or may be served by certified mail, return receipt requested, to the following address:

For SJCOG:

Diane Nguyen, AICP, Executive Director San Joaquin Council of Governments 555 East Weber Avenue Stockton, CA 95202

For Consultant:

Name Company Name Address City, State Zip code

1.34. Captions and Pronouns

The captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to Agreement.

Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the section or paragraph thereof, as the case may be, and not such heading, shall control and govern in the construction of

Agreement. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein in which the context requires such substitution(s).

1.35. Cumulative Remedies

Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance of the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any of all of such other rights, powers or remedies.

1.36. Enforceability

If any term or provision of Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to, the extent necessary to cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of Agreement shall be valid and be enforced to the fullest extent permitted by law.

Governing Law

This Agreement shall be governed and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the SJCOG and consultant have executed this Agreement as of the day and year first above written.

Approved:

Diane Nguyen, AICP, Executive Director San Joaquin Council of Governments

Grace Orosco, Interim Deputy Director of Finance & Administration San Joaquin Council of Governments

<Consultant Name> Consultant