PROFESSIONAL SERVICES AGREEMENT

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PROFESSIONAL SERVICES AGREEMENT

ACE Tree Service Public Works

Contractor/Consultant Department

On-Call Tree Removal and Trimming Services Road and Maintenance

Description Division

January 12, 2021 through June 30, 2024 Various

Agreement Term Project

1020-2020 Various $250,000 10200760 5271

Agreement Number Project Number Amount Org. Key Object Code

THIS AGREEMENT is made and entered into by and between the County of Calaveras, a political subdivision of the State of California (hereinafter referred to as “County”), and ACE Tree Service (hereinafter referred to as “Contractor”). County and Contractor shall collectively be referred to as “Parties.” WHEREAS, County, through its Public Works Department – Roads, is responsible for providing safe roadways for the travelling public including removing trees that threaten the integrity of the roadway; and

WHEREAS, County is authorized by Government Code § 23004 to enter into Agreements as necessary for the exercise of its powers; and

WHEREAS, Contractor has represented to County that it has the necessary training, experience, expertise, and competency to provide the services, goods, and materials that are described in this Agreement, and that it will do so in a manner consistent with County’s goals; and

WHEREAS, in the judgment of County, it is necessary and desirable to employ Contractor to perform the described services; and

NOW, THEREFORE, County and Contractor agree as follows:

1. DESCRIPTION OF SERVICES

1.1. Contractor’s Specified Services: Contractor shall furnish all facilities, equipment, personnel, labor, and materials (hereinafter referred to as “Work” or “Services”) necessary to provide the services described in Exhibit A: Scope of Work attached hereto and incorporated herein by this reference, and within the times or by the dates provided for in Exhibit A: Scope of Work. These services may be funded, in whole or in part, by federal-aid programs and are subject to supplemental program agreements to Administering Agency-State Agreement for Federal Project No. 10-5930. See Exhibit C: Supplemental Provisions, attached and incorporated by reference, for supplemental provisions for federal-aid projects.

1.2. Cooperation with County: Contractor shall cooperate with County and County staff in the performance of all work under this Agreement.

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in accordance with the applicable professional standards currently recognized by each profession and shall comply with all applicable Federal, State, and Local laws, ordinances, codes, and regulations in performing its services. Contractor shall perform all work under this Agreement in a manner consistent with the level of competency and standard of care normally observed by a person practicing in Contractor’s profession. County has relied upon the professional ability and training of Contractor as a material inducement to enter into this Agreement. Contractor agrees to provide all services under this Agreement in accord with generally accepted professional practices and standards of care, as well as the requirements of applicable federal, state and local laws, it being understood that acceptance of Contractor’s work by County shall not operate as a waiver or release. If County determines that any of Contractor’s work is not in accord with such level of competency and standard of care, County, in its sole discretion, shall have the right to do any or all of the following: (a) require Contractor to meet with County to review the quality of the work and resolve matters of concern; (b) require Contractor to repeat the work at no additional charge until it is satisfactory; (c) terminate this Agreement pursuant to the provisions of Section 7; or (d) pursue any and all other remedies at law or in equity.

1.4. Assigned Personnel:

1.4.1. Contractor shall assign only competent personnel to perform the work under this Agreement. In the event that at any time County, in its sole discretion, desires the removal of any person or persons assigned by Contractor to perform the work under this Agreement, Contractor shall remove such person or persons immediately upon receiving written notice from County.

1.4.2. Any and all persons identified in this Agreement or any Exhibit hereto as the project manager, project team, or other professional performing the work under this Agreement are deemed by County to be key personnel whose services were a material inducement to County to enter into this Agreement, and without whose services County would not have entered into this Agreement, Contractor shall not remove, replace, substitute, or otherwise change any key personnel without the prior written consent of County.

1.4.3. In the event that any of Contractor’s personnel assigned to perform services under this Agreement become unavailable due to resignation, sickness or other factors outside of Contractor’s control, Contractor shall be responsible for timely provision of adequately qualified replacements.

2. COMPENSATION

2.1. Total Compensation: For the services described in Section 1 above, and subject to the condition that the specified task has been completed as set forth in Section 1.3 above, Contractor shall be compensated at the rates as set forth in Exhibit B: Rates, attached hereto

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and incorporated herein by this reference provided, however, the total amount of compensation to be paid Contractor for the services described in Section 1 shall not exceed two hundred fifty thousand dollars ($250,000).

2.2. Separate Accounting: To the extent that Contractor is performing other projects for the County at other locations and pursuant to other Agreements, the Contractor shall maintain complete and separate accounting for each project. Invoices for compensation and reimbursement shall be similarly separated.

2.3. Expense Reimbursement: Contractor shall not be entitled to reimbursement for any expenses other than those described in Section 1 above and as identified in Exhibit B: Rates.

No funds paid to Contractor through this Agreement shall be utilized to compensate employees of Contractor for overtime or compensatory time off, except to the extent that Contractor is required to pay for overtime or compensatory time off pursuant to the Fair Labor Standards Act of 1938, 29 USC Section 201 et seq., or applicable State law.

If federal funds are expended under this Agreement, costs claimed under this Agreement are subject to the following federal publication (current publications are available online and can be found at www.whitehouse.gov/omb/circulars/): Uniform Guidance: 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements.

2.4. Overpayment: If County overpays Contractor for any reason, Contractor agrees to return the amount of such overpayment to County or at County’s option, permit County to offset the amount of overpayment against future payments owed to Contractor under this Agreement or any other Agreement.

3. TERM

3.1. Term: The term of this Agreement shall be effective beginning January 12, 2021 through June 30, 2024 unless terminated earlier as set forth in Section 10: Termination and Severability. The term of this Agreement may only be extended upon written mutual consent of both parties as set forth in Section 29: Amendment.

3.2. Deliverables: All deliverables and products of this Agreement shall be completed and submitted to the County as set forth in Exhibit A: Description of Services.

4. PREVAILING WAGE

Contractor shall pay and require payment of wages according to a scale of prevailing wage rates determined by California law, and shall comply with all applicable wage requirements, as set forth in Labor Code Sections 1770 et seq., 1773.2, 1775, 1776, 1810 and 1813. In accordance with the provisions of Labor Code Section 1810, eight (8) hours of labor shall constitute a legal day’s work upon all work done hereunder, and Contractor and any subcontractor employed under this Contract shall also conform to and be bound by the provisions of Labor Code Sections 1810 through 1815.

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5. CERTIFIED PAYROLL

As required under the provisions of Labor Code Section 1776, Contractor and any subcontractors shall keep accurate payroll records as follows:

5.1. The payroll records shall show 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 Contractor or subcontractors in connection with this Project.

5.2. A certified copy of all payroll records enumerated above shall be available for inspection at all reasonable hours at the principal office of the Contractor as follows:

a. Make available or furnish to the employee or his or her authorized representative on request.

b. Make available for inspection or furnished upon request to a representative of County, the State Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards of the State Department of Industrial Relations.

c. Make available upon request by the public for inspection or copies thereof made; provided; however, that a request by the public shall be made through either County, the State Division of Labor Standards Enforcement, or the State Division of Apprenticeship Standards. The requesting party shall, prior to being provided records, reimburse the cost of preparation by Contractor, subcontractor, and the entity through which the request was made. The public shall not be given access to the principal office of Contractor.

6. APPRENTICES

Attention is directed to Sections 1777.5, 1777.6, and 1777.7 of the California Labor Code and Title 8, California Code of Regulations Section 200 et seq. To ensure compliance and complete understanding of the law regarding apprentices, and specifically the required ratio thereunder, each Contractor or subcontractor should, where some question exists, contact the Division of Apprenticeship Standards, 455 Golden Gate Avenue, San Francisco, CA 94102, or one of its branch offices prior to commencement of work on the public works contract. Responsibility for compliance with this section lies with Contractor.

The County encourages the employment and training of apprentices on public works contracts as may be permitted under local apprenticeship standards.

7. BILLING AND PAYMENT

7.1. Billing: On a monthly basis, and not more frequently than monthly, Contractor shall submit invoices to County, no later than the tenth (10th_{) of the month for the preceding month. The}

billing period shall be the first day of the month through the last day of the month, without exception. If requested by the County, the Contractor shall provide any further documentation it has or can reasonably generate to verify the compensation and reimbursement sought by the

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Contractor. Contractor shall submit to County a written invoice. Invoicing shall be consistent with Exhibit B: Rates.

Within 10 business days of receipt of the Contractor’s detailed invoice, the County Contract Manager shall review invoices for acceptance to which the County Contract Manager shall immediately notify Contractor of any discrepancies. Contractor and the County Contract Manager shall work in good faith to resolve such discrepancies within 10 business days after notification. Should a discrepancy result in a partial rejection of any item(s) invoiced, the Contractor shall submit a revised invoice for payment.

All invoices shall include:

7.1.1. A simplified worksheet that explains how salary charges on invoices were calculated and list employees by name, position, location, and amount charged; and

7.1.2. Copies of invoices submitted to Contractor from subcontractors if subcontractors utilized.

7.2. Contractor shall submit all invoices to dpwfiscal@co.calaveras.ca.us or submit hard copies to the following address:

County of Calaveras Department of Public Works Attention: Accounts Payable 891 Mountain Ranch Road San Andreas, CA 95249

7.3. Payment: Unless otherwise stated in this Agreement, upon submittal of an invoice as set forth in Section 7.1. above, payment shall be within thirty (30) days of receipt of Contractor’s invoices provided Contractor submits complete invoices. Payment shall only be made upon the satisfactory completion of the services as determined by the County. Payment to Contractor shall be withheld should Contractor fail to comply with any requirements set forth in this Agreement.

8. REPRESENTATIVES AND NOTICE

8.1. Designation: Each party shall designate an officer, employee or other authorized representative to act on that party’s behalf with respect to the work. This representative shall be available during working hours and as often as may be required to render decisions and to furnish information in a timely manner. Each party has the right to change its representative at any time; provided, however, that a party wishing to change its designated representative shall endeavor to notify the other party in writing not less than ten (10) calendar days before making any such change. At the time this Agreement is executed, the parties’ designated representatives shall be as follows:

County Contract Manager: Scott Anderson, Road Superintendent Contractor: Brian Finigan, Owner

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8.2. Address: All notices shall be deemed to have been given when made in writing and delivered or mailed to the respective representatives of County and Contractor at their respective address as follows:

Contractor: ACE Tree Service Attention: Brian Finigan 363 North Shepard St. Sonora, CA 95370

County: County of Calaveras

Department of Public Works Attention: Director

891 Mountain Ranch Road San Andreas, CA 95249

Any party may change the address to which such communications are to be given by providing the other parties with written notice of such change at least fifteen (15) calendar days prior to the effective date of the change.

8.3. Effective Date: All notices shall be effective upon receipt and shall be deemed received through delivery if personally served, or on the fifth (5th) day following deposit in the mail if sent by first class mail.

9. CONDITION SUBSEQUENT/NON-APPROPRIATION OF FUNDING

The services and compensation received by County and Contractor pursuant to this Agreement are based on the continued receipt of funding for this purpose. In the event that funding is terminated, in whole or in part, for any reason, this Agreement and all obligations of the parties arising from this Agreement may be terminated. County agrees to inform Contractor no later than ten (10) calendar days after receiving notification that funding will be terminated and provide the final date for which funding will be available. Under these circumstances, all billing or other claims for compensation or reimbursement by Contractor arising out of performance of this Agreement must be submitted to County within ten (10) calendar days of the final date for which funding is available.

10. TERMINATION AND SEVERABILITY

10.1. Should either party fail to substantially perform its obligations in accordance with this Agreement, the other party may notify the breaching party of such breach in writing, describe the breach, and demand that it be cured within 15 calendar days of receipt if the breach is not cured within 15 calendar days of the notice of breach (or any such longer period as may be specified in the notice or otherwise agreed to by the parties), the party that gave notice of breach may unilaterally terminate this Agreement by sending the breaching party notice of termination. The date of termination in this event shall be 15 calendar days after the notice of termination. A party’s exercise of the notice and termination rights authorized by this Section

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shall in no way operate as a waiver or forfeiture of the party’s right to seek and recover damages from the breaching party for the breach of this Agreement.

10.2. For any other reason other than a breach or failure to perform (which are discussed in the subsection above), either party may unilaterally terminate this Agreement for any reason at any time during its term, by giving 15 calendar days advanced written notice to the other party. The date of termination for this purpose shall be 15 calendar days after notice of termination.

11. INDEMNIFICATION

Contractor agrees to accept all responsibility for loss or damage to any person or entity, including County, and to defend and indemnify, hold harmless, and release County, its elected representatives, officers, agents, and employees, from and against any actions, claims, damages, demands, losses, liabilities, disabilities or expenses, defense costs (including reasonable attorney fees), of any kind or nature, that may be asserted by any person or entity, including Contractor, that arise out of, pertain to, or related to Contractor’s or its agents’, employees’, contractors’, subcontractors’, or invitees’ performance or obligations under this Agreement. Contractor agrees to provide a complete defense for any claim or action brought against County based upon a claim relating to Contractor’s performance or obligations under this Agreement. Contractor’s obligations under this section apply whether or not there is concurrent negligence on County’s part, but to the extent required by law, excluding liability due to County’s conduct. County shall have the right to select its legal counsel at Contractor’s expense, subject to Contractor’s approval, which shall not be unreasonably withheld. This Indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Contractor or its agents under Workers’ Compensation Acts, Disability Benefits Acts, or other Employee Benefit Acts. The obligations of this indemnity shall be for the full amount of all damage to County, including defense costs, and shall not be limited by any insurance limits.

12. INSURANCE REQUIREMENTS

Contractor shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees. Coverage shall be at least as broad as:

12.1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.

12.2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.

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12.3. Workers’ Compensation: Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (Not required if Contractor provides written verification it has no employees.)

12.4. Professional Liability: (Errors and Omissions) Insurance appropriate to the Contractor’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. 12.5. If the Contractor maintains broader coverage and/or higher limits than the minimums shown

above, the County requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the County.

12.6. Other Insurance Provisions: The insurance policies are to contain, or be endorsed to contain, the following provisions:

12.6.1. Additional Insured Status: The County, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).

12.6.2. Primary Coverage: For any claims related to this Agreement, the Contractor’s insurance coverage shall be primary with coverage at least as broad as ISO CG 20 01 04 13 as respects the County, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the County, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.

12.6.3. Notice of Cancellation: Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the County.

12.6.4. Waiver of Subrogation: Contractor hereby grants to County a waiver of any right to subrogation which any insurer of said Contractor may acquire against the County by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the County has received a waiver of subrogation endorsement from the insurer.

12.6.5. Self-Insured Retentions: Self-insured retentions must be declared to and approved by the County. The County may require the Contractor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within

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the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or County.

12.6.6. Acceptability of Insurers: Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII, unless otherwise acceptable to the County. 12.6.7. Claims Made Policies: If any of the required policies provide coverage on a

claims-made basis:

12.6.7.1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

12.6.7.2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 12.6.7.3. If coverage is canceled or non-renewed, and not replaced with another

claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.

12.6.8. Verification of Coverage: Contractor shall furnish the County with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the County before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The County reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

12.6.9. Subcontractors: Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that County is an additional insured on insurance required from subcontractors.

12.6.10. Retentions: Retentions must be declared to, and are subject to the approval of, the County’s Director of Risk Management.

12.6.11. Special Risks or Circumstances: County reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

13. RECORDS EXAMINATION AND AUDIT REQUIREMENTS

In accordance with Government Code Section 8546.7, Contractor shall permit State or Federal agency to audit, inspect and copy all records, notes and writings of any kind in connection with the services provided by Contractor under this Agreement, to the extent permitted by law, for the purpose of monitoring the quality and quantity of services, accessibility and appropriateness of services, and ensuring fiscal accountability. All such audits, inspections, and copying shall occur during normal business hours. Upon request, Contractor shall supply copies of any and all such records to County. Failure to provide the documents

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requested by County within the requested time frame indicated may result in County withholding payments due under this Agreement.

All records, documents, general correspondence relating to the project in possession of the Contractor shall be retained by the Contractor for a minimum of three years from the date of project completion.

14. ETHICS AND STANDARDS OF CONDUCT

Contractor agrees to adhere to ethical standards. Contractor agrees to written policies and procedures that ensure compliance with ethical standards of conduct.

Every reasonable course of action shall be taken by Contractor in order to maintain the integrity of the expenditure of public funds to avoid favoritism and questionable or improper conduct. Contractor must attest that he or she has not been convicted of fraud or misappropriation of funds.

Furthermore, this Agreement shall be administered in an impartial manner, free from efforts to gain personal, financial, or political gain. Contractor shall not solicit or accept money or any other consideration with a view toward securing a contract or securing favorable treatment with respect to the awarding, amending, or performing of this Agreement. County, by written notice to Contractor, may terminate this Agreement if it is found that gratuities were offered or given by Contractor with a view toward securing a contract or securing favorable treatment with respect to the awarding, amending, or performing of this Agreement, provided that the existence of the facts upon which the County makes such findings may be reviewed in any competent court.

In the event this Agreement is terminated as provided in the paragraph above, County shall be entitled to pursue the same remedies against Contractor as it could pursue in the event of the breach of the Agreement by Contractor, and as a predetermined amount of liquidated damages in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount which shall be not less than three times the cost incurred by County in providing such gratuities to any such officer or employee.

15. NON-DISCRIMINATION IN SERVICES AND BENEFITS

Contractor certifies that any service provided pursuant to this Agreement shall be without discrimination based on color, race, creed, national origin, religion, sex, age, sexual preferences, or physical or mental disability in accordance with all applicable Federal, State and County laws and regulations and any administrative directives established by the County Board of Supervisors or the County Administrative Officer. For the purpose of this Agreement, distinctions on the grounds of color, race, creed, national origin, religion, sex, age, sexual preferences, or physical or mental disability include but are not limited to the following: denying a participant any service or benefit which is different, or is provided in a different manner or at a different time from that provided to other participants under this Agreement; subjecting a participant to segregation or separate treatment in any way in the enjoyment or any advantage or privilege enjoyed by others receiving any service or benefit; treating a participant differently from others in determining whether the participant has satisfied any admission, enrollment quota, eligibility, membership, or other requirement or condition which individuals must meet in order to be provided any service or benefit; and the assignment of times or places for the provision of services.

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16. NONDISCRIMINATION IN EMPLOYMENT

Contractor shall comply with all applicable federal, state, and local anti-discrimination laws, regulations, and ordinances and shall not unlawfully discriminate, deny family care leave, harass, or allow harassment against any employee, applicant for employment, employee or agent of Contractor or recipient of services contemplated to be provided or provided under this Agreement, because of race, ancestry, marital status, color, religious creed, political belief, national origin, ethnic group identification, sex, sexual orientation, age (over 40), medical condition (including HIV and AIDS), or physical or mental disability.

17. LICENSE AND PERMITS

Contractor shall possess and maintain all necessary licenses, permits, certificates and credentials required by the laws of the United States, the State of California, County of Calaveras and all other appropriate governmental agencies to provide agreed upon services. Failure to maintain the licenses, permits, certificates, and credentials shall be deemed a breach of this Agreement and constitutes grounds for the termination of this Agreement by County. Contractor shall have in effect and shall maintain appropriate licensure during the term of this Agreement, if applicable.

18. CONFLICT OF INTEREST

18.1. Applicable Law: Contractor shall comply with the laws and regulations of the State of California and County regarding conflicts of interest, including, but not limited to, § 4 of Chapter 1, Division 4, Title 1 of the California Government Code, commencing with § 1090, and Chapter 7 of Title 9 of said Code, commencing with § 87100 including regulations promulgated by the California Fair Political Practices Commission.

18.2. Covenant: Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of Contractor’s obligations and responsibilities hereunder. Contractor further covenants that in the performance of this Agreement, Contractor will take reasonable care to ensure that no person having any such interest shall be employed. This covenant shall remain in force until Contractor completes performance of the services required of it under this Agreement.

18.3. Notification: Contractor agrees that if any fact comes to its attention, which raises any question as to the applicability of any conflict of interest law or regulation, Contractor will immediately inform County and provide all information needed for resolution of the question.

19. COVENANT AGAINST CONTINGENT FEES

Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making this Agreement. For breach or violation of this warranty, the County shall have the right to annul this Agreement

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without liability or in its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

20. STATUS OF CONTRACTOR

20.1. Independent Contractor: It is understood and agreed by all the parties hereto that Contractor is an independent contractor and that no relationship of employer-employee exists between the County and Contractor. Neither Contractor nor Contractor’s assigned personnel shall be entitled to any benefits payable to employees of the County. Contractor hereby indemnifies and holds the County harmless from any and all claims that may be made against the County based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement or any services provided pursuant to this Agreement.

20.2. No Agency: It is further understood and agreed by all the parties hereto that (1) except as specifically authorized by this Agreement, neither Contractor nor Contractor’s assigned personnel shall have any right to act on behalf of the County in any capacity whatsoever as an agent; and (2) neither Contractor nor Contractor’s assigned personnel shall have any right to bind the County to any obligation whatsoever.

20.3. Taxes: It is further understood and agreed by all the parties hereto that Contractor must issue any and all forms required by Federal and State laws for income and employment tax purposes, including W-2 and 941 forms, for all of Contractor’s assigned personnel.

20.4. Enforcement: There are no third party beneficiaries of this Agreement, and no one except the parties to this Agreement may seek to enforce its terms.

21. ASSIGNMENT AND SUBCONTRACTS

The services and obligations required of Contractor under this Agreement are not assignable in whole or in part. In addition, Contractor shall not subcontract any portion of the services required of Contractor by this Agreement without the express written consent of the County. If any portion of the services required of Contractor is subcontracted, the subcontractor(s) shall maintain the same insurance as required of Contractor by this Agreement and Contractor shall be fully responsible to the County for all work undertaken by subcontractor(s). Any subcontract in excess of $25,000 entered into as a result of this Agreement, shall contain all terms and provisions of this Agreement.

22. WAIVER, BREACH, AND SEVERABILITY

22.1. Any waiver of or failure by the County or any of its officers, agents or employees or the failure of the County or its officers, agents or employees to take action with respect to any right conferred by this Agreement to the County shall not be deemed to be a waiver of any additional or subsequent right conferred to the County by this Agreement or of any other term, covenant or condition of this Agreement by the County.

22.2. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void, both Parties shall be relieved of all obligations arising under such provision, and the remainder

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of this Agreement shall not be affected by such declaration or finding and each provision not so affected shall be enforced to the fullest extent permitted by law.

23. APPLICABLE LAW AND VENUE

In the performance of the services required by this Agreement, Contractor shall take reasonable care to comply with all applicable Federal, State, and County statutes, ordinances, regulations, directives and laws. This Agreement shall be deemed to be executed within the State of California and construed in accordance with and governed by the laws of the State of California.

In the event of any dispute arising out of or relating to this Agreement, the parties shall attempt, in good faith, to promptly resolve the dispute mutually between them. If the dispute cannot be resolved by mutual agreement, nothing herein shall preclude either party’s right to pursue remedy or relief by civil litigation, pursuant to the laws of the State of California.

All parties agree that this Agreement and all documents issued or executed pursuant hereto and the rights and obligations of the parties there under and hereunder are subject to and governed by the laws of the State of California in all respects as to interpretation, effect and performance. No interpretation of any provision of this Agreement shall be binding upon County unless agreed in writing by County and counsel for County.

Notwithstanding any other provisions of this Agreement, any dispute concerning any question of fact or law arising under this Agreement or any litigation or arbitration arising out of this Agreement, shall be tried in Calaveras County, unless the parties agree otherwise or are otherwise required by law.

Contractor shall adhere to Title XIX of the Social Security Act and conform to all applicable Federal and State statutes, laws, and regulations that pertain to health and safety, labor, minimum wage, fair employment practice, equal opportunity, and all other matters applicable to Contractor.

24. DISPUTES

Disputes between the parties arising out of the services or other terms of this Agreement which cannot be resolved by informal negotiation and mutual concurrence between the parties shall be resolved using the procedures of Article 1.5 (section 20104 et seq.) of the California Public Contract Code. That article provides that claims must be made in writing and the parties shall meet and confer pursuant to Public Contract Code section 20104.2. If the claim or any portion thereof remains in dispute following the meet and confer conference, the claimant may file a claim as provided in Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code.

If a civil action is filed to resolve such claims, the procedures of Public Contract Code section 20104.4 shall apply; the venue for any resulting arbitration shall be in Calaveras County. The pendency of a dispute will not excuse the Contractor from full and timely performance in accordance with the terms of this Agreement.

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25. PUBLIC RECORDS ACT

Upon its award, this Agreement shall be subject to disclosure pursuant to the California Public Records Act.

26. AUTHORIZED REPRESENTATIVE

The person executing this Agreement on behalf of Contractor affirmatively represents that she/he has the requisite legal authority to enter into this Agreement on behalf of Contractor and to bind Contractor to the terms and conditions of this Agreement. Both the person executing this Agreement on behalf of Contractor and Contractor understand that the County is relying on this representation in entering into this Agreement.

27. EXHIBITS

Each Exhibit referenced in, and attached to, this Agreement shall be incorporated into this Agreement by reference.

28. CAPTIONS

The captions in this Agreement are solely for convenience of reference. They are not a part of this Agreement and shall have no effect on its construction or interpretation.

29. AMENDMENT

Notwithstanding any of the provisions of this Agreement, the parties may mutually agree to amend this Agreement. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. No oral understanding or amendment to said Agreement not incorporated herein shall be binding on any of the parties hereto.

The Director of Public Works shall have the authority to approve modifications to the term, scheduling, billing rates, and allocation of funds between the tasks and subtasks (if any) set forth above, provided there is no increase to the total compensation as set forth in Section 2 of this Agreement. Any modification that results in an increase to the total compensation may only be made upon approval of the appropriate authority as determined by County Purchasing Code and by written instrument signed by both Parties.

30. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the County and Contractor and supersedes all prior negotiations, representations, or agreements, whether written or oral. In the event of a dispute between the parties as to the language of this Agreement or the construction or meaning of any term hereof, this Agreement shall be deemed to have been drafted by the parties in equal parts so that no presumptions or inferences concerning its terms or interpretation may be construed against any party to this Agreement.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates indicated below.

County Contractor

Chair Brian Finigan

Board of Supervisors Owner

Date Date

Calaveras County Counsel Attest

Approved as to Legal Form:

Signature Rebecca Turner, Ex-Officio Clerk of the

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EXHIBIT A: DESCRIPTION OF SERVICES

On-Call Tree Removal and Trimming Services Road Maintenance

1020-2020 Various $250,000 10200760 5271

Contractor shall perform as needed tree removal and trimming services on public properties within the boundaries of Calaveras County. Services shall be pre-authorized by County utilizing Attachment 1: Task Authorization.

Contractor shall:

• Perform tree removal and trimming services as required on public and/or county maintained property located in unincorporated areas of Calaveras County.

• Provide stump-grinding service.

• Supply necessary labor, tools, and equipment required to perform these services in a professional manner.

• Provide certified arborist services that can evaluate trees and make recommendations to the County, supervise trimming and removal of trees as directed by the Project Manager, and supervise all work performed for the County if needed.

• Be licensed and bonded.

• Have experience working in areas with public traffic. • Respond to emergency requests on two (2) hours’ notice.

• Regularly and continuously engaged in the business of providing tree removal and trimming services and possess a minimum of three (3) years’ experience in performing similar projects of scope and size including experience with trees posing an imminent threat to structures.

• Have the ability to remove trees up to 96” diameter at breast height (DBH) and 200’ high. • Have the ability to work with County personnel to achieve the best results for each project.

• Possess all permits, licenses, and professional credentials necessary to perform services as specified under RFP 20-1020-17-968 incorporated herein by this reference.

• Be in compliance with applicable federal, state, and local laws and regulations.

Services shall be performed in a manner to protect tree health and growth. Services shall be performed with particular attention to the following:

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• At County’s request, Contractor shall provide an estimate of tree value before cutting is begun. • All tree removal shall be done in a manner to protect surrounding property, vegetation, etc. • Tree trunks shall be removed to ground level, or to a specific height as directed by the Project

Manager.

• Stumps shall be ground and treated with appropriate materials to prevent re-growth as directed by the Project Manager.

• Include the arrival on site, with twenty-four (24) hours’ notice from the Project Manager, under normal conditions, of an aerial lift, operator and crew. Once a job is started, all work shall be completed in a timely manner without delay to the satisfaction of the County representative. • Include the arrival on site, with two (2) hours’ notice from the Project Manager, under storm and/or

emergency conditions, as determined by the Project Manager, of an aerial lift, operator, and crew. The County will be considered a first priority customer under these conditions.

• Comply with regulations set by all applicable federal, regional, state, and local regulatory agencies. • Include the right of the Project Manager to modify or suspend any work assignment for any reason,

including adverse weather conditions, at no cost to the County. • Be guaranteed for a period of one (1) year.

• Having an arborist on staff as needed for purposes of evaluating the health of trees to make recommendations as to whether a tree should be pruned, removed or preserved.

• Include training County staff as necessary.

Equipment and Safety Specifications shall include the following:

• Contractor shall supply all labor and equipment necessary to appropriately and safely complete the required task.

• Contractor shall ensure services are performed safely and in accordance with all applicable federal, state, local laws and regulations.

• Chain saws used by Contractor shall be maintained in good and operable condition throughout the Agreement term. The chain saws shall be of sufficient size and design for the task.

• All other equipment shall be suitable, appropriate, and properly maintained by the Contractor while performing Services.

• Personnel shall be experienced and trained to safely operate equipment to perform services. Contractor shall perform services with minimal obstruction and inconvenience to the public, and shall begin no project that cannot be performed without regard for the rights of the public.

The Project Manager may order the Contractor to stop work whenever any safety violation is observed and/or evidenced. Contractor shall comply with the stop work order and shall not resume work until the safety violation is corrected to the satisfaction of the Project Manager. Contractor shall not be entitled to any compensation for time during the period of the work stoppage.

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Identification and location of all utility or power lines are the responsibility of the Contractor. Contractor shall:

• Proceed with sufficient caution to preclude damaging any utilities known or unknown. In the event unidentified utilities are encountered, Contractor shall notify the Project Manager immediately. • In the event utilities are damaged during the tree removal or trimming process, temporary services

and/or repairs shall be made immediately, at Contractor’s expense, to maintain continuity of services and permanent repairs shall be made in a timely manner at Contractor’s expense. • Any damage caused by Contractor shall be repaired or replaced at Contractor’s expense. Miscellaneous Requirements:

• Contractor shall be responsible to supply and furnish appropriate safety devices for tree removal and trimming work located on other public properties when traffic control services are not necessary.

• County will determine when and where tree services are required. Prior to performance of work, Contractor will be instructed on the scope of work at the jobsite by the Project Manager and discuss the type and number of personnel that will be required. Project Manager will inspect and approve the work performed prior to approving invoices for payment.

• All of Contractor’s employees assigned to County projects are required to have personal protective equipment (PPE) when they are on County job sites, including but not limited to, hard hats, reflective vests/shirts, hearing protection, protective masks, and gloves. Contractor is responsible for supplying their employees with personal protective equipment.

• Any mechanical failure and or damage to equipment used in performing the required services is the sole responsibility of the Contractor.

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ATTACHMENT 1: TASK AUTHORIZATION 01

Public Works

Task Term Project and Project Number

Agreement Number Project Number Max. Task Amount Org. Key Object Code

THIS TASK AUTHORIZATION shall be performed in accordance with the provisions described below and the Professional Services Agreement associated with this Task Authorization.

1. TERM

Services performed under this Task Authorization shall commence immediately following execution of this Task Authorization and terminate on [date].

2. WORK ELEMENTS [Add text]

3. DELIVERABLES [Add text]

4. TASK BUDGET

The services provided under this Task Authorization shall not exceed amount dollars ($0,000).

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates indicated below.

County Contractor

Contract Manager Contractor Name

Title Title

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EXHIBIT B: RATES

1020-2020 Various $250,000 10200760 5271

The following list outlines ACE Tree Service rates for services requested under the RFP.

Personnel Hourly Rate

• Project Manager $100.00

• Climber $ 75.00

• Worker $ 50.00

Equipment Per Day

• Skidsteer $500.00

• Chipper (small) $300.00

• Chipper (large) $500.00

• Crane $3,000.00

Though equipment is listed at a daily rate, any jobs that take a portion of a day will be charged proportionate to the actual time used instead of the 8 hour daily rate.

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EXHIBIT C: SUPPLEMENTAL PROVISIONS

1020-2020 Various $250,000 10200760 5271

1. PERFORMANCE PERIOD

See Section 3 of the Professional Services Agreement.

2. ALLOWABLE COSTS AND PAYMENTS

See Section 2 and Exhibit B: Rates of the Professional Services Agreement.

3. TERMINATION

4. COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS LAPM Exhibit 10-R Article VII

A. Consultant agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.

B. Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.

C. Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200, are subject to repayment by Consultant to County.

D. When a Consultant or Subconsultant is a Non-Profit Organization or an Institu8tion of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.

5. RETENTION OF RECORDS/AUDIT

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6. AUDIT REVIEW PROCEDURES LAPM Exhibit 10-R Article IX

A. Any disputes concerning a question of fact arising under an interim or post audit of this contract that is not disposed of by agreement, shall be reviewed by the County’s Chief Financial Officer. B. Not later than 30 days after issuance of the final audit report, Consultant may request a review by

the County’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.

C. Neither the pendency of a dispute nor its consideration by the County will excuse the Consultant from full and timely performance, in accordance with the terms of this contract.

D. Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the contract, cost proposal, ICR, and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The contract, cost proposal, and ICR shall be adjusted by Consultant and approved by County contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the contract by this reference if directed by County at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of contract terms and cause for termination of the contract and disallowance of prior reimbursed costs.

E. Consultant’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by Caltrans Audits and Investigation (A&I). Caltrans A&I, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the County contract manager to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Contract terms and cause for termination of the Contract and disallowance of prior reimbursed costs.

1. During Caltrans A&I’s review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans A&I will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans A&I identifies significant issues during the review and is unable to issue a cognizant approval letter, the County will reimburse the Consultant at

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an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines} is received and approved by A&I.

Accepted rates will be as follows:

a. If the proposed rate is less than 150% – the accepted rate reimbursed will be 90% of the proposed rate.

b. If the proposed rate is between 150% and 200% – the accepted rate will be 85% of the proposed rate.

c. If the proposed rate is greater than 200% – the accepted rate will be 75% of the proposed rate.

2. If Caltrans A&I is unable to issue a cognizant letter per paragraph E.1. above, Caltrans A&I may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. Caltrans A&I will then have up to six (6) months to review the Consultant’s and/.or the independent CPA’s revisions. 3. If the Consultant fails to comply with the provisions of this paragraph E, or if Caltrans A&I is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Contract.

4. Consultant may submit to County final invoice only when all of the following items have occurred: (1) Caltrans A&I accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Contract has been completed to the satisfaction of the County; and, (3) Caltrans A&I has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO COUNTY no later than 60 calendar days after occurrence of the last of these items. The accepted ICR will apply to this Contract and all other contracts executed between County and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR.

7. SUBCONTRACTING

8. EQUIPMENT PURCHASE LAPM Exhibit 10-R Article XI

A. Prior authorization in writing, by County’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment,

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or Consultant services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs.

B. For purchase of any item, service or consulting work not covered in Consultant’s Cost Proposal and exceeding $5,000 prior authorization by County’s Contract Administrator; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.

C. Any equipment purchased with funds provided under the terms of this Contract is subject to the following: “Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, County shall receive a proper refund or credit at the conclusion of the Contract, or if the Contract is terminated, Consultant may either keep the equipment and credit County in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established County procedures; and credit County in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by County and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by County.” Regulation 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the project.

9. STATE PREVAILING WAGE REQUIREMENTS

See Section 1.3 of the Professional Services Agreement.

10. CONFLICT OF INTEREST LAPM Exhibit 10-R Article XIII

A. Consultant shall disclose any financial, business, or other relationship with County that may have an impact upon the outcome of this Contract, or any ensuing County construction project which will follow.

B. Consultant certifies that it has disclosed to County any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this Contract. Consultant agree to advise County of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this Contract. Consultant further agrees to complete any statements of economic interest if required by either County Ordinance or State Law. Consultant hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of services under this Contract.

C. Consultant hereby certifies that the Consultant or subconsultant and any firm affiliated with Consultant or subconsultant that bids on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this Contract, has established

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necessary controls to ensure a conflict of interest does not exist. An affiliated firm in one, which is subject to the control of the same persons, through joint-ownership, or otherwise.

11. REBATES, KICKBACKS, OR OTHER UNLAWFUL CONSIDERATION LAPM Exhibit 10-R Article XIV

Consultant warrants that this Contract was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any County employee. For breach or violation of this warranty, County shall have the right, in its discretion; to terminate the Contract without liability; to pay only for the value of the work actually performed; or to deduct from the Contract price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.

12. PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR LOBBYING LAPM Exhibit 10-R Article XV

A. Consultant certifies to the best of his or her knowledge and belief that:

1. No State, Federal or local agency appropriated funds have been paid or will be paid, by-or-on behalf of Consultant, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this Contract, or with the extension, continuation, renewal, amendment, or modification of this Contract.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress in connection with this Contract, the Consultant shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.

B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S.C. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

C. Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000, and that all such subrecipients shall certify and disclose accordingly.

13. NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE LAPM Exhibit 10-R Article XVI

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A. Consultant’s signature affixed herein, and dated shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with the nondiscrimination program requirements of Government Code §12990 and 2 CCR §8103. B. During the performance of this Contract, Consultant and its subconsultants shall not deny the

Contract’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender identity, gender expression, age, sexual orientation, or military and veteran status.. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

C. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by County to implement such article. . The applicable regulations of the Fair Employment and Housing Commission implementing Government Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this Contract by reference and made a part hereof as if set forth in full.

D. Consultant shall permit access by representatives of the Department of Fair Employment and Housing and the County upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or County shall require to ascertain compliance with this clause.

E. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.

F. Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Contract.

G. Consultant, with regard to the work performed under this Contract, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipient of federal assistance or their assignees and successors in interest.

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H. Consultant shall comply with regulations relative to non-discrimination in federally- assisted programs of the U.S. Department of Transportation –(49 CFR,\ Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964).). Specifically, the Consultant shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.

14. DEBARMENT AND SUSPENSION CERTIFICATION LAPM Exhibit 10-R Article XVII

A. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant or any person associated therewith in the capacity of owner, partner, director, officer, or manager:

1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;

2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;

3. Does not have a proposed debarment pending; and

4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.

B. Any exceptions to this certification must be disclosed to County. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate to whom the exceptions apply, the initiating agency, and dates of agency action.

C. Exceptions to the Federal Government Excluded Parties List System maintained by the U.S. General Services Administration are to be determined by the FHWA.

15. DISADVANTAGED BUSINESS ENTERPRIES (DBE) PARTICIPATION LAPM Exhibit 10-R Article XVIII

A. This Contract is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Consultants who enter into a federally-funded agreement will assist County in good faith effort to achieve California’s statewide overall DBE goal.

B. The goal for DBE participation for this Contract is 5%. Participation by DBE Consultant or subconsultants shall be in accordance with information contained in Exhibit 10-O1: Consultant Proposal DBE Commitment, or in Exhibit 10-O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the Contract. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.

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C. Consultant can meet the DBE participation goal by either documenting commitments to DEB’s to meet the Contract goal, or by documenting adequate good faith efforts to meet the Contract goal. An adequate good faith effort means that the Consultant must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If Consultant has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.

D. DBEs and other small businesses, as defined in 49 CFR Part 26 are encouraged to participate in the performance of Contracts financed in whole or in part with federal funds. The County, Consultant or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of DOT-assisted contracts. Failure by Consultant 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 County deems appropriate, which may include but is not limited to:

1. Withholding monthly progress payments; 2. Assessing sanctions;

3. Liquidated damages; and/or

4. Disqualifying the contractor from future bidding as non-responsible

F. A DBE firm may be terminated only with prior written approval from County and only for the reasons specified in 49 CFR §26.53(f). Prior to requesting County consent for the termination, Consultant must meet the procedural requirements specified in 49 CFR §26.53(f). If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met. Consultant shall not be entitled to any payment for such work or material unless it is performed or supplied by the listed DBE or by other forces (including those of Consultant) pursuant to prior written authorization of the County’s Contract Administrator,

G. A DBE is only eligible to be counted toward the Contract goal if it performs a commercially useful function (CUF) on the Contract. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Agreement and its carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, 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 and installing (where applicable), and paying for the material itself To determine whether a DBE is performing a CUF, evaluate the amount of work