Exhibit 1 – Page 1
Exhibit 1
FLOW DOWN PROVISIONS
Reference in this Exhibit 1 to “this MOU” or “the MOU” shall mean and refer to the Western Riverside Council of Governments Regional Early Action Planning ( “REAP”) Local Staff Assistance Program Agreement to which these Flow Down provisions are attached. CITY agrees that it shall comply with the Flow Down Provisions as set forth below. The term “Projects” as used in these Flow Down Provisions shall mean and refer only to the Project to be completed by CITY as described in the Western Riverside Council of Governments Regional Early Action Planning (“REAP”) Local Staff Assistance Program Agreement.
3. Scope of Work and Sub-Recipient’s Responsibilities
c. CITY must demonstrate a clear and significant nexus to all the REAP 2.0 Goals and Objectives, including the definition of infill contained therein as described in Section 9 of this MOU, and must carry out the Projects to meet t he REAP 2.0 Goals and Objectives. Any lack of action or action inconsistent with REAP 2.0 Goals and Objectives may result in review and could be subject to modification of funding, termination of SCAG MOU or this MOU, and repayment of the Grant Funds.
e. As a recipient of federal and state funds, SCAG has the responsibility for ensuring that its procurement process complies with all applicable federal, state and funding requirements. For all agreements entered into containing funds provided under this MOU or to perform work under this MOU, CITY shall procure in compliance with all applicable federal, state, and local laws and regulations. All REAP 2.0 procurement must be conducted using a fair and competitive procurement process and sole source procurements are expressly prohibited.
f. The term “Consultant(s)” shall hereinafter refer to all entities that CITY procures, manages, or otherwise enters into contracts or agreements with, in furtherance of the Projects or this MOU regardless of the timing, nature of service/work provided or type of organization, including but not limited to government entities, political subdivisions, subrecipients, consultants, contractors, service providers, suppliers, independent contractors, professionals, managers, architects, engineers, and subcontractors.
g. Upon request, CITY shall provide information to the WRCOG or SCAG Project Manager regarding any existing solicitation including but not limited to Requests for Proposals, Invitation for Bids, Request for Qualifications, and Requests for Quotation (collectively “RFP”). For new RFPs developed or finalized after the Effective Date of this MOU, CITY shall provide information to WRCOG or SCAG Project Manager and obtain WRCOG or SCAG Project Manager’s written approval on any RFP prior to its issuance. SCAG may require documentation of RFPs and Notices to Proceed before approval of WRCOG and CITY invoice reimbursement
k. Any and all notices, reports, or other communications required by SCAG MOU or this MOU, including but not limited to invoices, accounting reports, supporting documentation, and monitoring reports, shall be submitted under the penalty of perjury
5. Funding
e. Any costs for which CITY receives reimbursement or credit that is determined by a subsequent audit or other review by either SCAG, HCD, other State authorities or federal cognizant agency to be ineligible or otherwise unallowable, are to be repaid by CITY within thirty (30) calendar days of CITY receiving notice or a written demand for reimbursement from SCAG. Such repayment
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may include interest, penalties or related fees, as determined by HCD or other State authorities.
Should CITY fail to reimburse unallowable costs due to SCAG within thirty (30) calendar days of demand, or within such other period as may be agreed between both parties hereto, SCAG is authorized to withhold and/or off-set future payments to WRCOG and CITY.
6. Invoices
a. SCAG MOU and this MOU are Cost Reimbursement agreements. Amounts claimed must reflect the actual incurred and paid cos t of completed work. The actual incurred and paid costs may not exceed each Project’s budget set forth in this MOU and the most current fully executed SOW Approval Form (s). All invoices submitted to WRCOG for payment shall be e -mailed to [email protected] (file cannot exceed 10MB). All invoices submitted to WRCOG for the Projects shall reference the OWP Project Number (OWP No. 305 -4927.04). A separate invoice must be submitted for each individual Project.
b. By the seventh day following the start of a new month (e.g., January 7, February 7, March 7), CITY shall submit an invoice for each Project to WRCOG using the “Invoice Template” provided.
Invoices must be submitted in both PDF format and the Excel file format. Invoices shall contain a progress report portion which serves to confirm that the services have been performed and can be paid. All invoiced costs must be substantiated by providing documented support for the expense incurred, such as copies of payroll reports, paid invoices, and proof of payment. The invoice progress report shall serve as the formal progress report for the Project and shall be signed by the CITY. The progress report shall include, in narrative form, a description of services performed by CITY’s staff and Consultant(s) as well as progress toward completion of tasks related to the Projects for the invoiced period and progress achieved toward the REAP 2.0 Goals and Objectives.
WRCOG shall submit an invoice to SCAG for each project by the 21 st day following the start of a
new month (e.g., January 21, February 21, March 21). SCAG shall review invoices for compliance with the SCAG MOU. If SCAG determines that an invoice is compliant with the SCAG MOU, SCAG shall approve the invoice and issue payme nt to WRCOG. WRCOG agrees to reimburse CITY for the eligible and allowable costs completed per Exhibit A (Western Riverside Council Of Governments Regional Early Action Planning (“R EAP”) Local Staff Assistance Program Agreement) and agreed Scope and budget no later than thirty (30) days from the receipt of each invoice from CITY.
c. SCAG shall reimburse WRCOG as promptly as SCAG’s fiscal procedures permit, Electronic Fund Transfer, available at: ACH Vendor Payment Authorization Form, upon receipt of itemized invoices submitted in accordance with this MOU. WRCOG shall complete the ACH Vendor Payment Authorization Form and email it to [email protected], prior to executing this MOU.
d. Incomplete or inaccurate invoices may be returned to WRCOG or CITY for correction without payment until corrected and approved. SCAG may, at its discretion, disallow any unsupported costs and process the invoice. If WRCOG or CITY corrects the error, the disallowed items can be included in the next set of invoices.
e. Travel expenses and per diem rates are not to exceed the rates and policies specified by the State of California Department of Human Resources which can be found at:
https://www.calhr.ca.gov/employees/pages/travel-reimbursements.aspx.
f. The Parties acknowledge that SCAG’s fiscal year is from July 1 to June 30. CITY agrees to submit all invoices to WRCOG for services rendered through June 30th, no later than July 7 th during the
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Term of this MOU. SCAG and WRCOG shall not be obligated to pay CITY for any invoice received after such date.
g. CITY shall submit its final invoice to WRCOG within twenty (20) days of the completion of each individual Project, but no later than within twenty (20) days after all Grant Funds have been expended, whichever is first. SCAG and WRCOG shall not be obligated to pay- CITY for any invoice received after such date.
h. CITY will require that its Consultant(s) pay any contractors and subcontractors for satisfactorily completed work no later than ten (10) days of receipt of each payment from Sub- Recipient. The ten (10) calendar days period is applicable unless a shorter period is required by applicable law.
7. Reporting
a. At any time during the term of this MOU, SCAG or WRCOG may request additional information, as needed, to demonstrate satisfaction of all requirements identified in the MOU and the most current fully executed SOW Approval Form.
b. By February 1st of each year following receipt of funding pursuant to this MOU, CITY shall submit to WRCOG an Annual Report using the “Report Template” provided. CITY shall submit a separate Annual Report for each Project. The Annual Report shall include, in narrative form, a description of services performed by CITY’s staff and Consultant(s) as well as progress toward completion of tasks related to each Project for the prior year, a reporting of all costs incurred for that period, and progress achieved tow ard the REAP 2.0 Goals and Objectives. By February 10 of each year following receipt of funding pursuant of this MOU, WRCOG shall submit to SCAG an Annual Report for each Project.
c. When a Project is finalized, and no later than ten (10) days before the Completion Date , CITY shall submit a Close-Out Report for the Project to WRCOG. WRCOG shall then submit a Close- Out Report for the Project to SCAG when a project is finalized, and no later than the Completion Date. At the time of the execution of this MOU, HCD has not provided the requirements for the Close-Out Report due to HCD by all grantees at the conclusion of the grant performance period.
Therefore, the Close-Out Report format required by SCAG of CITY is not available at this time but will be provided when it becomes available.
d. All reports submitted to WRCOG and SCAG shall reference the OWP Project Number (OWP No.305-4927.04).
8. Accounting
a. CITY shall establish and maintain an accounting system and reports that properly accumulate incurred Project costs by line. The accounting system shall conform to Generally Accepted Accounting Principles (“GAAP”), enable the determination of incurred costs as interim points of completion, and provide support for payment vouchers and invoices
b. CITY shall establish a separate ledger account for receipts and expenditures of Project Funds and Grant Funds and maintain expenditure details in accordance with the Scopes of Work, as outlined in the most current fully executed SOW Approval Form(s), for each Project.
c. CITY shall maintain documentation of its normal procurement policy and competitive procurement bid process and completed procurements, and financial records of expenditures incurred during the
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course of the Projects in accordance with GAAP.
9. Allowable Uses of Grant Funds
a. Project Funds and Grant Funds shall be expended in compliance with the REAP 2.0 Goals and Objectives, and as required meets the definition for “Infill,” as provided in the State REAP 2.0 Guidelines.
i. REAP 2.0 Goals (“Goals”) are to invest in housing, planning, and infill housing- supportive infrastructure across the entire state in a manner that reduces Vehicle Miles Traveled (“VMT”), increases housing affordability, and advances equity.
More detailed information on the Goals can be found in Section 201 of the REAP
2.0 Notice of Funding Availability (“NOFA”) and Final Guidelines for MPO Applicants and are made a part of the provisions of the SCAG MOU as if set forth in full.
ii. REAP 2.0 Objectives (“Objectives”) include: (1) accelerating infill development that facilitates housing supply, choice, and affordability; (2) Affirmatively Furthering Fair Housing; (3) reducing vehicle miles traveled. More detailed information on the Objectives can be found in Section 202 of the REAP 2.0 NOFA and Final Guidelines for MPO Applicants and are made a part of the provisions of the SCAG MOU as if set forth in full.
b. Project Funds and Grant Funds shall only be used by WRCOG and CITY for activities approved by SCAG and included in the Scopes of Work, as outlined in the most current fully executed SOW Approval Form(s).
c. Project Funds and Grant Funds may not be used for administrative costs of persons employed by WRCOG and CITY for activities not directly related to eligible activities. d. There must be a strong implementation component for the funded activity through REAP 2.0, including, where appropriate, agreement by CITY to submit the completed planning document to the applicable board, council, or other entity for adoption or approval. If CITY does not formally request adoption or approval of the funded activity, it may be subject to repayment of the Grant Funds.
10. Work Products
a. For purposes of this MOU, “Work Products” shall mean all deliverables created or produced under this MOU including, but not limited to, all deliverables conceived or made either solely or jointly with others during the term of this MOU and during a period of six (6) months after the termination thereof, which relates to the Projects. Work Products shall not include real property or capital improvements. Work Products includes all deliverables, inventions, innovations, improvements, or other works of authors hip CITY or Consultant(s) may conceive of or develop in the course of this MOU, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection.
b. CITY shall submit one (1) electronic copy of all Work Products associated with the Projects to WRCOG. WRCOG shall submit to the assigned SCAG Project Manager.
c. SCAG shall own all Work Products and may, at its sole discretion, grant to CITY and WRCOG a
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perpetual royalty-free, non- assignable, non-exclusive and irrevocable license to reproduce, publish or otherwise use Work Products related to the Projects and developed as part of this MOU; provided, however, that any reproduction, publishing, or reuse of the Work Products will be at CITY or WRCOG’s sole risk and without liability or legal exposure to SCAG.
13. Insurance
a. CITY, at their own expense, shall procure and maintain policies of insurance, or provide evidence of self-insurance, of the types and amounts below, for the duration of the MOU. The policies shall state they afford primary coverage.
Insurance Type Requirements Limits
General Liability Commercial General
Liability insurance with
coverage at least as broad as
Insurance Services Office
form CG 00 01.
Not less than $2,000,000 per occurrence,
$4,000,000 general aggregate, for bodily injury,
personal injury, and property damage. The
policy must include contractual liability that has
not been amended. Any endorsement restricting
standard ISO “insured contract” language will
not be accepted.
Automobile
Liability
Automobile insurance at
least as broad as Insurance
Services Office form CA 00
01. Covering bodily injury and property damage for
all activities of the Sub-Recipient arising out of
or in connection with work to be performed
under this MOU, including coverage for any
owned, hired, non-owned, or rented vehicles, in
an amount not less than $1,000,000 combined
single limit for each accident.
Workers’
Compensation/
Employer’s Liability
Workers’ Compensation
insurance as required by the
State of California and
Employer’s Liability
Insurance. Not required for
sole proprietors or
Sub-Recipients with no
employees.
Including Occupational Diseases in accordance
with California Law and Employers’ Liability
Insurance with a limit of not less than
$1,000,000 each accident.
Professional
Liability Insurance
Professional Liability
(Errors and Omissions)
insurance appropriate to the
Sub-Recipient’s profession.
With limits of not less than $1,000,000 per
occurrence. In addition, it shall be required that
the professional liability insurance policy remain
in effect for three (3) years after the Completion
Date of this MOU.
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b. Higher Limits: N o representation is made that the minimum insurance requirements of this agreement are sufficient to cover the indemnity or other obligations of CITY under this agreement.
c. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
i. SCAG, WRCOG and their officials, employees, and volunteers are to be covered as additional insureds, as respects to liability arising out of the activities performed by or on behalf of CITY; products and completed operations of CITY; premises owned, occupied or used by CITY ; or automobiles owned leased, hired or borrowed by CITY.
ii. For any claims related to this Project, CITY ’s insurance coverage shall be primary insurance as respects SCAG, WRCOG, their officials and employees. Any insurance or self-insurance maintained by SCAG shall be excess of CITY’s insurance and shall not contribute with it.
iii. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SCAG, WRCOG , their officials and employees.
iv. CITY’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
d. The Workers’ Compensation and Employer’s Liability policies shall include a waiver of subrogation endorsement in favor of SCAG, WRCOG, their, officials, employees, and volunteers. e. Any deductibles or self-insured retentions in amounts over $10,000 must be declared to WRCOG and approved by SCAG.
f. Insurance is to be placed with California admitted insurers with a current A.M. Best’s rating of no less than A and be admitted, unless otherwise approved by SCAG. g. CITY shall furnish WRCOG , for provision to SCAG, original endorsements and certificates of insurance evidencing coverage required by this clause. All documents are to be signed by a person authorized by that insurer to bind coverage on its behalf. All documents are to be received and approved by SCAG be fore work commences. Upon request of SCAG at any time, CITY shall provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.
h. CITY agrees to ensure that its Consultant (s) provide the same minimum insurance coverage and endorsements required of CITY . CITY agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Section. However, in the event CITY ’s Consultant(s) cannot comply with this requirement, which proof must be submitted to WRCOG for approval by SCAG, CITY shall be required to ensure that its Consultant(s) provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Consultant(s) scope of work and services, with limits less than required of the Sub-Recipient, but in all other terms consistent with the CITY ’s requirements under this MOU. This provision does not relieve CITY of its
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contractual obligations under the MOU and/or limit its liability to the amount of insurance coverage provided by its Consultant(s). This provision is intended solely to provide CITY with the ability to utilize Consultant(s) who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of CITY under this MOU given the limited scope of work or services provided by the Consultant(s). CITY agrees that upon request, all agreements with Consultant(s) will be submitted to SCAG for review.
14. Indemnification
CITY shall fully defend, indemnify and hold harmless SCAG, its members, WRCOG, their officers, employees, and agents from any and all claims, losses, liabilities, damages, expenses, suits or actions including attorneys’ fees, brought forth or arising under any theories or assertions of liability, occurring by or resulting from or otherwise related to the Projects or this MOU. Such obligations shall not, however, extend to any claims, losses, liabilities, damages, expenses, suits or actions that arise from SCAG’s or WRCOG’s gross negligence or willful misconduct.
18. Records Retention
a. CITY and its Consultant(s) shall maintain and make available, in accordance with Section 19 of this MOU, all source documents, books and records connected with the Projects, documentation of its normal procurement policy and competitive procurement bid process and completed procurements related to the Projects, all work performed under this MOU, all evidence of environmental clearance, and evidence demonstrating the funding was used for the appropriate purposes for a minimum of five (5) years after December 31, 2026. Wherever practicable, such records should be collected, transmitted, and stored in open and machine-readable formats. b. If any litigation, claim, negotiation, audit, monitoring, inspection, or other action has been started before the expiration of the required record retention period, all records shall be retained and made available by CITY and its Consultant(s) for five (5) years after: (a) the conclusion or resolution of the matter; (b) the date an audit resolution is achieved for each annual SCAG OWP; or (c) December 31, 2026, whichever is later.
19. Monitoring and Audits
a. SCAG and WRCOG may monitor expenditures and activities of CITY and its Consultant(s) as deemed necessary to ensure compliance with the MOU, the Statutes, the REAP 2.0 Guidelines and the Program Guidelines.
b. At any time during the term of this MOU, SCAG, HCD, the California Department of General Services, the California Bureau of State Audits, or their designated representatives may perform or cause to be performed a financial audit of any and all phases of th e Projects. At their request, CITY shall provide, at its own expense, a financial audit prepared by an independent certified public accountant.
c. CITY agrees that SCAG, WRCOG, HCD, the California Department of General Services, the California Bureau of State Audits, or their designated representatives shall have the right to review, obtain, and copy all records and supporting documentation related to the performance of this MOU.
CITY agrees to provide any relevant information requested. Copies shall be made and furnished to WRCOG or SCAG upon request at no cost to WRCOG or SCAG.
d. CITY agrees to permit SCAG, WRCOG, HCD, the California Department of General Services, the
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California Bureau of State Audits, or their designated representatives access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees who might reasonably have information related to such records and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with this MOU, the Statutes, the REAP 2.0 Guidelines, or applicable state and federal laws, rules, and regulations.
e. If there are audit findings from SCAG or HCD’s audit, CITY must submit a detailed response acceptable to SCAG or HCD for each audit finding within ninety (90) days of the audit finding report.
20. Small Business and Disabled Veteran Business Enterprise Participation
a. If for this MOU CITY made a commitment to achieve small business participation, then CITY must within 60 days of receiving final payment under this MOU (or within such other time period as may be specified elsewhere in this MOU) report to WRCOG the actual percentage of small business participation that was achieved. (Gov. Code § 14841.)
b. If for this MOU CITY made a commitment to achieve disabled veteran business enterprise (“DVBE”) participation, then CITY must within 60 days of receiving final payment under this MOU (or within such other time period as may be specified elsewhere in this MOU) certify in a report to WRCOG: (1) the total amount the CITY received under the MOU; (2) the name and address of the DVBE(s) that participated in the performance of the MOU; (3) the amount each DVBE received from the CITY; (4) that all payments under the MOU have been made to the DVBE; and (5) the actual percentage of DVBE participation that was achieved. A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (M&V Code § 999.5(d); Gov. Code § 14841.)
21.Compliance with Laws, Rules, and Regulations
a. CITY agrees to comply with all federal, state and local laws, rules and regulations applicable to this MOU.
b. Non-Discrimination/Equal Employment Opportunity
i. During the performance of this MOU, CITY assures that no person shall be denied the MOU’s benefits, be excluded from participation or employment, be denied Project benefits, or be subjected to discrimination based on race, religious creed, color, national origin, ancestry, physical disability, m ental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, under the Projects or any program or activity funded by this MOU, as required by Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. §§ 3601- 20) and all implementing regulations, the Americans with Disabilities Act (“ADA”) of 1990 (42 U.S.C. § 12101 et seq.) and all applicable regulations and guidelines issued pursuant to the ADA, and the Age Discrimination Act of 1975 and all implementing regulations. CITY shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. ii. CITY shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code § 12900 et seq .), the regulations promulgated thereunder (Cal. Code Regs. tit. 2, § 11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division
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3, Title 2 of the Government Code (Gov. Code §§ 11135- 11139.5), and the regulations or standards adopted by HCD to implement such article.
iii. CITY shall permit access by representatives of the Department of Fair Employment and Housing, SCAG, and HCD upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to CITY’s books, records, accounts, and all other sources of information and its facilities as the Department of Fair Employment and Housing, SCAG, or HCD shall require of CITY in compliance with this Section.
iv. CITY shall give written notice of its obligations under this Section to labor organizations with which they have a collective bargaining or other agreement.
v. CITY shall adopt and implement affirmative processes and procedures that provide information, outreach and promotion of opportunities in the Projects to encourage participation of all persons regardless of race, color, national origin, sex, religion, familial status, or disability. This includes, but is not limited to, a minority outreach program to ensure the inclusion, to the maximum extent possible, of minorities and women, and entities owned by minorities and women, as required by 24 C.F.R. § 92.351.
c. Recycling Certification. CITY shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post -consumer material as defined in the Public Contract Code Section 12200, in products, materials, goods, or supplies offered or sold to SCAG regardless of whether the product meets the requirements of Public Contract Code Section 12209. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (Pub. Contract Code § 12205).
d. Anti-Trust Claims. CITY, by signing this MOU, hereby certifies that if these services or goods are obtained by means of a competitive bid, the Sub- Recipient shall comply with Title 1, Division 5, Chapter 11 of the California Government Code (Gov. Code §§ 4550-4554). e. Child Support Compliance Act . If the Grant Funds provided under this MOU are in excess of $100,000, CITY acknowledges in accordance with Public Contract Code 7110, that:
i. CITY recognizes the impo rtance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code; and ii. CITY, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. f. Priority Hiring Considerations. If this MOU includes services in excess of $200,000, CITY shall give priority consideration in filling vacancies in positions funded by the MOU to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with Pub.
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Contract Code Section 10353.
g. Loss Leader. If this MOU involves the furnishing of equipment, materials, or supplies then the following statement is incorporated: It is unlawful for any person engaged in business within this state to sell or use any article or product as a “loss leader” as defined in Section 17030 of the Business and Professions Code. (Pub. Con. Code § 10344(e).)
22. Public Works and Construction
Without limiting the generality of Section 21.a., CITY agrees to ensure compliance with all applicable legal authority regarding construction standards and requirements, including but not limited to the following:
a. Labor Code Requirements
i. CITY is hereby put on notice that the one or more of the Projects under the MOU may qualify as a public works project and CITY will therefore be required to determine whether the Project falls under a classification that would require payment of prevailing wages.
Services constituting public works are described in California Labor Code Sections 1720- 1861, as may be amended or recodified by legislative action from time-to-time.
ii. If a Project qualifies as a public works project, CITY shall be the Awarding Body for the public works project and required to comply with all requirements applicable to the Awarding Body.
iii. If CITY or its Consultant(s) will perform services that require payment of prevailing wages, they are required to register with the California Department of Industrial Relations (DIR) in order to be compliant with the law. Neither Sub-Recipient nor its Consultant(s) may work on a public works project without a current and active DIR registration.
b. CITY shall comply with all applicable federal, state, and local procurement requirements for public works and construction projects and shall advertise, open bids, award, and approve all construction contracts in accordance with the California Public Contract Code and the California Labor Code.
c. All construction contracts for the Projects shall be administered and managed by CITY. CITY shall prepare or have prepared a detailed schedule of performance for the Projects, ensuring that all construction is completed within the timeline allowed by the MOU. CITY shall be responsible for requiring the construction contractor to furnish any applicable labor and material bonds and payments and performance bonds naming the CITY as obligee, and WRCOG and SCAG as additional obligees, or an insurance policy in lieu of such bonds.
d. CITY agrees to procure any and all permits, licenses and approvals necessary to complete the Projects, including those necessary to perform design, construction, operation and maintenance, and to comply with all California Environmental Quality Act (CEQA ) and National Environmental Policy Act (NEPA) requirements applicable to the Projects. CITY shall pay all charges and fees and give all notices necessary or incidental to the Projects.
e. CITY shall prepare, or have prepared, all plans, specifications and estimates for the Projects and ensure that the Projects comply with all applicable federal and state accessibility requirements, including but not limited to the Americans with Disabilities Act, including its implementing regulations at 24 CFR Part 8 and any amendments, and Californi a Government Code Section 4450,
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and applicable requirements and guidance provided in Title 24 of the California Code of Regulations, for the construction of buildings, structures, sidewalks, curbs and related facilities for accessibility and usability.
f. CITY shall conduct all necessary due diligence for the Projects, including but not limited to performing necessary environmental assessments/review of environmental hazard reports, conducting engineer/geotechnical review, commissioning title reports to identify and evaluate the condition of title and encumbrances on the subject property, including but not limited to any covenants, conditions and restrictions, determining the entity(ies) with site control, including whether any third parties have ownership or site control rights, and determining the suitability for the Projects.
g. CITY shall ensure any contractors or subcontract ors are paid in accordance with applicable laws and regulations.
h. CITY shall comply with the procedure set forth in Public Contracts Code Section 9204 for processing contractor claims, paying undisputed amounts, and requiring mediation of disputed amounts.
i. CITY shall be responsible for ensuring ongoing maintenance of the Projects after completion.
WRCOG or SCAG shall not be responsible for ongoing maintenance of the Projects after completion.
23.Conflict of Interest
The Parties shall comply with all applicable federal and state conflict of interest laws, regulations, and policies.
24.Independent Contractor
CITY and its Consultant(s) shall be independent contractors in the performance of this MOU, and not officers, employees, or agents of SCAG.
25.Assignment
Neither Party shall assign any rights or interests in this MOU, or any part thereof, without the written consent of each Party to this MOU, which consent may be granted, withheld or conditioned in the consenting Party’s sole and absolute discretion. Any assignment without such written consent shall be void and unenforceable. The covenants and agreement of thi s MOU shall inure to the benefit of and shall be binding upon each of the Parties and their respective successors and assignees.
26. Release of Information
a. Subject to any provisions of law, including but not limited to the California Public Records Act, any Work Product or materials deemed confidential by either Party shall be held confidential by the receiving Party who shall safeguard such confidential materials from unauthorized disclosure, using the same standard of care to avoid disclosure as the receiving Party treats its confidential information, but in no case less than reasonable care. Nothing furnished to either Party which is otherwise known or is generally known, or has become known, to the related industry shall be deemed confidential.
b. CITY shall not release any information or Work Products to a third party or otherwise publish or utilize any information or Work Products obtained or produced by it as a result of or in connection with the performance of services under this MOU without the pri or written authorization of SCAG,
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except as provided under this MOU or as required by law (including, without limitation, pursuant to the California Public Records Act).
c. All public -facing communications materials relating to this MOU or its subject matter shall acknowledge SCAG. Communications materials include, but are not limited to, site signage, printed information materials, print and online publications, websites, advertisements, video, public service announcements, social media postings, events, media advisories, news releases, and all other related materials. To ensure consistency of public information about SCAG programs and funded work products, CITY is required to notify and coordinate with SCAG’s Manager of Media & Public Affairs or a specified designee on any media inquiries or plans for proactively providing information to media outlets.
d. To ensure consistency of public information about SCAG programs and funded work products, CITY is required to notify and coordinate with SCAG Project Manager who will coordinate with SCAG’s Manager of Media & Public Affairs or a specified designee on any media inquiries or plans for proactively providing information to media outlets.
e. All communication materials must be provided to SCAG prior to completion so that inclusion of this element can be confirmed. SCAG will reply within three business days; if no reply is received, CITY can proceed without comments.
SCAG Communication Contact:
Jessica Reyes Juarez
213-236-1802
[email protected]
The following provisions above shall survive any termination of the SCAG MOU or this MOU:
Section 10 (Work Products)
Section 13 (Insurance)
Section 14 (Indemnification)
Section 18 (Records Retention)
Section 19 (Monitoring and Audits)
Section 21 (Compliance with Laws, Rules, and Regulations) Section 22 (Public Works and Construction)
Section 23 (Conflict of Interest)
Section 26 (Release of Information)
Attachment: Exhibit A - Western Riverside Council Of Governments Regional Early Action Planning (‘REAP”) Local Staff Assistance Program Agreement