APPENDIX 1 ABBREVIATIONS AND ... - Foothill Gold Line · METRO GOLD LINE FOOTHILL EXTENSION APPENDIX 1 INTERMODAL PARKING FACILITIES AND ENHANCEMENTS CONSTRUCTION AUTHORITY Page 4

METRO GOLD LINE FOOTHILL EXTENSION APPENDIX 1 INTERMODAL PARKING FACILITIES AND ENHANCEMENTS

CONSTRUCTION AUTHORITY Page 1 DESIGN-BUILD PROJECT

RFP C1150 VOLUME 2 – CONTRACT

APPENDIX 1

ABBREVIATIONS AND DEFINITIONS

As used in the Contract to which this Appendix is attached and in the Contract Documents described therein, the following abbreviations and terms shall have the meanings set forth below. References to Sections shall mean Sections of the Contract unless otherwise specified.

ABBREVIATIONS

AASHTO American Association of State Highway and Transportation Officials

AC Alternating Current AD Active Directory ACE Advanced Conceptual Engineering ACI American Concrete Institute ADA Americans with Disabilities Act ADU Aspects Display Unit AEIC Association of Edison Illuminating Companies AFI American Filter Institute AGC Association of General Design-Builders of America AGMA American Gear Manufacturers Association AI Asphalt Institute AIA American Institute of Architects AISC American Institute of Steel Construction AISC-SJI American Institute of Steel Construction - Steel Joist Institute AISI American Iron and Steel Institute AJCHN American Joint Committee on Horticulture Nomenclature ALPR Automatic License Plate Recognition ALW Azusa Light and Water AMCA Air Moving and Conditioning Association AMTRAK National Railroad Passenger Corporation ANSI American National Standards Institute (Formerly USASI,

United States of American Standards Institute, and ASA, American Standard Association)

APA American Plywood Association (Formerly Douglas Fir Plywood Association)

API American Petroleum Institute APTA American Public Transportation Association APWA American Public Works Association ARA American Railway Association AREA American Railway Engineering Association AREMA American Railway Engineering and Maintenance of Way

Association ASA See ANSI




ASNS American Standards for Nursery Stock ASCE American Society of Civil Engineers ASHRAE American Society of Heating, Refrigerating and Air

Conditioning Engineers ASLA American Society of Landscape Architects ASME American Society of Mechanical Engineers ASQC American Society of Quality Control ASTM American Society for Testing and Materials ATEL Administrative Telephone ATMS Automated Traffic Management System ATS Administrative Telephone System ATSAC Automated Traffic Surveillance and Control System AWG American Wire Gauge AWPA American Wood Preservers' Association AWS American Welding Society AWWA American Water Works Association BDS Bridge Design Specifications BOCA Building Officials Conference of America CADD Computer-Aided Design and Drafting Caltrans State of California Department of Transportation CCTV Closed Circuit Television CDRL Contract Data Requirements List CEO Chief Executive Officer CFR Code of Federal Regulations CNEL Community Noise Equivalent Level CPM Critical Path Method CPUC California Public Utilities Commission CRSI Concrete Reinforcing Steel Institute CSI Construction Specifications Institute CTC California Transportation Commission CTS Cable Transmission System CWR Continuous Welded Rail D-B Design-Build dB Decibel DBCS Duct Bank and Conduit System DBE Disadvantaged Business Enterprise DC Direct Current DID Direct Inward Dialing DOT Department of Transportation DTE Diagnostic and Test Equipment DVA Digital Voice Annunciation DWP Department of Water and Power of the City of Los Angeles E&M Ear and Mouth EEI Edison Electric Institute EEO Equal Employment Opportunity EIA Electronic Industries Association




EMC Electromagnetic Compatibility EMI Electromagnetic Interference EMR Electromagnetic Radiation EOL End of Line EPA Environmental Protection Agency EPROM Erasable Programmable Read-Only Memory ETEL Emergency Telephone FACP Fire Alarm Control Panel FAT Factory Acceptance Test FCC Federal Communications Commission FDS Fire Detection System FEMA Federal Emergency Management Agency FHWA Federal Highway Administration of the U.S. Department of

Transportation FLSSC Fire/Life Safety and Security Committee FMECA Failure Modes and Effects Criticality Analysis FO Fiber Optic FR Foundation Report FRA Federal Railroad Administration FRACA Failure Reporting, Analysis and Corrective Action FRP Fiberglass-Reinforced Plastic FS Federal Specification FSS Federal Specifications and Standards, General Services

Administration FTA Federal Transit Administration FXO/FXS Foreign Exchange Office/Foreign Exchange Subscriber GO General Order (pertaining to the CPUC) GUI Graphics User Interface HDPE High Density Polyethylene HVAC Heating, Ventilation & Air Conditioning Hz Hertz IAPMO International Association of Plumbing and Mechanical Officials IC Internal Combustion ICC Interstate Commerce Commission or International Code

Council IDS Intrusion Detection System IEC International Electrotechnical Commission IEEE Institute of Electrical and Electronic Engineers IES Illuminating Engineering Society IFS Iconic Freeway Structure IIPP Injury and Illness Prevention Program IMSA International Municipal Signal Association I/O Input/Output IOS Initial Operating Segment IPCEA Insulated Power Cable Engineers Association ISO International Standards Organization




ITE Institute of Transportation Engineers JIC Joint Industrial Council JRG Joint Review Group L&W Light and Water LACDPW Los Angeles County Department of Public Works LAFCD Los Angeles County Department of Public Works Flood

Control District LADOT City of Los Angeles Department of Transportation LAN Local Area Network LFAT Local Field Acceptance Test LLRU Lowest Level Replaceable Unit LRFD Load and Resistance Factor Design LRT Light Rail Transit LRU Line Replaceable Unit LRV Light Rail Vehicle MI&H Mobility Impaired and Handicapped MIL Military Specification MP Management Provisions MEP Mechanical, Electrical, and Plumbing Metro Los Angeles County Metropolitan Transportation Authority MOS Mean Opinion Score MTBF Mean Time Between Failures MTEL Maintenance Telephone MTTR Mean Time-to-Restore MUTCD Manual of Uniform Traffic Control Devices NBFU National Board of Fire Underwriters NBHA National Builders Hardware Association NBS National Bureau of Standards NEC National Electrical Code NEMA National Electrical Manufacturers' Association NESC National Electric Safety Code NFPA National Fire Protection Association NIST National Institute of Standards and Technology NLMA National Lumber Manufacturers' Association NPRD Non-electric Parts Reliability Data NRC Noise Reduction Coefficient NTP Notice to Proceed NVLAP National Voluntary Laboratory Accreditation Program OBE Other Business Enterprise OCS Overhead Contact System O&SHA Operating & Support Hazard Analysis OEM Original Equipment Manufacturer OSHA Occupational Safety and Health Administration, and

Occupational Safety and Health Act of 1970, and amendments thereto; United States Department of Labor

PCA Portland Cement Association




PCI Prestressed Concrete Institute PCO (Notice of) Proposed Change PDS Power Distribution System PDSR Project Development Status Report PFR Preliminary Foundation Report PGL Profile Grade Line or Pasadena Gold Line PHA Preliminary Hazard Analysis PM Preventative Maintenance PMC Project Management Consultant PRI Primary Rate Interface PROM Program Read-Only Memory PTZ Pan/Tilt/Zoom PWP Pasadena Water and Power QA/QC Quality Assurance and Quality Control QOS Quality of Service QSIG Q-Signaling Protocol RAC Reliability Analysis Center RF Radio Frequency RFI Request for Information RFP Request for Proposals RFQ Request for Qualifications RFSC Request for Special Consideration RMA Rubber Manufacturer's Association RMS Root Mean Square RM&S Reliability, Maintainability and Safety ROD Revenue Operations Date or Record of Decision ROM Read-Only Memory ROC Rail Operations Control ROW Right of Way RSVP Resource Reservation Protocol RTU Remote Terminal Unit SAE Society of Automotive Engineers SBE Small Business Concern SCADA Supervisory Control and Data Acquisition SCE Southern California Edison SCFT Simple Catenary, Fixed Termination SCIL Safety-Critical Items List SCPI Structural Clay Products Institute SCPM Safety-Critical Preventative Maintenance SCR Safety Certification Report SCRRA Southern California Regional Rail Authority SDI Steel Door Institute SFP Small Form-Factor Pluggable SIMP Systems Interface Management Plan SIT Systems Integration Tests




SMACNA Sheet Metal and Air Conditioning Contractors National Association, Inc.

SONET Synchronous Optical Network SOQ Statement of Qualifications SPI Society of the Plastics Industry SPN Standardized Plant Names SRST Survivable Remote Site Telephony SSCP Safety and Security Certification Plan SSPC Steel Structures Painting Council SSPP System Safety Program Plan SUSMP Standard Urban Stormwater Mitigation Plan T1 T-Carrier TACAS Terminal Access Controller Access System T/R Top of Rail TOR Top of Rail TP Technical Provisions TPSS Traction Power Supply Substation UBC Uniform Building Code of the International Conference of

Building Officials UFAS Uniform Federal Accessibility Standards UL Underwriters' Laboratories, Inc. UPRR Union Pacific Railroad UPS Uninterruptible Power Supply USACE United States Army Corps of Engineers USAS United States of American Standards (See ANSI) USASI See ANSI USDOT United States Department of Transportation USG Union Station Gateway USSG United States Standard Gage (for uncoated sheets and thin

plates) USSWG United States Steel Wire Gage VE Value Engineering VECP Value Engineering Change Proposals VDC Volts Direct Current WCLA West Coast Lumbermen's Association WUTC Western Union Telegraph Company




DEFINED TERMS

“Acceleration Costs” shall mean those fully documented increased costs reasonably incurred by Design-Builder (that is, costs over and above what Design-Builder would otherwise have incurred) which are directly attributable to increasing the performance level of the Work in an attempt to complete necessary Activities of the Work earlier than otherwise anticipated, such as for additional equipment, additional crews, lost productivity, overtime and shift premiums, increased supervision and any unexpected material, equipment or crew movement necessary for resequencing in connection with acceleration efforts. Profit, overhead and indirect costs in connection with acceleration efforts shall not exceed the limits set forth in Contract Section 12.

“Advanced Conceptual Engineering” or “ACE Drawings” shall mean preliminary engineering covering major design features of the Work included in Volume 3- Technical Provisions, Document 3.

“Affiliate” shall mean (1) (a) any Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, Design-Builder or any of its members, partners or shareholders holding a 10% or greater interest in Design-Builder; and (b) any Person for which 10% or more of the equity interest in such Person is held directly or indirectly, beneficially or of record by (i) Design-Builder, (ii) any of Design-Builder’s members, partners or 10% or greater shareholders or (iii) any Affiliate of Design-Builder under part (a) of this definition. For purposes of this definition the term "control" means the possession, directly or indirectly, of the power to cause the direction of the management of a Person, whether through voting securities, by contract, family relationship or otherwise; and (2) Subcontractor affiliates determined using the definition in (1) but substituting the term “Subcontractor” for “Design-Builder.” In the context of impartiality of Disputes Board members, the term “Affiliate” shall also mean local agencies that are represented on Authority’s board.

“Alignment Contractor” shall mean the design-builder and other individuals and entities performing work on the Alignment Project.

“Alignment Project” shall mean the project that is the subject of that certain agreement (C1135) dated October 17, 2011 between the Authority and Foothill Transit Constructors, a joint venture between Kiewit Infrastructure West Co. and Parsons Transportation Group. Such term shall include the right of way included within such project.

"Alteration" shall mean a change or substitution in the form, character, or detail of the work done or to be done within the original scope of the Contract.

“Application for Final Payment” shall mean Design-Builder's written request for Final Payment of the Contract Price including reconciliation of all claims, changes or other proper adjustments to the Contract Documents, as described in Contract Section 7.5.1.

"Approval" or “Approve” shall mean acceptance in writing by the entity in question, or its designated representative, as applicable. Authority’s approval of Design Documents for




construction as described in the Volume 3-Technical Provisions, Document 1- General Requirements, Section 10.8 shall constitute approval of the design by the Authority for purposes of Government Code section 830.6, but shall not be deemed to relieve Design-Builder of liability for the design.

“Approved as Noted” shall have the meaning set forth in Volume 3- Technical Provisions, Document 1- General Requirements, Section 10.8.

“Approved for Construction” shall have the meaning set forth in Volume 3- Technical Provisions, Document 1- General Requirements, Section 10.8.

“Approved Invoice” shall have the meaning set forth in Contract Section 7.3.1(d).

“Approved Invoice Amount” shall have the meaning set forth in Contract Section 7.3.1(d).

“Authority” shall mean the Metro Gold Line Foothill Extension Construction Authority, formerly known as the Pasadena Metro Blue Line Construction Authority, a public entity of the State of California.

“Authority-Caused Delay” shall mean delays, to the extent that they affect a Critical Path, arising from the following matters and no others: (a) a suspension order pursuant to Contract Section 6.4.1; (b) Authority-Directed Changes; (c) failure or inability of Authority to provide access to the Right of Way as provided in Contract Section 3.3 (subject to Design-Builder’s obligations set forth therein); (d) [NOT USED]; (e) [NOT USED]; (f) failure or inability of Authority to provide responses to proposed schedules, plans, Design Documents and other submittals and matters for which response is required, within the time periods indicated in the Contract Documents; (g) uncovering, removing and restoring Work, to the extent provided in Volume 3-Technical Provisions, Document 1, Section 5.4.3.(C); (h) delay in issuance of NTP to the extent provided in Contract Section 6.5.1; (i) any improper action by Authority’s designated representative with binding authority as specified in Contract Section 20.5, any improper action of the Program Manager pursuant to authority as specified in the Contract, or any improper failure to act by Authority within a reasonable time after delivery of notice by Design-Builder to Authority requesting such action; and (j) the failure of Authority to provide the Environmental Approvals (including Approval of the draft environmental documents included in Volume 4-Environmental Requirements) by the later of one year after the issuance of NTP or Authority’s Approval of Final Design (except in the event that modifications to such approvals or any new such approvals are required to allow Design-Builder's design concepts to be incorporated into the Project as set forth in Contract Section 2.2.1). Any court order to suspend Work shall not be considered an Authority-Caused Delay (although it may qualify as a Force Majeure event) despite the fact that Authority may specifically direct Design-Builder to comply with the court order.

“Authority Decision” shall have the meaning set forth in Contract Section 16.6.2.2.




“Authority-Directed Changes” shall mean any changes in the Work (including changes in the standards applicable to the Work) which Authority has directed Design-Builder to perform as described in Contract Section 12.

“Authority-Provided ROW” shall mean the property within the Right of Way described in Volume 3-Technical Provisions, Document 3- Advanced Conceptual Engineering Drawings and the property identified in the Property Acquisition Matrix as set forth in Volume 3- Technical Provisions, Document 2- Performance Specifications, Appendix 3, including such property as may be added to said Property Acquisition Matrix according to Volume 3- Technical Provisions, Document 2- Performance Specifications, Section 3.4 and subject to the limitations and availability constraints set forth in such documents.

“Baseline Schedule” shall have the meaning set forth in Volume 3-Technical Provisions, Document 1, Section 4.2.

“Bid Item List” shall mean that certain list of items included as Form S of Volume 1- Instructions to Proposers, Appendix D and as submitted in the Proposal.

“BNSF” shall mean the BNSF Railway (formerly known as the Burlington Northern and Santa Fe Railway), an American freight railroad company headquartered in Fort Worth, Texas, that has operating rights to provide freight service in certain portions of the Alignment Project.

"Certificate of Final Acceptance" shall mean the formal written acknowledgment issued by Authority to Design-Builder that all Work has been fully completed in accordance with the Contract Documents.

"Certificate of Substantial Completion" shall mean the formal written acknowledgment issued by Authority to Design-Builder that the Project has attained Substantial Completion.

“Change Order” shall have the meaning set forth in Contract Section 12.

“City” or “Cities” shall mean individually and/or collectively, as the context may require, the Cities of Arcadia, Monrovia, Duarte, Irwindale, Azusa, and Glendora.

“City Agreement” shall mean a Master Cooperative Agreement between a City and Authority set forth in Volume 5-Agreements, as the same may be modified or amended from time to time by versions provided by Authority to Design-Builder and identified as such by Authority.

“City Enhancement Agreement” shall mean each of the agreements entitled “City Enhancement Agreement” between the Authority and a City describing certain Work to be performed as part of this Agreement and included in Volume 3-Technical Provisions, Document 2- Performance Specifications and Volume 5- Agreements.




“Claim” shall mean a separate demand by Design-Builder for (a) a time extension which is disputed by Authority, or (b) payment of money or damages arising from work done by or on behalf of Design-Builder in connection with this Contract which is disputed by Authority. For purposes of determining the jurisdiction of the Disputes Board, arbitrator or referee, Claims and other disputes shall be valued based on the amount claimed exclusive of interest, costs and attorneys’ fees. The Disputes Board may require consolidation of related Claims if requested by either party, but consolidation of separate Claims shall not affect jurisdiction of the Disputes Board, arbitrator or referee with respect to each Claim. Except as specified in Contract Section 16, all requests for time extensions and all disputes seeking equitable relief, such as but not limited to specific enforcement of any provision of the Contract Documents are deemed to have a value in excess of $375,000 and less than or equal to $1,000,000. A Claim will cease to be a Claim upon resolution thereof, including resolution by delivery of a Change Order or Contract amendment signed by all parties.

"Community Outreach and Communications Plan" shall mean the plan required to be provided under Volume 3-Technical Provisions, Document 1, Section 1.5.

“Completion Deadline(s)” shall mean the Substantial Completion Deadline, Punch List Completion Deadline and/or Final Acceptance Deadline, as the case may be.

“Composite Utility Drawings” shall mean the utility drawings that have been provided to Design-Builder in Volume 3, Document 11, Advanced Conceptual Engineering.

"Conduit" shall mean any conduit, casing, sleeve, hanger, attachment, or blockout for installation or protection of Utilities attached to or installed through structures, or installed under rail or roadway crossings, and any associated pull-ropes for Utility cables.

“Construction Documents” shall mean all Shop Drawings, Working Drawings and samples necessary for construction of the Project in accordance with the Contract Documents.

“Construction Safety and Security Program” shall mean the plans and other elements required to satisfy the safety and security provisions as specified in Section 8.0 of Volume 3-Technical Provisions, Document 1.

"Contract" shall mean, depending on the context, (a) the Design-Build Contract, or (b) collectively, the Contract Documents which establish the respective rights and obligations of Authority and Design-Builder.

"Contract Data Requirements List" shall mean the list set forth in Volume 3-Technical Provisions, Document 1-General Requirements, Appendix A.

“Contract Documents” shall have the meaning set forth in Contract Section 1.2.

“Contract Price” shall have the meaning set forth in Contract Section 7.1.




“County” shall mean Los Angeles County, California.

“Critical Path” shall mean each critical path on the Baseline Schedule or Current Project Schedule, as appropriate, which ends on a Completion Deadline (i.e. the term shall apply only following consumption of all available Float). The lower case term "critical path" shall mean the activities and durations associated with the longest path(s) through the Baseline Schedule or Current Project Schedule, as appropriate.

“Current Project Schedule” shall have the meaning set forth Volume 3- Technical Provisions, Document 1- General Requirements, Section 4.2.

“DBE Performance Plan” shall mean the plan described in DBE Program Section VI.G.1 (as set forth in Appendix A to the DBE Program), following approval thereof by Authority. In addition to the requirements specified in Section VI.G.1, said plan shall include a section stating the Proposer’s commitment to the Authority’s Small Business Concerns policy, describing the steps planned to facilitate small business participation, listing areas of anticipated work to be subcontracted to Small Business Concerns during each fiscal year of the Contract, and describing any other affirmative steps taken or to be taken to ensure nondiscriminatory (on the basis of business size) results and practices in the letting of Subcontracts.

“DBE Program” shall have the meaning set forth in Contract Section 5.6.

"Design-Builder" shall mean the Person identified as Design-Builder on the first page of the Design-Build Contract.

“Design-Build Contract” shall mean that certain Design-Build Contract No. C1150 executed by Authority and Design-Builder, as it may be amended from time to time.

“Design-Builder-Related Entity” shall mean Design-Builder; if Design-Builder is a joint venture, partnership or limited liability company, any joint venture member, partner or member; Subcontractors; their employees, agents and officers; and all other Persons for whom Design-Builder may be legally or contractually responsible.

“Design Documents” shall mean all drawings (including plans, elevations, sections, details and diagrams), Project Specifications, reports, calculations, records and submittals necessary for design of the Project in accordance with the Contract Documents, following final review thereof by Authority and others as required by the Contract Documents.

"Design Load" shall mean all applicable loads and forces or their related internal moments and forces used to proportion members. For "strength design," refers to loads multiplied by the appropriate load factors provided by the applicable codes. “Serviceability design" or "allowable stress" design refers to the loads without load factors.

“Design Manager” shall mean the Person authorized by Design-Builder to manage and monitor the design of the Work.




“Design Package” shall have the meaning set forth in Volume 3, Document 1- General Requirements, Section 2.2.7.

“Designer of Record” shall mean the Person authorized by Design-Builder to sign, and who signs the Approved for Construction documents and revisions thereto.

“Differing Site Conditions” shall have the meaning set forth in Contract Section 8.2.1.

“Directive Letter” shall mean a letter issued by Authority, or its duly authorized designee, directing Design-Builder to proceed with added, deleted or changed Work.

“Disadvantaged Business Enterprise” shall have the meaning set forth in Contract Appendix 6.

“Disputes Board” shall have the meaning set forth in Contract Section 16.2.

“Disputes Board Agreement” shall mean the agreement among Authority, Design-Builder and the members of the Disputes Board as described in Contract Section 16. This agreement shall be in the form of Appendix 9.

“Enhancements” shall mean the Work described in Volume 3-Technical Provisions, Document 2- Performance Specifications, Section 4.

"Environmental Approvals" shall mean the Governmental Approvals and Approval of the draft environmental documents included in Volume 4-Environmental Requirements.

“Environmental Laws” shall mean all Governmental Rules now or hereafter in effect relating to the environment or to emissions, discharges, releases or threatened releases of Hazardous Substances into the environment including into the air, surface water or ground water or onto land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances or otherwise relating to the protection of public health, public welfare or the natural environment (including protection of nonhuman forms of life, land, surface water, groundwater and air), including Section 306 of the Clean Air Act (42 U.S.C. 1857(h)), Section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, Environmental Protection Agency Regulations (40 C.F.R. Part 15) and California Environmental Quality Act (CEQA).

“EPD” or “EPDs” shall have the meaning set forth in Contract Section 19.1.

"Equal" shall mean providing the same function, performance and reliability.

“Event of Default” shall have the meaning set forth in Contract Section 17.

“Excusable Delay” shall have the meaning set forth in Contract Section 12.3.1.

“Final Acceptance” shall have the meaning set forth in Contract Section 13.4.




“Final Acceptance Date” shall mean the date on which Final Acceptance occurs.

“Final Acceptance Deadline” shall have the meaning set forth in Contract Section 6.2.3.

“Final Design” shall mean the engineering phase of the Project that culminates in design products that are fully suitable for construction and advancement of the Project.

“Final Invoice Payment Date” shall have the meaning set forth in Contract Section 7.5.2.

"Finish-out" shall mean all construction work in addition to the basic structure and shell to finish a building, or space completely so that it requires no additional work prior to use for its intended purpose.

“Float” shall have the meaning set forth in Volume 3- Technical Provisions, Document 1- General Requirements, Section 4.6.5.

“Foothill Extension” shall have the meaning set forth in Contract Recital A.

“Force Majeure” shall have the meaning set forth in Contract Section 8.6.2.

“For Record Only” shall have the meaning set forth in Volume 3- Technical Provisions, Document 1- General Requirements, Section 10.8.

“Free Float” shall mean the maximum number of days that the early finish of any activity that can slip without delaying the early start of any of that activity’s successor.

"Funding Agreement" shall mean the Foothill Extension Funding Agreement dated June 30, 2010 by and between Metro and Authority. A copy of said agreement is located in Volume 5- Agreements, Document 16.

“Governmental Approval” shall mean any approval, authorization, certification, consent, decision, exemption, filing, lease, license, permit, registration or ruling, required by or with any Governmental Person in order to design and construct the Project.

“Governmental Person” shall mean any federal, state, local or foreign government and any political subdivision or any governmental, quasi-governmental, judicial, public or statutory instrumentality, administrative agency, authority, body or entity other than Authority.

“Governmental Rule” shall mean any statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement, directive, guideline, criteria, standard, policy requirement or other governmental restriction or any similar form of decision or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Person, which is applicable to the Work or the Project, whether now or hereafter in effect.

"Guaranty" shall mean the document, if any, evidencing Guarantor’s guarantee of performance of the Contract, to be delivered concurrently with the executed Contract in




the form attached to the ITP as Form Q. A copy of the executed Guaranty is attached to the Contract as Appendix 4-3.

"Guarantor" shall mean an entity (if any) required under ITP Section 1.13 to guarantee performance of the Contract.

“Hazardous Substance” shall mean any (a) substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (“CERCLA”); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (“RCRA”); the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the Clean Water Act, 33 U.S.C. Sections 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Sections 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the California Porter-Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as amended, (the above-cited California state statutes are hereinafter collectively referred to as the “State Toxic Substances Laws”) or any other federal, state or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect, (b) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court, (c) petroleum or crude oil excluding de minimus amounts and excluding petroleum and petroleum products contained within regularly operated motor vehicles, and (d) asbestos or asbestos-containing materials in structures and or other improvements on or in the Site (other than mineral asbestos naturally occurring in the ground).

"Incidental Utility Work" shall mean all Work associated with (a) Service Line Relocations, (b) Utility Appurtenance Adjustments, (c) purchases and installations of Conduits, (d) Protections in Place, (e) street and parkway modification and restoration, including resurfacing and restriping of streets (including sidewalks), landscape restoration, and relocation of street lights and traffic signals made necessary by Utility Work (whether performed by Design-Builder or by Utility Owners), (f) potholing, electronic detection and/or surveying to determine Utility locations, (g) design, construction and as-built surveys, (h) obtaining permits required for Utility Work, and (i) abandonment of Utilities, including removal and disposal of abandoned Utilities.

“Indemnified Parties” shall have the meaning set forth in Contract Section 11.1.




"Inspection" shall mean the checking or testing for condition, performance, and safety of equipment against established standards.

"Interface" shall mean the points where two or more functional systems, subsystems, or structures come into physical or functional contact.

“Interim NTP” shall mean a written directive from Authority to Design-Builder, if any, authorizing Design-Builder to begin prosecution of the Work as specified therein as described in Contract Section 6.1.

“Key Personnel” shall have the meaning set forth in Contract Section 2.3.2.

"KIP" shall mean a force equivalent to 1,000 pounds.

“Liens” shall mean any pledge, lien, security interest, mortgage, deed of trust or other charge or encumbrance of any kind, or any other type of preferential arrangement (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature of a security instrument and the filing of or agreement to file any financing statement or other instrument intended to perfect a security interest).

“Liquidated Damages” shall mean the damages payable by Design-Builder to Authority as specified in Contract Section 6.3.

"Main or Trunkline Utility" shall mean a Utility, which is not a Service Line, and which relative to the particular system of which it is a part, (a) is a larger line serving as a main line to connecting tributary lines and (b) serves a larger area, all as reasonably determined by Authority. In so determining, reference may be made by Authority to definitions in the relevant manual or code of the applicable Utility Owner, if any.

"Manufacturer" shall mean the builder or producer supplying materials, equipment or apparatus for installation.

“Master Cooperative Agreement” or “MCA” shall mean any of those certain Master Cooperative Agreements included in Volume 5- Agreements, Documents 2, 3, 4, 5, 6, and 13.9.

“Metro Cooperative Agreement” shall mean the Master Cooperative Agreement for the Metro Gold Line – Phase 2A dated June 30, 2010 by and between Metro and Authority. A copy of said agreement is located in Volume 5- Agreements, Document 1.

“Mitigation Monitoring Program” shall mean the mitigation monitoring program, described in Volume 3- Technical Provisions, Document 1, Section 11.1.

“Monthly Data Date” shall mean the date on a given schedule or report prior to which all Work progress is reported and after which all Work is scheduled to be performed.




“Negative Float” shall have the meaning set forth in Volume 3- Technical Provisions, Document 1- General Requirements, Section 4.2.

“New Utility” shall mean any Utility constructed or installed as a result of the Project for the purpose of providing service to the Project, either directly or indirectly.

“New Utility Work” shall mean the Work associated with (a) the design and/or construction and installation of New Utilities, and (b) the alteration, removal, relocation, replacement, and/or reconstruction of existing Utilities (including provision of temporary facilities as necessary), in order to provide service to the Project, either directly or indirectly. If any Work is undertaken for both the purpose of accommodating or permitting construction of the Project and for the purpose of providing service to the Project, such Work shall be deemed New Utility Work.

“Non-Conformance Report” shall mean a report issued by the Design-Builder’s Quality Manager, the Authority, or other Governmental Person indicating the Work, processes or procedures that do not conform to the Quality Control/Quality Assurance Plan (QCQAP) and any other Contract Documents as well as corrective actions to be taken.

“Non-Conforming Work” shall mean the Work that does not conform to the requirements of the Contract Documents.

“Non-Excusable Delay” shall have the meaning set forth Contract Section 12.3.5.

“Notice of Proposed Change” shall mean a notice issued to Design-Builder by Authority specifying a proposed addition, deduction or change to the Contract Documents. A Notice of Proposed Change is not an order to incorporate revisions into the Work.

“Notice of Termination” and “Notice of Partial Termination” shall mean a notice issued by Authority to terminate the Contract and the performance of Work by Design-Builder, either in whole or in part, pursuant to Contract Section 18.1.

“Notice to Proceed (NTP)” shall mean the written directive from Authority to Design-Builder authorizing Design-Builder to begin prosecution of the Work as specified therein.

“Payment Bond” shall mean the payment bond described in Contract Section 9.2 in the form initially attached to the Contract as Appendix 4-2. A copy of the executed Payment Bond is attached to the Contract as Appendix 4-2.

“Payment Due Date” shall have the meaning set forth in Contract Section 7.3.3.

“Performance Bond” shall mean the performance bond described in Contract Section 9.1 in the form initially attached to the Contract as Appendix 4-1. A copy of the executed Performance Bond is attached to the Contract as Appendix 4-1.

“Person” shall mean any individual, corporation, company, voluntary association, partnership, trust, unincorporated organization, Authority, or Governmental Person.




“Potential Change Order” shall have the meaning set forth in Contract Section 12.2.1.

"Preliminary Schedule" shall mean the Preliminary Schedule included with the Proposal.

“Program Manager” shall mean the Authority’s Chief Project Officer, Hill International, and any such other Person designated in writing by Authority as its Program Manager.

“Project” shall have the meaning set forth in Contract Recital C, and shall also include all other work product to be provided by Design-Builder in accordance with the Contract Documents.

"Project Management Plan" shall mean the plan established by Design-Builder as specified in Volume 3-Technical Provisions, Document 1, Section 1.2.

“Project Manager” shall have the meaning set forth in Contract Section 2.3.1.

"Proof" (used as a suffix) shall mean the device and contents are impervious to, or unharmed by the indicated materials, environment or other outside elements, as in splash proof or dust proof.

“Proposal” shall mean those documents constituting Design-Builder’s proposal in response to the RFP, including any best and final offers or supplements to proposals as may have been requested by Authority.

“Proposal Date” shall mean __________, 2012 [to be provided in execution version].

“Proposal Price” shall mean the amount set forth in Box 1A of Proposal Form S.

"Proposer" shall mean an individual, firm, partnership, corporation, joint venture, or limited liability company which submits a Proposal for the Project.

“Protection in Place” or “Protect in Place” shall mean any activity undertaken to avoid damaging a Utility which does not involve removing or relocating that Utility, including staking the location of a Utility, avoidance of a Utility’s location by construction equipment, installing steel plating or concrete slabs, encasement in concrete, temporarily de-energizing power lines, and installing physical barriers. For example, temporarily lifting power lines without cutting them would be considered Protection in Place; whereas temporarily moving power lines to another location after cutting them would not be considered Protection in Place.

"Proven Design" shall mean, as used here, those technologies that have been successfully deployed in day-to-day service in rail transit applications in North America.

"Provide" shall mean design, construct, furnish, install, and test complete in place.

"Provisional Sum" shall have the meaning set forth in Contract Section 7.1.2.




“Provisional Sum Authorization” shall mean the written authorization from Authority to perform the Provisional Sum tasks as set forth in Contract Section 7.1.2.

“Punch List” shall mean the list of Work with respect to the Project which remains to be completed after achievement of Substantial Completion of the Project, and shall generally be limited to minor incidental items of Work necessary to correct imperfections which have no adverse effect on the safety or operability of the Project but which must be completed as a condition of Punch List Completion.

"Punch List Completion" shall have the meaning set forth in Contract Section 13.3.

“Punch List Completion Deadline” shall have the meaning set forth in Contract Section 6.2.2.

“Quality Control/Quality Assurance Plan” shall mean those plans described in Volume 3-Technical Provisions, Document 1, Section 5.

“Railroad Agreement” shall mean (a) that certain Shared Use Agreement between BNSF and Metro as successors to Atchinson, Topeka and Santa Fe Railway Company and Los Angeles County Transportation Commission respectively (such Shared Use Agreement is attached hereto as Volume 5- Agreements, Document 11 and 11.1), and as may be amended from time to time, and (b) that certain Agreement Regarding Interim Use of Tracks between Union Pacific and Metro as successors to Southern Pacific Transportation Company and Los Angeles County Transportation Commission (such agreement is attached hereto as Volume 5- Agreements, Document 10.1), and as may be amended from time to time.

“Railroad Operator” shall mean Southern California Regional Rail Authority (SCRRA, a joint powers authority existing under the laws of the State of California), Union Pacifric and/or BNSF.

“Record Documents” shall mean the documents to be provided by Design-Builder as described in Volume 3-Technical Provisions, Document 1, Section 7.0.

"Recovery Schedule" shall mean the schedule Design-Builder is required to provide under Volume 3-Technical Provisions, Document 1- General Requirements, Section 4.8.1.

“Reference Documents” shall mean the documents designated in the RFP as "Reference Documents."

“Regulations” shall have the meaning set forth in Contract Section 16.6.2.11.

“Rejected, Revise and Re-Submit” shall have the meaning set forth in Volume 3- Technical Provisions, Document 1- General Requirements, Section 10.8

"Reliability" shall mean the probability that a system, subsystem, component or part will perform satisfactorily when used under stated conditions for a stated period of time.




“Relocation” shall mean each alteration, removal, relocation, replacement, reconstruction, support, including provision of temporary facilities as necessary, of any and all Utilities that is necessary in order to accommodate or permit construction of the Project.

“Request for Change Order” shall mean a written request from the Design-Builder to increase the Contract Price or Completion Deadline.

“Request for Information” or “RFI” shall mean a written request submitted by the Design-Builder internally or to the Authority, detailing any need for clarification or information on a portion of the Work or the Contract.

“Request for Proposals” or “RFP” shall mean Request for Proposals No. C1150 regarding the Project issued by Authority, including all addenda and attachments thereto.

“Retainage” shall have the meaning set forth in Contract Section 7.4.1.

“Revenue Operations Date” shall mean the date Metro commences revenue operations for the Project.

"RFC Notice" shall have the meaning set forth in Contract Section 12.5.1.

“Right of Way” shall mean the real property (which term is inclusive of all estates and interests in real property) which is necessary for ownership and operation of the Project. The term specifically excludes:

(a) the Utility Easements; and

(b) any temporary easements or other real property interests which Design-Builder deems necessary or advisable in connection with performance of the Work.

The term ‘Right of Way’ is sometimes used to mean Project right of way and is sometimes used to mean rights of way for other facilities.

"Safety" shall mean freedom from those conditions that can cause death, injury, occupational illness, or damage to or loss of equipment.

“Schedule of Values” shall mean the schedule of all items, activities, and work necessary to complete the Work developed in accordance with Contract Section 7.2 and Volume 3- Technical Provisions, Document 1- General Requirements, Section 4.6.4.

“Schedule Activity” shall mean any of the items included on the Schedule of Values approved by Authority and as described in Contract Section 7.2.1.1.




“Service Line” shall mean a Utility line, the function of which is to connect an individual service location (e.g., a single family residence or an industrial warehouse) to another Utility line which connects more than one such individual line to a larger system. The term “Service Line” also includes any Utility on public or private property that services structures located on such property.

"Service Load" shall mean live and dead loads as specified in these Technical Provisions without load factors.

“Settlor” shall mean Metro, in its capacity as settlor under the Trust.

“Shop Drawings” shall mean original drawings, plans, diagrams, schedules and other data specifically prepared for the Work by the Design-Builder or any of its subcontractors or suppliers of any tier, and which show in detail:

1. The proposed fabrication and assembly of a specific portion of the Work; and 2. The installation (form, fit and attachment details) of a specific portion of the Work.

Shop drawings shall include product data, literature, and performance and test data, as appropriate.

“Site” shall mean those areas designated in writing by Authority for performance of Work and such additional areas as may, from time to time, be designated in writing by Authority for Design-Builder’s use in performance of the Work. The Site initially includes the area within the planned Right of Way. For purposes of indemnification, safety and security requirements and payment for use of equipment the term “Site” also includes any areas on which Utility Work is performed and any property being temporarily used by Design-Builder for storage of equipment and/or construction Work.

“Site Conditions Baseline Report” shall mean Volume 3- Technical Provisions, Document 10- Geotechnical Reports.

"Specifications" shall mean various specification documents as referenced in the Technical Provisions.

“State Arbitration Act” shall have the meaning set forth in Contract Section 16.6.2.11.

“Statement of Qualifications” shall mean Design-Builder’s response to Authority’s Request for Qualifications, submitted on May 15, 2012, as amended, in connection with the Project.

“Small Business Concern” shall have the meaning assigned such term in the DBE Program.

“Specifications” shall mean the Standard Specifications of the California Department of Transportation, Business and Transportation Agency, dated 2010.

“Subcontract” shall mean any subcontract to perform any part of the Work or provide any materials, equipment or supplies for any part of the Work between Design-Builder




and a Subcontractor, or between any Subcontractor and its lower tier Subcontractor, at any tier.

“Subcontractor” shall mean any Person with whom Design-Builder has entered into any Subcontract, and any other Person with whom any Subcontractor has further subcontracted any part of the Work, at any tier.

“Substantial Completion” shall mean completion of all elements of the Project in accordance with the Contract Documents as described in Contract Section 13.2.

“Substantial Completion Deadline” shall have the meaning set forth in Contract Section 6.2.1.

"Supplier" shall mean any Person, other than employees of Design-Builder, not performing work at the Site, that supplies machinery, equipment, materials or systems to Design-Builder or any Subcontractor in connection with the performance of the Work. The term "Supplier" includes fabricators and material dealers.

“Surety” shall mean each properly licensed surety company approved by Authority which issued the Payment Bond and/or the Performance Bond.

“Technical Provisions” shall mean Volume 3 of the RFP.

“T&M Cost Summary Report” shall mean an electronically-generated report summarizing the Time and Materials Change Order reports described in Contract Section 12.8.6.4.

“Time and Materials Change Order” shall have the meaning set forth in Contract Section 12.8.

“Total Amount” shall have the meaning set forth in Contract Section 7.1.3.

"Truck" shall mean a vehicle undercarriage assembly containing wheels and axles, motors, gearboxes, brakes, collectors, cable, piping, etc.

“Trust” shall mean the trust established pursuant to the Trust Agreement.

“Trust Agreement” shall mean that certain document entitled Los Angeles - Pasadena Metro Blue Line Governmental Purpose Property Trust Agreement dated as of August 19, 1999, between Metro as settlor and Authority as trustee, as it may be amended from time to time. A copy of the Trust Agreement is included in RFP Volume 5.

“Trustee” shall mean Authority, in its capacity as trustee of the Trust, and not in its individual capacity.

“Union Pacific” shall mean Union Pacific Railroad (formerly known as the Southern Pacific Transportation Company), headquartered in Omaha, NE.




“Utility” shall mean a privately, publicly, or cooperatively owned line, facility or system (including municipal and/or government lines, facilities and systems) for transmitting or distributing communications, cable television, power, electricity, gas, oil, crude products, water, steam, sewage, waste, storm water not connected with drainage of the property on which the Project is to be constructed, or any other similar commodity that directly or indirectly serves the public, including any fire or police signal system. The necessary appurtenances to each Utility facility shall be considered part of such Utility. Without limitation, any Service Line connecting directly to a Utility shall be considered an appurtenance to that Utility, regardless of the ownership of such Service Line. When used in the context of the removal, relocation and/or protection of facilities to accommodate the Project, the term “Utility” or “utility” specifically includes traffic signals and specifically excludes street lights, crossing equipment, as well as any electrical conduits and feeds providing service to such facilities. For this purpose, all electrical lines that connect (directly or indirectly) to traffic signals, street lights, and/or crossing equipment shall be deemed to provide service to such facilities if they do not carry electricity that will serve any other types of facilities.

"Utility Appurtenance Adjustment" shall mean the adjustment of Utility appurtenances (e.g. manholes, valve boxes, and vaults) for line and grade upon completion of roadway work.

“Utility Easement” shall mean a permanent replacement easement and/or other interest in real property located outside of the Right of Way limits that is necessary for Utility Work.

“Utility Owner” shall mean the owner or operator of any Utility (including both privately held and publicly held entities, cooperative utilities, municipalities and other governmental agencies).

“Utility Work” shall mean all Work associated with Utilities, including Design-Builder’s obligation to coordinate with Utility Owners and make payments to Utility Owners relating to Relocations, New Utilities, as well as activities to be performed in accordance with Volume 3-Technical Provisions, Document 2- Performance Specifications, Section 4.0.

“Value Engineering Change Proposals (VECPs)” shall have the meaning set forth in Contract Section 15.

“Warranties” shall mean the warranties made by Design-Builder in Contract Section 14.

“Work” shall mean all of the administrative, design, engineering, Utility Work, procurement, legal, professional, manufacturing, supply, installation, construction, supervision, management, testing, verification, labor, materials, equipment, documentation and other duties and services to be furnished and provided by Design-Builder as required by the Contract Documents, including all efforts necessary or appropriate to achieve Final Acceptance of the Project except for those efforts which the




Contract or Technical Provisions specify will be performed by Authority or other Persons. In certain cases the term is also used to mean the products of the Work.

"Working Days" shall mean those days during which Authority conducts regular business.

“Working Drawings” shall mean plans for temporary structures such as decking, temporary bulkheads, support of excavation, support of Utilities, groundwater control systems, and forming and falsework for underpinning and for such other work as may be required for construction but which does not become an integral part of the completed Project.




APPENDIX 2

LABOR CODE REQUIREMENTS

A. Worker’s Compensation

Design-Builder shall comply with the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code.

B. Prevailing Wages

Pursuant to the provisions of Section 1773 of the State Labor Code, Authority has obtained the general prevailing rate of wages (which rate includes employer payments for health and welfare, pension, vacation, travel time and subsistence pay as provided for in Section 1773.8 of said Code, apprenticeship or other training programs authorized by Section 3093 of said Code, and similar purposes) applicable to the Work to be done, for straight time, overtime, Saturday, Sunday, and holiday work. The holiday wage rate listed shall be applicable to all holidays recognized in the collective bargaining agreement of the particular craft, classification or type of worker concerned. Copies of the prevailing rates of wages are on file at Authority's offices, and will be furnished to Design-Builder and other interested parties on request. For crafts or classifications not shown on the prevailing wage determinations, Design-Builder may be required to pay the wage rate of the most closely related craft or classification shown in such determinations for design-build Work.

C. Hours of Work

Eight hours labor constitutes a legal day's work.

D. Specific Labor Code Provisions

Design-Builder’s attention is directed to the following requirements of the Labor Code. A copy of each such Code section shall be included in each subcontract hereunder:

Labor Code Section 1771

1771. Except for public works projects of one thousand dollars ($1,000) or less, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all workers employed on public works.

This section is applicable only to work performed under contract, and is not applicable to work carried out by a public agency with its own forces. This section is applicable to contracts let for maintenance work.





1775. (a) (1) The contractor and any subcontractor under the contractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit not more than fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates as determined by the director for the work or craft in which the worker is employed for any public work done under the contract by the contractor or, except as provided in subdivision (b), by any subcontractor under the contractor.

(2) (A) The amount of the penalty shall be determined by the Labor Commissioner based on consideration of both of the following:

(i) Whether the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor.

(ii) Whether the contractor or subcontractor has a prior record of failing to meet its prevailing wage obligations.

(B) (i) The penalty may not be less than ten dollars ($10) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, unless the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor.

(ii) The penalty may not be less than twenty dollars ($20) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the contractor or subcontractor has been assessed penalties within the previous three years for failing to meet its prevailing wage obligations on a separate contract, unless those penalties were subsequently withdrawn or overturned.

(iii) The penalty may not be less than thirty dollars ($30) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the Labor Commissioner determines that the violation was willful, as defined in subdivision (c) of Section 1777.1.

(C) When the amount due under this section is collected from the contractor or subcontractor, any outstanding wage claim under Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 against that contractor or subcontractor shall be satisfied before applying that amount to the penalty imposed on that contractor or subcontractor pursuant to this section.

(D) The determination of the Labor Commissioner as to the amount of the penalty shall be reviewable only for abuse of discretion.

(E) The difference between the 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 contractor or subcontractor, and the body awarding the contract shall cause to be inserted in the contract a stipulation that this section will be complied with.

(b) If a worker employed by a subcontractor on a public works project is not paid the general prevailing rate of per diem wages by the subcontractor, the prime contractor of the project is not liable for any penalties under subdivision (a) unless the prime contractor had knowledge of that failure of the subcontractor to pay the specified prevailing rate of wages to those workers or unless the prime contractor fails to comply with all of the following requirements:

(1) The contract executed between the contractor and the subcontractor for the performance of work on the public works project shall include a copy of the provisions of Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.

(2) The contractor shall monitor the payment of the specified general prevailing rate of per diem wages by the subcontractor to the employees, by periodic review of the certified payroll records of the subcontractor.

(3) Upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages, the contractor shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for work performed on the public works project.

(4) Prior to making final payment to the subcontractor for work performed on the public works project, the contractor shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages to his or her employees on the public works project and any amounts due pursuant to Section 1813.

(c) The Division of Labor Standards Enforcement shall notify the contractor on a public works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a complaint of the failure of a subcontractor on that public works project to pay workers the general prevailing rate of per diem wages.


1776. (a) Each contractor and subcontractor shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:

(1) The information contained in the payroll record is true and correct.

(2) The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by his or her employees on the public works project.




(b) The payroll records enumerated under subdivision (a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the contractor on the following basis:

(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request.

(2) A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of the body awarding the contract, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards of the Department of Industrial Relations.

(3) A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the contractor, subcontractors, and the entity through which the request was made. The public may not be given access to the records at the principal office of the contractor.

(c) The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division. The payroll records may consist of printouts of payroll data that are maintained as computer records, if the printouts contain the same information as the forms provided by the division and the printouts are verified in the manner specified in subdivision (a).

(d) A contractor or subcontractor shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested the records within 10 days after receipt of a written request.

(e) Except as provided in subdivision (f) any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the awarding body, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement shall be marked or obliterated to prevent disclosure of an individual's name, address, and social security number. The name and address of the contractor awarded the contract or the subcontractor performing the contract shall not be marked or obliterated. Any copy of records made available for inspection by, or furnished to, a joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to prevent disclosure of an individual's name and social security number. A joint labor management committee may maintain an action in a court of competent jurisdiction against an employer who fails to comply with Section 1774. The court may award restitution to an employee for unpaid wages and may award the joint




labor management committee reasonable attorney's fees and costs incurred in maintaining the action. An action under this subdivision may not be based on the employer's misclassification of the craft of a worker on its certified payroll records. Nothing in this subdivision limits any other available remedies for a violation of this chapter.

(f)(1) Notwithstanding any other provision of law, agencies that are included in the Joint Enforcement Strike Force on the Underground Economy established pursuant to Section 329 of the Unemployment Insurance Code and other law enforcement agencies investigating violations of law shall, upon request, be provided nonredacted copies of certified payroll records. Any copies of records or certified payroll made available for inspection and furnished upon request to the public by an agency included in the Joint Enforcement Strike Force on the Underground Economy or to a law enforcement agency investigating a violation of law shall be marked or redacted to prevent disclosure of an individual’s name, address, and social security number.

(2) An employer shall not be liable for damages in a civil action for any reasonable act or omission taken in good faith in compliance with this subdivision.

(g) The contractor shall inform the body awarding the contract of the location of the records enumerated under subdivision (a), including the street address, city, and county, and shall, within five working days, provide a notice of a change of location and address.

(h) The contractor or subcontractor has 10 days in which to comply subsequent to receipt of a written notice requesting the records enumerated in subdivision (a). In the event that the contractor or subcontractor fails to comply within the 10-day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. A contractor is not subject to a penalty assessment pursuant to this section due to the failure of a subcontractor to comply with this section.

(i) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section.

(j) The director shall adopt rules consistent with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Information Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of Division 3 of the Civil Code) governing the release of these records, including the establishment of reasonable fees to be charged for reproducing copies of records required by this section.

Regulations implementing Labor Code Section 1776 are located in Sections 16000, 16400, 16401, 16402, 16403, and 16500 of Title 8, California Code of Regulations.




Labor Code Section 1777.5

1777.5. (a) Nothing in this chapter shall prevent the employment of properly registered apprentices upon public works.

(b) Every apprentice employed upon public works shall be paid the prevailing rate of per diem wages for apprentices in the trade to which he or she is registered and shall be employed only at the work of the craft or trade to which he or she is registered.

(c) Only apprentices, as defined in Section 3077, who are in training under apprenticeship standards that have been approved by the Chief of the Division of Apprenticeship Standards and who are parties to written apprentice agreements under Chapter 4 (commencing with Section 3070) of Division 3 are eligible to be employed at the apprentice wage rate on public works. The employment and training of each apprentice shall be in accordance with either of the following:

(1) The apprenticeship standards and apprentice agreements under which he or she is training.

(2) The rules and regulations of the California Apprenticeship Council.

(d) When the contractor to whom the contract is awarded by the state or any political subdivision, in performing any of the work under the contract, employs workers in any apprenticeable craft or trade, the contractor shall employ apprentices in at least the ratio set forth in this section and may apply to any apprenticeship program in the craft or trade that can provide apprentices to the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. However, the decision of the apprenticeship program to approve or deny a certificate shall be subject to review by the Administrator of Apprenticeship. The apprenticeship program or programs, upon approving the contractor, shall arrange for the dispatch of apprentices to the contractor. A contractor covered by an apprenticeship program's standards shall not be required to submit any additional application in order to include additional public works contracts under that program.

"Apprenticeable craft or trade," as used in this section, means a craft or trade determined as an apprenticeable occupation in accordance with rules and regulations prescribed by the California Apprenticeship Council. As used in this section, "contractor" includes any subcontractor under a contractor who performs any public works not excluded by subdivision (o).

(e) Prior to commencing work on a contract for public works, every contractor shall submit contract award information to an applicable apprenticeship program that can supply apprentices to the site of the public work. The information submitted shall include an estimate of journeyman hours to be performed under the contract, the number of apprentices proposed to be employed, and the approximate dates the apprentices would be employed. A copy of this information shall also be submitted to the awarding body if requested by the awarding body.




Within 60 days after concluding work on the contract, each contractor and subcontractor shall submit to the awarding body, if requested, and to the apprenticeship program a verified statement of the journeyman and apprentice hours performed on the contract. The information under this subdivision shall be public. The apprenticeship programs shall retain this information for 12 months.

(f) The apprenticeship program that can supply apprentices to the area of the site of the public work shall ensure equal employment and affirmative action in apprenticeship for women and minorities.

(g) The ratio of work performed by apprentices to journeymen employed in a particular craft or trade on the public work may be no higher than the ratio stipulated in the apprenticeship standards under which the apprenticeship program operates where the contractor agrees to be bound by those standards, but, except as otherwise provided in this section, in no case shall the ratio be less than one hour of apprentice work for every five hours of journeyman work.

(h) This ratio of apprentice work to journeyman work shall apply during any day or portion of a day when any journeyman is employed at the jobsite and shall be computed on the basis of the hours worked during the day by journeymen so employed. Any work performed by a journeyman in excess of eight hours per day or 40 hours per week shall not be used to calculate the ratio. The contractor shall employ apprentices for the number of hours computed as above before the end of the contract or, in the case of a subcontractor, before the end of the subcontract. However, the contractor shall endeavor, to the greatest extent possible, to employ apprentices during the same time period that the journeymen in the same craft or trade are employed at the jobsite. Where an hourly apprenticeship ratio is not feasible for a particular craft or trade, the Chief of the Division of Apprenticeship Standards, upon application of an apprenticeship program, may order a minimum ratio of not less than one apprentice for each five journeymen in a craft or trade classification.

(i) A contractor covered by this section that has agreed to be covered by an apprenticeship program's standards upon the issuance of the approval certificate, or that has been previously approved for an apprenticeship program in the craft or trade, shall employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the applicable apprenticeship standards, but in no event less than the 1-to-5 ratio required by subdivision (g).

(j) Upon proper showing by a contractor that he or she employs apprentices in a particular craft or trade in the state on all of his or her contracts on an annual average of not less than one hour of apprentice work for every five hours of labor performed by journeymen, the Chief of the Division of Apprenticeship Standards may grant a certificate exempting the contractor from the 1-to-5 hourly ratio, as set forth in this section for that craft or trade.

(k) An apprenticeship program has the discretion to grant to a participating contractor or contractor association a certificate, which shall be subject to the approval




of the Administrator of Apprenticeship, exempting the contractor from the 1-to-5 ratio set forth in this section when it finds that any one of the following conditions is met:

(1) Unemployment for the previous three-month period in the area exceeds an average of 15 percent.

(2) The number of apprentices in training in the area exceeds a ratio of 1 to 5.

(3) There is a showing that the apprenticeable craft or trade is replacing at least one-thirtieth of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis.

(4) Assignment of an apprentice to any work performed under a public works contract would create a condition that would jeopardize his or her life or the life, safety, or property of fellow employees or the public at large, or the specific task to which the apprentice is to be assigned is of a nature that training cannot be provided by a journeyman.

(l) When an exemption is granted pursuant to subdivision (k) to an organization that represents contractors in a specific trade from the 1-to-5 ratio on a local or statewide basis, the member contractors shall not be required to submit individual applications for approval to local joint apprenticeship committees, if they are already covered by the local apprenticeship standards.

(m) (1) A contractor to whom a contract is awarded, who, in performing any of the work under the contract, employs journeymen or apprentices in any apprenticeable craft or trade shall contribute to the California Apprenticeship Council the same amount that the director determines is the prevailing amount of apprenticeship training contributions in the area of the public works site. A contractor may take as a credit for payments to the council any amounts paid by the contractor to an approved apprenticeship program that can supply apprentices to the site of the public works project. The contractor may add the amount of the contributions in computing his or her bid for the contract.

(2) At the conclusion of the 2002-03 fiscal year and each fiscal year thereafter, the California Apprenticeship Council shall distribute training contributions received by the council under this subdivision, less the expenses of the Division of Apprenticeship Standards for administering this subdivision, by making grants to approved apprenticeship programs for the purpose of training apprentices. The funds shall be distributed as follows:

(A) If there is an approved multiemployer apprenticeship program serving the same craft or trade and geographic area for which the training contributions were made to the council, a grant to that program shall be made.

(B) If there are two or more approved multiemployer apprenticeship programs serving the same craft or trade and geographic area for which the training contributions were made to the council, the grant shall be divided among those programs based on the number of apprentices registered in each program.




(C) All training contributions not distributed under subparagraphs (A) and (B) shall be used to defray the future expenses of the Division of Apprenticeship Standards.

(3) All training contributions received pursuant to this subdivision shall be deposited in the Apprenticeship Training Contribution Fund, which is hereby created in the State Treasury. Upon appropriation by the Legislature, all money in the Apprenticeship Training Contribution Fund is hereby continuously appropriated for the purpose of carrying out this subdivision and to pay the expenses of the Division of Apprenticeship Standards.

(n) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section. The stipulations shall fix the responsibility of compliance with this section for all apprenticeable occupations with the prime contractor.

(o) This section does not apply to contracts of general contractors or to contracts of specialty contractors not bidding for work through a general or prime contractor when the contracts of general contractors or those specialty contractors involve less than thirty thousand dollars ($30,000).

(p) All decisions of an apprenticeship program under this section are subject to Section 3081.


1813. The contractor or subcontractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit twenty-five dollars ($25) for each worker employed in the execution of the contract by the respective contractor or subcontractor for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of this article. In awarding any contract for public work, the awarding body shall cause to be inserted in the contract a stipulation to this effect. The awarding body shall take cognizance of all violations of this article committed in the course of the execution of the contract, and shall report them to the Division of Labor Standards Enforcement.


1815. Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code, and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 11/2 times the basic rate of pay.

E. Labor Nondiscrimination




Design-Builder’s attention is directed to Section 1735 of the Labor Code, which reads as follows:

"A contractor shall not discriminate in the employment of persons upon public works on any basis listed in subdivision (a) of Section 12940 of the Government Code, as those bases are defined in Sections 12926 and 12926.1 of the Government Code, except as otherwise provided in Section 12940 of the Government Code. Every contractor for public works who violates this section is subject to all the penalties imposed for a violation of this chapter."

Design-Builder’s attention is directed to the following "Nondiscrimination Clause" that is required by Chapter 5 of Division 4 of Title 2, California Code of Regulations.

Nondiscrimination Clause

1. During the performance of this contract, contractor and its subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age (over 40) or sex. Contractors and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. Contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12990, set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this contract by reference and made a part hereof as if set forth in full. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.

2. This Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the contract.




APPENDIX 3

FEDERAL REQUIREMENTS

3-1: FEDERAL REQUIREMENTS

3-2: GENERAL WAGE DECISIONS

3-3: CERTIFICATE REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION

3-4: CERTIFICATE REGARDING LOBBYING

3-5: EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATE

METRO GOLD LINE FOOTHILL EXTENSION APPENDIX 3-1 INTERMODAL PARKING FACILITIES AND ENHANCEMENTS



APPENDIX 3-1

FEDERAL REQUIREMENTS

The Design-Builder understands that Authority intends to apply for FTA funding for the Foothill Extension and acknowledges that as a result the Authority has determined that federal laws, regulations, policies, and related administrative procedures shall apply to the Contract as set forth herein. The Design-Builder will comply with all applicable federal laws, regulations, policies, and related administrative practices. The most recent of such federal laws, regulations, policies and related administrative practices at the time will govern the Project, unless FTA issues a written determination otherwise. The Design-Builder shall ensure compliance by its Subcontractors with and include appropriate flow down provisions in each of its lower-tier Subcontracts as required by applicable federal laws, regulations, policies, and related administrative practices, whether or not required herein.

1. COMPLIANCE WITH FEDERAL REQUIREMENTS

Design-Builder shall at all times comply with all applicable Federal Transit Administration (FTA) regulations, policies, procedures and directives, which may be found on the FTA website, including without limitation those listed directly or by reference in the FTA Master Agreement (Form FTA MA(15)), as they may be amended or promulgated from time to time during the term of this Contract. Design-Builder's failure to so comply shall constitute a material breach of this Contract.

2. ACCESS REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES

The Design-Builder agrees to comply with, and assure that any Subcontractor under this Contract complies with all applicable requirements regarding Access for Individuals with Disabilities contained in the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq.; section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; 49 U.S.C. § 5301(d); and any other applicable federal regulations, including any amendments thereto.

3. ENVIRONMENTAL REQUIREMENTS

The Design-Builder and any Subcontractor under this Contract shall comply with all applicable environmental requirements and regulations, including any amendments, as follows:

A. Clean Air.

1. The Design-Builder 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 Design-Builder agrees to report each violation to Authority and understands and agrees that Authority will, in turn, report each violation as required to assure notification to Federal




Transit Administration (FTA) and the appropriate Environmental Protection Agency Regional Office.

2. The Design-Builder also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

B. Clean Water.

1. The Design-Builder 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 Design-Builder agrees to report each violation to Authority and understands and agrees that Authority will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

2. The Design-Builder also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

C. Energy Conservation. The Design-Builder agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

D. Environmental Protection. The Design-Builder shall comply with all applicable requirements of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321 et seq.

4. RECYCLED PRODUCTS

The Design-Builder agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 C.F.R. Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 C.F.R. Part 247.

5. FLY AMERICA

The Design-Builder agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 C.F.R. Part 301-10, which provide that recipients and subrecipients of federal funds and their contractors are required to use U.S. flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Design-Builder shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was




necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Design-Builder agrees to include the requirements of this section in all Subcontracts that may involve international air transportation.

6. RESTRICTIONS ON LOBBYING

Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 C.F.R. part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contracts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. See form entitled "Certification of Restrictions on Lobbying".

7. FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS

A. The Design-Builder acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U. S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying Contract, the Design-Builder certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Contract or the FTA assisted project for which this Contract Work is being performed. In addition to other penalties that may be applicable, the Design-Builder further acknowledges that if it makes or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Design-Builder to the extent the Federal Government deems appropriate.

B. The Design-Builder also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U. S. C. § 1001 and 49 U.S.C. § 5307 (n) (1) on the Design-Builder, to the extent the Federal Government deems appropriate.

C. The Design-Builder agrees to include the above two (2) clauses in each Subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the Subcontractor who will be subject to the provisions.




8. NO OBLIGATION BY THE FEDERAL GOVERNMENT

A. Authority and the Design-Builder acknowledge and agree that, notwithstanding any concurrence by the federal government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the federal government, the federal government is not a party to this Contract and shall not be subject to any obligations or liabilities to Authority, Design-Builder, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract.

B. The Design-Builder agrees to include the above clause in each Subcontract financed in whole or in part with federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the Subcontractor who will be subject to its provisions.

9. DEBARMENT AND SUSPENSION

A. This Contract is a covered transaction for purposes of 2 C.F.R. Part 29. As such, the Design-Builder is required to verify that none of the Design-Builder, its principals, as defined at 2 C.F.R. 1200.995, or affiliates, as defined at 2 C.F.R. 1200.905, are excluded or disqualified as defined at 2 C.F.R. 1200.945 and 29.940. During the term of this Contract, the Design-Builder shall inform Authority of any change in the suspension or debarment status of the Design-Builder or of its affiliates or principals within ten days after such change occurs.

B. The Design-Builder is required to comply with 2 C.F.R. 29, Subpart C and must include the requirement to comply with 2 C.F.R. 29, Subpart C in any lower tier covered transaction it enters into.

C. The Design-Builder has submitted Certifications Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction, for the Design-Builder.

The certification identified in this clause is a material representation of fact relied upon by Authority. If it is later determined that the Design-Builder knowingly rendered an erroneous certification, in addition to remedies available to Authority, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The Design-Builder agrees to comply with the requirements of 2 C.F.R. 29, Subpart C throughout the period of any Contract that may arise from this offer. The Design-Builder further agrees to include a provision requiring such compliance in its lower tier covered transactions.

10. CIVIL RIGHTS

The following requirements apply to the Agreement:

(1) Nondiscrimination – In accordance with Title VI of the Civil Rights Act, as amended; 42 U.S.C. §2000d, section 303 of the Age Discrimination Act of




1975, as amended; 42 U.S.C. §6102, section 202 of the Americans with Disabilities Act of 1990; 42 U.S.C. §12132; and federal transit law at 49 U.S.C. §5332, the Design-Builder agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Design-Builder agrees to comply with applicable federal implementing regulations and other implementing requirements that FTA may issue.

(2) Equal Employment Opportunity – The following equal employment opportunity requirements apply to the Agreement:

(a) Race, Color, Creed, National Origin, Sex –

In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. §2000e, and federal transit laws at 49 U.S.C. §5332, the Design-Builder agrees to comply with all applicable equal opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor, “ 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, “Equal Employment Opportunity,” as amended by Executive Order No. 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” 42 U.S.C. § 2000e note), and with any applicable federal statutes, executive orders, regulations, and federal policies that may in the future affect construction activities undertaken in the course of the Project. The Design-Builder agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Design-Builder agrees to comply with any implementing requirements FTA may issue.

(b) Age –

In accordance with Section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623 and federal transit law at 49 U.S.C. § 5332, the Design-Builder agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Design-Builder agrees to comply with any implementing requirements FTA may issue.

(c) Disabilities –

In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. §12112, the Design-Builder agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, “Regulations to Implement the Equal Employment




Provisions of the Americans with Disabilities Act,” 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Design-Builder agrees to comply with any implementing requirements FTA may issue.

(3) The Design-Builder also agrees to include these requirements in each subcontract financed in whole or in part with federal assistance provided by FTA, modified only if necessary to identify the affected parties.

11. ACCESS TO RECORDS

A. The Design-Builder agrees to provide Authority, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Design-Builder which are directly pertinent to this Contract for the purposes of making audits, examinations, excerpts and transcriptions. Design-Builder also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Design-Builder access to Design-Builder's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311.

B. The Design-Builder agrees to provide Authority, the FTA Administrator or his authorized representatives, including any PMO Design-Builder, access to the Design-Builder's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $100,000.

C. Where Authority enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Design-Builder shall make available records related to the Contract to Authority, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection.

D. The Design-Builder agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

E. The Design-Builder agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Design-Builder agrees to maintain same until Authority, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 C.F.R. 18.39(i)(11).

F. FTA does not require the inclusion of these requirements in Subcontracts.




12. CONTRACTS INVOLVING FEDERAL PRIVACY ACT REQUIREMENTS

The following requirements apply to the Design-Builder and its employees that administer any system of records on behalf of the federal government under any contract:

(1) The Design-Builder agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, the Design-Builder agrees to obtain the express consent of the federal government before the Design-Builder or its employees operate a system of records on behalf of the federal government. The Design-Builder understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract.

(2) The Design-Builder also agrees to include these requirements in each Subcontract to administer any system of records on behalf of the federal government financed in whole or in part with federal assistance provided by FTA.

13. SEISMIC SAFETY

The Design-Builder agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 C.F.R. Part 41, and will certify to compliance to the extent required by the regulation. The Design-Builder also agrees to ensure that all work performed under this Agreement including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project.

14. DISADVANTAGED BUSINESS ENTERPRISES

A. The Contract is subject to the applicable requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The Authority’s overall goal for DBE participation is 2.3%. A separate contract goal has not been established for this procurement.

B. The Design-Builder shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. The Design-Builder shall carry out applicable requirements of 49 C.F.R. Part 26 in the award and administration of this DOT-assisted Contract. Failure by the Design-Builder to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy as Authority deems appropriate. Each Subcontract the Design-




Builder signs with a Subcontractor must include the assurance in this paragraph (see 49 C.F.R. 26.13(b)).

C. Award of this Contract is conditioned on compliance with the Authority DBE Program as described in the Contract. The Design-Builder will be required to report its DBE participation obtained through race-neutral means throughout the period of performance.

D. The Design-Builder is required to pay its Subcontractors performing Work related to this Contract for satisfactory performance of that Work no later than 30 days after the Design-Builder’s receipt of payment for that Work from Authority.

15. BUY AMERICA

A. The Design-Builder agrees to comply with 49 U.S.C. 5323(j) and 49 C.F.R. Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. 661.7.

B. Appropriate Buy America certifications in the following form shall be provided with the executed Contract and with each Request for Change (RFC) that includes steel, iron, and manufactured products. Authority will not approve such RFC unless the completed Buy America certification is provided. If a Certificate of Non-Compliance is provided, the RFC will be accepted only if Authority determines that an exception to the Buy America requirements applies.

Certification requirement for procurement of steel, iron, or manufactured products.

Certificate of Compliance with 49 U.S.C. 5323(j)(1)

The Design-Builder hereby certifies that it will meet the requirements of 49 U.S.C. 5323(j)(1) and the applicable regulations in 49 C.F.R. Part 661.5.

Date Signature Company Name Title

Certificate of Non-Compliance with 49 U.S.C. 5323(j)(1)

The Design-Builder hereby certifies that it cannot comply with the requirements of 49 U.S.C. 5323(j)(1) and 49 C.F.R. 661.5, but it may qualify for an exception pursuant to 49 U.S.C. 5323(j)(2)(A), 5323(j)(2)(B), or 5323(j)(2)(D), and 49 C.F.R. 661.7.

Date Signature




Company Name Title

Certification requirement for procurement of buses, other rolling stock and associated equipment.

Certificate of Compliance with 49 U.S.C. 5323(j)(2)(C).

The Design-Builder hereby certifies that it will comply with the requirements of 49 U.S.C. 5323(j)(2)(C) and the regulations at 49 C.F.R. Part 661.11.


Certificate of Non-Compliance with 49 U.S.C. 5323(j)(2)(C)

The Design-Builder hereby certifies that it cannot comply with the requirements of 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. 661.11, but may qualify for an exception pursuant to 49 U.S.C. 5323(j)(2)(A), 5323(j)(2)(B), or 5323(j)(2)(D), and 49 C.F.R. 661.7.


16. CARGO PREFERENCE – USE OF UNITED STATES-FLAG VESSELS

The Design-Builder agrees:

(a) To use privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, materials, or commodities pursuant to the underlying Contract to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels.

(b) To furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, “on-board” commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (a) above to Authority through the Design-Builder in the case of a Subcontractor’s bill-of-lading and to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, D.C. 20590 and to Authority in the case of the Design-Builder’s bill-of-lading, marked with appropriate identification of the Project.




(c) To include these requirements in all Subcontracts issued pursuant to this Contract when the Subcontract may involve the transport of equipment, material, or commodities by ocean vessel.

17. DAVIS-BACON AND COPELAND ANTI-KICKBACK ACTS

(1) Minimum wages –

(i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 C.F.R. Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor attached as Appendix 10-2 to the Contract, regardless of any contractual relationship which may be alleged to exist between the Design-Builder or Subcontractor and such laborers and mechanics.

Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 C.F.R. Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under paragraph (1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Design-Builder and its Subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

(ii) (A) Authority shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. Authority shall approve




an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:

(1) Except with respect to helpers as defined as 29 C.F.R. 5.2(n)(4), the work to be performed by the classification requested is not performed by a classification in the wage determination; and

(2) The classification is utilized in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and

(4) With respect to helpers as defined in 29 C.F.R. 5.2(n)(4), such a classification prevails in the area in which the work is performed.

(B) If the Design-Builder and the laborers and mechanics to be employed in the classification (if known), or their representatives, and Authority agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by Authority to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise Authority or will notify Authority within the 30-day period that additional time is necessary.

(C) In the event the Design-Builder, the laborers or mechanics to be employed in the classification, or their representatives, and Authority do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), Authority shall refer the questions, including the views of all interested parties and the recommendation of Authority, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise Authority or will notify Authority within the 30-day period that additional time is necessary.

(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this Agreement from the first day on which work is performed in the classification.




(iii) Whenever the minimum wage rate prescribed in the Agreement for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Design-Builder shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.

(iv) If the Design-Builder does not make payments to a trustee or other third person, the Design-Builder may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided, that the Secretary of Labor has found, upon the written request of the Design-Builder, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Design-Builder to set aside in a separate account assets for the meeting of obligations under the plan or program.

(v) (A) Authority shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the Agreement shall be classified in conformance with the wage determination. Authority shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met:

(1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and

(2) The classification is utilized in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

(B) If the Design-Builder and the laborers and mechanics to be employed in the classification (if known), or their representatives, and Authority agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by Authority to the Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise Authority or will notify Authority within the 30-day period that additional time is necessary.

(C) In the event the Design-Builder, the laborers or mechanics to be employed in the classification, or their representatives, and Authority do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where




appropriate), Authority shall refer the questions, including the views of all interested parties and the recommendation of Authority, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination with 30 days of receipt and so advise Authority or will notify Authority within the 30-day period that additional time is necessary.

(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(v) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this Agreement from the first day on which work is performed in the classification.

(2) Withholding –

Authority shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Design-Builder under this Contract or any other federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Design-Builder or any subcontractor the full amount of wages required by the Agreement. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the Contract, Authority may, after written notice to the Design-Builder, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

(3) Payrolls and basic records –

(i) Payrolls and basic records relating thereto shall be maintained by the Design-Builder during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 C.F.R. 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits




under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Design-Builder shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. The Design-Builder or subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

(ii) (A) The Design-Builder shall submit weekly for each week in which any Contract Work is performed a copy of all payrolls to the Authority for transmission to the Federal Transit Administration (FTA). The Design-Builder is also responsible for the submission of copies of payrolls by all Subcontractors.

The payrolls submitted shall set out accurately and completely all of the information required to be maintained under section 5.5(a)(3)(i) of Regulations, 29 C.F.R. Part 5. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, DC 20402. (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Design-Builder or Subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Contract and shall certify the following:

(1) That the payroll for the payroll period contains the information required to be maintained under section 5.5(a)(3)(i) of Regulations, 29 C.F.R. Part 5 and that such information is correct and complete;

(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 C.F.R. Part 3;

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as




specified in the applicable wage determination incorporated into the Contract.

(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section.

(D)The falsification of any of the above certifications may subject the Design-Builder or Subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.

(iii) The Design-Builder or Subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Federal Transit Administration (FTA), the Department of Labor (DOL), and Authority and shall permit such representatives to interview employees during working hours on the job. If the Design-Builder or Subcontractor fails to submit the required records or to make them available, the federal agency may, after written notice to the Design-Builder, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 C.F.R. 5.12.

(4) Apprentices and trainees –

(i) Apprentices –

Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Design-Builder as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage




determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where the Design-Builder is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Design-Builder's or Subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of the Wage and Hour Division of the U.S. Department of Labor determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the Design-Builder will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(ii) Trainees –

Except as provided in 29 C.F.R. 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is




not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Design-Builder will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(iii) Equal employment opportunity –

The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 C.F.R. Part 30.

(5) Compliance with Copeland Act requirements –

The Design-Builder shall comply with the requirements of 29 C.F.R. Part 3, which are incorporated by reference in this Contract.

(6) Economy and Efficiency in Government Procurement Through Compliance with Certain Immigration and Nationality Act Provisions and Use of an Electronic Employment Eligibility Verification System –

The Design-Builder and Subcontractors shall comply with the requirements of President George W. Bush Executive Order No. 12989, as amended, which are incorporated by reference in this Contract, to use an electronic employment verification system as designated by the Secretary of Homeland Security. This system has been designated to be the United States Citizenship and Immigration Service (USCIS) E-Verify System. The Design-Builder and its Subcontractors are further required to comply with the Federal Acquisition Regulations as amended, to require compliance with the E-Verify System and its requirements.

(7) Subcontracts –

The Design-Builder or Subcontractor shall insert in any Subcontracts the clauses contained in 29 C.F.R. 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by appropriate instructions require, and also a clause requiring the Subcontractors to include these clauses in any lower tier Subcontracts. The Design-Builder shall be responsible for the compliance by any Subcontractor or lower tier Subcontractor with all the contract clauses in 29 C.F.R. 5.5.

(8) Contract termination: debarment –




A breach of the contract clauses in 29 C.F.R. 5.5 may be grounds for termination of the Contract, and for debarment as a contractor and a subcontractor as provided in 29 C.F.R. 5.12.

(9) Compliance with Davis-Bacon and Related Act requirements –

All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 C.F.R. Parts 1, 3, and 5 are herein incorporated by reference in this Contract.

(10) Disputes concerning labor standards –

Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general disputes clause of this Contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 C.F.R. Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Design-Builder (or any of its Subcontractors) and Authority, the U.S. Department of Labor, or the employees or their representatives.

(11) Certification of eligibility –

(i) By entering into this Contract, the Design-Builder certifies that neither it (nor he or she) nor any person or firm who has an interest in the Design-Builder is a person or firm ineligible to be awarded government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 C.F.R. 5.12(a)(1).

(ii) No part of this Agreement shall be subcontracted to any person or firm ineligible for award of a government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 C.F.R. 5.12(a)(1).

(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.

18. CONTRACT WORK HOURS AND SAFETY STANDARDS

(1) Overtime requirements –

Neither the Design-Builder nor any Subcontractor contracting for any part of the Work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such Work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

(2) Violation; liability for unpaid wages; liquidated damages –

In the event of any violation of the clause set forth in paragraph (1) of this section the Design-Builder and any subcontractor responsible therefor shall be liable for




the unpaid wages. In addition, the Design-Builder and Subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section.

(3) Withholding for unpaid wages and liquidated damages –

Authority shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Design-Builder or Subcontractor under any such Contract or any other federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Design-Builder or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section.

(4) Final Labor Summary. The Design-Builder and each Subcontractor shall furnish to the recipient, upon the completion of the Work, a summary of all employment, indicating, for the completed Project, the total hours worked and the total amount earned.

(5) Final Certification. Upon completion of the Work, the Design-Builder shall submit to the Authority with the voucher for final payment for any work performed a certificate concerning wages and classifications for laborers mechanics, including apprentices and trainees employed on the Project, in the following form:

THE UNDERSIGNED CONTRACTOR ON

Contract ___________________________________

hereby certifies that all laborers, mechanics, apprentices, and trainees employed by him or by a Subcontractor performing Work on the Project have been paid wages at rates not less than those required by the Contract Documents, and that the Work performed by each such laborer, mechanic, apprentice or trainee conformed to the classifications set forth in the Contract Documents or training program provisions applicable to the wage rate paid.

SIGNATURE AND TITLE

___________________________________

(6). Notice to the Recipient of Labor Disputes. Whenever the Design-Builder has acknowledged that any actual or potential labor dispute is delaying or threatens to delay




the timely performance of the Work, the Design-Builder shall immediately give notice thereof, including all relevant information with respect thereto, to Authority.

(7) Insertion in Subcontracts. The Design-Builder or Subcontractor shall insert in any Subcontracts the clauses set forth in paragraphs (1) through (7) of this Article and also a clause requiring the Subcontractors to include these clauses in any lower tier Subcontracts. The Design-Builder shall be responsible for compliance by any Subcontractor or lower tier Subcontractor with the clauses set forth in paragraphs (1) through (7) of this section.

19. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS

The preceding provisions include, in part, certain Standard Terms and Conditions required by the Department of Transportation (DOT), whether or not expressly set forth in the contract provisions. All contractual provisions required by DOT, as set forth in the latest edition of FTA Circular 4220.1 in effect at the time of this contract award, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in the Agreement. The Design-Builder shall not perform any act, fail to perform any act, or refuse to comply with any Authority requests, which would cause Authority to be in violation of the FTA terms and conditions.




APPENDIX 3-2

GENERAL WAGE DECISIONS AND LABOR CLASSIFICATIONS

[To Be Added]




APPENDIX 3-3

CCEERRTTIIFFIICCAATTIIOONN RREEGGAARRDDIINNGG DDEEBBAARRMMEENNTT,, SSUUSSPPEENNSSIIOONN,, IINNEELLIIGGIIBBIILLIITTYY AANNDD VVOOLLUUNNTTAARRYY

EEXXCCLLUUSSIIOONN -- LLOOWWEERR TTIIEERR CCOOVVEERREEDD TTRRAANNSSAACCTTIIOONN

((aapppplliiccaabbllee ffoorr ccoonnttrraaccttss wwiitthh vvaalluueess eexxcceeeeddiinngg $$2255,,000000))

AA.. TThhiiss CCoonnttrraacctt iiss aa ccoovveerreedd ttrraannssaaccttiioonn ffoorr ppuurrppoosseess ooff 22 CCFFRR PPaarrtt 2299.. AAss ssuucchh,, tthhee CCoonnttrraaccttoorr iiss

rreeqquuiirreedd ttoo vveerriiffyy tthhaatt nnoonnee ooff tthhee CCoonnttrraaccttoorr,, iittss pprriinncciippaallss,, aass ddeeffiinneedd aatt 22 CC..FF..RR.. 11220000..999955,, oorr

aaffffiilliiaatteess,, aass ddeeffiinneedd aatt 22 CC..FF..RR.. 11220000..990055,, aarree eexxcclluuddeedd oorr ddiissqquuaalliiffiieedd aass ddeeffiinneedd aatt 22 CC..FF..RR.. 11220000..994455

aanndd 2299..994400..

BB.. TThhee CCoonnttrraaccttoorr iiss rreeqquuiirreedd ttoo ccoommppllyy wwiitthh 22 CC..FF..RR.. 2299,, SSuubbppaarrtt CC aanndd mmuusstt iinncclluuddee tthhee rreeqquuiirreemmeenntt

ttoo ccoommppllyy wwiitthh 22 CC..FF..RR.. 2299,, SSuubbppaarrtt CC iinn aannyy lloowweerr ttiieerr ccoovveerreedd ttrraannssaaccttiioonn iitt eenntteerrss iinnttoo..

CC.. TThhee CCoonnttrraaccttoorr cceerrttiiffiieess aass ffoolllloowwss:: TThhee cceerrttiiffiiccaattiioonn iinn tthhiiss ccllaauussee iiss aa mmaatteerriiaall rreepprreesseennttaattiioonn ooff

ffaacctt rreelliieedd uuppoonn bbyy AAuutthhoorriittyy.. IIff iitt iiss llaatteerr ddeetteerrmmiinneedd tthhaatt tthhee CCoonnttrraaccttoorr kknnoowwiinnggllyy rreennddeerreedd aann

eerrrroonneeoouuss cceerrttiiffiiccaattiioonn,, iinn aaddddiittiioonn ttoo rreemmeeddiieess aavvaaiillaabbllee ttoo AAuutthhoorriittyy,, tthhee ffeeddeerraall ggoovveerrnnmmeenntt mmaayy

ppuurrssuuee aavvaaiillaabbllee rreemmeeddiieess,, iinncclluuddiinngg bbuutt nnoott lliimmiitteedd ttoo ssuussppeennssiioonn aanndd//oorr ddeebbaarrmmeenntt.. TThhee CCoonnttrraaccttoorr

aaggrreeeess ttoo ccoommppllyy wwiitthh tthhee rreeqquuiirreemmeennttss ooff 22 CC..FF..RR.. 2299,, SSuubbppaarrtt CC wwhhiillee tthhiiss ooffffeerr iiss vvaalliidd aanndd

tthhrroouugghhoouutt tthhee ppeerriioodd ooff aannyy CCoonnttrraacctt tthhaatt mmaayy aarriissee ffrroomm tthhiiss ooffffeerr.. TThhee CCoonnttrraaccttoorr ffuurrtthheerr aaggrreeeess ttoo

iinncclluuddee aa pprroovviissiioonn rreeqquuiirriinngg ssuucchh ccoommpplliiaannccee iinn iittss lloowweerr ttiieerr ccoovveerreedd ttrraannssaaccttiioonnss..

II hheerreebbyy cceerrttiiffyy tthhaatt II aamm aauutthhoorriizzeedd ttoo eexxeeccuuttee tthhiiss cceerrttiiffiiccaattiioonn oonn bbeehhaallff ooff tthhee CCoonnttrraaccttoorr aanndd cceerrttiiffyy

tthhee ttrruutthhffuullnneessss aanndd aaccccuurraaccyy ooff tthhee ccoonntteennttss hheerreeiinn oorr aattttaacchheedd hheerreettoo ttoo tthhee bbeesstt ooff mmyy bbeelliieeff.. TThhee

CCoonnttrraaccttoorr ddooeess//ddooeess nnoott ((ssttrriikkee oonnee)) hhaavvee iinn--hhoouussee lleeggaall ccoouunnsseell..

CCoommppaannyy NNaammee:: ________________________________________________________________________________

BByy:: ______________________________________________________________________________________________________

((SSiiggnnaattuurree ooff CCoonnttrraaccttoorr ooffffiicciiaall)) DDaattee

____________________________________________________________________________________________________________

((TTiittllee ooff CCoonnttrraaccttoorr ooffffiicciiaall))

TThhee ffoolllloowwiinngg sshhaallll aallssoo bbee ccoommpplleetteedd iiff tthhee CCoonnttrraaccttoorr hhaass iinn--hhoouussee lleeggaall ccoouunnsseell::

TThhee uunnddeerrssiiggnneedd lleeggaall ccoouunnsseell ffoorr

________________________________________________________________________________________________________________

hheerreebbyy cceerrttiiffiieess tthhaatt __________________________________________________________________________________________________________________________________

hhaass aauutthhoorriittyy uunnddeerr SSttaattee aanndd llooccaall llaaww ttoo ccoommppllyy wwiitthh tthhee ssuubbjjeecctt aassssuurraanncceess aanndd tthhaatt tthhee cceerrttiiffiiccaattiioonn

aabboovvee hhaass bbeeeenn lleeggaallllyy mmaaddee..

____________________________________________________________________________________________

SSiiggnnaattuurree ooff CCoonnttrraaccttoorr AAttttoorrnneeyy DDaattee

NNoottee:: IIff JJooiinntt VVeennttuurreerr,, eeaacchh JJooiinntt VVeennttuurree mmeemmbbeerr sshhaallll pprroovviiddee tthhee aabboovvee iinnffoorrmmaattiioonn aanndd ssiiggnn tthhee

ooffffeerr..




AAPPPPEENNDDIIXX 33--44

CCEERRTTIIFFIICCAATTIIOONN RREEGGAARRDDIINNGG LLOOBBBBYYIINNGG

TThhee uunnddeerrssiiggnneedd cceerrttiiffiieess,, ttoo tthhee bbeesstt ooff hhiiss oorr hheerr kknnoowwlleeddggee aanndd bbeelliieeff,, tthhaatt::

11)) NNoo ffeeddeerraall aapppprroopprriiaatteedd ffuunnddss hhaavvee bbeeeenn oorr wwiillll bbee ppaaiidd,, bbyy oorr oonn bbeehhaallff ooff tthhee uunnddeerrssiiggnneedd,, ttoo

aannyy ppeerrssoonn ffoorr iinnfflluueenncciinngg oorr aatttteemmppttiinngg ttoo iinnfflluueennccee aann ooffffiiccee oorr eemmppllooyyeeee ooff aannyy aaggeennccyy,, aa mmeemmbbeerr ooff

CCoonnggrreessss,, aann ooffffiicceerr oorr eemmppllooyyeeee ooff CCoonnggrreessss iinn ccoonnnneeccttiioonn wwiitthh tthhee aawwaarrddiinngg ooff aannyy ffeeddeerraall ccoonnttrraacctt,,

tthhee mmaakkiinngg ooff aannyy FFeeddeerraall ggrraanntt,, tthhee mmaakkiinngg ooff aannyy FFeeddeerraall llooaann,, tthhee eenntteerriinngg iinnttoo ooff aannyy ccooooppeerraattiivvee

aaggrreeeemmeenntt,, aanndd tthhee eexxtteennssiioonn,, ccoonnttiinnuuaattiioonn,, rreenneewwaall,, aammeennddmmeenntt,, oorr mmooddiiffiiccaattiioonn ooff aannyy ffeeddeerraall

ccoonnttrraacctt,, ggrraanntt,, llooaann,, oorr ccooooppeerraattiivvee aaggrreeeemmeenntt..

22)) IIff aannyy ffuunnddss ootthheerr tthhaann ffeeddeerraall aapppprroopprriiaatteedd ffuunnddss hhaavvee bbeeeenn ppaaiidd oorr bbiillll bbee ppaaiidd ttoo aannyy ppeerrssoonn

ffoorr iinnfflluueenncciinngg oorr aatttteemmppttiinngg ttoo iinnfflluueennccee aann ooffffiicceerr oorr eemmppllooyyeeee ooff aannyy aaggeennccyy,, aa mmeemmbbeerr ooff CCoonnggrreessss,,

aann ooffffiicceerr oorr eemmppllooyyeeee ooff CCoonnggrreessss,, oorr aann eemmppllooyyeeee ooff aa mmeemmbbeerr ooff CCoonnggrreessss iinn ccoonnnneeccttiioonn wwiitthh tthhiiss

ffeeddeerraall ccoonnttrraacctt,, ggrraanntt,, llooaann,, oorr ccooooppeerraattiivvee aaggrreeeemmeenntt,, tthhee uunnddeerrssiiggnneedd sshhaallll ccoommpplleettee aanndd ssuubbmmiitt

SSttaannddaarrdd FFoorrmm--LLLLLL,, ""DDiisscclloossuurree FFoorrmm ttoo RReeppoorrtt LLoobbbbyyiinngg"",, iinn aaccccoorrddaannccee wwiitthh iittss iinnssttrruuccttiioonnss..

33)) TThhee uunnddeerrssiiggnneedd sshhaallll rreeqquuiirree tthhaatt tthhee llaanngguuaaggee ooff tthhiiss cceerrttiiffiiccaattiioonn bbee iinncclluuddeedd iinn tthhee aawwaarrdd

ddooccuummeennttss ffoorr aallll ssuubbaawwaarrddss aatt aallll ttiieerrss ((iinncclluuddiinngg ssuubbccoonnttrraaccttss,, ssuubbggrraannttss,, aanndd ccoonnttrraaccttss uunnddeerr ggrraannttss,,

llooaannss,, aanndd ccooooppeerraattiivvee aaggrreeeemmeennttss)) aanndd tthhaatt aallll ssuubbrreecciippiieennttss sshhaallll cceerrttiiffyy aanndd ddiisscclloossee aaccccoorrddiinnggllyy..

TThhiiss cceerrttiiffiiccaattiioonn iiss aa mmaatteerriiaall rreepprreesseennttaattiioonn ooff ffaacctt uuppoonn wwhhiicchh rreelliiaannccee iiss ppllaacceedd wwhheenn tthhiiss ttrraannssaaccttiioonn

wwaass mmaaddee oorr eenntteerreedd iinnttoo.. SSuubbmmiissssiioonn ooff tthhiiss cceerrttiiffiiccaattiioonn iiss aa pprreerreeqquuiissiittee ffoorr mmaakkiinngg oorr eenntteerriinngg iinnttoo

tthhiiss ttrraannssaaccttiioonn iimmppoosseedd bbyy SSeeccttiioonn 11335522,, ttiittllee 3311 UU..SS.. CCooddee.. AAnnyy ppeerrssoonn wwhhoo ffaaiillss ttoo ffiillee tthhee rreeqquuiirreedd

cceerrttiiffiiccaattiioonn sshhaallll bbee ssuubbjjeecctt ttoo aa cciivviill ppeennaallttyy ooff nnoott lleessss tthhaann $$1100,,000000 aanndd nnoott mmoorree tthhaann $$110000,,000000 ffoorr

eeaacchh ssuucchh ffaaiilluurree..

EExxeeccuutteedd tthhiiss ______________________________ ddaayy ooff ________________________________________,, 22000099..

CCoommppaannyy NNaammee:: __________________________________________________________________________________________

BByy:: ________________________________________________________________________________________________________________

((SSiiggnnaattuurree ooff CCoommppaannyy OOffffiicciiaall))

______________________________________________________________________________________________________________________

((TTiittllee ooff CCoommppaannyy OOffffiicciiaall))

NNoottee:: IIff JJooiinntt VVeennttuurreerr,, eeaacchh JJooiinntt VVeennttuurree mmeemmbbeerr sshhaallll pprroovviiddee tthhee aabboovvee iinnffoorrmmaattiioonn aanndd ssiiggnn tthhee

cceerrttiiffiiccaattiioonn..




AAPPPPEENNDDIIXX 33--55

EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATION

[To be executed by the Design-Builder, all joint venture members of the Design-Builder, and all

Subcontractors]

The undersigned certifies on behalf of _________________________________________, that:

(Name of entity making certification)

[check one of the following boxes]

It has developed and has on file at each establishment affirmative action programs

pursuant to 41 C.F.R. Part 60-2 (Affirmative Action Programs).

It is not subject to the requirements to develop an affirmative action program under 41

C.F.R. Part 60-2 (Affirmative Action Programs).

[check one of the following boxes]

It has not participated in a previous contract or subcontract subject to the equal

opportunity clause described in Executive Orders 10925, 11114 or 11246.

It has participated in a previous contract or subcontract subject to the equal opportunity

clause described in Executive Orders 10925, 11114 or 11246 and, where required, it has

filed with the Joint Reporting Committee, the Director of the Office of Federal Contract

Compliance, a Federal Government contracting or administering agency, or the former

President’s Committee on Equal Employment Opportunity, all reports due under the

applicable filing requirements.

Signature: _____________________________________

Title: _____________________________________

Date: _____________________________________

If not the Design-Builder, relationship to the Design-Builder: _____________________




APPENDIX 4

BONDS AND GUARANTY

4-1 PERFORMANCE BOND

4-2 PAYMENT BOND

4-3 GUARANTY




APPENDIX 4-1

PERFORMANCE BOND

[EXECUTED COPY OF PERFORMANCE BOND TO BE ATTACHED TO EXECUTED CONTRACT AS APPENDIX 4-1]

Intermodal Parking Facilities and Enhancements Design-Build Project

Bond No. _________

WHEREAS, the Metro Gold Line Foothill Extension Construction Authority

(“Obligee”), has awarded to _______________, a _______________ (“Principal”), a

Design-Build Contract for the Intermodal Parking Facilities and Enhancements Design-

Build Project dated as of __________, 2013 (the “Contract”), on the terms and

conditions set forth therein; and

WHEREAS, Principal is required to furnish a bond guaranteeing the faithful

performance of its obligations under the Contract Documents (as defined in the

Contract) concurrently with delivery to Obligee of the executed Contract.

NOW, THEREFORE, Principal and _______________, a _______________,

and ________________, a ___________________ (collectively “Co-Sureties”), each an

admitted surety insurer in the State of California, are held and firmly bound unto Obligee

in the amount of $_____ [insert 100% of the Total Amount] (the “Bonded Sum”), for

payment of which sum Principal and Co-Sureties jointly and severally firmly bind

themselves and their successors and assigns.

THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if Principal shall

promptly and faithfully perform all of its obligations under the Contract Documents,

including any and all amendments and supplements thereto, then this obligation shall

be null and void; otherwise it shall remain in full force and effect.

The Contract Documents are incorporated by reference herein.

This bond specifically guarantees the performance of each and every obligation

of Principal under the Contract Documents, as they may be amended and

supplemented, including but not limited to its liability for Liquidated Damages and

Warranties as specified in the Contract Documents, but not to exceed the Bonded Sum.




The guarantee contained herein shall survive the final completion of the design

and construction called for in the Contract Documents with respect to those obligations

of Principal which survive such final completion.

In the event that Principal is in default, is declared by Obligee to be in default

under the Contract Documents, and provided that Obligee is not then in material default

thereunder, Co-Sureties shall promptly:

a. remedy such default;

b. complete the Contract in accordance with the terms and conditions

of the Contract Documents then in effect; or

c. select a contractor or contractors to complete all Work for which a

notice to proceed has been issued in accordance with the terms and conditions of the

Contract Documents then in effect, using a procurement methodology approved by

Obligee, arrange for a contract between such contractor or contractors and Obligee,

and make available as work progresses (even though there should be a default or a

succession of defaults under such contract or contracts of completion arranged under

this paragraph), sufficient funds to pay the cost of completion less the unpaid balance of

the Contract Price, but not exceeding, including other costs and damages for which Co-

Sureties are liable hereunder, the Bonded Sum.

No alteration, modification or supplement to the Contract Documents or the

nature of the work to be performed thereunder, including without limitation any

extension of time for performance, shall in any way affect the obligations of Co-Sureties

under this bond and Co-Sureties hereby waive notice thereof.

The Co-Sureties agree to empower a single representative with responsibility for

coordinating among all of the Co-Sureties with respect to this bond, so that Obligee will

have no obligation to deal with multiple sureties hereunder. All correspondence from

Obligee to the Co-Sureties and all claims under this bond shall be sent to such

designated representative. The designated representative may be changed only by

delivery of written notice (by personal delivery or by certified mail with return receipt

requested) to Obligee designating a single new representative, signed by all of the Co-

Sureties. The initial representative shall be ______________________________, and




the initial agent for service of process shall be

______________________________________.

_____________________________________

_____________________________________

_____________________________________

No right of action shall accrue on this bond to or for the use of any entity other

than Obligee or its successors and assigns.

IN WITNESS WHEREOF, Principal and Co-Sureties have caused this bond to be

executed and delivered as of __________, 2013.

Principal: __________________

By: __________________

Its: __________________

(Seal)

Co-Surety: __________________

By: __________________

Its: __________________

(Seal)

Co-Surety: __________________

By: __________________

Its: __________________

(Seal)

[ADD APPROPRIATE CO-SURETY ACKNOWLEDGMENTS]




ADDITIONAL OBLIGEE RIDER

TO BE ATTACHED TO AND FORM PART OF Performance Bond No.

______________ dated _____________, 2013, issued by ______________

(“Principal”), and _______________________ and _______________ (the “Co-

Sureties”), in favor of the METRO GOLD LINE FOOTHILL EXTENSION

CONSTRUCTION AUTHORITY, a public entity of the State of California (the "Obligee").

IT IS HEREBY UNDERSTOOD AND AGREED THAT the Los Angeles to

Pasadena Metro Blue Line Construction Authority, as trustee under that certain Los

Angeles - Pasadena Metro Blue Line Governmental Purpose Property Trust Agreement

dated as of August 19, 1999; the Los Angeles County Metropolitan Transportation

Authority, as settlor under that certain Los Angeles - Pasadena Metro Blue Line

Governmental Purpose Property Trust Agreement dated as of August 19, 1999; and the

California Department of Transportation (Caltrans) are hereby added as Additional

Obligees under the above-described bond.

IT IS FURTHER UNDERSTOOD AND AGREED THAT the above-described

bond is hereby amended to include the following Additional Obligee clause:

"In no event shall Co-Surety be liable to the Obligees in the aggregate for more than the

Bonded Sum as a result of the Additional Obligee Rider, nor shall it be liable except for

a single payment for each single breach or default. At Co-Surety's election, any

payment due to any Obligee may be made by its check issued jointly to all."

IT IS FURTHER UNDERSTOOD AND AGREED that nothing herein contained

shall be held to change, alter or vary the terms of the above-described bond except as

hereinbefore set forth.

SIGNED, SEALED AND DATED this ____ day of _____, 2013.

"CO-SURETY" _______________________________

By: _______________________________

Its:________________________________




"CO-SURETY" _______________________________

By: _______________________________

Its:________________________________

"PRINCIPAL" ______________________________

By: _______________________________

Its:________________________________

"OBLIGEE" METRO GOLD LINE FOOTHILL EXTENSION

CONSTRUCTION AUTHORITY

By: _______________________________

Its:________________________________

[include co-surety powers of attorney and notary acknowledgments for co-surety

signatures]




APPENDIX 4-2

PAYMENT BOND

[EXECUTED COPY OF PAYMENT BOND TO BE ATTACHED TO EXECUTED CONTRACT AS APPENDIX 4-2]

Intermodal Parking Facilities and Enhancements Design-Build Project

Bond No. _________

WHEREAS, the Metro Gold Line Foothill Extension Construction Authority (“Obligee”),

has awarded to _______________, a _______________ (“Principal”), a Design-Build

Contract for the Intermodal Parking Facilities and Enhancements Design-Build Project

dated as of __________, 2013 (the “Contract”), on the terms and conditions set forth

therein; and

WHEREAS, Principal is required to furnish a bond guaranteeing payment of

claims as described in Civil Code section 3248 concurrently with delivery to Obligee of

the executed Contract.

NOW, THEREFORE, Principal and _______________, a _______________,

and __________________, a ___________________ (collectively “Co-Sureties”), each

an admitted surety insurer in the State of California, are held and firmly bound unto

Obligee in the amount of $_____ [insert 100% of the Total Amount] (the “Bonded Sum”),

for payment of which sum Principal and Co-Sureties jointly and severally firmly bind

themselves and their successors and assigns.

THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if Principal shall fail

to pay any of the persons named in Civil Code section 3181, or any amounts due under

the Unemployment Insurance Code, or any amounts required to be deducted, withheld

and paid over to the Employment Development Department from the wages of

employees of Principal and subcontractors pursuant to the Unemployment Insurance

Code section 13020, with respect to the Work, then Co-Sureties shall pay for the same

in an amount not to exceed the Bonded Sum; otherwise this obligation shall be null and

void.

The Contract Documents (as defined in the Contract) are incorporated by

reference herein.




No alteration, modification or supplement to the Contract Documents or the

nature of the work to be performed thereunder, including without limitation any

extension of time for performance, shall in any way affect the obligations of Co-Sureties

under this bond and Co-Sureties hereby waives notice thereof.

The Co-Sureties agree to empower a single representative with responsibility for

coordinating among all of the Co-Sureties with respect to this bond, so that Obligee will

have no obligation to deal with multiple sureties hereunder. All correspondence from

Obligee to the Co-Sureties and all claims under this bond shall be sent to such

designated representative. The designated representative may be changed only by

delivery of written notice (by personal delivery or by certified mail with return receipt

requested) to Obligee designating a single new representative, signed by all of the Co-

Sureties. The initial representative shall be ______________________________, and

the initial agent for service of process shall be ________________________________.

This bond shall inure to the benefit of the persons named in Civil Code section

3181 so as to give a right of action to such persons and their assigns in any suit brought

upon this bond.

IN WITNESS WHEREOF, Principal and Co-Sureties have caused this bond to

be executed and delivered as of __________, 2013.

Principal: __________________

By: __________________

Its: __________________

(Seal)

Co-Surety: __________________

By: __________________

Its: __________________

(Seal)

Co-Surety: __________________

By: __________________

Its: __________________

(Seal)

[ADD APPROPRIATE CO-SURETY ACKNOWLEDGMENTS]




ADDITIONAL OBLIGEE RIDER

TO BE ATTACHED TO AND FORM PART OF

Payment Bond No. ______________ dated _____________, 2013, issued by

______________ (“Principal”), and _______________________ and

________________ (the “Co-Sureties”), in favor of the METRO GOLD LINE FOOTHILL

EXTENSION CONSTRUCTION AUTHORITY, a public entity of the State of California

(the "Obligee").

IT IS HEREBY UNDERSTOOD AND AGREED THAT the Los Angeles to

Pasadena Metro Blue Line Construction Authority, as trustee under that certain Los

Angeles - Pasadena Metro Blue Line Governmental Purpose Property Trust Agreement

dated as of August 19, 1999; the Los Angeles County Metropolitan Transportation

Authority, as settlor under that certain Los Angeles - Pasadena Metro Blue Line

Governmental Purpose Property Trust Agreement dated as of August 19, 1999; and the

California Department of Transportation (Caltrans) are hereby added as Additional

Obligees under the above-described bond.

IT IS FURTHER UNDERSTOOD AND AGREED THAT the above-described

bond is hereby amended to include the following Additional Obligee clause:

"In no event shall Co-Surety be liable to the Obligees in the aggregate for more than the

Bonded Sum as a result of the Additional Obligee Rider, nor shall it be liable except for

a single payment for each single breach or default. At Co-Surety's election, any

payment due to any Obligee may be made by its check issued jointly to all."

IT IS FURTHER UNDERSTOOD AND AGREED that nothing herein contained

shall be held to change, alter or vary the terms of the above-described bond except as

hereinbefore set forth.

SIGNED, SEALED AND DATED this ____ day of ____, 2013.

"CO-SURETY" _______________________________

By: _______________________________

Its:________________________________




"CO-SURETY" _______________________________

By: _______________________________

Its:________________________________

"PRINCIPAL" ______________________________

By: _______________________________

Its:________________________________

"OBLIGEE" METRO GOLD LINE FOOTHILL EXTENSION


By: _______________________________

Its:________________________________

[include co-surety powers of attorney and notary acknowledgments for co-surety

signatures]




APPENDIX 4-3

GUARANTEE

[EXECUTED COPY OF GUARANTEE TO BE ATTACHED TO EXECUTED

CONTRACT AS APPENDIX 4-3]




APPENDIX 5

SUBCONTRACT SCHEDULE

NAME, ADDRESS,

TELEPHONE NO.

SUBCONTRACTOR

DESCRIPTION OF

SUBCONTRACT

WORK

DOLLAR AMOUNT

OF SUBCONTRACT

EST. TIME OF

PERFORMANCE

DESIGN-BUILDER:

DATE:


CONSTRUCTION AUTHORITY DESIGN-BUILD PROJECT


APPENDIX 6

DBE PROGRAM

METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY

DISADVANTAGED BUSINESS ENTERPRISE PROGRAM

Submitted in fulfillment of

Section 1101 of the Transportation Equity Act for the 21st Century 49 Code of Federal Regulations, Part 26:

i

METRO GOLD LINE FOOTHILL EXTENSION


DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM

Table of Contents

I. POLICY STATEMENT AND PROGRAM OBJECTIVES ...................................... 1

A. Policy Statement (§26.3; §26.7; §26.21; §26.23) ....................................... 1

B. Objectives (§26.1; §26.23) ......................................................................... 1

C. Non-Discrimination (§26.7) ........................................................................ 2

II. APPLICABILITY (§26.3; §26.21) .......................................................................... 3

A. DBE Program Updates (§26.21) ................................................................ 3

B. Design- .............. 3

III. DEFINITION OF TERMS (§26.5) ......................................................................... 4

IV. RESPONSIBILITIES FOR DBE PROGRAM IMPLEMENTATION ........................ 8

A. DBE Liaison Officer (§26.25) ..................................................................... 8

B. Reconsideration Official (§26.53 (d)(2)) ..................................................... 8

V. ADMINISTRATIVE REQUIREMENTS ................................................................ 11

A. Federal Financial Assistance Agreement Assurance (§26.13 (a)) ........... 11

B. DBE Financial Institutions (§26.27) .......................................................... 11

C. DBE Directory (§26.31) ............................................................................ 11

D. Overconcentration (§26.33) ..................................................................... 11

E. Business Development Programs (§26.35, Appendix C and Appendix D) ............................................................................................. 12

VI. DETERMINING, MEETING, AND COUNTING OVERALL ANNUAL DBE GOAL (§26.45; §26.51) ................................................................................................. 13

A. Methodology for Setting Overall Annual DBE Goals (§26.45).................. 13

B. Race-Neutral Measures (§26.39) ............................................................. 15

C. Race-Conscious Measures ...................................................................... 17

D. Methodology for Setting Contract-Specific Goals (§26.51) ...................... 17

E. Procedures to Evaluate Award of Contract with Contract Specific Goals ....................................................................................................... 17

ii

F. Transit Vehicle Manufacturers (TVM) Certifications (§26.49) .................. 19

G. Meeting Established Goals and Evidence of Good Faith Efforts (§26.53; Appendix A) ............................................................................... 19

H. Termination of Subcontractor (§26.53 (f)) ................................................ 24

I. Use of Set-Asides or Quotas (§26.43) ..................................................... 24

J. Counting DBE Participation (§26.55) ....................................................... 24

K. Commercially Useful Function Standards (§26.55) .................................. 26

VII. REQUIRED CONTRACT PROVISIONS AND ENFORCEMENT ....................... 28

A. Contractor's Assurance Clause Regarding Non-Discrimination (§26.13) ................................................................................................... 28

B. Prompt Payment Provisions (§26.29) ...................................................... 28

C. Contractor Reporting Requirements and Authority's Compliance Monitoring and Enforcement (§26.55)...................................................... 29

D. Administrative Remedies for Non-Compliance by Contractors ................ 31

VIII. DBE CERTIFICATION STANDARDS (§26.61 - §26.73; §26.83 (A)) .................. 33

A. Unified Certification Program (UCP) (§26.81) .......................................... 33

IX. RECORDKEEPING AND MONITORING (§26.11, §26.37) ................................ 35

A. Bidders List (§26.11) ................................................................................ 36

B. Monitoring Payments to DBEs (§26.37) ................................................... 36

C. Reporting to DOT (§26.11) ...................................................................... 37

Appendix A: DBE Program Requirements Specific to Design-Build Contracts

Appendix B: DBE Program Organizational Chart

Appendix C: Request for DBE Substitution Form

Appendix D: Request for Additional DBE Subcontractor/Supplier

Appendix E: Monthly DBE Subcontractors Paid Report Summary and Payment Verification (Form 103)

Appendix F: Uniform Report of DBE Awards or Commitments and Payments





DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM

____________________________________________________________

I. POLICY STATEMENT AND PROGRAM OBJECTIVES

A. Policy Statement (§26.3; §26.7; §26.21; §26.23)

The Metro Gold Line Foothill Extension Construction Authority (herein referred to as the "AUTHORITY") has established a Disadvantaged Business Enterprise (DBE) Program in accordance with Title 49 Code of Federal Regulations (CFR), Part 26: "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs". The Authority anticipates receiving federal financial assistance from the U.S. Department of Transportation (DOT) and, as a condition of receiving this assistance, the Authority will sign an assurance that it will fully comply with 49 CFR Part 26. These regulatory provisions and the Authority's DBE Program will apply to all of the Authority's federally funded transportation projects.

B. Objectives (§26.1; §26.23)

It is the policy of the Authority to ensure that DBEs, as defined in 49 CFR Part 26, have an equitable opportunity to compete for and participate in the performance of all the Authority's federally funded transportation projects and contracts. The Authority is firmly committed to its DBE Program and the following DBE policy objectives, which are designed to:

Ensure nondiscrimination in the award and administration of the Authority's DOT-assisted contracts;

Create a level playing field by which DBEs can fairly compete for the Authority's DOT-assisted contracts;

Ensure that the Authority's DBE Program is narrowly tailored in accordance with applicable law;

Ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs in the Authority's DBE Program;

Help remove barriers which impede the participation of DBEs in the Authority's DOT-assisted contracts; and

Assist in the development of DBE firms that can compete successfully in the marketplace outside the DBE Program.

The Authority will further ensure that implementation of its DBE Program will be afforded the same priority as compliance with all other legal obligations incurred by the Authority




in its financial assistance agreements with the Department of Transportation. It is the expectation of the Chief Executive Officer that all Authority personnel shall adhere to the full spirit and intent of the DBE Program, as well as its requirements and procedures. The DBE Consultant to the Authority set forth in Section IV.A, will serve as the Authority's DBE Liaison Officer (DBELO). In this capacity, the DBELO will be responsible for implementing all aspects of the Authority's DBE Program.

The Authority will circulate this Policy Statement throughout its organization and to the DBE and non-DBE business communities that perform work on the Authority's DOT-assisted contracts through the Authority's contracts and procurement solicitation process.

C. Non-Discrimination (§26.7)

The Authority will not exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract governed by 49 CFR Part 26 on the basis of race, color, sex, or national origin.

In administering its DBE Program, 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 accomplishment of the objectives of the DBE Program and will further require such contract assurances in every DOT-assisted contract and subcontract.

Through such efforts, the Authority will ensure contracting and procurement-related processes which promote equity in access, consideration, and opportunity for DBEs in response to the requirements set forth under 49 CFR Part 26: Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.

________________________________ Habib F. Balian Chief Executive Officer

________________________________ Date




II. APPLICABILITY (§26.3; §26.21)

The Authority anticipates being a direct recipient of federal funds from the U.S. Department of Transportation (DOT). As a condition of funding assistance, and in accordance with federal regulations published in 49 CFR Part 26, the Authority is required to submit for approval, to the U.S. Department of Transportation, a Disadvantaged Business Enterprise (DBE) Program, which it agrees to adhere to. This Program sets forth the policies and procedures to be implemented by the Authority to ensure that DBEs have an equitable opportunity to participate in the Authority's DOT-assisted contracting opportunities.

In direct response to these legislative requirements, the Authority hereby establishes a DBE Program, which will:

1. Comply with federal regulations and financial assistance agreements; 2. Meet legal standards for unique and narrow program tailoring; 3. Ensure non-discrimination in the award of DOT-assisted contracts; and 4. Reaffirm commitment to fairness and the principles of equal opportunity.

In the event of any conflicts or inconsistencies between the Regulations and the Authority's DBE Program with respect to DOT-assisted contracts, the Regulations shall prevail.

A. DBE Program Updates (§26.21)

The Authority will continue to carry out this Program until all funds from DOT financial assistance are expended. The Authority will annually establish and submit an overall DBE goal, based on federally prescribed goal-setting methodology, to each DOT Operating Administration from which the Authority receives financial assistance in accordance with established funding threshold requirements for DOT recipients by August 1 of every year. The Authority will also advise DOT Operating Administrations of any significant updates and/or changes to its DBE Program at the time of submission of the annual overall DBE goal.

B. Design-Build Contracts

The Authority recognizes that certain modifications are necessary to adapt the DBE Program for use in connection with Design-Build contracts and will therefore follow the prescribed requirements set forth in Appendix A of the Authority's DBE Program.




III. DEFINITION OF TERMS (§26.5)

Any term used in this Program shall have the meaning set forth in the Regulations. Some of the most commonly used terms are defined below (for additional and more in-depth detail, please refer to 49 CFR Section 26.5):

Bidders List: A list of all contractors (DBE and non-DBE), which have expressed an interest in bidding on prime contracts and subcontracts on the Authority's DOT-assisted projects.

Commercially Useful Function: Work performed by a DBE firm in a particular transaction that, in light of industry practices and other relevant considerations, has a necessary and useful role in the transaction (i.e., the firm's role is not a superfluous step added in an attempt to obtain credit toward goals). If, in the Authority's judgment, the firm (even though an eligible DBE)-does not perform a commercially useful function in the transaction, no credit toward the goal may be awarded.

Compliance: A contractor has correctly implemented the requirements of the DBE Program.

Contract: A legally binding relationship obligating a seller to furnish supplies or services (including, but not limited to, construction and professional services) and the buyer to pay for them.

Contractor: One who participates, through a contract or subcontract (at any tier), in a DOT-assisted program.

DBE Directory: List of certified firms, which is used by the Authority and its contractors to identify DBE potential prime contractors and subcontractors and suppliers.

DBELO: Disadvantaged Business Enterprise Liaison Officer. The DBELO shall be responsible for implementing all aspects of the Authority's DBE program.

Department or DOT: The U.S. Department of Transportation, including the Office of the Secretary, the Federal Highway Administration (FHWA), the Federal Transit Administration (FTA), and the Federal Aviation Administration (FAA).

Disadvantaged Business Enterprise or DBE: A for-profit small business concern—

1. That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals;

2. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it; and

3. Has been certified as Disadvantaged in accordance with 49 CFR Part 26.




DBE Certification: A certification issued to a firm by a certifying member agency of the California Unified Certification Program (CUCP), which has been determined to meet all the requirements in accordance with 49 CFR Part 26. All certification determinations are evidenced by a letter of DBE certification issued by the certifying CUCP member.

DOT-Assisted Contract: A contract between a recipient and a contractor (at any tier) funded in whole or in part with DOT financial assistance, including letters of credit or loan guarantees, except a contract solely for the purchase of land or improved real property.

Goal: A numerically expressed objective, which the Authority or its contractors are required to make Good Faith Efforts to achieve.

Good Faith Efforts: Efforts to achieve a DBE goal or other requirement of this Part, which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirement.

Joint Venture: An association between a DBE firm and one or more other firms to carry out a single, for-profit business enterprise, in which the parties combine property, capital, efforts, skills and knowledge, and in which the DBE is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the capital contribution, control, management, risks and profits of the joint venture commensurate with its ownership interest.

Manufacturer: A firm that operates or maintains a factory or establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the contract and which are of the general character as described by specifications.

North American Industrial Classification System (NAICS): The five to six-digit classification number that best describes the primary business of a firm. The basis for industry classification changed from the 1987 Standard Industrial Classification System (SIC) to the 2002 NAICS.

Noncompliance: A contractor has not correctly implemented the requirements of the DBE program.

Personal Net Worth: The net value of the assets of an individual remaining after total liabilities are deducted. An individual's personal net worth does not include: The individual's ownership interest in an applicant or participative DBE firm or the individual's equity in his or her primary place of residence. An individual's personal net worth includes only his or her own share of assets, jointly or as community property, with the individual's spouse.

Program: Any undertaking on the Authority's part to use DOT financial assistance as authorized by laws to which the DBE Program applies.

Race-Conscious Measure or Program: A program or portion thereof that focuses specifically on assisting only DBEs, including women-owned DBEs, by the development and inclusion of participation goals or best effort activities.




Race-Neutral Measure or Program: A program or portion thereof that assists all small businesses, regardless of ownership, through community outreach and awareness programs to participate successfully in the Authority's procurement program. For the purposes of the DBE Program, "race-neutral" includes gender neutrality.

Regular Dealer: A firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character as described by the specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. Any supplementing of regular dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad-hoc or contract-by-contract basis.

Set-Aside: A contracting practice restricting eligibility for the competitive award of a contract solely to DBE firms or on some other basis not related to qualifications or pricing.

Small Business Administration or SBA: The federal United States Small Business Administration.

Small Business Concern: With respect to firms seeking to participate as DBEs in DOT-assisted contracts, a business which meets the definition contained in Section 3 of the Small Business Act and all other applicable Small Business Administration regulations implementing it (13 CFR Part 121), but also that which does not exceed the cap on average annual gross receipts as specified in 49 CFR Section 26.65(b).

Socially and Economically Disadvantaged Individual: Any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who is —

1. Found by the Authority to be socially and economically disadvantaged on a case-by-case basis by a certifying agency pursuant to the standards of 49 CFR Part 26.

2. A member of any one or more of the following groups, members of which are rebuttably presumed to be socially and economically disadvantaged:

i) "Black Americans," which includes persons having origins in any of the Black racial groups of Africa;

ii) "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;

iii) "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;




iv) "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kirbati, Juvalu, Nauru, Federated States of Micronesia, or Hong Kong;

v) "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;

vi) Women; and

vii) Any additional group whose members are designated as socially and economically disadvantaged by the SBA, at such time as the SBA designation becomes effective.

Subrecipient: Any entity that receives DOT financial assistance through a primary recipient.

Transit Vehicle: A vehicle used by the Authority (e.g. railcar, bus and/or van) for the primary program purpose of public mass transportation; this definition does not include locomotives or ferry boats.

Transit Vehicle Manufacturer or TVM: A manufacturer of vehicles used by the Authority for the primary program purpose of public mass transportation (e.g. railcars, buses and/or vans). The term does not apply to firms that rehabilitate old vehicles or to manufacturers or dealers of transit vehicles with respect to Section 26.49 of the Regulation.

Unified Certification Program (UCP): One-stop certification clearinghouse which enables applicants to apply for DBE certification which will be honored by all DOT recipients in the state.




IV. RESPONSIBILITIES FOR DBE PROGRAM IMPLEMENTATION

A. DBE Liaison Officer (§26.25)

The Authority has designated the following individual as the Disadvantaged Business Enterprise Liaison Officer (DBELO):

GCAP Services, Inc. 3525 Hyland Ave., Suite 260 Costa Mesa, CA 92626 (714) 800-1795, ext. 11 ATTN: Edward Salcedo Project Manager

In this capacity, the DBELO is responsible for implementing all aspects of the DBE Program and ensuring that the Authority complies with all provisions of 49 CFR Part 26. The DBELO has direct, independent access to the Authority's Chief Executive Officer concerning DBE Program matters (refer to DBE Program Organizational Chart -Appendix B). The DBELO has sufficient support personnel who devote a portion of their time to administer the Program. The DBELO is responsible for developing, implementing and monitoring the DBE Program, in coordination with other appropriate officials.

The DBELO's and/or designee's duties include, but are not limited to, the following activities:

1. Gathers and reports statistical data and other information as required. 2. Reviews third party contracts and purchase requisitions for compliance

with this Program. 3. Works with all departments to set overall annual goals. 4. Ensures that bid notices and requests for proposals are made available to

DBEs in a timely manner. 5. Identifies contracts and procurements so that DBE goals are included in

solicitations (both race-neutral methods and contract-specific goals) and monitors results.

6. Analyzes the Authority's progress toward goal attainment and identifies ways to improve progress.

7. Participates in pre-bid meetings. 8. Advises the CEO and/or the governing body on DBE matters and

achievements. 9. Determines contractor compliance with Good Faith Efforts provisions and

conducts contract DBE goal responsiveness reviews. 10. Provides DBEs with information and assistance in preparing bids and

obtaining bonding and insurance. 11. Plans and participates in DBE training seminars. 12. Provides outreach to DBEs and community organizations to advise them

of the Authority's DOT-assisted contracting opportunities.

B. Reconsideration Official (§26.53 (d)(2))




The administrative reconsideration process will be facilitated by the Authority's Reconsideration Official (RO), designated as follows:

Habib F. Balian Chief Executive Officer

Metro Gold Line Foothill Extension Construction Authority 406 East Huntington Drive, Suite 202

Monrovia, CA 91016 Telephone (626) 305-7022, Fax (626) 471-9049

E-mail: [email protected]

The Authority, at its discretion, may utilize another DOT recipient agency's DBE Liaison Officer or Reconsideration Official who is a member of the California Unified Certification Program as an independent, impartial party to serve in the capacity of Reconsideration Official. In instances where contract DBE goals are established, and the bidder/proposer fails to satisfy the requirements for meeting the contract goal or fails to document sufficient Good Faith Efforts to do so, in accordance with Section VI. G. (2), the Authority will provide the bidder/proposer, prior to award of the contract, an opportunity for administrative reconsideration of the Authority's determination of non-responsiveness.

Unless otherwise specified, the bidder/proposer may, within two business days of being informed by the Authority of its non-responsiveness due to its failure to document and provide sufficient and adequate Good Faith Efforts in the subject procurement, request administrative reconsideration. Bidders/proposers must make this request in writing to the Reconsideration Official as designated herein.

To ensure integrity in the process, the Reconsideration Official will not have played any role in the original determination that the bidder/proposer did not meet the established DBE goal, or in the documentation of sufficient Good Faith Efforts of the subject procurement which has been deemed non-responsive.

As part of this reconsideration, the bidder/proposer will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate Good Faith Efforts to do so. Further, the bidder/proposer will have the opportunity to meet with the Reconsideration Official in person to discuss the issue of whether it met the goal or made adequate Good Faith Efforts to do so. The Authority will send the bidder/proposer a written decision on reconsideration, explaining the basis for finding that the bidder/proposer did or did not meet the goal or made adequate Good Faith Efforts to do so. The result of the reconsideration process is not administratively appealable to the Department of Transportation.

Further, the Authority's Reconsideration Official and/or designee shall also perform oversight of the reconsideration process. The RO's and/or designee's duties include, but are not limited to, the following activities:

1. Ensures that all DBE administrative reconsideration procedural actions are consistent with the requirements and standards specified in 49 CFR




Sections 26.53 and 26.87, and that the Program's integrity is maintained at all times.

2. Reviews bidder/proposer written documentation or argument concerning the issue of whether it met the goal or made adequate Good Faith Efforts to do so.

3. Upon review of the bidder's/proposer's request for consideration, the RO sends the bidder/proposer a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate Good Faith Efforts to do so.

4. Maintains verbatim records of hearings conducted. 5. Provides determinations in writing to the Authority's DBE Liaison Officer.




V. ADMINISTRATIVE REQUIREMENTS

A. Federal Financial Assistance Agreement Assurance (§26.13 (a))

Pursuant to the requirements of this Part, the Authority will sign the following assurance as a condition of financial assistance agreements with the DOT, and which is hereby made applicable to all of the Authority's DOT-assisted contracts and their administration:

"The Authority shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE Program or the requirements of 49 CFR Part 26. The Authority shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The Authority's DBE Program, as required by 49 CFR Part 26 and as approved by DOT Operating Administrations, is incorporated by reference in this agreement. Implementation of this Program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the Authority of its failure to carry out its approved Program, the Department may impose sanctions as provided under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.)."

B. DBE Financial Institutions (§26.27)

It is the policy of the Authority to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to utilize these institutions, and to encourage prime contractors on the Authority's DOT-assisted contracts to make use of these institutions.

Information on the availability of such institutions can be obtained from the Authority's DBE Liaison Officer.

C. DBE Directory (§26.31)

The Authority will refer interested persons to the DBE Directory published in the California Unified Certification Program (CUCP) website at www.dot.ca.gov/hq/bep to assist in identifying certified DBEs.

D. Overconcentration (§26.33)

The Authority will develop policies and procedures to address overconcentration of DBE utilization in certain types of work. This is to be accomplished through regular tracking of contract awards and through compliance monitoring, whereby the Authority will identify and directly respond to identify overconcentration within specific trades or specialty areas by modifying contract goals as required until such time as DBE availability




exceeds utilization. Currently, the Authority has not identified any types of work that have a burdensome overconcentration of DBE participation.

E. Business Development Programs (§26.35, Appendix C and Appendix D)

The Authority does not currently have a business development or mentor-protégé program. If the Authority identifies the need for such a program in the future, the Authority's rationale for adopting such a program, in addition to a comprehensive description of the proposed program, will be submitted to the FTA's Civil Rights Officer for approval.




VI. DETERMINING, MEETING, AND COUNTING OVERALL ANNUAL DBE GOAL (§26.45; §26.51)

A. Methodology for Setting Overall Annual DBE Goals (§26.45)

The DBE Liaison Officer shall establish an overall goal on an annual basis for the participation of DBEs in all budgeted contracts utilizing DOT federal financial assistance. Overall annual goals shall be expressed as a percentage of the total amount of DOT funds the Authority anticipates expending in the fiscal year. The Authority's overall annual goals represent the amount of ready, willing and able DBEs that are available to participate in contracting opportunities and is reflective of the amount of DBE participation the Authority would expect, absent the effects of discrimination. The Authority intends to meet those goals to the maximum extent feasible through the race-neutral measures described herein. Where race-neutral measures are inadequate to meet the overall goals, the Authority will establish contract-specific goals for particular projects with subcontracting opportunities.

In conjunction with the preparation and adoption of the budget for each fiscal year, the DBE Liaison Officer, in consultation with the appropriate departments responsible for contracting activities, will conduct a thorough analysis of the projected number, the types of work entailed in the projected contracting opportunities, and the dollar amounts of contracting opportunities that will be funded, in whole or in part, by DOT federal financial assistance for that year.

The Authority's overall annual DBE goal(s) will be submitted to the DOT Operating Administration(s) from which the Authority anticipates receiving federal financial assistance in excess of the established threshold requirements by August 1 each year.

1. Step 1: Base Figure

Once the Authority defines its DOT-assisted contracting programs and corresponding market areas for a given federal fiscal year, the Authority will establish a base figure of ready, willing, and able DBEs to participate in the Authority's DOT-assisted contracts, following one of the federally prescribed goal-setting methodologies, in accordance with 49 CFR Section 26.45, as an initial step in the overall annual DBE goal-setting process.

The Authority may survey the relative availability of DBEs by:

Utilizing the most current data available from DBE directories such as the California Unified Certification Program (CUCP) DBE Database and the U.S. Census Bureau's County Business Patterns database to determine the number of ready, willing and able DBEs in the designated market area and the number of ready, willing and able businesses that perform work in the same North American Industry Classification System (NAICS) classification codes.

Dividing the number of ready, willing and able DBEs by the number of all ready, willing and able businesses to derive a base figure for the relative availability of DBEs in the Authority's designated market area.




Weighting the resultant figure based on the amount of federal funds the Authority is projected to award and/or expend on various industries.

Utilizing a Bidders List.

Utilizing data from a disparity study, if available.

Utilizing another DOT-recipient's DBE Goal in the same, or substantially similar, market.

Utilizing methodologies that are based on demonstrable evidence of local market conditions and that are designed to ultimately attain a goal that is rationally related to the relative availability of DBEs in the Authority's market area.

2. Step Two: Adjusting the Base Figure

As a mandatory second step, the Authority will examine all of the evidence available in the Authority's jurisdiction to determine what adjustment, if any, shall be applied to the base figure in order to arrive at the Authority's overall goal, which may include, but is not limited to:

Demonstrated evidence of DBE capacity to perform work in the Authority's DOT-assisted contracting program;

Real market conditions;

Disparity studies conducted within the jurisdiction; and

Other relevant factors, including:

1. The number, types and dollar value of contracting opportunities projected to be financed with federal funds and to be awarded during the fiscal year.

2. The number of ready, willing and able DBEs available to compete for such contracts.

3. Other recipients' goal results in similar contracting opportunities and markets, and the reasons for the level of those results.

4. The methods used by the Authority to increase DBE participation in federally-assisted contracts.

5. The demographics and business activity of the market area in which the Authority will solicit bids and/or proposals.

6. The data from statistical disparities studies in the ability of DBEs to obtain financing, bonding, and insurance requirements to participate in the Authority's DBE Program.

7. The data from studies of employment and self-employment, education, and training programs, to the extent that the Authority can relate it to the opportunities for DBEs to perform in the Authority's DBE Program.

3. Public Participation & Outreach Efforts (§26.45; §26.51)

i.) Publication of Proposed Overall Annual Goals




Prior to submission to the appropriate U.S. Department of Transportation Operating Administration(s), the Authority will publish the proposed overall annual goal in general circulation, trade associations, and available minority-focused media. Said publications shall include:

A statement that the methodology and proposed annual overall goal for DBE participation in the Authority's federally-assisted contracts are available for public inspection for a period of 30 days from the date of publication.

Notification that the Authority will accept public comments on the proposed goal and rationale for a period of 45 days from the date of publication. Instructions for the submission of comments will also be included.

The address of the Authority to which comments may be sent.

Upon receipt of any and all responses from the general public, the Authority's DBE Liaison Officer will analyze the comments, summarize the results, and formulate modifications to the proposed overall DBE goal or methodology as deemed necessary and forward such to the Chief Executive Officer for submission to the affected DOT Operating Administration.

ii.) Outreach and DBE Program Consultation

In addition to the provision of public notice regarding the overall annual DBE goal, the Authority will undertake specific efforts to foster public participation and to consult with and to solicit input from a variety of constituent groups representing minorities, women, general contractors, community groups, officials and other organizations reasonably expected to possess information regarding the availability of disadvantaged and non-disadvantaged businesses, the impacts and effects of discrimination on opportunities for DBEs, and the Authority's efforts to promote fair competition for DBEs.

The overall annual DBE goal will be reaffirmed by public notice annually, prior to formal adoption by the Authority's Board of Directors, and prior to submission to the FTA's Civil Rights Officer or other DOT Operating Administration. In addition to the foregoing, interested disadvantaged and non-minority contractor organizations will receive direct mailings of the Authority's DBE Program and proposed DBE goals.

B. Race-Neutral Measures (§26.39)

The Authority will annually consider appropriate factors in projecting and facilitating DBE participation utilizing race-neutral measures in accordance with federally prescribed provisions, which state, in pertinent part(s), that recipients must meet the maximum feasible portion of their overall goal by utilizing race-neutral means.

Accordingly, each time the Authority submits its overall annual DBE goal for review by the concerned Operating Administration, the Authority will submit its projection of the portion of the goal that it expects to meet through race-neutral means and its basis for the projection.




The Authority hereby affirms its policy, consistent with federal law and regulation, to encourage measures that facilitate small business participation, thus augmenting race-neutral efforts to meet DBE goals. Under this policy, Contractors shall take all reasonable measures to eliminate obstacles to participation by Small Business Concerns (as defined in Section III). Measures to be taken may include, but are not limited to, those measures described later in this Section B.

Under this policy, Bidders and Contractors may be required to submit a Small Business Plan, which shall at a minimum, state their commitment to the Authority’s Small Business Concerns policy; describe the steps planned to facilitate small business participation; list areas of anticipated work to be subcontracted to Small Business Concerns during each fiscal year of the Contract; describe any efforts for reporting to Authority as to Small Business Concerns’ participation beyond those required herein or by the Contract; and describe any other affirmative steps taken or to be taken to ensure nondiscriminatory (on the basis of business size) results and practices in the letting of subcontracts.

As part of this policy, the Authority may choose on a case-by-case basis, to apply all or part of its Small Business Enterprise Program to its federally-funded procurements.

The following race-neutral measures will be utilized to facilitate DBE participation, as appropriate:

1. Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate DBE, and other small businesses, participation (e.g., unbundling large contracts to make them more accessible to small businesses, requiring or encouraging prime contractors to subcontract portions of work that they might otherwise perform with their own forces);

2. Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, eliminating the impact of surety costs from bids, and providing services to help DBEs, and other small businesses, obtain bonding and financing);

3. Providing technical assistance and other services; 4. Carrying out information and communications programs on contracting

procedures and specific contract opportunities (e.g., ensuring the inclusion of DBEs, and other small businesses, on recipient mailing lists for bidders; ensuring the dissemination to bidders on prime contracts of lists of potential subcontractors);

5. Ensuring distribution of the DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors;

6. The Authority will also institute race-neutral measures for all contracts up to a $50,000 threshold. Accordingly, for these contracts, which have a total value exceeding $2,500 but not more than $50,000, procurements staff will be required to solicit a minimum of three (3) written quotations, one (1) of which must be from a DBE firm. Such solicitations will comply with all other prescribed federally aided contract requirements, including,




but not limited to, substitutions and/or additions, as well as contractor Good Faith Efforts requirements as outlined in this Program.

C. Race-Conscious Measures

The Authority will annually consider appropriate factors in projecting its use of race-conscious measures to meet its overall annual DBE goal in accordance with federally prescribed goal-setting provisions.

The Authority will accordingly establish contract-specific numeric goals as deemed necessary to drive DBE participation towards meeting its overall annual DBE goal. Further, the Authority will monitor and adjust the estimated utilization of race-neutral and race-conscious methods as required in accordance with 49 CFR Section 26.51(f).

D. Methodology for Setting Contract-Specific Goals (§26.51)

The DBE Liaison Officer shall establish contract-specific DBE participation goals to meet any portion of the overall goal the Authority does not project being able to meet using race-neutral means. Contract goals are established over the period to which the overall goal applies and will cumulatively result in meeting any portion of the Authority's overall goal that is not projected to be met through the use of race-neutral means.

The Authority will establish contract-specific goals only on those DOT-assisted contracts for which subcontracting possibilities have been identified. The Authority will not establish a contract goal on every DOT-assisted contract, and the amount of contract goals will be adapted to the circumstances of each contract (e.g. type and location of work, subcontracting opportunities, and availability of DBEs to perform).

The DBE Liaison Officer will determine whether a contract-specific goal should be established for the particular contract and, if so required, will express the goal(s) as a percentage of the total amount of a DOT-assisted contract.

E. Procedures to Evaluate Award of Contract with Contract Specific Goals

The Authority shall award contracts to the apparent successful bidder/proposer as required by the California Public Contract Code, where applicable. However, for such contracts, as well as for contracts awarded pursuant to a competitive negotiation (e.g. RFP or RFQ) procedure, a bidder/proposer that fails to demonstrate that it achieved the contract-specific DBE participation goal and/or fails to demonstrate that it made adequate Good Faith Efforts to do so in accordance with Section VI.G.2, shall be deemed "non-responsive" and, shall be ineligible for award of the contract.

1) Evaluation of Bids or Proposals

After the bid opening, or upon the submission deadline for proposals, the DBE Liaison Officer or designee shall review all information for completeness and accuracy, and the DBELO shall evaluate all bids/proposals to determine whether the bidders/proposers submitted all of the information required by 49 CFR Section 26.53(b). The apparent successful bidder/proposer with the lowest apparent bid price, or the most highly ranked




bidder/proposer who also meets the contract—specific DBE goal or demonstrates adequate Good Faith Efforts, shall be recommended for contract award. In the event the bidder/proposer with the lowest monetary bid price fails to meet the contract-specific goal or fails to demonstrate adequate Good Faith Efforts, or is otherwise non¬responsive or not responsible, the DBE Liaison Officer shall evaluate the bidder/proposer with the next lowest bid price.

Should the DBE Liaison Officer determine that additional information is needed to evaluate a bidder's/proposer's submission with regard to the DBE requirements, the DBE Liaison Officer shall request the bidder/proposer to submit the required information, or the DBELO may contact the listed DBE(s) directly.

2) Evaluation of DBE Certification Status

The DBE Liaison Officer or designee shall require that the DBEs listed by bidders/proposers for participation in contracts with goals be certified as eligible DBEs at the time of bid/proposal submission in order for their participation to be counted towards meeting the established contract-specific DBE goal.

While the Authority is a non-certifying member agency of the California Unified Certification Program (CUCP), it will accept certification from other CUCP certifying member agencies which certify the eligibility of DBEs in accordance with 49 CFR Part 26, Subpart E: Certification Procedures. (See Section VIII: DBE Certification Standards for a list of certifying agencies.)

3) Recommendation for Award

Following the determination of the bidder's/proposer's responsiveness and responsibility to DBE requirements set forth in the solicitation, the DBE Liaison Officer shall prepare a report relative to contract-specific DBE requirements, to be submitted for presentation to the Board of Directors at the time the contract award is considered.

4) Bidder's/Proposer's Right to Administrative Reconsideration

In the event the DBE Liaison Officer determines that the apparent successful bidder/proposer has not met the contract-specific goal and has not demonstrated adequate Good Faith Efforts, the DBE Liaison Officer will notify the bidder/proposer in writing. The notification shall include the reasons for the determination and that the bidder/proposer has the right to submit written documentation or appear before the Reconsideration Official or designee for reconsideration prior to the time that a recommendation for award of contract is presented to the Board of Directors. The Reconsideration Official or designee shall provide the bidder/proposer with a written decision on reconsideration, explaining the basis for its determination.

In the event that the Reconsideration Official or designee finds that the bidder/proposer has not met the contract—specific goal or has not demonstrated adequate and substantive Good Faith Efforts, the DBE Liaison Officer will deem said bidder/proposer as non-responsive and evaluate the bidder/proposer submitting the next qualified bid/proposal.




The result of the reconsideration process is not administratively appealable to the Department of Transportation. (Refer to Section IV.B: Reconsideration Official.)

F. Transit Vehicle Manufacturers (TVM) Certifications (§26.49)

The Authority shall require Transit Vehicle Manufacturers to certify that they have fully complied with this section and that they have established an overall annual DBE participation goal that has been approved by the FTA before they can bid or propose on any Authority FTA-assisted transit vehicle procurements. Expenditures for FTA-assisted transit vehicle procurements are not included in the funding base used to calculate the Authority's goal for DBE participation.

G. Meeting Established Goals and Evidence of Good Faith Efforts (§26.53; Appendix A)

If the bidder's/proposer's value of DBE participation does not meet the contract-specific goal, the DBE Liaison Officer shall review the Good Faith Efforts documentation submitted by the bidder/proposer to determine responsiveness. The DBE Liaison Officer shall determine whether the bidder/proposer has performed the quality, quantity, and intensity of efforts that demonstrates a reasonably active and aggressive attempt to meet the contract-specific goals as outlined herein.

The following sections outline the requirements of firms competing for Authority contracts to comply with either meeting the goal, documenting commitments for participation by DBE firms sufficient for this purpose, or documenting adequate Good Faith Efforts to do so. Failure of a bidder/proposer to meet the DBE goals, or failure to demonstrate that sufficient Good Faith Efforts were made, will effectuate the bidder/proposer to be deemed as non-responsive.

1) Meeting Established Goals

For each solicitation for which a contract-specific goal has been established, the Authority will require bidders/proposers to submit the following DBE information to the Authority within the prescribed timeline set forth in each solicitation:

The names and addresses of DBE firms that will participate in the contract;

A description of the work that each DBE firm will perform;

The dollar amount of the participation of each DBE firm participating;

Written and signed documentation of the bidder's/proposer's commitment to use a DBE subcontractor whose participation it submits to meet or exceed an established contract-specific goal;

Written and signed confirmation from the DBE firm that it is participating in the contract as provided in the prime contractor's commitment;

Written and signed confirmation that the proposed DBE is certified in accordance with 49 CFR Part 26 at the time the bid/proposal is submitted; and




If partial or no DBE participation has been attained, evidence of Good Faith Efforts. (See Section 2 below and refer to Appendix A to 49 CFR Part 26.)

The Authority advises potential bidders/proposers that if the DBE participation commitments specified in their respective bid/proposal submission exceeds the Authority's established contract-specific goal, the specified DBE goal commitment shall become the DBE goal of record under the contract.

2) Demonstration of Good Faith Efforts (§26.53)

The Authority will require bidders/proposers to comply with Good Faith Efforts requirements as a matter of responsiveness. The obligation of the bidder/proposer is to make Good Faith Efforts towards meeting or exceeding the established contract-specific DBE goals. The bidder/proposer can meet the goal by documenting commitments for participation by DBE firms.

Second, even if the bidder's/proposer's efforts to meet the established goal result in partial or no DBE participation, all bidders/proposers must document adequate Good Faith Efforts documentation (which were undertaken prior to bid submittal) and submit such unless otherwise specified in the solicitation. In this instance, the Bidder/Proposer must demonstrate that it took all necessary and reasonable steps to achieve the established DBE goal, which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if the bidder/proposer was not fully successful.

The efforts employed by the bidder/proposer should be consistent with actively and aggressively trying to obtain DBE participation sufficient to meet the established DBE contract goal. Mere pro forma efforts are not Good Faith efforts to meet DBE requirements. The Authority will make a fair and reasonable judgment whether a bidder/proposer that did not meet the goal made adequate Good Faith Efforts to do so.

The DBELO or designee will be responsible for determining whether a bidder/proposer who has not met the established contract DBE goal has documented sufficient Good Faith Efforts to be regarded as responsive.

The Factors delineated below represent the types of efforts that the Authority will consider as part of the bidder's/proposer's Good Faith Efforts to obtain DBE participation. However, the foregoing is not intended to be an exclusive or exhaustive list of all Good Faith Efforts that can be performed to meet the objectives of this part.

To attain the maximum allocable points for each of the identified Factors, bidders/proposers must document the full level of Good Faith Efforts as prescribed; points will be allocated in commensuration with the level of effort undertaken.

NOTE: For Factors 1, 2, 3, 4, 5, 8, and 9, a bidder's/proposer's Good Faith Efforts will be evaluated based on a "Pass or Fail" basis. (For example, if literal compliance in meeting these factors is not sufficiently documented, zero (0) points will be allocated.) Bidders/proposers must attain a minimum of seventy (70) points out of a possible 100 for the bid/proposal to be considered responsive.




1 ATTENDANCE AT PRE-BID CONFERENCE/JOB WALK THROUGH

5 points

Effort: Attendance at pre-bid/pre-proposal conference and job walk through, if held by Authority, to solicit the interest of certified DBEs who have the capability to perform the work of the contract.

Evidence: Name, title and date of person(s) attending, to be verified by conference sign-in sheet.

2 IDENTIFICATION OF SCOPE OF WORK FOR SUBCONTRACTING

10 points

Effort: Selecting and defining portions of the work that can be subcontracted to DBEs in order to increase the likelihood that the DBE goal(s) will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation even when the Prime contractor might otherwise prefer to perform these work items with its own forces.

Evidence: Identifying efforts made to reasonably structure the contract scope of work for purposes of subcontracting to DBEs, including documentation showing the portion of the scopes of work DBEs will be solicited to bid/propose on and the associated dollar value of each item. Bidders/proposers should also identify the scope of work that the bidder/proposer intends to perform with its own workforce.

3 ADVERTISEMENT OF SUBCONTRACTING OPPORTUNITIES

5 points

Effort: Timely place advertisement(s) in one general circulation, one trade association publication, and at least one disadvantaged/minority and women business focus medias. The advertisements must include, at a minimum, identification of specific subcontracting opportunities being solicited, project name, location, and DBE goal, including identification of the Authority as the Owner and bidder's/proposer's contact person, including name, address, phone, fax, bid/proposal solicitation due date, and a statement that bidder/proposer intends to conduct itself in good faith with DBE firms for participation on the project. Advertisements should appear within the prescribed timeline set forth in each solicitation.

Evidence: As verification of publication, the bidder/proposer must provide a listing of advertisements placed, including copies of advertisement tear sheets and/or proof of

4 WRITTEN REQUESTS FOR PROPOSALS 10 points

Effort: Provision of extending written notices to DBEs to solicit interest in all of the identified subcontracting areas toward promoting participation. There should be a sufficient number of written invitations to DBE firms for each subcontracting area




identified. Notices should be issued within the prescribed timeline set forth in each solicitation.

Evidence: Copy of the solicitation letter and a listing of DBE recipients, including name, address, phone number, and date solicited, segregated by each subcontracting area identified, and identification of the mode of communication utilized (e.g. fax or email), including corresponding copies of letters and/or fax confirmations.

5 SOLICITATION FOLLOW-UP 15 points

Effort: Subsequent efforts to follow-up on initial solicitations to DBEs, including contract requirements, plans, and specifications timely provided to DBEs for purposes of soliciting their bids/proposals.

Evidence: Bidders/proposers must determine with certainty if the DBEs are interested by taking appropriate steps to follow-up on initial solicitations. Documentation should include:

(a) Names, addresses, and telephone numbers of DBEs contacted by each subcontracting area identified/solicited;

(b) Description of information timely provided to interested DBEs about the contract requirements, plans, and specifications to assist DBEs in responding to the solicitation; and the dates and manner in which these documents were made available; and

(c) Statement of justification re: unsuccessful solicitation of DBEs.

6 NEGOTIATION IN GOOD FAITH 25 points

Effort: Negotiating in good faith with interested DBEs to facilitate DBE participation. Utilization of a sound basis for the selection and/or rejection of DBE bids/proposals.

A bidder/proposer using good business judgment must consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and must take a firm's price and capabilities, as well as contract goals, into consideration. The fact that there may be some additional costs involved in using DBEs is not, in itself, sufficient reason for a bidder's failure to meet the established contract DBE goal. Also, the ability or desire of a Prime Contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make Good Faith Efforts toward meeting the objectives of this part. Evidence of a willingness to modify planned Prime Contractor scope or subcontract packaging to facilitate DBE participation will demonstrate serious effort.

Barring lack of qualifications to perform work, only significant price differences (the relevant Federal regulations reference 10% or more as significant) between the selected firm and rejected DBE firms' proposed costs would be considered as valid cause for rejecting bids. Additionally, union vs. non-union employee status is not a legitimate cause for the rejection or non-solicitation of bids in the bidder's/proposer's efforts to meet the project goal.




Evidence: Documentation of such negotiation includes the names, addresses, and telephone numbers of all subcontractors (DBEs and non-DBEs) that submitted a bid, including copies of all bids received for each portion of work solicited, accompanied by stated reasons for bidder's/proposer's choice of the selected and/or rejected subcontractor/subconsultant bid/proposal. Include in the negotiation documentation of the reasons why additional agreements could not be reached with a DBE to perform the work. Failure of a bidder/proposer to comply by providing and disclosing ALL bids received will result in zero (0) points being allocated for this Factor.

7 PERFORMANCE OF OTHER BIDDERS/ PROPOSERS IN MEETING THE DBE GOAL

20 points

Effort: In determining whether a bidder/proposer has made Good Faith Efforts, the Authority will take into account the performance of other bidders/proposers in meeting the established contract-specific DBE goal requirements.

Evidence: The individual bidder's/proposer's effort/commitment in meeting the established contract DBE goal will be evaluated against the average DBE participation commitments by the three (3) lowest responsive bidders/proposers. If there are fewer than three (3) responsive bidders/proposers, the average of the two (2) lowest bidders'/proposers' goal commitments will be considered. A below average bidder/proposer may be allocated points for satisfaction of this Factor.

8 PROVISION OF ASSISTANCE TO DBEs TO OBTAIN BONDING LINES OF CREDIT AND/OR

INSURANCE

5 points

Effort: Offer or provide assistance to interested DBEs in obtaining bonding, lines of credit, and/or insurance as required by the Contractor.

Evidence: A description of assistance extended and made available by the bidder/proposer to interested DBEs in obtaining bonding, lines of credit, and/or insurance. At the minimum, the bidder/proposer must provide evidence of the availability of assistance by providing copies of subcontracting advertisements and DBE solicitation letters.

9 UTILIZATION OF COMMUNITY OUTREACH 5 points

Effort: Utilization of outreach services available within the DBE community, including contractor groups, local, state and federal DBE offices, and other organizations that provide assistance in the recruitment and placement of DBEs. Notices to community outreach services should be issued within the prescribed timeline set forth in each solicitation.

Evidence: Copies of letters, faxes, telephone logs, and any similar communication materials used to contact organizations, which include the names of organizations/groups, dates, names of contacts, and telephone numbers; also copies of




correspondence received from these entities acknowledging contact. The bidder/proposer must document outreach to a minimum of five (5) organizations/groups.

Only those efforts made prior to the bid/proposal submittal due date will be considered in the evaluation of the bidder's/proposer's Good Faith Efforts. Failure to submit the required Good Faith Efforts documentation by the time specified will have grounds for finding the bid/proposal to be non-responsive. Other bidders/proposers need not submit Good Faith Efforts documentation unless requested to do so by the Authority.

H. Termination of Subcontractor (§26.53 (f))

The Authority will require that the prime contractor may not, without the Authority's prior written consent:

a) Terminate for convenience an approved DBE subcontractor (or an approved substituted DBE firm), nor

b) Terminate a subcontractor and perform the work of the terminated subcontract with its own forces or those of an affiliate;

and in either case only upon a showing of Good Cause (as described in 49 CFR Section 26.53(f)).

If the DBE subcontractor is terminated, or if the DBE fails to complete its work on the contract for any reason, the prime contractor must make Good Faith Efforts to find another DBE subcontractor to substitute for the original DBE. These Good Faith Efforts shall be directed at finding another DBE to perform at least the same amount of work under the contract as the DBE that was terminated, to the extent needed to meet the contract goal established for the procurement.

I. Use of Set-Asides or Quotas (§26.43)

The Authority shall not permit the use of quotas for DBEs on DOT-assisted contracts in accordance with 49 CFR Section 26.43. Further, the Authority shall not set aside contracts for DBEs, except in limited and extreme circumstances where no other method could reasonably be expected to redress egregious instances of discrimination.

J. Counting DBE Participation (§26.55)

The Authority will count DBE participation toward overall and contract-specific goals as provided in the solicitation and contract specifications for the prime contractor, subcontractor, joint venture partner with prime or subcontractor, or vendor of material or supplies.

This section will address how DBE participation is counted toward the Authority's DBE goals once a DBE is determined to be certified and eligible to participate in the Authority's DBE Program. The following guidelines apply in calculating DBE participation toward meeting established goals in accordance with 49 CFR Section 26.55:




a) Only work proposed to be performed by a DBE's own work forces (including cost of supplies, materials, and equipment leases) obtained by the DBE for the work of the contract, except supplies and equipment the subcontractor purchases and/or leases from the prime contractor or its affiliate.

b) When a DBE subcontracts part of the work of its contract to another firm, the value of the subcontracted work may be counted towards DBE goals only if the DBE subcontractor is itself a certified DBE. Work that a DBE subcontracts to a non-DBE firm does not count toward DBE goals. A DBE should perform at least thirty percent (30%) of the total cost of its contract with its own workforce.

c) In instances of a joint venture, a bidder/proposer may only count, toward its DBE goal, the portion of the work proposed to be performed by the certified DBE partnering firm that meets certification, ownership, and control standards.

d) A bidder/proposer may count, toward its DBE goal, only expenditures to firms that are proposed to perform a commercially useful function on that contract. A DBE performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved.

e) A bidder/proposer may count, toward its DBE goal, sixty percent (60%) of its expenditures for materials and supplies required under the contract and obtained from a DBE regular dealer and, a bidder/proposer may count one hundred percent (100%) of such expenditures to a DBE manufacturer. For purposes of this section, a manufacturer is a firm that operates or maintains a factory or establishment that produces, on the premises, the materials and supplies obtained by the contractor. A regular dealer is a firm that owns, operates, or maintains a store, warehouse, or other establishment in which -the materials or supplies required for performance of the contract are bought, kept in stock, and regularly sold to the public in the usual course of business.

f) A bidder/proposer may count, toward its DBE goal, fees and commissions paid to DBE firms that are not manufacturers or regular dealers, provided that the fees or commissions are determined by the Authority to be reasonable and not excessive when compared with fees customarily allowed for similar services.

g) Special Provisions for Trucking - A bidder/proposer may count, toward its goal, all transportation services provided by DBE trucking firms who can demonstrate control of trucking operations for which it seeks credit and which it owns, insures, and operates, using drivers it employs, in the performance of the contract. The DBE must itself own and operate at least one, fully licensed, insured, and operational truck used on the contract. The DBE trucking firm may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the contract. In addition, the DBE may also lease trucks from a non-DBE firm, including trucks from an owner-operator. The DBE who leases trucks from a non-DBE is entitled




only for the fee or commission it receives as a result of the lease arrangement. The DBE, therefore, does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by a DBE. If a recipient chooses this approach, it must obtain written consent from the appropriate Operating Administration.

h) In cases where DBE certification has lapsed or has been terminated during the performance period of the contract, the prime contractor is eligible to continue to report the dollar value of the work performed by the affected DBE firm to the Authority on the monthly DBE Subcontractors Paid Report Summary and Payment Verification (Form 103). The Authority will not credit the DBE participation towards its overall agency DBE goal.

i) The Authority will not credit the participation of DBE subcontractors toward a contractor's DBE goal obligation until the amount has actually been paid to the DBE.

K. Commercially Useful Function Standards (§26.55)

Count expenditures to a DBE contractor/consultant toward the DBE goals only if the DBE is performing a commercially useful function on that contract.

A. A DBE performs a commercially useful function when it is responsible for execution of the work of its contract and when it is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, installing the material (where applicable), and paying for the material itself. To determine whether a DBE is performing a commercially useful function, the Authority will evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing, the DBE credit claimed for its performance of the work, and other relevant factors.

B. A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, the Authority may examine similar transactions, particularly those in which DBEs do not participate.

C. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its contract with its own work force or, if the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, one must presume that it is not performing a commercially useful function.




D. When a DBE is presumed not to be performing a commercially useful function as provided in the previous bullet, the DBE may present evidence to rebut this presumption. The Authority will determine that the firm is performing a commercially useful function given the type of work involved and normal industry practices.

E. The Authority's decisions on commercially useful function matters are subject to review by the DOT Operating Administration.




VII. REQUIRED CONTRACT PROVISIONS AND ENFORCEMENT

A. Contractor's Assurance Clause Regarding Non-Discrimination (§26.13)

The Authority will ensure that the following clause is placed in all DOT-assisted contracts and subcontracts:

"The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of the Authority's United States Department of Transportation-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the Authority deems appropriate."

B. Prompt Payment Provisions (§26.29)

Prompt Progress Payments to Subcontractors

The Authority has adopted a prompt payment provision on all DOT-assisted contracts to facilitate timely payment to all subcontractors in accordance with regulatory mandates. This provision requires a contractor to issue payment to all subcontractors (DBEs and non-DBEs), for satisfactory performance of their contracts, no later than ten (10) calendar days from receipt of each payment made to the contractor by the Authority.

Commencing with the contractor's second invoice, the contractor shall provide the Authority with evidence, in the form of a signed assurance, for which the contractor affirms that it has paid all subcontractors all amounts due for work that the subcontractor has satisfactorily performed. The statement of compliance, signed under penalty of perjury, may be included within the invoice document or as an attachment to the invoice. The Authority reserves the right to request additional appropriate documentation from the contractor evidencing payment to the subcontractor.

Payment of Retention Withheld from Subcontractor

In addition to the prompt progress payment requirement set forth above, the Authority has also adopted a prompt payment provision on all DOT-assisted contracts to facilitate timely disbursement of retention proceeds withheld by the prime contractor, requiring the 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.

In accordance with Revised §26.29, "Prompt Payment Provisions" (Federal Register —dated June 16, 2003), the Authority, at its discretion, may elect to utilize one of the following methods to comply with the prompt payment of retainage requirement:




1. Decline to hold retainage from prime contractors and prohibit prime contractors from holding retainage from subcontractors.

2. Decline to hold retainage from the prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage kept by the prime contractor to the subcontractor within thirty (30) days after the subcontractor's work is satisfactorily completed.

3. Hold retainage from prime contractors and provide for prompt and regular incremental acceptances of portions of the prime contract, pay retainage to prime contractors based on these acceptances, and require a contract clause obligating the prime contractor to pay all retainage owed to the subcontractor for satisfactory completion of the accepted work within thirty (30) days after payment to the prime contractor.

Any delay or postponement of payment from the above-referenced timeframes may occur only for good cause following written approval from the Authority. Failure to comply with this provision without prior approval from the Authority will constitute noncompliance, which may result in the application of appropriate administrative sanctions, including, but not limited to, a penalty of two percent (2%) of the invoice amount due per month, for every month that full payment is not made.

These prompt payment provisions must be incorporated in all subcontract agreements issued by the contractor.

C. Contractor Reporting Requirements and Authority's Compliance Monitoring and Enforcement (§26.55)

1) Notification of Reporting Responsibilities

Prior to execution of all contracts containing DBE goals, the prime contractor shall be directed to the contract specification for the Authority's specific DBE reporting and recordkeeping requirements.

2) DBE Activity Reporting Forms

All prime contractors shall submit monthly progress reports on DBE utilization to the Authority on Form 103: "Monthly DBE Subcontractors Paid Report Summary and Payment Verification" (refer to Appendix E). Failure to submit these reports in a timely manner shall result in a penalty of $10 per day, per report.

3) Contractor Good Faith Efforts and Reporting Obligations

During the term of the contract, the contractor shall continue to make Good Faith Efforts to ensure that DBEs have an opportunity to successfully perform in the contract, and to ensure that the contractor meets its DBE goal. These efforts shall include, but shall not be limited to, the following:

Negotiating in good faith to attempt to finalize and execute a subcontract agreement with the DBEs committed to in the proposal.




Documenting efforts to seek out and utilize additional DBEs when additional subcontractors and/or subconsultants are necessary and are authorized by the Authority.

Continuing to provide assistance to DBEs in obtaining bonding, lines of credit, etc., if required by the contractor.

Notifying a DBE, in writing, of any potential problem and attempting to resolve the problem prior to formally requesting the Authority's written approval to substitute the DBE.

As with all subcontractors and/or subconsultants, timely payment of all monies due and owing to DBEs.

Notifying the Authority in a timely manner, in writing, of any problems anticipated in attaining the DBE participation goal committed to in the bid/proposal.

The prime contractor/consultant may not count the participation of DBE subcontractors towards that prime contractor's/consultant's DBE achievements until and unless that amount which is being credited toward the goal has been paid to the DBE.

The prime contractor/consultant may not terminate an approved DBE subcontractor/subconsultant for convenience and perform the work of the terminated DBE subcontractor/subconsultant with its own work force or with those of an affiliate, without prior written consent from the Authority.

When a DBE subcontractor/subconsultant is terminated or fails to complete its designated scope of work on the contract for any reason, the prime contractor must make Good Faith Efforts to find another DBE subcontractor/subconsultant to substitute for the original DBE.

Substitutions for or additions of an approved DBE subcontractor/subconsultant, or changes in any scope of work to be performed by any approved DBE subcontractors/subconsultants must be requested, in writing, by the contractor and must be approved by the Authority. The contractor shall complete and submit to the Authority the corresponding "Request for DBE Substitution" and/or the "Request for Additional DBE Subcontractor/Supplier" form(s) (refer to Appendices C and D, respectively).

Contract Compliance Reporting Requirements - The contractor shall submit monthly progress reports to the Authority (Form 103) in conformance with the currently approved contract performance schedule reflecting its DBE participation. The "Monthly DBE Subcontractors Paid Report Summary and Payment Verification" (Form 103 — refer to Appendix E) shall be submitted to comply with this reporting requirement. Failure to submit this report in a timely manner shall result in the imposition of administrative remedies pursuant to the Authority's DBE Policy and pursuant to U.S. Department of Transportation DBE regulations (49 CFR Part 26).




Change in Contract Amount - The dollar amount of change orders, or any other contract modifications that increase or decrease the work area in which DBE participation has been committed to in the proposal, shall be commensurately added to or subtracted from the total contract base figure used to compute the actual dollars paid to DBEs. Revised total contract dollar values shall be reflected in the monthly DBE progress report submitted to the Authority (Form 103 — refer to Appendix E). The DBE goal applies to the revised contract amount.

A review of the contractor's/consultant's monthly progress reports to determine whether the utilization of DBE firms is consistent with the commitment of the contractor/consultant as stated in its bid/proposal.

D. Administrative Remedies for Non-Compliance by Contractors

All contractors deemed to be in non-compliance with the Authority's DBE policies and requirements shall be informed in writing, by certified mail, by the DBE Liaison Officer or designee, that administrative remedies shall be imposed for failure to meet DBE utilization goals and/or for failure to submit documentation of Good Faith Efforts. The contractor shall be given five (5) working days from the date of the notice to file a written appeal with the Contracts Manager for the Authority. Failure to respond within the five (5) day period shall constitute a waiver of appeal. The notice shall state the specific administrative remedy to be imposed.

The Chief Executive Officer, at his/her sole discretion, may schedule a hearing to gather additional facts and evidence and shall issue a final determination on the matter within five (5) working days of receipt of the written appeal. The written decision of the Chief Executive Officer or designee is final and cannot be further appealed by any other agency.

In the event that the contractor is unable to meet the DBE goal, the Authority reserves the right to initiate Administrative Remedies, which shall include, but shall not be limited to, the following:

a) Withholding of payments due equivalent to the difference between the actual DBE attainment and the contract DBE goal;

b) Suspension of payment to the Contractor of any other monies held by the Authority;

c) Termination of the Contract, in part or in whole.

The Administrative Remedies shall not apply if the Contractor is able to demonstrate, to the satisfaction of the Authority, that it exercised Good Faith Efforts in an attempt to meet the contract DBE goal.

The Authority will bring to the attention of the DOT Operating Administration, any false, fraudulent, or dishonest conduct in connection with the Authority's DBE program, so that the DOT Operating Administration can take the necessary and appropriate steps (e.g. referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, or action under suspension and debarment or Program Fraud and Civil Penalties rules) as provided in 49 CFR Section 26.109. The Authority also will




consider similar action under its own legal authorities, including, but not limited to, responsibility determinations in future contracts.




VIII. DBE CERTIFICATION STANDARDS (§26.61 - §26.73; §26.83 (A))

The Authority will use the certification standards of Subpart D and Appendix E of the Regulations to determine the eligibility of firms to participate as DBEs in DOT-assisted contracts.

A. Unified Certification Program (UCP) (§26.81)

The Authority requires all DBEs listed by bidders/proposers for participation in DOT-assisted contracts to be certified as eligible DBEs at the time of bid/proposal submission. Only participation by DBEs certified under 49 CFR Part 26 may be counted toward meeting the established contract-specific DBE goal. It is the responsibility of the bidder/proposer to verify the DBE certification status of all listed DBEs.

The Authority is a Non-Certifying Unified Certification Program (UCP) participating member agency in accordance with 49 CFR Part 26. The Authority will accept DBE Certifications from the following Certifying Member Agencies, which certify the eligibility of DBEs in accordance with 49 CFR Part 26, under the California UCP:

Certifying Member Agency Address Telephone

Number

City of Los Angeles

Office of Contract Compliance www.lacity.org/bca

600 S. Spring St., #1300 Los Angeles, CA 90014

(213) 847-6480

Los Angeles County Metropolitan Transportation Authority

Small Business Diversity & Labor Compliance www.mta.net

One Gateway Plaza Los Angeles, CA 90012

(213) 922-2600

Orange County Transportation Authority

Small Business Programs www.octa.net

550 S. Main Street P.O. Box 14184 Orange, CA 92863-1584

(714) 560-5620

California Department of Transportation (Caltrans)

Civil Rights www.dot.ca.gov

1823 14th

Street MS-79 Sacramento, CA 95814

(916) 324-1700 Toll Free: (866) 810-6346

City of San Diego

Equal Opportunity Contracting Program www.sandiego.gov

1010 Second Avenue, Suite 500 San Diego, CA 92101

(619) 533-4492

Santa Clara Valley Transportation Authority (VTA)

Small & Disadvantaged Business www.vta.org

3331 N. First St. San Jose, CA 95134-1906

(408) 321-5962

City of Fresno

DBE Program www.ci.fresno.ca.us

2101 G Street, Building A Fresno, CA 93706

(559) 498-4071

San Francisco Public Transportation Department

Accessible Services & Contract Compliance www.sfmuni.com

1145 Market St., 7th Floor San Francisco, CA 94103

(415) 934-3987

Bay Area Rapid Transit District (BART) Office

of Civil Rights www.bart.gov

1330 Broadway, #1702 Oakland, CA 94612

(510) 464-6195

San Joaquin Regional Rail Commission www.acerall.com

5000 S. Airport Way, #102 Stockton, CA 95206

(209) 468-5600




San Mateo County Transit District (SAMTRANS)/Peninsula Corridor Joint Powers Board (JPB)

DBE Office www.samtrans.corn

1250 San Carlos Avenue San Carlos, CA 94070

(650) 508-7939

Central Contra Costa Transit Authority Office

of Civil Rights www.cccta.org

2477 Arnold Industrial Way Concord, CA 94520-5327

(925) 676-1976 ext. 207

Yolo County Transportation District DBE

Programs www.yolobus.com

350 Industrial Way Woodland, CA 95776

(530) 661-0816 ext. 17




IX. RECORDKEEPING AND MONITORING (§26.11, §26.37)

The Authority will develop and maintain a recordkeeping system as a mechanism for monitoring and tracking DBE contract awards and prime contractors' progress in attaining DBE goals by verifying actual payments made to committed DBEs throughout the performance of the contract. The recordkeeping system will also include a running tally of actual DBE goal attainments.

Areas of identified non-compliance will be subject to administrative sanctions outlined in Section VII.D.

These records will document the following:

a. Procedures adopted by the Authority to comply with DOT regulations.

b. Background documentation used to compile DOT reports, which includes the following data for each contract and subcontract award to a DBE:

1. Type of contract;

2. Name and address of each DBE;

3. A current certification file for each DBE credited toward the goal;

4. The dollar amount of each contract and subcontract; and

5. Reports from prime contractors and suppliers with an accounting of actual expenditures to DBEs and the progress, to date, in meeting their DBE participation commitments.

c. Efforts made by the Authority to locate and make available contracting opportunities to DBEs and efforts demonstrating Good Faith Efforts to ensure fair participation of DBEs in all Authority contract opportunities, including the following:

1. Technical assistance efforts and referrals made by the Authority on behalf of the DBE firms attempting to do business with the Metro Gold Line Foothill Extension Construction Authority.

2. Outreach program efforts, including seminars for DBEs

3. A file for each contract in which the Authority established DBE goals, outreached to DBEs, evaluated the successful competitor's compliance with the DBE goal, and monitored the contractor's performance to meet the DBE goal.

The standards of counting both race-neutral and race-conscious DBE participation towards a DBE goal imposed on competitors will also apply to the Authority when compiling the DBE reports for DOT and the Board of Directors.




A DBE may enter into subcontracts whose value may be counted towards its DBE goal. Where, however, a DBE subcontracts a significantly greater portion of its work than is usual according to industry practices, it is presumed that the DBE is not performing a commercially useful function and, therefore, neither the value of the DBE contract nor lower tiered subcontracts may be counted. The DBE may present evidence to the Authority to rebut this presumption.

The Authority will certify, and make such certifications available to DOT upon request, that it has reviewed applicable contracting records pursuant to this Section IX, and that it has monitored work sites as reasonably necessary to ensure that work committed to DBEs was actually performed by them. Such certification and monitoring may occur at contract closeout or other appropriate times as determined by Authority.

A. Bidders List (§26.11)

The Authority will develop a mechanism to establish and maintain a Bidders List consisting of all firms bidding on prime contracts and of all firms bidding or quoting on subcontracts on DOT-assisted projects. The following information will be included in the bidders list:

1. Firm Name; 2. Address; 3. Number of Years in Business; 4. Status as a DBE or non-DBE; 5. Type of Work; and 6. Annual Range of Gross Receipts.

B. Monitoring Payments to DBEs (§26.37)

The Authority shall monitor and enforce the prime contractor's compliance with the prompt payment provisions to ensure all contract terms and conditions are fully adhered to as described in Section VII.B. Evidence of payment made to subcontractors must be provided at the Authority's request to verify compliance. Credit towards overall or contract goals will only be given upon satisfactory evidence that payments were actually made to DBEs. Failure to comply with these provisions or, delay in payment without prior written approval from the Authority, will constitute noncompliance which will result in the appropriate administrative sanctions, up to and including withholding of payment(s) to the prime contractor.

It is the contractor's responsibility to maintain records and documents upon completion of the contract. These records will be made available for inspection, upon request, by any authorized representative of the Authority, the FTA, or the DOT. This reporting requirement is also extended to any certified DBE subcontractor(s).

Contractors are required to maintain all related DBE compliance records and documents throughout the contract. These records shall be made available for inspection, upon request, by any authorized representative of the Authority or DOT. This reporting requirement is also extended to any certified DBE subcontractor(s).




The Authority may perform interim audits of contract payments to DBEs. The audit will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the report of proposed DBE participation.

The Authority will monitor and track the contractor's/consultant's actual DBE participation attainments and payments through the contractor's "Monthly DBE Subcontractors Paid Report Summary and Payment Verification" - Form 103 (refer to Appendix E). Additionally, the contractor shall attach verification of payment to the DBEs with the monthly DBE report (Form 103).

C. Reporting to DOT (§26.11)

The Authority will submit to the DOT the "Uniform Report of DBE Awards or Commitments and Payments" (refer to Appendix F) semi-annually on June 1 and on December 1 of each year. The June 1 report will include DBE activity from October 1 through March 31. The December 1 report will include DBE activity from April 1 through September 30. This report presents a summary of DOT-assisted Prime Contracts and Subcontracts awarded or committed to, as well as the actual payments for contracts completed and the associated dollar value during this reporting period.

The Authority will retain information related to basic program data for three (3) years in accordance with prescribed guidelines.

Upon request, the Authority will compile and submit ad-hoc DBE contract award and progress reports for DOT-assisted projects. The Authority shall also periodically submit DBE progress reports to the Board of Directors.

Furthermore, the Authority will continue to provide reports about the Authority's DBE Program, as directed. These reports will provide DBE participation information on the Authority's race-neutral and gender-neutral contracts; race-conscious contracts; and the combined DBE participation on all DOT-assisted procurement activities.

APPENDIX A




APPENDIX A DBE PROGRAM REQUIREMENTS

SPECIFIC TO DESIGN-BUILD CONTRACTS

In accordance with 49 CFR Part 26, the following are hereby incorporated into the Authority's Disadvantaged Business Enterprise (DBE) Program:

I. POLICY STATEMENT AND PROGRAM OBJECTIVES (§26.1, §26.23)

The Authority recognizes that certain modifications are necessary to adapt the program for use in connection with design-build contracts, and has, therefore, established certain procedures applicable to design-build DBE contracts under the DBE Program. The Authority's Board has adopted a policy relating to compliance with the Subletting and Subcontracting Fair Practices Act that will be set forth in the design-build contract.

VI. (G)(1) Meeting Established Goals [supplemental information]

Each bidder/proposer for an Authority design-build contract will be required to submit the following as part of a responsive bid/proposal:

1. DBE Performance Plan containing a detailed description of the bidder's/proposer's planned methodology for achieving the DBE goal stated in the contract, including a description of the Good Faith Effort(s) the design-build contractor intends to undertake to achieve the overall project goal. This plan shall include the bidder's/proposer's activities that fulfill the requirements and guidance in the Authority's DBE Program, Section VII.C.3: "Contractor Good Faith Efforts and Reporting Obligations," 49 CFR Section 26.53, and 49 CFR Part 26, Appendix A. The plan shall provide for a DBE Compliance Administrator whose responsibilities shall include managing and implementing the DBE Performance Plan, DBE utilization and payments, reporting DBE activities, and ensuring compliance with all DBE provisions set forth in the contract. The Authority may require the DBE Performance Plan to provide information regarding work to be subcontracted to Small Business Concerns during each fiscal year of the Contract.

2. An affidavit that the bidder/proposer will either attain the DBE goal(s) for the design-build contract or that the bidder/proposer will exercise Good Faith Efforts to do so.

The DBE Performance Plan shall be subject to the Authority's approval. If requested by the Authority either before or after contract award, the successful bidder/proposer shall revise its DBE Performance Plan to incorporate the Authority's comments.

The design-build contractor will be responsible for establishing subsequent contract goals, as appropriate, for the subcontracts it lets, in conformance with 49 CFR Section

APPENDIX A




26.53(e). The Authority will maintain oversight of the design-build contractor's activities to ensure full compliance with the DBE requirements.

VII. (C)(3) Contractor Good Faith Efforts and Reporting Obligations

Additional Reporting Requirements

Ongoing Good Faith Efforts, as described in the Authority's DBE Program, Section VII.C.3: "Contractor Good Faith Efforts and Reporting Obligations," 49 CFR Section 26.53, and 49 CFR Part 26, Appendix A, will be monitored by the Authority throughout the duration of the design-build project based on the following contractor submittals:

a. Following the award of the design-build contract, the contractor will be required to submit a "Monthly DBE Subcontractors Paid Report Summary and Payment Verification Form" (Form 103) to the Authority no later than the 10th of each month (and at more frequent intervals if requested by the Authority). The Form 103 Report is required to be submitted during both the design and construction phases of the project.

b. Following award of the design-build contract, and during both the design and construction phases of the project, the design-build contractor will be required to submit "Monthly Narrative DBE Progress Reports" to the Authority with each invoice and an annual report on or before August 1 of each year of the design-build contract term. Each report must include a narrative summary stating whether the contractor is on target with respect to the DBE goal set forth in the design-build contract, whether the goal has been exceeded (and if so, stating the amount of the excess), or whether the contractor is behind target (and if so, stating the amount of the deficit), and further, the report must include substantiation of such attainments. If any progress report shows that the contractor is behind target or, if any progress report shows that the contractor anticipates being behind target, the report must include satisfactory evidence of past Good Faith Efforts undertaken and must specify additional Good Faith Efforts planned to be taken to remedy deficiencies towards meeting the approved DBE goal, changes to planned DBE participation, and any other efforts to attain the contract DBE goal in accordance with the Authority's DBE Program, Section VII.C.3: "Contractor Good Faith Efforts and Reporting Obligations," 49 CFR Section 26.53, and 49 CFR Part 26, Appendix A. Following review and approval of such proposed additional Good Faith Efforts by the Authority, the contractor shall modify its DBE Performance Plan accordingly.

c. The contractor will promptly provide the Authority with the information requiredby the Authority in its form entitled "Request for Additional DBE Subcontractor/Supplier" (Appendix D) upon selection of any DBE subcontractor not previously identified by the design-build contractor. During the course of the contract, differences and/or variances from originally approved DBE subcontractors must be explained and resolved by either making corrections or by requesting a substitution. All DBE

APPENDIX A




substitution requests must be submitted, in writing, by the contractor to the Authority and are subject to the Authority's approval. Contractor must complete, in its entirety, the "Request for DBE Substitution Form" (Appendix C). Written consent from the Authority is required prior to the approval of any and all DBE substitutions and additions.

________________________________ Habib F. Balian Chief Executive Officer

________________________________ Date

APPENDIX B




METRO GOLD LINE FOOTHILL EXTENSION

CONSTRUCTION AUTHORITY (THE “AUTHORITY”)

DBE PROGRAM ORGANIZATIONAL CHART

Board of Directors

HABIB BALIAN

Chief Executive Officer

Administrative Reconsideration

Official (RO)

DBE Consultant to the Authority

____________

DBE Liaison Officer (DBELO)

DBE Support Staff

APPENDIX C




METRO GOLD LINE FOOTHILL CONSTRUCTION AUTHORITY

REQUEST FOR DBE SUBSTITUTION FORM

Contract Number: Project Name

Prime Contractor/Master Contractor/Prime Consultant:

Request Date: Contact Person

Please provide the following information for the listed or approved DBE subcontractor/subconsultant:

Subcontractor/Subconsultant Name: DBE Certification No.:

Original Contract Value: Current Contract Value:

Address

Contact Person: Phone:

Item # Description of Work/Scope Dollar Amount

Completed

Remaining Dollar

Amount

$ $

$ $

$ $

$ $

TOTAL $ $ $

Please provide the following information for the proposed subcontractor/subconsultant:

Proposed Subcontractor/Subconsultant: DBE Non-DBE

Subcontractor/Subconsultant Name: DBE Certification No.:

Address:

Contact Person: Phone:

Item # Description of Work/Scope Dollar Amount

$

$

$

$

APPENDIX C




REASONS FOR SUBSTITUTION

(Check Appropriate Block)

1. The listed DBE, after having a reasonable opportunity to do so, failed or refused

to execute a written contract based on the terms of such

subcontractor's/subconsultant' s written bid or proposal.

2. The listed DBE is bankrupt or insolvent.

3. The listed DBE failed or refused to perform the contract or furnish the listed

materials.

4. The listed DBE subcontractor failed or refused to meet the bond or insurance

requirements of the Contractor/Consultant.

5. The work performed by the listed DBE subcontractor was substantially

unsatisfactory and was not in substantial accordance with the plans and

specifications, or the DBE subcontractor was substantially delaying or disrupting

the progress of work.

6. Other circumstances qualifying as “good cause” under 49 CFR Section 26.53(f)),

as follows: ________________________________________________________

__________________________________________________________________

__________________________________________________________________

_________________________________________________________________.

GOOD FAITH EFFORT(S) DOCUMENTATION MUST BE ATTACHED WITH THIS

REQUEST; MASTER/PRIME CONTRACTOR/CONSULTANT TO SELECT EITHER

OPTION A OR B:

A. If proposed subcontractor/subconsultant is a DBE, attach DBE firm's certification

letter.

B. If proposed subcontractor/subconsultant is a non-DBE, provide documentation

that Prime Contractor/Consultant made Good Faith Efforts to find another DBE

subcontractor/subconsultant to substitute for the original DBE.

FOR AUTHORITY USE ONLY:

Date Request Received:

Date Letter Sent to Original DBE Subcontractor/Subconsultant:

Approve Request for Substitution: Yes No

If no, state reason:

Reviewed By: Date:

APPENDIX D




REQUEST FOR ADDITIONAL DBE SUBCONTRACTOR/SUPPLIER

The Prime/Master Contractor/Consultant will provide the Authority with the information required below upon

identification of any DBE subcontractor not previously identified by the Prime/Master Contractor/Consultant. Such

request is subject to approval by the Authority. If during the course of the contract, the DBE

subcontractor/subconsultant is unable to perform the work in accordance with the Contract Specifications, the

Contractor shall replace the Subcontractor with another DBE subcontractor/subconsultant, or make Good Faith

Efforts to do so.

Contract No.: Contract Name:

Prime/Master Contractor/Consultant:

Business Address and Phone Number:

Please provide the following information for the proposed additional DBE subcontractor:

Subcontractor Name: DBE Certification No.

Address:

Contract Person: Phone:

Email:

Description of Work (Scope):

Bid Item Number(s): Proposed Subcontract Value:

Copy of DBE Certification Letter attached (required)? Yes No

______________________________________ Contractor/Consultant Representative Signature

____________________________ Title

__________________________________ Business Phone Number

____________________________ Date

FOR AUTHORITY USE ONLY:

Date Request Received: _______________________________________

Approve Request for Additonal DBE Subcontractor? Yes No

If no, please state reason: _______________________________________________________________

Reviewed by: __________________________________________ Date ___________________

Title __________________________________

APPENDIX E




MONTHLY DBE SUBCONTRACTORS PAID REPORTS SUMMARY AND PAYMENT VERIFICATION (Form 103)*

Reporting Period (month): ____________________, 200____

Contract/Project Number: Report Number: Report prepared by:

Project Name: Original Contract Award Amount: Title:

Prime Name: Current Contract Value: Telephone Number: ( )

Address: % of Project Complete:

Telephone Number: ( ) MGL Payment this Month: Date of last Progress Payment

Contact Award Date: Total Dollars Paid to Prime to Date: Received from MGL:

Contract DBE Goal: ____% (of total Contract Value) Total Dollars Paid to DBEs this reporting period:__________ DBE Goal Attainment to date: ____%

Prime’s DBE Commitment:____% (of total Contract Value) Total Dollars Paid to DBEs to date:_____________________

DBE

SUBCONTRACTORS

Dollar Amount Paid

This Reporting

Period

Dollar Amount

Paid to Date

Type of Work

Performed

(Scope)

Original Dollar Amount Committed to

DBE at Contract Award

$+/- resulting

from Change

Order Activity

% of Work

Complated

Date of Last

Payment to

DBE

Name:

Address:

City, State, Zip Code:

Telephone Number: ( ) __________ $ $

Subcontractor Broker Trucker

Supplier: Regular Dealer or Manufacturer

Attach Verification of Payment with Report

Address:





Attach Verification of Payment with Report Address:





Attach Verification of Payment with Report

Comments/issues in attaining goal attainment, and/or Good Faith Efforts performed during this reporting period can be documented in a separate sheet and included with the report.

I certify under penalty of perjury that payments to subcontractors and suppliers have been made from previous payments received under this Project, and timely payments have

been made in accordance with the Prompt Payment Provisions set forth in Metro Gold Line Construction Authority’s Disadvantaged Business (DBE) Program, and the

California Public Contract and Business and Professions Code.

Report reviewed by: _________________________________________ Title: ____________________________________ Date: ____________________________ *If necessary, this form can be duplicated to list all DBE subcontractors paid in this reporting period.

APPENDIX F




UNIFORM REPORT OF DBE AWARDS OR COMMITMENTS AND PAYMENTS **Please refer to the Instructions sheet for directions on filling out this form**

1. Submitted to (check only one): [ ] FHWA [ ] FAA FTA-Vendor Number:______________________

2. AIP Numbers (FAA Recipients Only):

3. Federal fiscal year in which reporting periods falls:

FY_____________________ 4. Date This Report Submitted:

5. Reporting Period: [ ] Report due June 1 (for period Oct 1-Mar 31) [ ] Report due Dec 1 (for period April 1-Sept 30)

6. Name of Recipient:

7. Annual DBE Goal(s): Race Conscious Goal ______% Race Neutral Goal ______% OVERALL Goal ______%

A B C D E F G H I

AWARDS/COMMITMENTS MADE DURING THIS REPORTING PERIOD

(total contracts and subcontracts awarded or

committed during this reporting period)

Total Dollars

Total Number

Total to DBEs

(dollars)

Total to DBEs

(number)

Total to DBEs /Race

Conscious (dollars)

Total to DBEs/ Race

Conscious (number)

Total to DBEs/ Race

Neutral (dollars)

Total to DBEs/ Race

Neutral (number)

Percentage of total

dollars to DBEs

8. Prime contracts awarded this period

9. Subcontracts awarded/ committed this period

TOTAL

A B C D E F G H I

DBE AWARDS/ COMMITMENTS THIS REPORTING PERIOD-

BREAKDOWN BY ETHNICITY & GENDER

Black American

Hispanic American

Native American

Subcont. Asian

American

Asian- Pacific

American

Non-Minority Women

Other (i.e. not of any other

group listed here)

TOTALS (for this

reporting period only

Year-End TOTALS

10. Total Number of Contracts (Prime and Sub)

11. Total Dollar Value

A B C D E

ACTUAL PAYMENTS ON CONTRACTS COMPLETED THIS REPORTING PERIOD

Number of Prime Contracts Completed

Total Dollar Value of Prime Contracts

Completed

DBE Participation Needed to Meet Goal

(Dollars)

Total DBE Participation (Dollars)

Percentage of Total DBE Participation

12. Race Conscious

13. Race Neutral

14. Totals

15. Submitted by (Print Name of Authorized Representative)

16. Signature of Authorized Representative

17. Phone Number: 18. Fax Number:




APPENDIX 7

[NOT USED]




APPENDIX 8

[NOT USED]




APPENDIX 9

DISPUTES BOARD AGREEMENT

THIS DISPUTES BOARD AGREEMENT ("Agreement") is made and entered into this ____ day of __________, 2013, among the Metro Gold Line Foothill Extension Construction Authority, a public entity of the State of California (“Authority”), _________________ a _________________ ("Design-Builder"), and ______________________ (collectively, the "Board Members"), with reference to the following facts:

A. Authority and Design-Builder have entered into a contract pursuant to Authority’s Project, Design-Build Contract (the "Design-Build Contract"). Pursuant to the Design-Build Contract, Design-Builder agreed to furnish the design for and to construct the Project.

B. The Design-Build Contract provides for the establishment and operation of a Disputes Board (the "Board") to assist in resolving disputes and claims among Authority, Design-Builder and others in respect to the Project.

NOW, THEREFORE, in consideration of the terms, conditions, covenants and agreements contained herein, the parties hereto agree as follows:

1. ESTABLISHMENT OF BOARD

1.1 The Board shall begin operation upon execution of this Agreement by Authority, Design-Builder and the first two Board Members, and shall terminate upon completion of all work required to be performed by the Board hereunder unless sooner terminated in accordance with this Agreement or applicable law. The Board shall initially consist of two members, one selected by Authority and one selected by Design-Builder. The first duty of the Board shall be to select its third member as provided in Section 16 of the Design-Build Contract. A copy of Section 16 is attached hereto as Exhibit A and is incorporated by reference herein.

1.2 Each member of the Board represents, warrants and covenants on his/her behalf that he/she:

(a) Is not an Affiliate or otherwise have a financial interest in the Design-Build Contract, the Project or the Foothill Extension in the outcome of any dispute decided hereunder, except for payment for serving on the Board;

(b) Has not been previously employed by Authority, Metro, Design-Builder or any Affiliate (including any work for such entity through an arrangement with his or her direct employer), within two years prior to the Proposal Date, except for fee-based consulting services on other projects which are disclosed to all parties, and has not otherwise had financial ties to any party to the Contract during such period;




(c) Has not had substantial prior involvement in the Project or the Foothill Extension or relationship with any party, Metro or Affiliate of a nature which could affect his/her ability to impartially resolve disputes and does not know of any reason why he/she cannot be impartial in rendering decisions;

(d) Shall not accept employment by Authority, Metro or Design-Builder or any Affiliate during the term hereof and for as long thereafter as any obligations remain outstanding under the Contract Documents, except as a member of other disputes boards; and

(e) Shall not discuss employment, nor make any agreement regarding employment with Authority, Metro, Design-Builder or any Affiliate during the term hereof and for as long thereafter as any obligations remain outstanding under the Contract Documents.

1.3 Prior to hearing the first Dispute, and thereafter upon request of Authority or Design-Builder from time to time, and at least annually, each Board Member shall provide Authority and Design-Builder a declaration under penalty of perjury affirming that such member meets the qualifications set forth in section 1.2 hereof, and agrees to be bound by the terms of the Contract Documents. Each Board Member shall promptly notify Authority and Design-Builder if any circumstances are likely to prevent a prompt and fair hearing and decision or if the member fails to meet such qualifications. Any Board Member failing at any time to meet such qualifications shall be removed from the Board.

2. BOARD ORGANIZATION AND RESPONSIBILITIES

2.1 The Board is organized in accordance with Section 16 of the Design-Build Contract, for the purposes described therein. The Board is intended to fairly and impartially consider the Disputes under the Design-Build Contract, Subcontracts thereunder and other contracts relating to the Project placed before it and to provide written decisions for resolution of such Disputes. The Board Members shall perform the services necessary to participate in the Board's actions in accordance with this Agreement.

2.2 The Board Members shall visit the Site prior to commencement of construction, and after commencement of construction shall visit the Site periodically to keep abreast of construction activities and to develop a familiarity with the work in progress, or as may be deemed desirable or necessary in the consideration of any claim or dispute. A special Site visit shall be scheduled at the request of either party or any Board Member; provided that all reasonable efforts shall be made to allow issues to be raised at the regularly scheduled Site visits except where a special visit is warranted due to special circumstances such as the need to observe Site conditions before they are disturbed. Representatives of Authority and Design-Builder shall have the right to accompany the Board on any such visit.

2.3 All Board Members are to act independently in the consideration of facts and conditions surrounding any Dispute. Seeking the Board Members' advice or




consultation, ex parte, is expressly prohibited; provided, however, that either party may seek such advice or consultation from the entire Board, at a Board meeting, after first giving notice to all parties who might thereafter be parties before the Board in a Dispute involving that problem. A Board Member who has ex parte contact with a party or party representative shall be subject to removal from the Disputes Board for cause.

2.4 Board Members may withdraw from the Board upon delivery of written notice of withdrawal to Authority, Design-Builder and the other Board Members, which notice shall specify a withdrawal date at least 28 days following the date of delivery of the notice. Should the need arise to appoint a replacement Board Member, the replacement member shall be appointed in the same manner as provided by the Design-Build Contract for appointment of the original member. The selection of a replacement Board Member shall begin promptly upon notification of the necessity for a replacement and shall be completed within 28 days thereafter. The change in Board membership shall be evidenced by the new member's signature on this Agreement.

2.5 The Board Members acknowledge that Authority and Design-Builder have the right to require appointment of a new disputes review board to resolve future Disputes, which right may be exercised at any time by delivery of notice to such effect to the other party and to the Board Members. In such event a new agreement in the same form as this agreement will be executed establishing the new board, and except as otherwise mutually agreed by Authority and Design-Builder, the work to be performed by the Board established under this Agreement shall be limited to Disputes submitted to the Board before delivery of the notice requiring appointment of a new Board.

2.6 The personal services of the Board Member are a condition to receiving payment hereunder. No Board Member shall assign any of his or her work pursuant to this Agreement without the prior written consent of both Authority and Design-Builder.

2.7 Each Board Member, in the performance of his or her duties on the Board, is acting as an independent contractor and not as an employee of either Authority or Design-Builder. No Board Member will be entitled to any employee benefits.

3. HEARINGS AND DECISIONS

3.1 Each Dispute under the Design-Build Contract involving $375,000 or less shall be heard by the Board or, subject to approval of both parties, the third Board Member, acting in their/his/her capacity as arbitrator(s) under the State Arbitration Act and the Regulations, as they may be amended from time to time. Authority and Design-Builder shall stipulate that the Board members (or third member, as appropriate) be appointed as such arbitrator(s). The Board (or third member, as appropriate) has jurisdiction to determine whether the requirements of the Design-Build Contract, the State Arbitration Act and the Regulations have been met. For the convenience of the Board Members, current pertinent provisions of the State Arbitration Act and statutes referenced therein and of the Regulations are attached hereto as Exhibits B and C. If the third member is appointed as the sole arbitrator, he or she shall consult with both of the other Board Members in making his or her decision.




3.2 Each Dispute involving more than $375,000 shall be heard by the Board as provided in Section 16 of the Design-Build Contract.

3.3 In general, the Board shall have the right to establish its own procedures and time limits, including the right to establish or to waive evidentiary rules and procedures, except for evidentiary rules pertaining to privilege. Each party shall retain the right to discovery as provided in the Design-Build Contract and to present its witnesses and evidence in its own discretion, within the parameters established by the Board.

3.4 Upon receipt by the Board of a notice of appeal, either from Design-Builder or Authority, the Board (or Board Member acting as arbitrator) shall convene a hearing to review and consider the matter as quickly as possible, taking into consideration the particular circumstances and the time required to prepare detailed documentation. Both Authority and Design-Builder are encouraged to provide exhibits, calculations, and any other pertinent material to the Board for review prior to the hearing. All such material shall concurrently be given to the other party.

3.5 The Board shall convene to consider questions presented to it and shall at the conclusion of each hearing either provide the Dispute Board Decision or advise the parties when the Dispute Board Decision will be forthcoming.

4. PROVISION OF DOCUMENTS TO BOARD

4.1 Design-Builder, with assistance of Authority, shall furnish to each Board Member one copy of all documents it might have, other than those furnished by Authority, which are pertinent to the performance of the Design-Build Contract and necessary to the Board’s work.

4.2 Authority shall furnish each Board Member one copy of all Contract Documents, all Design Documents (following preparation thereof by Design-Builder and approval thereof by Authority) and other documents pertinent to the performance of the Design-Build Contract and necessary to the Board's work.

4.3 Each Board Member agrees to execute and deliver a confidentiality agreement as described in Section 19.1.1 of the Design-Build Contract with respect to copies of Escrowed Proposal Documents (EPDs) delivered to the Board.

5. EXPENSES

5.1 Except as otherwise provided in article 6, payment for services rendered by each Board Member and for their direct, non-salary expenses shall be calculated in accordance with the payment schedule for such Board Member agreed to among Authority, Design-Builder and the Board Member and shall be paid in accordance with Section 16.7 of the Design-Build Contract.

5.2 Invoices for payment for work completed shall be submitted no more often than once per month. Such invoices shall be in a format approved by Authority and accompanied by a general description of activities performed during this period.




The value of work accomplished for payment shall be established from the billing rate and hours expended by the Board Member together with direct, non-salary expenses. Billings for expenses shall include an itemized listing supported by copies of the original bills, invoices, expense accounts and miscellaneous supporting data.

5.3 Each Board Member shall keep available for inspection, for a period of five years after final payment, the cost records and accounts pertaining to this Agreement.

6. DISPUTES INVOLVING OTHER PARTIES

6.1 The parties acknowledge that various third parties (including Subcontractors and the contractors for the Iconic Freeway Structure and Alignment Project) have agreed or will agree that the jurisdiction of the Disputes Board shall extend to disputes affecting such third parties. In general, such disputes shall be heard by the three Board Members, appointed as described above, in accordance with the terms of the Design-Build Contract, this Agreement and the contract between Authority and such third parties ("Such Other Design-Builders"). However, to the extent that the following rights are provided to Such Other Design-Builders by Authority, the parties agree that the membership of the Board may be modified with respect to disputes involving Such Other Design-Builders, as follows:

(a) Such Other Design-Builder may agree to use the existing Board with respect to the dispute. (This option shall be deemed selected (i) unless Such Other Design-Builder delivers written notice to the Board that it intends to select a qualified consultant/Board Member with respect to such dispute, which notice is delivered to the Board within seven days after delivery of written notice to Such Other Design-Builder describing the dispute and stating that Such Other Design-Builder is a necessary party to the dispute resolution procedure, or (ii) if Such Other Design-Builder fails to select a qualified consultant/Board Member, as described below, within seven days after delivery of notice of intent to select such person, or after notification of Authority’s or Design-Builder’s disapproval of the Board Member.)

(b) If Such Other Design-Builder elects not to use the existing Board as provided above, then:

(i) Such Other Design-Builder may select an advisor who shall act as a non-voting consultant to the Board with respect to the dispute; or

(ii) Such Other Design-Builder may select a fourth Board Member who shall have the right to participate in the selection of a fifth Board Member and to participate in the decision-making process hereunder with respect to such dispute; or

(iii) With respect to disputes which do not involve the Design-Builder, Such Other Design-Builder shall have the right to appoint a Board Member who shall replace the Board Member appointed by the Design-Builder.




In selecting a non-voting consultant/Board Member, Such Other Design-Builder is encouraged to appoint the same individual for all disputes, so that such individual will have the opportunity to develop expertise and familiarity regarding the Project.

6.2 Any non-voting consultant or Board Member selected by Such Other Design-Builder shall be required to meet the qualifications for Board Members set forth herein and shall execute and agree to be bound by the terms of this Agreement as to disputes involving Such Other Design-Builder. In the event that option (ii) is selected, Such Other Design-Builder’s selection of the fourth Board Member shall be subject to Authority’s and Design-Builder’s approval, and the fifth Board Member shall be selected by a majority vote of the four Board Members. Disputes regarding appointment of such fifth Member shall be subject to the dispute resolution procedures set forth in Section 16.6 of the Design-Build Contract, and shall be decided by the original three Board Members.

6.3 Expenses of the Disputes Board payable by Such Other Design-Builder shall be as follows:

(a) In the event that option 6.1(a) is selected, Such Other Design-Builder shall share equally the costs and expenses for the Disputes Board determined in accordance with Section 16.7 of the Design-Build Contract, in which case Design-Builder will be responsible for paying amounts invoiced by the Disputes Board members and invoicing the other participants for their share of the invoiced amounts; or

(b) In the event that option 6.1(b)(i), (ii) or (iii) is selected, Such Other Design-Builder shall be responsible for paying the costs and expenses for the consultant or for the Board Member which it appointed, as well as a proportionate share of the costs and expenses of the third and fifth members (subject to the right to be reimbursed for such costs and expenses as the prevailing party, as may be awarded in accordance with Section 16.7 of the Design-Build Contract) together with a proportionate share of any common costs allocable to the parties to a dispute under Section 16.7 of the Design-Build Contract. In determining the amount of any such payment or reimbursement of costs and expenses, the Board Members are specifically directed to consider the benefit accruing to Such Other Design-Builder resulting from the Board's expertise and familiarity with the Project and the expenditures previously incurred by Authority and Design-Builder to develop such expertise and familiarity. In such case Design-Builder will be responsible for paying amounts invoiced by the Disputes Board members for the common costs and invoicing the other participants for their share of such amounts.

6.4 The provisions set forth in this Section 6 shall supersede any provisions to the contrary contained in Section 16 of the Design-Build Contract.

7. MISCELLANEOUS

7.1 Capitalized terms used but not defined herein shall have the meanings set forth in the Design-Build Contract.




7.2 (a) The parties intend for Section 16 and the other terms of this Agreement to be complementary. Except as otherwise specifically provided herein, in the event of any conflict between this Agreement and said Section 16, Section 16 shall control.

(b) With respect to Claims and disputes up to $375,000 under the Design-Build Contract, the parties intend for this Agreement and Section 16 of the Design-Build Contract to be complementary with the terms of the Arbitration Act and Regulations. With respect to Disputes up to $375,000, in the event of any conflict between this Agreement and the terms of the Arbitration Act and Regulations, this Agreement shall control to the extent that the requirements of the Arbitration Act and Regulations are waivable; otherwise the Arbitration Act and Regulations shall control.

7.3 Notices hereunder shall be sent as provided in Section 20.12 of the Design-Build Contract. The addresses for the Board Members are set forth on the signature pages hereof.

7.4 This Agreement shall be governed by and construed in accordance with the law of the State of California.

7.5 No Board member shall release any material or data prepared or received by the Board under this Agreement to any other person or agency. All press releases or information to be published in newspapers, magazines, or electronic media, shall be distributed only after first being authorized by Authority and Design-Builder.

7.6 The parties hereto mutually understand and agree that all Board Members, in the performance of their duties on the Board, are acting in the capacity of independent contractors and not as employees of Authority or Design-Builder. The Board Members shall have no personal or professional liability arising from the services provided under this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

BOARD MEMBERS

________________________________

Address: ______________________________________________________

___________________________________

Address: ______________________________________________________

__________________________




Address: ______________________________________________________

DESIGN-BUILDER

By: __________________________

Title: __________________________

By: __________________________

Title: __________________________

AUTHORITY


By:

Title: __________________________

APPROVED AS TO FORM: By:________________________ General Counsel

[Exhibits to be Provided Prior to Execution]




APPENDIX 10

DESIGNATION OF INITIAL REPRESENTATIVES

Authority Representatives:

Chief Executive Officer (currently Habib Balian)

Additional representatives designated in writing by the Chief Executive Officer for

specific matters

Design-Builder Representatives:

Principal On-Site (currently _______ [to include name in execution version])

Additional representatives designated in writing by the Principal On-Site for

specific matters




APPENDIX 11

MTA TRUST AGREEMENT PROVISIONS

The following terms are pass-through provisions required by the Trust Agreement. As used in this Appendix 11, “Contract,” “Design-Builder” and “Indemnified Parties” shall have the meanings set forth in Contract Appendix 1. All other capitalized terms contained in this Appendix 11 shall have the meanings set forth in the Trust Agreement.

1. Design-Builder acknowledges and agrees:

(a) that any Liens encumbering any of the Project Assets arising out of or in connection with the Contract shall be extinguished and of no further force and effect as to Phase I Project Assets upon the Phase I Project Assets Distribution Date and as to Phase II Project Assets upon the Phase II Project Assets Distribution Date;

(b) that the Payment and Performance Bonds shall name Trustee and Settlor as third party beneficiaries thereof;

(c) that the Trustee shall have the right to promptly discharge (or cause to be discharged) any mechanic’s or materialman’s liens or claims of such lien, if any, filed or otherwise asserted against any of the Project Assets and all stop notices;

(d) that the Trustee and the Settlor as third-party beneficiaries of the Contract, shall have the right to enforce, and shall have the benefit of, any and all guaranties, warranties, bonds and the like contained or otherwise applicable to the Contract and any work undertaken or materials purchased pursuant thereto;

(e) that any occurrence or transaction which gives rise to a claim under the Contract shall also be deemed an occurrence or transaction for purposes of filing a claim pursuant to Section 900 et seq. of the California Government Code; and

(f) that no provision of the Contract shall toll, waive or modify the provisions of California Government Code Section 900 et seq.

2. Design-Builder acknowledges and agrees that the following provision required by Section 5.3.3 of the Trust Agreement shall be a part of the Contract and binding on Design-Builder:

“At the request of the Authority, the MTA has previously provided to the Authority copies of certain preliminary design documents for the Project ("Existing Preliminary Design Documents") prepared by the MTA's design engineer, Engineer Management Consultants ("EMC"), which were not completed or signed by EMC and in all respects are preliminary in nature and should not be relied upon for any purpose whatsoever (including, the design and construction of the Project). Copies of some or all of the Existing Preliminary




Design Documents may have been or may be provided to you in connection with this Contract. Design-Builder shall have no right to rely upon the Existing Preliminary Design Documents in any manner whatsoever (including, the design and construction of the Project) and the Design-Builder represents, warrants and covenants that the Design-Builder will not rely upon the Existing Preliminary Design Documents in any manner whatsoever (including, the design and construction of the Project) and will do its own independent investigation of all matters related to this Contract and the Existing Preliminary Design Documents. The Design-Builder waives and releases the MTA and EMC (and each of their respective officers, directors, agents, contractors and employees) from any and all claims, liabilities, losses, damages, costs and expenses arising out of or in connection with the Existing Preliminary Design Documents. In connection with the release and waiver set forth in the preceding sentence:

"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

The MTA and EMC are each third party beneficiaries of the provisions of this paragraph and shall have the right to enforce the waiver and release contained in this paragraph against the Design-Builder.