1 GRANT AGREEMENT BETWEEN
THE SAN DIEGO ASSOCIATION OF GOVERNMENTS AND
CITY OF CHULA VISTA
REGARDING CHULA VISTA ADU ASSISTANCE PROGRAM
REGIONAL EARLY ACTION PROGRAM
HOUSING ACCELERATION GRANT PROGRAM – CYCLE 1
SANDAG CONTRACT NO. S978611
THIS GRANT AGREEMENT (“Agreement”) is made and entered into effective as of the last signature date, by and between the San Diego Association of Governments (“SANDAG”), 401 B Street, Suite 800, San Diego, California, and City of Chula Vista, (“Subgrantee”), 276 Fourth Ave., Chula Vista, California.
This Agreement expires on June 30th, 2023, unless amended in writing by mutual agreement of the parties.
The following recitals are a substantive part of this Agreement:
A. In January 2010, the SANDAG Board of Directors approved Board Policy No. 035: Competitive Grant Program Procedures, which is available in its updated version at www.sandag.org/legal. This Agreement and the Subgrantee’s performance hereunder are subject to Board Policy No. 035, which includes multiple “use it or lose it” provisions.
B. In 2019, the state legislature passed Assembly Bill 101, which allowed for the creation of state grant fund programs to distribute one-time funding to regional entities to prioritize planning activities that accelerate housing production. Thereafter, the California Department of Housing and Community Development (HCD) established the Regional Early Action Planning grant program (REAP), which allocated $6.8 million to SANDAG. Using these grant funds, SANDAG established a regional housing incentive program to collaborate on projects that have a broader regional impact on housing.
C. On November 19, 2021, SANDAG issued a call for projects from local jurisdictions in San Diego County wishing to apply for REAP funds for use on housing planning projects meeting certain criteria and authorizing up to $3 million from REAP to be used for housing acceleration and smart growth through the Housing Acceleration Program (HAP).
D. On March 11th, 2022, the SANDAG Board of Directors approved a list of recommended HAP projects for the first competitive grant cycle, and one of those projects is the subject of this Agreement (Project). The Project Scope of Work, Schedule, and Budget are included as Attachment A.
E. The purpose of this Agreement is to establish the terms and conditions for SANDAG to provide Subgrantee with funding to implement the Project.
F. Although SANDAG will be providing financial assistance to Subgrantee to support the Project, SANDAG will not take an active role or retain substantial control of the Project. Therefore, this Agreement is characterized as a funding agreement rather than a cooperative agreement.
G. Subgrantee understands that REAP funds were granted from HCD which have statutory requirements and an expenditure deadline of June 30, 2023. The SANDAG funding commitment to HAP Projects, including this Project, is subject to those statutory requirements and deadline, which may impact funding availability for this Project.
2 NOW, THEREFORE, it is agreed as follows:
I. GRANT AWARD
A. The total amount payable by SANDAG to Subgrantee pursuant to this Agreement shall be the proportion of actual Project costs allocated to grant funding in Attachment A and shall not exceed the grant award of $180,720 (Fund Limit).
B. It is agreed and understood that this Agreement Fund Limit is a ceiling and that SANDAG will only reimburse the allowable cost of services actually rendered as authorized by SANDAG at or below the Fund Limit.
II. PROJECT BUDGET
Except to the extent that SANDAG determines otherwise in writing, the Subgrantee agrees as follows:
The Subgrantee and SANDAG have agreed to a Project Budget that is set forth in Attachment A. The Subgrantee and/or third-party contractor(s) will incur obligations to the Project only as authorized by the Project Budget. An amendment to the Project Budget requires the issuance of a formal amendment to the Agreement per Board Policy No. 035, unless the re-allocation of funds among budget line items or fiscal years does not increase the Fund Limit, does not exceed an aggregate of ten percent for any particular task in Attachment A, does not negatively impact the benefits obtained from the Project, and is consistent with applicable laws, regulations, and policies. Prior written SANDAG Grants Program Manager approval is required for transfers of funds between tasks in Attachment A that meet these eligibility criteria for an administrative amendment by SANDAG staff. All other amendments are subject to approval by a SANDAG Policy Advisory Committee or the SANDAG Board of Directors.
III. MATCHING FUNDS
Subgrantee agrees to provide matching funds in an amount of $200,000 of the actual cost of the Project, estimated to be 52.53% percent based on the Project Budget. If the actual cost of the Project exceeds the Project Budget, Subgrantee is responsible for 100 percent of the actual cost greater than the Project Budget.
A. Availability of Grant Funding
Except where expressly allowed in writing herein, credits for matching funds will be made or allowed only for work performed on and after the Notice to Proceed date and prior to the termination date of this Agreement, unless expressly permitted by SANDAG in writing.
B. Reduction of Matching Funds
The Subgrantee agrees that no reduction in the amount of matching funds may be made unless a reduction of the proportional share of the grant funding provided by SANDAG under this Agreement also is made.
C. Prompt Payment of Subgrantee’s Share of Matching Funds Subgrantee agrees to complete all actions necessary to provide its share of the Project costs at or before the time the matching funds are needed from Subgrantee to pay for Project costs. The Subgrantee agrees to provide not less than its cumulative required match amount of Project costs prior to invoicing SANDAG for reimbursement. Each of Subgrantee’s invoices must include its matching fund contribution, along with supporting, descriptive and/or explanatory documentation for the matching funds provided.
3 IV. PROJECT MANAGERS
Subgrantee’s Project Manager is Genevieve Hernandez.
The SANDAG Project Manager is Tracy Ferchaw.
Project manager continuity and experience is deemed essential in Subgrantee’s ability to carry out the Project in accordance with the terms of this Agreement. Subgrantee shall not change the Project Manager without first providing written notice to SANDAG. Subgrantee shall provide SANDAG with updated contact information in a timely manner if there are any changes to its Project Manager.
V. NOTICE
All notices required to be given, by either party to the other, shall be deemed fully given when made in writing and received by the parties at their respective addresses:
San Diego Association of Governments
Attention: Grants Program Manager
401 B Street, Suite 800
San Diego, CA 92101
Subgrantee:
City of Chula Vista
Attention: Genevieve Hernandez
276 Fourth Ave.
Chula Vista, CA 91910
VI. PROJECT IMPLEMENTATION
A. General
The Subgrantee agrees to carry out the Project as follows:
1. Project Description
Subgrantee agrees to perform the work as described in the Scope of Work included in Attachment A.
2. Subgrantee's Capacity
The Subgrantee agrees to maintain or acquire sufficient legal, financial, technical, and managerial capacity to: (a) plan, manage, and complete the Project as described in Attachment A and provide for the use of any Project property; (b) carry out any safety and security aspects of the Project; and (c) comply with the terms of the Agreement and all applicable laws, regulations, and policies pertaining to the Project and the Subgrantee, including but not limited to the Pass-Through Provisions from REAP Agreement (Attachment B) and Board Policy No. 035.
3. Project Schedule
The Subgrantee agrees to complete the Project according to the Project Schedule included in Attachment A and in compliance with the Pass-Through Provisions from REAP Agreement (Attachment B) and Board Policy No. 035.
4 4. Project Implementation and Oversight Requirements
Subgrantee agrees to comply with the Performance Measures included in Attachment C.
5. Changes to Project Scope of Work
This Agreement was awarded to Subgrantee based on the application submitted by Subgrantee with the intention that the awarded funds would be used to implement the Project as described in the project application. Any substantive deviation from Subgrantee’s Scope of Work during project implementation may require reevaluation or result in loss of funding. If Subgrantee knows or should have known that substantive changes to the Project will occur or have occurred, Subgrantee will immediately notify SANDAG in writing. SANDAG will then determine whether the Project is still consistent with the overall objectives of the grant program and whether the changes would have negatively affected the Project ranking during the competitive grant evaluation process. SANDAG reserves the right to have grant funding withheld from Subgrantee, or refunded to SANDAG, due to Subgrantee’s failure to satisfactorily complete the Project or due to substantive changes to the Project not approved in advance by SANDAG.
B. Application of Laws
Should a federal or state law pre-empt or conflict with a local law, policy, or ordinance, the Subgrantee must comply with the federal or state law and implementing regulations. No provision of this Agreement requires the Subgrantee to observe or enforce compliance with any provision, perform any other act, or do any other task in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any provision of this Agreement violates or would require the Subgrantee to violate any law, the Subgrantee agrees to notify SANDAG immediately in writing. Should this occur, SANDAG and the Subgrantee agree that they will make appropriate arrangements to proceed with or, if necessary, terminate the Project or affected portions thereof expeditiously.
C. Changes in Project Performance
The Subgrantee agrees to notify SANDAG immediately, in writing, of any change in local law, conditions (including its legal, financial, or technical capacity), or any other event, including a force majeure event, that may adversely affect the Subgrantee's ability to perform the Project in accordance with the terms of the Agreement and as required by Board Policy No. 035. The Subgrantee also agrees to notify SANDAG immediately, in writing, of any current or prospective major dispute, breach, default, or litigation that may adversely affect SANDAG's interests in the Project; and agrees to inform SANDAG, also in writing, before naming SANDAG as a party to litigation for any reason, in any forum. At a minimum, the Subgrantee agrees to send each notice to SANDAG required by this subsection to SANDAG’s Grants Program Manager.
D. Compliance Information System (CIS)
If Subgrantee will utilize persons other than its own employees to carry out work, Subgrantee and all of its subgrantees, third party contractors, and/or subcontractors (hereinafter “subcontractors”) shall report payment details using the SANDAG web-based CIS by the 15th of each month following receipt of payment by SANDAG. CIS allows SANDAG to monitor promptness of payment to subcontractors and will allow Subgrantee and its subcontractors to manage their own records, maintain accurate contract information, and report payment details online. CIS is mandatory for Subgrantee and subcontractors to use unless SANDAG instructs otherwise. After execution of this Agreement, Subgrantee will receive instructions on how to set up its account and enter required subcontractor data into CIS via an internet browser. Subgrantee must require each of its subcontractors to enter required payment information into CIS. Failure of Subgrantee or its
5 subcontractors to enter required information and confirm payments on a timely basis will result in delay of payment by SANDAG to Subgrantee until Subgrantee has cured any defects or provided the missing information. Should Subgrantee fail to provide the required information, SANDAG shall have sole discretion regarding whether to withhold payment or terminate this Agreement.
E. Licenses and Permits
Subgrantee represents and warrants to SANDAG that Subgrantee and its subcontractors will have all necessary licenses, permits, qualifications and approvals of whatever nature that are required to legally practice its profession and/or perform services under this Agreement at all times during the term of this Agreement.
F. Standard of Care
Subgrantee expressly warrants that the work to be performed pursuant to this Agreement shall be performed in accordance with the applicable standard of care. Where approval by SANDAG, its management, or other representative of SANDAG is indicated in the Scope of Work, it is understood to be conceptual approval only and does not relieve the Subgrantee of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Subgrantee or its subcontractors.
G. Third-Party Contracting
Although the Subgrantee may delegate any or almost all Project responsibilities to one or more third-party contractors, the Subgrantee agrees that it, rather than any third-party contractor, is ultimately responsible for compliance with all applicable laws, regulations, and this Agreement. The first invoice utilizing any third-party contractor shall be accompanied by evidence of compliance with the following requirements:
1. Competitive Procurement
Subgrantee shall not award contracts over $10,000 on the basis of a noncompetitive procurement for work to be performed under this Agreement without the prior written approval of SANDAG. Contracts awarded by Subgrantee, if intended as local match credit, must meet the requirements set forth in this Agreement regarding local match funds. Upon request by SANDAG, Subgrantee shall submit its Request for Proposals or bid solicitation documents to SANDAG staff for review and comment for consistency with the agreed upon Scope of Work with SANDAG and to ensure a competitive process was used.
If Subgrantee hires a third-party contractor to carry out work funded under this Agreement, Subgrantee shall: prepare an Independent Cost Estimate prior to soliciting proposals/bids; publicly advertise for competing proposals/bids for the work; for professional services, use cost as a significant evaluation factor in selecting the third-party contractor; document a record of negotiation establishing that the amount paid by Subgrantee for the work is fair and reasonable; and pass through the relevant obligations in this Agreement to the contractor.
2. Debarment
Subgrantee shall execute and cause its third-party contractors to execute debarment and suspension certificates stating they have not been disqualified from doing business with government entities. The documentation showing lack of debarment shall be obtained from the following two websites:
6 Subgrantee will check the System for Award Management (SAM) at www.sam.gov to verify the prime contractor and all of its subcontractors are not currently debarred or suspended by the federal government.
Entities in the United States are banned from doing business with companies with ownership based in countries such as Cuba, Sudan and China due to United States trade sanctions. A search on the US Treasury’s Office of Foreign Assets Control (OFAC) website can ensure Subgrantee will not be doing business with a vendor that is subject to trade sanctions. This can be done at https://sanctionssearch.ofac.treas.gov/.
3. Flowdown
Subgrantee agrees to take appropriate measures necessary, including the execution of a subagreement, lease, third-party contract, or other, to ensure that all Project participants, including alternate payees or third-party contractors at any tier, comply with all applicable federal laws, regulations, policies affecting Project implementation and Agreement requirements. In addition, if an entity other than the Subgrantee is expected to fulfill any responsibilities typically performed by the Subgrantee, the Subgrantee agrees to assure that the entity carries out the Subgrantee’s responsibilities as set forth in this Agreement, including but not limited to those in Attachment B.
4. No SANDAG Obligations to Third Parties
In connection with the Project, the Subgrantee agrees that SANDAG shall not be subject to any obligations or liabilities to any subcontractor, lessee, third party contractor at any tier or other person or entity that is not a party to the Agreement for the Project. Notwithstanding that SANDAG may have concurred in or approved any solicitation, subagreement, lease, alternate payee designation, or third-party contract at any tier, SANDAG has no obligations or liabilities to any entity other than the Subgrantee.
5. Equipment Purchases
Subgrantee shall maintain ownership of any equipment purchased using Agreement funding and shall use such equipment only for the purposes set forth in this Agreement. The parties agree to meet and confer in good faith to ensure the continued use of the equipment for the purposes intended, which may include reimbursement to SANDAG when the fair market value of the equipment at Project completion exceeds $5,000. SANDAG and Subgrantee further agree that Subgrantee shall keep an inventory record for each piece of equipment purchased under this Agreement and maintain each piece of equipment in good operating order consistent with the purposes for which they were intended. SANDAG shall have the right to conduct periodic maintenance inspections for the purpose of confirming the existence, condition, and proper maintenance of the equipment.
VII. ETHICS
A. Subgrantee Code of Conduct/Standards of Conduct
The Subgrantee agrees to maintain a written code of conduct or standards of conduct that shall govern the actions of its officers, employees, council or board members, or agents engaged in the award or administration of subagreements, leases, or third-party contracts supported with the grant funding. The Subgrantee agrees that its code of conduct or standards of conduct shall specify that its officers, employees, council or board members, or agents may neither solicit nor accept gratuities, favors, or anything of monetary value from any present or potential subcontractor, lessee, or third-party contractor at any tier or agent thereof. The Subgrantee may set de minimis rules where the financial interest is not substantial, or the gift is an unsolicited item of nominal
7 intrinsic value. The Subgrantee agrees that its code of conduct or standards of conduct shall also prohibit its officers, employees, board members, or agents from using their respective positions in a manner that presents a real or apparent personal or organizational conflict of interest or personal gain. As permitted by state or local law or regulations, the Subgrantee agrees that its code of conduct or standards of conduct shall include penalties, sanctions, or other disciplinary actions for violations by its officers, employees, council or board members, or their agents, or its third-party contractors or subcontractors or their agents.
B. Personal Conflicts of Interest
The Subgrantee agrees that its code of conduct or standards of conduct shall prohibit the Subgrantee's employees, officers, council or board members, or agents from participating in the selection, award, or administration of any third-party contract or subagreement supported by the grant funding if a real or apparent conflict of interest would be involved. Such a conflict would arise when an employee, officer, board member, or agent, including any member of his or her immediate family, partner, or organization that employs, or intends to employ, any of the parties listed herein has a financial interest in a firm competing for award.
C. Organizational Conflicts of Interest
The Subgrantee agrees that its code of conduct or standards of conduct shall include procedures for identifying and preventing real and apparent organizational conflicts of interest. An organizational conflict of interest exists when the nature of the work to be performed under a proposed third-party contract or subagreement may, without some restrictions on future activities, result in an unfair competitive advantage to the third-party contractor or subcontractor or impair its objectivity in performing the contract work.
D. SANDAG Code of Conduct
SANDAG has established policies concerning potential conflicts of interest. These policies apply to Subgrantee. For all awards by SANDAG, any practices which might result in unlawful activity are prohibited including, but not limited to, rebates, kickbacks, or other unlawful considerations.
SANDAG staff members are specifically prohibited from participating in the selection process when those staff have a close personal relationship, family relationship, or past (within the last 12 months), present, or potential business or employment relationship with a person or business entity seeking a contract with SANDAG. It is unlawful for any contract to be made by SANDAG if any individual Board member or staff has a prohibited financial interest in the contract. Staff also are prohibited from soliciting or accepting gratuities from any organization seeking funding from SANDAG. SANDAG’s officers, employees, agents, and board members shall not solicit or accept gifts, gratuities, favors, or anything of monetary value from consultants, potential consultants, or parties to subagreements. By signing this Agreement, Subgrantee affirms that it has no knowledge of an ethical violation by SANDAG staff or Subgrantee. If Subgrantee has any reason to believe a conflict of interest exists with regard to the Agreement or the Project, it shall notify the SANDAG Office of General Counsel immediately.
E. Bonus or Commission
The Subgrantee affirms that it has not paid, and agrees not to pay, any bonus or commission to obtain approval of its grant funding application for the Project.
F. False or Fraudulent Statements or Claims
The Subgrantee acknowledges and agrees that by executing the Agreement for the Project, the Subgrantee certifies or affirms the truthfulness and accuracy of each statement it has made, it
8 makes, or it may make in connection with the Project, including, but not limited to, the Subgrantee’s grant application, progress reports and invoices.
VIII. PAYMENTS
A. Method of Payment
The method of payment for this Agreement will be based upon actual, substantiated, and allowable costs described herein.
B. Alternate Payee
If the Subgrantee designates a party as an Alternate Payee, Alternate Payee is authorized to submit payment requests directly to SANDAG to receive reimbursement for allowable Project costs.
This does not alleviate Subgrantee from all obligations under this Grant Agreement.
C. Invoicing
Subgrantee or Alternate Payee is required to submit invoices quarterly. Invoices must be accompanied by a quarterly report (template to be provided by SANDAG). SANDAG will make payments for eligible amounts to Subgrantee or Alternate Payee as promptly as SANDAG fiscal procedures permit upon receipt of Subgrantee’s or Alternate Payee’s itemized signed invoice(s) and confirmation by the SANDAG Project Manager that Subgrantee is in compliance with the reporting and other requirements in this Agreement. SANDAG shall retain 10 percent from the amounts invoiced until satisfactory completion of the Project. SANDAG shall promptly pay retention amounts to Subgrantee or Alternate Payee following satisfactory completion of work, receipt of final invoice, and all required documentation.
D. Eligible Costs
The Subgrantee agrees that Project costs eligible for grant funding must comply with the following requirements, unless SANDAG determines otherwise in writing. To be eligible for reimbursement, Project costs must be:
1. Consistent with the Project Scope of Work, Schedule, and Project Budget, and other provisions of the Agreement.
2. Necessary in order to accomplish the Project.
3. Reasonable for the goods or services purchased.
4. Actual net costs to the Subgrantee (i.e., the price paid minus any refunds, rebates, or other items of value received by the Subgrantee that have the effect of reducing the cost actually incurred, excluding program income). Project generated revenue realized by the Subgrantee shall be used in support of the Project. Project generated revenue and expenditures, if any, shall be reported at the end of the Agreement period.
5. Incurred for work performed on or after the SANDAG Notice to Proceed date, and before the termination date, and also must have been paid for by the Subgrantee.
6. Satisfactorily documented with supporting documentation, which is to be submitted with each invoice. Copies of invoices are required for goods or services provided by third parties.
9 7. Treated consistently in accordance with generally accepted accounting principles and procedures for the Subgrantee and any third-party contractors and subcontractors, (see Section entitled “Accounting Records”).
8. Eligible for grant funding as part of the grant program through which the funds were awarded.
E. Excluded Costs
In determining the amount of REAP funds SANDAG will provide for the Project, SANDAG will exclude:
1. Any Project cost incurred by the Subgrantee before the Effective Date of the Agreement or applicable Amendment thereto
2. Any cost that is not included in the Project Budget
3. Any cost for Project property or services received in connection with a subagreement, lease, third-party contract, or other arrangement that is required to be, but has not been, concurred in or approved in writing by SANDAG
4. Any cost ineligible for SANDAG participation as provided by applicable laws, regulations, or policies
5. Any cost incurred for a common or joint purpose benefitting more than one cost objective, and not readily assignable to the cost objectives specifically benefitted, without effort disproportionate to the results achieved (any indirect cost). Typical indirect costs include facilities and administration costs such as heat/air conditioning, lighting, payroll, and the entity’s accounting system. Administrative costs such as clerical and support staff salaries also are most often treated as indirect costs.
The Subgrantee understands and agrees that payment to the Subgrantee for any Project cost does not constitute SANDAG’s final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation by the Subgrantee of the terms of this Agreement or Board Policy No. 035. The Subgrantee acknowledges that SANDAG will not make a final determination about the allowability and eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by SANDAG has been completed, whichever occurs latest. If SANDAG determines that the Subgrantee is not entitled to receive any portion of the grant funding requested or paid, SANDAG will notify the Subgrantee in writing, stating its reasons. The Subgrantee agrees that Project closeout will not alter the Subgrantee's responsibility to return any funds due to SANDAG as a result of later refunds, corrections, performance deficiencies, or other similar actions; nor will Project closeout alter SANDAG's right to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. Upon notification to the Subgrantee that specific amounts are owed to SANDAG, whether for excess payments of grant funding, disallowed costs, or funds recovered from third parties or elsewhere, the Subgrantee agrees to promptly remit to SANDAG the amounts owed, including applicable interest, penalties and administrative charges.
IX. ACCOUNTING, REPORTING, RECORD RETENTION, AND ACCESS A. Project Accounts
The Subgrantee and/or Alternate Payee agree to establish and maintain for the Project either a separate set of accounts or separate accounts within the framework of an established accounting system that can be identified with the Project. The Subgrantee and/or Alternate Payee also agree to maintain documentation of all checks, payrolls, invoices, contracts, vouchers, orders, or other
10 accounting documents related in whole or in part to the Project so that they may be clearly identified, readily accessible, and available to SANDAG upon request and, to the extent feasible, kept separate from documents not related to the Project.
B. Reports
1. The Subgrantee agrees to submit to SANDAG all reports required by law and regulation, policy, this Agreement, or any other reports SANDAG may specify. SANDAG reserves the right to specify that records be submitted in particular formats. Subgrantee may be required to attend meetings of SANDAG staff and committees, including but not limited to the Regional Planning Committee and the SANDAG Board of Directors, to report on its progress and respond to questions from Board Members or the public.
2. Subgrantee’s performance shall be monitored for consistency with the Scope of Work.
SANDAG will utilize Performance Measures (Attachment C) and the SANDAG Grant Monitoring Checklist provided by the SANDAG Project Manager, to document compliance with this Agreement. Subgrantee’s performance will be measured against the Performance Measures during the term of this Agreement. If the Subgrantee does not comply with provisions in this Agreement or achieve minimum performance requirements, SANDAG will issue Subgrantee a written Notice to Complete a Recovery Plan. Subgrantee’s Recovery Plan shall include a detailed description of how Subgrantee intends to come into compliance with the Performance Measures. Subgrantee’s Recovery Plan must include an implementation schedule that reflects achievement of its performance measure minimums within three months following the issue date of the SANDAG Notice to Complete a Recovery Plan. Subgrantee must submit its Recovery Plan to the SANDAG Project Manager within 30 calendar days following the issue date of the SANDAG Notice to Complete a Recovery Plan. If Subgrantee’s performance is inconsistent with that proposed in its Recovery Plan, SANDAG in its sole discretion may terminate this Agreement.
3. Subgrantee must submit quarterly reports and invoices to SANDAG, detailing accomplishments in the quarter, anticipated progress next quarter, pending issues and actions toward resolution, and status of budget, schedule, and Performance Measure. Subgrantee will not be paid until all reports are completed and provided to SANDAG in the format SANDAG requires. Furthermore, the Subgrantee agrees to provide project milestone information (such as presentations to community groups, other agencies, and elected officials, groundbreakings, and ribbon-cuttings) to support media and communications efforts. Subgrantee needs to document and track in-kind contributions designated as matching funds as part of project management. Subgrantee must provide all deliverables identified in the Scope of Work.
4. Press materials shall be provided to SANDAG staff before they are distributed. SANDAG logo(s) should be included in press materials and other project collateral based on logo usage guidelines to be provided by SANDAG. Subgrantee agrees to provide project milestone information to support media and communications efforts.
5. Subgrantees are responsible for the following photo documentation:
Existing conditions photos (as applicable), which should illustrate the current conditions of the project site and demonstrate the need for improved facilities Project milestone photos (such as workshops, presentations to community groups, other agencies, and elected officials)
Photos should be high resolution (at least 4 inches by 6 inches with a minimum of 300 pixels per inch) and contain captions with project descriptions, dates, locations, and the names of those featured, if appropriate. Subgrantees must obtain consent of all persons
11 featured in photos (or that of a parent or guardian of persons under the age of 18) by using the SANDAG Photo and Testimonial Release form to be provided by SANDAG, or a similar release form developed by Subgrantee and agreed upon by SANDAG.
C. Record Retention
During the course of the Project and for three years thereafter from the date of transmission of the final invoice, the Subgrantee agrees to maintain, intact and readily accessible, all communications, data, documents, reports, records, contracts, and supporting materials relating to the Project, as SANDAG may require. All communications and information provided to SANDAG become the property of SANDAG and public records, as such, may be subject to public review. Please see SANDAG’s Board Policy No. 015: Records Management Policy, which is available at www.sandag.org/legal, for information regarding the treatment of documents designated as confidential.
D. Meeting Records
Subgrantee shall provide SANDAG with agendas and meeting summaries for all community meetings. SANDAG staff may attend any meetings as appropriate.
E. Access to Records of Subgrantees and Subcontractors
The Subgrantee agrees to permit, and require its subcontractors to permit, SANDAG or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Subgrantee and its subcontractors pertaining to the Project.
X. PROJECT COMPLETION, AUDIT, SETTLEMENT, AND CLOSEOUT
A. Project Completion
Within 90 calendar days following Project completion or termination by SANDAG, the Subgrantee agrees to submit a final invoice of Project expenses and final reports, as applicable. All payments made to the Subgrantee shall be subject to review for compliance by SANDAG with the requirements of this Agreement and shall be subject to an audit upon completion of the Project.
B. Project Audit
The Subgrantee agrees to have financial, performance, and compliance audits performed as SANDAG may require. The Subgrantee agrees that Project closeout will not alter the Subgrantee's audit responsibilities. Audit costs are allowable Project costs.
C. Performance Audit
The Subgrantee agrees to cooperate with SANDAG with regard to any performance audit that is performed on the Project.
D. Project Closeout
Project closeout occurs when SANDAG notifies the Subgrantee that SANDAG has closed the Project, and, if applicable, either forwards the final grant funding payment and or acknowledges that the Subgrantee has remitted the proper refund. The Subgrantee agrees that Project closeout by SANDAG does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from SANDAG.
12 XI. TIMELY PROGRESS AND RIGHT OF SANDAG TO TERMINATE A. Subgrantee shall make diligent and timely progress toward completion of the Project within the timelines set forth in the Project Schedule, and consistent with Board Policy No. 035 and any policy amendments thereto.
B. In the event Subgrantee encounters or anticipates difficulty in meeting the Project Schedule, the Subgrantee shall immediately notify the SANDAG Project Manager in writing, and shall provide pertinent details, including the reason(s) for the delay in performance and the date by which Subgrantee expects to complete performance or delivery. This notification shall be informational in character only and receipt of it shall not be construed as a waiver by SANDAG of a project delivery schedule or date, or any rights or remedies provided by this Agreement, including Board Policy No. 035 requirements.
C. Subgrantee agrees that SANDAG, at its sole discretion, may suspend or terminate all or any part of the grant funding if the Subgrantee fails to make reasonable progress on the Project and/or violates the terms of the Agreement or Board Policy No. 035, or if SANDAG determines that the purpose of the laws or policies authorizing the Project would not be adequately served by the continuation of grant funding for the Project.
D. In general, termination of grant funding for the Project will not invalidate obligations properly incurred by the Subgrantee before the termination date to the extent those obligations cannot be canceled. If, however, SANDAG determines that the Subgrantee has willfully misused grant funding by failing to make adequate progress, or failing to comply with the terms of the Agreement, SANDAG reserves the right to require the Subgrantee to refund to SANDAG the entire amount of grant funding provided for the Project or any lesser amount as SANDAG may determine.
E. Expiration of any Project time period established in the Project Schedule will not, by itself, automatically constitute an expiration or termination of the Agreement for the Project, however, Subgrantee must request and SANDAG may agree to amend the Agreement in writing if the Project Schedule will not be met. An amendment to the Project Schedule may be made at SANDAG’s discretion if Subgrantee’s request is consistent with the provisions of Board Policy No. 035 and the funding source supplying the grant funds to SANDAG.
XII. CIVIL RIGHTS
The Subgrantee agrees to comply with all applicable civil rights laws, regulations and policies and shall include the provisions of this section in each subagreement, lease, third-party contract or other legally binding document to perform work funded by this Agreement. Applicable civil rights laws, regulations and policies include, but are not limited to, the following:
A. Nondiscrimination
SANDAG implements its programs without regard to income level, disability, race, color, and national origin in compliance with the Americans with Disabilities Act and Title VI of the Civil Rights Act. Subgrantee shall prohibit discrimination on these grounds, notify the public of their rights under these laws, and utilize a process for addressing complaints of discrimination. Furthermore, Subgrantee shall make the procedures for filing a complaint available to members of the public and will keep a log of all such complaints. Subgrantee must notify SANDAG immediately if a complaint is lodged that relates to the Project or program funded by this grant. If Subgrantee receives a Title VI-related or ADA-related complaint, Subgrantee must notify SANDAG in writing within 72 hours of receiving the complaint so that SANDAG can determine whether it needs to carry out its own investigation.
13 B. Equal Employment Opportunity
During the performance of this Agreement, Subgrantee and all of its subcontractors, if any, shall not unlawfully discriminate, harass, or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, denial of family and medical care leave, denial of pregnancy disability leave, veteran status, or sexual orientation. Subgrantee and its subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Subgrantee and its subcontractors shall comply with the provisions of the Fair Employment and Housing Act (California Government Code Section 12900, et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0, et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing California Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by this reference and are made a part hereof as if set forth in full. Subgrantee 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.
XIII. DISPUTES AND VENUE
A. Choice of Law
This Agreement shall be interpreted in accordance with the laws of the State of California.
B. Dispute Resolution Process
In the event Subgrantee has a dispute with SANDAG during the performance of this Agreement, Subgrantee shall continue to perform unless SANDAG informs Subgrantee in writing to cease performance. The dispute resolution process for disputes arising under this Agreement shall be as follows:
1. Subgrantee shall submit a statement of the grounds for the dispute, including all pertinent dates, names of persons involved, and supporting documentation, to SANDAG’s Project Manager. The Project Manager and other appropriate SANDAG staff will review the documentation in a timely manner and reply to Subgrantee within 20 calendar days. Upon receipt of an adverse decision by SANDAG, Subgrantee may submit a request for reconsideration to SANDAG’s Chief Executive Officer or designee. The request for reconsideration must be received within ten calendar days from the postmark date of SANDAG’s reply. The Chief Executive Officer or designee will respond in writing to the request for reconsideration within ten working days.
2. If Subgrantee is dissatisfied with the results following exhaustion of the above dispute resolution procedures, Subgrantee shall make a written request to SANDAG for appeal to the SANDAG Regional Planning Committee. SANDAG shall respond to a request for mediation within 30 calendar days. The decision of the Regional Planning Committee shall be final.
C. Venue
If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Diego, State of California. In the event of any such litigation between the parties, the prevailing party shall be entitled to recover all reasonable costs incurred, including reasonable attorney’s fees, litigation and collection expenses, witness fees, and court costs as determined by the court.
14 XIV. ASSIGNMENT
Subgrantee shall not assign, sublet, or transfer (whether by assignment or novation) this Agreement or any rights under or interest in this Agreement.
XV. INDEMNIFICATION AND HOLD HARMLESS
A. Generally
With regard to any claim, protest, or litigation arising from or related to the Subgrantee’s performance in connection with or incidental to the Project or this Agreement, Subgrantee agrees to defend, indemnify, protect, and hold SANDAG and its agents, officers, Board members, and employees harmless from and against any and all claims, including, but not limited to prevailing wage claims against the Project, asserted or established liability for damages or injuries to any person or property, including injury to the Subgrantee’s or its subcontractors’ employees, agents, or officers, which arise from or are connected with or are caused or claimed to be caused by the negligent, reckless, or willful acts or omissions of the Subgrantee and its subcontractors and their agents, officers, or employees, in performing the work or services herein, and all expenses of investigating and defending against same, including attorney fees and costs; provided, however, that the Subgrantee’s duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of SANDAG, its Board of Directors, agents, officers, or employees.
B. Intellectual Property
Upon request by SANDAG, the Subgrantee agrees to indemnify, save, and hold harmless SANDAG and its Board of Directors, officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Subgrantee of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under the Project. The Subgrantee shall not be required to indemnify SANDAG for any such liability caused solely by the wrongful acts of SANDAG employees or agents.
XVI. INDEPENDENT CONTRACTOR
A. Status of Subgrantee
Subgrantee shall perform the services provided for within this Agreement as an independent contractor, and not as an employee of SANDAG. Subgrantee shall be under the control of SANDAG as to the result to be accomplished and not the means, and shall consult with SANDAG as provided for in the Scope of Work. The payments made to Subgrantee pursuant to this Agreement shall be the full and complete compensation to which Subgrantee is entitled. SANDAG shall not make any federal or state tax withholdings on behalf of Subgrantee. SANDAG shall not be required to pay any workers’ compensation insurance on behalf of Subgrantee. Subgrantee agrees to indemnify SANDAG for any tax, retirement contribution, social security, overtime payment, or workers’ compensation payment which SANDAG may be required to make on behalf of Subgrantee or any employee of Subgrantee for work done under this Agreement.
B. Actions on Behalf of SANDAG
Except as SANDAG may specify in writing, Subgrantee shall have no authority, express or implied, to act on behalf of SANDAG in any capacity whatsoever, as an agent or otherwise. Subgrantee shall have no authority, express or implied, to bind SANDAG or its members, agents, or employees, to any obligation whatsoever, unless expressly provided for in this Agreement.
15 XVII. SEVERABILITY AND INTEGRATION
If any provision of the Agreement is determined invalid, the remainder of that Agreement shall not be affected if that remainder would continue to conform to the requirements of applicable laws or regulations.
This Agreement with its attachments and the resolution from Subgrantee’s governing body submitted with its application, represents the entire understanding of SANDAG and Subgrantee as to those matters contained in it. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. This Agreement may not be modified or altered except in writing, signed by SANDAG and the Subgrantee.
XVIII. SIGNATURES
The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date written above.
SAN DIEGO ASSOCIATION OF
GOVERNMENTS
CITY OF CHULA VISTA
SUSAN HUNTINGTON DATE
Director of Financial Planning, Budgets,
and Grants
MARIA KACHADOORIAN DATE
City Manager
16 ATTACHMENT A
SCOPE OF WORK, SCHEDULE, AND PROJECT BUDGET
17 18
ATTACHMENT B
PASS-THROUGH PROVISIONS FROM REAP AGREEMENT
The following pages are labeled as REAP Terms and Conditions and are a copy of Exhibit D to SANDAG’s Agreement with HCD (HCD Agreement). The HCD Agreement requires compliance with the Local Government Planning Support Grant Program (Health & Safety Code §50515.2 et seq.) The REAP Terms and Conditions refer to SANDAG as Grantee. Section 8b of the document requires that if SANDAG enters into any contracts with subrecipients such as Subgrantee as a result of the HCD Agreement, such contract must contain all the provisions in the HCD Agreement.
19 20
21 22
23 24
25 26
27 28
ATTACHMENT C
PERFORMANCE MEASURES
Instructions
In 2020, the San Diego region permitted 10,883 units of housing. In order to meet the housing goals of the 6th cycle of Regional Housing Needs Assessment (RHNA), the region must produce significantly more housing. The following form is to be used for satisfying the quarterly reporting requirements and performance measures of the Housing Acceleration Program (HAP) funded by the Regional Early Action Planning (REAP) Grant from the California Department of Housing and Community Development (HCD).
Pursuant to the terms of the Grant Agreement, Subgrantee will be required to provide quarterly reports and a more detailed Final Progress Report at the end of the grant term. The quarterly report utilizing this form must be submitted to SANDAG within 30 days following receipt of funds and thereafter each quarter until the expiration of the grant. A Subgrantee will not be eligible for reimbursement from SANDAG unless it has submitted its reports by the timelines required by SANDAG.
Performance Period Quarterly Report Due Date
January-March 2022 April 30, 2022
April-June 2022 July 30, 2022
July-September 2022 October 31, 2022
October-December 2022 January 31, 2023
January-March 2023 April 30, 2023
April-June 2023 July 30, 2023
Unless SANDAG directs otherwise, Subgrantee must submit its quarterly report to SANDAG using a Microsoft Form that will be sent to Subgrantee each quarter. This document will show the information that will be required in the quarterly reports from each Subgrantee and will be followed by the list of performance measures that will be used for the Final Progress Report. Due to funding availability and time constraints for the Subgrantee, Cycle 1 HAP grants are focused on planning activities that will accelerate housing development rather than production of new housing infrastructure, however, the performance measure information in the Final Progress Report will serve as a baseline for future HAP grant cycles, assist SANDAG in identifying best practices, and support alignment with the 2021 Regional Plan and other SANDAG grant programs.
Overview
Provide an overview of the project, including challenges, limiting factors, opportunities and solutions unique to the jurisdiction. The section should also discuss the overall approach, goals and high-level summary of the status of the project.
Project Highlights, Accomplishments and Best Practices
Provide highlights regarding the overall project from the last quarter and any accomplishments resulting from the efforts in implementing the project. This section also may list and explain some of the best practices occurring through the project. This section can highlight the Subgrantee’s efforts and can include a wide-ranging variety of efforts that facilitate housing impacts such as engaging stakeholders, building support for housing, major progress in accelerating housing processes, updates on use of consultants, contractors, or new staff to implement the project, and technical assistance outcomes.
Status of Activities
Provide a description of each of the major activities in the Subgrantee’s project. Based on the description of the activities Subgrantee committed to perform in its Grant Agreement, Subgrantee will provide status reports describing progress on milestones and deliverables completed.
29 Column 1 of the status table is entitled Activity Category. This column will be completed with the relevant activity category (i.e., relationship to regional transit, further planning to support regional mobility hub implementation strategy, prohousing policy implementation, housing equity, partnerships (if applicable), and sustainability).
Column 2 will include a brief description of the milestone or deliverable completed. Columns 3 and 4 will report the amount of money allocated to each activity and how much has been expended per activity as of the end of the quarter.
Column 5 will describe the overall timing of the project with beginning and anticipated completion dates.
Column 6 will include a general status (i.e., not yet started, in progress, complete) and anticipated upcoming milestones.
Column 7 will qualitatively and quantitatively, where possible, describe the impact on housing as a result of the activity. Qualitative data should be based on the performance measure metrics that Subgrantee will be required to report on at the end of grant term in the Final Progress Report.
Summary of Work Completed in Prior Quarter
1 2 3 4 5 6 7
Activity
Category
Description of
Milestone or
Deliverable
Completed
Dollar
Amount
Allocated to
Activity
Dollar
Amount
Expended
Thus Far
Anticipated
Completion
Date
Status Description of
How Milestone
or Deliverable
Achieves
Progress on a
Performance
Measure
Summary of Housing Production Indicators
Provide a narrative overview of housing production indicators and a summary of building permits, certificates of occupancy, or other completed entitlements issued by the jurisdiction, as applicable.
SANDAG recognizes HAP funds may not begin to impact housing production completed in 2020, but that years’ numbers may be used as a baseline or context for indicating housing production at a jurisdictional scale. Baseline year will be the 2021 calendar year and current year will be 2022 for purposes of the Final Progress Report. Subgrantee may add any anticipated changes and limiting or confounding factors potentially impacting the effectiveness of the activities. Additionally, Subgrantee may discuss other indicators of housing production and numerical outcomes that are based on the performance measure metrics that Subgrantee will be required to report on at the end of grant term in the Final Progress Report.
Indicators of Housing Production in Prior Quarter
Provide documentation of the anticipated increase in housing production (for example, the anticipated increase in the number of building permits processed due to staff augmentation funded by the grant), as well as the actual increase in housing production. In order to maintain grant funding, Subgrantee must, at a minimum, achieve 80% of its stated housing production goals within the grant project term.
30 Housing Production
Indicator
Baseline
Year (2022)
Current
Year
Cumulative
Change
Notes
Housing Building Permits
Issued in Prior Quarter
Certificates of Occupancy
Issued for Housing in
Prior Quarter
Completed Entitlements
in Prior Quarter
Other
Other
Other
Performance Measures Metrics to Be Provided in Final Progress Report Below are examples that could be used, depending on the type of project funded through the HAP. Number of housing units produced during the grant term (total, type, affordable, and per acre) Number of housing units produced during the grant term that are affordable to lower income households
Amount of time to approve housing permits at the end of the grant term. Amounts charged by Subgrantee to developers per unit of housing at the end of the grant term Number of improvements to the mix of land use types (multifamily, single-family, and non-residential) in jurisdiction
Number of acres Subgrantee avoided converting from agricultural, natural, or working lands to land eligible for development
Number of new or enhanced active transportation capital and infrastructure projects completed during the grant term
Number of projects providing new or enhanced connectivity to the non-automotive transportation network during the grant term
Number of improved neighborhood projects with safety features to promote active mobility completed during the grant term
Number of new linkages to transit and/or pedestrian and bicycle infrastructure created during the grant term
Number of new infrastructure services created in areas of concentrated poverty or similar areas during the grant term
Number of new housing units created during the grant term in mobility hub areas identified in the 2021 Regional Plan
Number of individual persons reached by Subgrantee using direct engagement with community stakeholders concerning the topics of affordable housing or sustainable development during the grant term
31 Number of existing housing units available and affordable within jurisdiction Number of affordable housing units available for ownership or rent Number of housing units located on an infill site surrounded by urban uses such as shopping, restaurants, and jobs available to rent or own
Number of housing units produced during the grant term (total, type, affordable, and per acre) Number of housing units produced during the grant term that are affordable to lower income households
Additional Information
Provide any applicable additional information as necessary to demonstrate the status and impacts of the overall project.
32