MEMORANDUM OF UNDERSTANDING
No. M-009-22
SCAG Overall Work Program (OWP) No: 300-4887Y0.04
Federal/State Awarding Agency: State of California, Department of Housing and Community Development
CFDA Number and Name: N/A
Federal Award Identification Number (FAIN) No: N/A
Federal Award Date: N/A
Total Amount of the Federal Award: N/A
Federal Award Project Description: N/A
Federal Awarding Official: N/A
Sub-Recipient Name: City of Pomona
Sub-Recipient’s DUNS No: N/A
Total Amount of Federal Funds Obligated to the Sub-Recipient: $0 Total Amount of Non-Federal Funds Obligated to the Sub-Recipient: $270,000 Total Amount of the Sub-Award: $270,000
Subaward Period of Performance Start Date: Effective Date of MOU Subaward Period of Performance End Date: June 30, 2023
Type of Contract: Project Specific
Method of Payment: See Section 6 of this MOU
Project R&D: N/A
Indirect Cost Rate for the Federal Award: N/A
Subaward Project Title: CITY OF POMONA REGIONAL EARLY ACTION PLANNING (REAP) GRANT TRANSFORMATIVE CLIMATE COMMUNITIES (TCC) POMONA
TECHNICAL ASSISTANCE PROJECT
Subaward Project Description: City of Pomona Regional Early Action Planning (REAP) Grant Transformative Climate Communities (TCC) Pomona Technical Assistance Project will utilize REAP funding to implement planning projects to further the development of housing within the City of Pomona jurisdiction.
Attachment No. 1
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
MEMORANDUM OF UNDERSTANDING
No. M-009-22
BETWEEN THE SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS
AND CITY OF POMONA FOR CITY OF POMONA
REGIONAL EARLY ACTION PLANNING (REAP) GRANT TRANSFORMATIVE CLIMATE
COMMUNITIES (TCC) POMONA TECHNICAL ASSISTANCE PROJECT
(SCAG Project/OWP No. 300-4887Y0.04)
This Memorandum of Understanding (“MOU” or “Agreement”) is entered by and between the Southern California Association of Governments ("SCAG") and the City of Pomona (“Partner Agency”), for City of Pomona Regional Early Action Planning (REAP) Grant Transformative Climate Communities (TCC) Pomona Technical Assistance Project, subsequently herein referred to as “Project.” SCAG and the Partner Agency are individually referred to herein as “Party” and may be collectively referred to herein as “Parties.”
RECITALS
WHEREAS, SCAG is a Joint Powers Agency and a federally designated Metropolitan Planning Organization ( “MPO”) for Southern California. As an M PO, SCAG is primarily responsible for the development of a Regional Transportation Plan /Sustainable Communities Strategy (“RTP/SCS”) for the counties of Imperial, Los Angeles, Orange, San Bernardino, Riverside, and Ventura;
WHEREAS, on February 27, 2020, the California Department of Housing and Community Development (“HCD”) released a Notice of Funding Opportunity ( “NOFA”) for the Regional Early Action Planning Grant Program (the “REAP Program”);
WHEREAS, the NOFA was made available as a portion of the Lo cal Government Planning Grants Program (as described in Health and Safety Code section 50515.02) pursuant to Chapter 3.1 of Health and Safety Code (Sections 50515 to 50515.05) (Chapters 159, Statutes of 2019);
WHEREAS, SCAG applied for grant funding and HCD awarded up to $47,471,023 (the “Full Funding Amount”) to SCAG under the REAP Program;
WHEREAS, on March 5, 2020, SCAG’s Regional Council allocated approximately $23 million of the Full Funding Amount to fund subregional partnership projects for planning activities that will accelerate housing production and facilitate compliance in implementing the Sixth Cycle of Regional Housing Needs Allocation (“RHNA”) (the “Subregional Partnership Program ”), with the funding amount available for each subregional partner based on the final Sixth Cycle of RHNA allocation;
WHEREAS, the balance of the Full Funding Amount was allocated toward various eligible activities under the REAP Program in accordance with the NOFA, as approved by HCD;
WHEREAS, as part of its REAP Program, SCAG staff surveyed TCC-funded jurisdictions in the region and invited the selected participants that had a supplemental project eligible for REAP funding; MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
WHEREAS, the Partner Agency developed and submitted their proposed scope consistent with the NOFA for the REAP Program (“Scope of Work”), attached hereto and incorporated as “Exhibit A”, and SCAG reviewed and approved the Scope of Work;
WHEREAS, pursuant to its annual Overall Work Program (“OWP”), SCAG will be engaged in activities and projects that will require certain technical, professional, or support services from time to time related to its work regarding the Project;
WHEREAS, the purpose of this MOU is to describe the responsibilities of the Parties as well as the use and payment of the REAP funds for the Project;
WHEREAS, this MOU shall supersede and replace any previous agreements or negotiations between SCAG and the Partner Agency related to the Project described herein; and
WHEREAS, SCAG’s Fiscal Year is from July 1 through June 30.
NOW THEREFORE, IT IS MUTUALLY AGREED THAT:
1. MOU Contents
This MOU is comprised of these terms and conditions and any attached Exhibits and may be amended only by written agreement between SCAG and the Partner Agency. The Recitals to this Agreement are also incorporated herein by this reference.
2. Responsibilities of the Parties:
a. SCAG will:
1) Contribute funding for the Project in accordance with Section 5, Funding, below.
2) Procure a consultant (“Consultant”) to perform the services required for the Project in consultation with Partner Agency staff, in accordance with SCAG’s Procurement Policies and Procedures.
3) Following execution of the contract between SCAG and the Consul tant, SCAG shall, in consultation with the Partner Agency:
a) Oversee and manage the Consultant’s activities in performing the Scope of Work and the Consultant’s compliance with its obligations under the Consultant’s contract with SCAG.
b) Write and negotiate the Final Task Order/issue a Notice to Proceed with the Consultant.
c) Have a designated Project Manager that participates in check-ins and reviews materials as laid out in the Scope of Work (once the Project is formally kicked off).
d) Review and approve Consultant’s invoices and deliverables.
4) Be responsible for final approval of Consultant’s deliverables consistent with the Scope of Work; provided, however, that prior to approving a deliverable from the Consultant, the SCAG’s Project Manager shall consult with the Partner Agency’s Project Manager.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
b. The Partner Agency will:
1) Perform its duties under this MOU, in accordance with applicable State requirements, and the provisions of this MOU.
2) Draft all scopes for the Project work with assistance as needed from SCAG.
3) Act as Project Manager point of contact for procurements (with SCAG Analyst).
4) Participate in the Proposal Review Committee (“PRC”) for the Consultant selection process.
5) Provide SCAG P roject Manager with technical guidance for the Project in d irecting, overseeing, and managing the work of the Consultant.
6) Provide any required decisions as promptly as practicable to avoid unreasonable delay and provide technical leadership and support for reporting/invoicing as necessary.
c. In the event that the Partner Agency believes an amendment to the Consultant contract is required, the Partner Agency shall notify SCAG’s Project Manager in writing of the recommended changes and basis therefor. Any decision to amend the Consultant contract shall be made by SCAG, in its sole discretion. The Partner Agency shall have no authority to promise or execute any such amendment, and the Partner Agency shall not make any representations to the Consultant regarding a proposed amendment.
3. Term
The Term of this Agreement shall begin on the Effective Date of the Agreement and continue until June 30, 2023, hereinafter referred to as the “Completion Date,” unless terminated earlier as provided herein. Time is of the essence in the performance of services under this MOU.
4. Program Management
a. All work under this MOU shall be coordinated with SCAG and the Partner Agency through the Project Managers.
b. For purposes of this MOU, SCAG designates the following individual as its Project Manager:
Nashia Lalani
Associate Planner
(213) 630-1477
[email protected]
SCAG reserves the right to change this designation upon written notice to the Partner Agency.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
c. For purposes of this MOU, the Partner Agency designates the following individual as its Project Manager:
Anita D. Gutierrez
Development Services Director
909-620-2421
[email protected]
The Partner Agency reserves the right to change this designation upon written notice to SCAG.
5. Funding
a. SCAG’s contribution to the Project is funded wholly with REAP Program funds (the “Grant Funds”). SCAG shall contribute a maximum, not to exceed Two-Hundred Seventy Thousand Dollars ($270,000) towards the Project to be used solely for the procurement and payment of the Consultant. No Grant Funds will be provided directly to Partner Agency by SCAG.
b. SCAG shall not be obligated to make payments for any Project costs that exceed Two-Hundred Seventy Thousand Dollars ($270,000). SCAG shall not be obligated to pay for any increase in Project costs which exceeds SCAG’s obligated funding amount. SCAG shall not be obligated to make payments from any source other than Grant Funds provided by HCD to SCAG pursuant to the REAP Program.
c. SCAG reserves the right, in its sole discretion, to discontinue funding the Program and terminate the contract as described in Section 19 of this MOU.
6. Allowable Uses of Grant Funds
a. SCAG shall be accountable to oversee Consultants’ performance. The agreement between SCAG and the Consultant shall provide for compliance with all applicable requirements of this Agreement as determined by SCAG.
b. There must be a strong implementation component for the funded activity through REAP, including, where appropriate, agreement by the Partner Agency to submit the completed planning document to the applicable board, council, or other entity for adoption. If the Partner Agency does not formally request adoption of the funded activity, it may be subject to repayment of the Grant Funds.
c. In the event that it is determined, at the sole discretion of SCAG, that the Partner Agency is not meeting the terms and conditions of the Agreement, immediately upon receiving a written notice from SCAG to stop work, the Partner Agency shall cease all work under the Agreement. SCAG has the sole discretion to determine that the Partner Agency meets the terms and conditions afte r a stop work order, and to deliver a written notice to the Partner Agency to resume work under the Agreement.
7. Electronic Version of Work Products
a. For purposes of this Agreement, “Work Products” shall mean any deliverables, including reports, data files, newsletters or any other written or electronic materials provided pursuant to the Scope of Work.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
b. SCAG shall own all Work Products and shall grant to the Partner Agency a perpetual royalty-free, non-assignable, non-exclusive and irrevocable license to reproduce, publish or otherwise use Work Products related to the Project and developed as part of this MOU; provided, however, that any reproduction, publishing, or reuse of the Work Products will be at the Partner Agency’s sole risk and without liability or legal exposure to SCAG.
c. Subject to any provisions in the California Public Records Act to the contrary, SCAG’s contract with the Consultant shall require that all deliverables and related materials related to the Project shall be held confidential by Consultant. Nothing furnished to the Partner Agency or SCAG which is otherwise known or is generally known, or has become known, to the related industry shall be deemed confidential. The Partner Agency shall also safeguard such confidential materials from unauthorized disclosure, using the same standard of care to avoid disclosure, as the Partner Agency treats its confidential information, but in no case less than reasonable care.
8. MOU Changes
No alteration or deviation of the terms of this MOU shall be valid unless made in writing in the form of MOU Amendment and fully and properly executed by both parties. If an amendment is to become effective before the date of full execution by the Parties, the effective date of such amendment shall be no earlier than the date that SCAG received the Request.
9. Notices
Any notice or notices required or permitted to be given pursuant to this MOU may be personally served on the other party by the party giving such notice, or may be served by certified mail, return receipt requested, to the following addresses:
To SCAG: Cindy Giraldo
Chief Financial Officer
Southern California Association of Governments
900 Wilshire Blvd., Suite 1700
Los Angeles, CA 90017
(213) 630-1413
[email protected]
SCAG reserves the right to change this designation upon written notice to the Partner Agency.
To Partner Agency: Anita D. Gutierrez
Development Services Department
City of Pomona
505 S. Garey Avenue
Pomona, CA 91769
909-620-2421
[email protected]
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
10. Insurance
The Partner Agency, at its own expense, shall procure and maintain policies of insurance of the types and amounts below, for the duration of the MOU. The policies shall state they afford primary coverage.
Notwithstanding the foregoing, the Partner Agency shall have the right, at its election but upon written notice to SCAG, to maintain all such insurance required under this Section 10 under a program of self- insurance or self -administered claims in lieu of purchasing such insurance; provided, however, that the scope and coverage limits are not less than those required below in subdivisions (a) and (b) below and provided, further, that the provisions in subdivision (c) apply to any self-insurance program. Any notice by the Partner Agency shall detail consistency of its self -insurance program with the requirements of this Section 10. The minimum required insurance coverage required by SCAG is set forth below unless otherwise waived by SCAG, in its sole discretion. SCAG shall, in its contract with the Consultant, require that the Consultant provide insurance as specified in this section, and as further detailed in subparagraph (g) below.
a. Minimum Scope of Insurance – Coverage shall be at least as broad as:
1) Insurance Services Office Commercial General Liability coverage (Occurrence form CG0001), or its equivalent.
b. Minimum Limits of Insurance – The Partner Agency shall maintain limits no less than:
1) General Liability: $51,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
c. Other Insurance Provisions –The Partner Agency should comply with the other insurance provisions.
The general liability policy shall contain, or be endorsed to contain, the following provisions:
1) SCAG, its officials and employees are to be covered as additional insureds, as respects to liability arising out of the activities performed by or on behalf of the Partner Agency, products and completed operations of the Partner Agency; premises owned, occupied or used by the Partner Agency; or automobiles owned leased, hired or borrowed by the Partner Agency. The coverage shall contain no special limitations on the scope of protection afforded to SCAG, its officials and employees.
2) For any claims related to this Project, the Partner Agency’s insurance coverage shall be primary insurance as respects SCAG, its officials and employees. Any insurance or self -insurance maintained by SCAG shall be excess of the Partner Agency’s insurance and shall not contribute with it.
3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SCAG, its officials and employees.
4) The Partner Agency’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.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
d. Deductibles and Self-Insured Retentions – Any deductibles or self-insured retentions in amounts over $10,000 must be declared to and approved by SCAG.
e. Acceptability of Insurers – 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.
f. Verification of Coverage – The Partner Agency shall furnish SCAG with 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 before work commences. Upon request of SCAG at any time, the Partner Agency shall provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.
g. Consultant Insurance Requirements- SCAG shall require that the Consultant provide insurance in the types and amounts as specified above. SCAG shall require that the Consultant name the Partner Agency as an additional insured and provide the above specifie d endorsements in favor of the Partner Agency as well as in favor of SCAG.
11. Indemnification
a. Except for the negligence or willful misconduct of SCAG and any of its directors, officers, agents, employees, assigns, and successors in interest, the Partner Agency undertakes and agrees to defend, indemnify, and hold harmless SCAG and any of its directors, officers, agents, employees, assigns, and successors in interest from and against all suits and causes of action, claims, losses, demands and expenses, including, but not limited to, attorney's fees and cost of litigation, damage or liability of any nature whatsoever, for death or injury to any person, including SCAG’s employees and agents, or damage or destruction of any property of either party hereto or of third parties, arising in any manner by reason of the acts, errors or omissions or violations of law by the Partner Agency, employees and agents in connection with its activities in pursuing the Project or under this MOU.
b. SCAG shall require that the Consultant provide indemnification for the Partner Agency to the same extent as SCAG, in the contract(s) between SCAG and the Consultant for work related to this Agreement.
12. Records Retention and Audits
a. The Partner Agency shall maintain all source documents, books and records connected with the Project and all work performed under this MOU for a minimum of three (3) years after the end of term of this MOU. Records relating to any and all audits or litigation relevant to this MOU shall be retained f or five years after the conclusion or resolution of the matter or the date an audit resolution is achieved for each annual SCAG Overall Work Program (“OWP”), whichever is later, and shall make all supporting information available upon request for inspection and audit by representatives of SCAG , HCD, the California State Auditor, or other authorized government agency. Copies shall be made and furnished by SCAG upon request at no cost to SCAG.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
b. SCAG shall maintain all source documents, books and r ecords connected with the Project under this MOU for a minimum of three (3) years after the end of term of this MOU. Records relating to any and all audits or litigation relevant to this MOU shall be retained for five years after the conclusion or resolution of the matter or the date an audit resolution is achieved for each annual SCAG OWP and shall make all supporting information available upon request for inspection and audit by representatives of the Partner Agency , HCD, the California State Auditor, or other authorized government agency. Copies shall be made and furnished by the Partner Agency upon request at no cost to the Partner Agency.
c. The Partner Agency agrees that SCAG and HCD shall have the right to review, obtain, and copy all records and supporting documentation to the performance of this Agreement. The Partner Agency agrees to provide any relevant information requested.
d. The Partner Agency agrees to permit SCAG and HCD 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 statutes, program guidelines, and this Agreement.
e. 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 must be retained by the Partner Agency until completion of the action and resolution of all issues which ar ise from it.
Records relating to any and all audits or litigation relevant to this Agreement shall be retained for five (5) years after the conclusion or resolution of the matter. SCAG shall include th is records retention requirement in its contract with the Consultant.
13. General Terms and Conditions
a. The Partner Agency shall adhere to the requirements contained in the State of California General Terms and Conditions (GTC 04/2017) , attached hereto and incorporated as “Exhibit B” . Such requirements shall apply to the Partner Agency to the same extent as SCAG and may include, but are not limited to:
1) Recycling Certification
2) Non-Discrimination Clause
3) Anti-Trust Claims
4) Child Support Compliance Act
5) Priority Hiring Considerations
6) Small Business Participation and DVBE Participation
14. Equal Employment Opportunity/Nondiscrimination
a. In the performance of work undertaken pursuant to this MOU, the Parties and their assignees and successors in interest, shall affirmatively require that their employees and contractors shall not unlawfully discriminate, harass or allow harassment, against any person, employee or applicant for employment because of race, religious creed, color, national origin, ancestry, ph ysical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
b. The Parties shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. The Parties shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.), the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§11135-11139.5), and the regulations or standards adopted by the awarding state agency to implement such article.
c. The Parties shall permit access by representatives of SCAG, the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department shall require to ascertain compliance with this cl ause. The Parties shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. The Parties shall include the nondiscrimination and compliance provisions of this clause in all sub - agreements to perform work under this MOU.
d. The applicable regulations of the Fair Employment and Housing Commission implementing the Government Code sections referenced above, are incorporated into this MOU by reference and made a part hereof as if set forth in full.
e. In the event of noncompliance by either Party with the nondiscrimination provisions of this MOU, the other Party may cancel, terminate or suspend the MOU, in whole or in part.
f. If required by the Department of Fair Employment and Housing, additional or alternate sanctions for noncompliance may be imposed.
15. Conflict of Interest
The Parties shall comply with federal and state conflict of interest laws, regulations and policies as well as all applicable federal and state laws, regulations and policies in connection with its activities pursuant to this Agreement.
16. Independent Contractor
The Partner Agency and its officers, employees and agents shall be independent contractors in the performance of this MOU, and not officers, employees, contractors or agents of SCAG.
17. Disputes
a. In the event of a dispute among the Parties concerning a question of fact arising under this Agreement that is not disposed of by agreement, which involves a decision by the Department’s Housing Policy Development Manager (or the Manager’s designee) who may consider any written or verbal evidence submitted by SCAG, the decisions of the Departm ent shall be final and not subject to further appeal pursuant to Health and Safety Code Section 50515.04(g). SCA G shall include in such submittal to the Department any written or verbal evidence submitted to SCAG by the Parties, at the discretion of SCAG, as part of this process. Neither the pendency of a dispute nor its consideration by the Department will excuse t he Parties from full and timely performance in accordance with the terms of this agreement.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
b. For other disputes and except as otherwise provided in this MOU, if a dispute arises between the Parties to this MOU, the Parties hereto agree to use the following procedure to resolve such dispute, prior to pursuing other legal remedies:
c. A meeting shall be held promptly between the Parties that will be attended by the Partner Agency’s Project Manager and SCAG’s Project Manager as well as individuals with decision -making authority (to the extent reasonably possible), who will attempt in good faith to negotiate a resolution of the dispute.
d. If the Parties are unsuccessful in resolving the dispute under (c) above, they may:
1) agree to submit the matter to mediation, binding judicial reference, or a private adjudicator (if all Parties so agree); or
2) initiate litigation following advance written notice to the other Party of not less than thirty (30) days.
e. If any Party should bring a legal action against the other to enforce the terms of this MOU, the prevailing Party shall be entitled to recover reasonable attorneys’ fees and costs, as determined by a court of competent jurisdiction in said proceeding.
f. Neither the pendency of a dispute nor its consideration by a Party or the State shall excuse the other Party from full and timely performance in accordance with the terms of this MOU.
18. Noncompliance
In addition to such other remedies as provided by law, in the event of nonperf ormance or noncompliance with any grant condition or specific requirement of this MOU, this MOU may be terminated pursuant to Section 19.
19. Termination of MOU
a. Termination for Convenience. Either Party may terminate this MOU at any time by giving written notice to the other party of such termination at least thirty (30) calendar days before the effective date of such termination. In such event, all finished or unfinished documents and other materials as described in the MOU shall be provided to SCAG and the Consultant shall be paid for all services performed through the effective date of termination , provided the required consultation between the Partner Agency and SCAG has been undertaken in accordance with Section 2 of this MOU. Any Party terminating this MOU before the effective date of termination shall be responsible for any actual, incurred termination costs incurred by the Consultant as a result of such termination notice.
b. Termination for Cause (Partner Agency Default). If through any cause, the Partner Agency shall fail to timely and adequately fulfill its obligations under this MOU, or if the Partner Agency violates any of the covenants, agreements, or stipulations of this MOU, SCAG shall thereupon have the right to terminate the MOU by giving not less than ten (10) calendar days written notice to the Partner Agency of the intent to terminate and specifying t he effective date thereof. SCAG shall provide a reasonable opportunity for the Partner Agency to cure prior to termination. In no event shall such opportunity to cure extend beyond the term of the MOU. In the event that SCAG invokes this termination clause , all finished or unfinished documents and other materials as described in the MOU shall be returned to SCAG at its option.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
c. Termination for Cause (SCAG Default) . If through any cause, SCAG shall fail to timely an d adequately fulfill its obligations under this MOU, or if SCAG violates any of the covenants, agreements, or stipulations of this MOU, the Partner Agency shall thereupon have the right to terminate the MOU by giving not less than ten (10) calendar days wr itten notice to SCAG of the intent to terminate and specifying the effective date thereof. The Partner Agency shall provide a reasonable opportunity for SCAG to cure prior to termination. In no event shall such opportunity to cure extend beyond the term of the MOU. In the event that the Partner Agency invokes this termination clause, all finished or unfinished documents and other materials as described in the MOU shall be returned to the Partner Agency at its option.
20. Non-Assignment
a. Neither Party shall assign 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.
b. The covenants and agreement of this MOU shall inure to the benefit of, and shall be binding upon, each of the Parties and their respective successors and assignees.
21. Release of Information
The Partner Agency shall not release any i nformation to a third party or otherwise publish or utilize any information obtained or produced by it as a result of or in connection with the performance of services under this Agreement without the prior written authorization of SCAG, except as required by law (including, without limitation, pursuant to the California Public Records Act) and with prior written notice to SCAG.
22. Non-Exclusivity
Nothing herein is intended nor shall be construed as creating an exclusive arrangement between SCAG and the Partner Agency. This Agreement shall not restrict SCAG from acquiring similar, equal or like services from other entities or sources.
23. Severability
If any provision of this MOU is held to be illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable, and the legality, validity, and enforceability of the remaining provisions shall not be affected thereby.
24. Survival
The following sections survive expiration or termination of this MOU:
Section 7 (Electronic Version of Work Products)
Section 11 (Indemnification)
Section 17 (Disputes)
Section 21 (Release of Information)
25. Jurisdiction and Venue
This MOU shall be deemed an agreement under the laws of the State of California and for all purposes shall be interpreted in accordance with such laws. Both Parties hereby agree and consent to the exclusive jurisdiction of the courts of the State of California and that the venue of any action brought thereunder shall be Los Angeles County, California.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
26. Waiver
No delay or failure by either Party to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver thereof of such Party’s right thereafter to exercise or enforce each and every right and provision of this Agreement. A Waiver to be valid shall be in writing but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver.
27. Standard of Care
The Parties shall perform the work re quired for the production of the Project under this MOU in accordance with generally accepted industry standards, practices, and principles applicable to such work.
28. Force Majeure
Neither the Partner Agency nor SCAG shall be liable or deemed to be in default for any delay or failure in performance under this MOU and Consultant shall not be liable under its contract with SCAG f or interruption of services resulting, directly or indirectly, from acts of nature, civil or military authority, acts of public enemy, war, strikes, labor disputes, pandemics, or any other similar cause beyond the reasonable control of the Partner Agency, SCAG or Consultant, provided that the Party seeking to delay or excuse its performance as a result of such event shall notify the other Party in writing of such circumstances within not more than ten (10) days following the first occurrence of the event forming the basis of the delay or excuse of performance. In the event that the Party seeking to delay or excuse its performance fails to timely deliver the notice described in the previous sentence, then such event shall not relieve the Party from its timely performance.
29. Execution of MOU or Amendment
This MOU, or any amendment related thereto (Amendment), may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. The signature page of this MOU or any Amendment may be executed by way of a manual or authorized digital signature. Delivery of an executed counterpart of a signature page to this Agreement or an Amendment by electronic transmission scanned pages shall be deemed effective as a delivery of a manually or digitally executed counterpart to this Agreement or any Amendment.
30. Effective Date
This MOU shall be effective as of the last date in which the document is executed by both Parties.
31. Entire MOU
This MOU, including the attached Exhibits A and B represents and contains the entire agreement of the Parties with respect to the matters set forth herein. This MOU supersedes any and all prior negotiations, discussions and, if any, previous agreements between the Parties.
32. Authority
The Partner Agency warrants and certifies that it possesses the legal authority to execute this Agreement and to undertake administration of the proposed Project, and that a resolution, motion, or similar action has been fully adopted or passed, as an official act of the Partner Agency's governing body, directing and designating the authorized representative(s) of the Partner Agency to act in connection with the Project specified and to provide such additional information as may be required by SCAG.
[Signature Page to Follow]
SIGNATURE PAGE TO
MEMORANDUM OF UNDERSTANDING
NO. M-009-22
IN WITNESS WHEREOF, the Parties have caused this MOU to be executed by their duly authorized representatives as of the dates indicated below:
SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS (“SCAG”)
By: _______________________________________________ _________________ Cindy Giraldo Date
Chief Financial Officer
APPROVED AS TO FORM:
By: _______________________________________________ _________________ Michael R.W. Houston Date
Chief Counsel
City of Pomona (“Partner Agency”)
By: _______________________________________________ _________________ James Makshanoff Date
City Manager
APPROVED AS TO FORM:
By: _______________________________________________ _________________ Sonia Carvalho Date
City Attorney
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
Exhibit A
Scope of Work
City of Pomona
Parking & Infrastructure Study of Pomona’s Downtown Parking Lots to Support Housing Development
Background/Project Overview
Under the California 2019-2020 Budget Act, SCAG was awarded $47 million in Regional Early Action Planning (REAP) funding to support local governments and stakeholders with housing planning activities that accelerate housing production and meet the region’s goals for producing 1.3 million new units of housing by 2029, as determined by the 6th Cycle Regional Housing Needs Assessment (RHNA).
SCAG has framed its REAP funding into three umbrella categories including (1) Partnerships and Outreach, (2) Regional Housing Policy Solutions and (3) Sustainable Communities Strategies (SCS) Integration. As part of Category (3) Sustainable Community Strategies, SCAG has committed to pursuing partnerships with a particular emphasis on state -funded Transformative Climate Communities (TCC) areas within Priority Growth Areas with a goal of furthering next step s on housing supportive land use analysis and strategy development.
The Proposed Project consists of parking, mobility and open space infrastructure, and housing feasibility analysis for Pomona’s City-owned parking lots within its Downtown1 area to potentially support housing development and leverage the City’s TCC project outcomes. There are currently (26) parking lots owned by the City of Pomona’s Vehicle Parking District (VPD) and approximately (21) of those lots would be included in this study. This analysis and pre-development planning work is necessary to support the future release of Requests for Proposals for the re -development of one or more of these lots for housing development, and to establish definitive strategies for parking management and allocation within the Downtown Pomona Specific Plan area, and the enhancement of multi -modal and open space amenities for future residents. The Proposed Project also envisions supporting the City’s sustainability goals, including energy and water efficiency.
The goal of the parking analysis component is to provide a strategic plan with specific implementation measures outlining the City’s options for future investments in the parking network to improve mobility, access and utilization in a way that is s afe and convenient while minimizing auto congestion, reducing Vehicle Miles Traveled (VMT), and associated impacts as well as informing the City where parking would be best suited and which lots do not need to remain parking and could be considered for housing or a mix of both. The parking analysis will also recognize evolving technology and future trends in parking systems, management strategies and service delivery. At this juncture, the City is interested in understanding existing parking supply and dema nd patterns, determining the impacts of future development on existing parking, and conducting a robust stakeholder engagement process intended to both inform the public of quantitative and qualitative findings related to parking and obtain input to shape the parking planning process. As a subsequent component, the City is interested in industry best practices with regard to management of the parking system to improve efficiency and customer service, as well as evaluating possible sites for new parking infr astructure and reevaluating supply and demand following construction of certain high -impact projects. Having a well -planned and coordinated parking system is vital to the long-term fiscal health of the City and ensures the continued viability of Downtown’s economic growth.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
Housing is already permitted in the Downtown Pomona Specific Plan, with some of the highest density permitted in the City (40 du/ac min. to over 100 du/ac max) located there. The City envisions that Downtown will play an important role in fulfilling the City’s housing goals in the future. With 26 surface parking lots owned by the VPD, many of which are currently underutilized, there is opportunity to consider some of these assets for housing development, based upon the parking analysis component of this stu dy.
The City desires to obtain market and financial feasibility analysis of underutilized (or unneeded based on parking analysis) VPD parking lots to determine the suitability for housing. As part of the housing analysis, existing and current state and loc al regulations related to housing density and affordability as well as infrastructure needs should be evaluated and integrated in the final site recommendations for housing.
Proposed Project Objectives
The Proposed Project should reflect the vision of the City of Pomona, as well as community context and vision. This direction will be provided through facilitated community engagement and the establishment of community goals.
The objectives of the Proposed Project are as follows:
Objective #1: Comprehensive Analysis of Parking in the Downtown Pomona Specific Plan The 21 City-owned parking lots to be studied are located within the Downtown Pomona Specific Plan, which was adopted in 2019 as an implementation of the 2014 Pomona General Plan. The S pecific Plan envisions a walkable, transit accessible, mixed use downtown district. The entirety of the DPSP is located within 0.5 miles of the Downtown Metrolink Station, which, by State and regional definitions, meets the standards of a transit -oriented district and other related terms. The City does not have a clear, updated understanding of how these parking lots are currently used, how adjacent Downtown streets and alleys are used for parking, or how parking demand needs to be maintained strategically into the future as new housing and commercial development occurs within the DPSP. Therefore, the first objective of the proposed Project is to conduct a comprehensive analysis of parking in the Downtown Pomona Specific Plan area, which will establish a bas eline understanding of existing and future parking needs and opportunities. The City is explicitly interested in understanding how parking management can be addressed in the future with multiple innovative solutions that considers the entirety of the City -owned parking lots and adjacent public rights -of-way as supporting this solution. As the 21 lots fall under the regulations of the Vehicle Parking District State code and purview of the Vehicle Parking District Commission of the City of Pomona, this objective will require direct engagement and analysis within the context of both VPD codes and the VPD Commission. Moreover, existing parking development standards are regulated by the Downtown Pomona Specific Plan. Therefore, this objective will require an anal ysis of existing DPSP regulations pertaining to parking. Lastly, as the DPSP is within 0.5 miles of the Downtown Metrolink Station, the analysis should also consider the parking reductions eligible to lower income affordable housing projects through State Density Bonus law.
Objective #2: Comprehensive Analysis of Mobility and Open Space Infrastructure The purpose of this objective to assist the City in two tasks. First, to better understand the existing mobility infrastructure within the DPSP that can support housing development (in other words, increasing Downtown’s population), and opportunities for increased active transportation and transit infrastructure.
Second, to assist the City in addressing an identified barrier to housing development within t he DPSP, which is the existing common open space development standard. Although, the City values open space and seeks to increase its open space network, the existing standard is not calibrated for a Downtown, MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
transit-oriented context, and can significantl y limit the ability for affordable housing development, as common open space requirements can require a significant dedication of land, where large pieces of land are scarce and infill sites are the primary opportunities for development. Therefore, this ob jective will require an analysis of existing mobility infrastructure surrounding the City’s 21 lots that could support multi-modal transportation into the future, and identify opportunities for improvements to such infrastructure; this objective will also require a re-conceptualization of common open space requirements for private property, and identify opportunities for the City to develop a unique standard to potentially forego common space requirements on private property, and instead pursue the development of common (public) open space within the public rights-of-way, or on strategic City-owned lots, to remove barriers to affordable housing development on-site. The City is currently underway on a Citywide Complete Streets Ordinance, which will be establishing zoning districts for all of the City’s public rights-of-way. Therefore, this objective will need to be analyzed within the context of that effort, as the conclusions drawn from this study will likely inform the implementation measures (i.e. street de sign) within the Downtown Pomona Specific Plan.
Objective #3: Comprehensive Market Feasibility Analysis for Housing The analysis should quantify the market potential for market rate and affordable units on lots that may be deemed as potentially surplu s based on the parking needs assessment findings. The analysis should examine demographic growth trends and characteristics and the competitive market for housing in the study area and evaluate the appropriateness of the subject sites for housing, and assessing the potential for specific sites to capture a portion of the market demand. Affordability components to consider include:
the City’s newly adopted Inclusionary Housing Ordinance, which requires “moderate” income housing for qualifying housing projects, either to be produced on-site, or paid for as an in-lieu fee that contributes to the City’s Affordable Housing Trust Fund; State Density Laws; and State Surplus Land Act, which adds automatic affordability requirements into a potential project. The primary goal of the market analysis will be to serve as a guiding document to help the City determine the feasibility of producing housing on the identified sites.
Objective #4: Recommendations to the City for Redevelopment of City-Owned Parking Lots Upon completion of Objectives 1 through 3, the purpose of this objective is to provide a clear recommendation to the City on opportunities to redevelop its parking lots. The recommendation should establish a “priority” ranking of sites, rating each on its strength to either support housing, support open space, support parking, or some other combination or approach. The City is seeking to use such a recommendation to pursue at least three sites immediately (within 1 -2 years of completion of the study) to issue a Request for Proposals for affordable housing development. The recommendation should also include any identified potential revisions to policies or zoning codes that would create incentives or lift barriers for affordable housing production within the Downtown Pomona Specific Plan area, and identify mobility and open space infrastructure improvements that may be conditioned or codified as requirements for future affordable housing development.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
Expected Consultant Tasks
Task 1: Project Management
The Consultant shall be responsible for coordinating the staff activities, coordinating meetings, project strategy, and oversee work from project inception to completion.
1. Meetings
Regular monthly meetings with City staff for project status and action items, including initial kick-off (within one week of Executed Task Order) and final hand -off. Preference for Zoom meetings.
Deliverable: Meeting Minutes.
2. Schedule
Must include milestone to present document to Planning Commission and City Council for Council adoption. Include sufficient time for Staff review prior to Commission and Council meetings. Schedule tracking will be conducted at Regular Meetings.
Deliverable: Project Schedule.
3. Monitoring and Reporting
To satisfy grant r eporting requirements, the Consultant shall complete the REAP Metrics Checklist (to be provided by SCAG PM). In addition, SCAG requires periodic progress reports throughout the span of the project.
Deliverable: REAP Metrics Checklist & periodic progress reports
Task 2: Comprehensive Analysis of Parking in the Downtown Pomona Specific Plan This task will be an assessment of existing parking supply and demand within the City’s parking lots within the study area to achieve Objective #1.
I.Conduct a study of current on -site parking supply and demand conditions at all City -owned parking lots within Downtown Pomona Specific Plan and any designated street parking (e.g. angled parking, parallel curbside parking). This includes parking inventory and occu pancy counts within the study area over multi-day period.
II.Evaluate future parking needs within the study area based on projected build -out of known projects within the Downtown Pomona Specific Plan and potential buildout based on 2014 General Plan and DPSP allowable densities. Use Pro Housing Pomona (Sixth Cycle Housing Element) as guide for future development scenarios. Capture influences and trends that affect the parking system now and into the future and discuss regional influences and future trends.
Key elements may include:
a. Regional and local demographic, land use, housing/development, workforce, commuting and other relevant data.
b. Current and future travel demand.
c. Review safety data and patterns.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
d. Include an assessment of potential future parking technologies and how they may fit in with the parking systems.
e. Consider future Metro L line both with a Pomona terminus and future extension. f. Identify gaps and deficiencies within the City’s current system.
III.Review City’s current parking and mobility documents related to Downtown Pomona, including the 2014 General Plan, Active Transportation Plan, Green Plan, Average Daily Trips Data, 2007 Downtown Parking Study, and Downtown Pomona Specific Plan. Review and evaluate the City’s existing transportation related GIS data.
IV.Analyze each City -owned lot and adjacent public rights -of-way for suitability of different parking interventions, ranging from maintaining existing parking spaces, maintaining existing parking spaces but selling air rights for developm ent above ground, eliminating spaces, replacing spaces on or off street, consolidating spaces into structured parking, or other interventions. The individual site and street analysis should contribute to a cohesive, Plan-wide strategy for parking management.
V.Analyze pricing mechanisms and other parking management tools that could guide future parking demand management for on -site and street parking within the Downtown Pomona Specific Plan. This should include shared parking opportunities.
VI.As part of any recommended improvements to parking within the public rights -of-way, consider such recommendations within the context of recommendations made for mobility and open space infrastructure within the same public rights -of-way identified in Task 3, to ensure a comprehensive, connected vision for improvements.
Deliverable: Comprehensive Parking Analysis, inclusive of Parking Management Plan for Downtown Pomona Specific Plan area.
Task 3: Comprehensive Analysis of Mobility and Open Space Infrastructure This task will be an assessment of existing mobility and open space infrastructure within the Downtown Pomona Specific Plan to achieve Objective #2.
I.Conduct a study of mobility infrastructure within the extent of the Downtown Pomona Specific Plan, with an emphasis on a 15-minute walk from each of the 21 City-owned parking lots. The study should consider existing connectivity to the Downtown Pomona Metrolink Station, bus stations, bicycle lanes, sidewalk connectivity, supportive facilities such as bi cycle racks or lockers, micro mobility opportunities, as well as inter -connectivity across the Plan, such as existing alleys or other assets that contribute to walkability and multi-modal use of the public rights-of-way and reduce auto-dependence and vehicle miles traveled.
II.Conduct a study of open space infrastructure within the extent of the Downtown Pomona Specific Plan. Analyze the potential to increase such infrastructure by increasing the amount of formally designated parks and recreation open spac e areas that may be created within the existing public rights -of-way, such as greenbelts, trails, paseos, plazas, or the use of a City - owned lot as a future on -site park.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
III.As part of any recommended improvements to mobility or open space infrastructure within the public rights-of-way, consider such recommendations within the context of recommendations made for parking solutions within the same public rights-of-way identified in Task 2, to ensure a comprehensive, connected vision for improvements. Recomme nded improvements should include quantitative greenhouse gas reduction benefits.
Deliverable: Comprehensive Mobility and Open Space Infrastructure Analysis.
Task 4: Comprehensive Market Feasibility Analysis for Housing This task will be a feasibility study for housing on City-owned lots to achieve Objective #3.
I.Conduct a feasibility study to analyze existing and forecasted market trends, including area median income to determine housing market needs and at what income levels. Identify expected subsidy needs, available sources to fund financing gaps, and analyze inclusionary housing requirements and State Density bonus options. As part of the analysis, consider the Surplus Land Act and fair market value requirements for the sale of City-owned land. Analysis should incorporate at least three (3) case studies of housing development scenarios on City - owned lots to test assumptions.
Deliverable: Comprehensive Feasibility Analysis for Housing on City-Owned Lots.
Task 5: Recommendations to the City for Redevelopment of City-Owned Parking Lots This task will be synthesizing the findings from Tasks 2-4 to achieve Objective #4.
I.Synthesize findings from Tasks 2 -4 into actionable recommendations to guide the City’s issuance of future Requests for Proposals for affordable housing development on City-owned sites. Recommendations should provide a clear guide to the City on a unified strategy for increasing affordable housing on City-owned lots, while still adequately addressing Plan-wide parking demand needs, removing development barriers such as private open space requirements, while still enhancing mobility and open space infrastructure within the public rights-of-way.
II.Recommend at least three top candidate City -owned lots to immediately pursue Requests for Proposals for affordable housing development.
III.Identify any necessary policy or code amendments to execute the recommendations identified.
Deliverable: Recommendation of Future Programs and Incentives.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
Task 6: Public Outreach
The purpose of this objective is to ensure that every aspect of the Study involves a significant, ongoing, and high-quality level of input from the general public, stakeholders, and the City’s relevant Commissions.
This objective requires cultural competency and awareness, and must be tailored to the specific needs of the City.
3.1 VPD Commission and Council Input
Conduct a study session held at strategically timed point in the Project Schedule with both the City Council and Vehicle Parking District Commission. The purpose of each study session should be reflective of one of the objectives of the Study (for example: a study session on existing parking demand with the Vehicle Parking District Commission). Preference for Zoom meetings unless CO VID-19 health orders allow in - person gatherings. Bilingual (Spanish) translation services should be available. Also include one presentation to the Vehicle Parking District Commission in the first quarter of the project timeline to provide an overall understanding of scope of work and gain input on factors to consider in analysis.
Deliverable: Attendance at two (2) study sessions and one (1) Vehicle Parking District Commission meeting; Presentation Materials.
3.2 Public Input
Conduct two public/community meetings held at strategically timed points in the Project Schedule. The purpose of these meetings should be reflective of one of the objectives of the Study (for example: a community meeting to better understand residential and commercial parkin g needs within Downtown Pomona). Preference for Zoom meetings unless COVID -19 health orders allow in -person gatherings.
Bilingual (Spanish) translation services should be available.
Deliverable: Attendance at two (2) public/community meetings; Presentation Materials.
3.3 Stakeholder Input
Conduct a series of targeted stakeholder meetings (three maximum) held at strategically timed points in the Project Schedule. Stakeholder meetings should include, at minimum, the Downtown Pomona Owner’s Association and Western University, which is a major educational institution that relies largely upon City- owned parking lots and on -street parking in the eastern portion of the DPSP. Preference for Zoom meetings unless COVID -19 health orders allow in -person gathe rings. Bilingual (Spanish) translation services should be available.
Deliverable: Attendance at up to three (3) public/community meetings; Presentation Materials.
Task 7: Adoption
This includes presentation to City Council. This task should also i nclude some compilation of materials and deliverables in a final format (compiled, digital PDF etc.) to the City and SCAG.
4.1 Document
A complete document available for public circulation.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
Deliverable: Draft Study
4.2 Adoption
Present Draft to City Council.
Deliverable: Attendance at City Council meeting. Presentation materials.
Task 8: Final Deliverables to SCAG and City
The Consultant shall prepare a final package for SCAG and the City that combines all project deliverables.
The package shall include an executive summary and recommendations on lessons learned during the project. This task assumes preparation of the executive summary and digital organization/packaging of all deliverables; it does not assume a separate report. Consultant to provide digital versions of the document in Word & PDF, consultant to provide all relevant GIS & model files.
Deliverable: Preparation of the final report in digital “print ready” and digital “editable” versions submitted to SCAG and City.
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
Exhibit B
General Terms and Conditions (GTC 04/2017)
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022
MOU No.: M-009-22
SCAG Project/OWP No.: 300-4887Y0.04
Date: May 23, 2022