June 7, 2022, Item #16
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AG EN DA REPORT City of Poway
June 7, 2022
Honorable Mayor and Members of the City Council
Robert Manis, Director of Development Servicest{J!., ,£if KJ.1 Henry Trang, Senior Civil Engineer
(858) 668-4602 or [email protected]
CITY COUNCIL
A Resolution Approving Master Agreement No. 11-5428521 with the State of California and Authorizing the City Manager to Execute Said Agreement and Approve Future Program Supplements
City staff received from Caltrans a Master Agreement Administering Agency-State Agreement for State-Funded projects No. 11-5428521 for execution by the City. The City and the State of California (State) must enter into an agreement to establish terms and conditions applicable to the City when receiving State funds for local transportation projects.
Recommended Action:
It is recommended the City Council approve the Resolution (Attachment A) approving Master Agreement No. 11-5428521 (Attachment B) and authorizing the City Manager to execute said agreement and future Program Supplements.
Discussion:
In order to be eligible for grant fund reimbursement for State-funded projects, the City must enter into a Master Agreement with the State, which establishes terms and conditions for projects. After the City and State have executed the Master Agreement, transportation projects receiving State funds will receive a Program Supplement specific to that project. Each phase of the project being State funded will have a separate Program Supplement. Program Supplements have a time restriction for execution and funds can be lost if not executed within that time allowance.
The City currently has two State-funded projects, the Local Road Safety Plan (LRSP) and the Poway Road Safety Improvements. The LRSP was included in a previous Master Agreement. The State's Master Agreement was recently updated and the City must execute the new version. The Poway Road Safety Improvements project is funded by a Highway Safety Improvements Program grant. City staff has submitted a request for authorization to begin the preliminary engineering phase of the project and has received approval from the State. This phase can begin after the execution of the Master Agreement Administering Agency-State Agreement for State-Funded Projects No. 11-5428S21 and a preliminary engineering phase program supplement.
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June 7, 2022, Item #16
By authorizing the City Manager to approve and execute both the Master Agreement and future Program Supplements, the process is streamlined and prevents the potential loss of State funds due to time restrictions for executing the Agreements.
Environmental Review:
This item is not subject to the California Environmental Quality Act (CEQA).
Fiscal Impact:
None.
Public Notification:
None.
Attachments:
A. Resolution
B. Master Agreement Administering Agency-State Agreement for State Funded Projects No. 11- 5428S21
Reviewed/ Approved By:
Assistant City Manager
2 of20
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Ch~
City Manager
June 7, 2022, Item #16
RESOLUTION
NO.
22-
A
RESOLUTION
OF
THE
CITY
COUNCIL
OF
THE
CITY
OF
POWAY,
CALIFORNIA,
APPROVING
MASTER
AGREEMENT
ADMINISTERING
AGENCY-STATE
AGREEMENT
FOR
STATE
FUNDED
PROJECTS
NO.
11-5428S21
AND
AUTHORIZING
THE
CITY
MANAGER
TO
EXECUTE
SAID
AGREEMENT
AND
APPROVE
FUTURE
PROGRAM
SUPPLEMENTS
WHEREAS,
Caltrans
frequently
issues
Program
Supplements
to
Local
Agency-State
Agreements
for
State-Funded
projects;
WHEREAS,
these
program
supplements
provide
State
funding
for
various
phases
of
public
works
and
capital
improvement
projects;
WHEREAS,
State
programming
procedures
require
that
a
Master
Agreement
Administering
Agency-State
Agreement
for
State-Funded
Projects
be
executed;
WHEREAS,
State
programming
procedures
require
that
a
Program
Supplement
be
executed
for
each
project;
WHEREAS,
the
Master
Agreement
Administering
Agency-State
Agreement
for
State
Funded
Projects
and
future
Program
Supplements
can
be
most
effectively
executed
by
the
City
Manager;
and
WHEREAS,
Master
Agreement
Administering
Agency-State
Agreement
for
State-Funded
Projects
No.
11-5428S21
is
included
in
the
staff
report
as
"Attachment
B."
NOW,
THEREFORE,
BE
IT
RESOLVED
by
the
City
Council
of
the
City
of
Poway
as
follows:
SECTION
1:
The
City
Council
hereby
approves
and
authorizes
the
City
Manager
to
execute
the
Master
Agreement
for
Administering
Agency-State
Agreement
for
State-Funded
Projects
No.
11-5428S21
and
Future
Program
Supplements
for
State-Funded
projects
within
the
City
of
Poway.
3 of
20 ATTACHMENT
A
June 7, 2022, Item #16
Resolution No. 22-
PASSED, ADOPTED AND APPROVED at a Regular Meeting of the City Council of the City of Poway, California on the 7th day of June, 2022 by the following vote, to wit:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk
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June 7, 2022, Item #16
MASTER AGREEMENT
ADMINISTERING AGENCY-STATE AGREEMENT FOR
STATE-FUNDED PROJECTS
11 City of Poway
District Administering Agency
Agreement No. 11-5428S21
This AGREEMENT, is entered into effective this ___ day of ____ , 20_, by and between the City of Poway, hereinafter referred to as "ADMINISTERING AGENCY," and the State of California, acting by and through its Department of Transportation (Caltrans), hereinafter referred to as "STATE", and together referred to as "PARTIES" or individually as a "PARTY."
RECITALS:
1. WHEREAS, the Legislature of the State of California has enacted legislation by which certain State funds are made available for use on local transportation related projects of public entities qualified to act as recipients of these state funds; and
2. WHEREAS, ADMINISTERING AGENCY has applied to the California Transportation Commission (CTC) and/or ST ATE for funding from a State-funded program (herein referred to as STATE FUNDS), as defined in the Local Assistance Program Guidelines (LAPG) and/or in the respective CTC Guidelines, for use on local authorized transportation related projects as a local administered project(s), hereinafter referred to as "PROJECT"; and
3. WHEREAS, said PROJECT will not receive any federal funds; and
4. WHEREAS, before STATE FUNDS will be made available for PROJECT, ADMINISTERING AGENCY and STATE are required to enter into an agreement to establish terms and conditions applicable to the ADMINISTERING AGENCY when receiving STATE FUNDS for a designated PROJECT facility and to the subsequent operation and maintenance of that completed facility.
NOW, THEREFORE, the PARTIES agree as follows:
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June 7, 2022, Item #16
ARTICLE I -PROJECT ADMINISTRATION
1. This AGREEMENT shall have no force or effect with respect to any program project unless and until a project-specific Program Supplement to this AGREEMENT for state funded projects, hereinafter referred to as "PROGRAM SUPPLEMENT", has been fully executed by both STATE and ADMINISTERING AGENCY.
2. The State approved project-specific allocation notification letter and approved CTC allocation documentation designate the party responsible for implementing PROJECT, type of work, and location of PROJECT for projects requiring CTC allocation by PROJECT component of work.
3. The PROGRAM SUPPLEMENT sets out special covenants as a condition for the ADMINISTERING AGENCY to receive STATE FUNDS from/through STATE for designated PROJECT. The PROGRAM SUPPLEMENT shall also show these STATE FUNDS that have been initially encumbered for PROJECT along with the matching funds to be provided by ADMINISTERING AGENCY and/or others. Execution of PROGRAM SUPPLEMENT by the PARTIES shall cause ADMINISTERING AGENCY to adopt all the terms of this AGREEMENT as though fully set forth therein in the PROGRAM SUPPLEMENT. Unless otherwise expressly delegated in a resolution by the governing body of ADMINISTERING AGENCY, and with written concurrence by STATE, the PROGRAM SUPPLEMENT shall be approved and managed by the governing body of ADMINISTERING AGENCY.
4. ADMINISTERING AGENCY agrees to execute and return each project-specific PROGRAM SUPPLEMENT. The PARTIES agree that STATE may suspend future allocations, encumbrances and invoice payments for any on-going or future STATE FUNDED PROJECT performed by ADMINISTERING AGENCY if any project-specific PROGRAM SUPPLEMENT is not returned, unless otherwise agreed by STATE in writing.
5. ADMINISTERING AGENCY further agrees, as a condition to the release and payment of STATE FUNDS encumbered for the PROJECT described in each PROGRAM SUPPLEMENT, to comply with the terms and conditions of this AGREEMENT and all the agreed-upon Special Covenants or Remarks incorporated within the PROGRAM SUPPLEMENT, and Cooperative/Contribution Agreement where appropriate, defining and identifying the nature of the specific PROJECT.
6. STATE FUNDS will not participate in any portion of PROJECT work performed in advance of the effective date of allocation by CTC, or by STATE for allocations delegated to STATE by CTC, for said PROJECT.
7. Projects allocated with STATE FUNDS will be administered in accordance with the current CTC STIP Guidelines, applicable chapter(s) of the LAPG, LAPM and/or any other instructions published by STATE.
8. ADMINISTERING AGENCY agrees to ensure compliance with all relevant State laws and requirements for work related to PROJECT, including the California Environmental Quality Act (CEQA).
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June 7, 2022, Item #16
9. ADMINISTERING
AGENCY's
eligible
costs
for
preliminary
engineering
work
includes
all
preliminary
work
directly
related
to
PROJECT
up
to
contract
award
for
construction,
including,
but
not
limited
to,
environmental
studies
and
permits
(E&P),
preliminary
surveys
and
reports,
laboratory
work,
soil
investigations,
the
preparation
of
plans,
specifications
and
estimates
(PS&E),
advertising
for
bids,
awarding
of
a
contract
and
project
development
contract
administration. 10.
ADMINISTERING
AGENCY's
eligible
costs
for
construction
engineering
include
actual
inspection
and
supervision
of
PROJECT
construction
work;
construction
staking;
laboratory
and
field
testing;
and
the
preparation
and
processing
of
field
reports,
records,
estimates,
final
reports,
and
allowable
expenses
of
employees/consultants
engaged
in
such
activities.
11. Unless
the
PARTIES
agree
otherwise
in
writing,
ADMINISTERING
AGENCY's
employees
or
its
contracted
engineering
consultant
shall
be
responsible
for
all
PROJECT
engineering
work.
12. ADMINISTERING
AGENCY
shall
not
proceed
with
final
design
of
PROJECT
until
final
environmental
approval
of
PROJECT.
Final
design
entails
the
design
work
necessary
to
complete
the
PS&E
and
other
work
necessary
for
a
construction
contract
but
not
required
earlier
for
environmental
clearance
of
that
PROJECT.
13. If
PROJECT
is
not
on
STATE-owned
right-of-way,
PROJECT
shall
be
constructed
in
accordance
with
Chapter
11 of
the
LAPM
that
describes
minimum
statewide
design
standards
for
local
agency
streets
and
roads.
The
design
standards
for
projects
off
the
National
Highway
System
(NHS)
allow
STATE
to
accept
either
the
current
Caltrans
Highway
Design
Manual
standards,
the
current
FHWA-adopted
American
Association
of
State
Highway
and
Transportation
Officials
(AASHTO)
A
Policy
on
Geometric
Design
of
Highways
and
Streets
standards,
or
the
approved
geometric
design
standards
of
ADMINISTERING
AGENCY.
Additionally,
for
projects
off
the
NHS,
STATE
will
accept
ADMINISTERING
AGENCY-approved
standard
specifications,
standard
plans,
materials
sampling
and
testing
quality
assurance
programs
that
meet
the
conditions
described
in
the
then
current
Local
Assistance
Procedures
Manual. 14.
If
PROJECT
involves
work
within
or
partially
within
STATE-owned
right-of-way,
that
PROJECT
shall
also
be
subject
to
compliance
with
the
policies,
procedures
and
standards
of
the
STATE
Project
Development
Procedures
Manual
and
Highway
Design
Manual
and
where
appropriate,
an
executed
cooperative
agreement
between
STATE
and
ADMINISTERING
AGENCY
that
outlines
the
PROJECT
responsibilities
and
respective
obligations
of
the
PARTIES.
ADMINISTERING
AGENCY
and
its
contractors
shall
each
obtain
an
encroachment
permit
through
STATE
prior
to
commencing
any
work
within
STATE
rights-of-way
or
work
which
affects
STATE
facilities.
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16 June 7, 2022, Item #16
15. When
PROJECT
is
not
on
the
State
Highway
System
(SHS)
but
includes
work
to
be
performed
by
a
railroad,
the
contract
for
such
work
shall
be
prepared
by
ADMINISTERING
AGENCY
or
by
STATE,
as
the
PARTIES
may
hereafter
agree.
In
either
event,
ADMINISTERING
AGENCY
shall
enter
into
an
agreement
with
the
railroad
providing
for
future
maintenance
of
protective
devices
or
other
facilities
installed
under
the
contract.
16. ADMINISTERING
AGENCY
shall
comply
with
the
provisions
of
sections
4450
and
4454
of
the
California
Government
Code,
as
well
as
other
Department
of
General
Services
guidance,
if
applicable,
for
the
contract
PS&E
for
the
construction
of
buildings,
structures,
sidewalks,
curbs
and
related
facilities
for
accessibility
and
usability.
Further
requirements
and
guidance
are
provided
in
Title
24 of
the
California
Code
of
Regulations.
17. ADMINISTERING
AGENCY
shall
provide
a
full-time
public
employee
to
be
in
responsible
charge
of
each
PROJECT.
ADMINISTERING
AGENCY
shall
provide
or
arrange
for
adequate
supervision
and
inspection
of
each
PROJECT.
ADMINISTERING
AGENCY
may
utilize
consultants
to
perform
supervision
and
inspection
work
for
PROJECT
with
a
fully
qualified
and
licensed
engineer.
Utilization
of
consultants
does
not
relieve
ADMINISTERING
AGENCY
of
its
obligation
to
provide
a
full-time
public
employee
to
be
in
responsible
charge
of
each
PROJECT.
18. Unless
otherwise
provided
in
the
PROGRAM
SUPPLEMENT,
ADMINISTERING
AGENCY
shall
advertise,
award,
and
administer
the
PROJECT
construction
contract
or
contracts.
19. The
cost
of
maintenance,
security,
or
protection performed
by
ADMINISTERING
AGENCY
or
contractor
forces
during
any
temporary
suspension
of
PROJECT
or
at
any
other
time
may
not
be
charged
to
the
PROJECT.
20. ADMINISTERING
AGENCY
shall
submit
PROJECT-specific
award
information
to
STATE's
District
Local
Assistance
Engineer,
within
sixty
(60)
days
after
contract
award.
21. ADMINISTERING
AGENCY
shall
submit
the
final
report
documents
that
collectively
constitute
a
"Final
Project
Expenditure
Report",
LAPM
Exhibit
17-M,
within
one
hundred
eighty
(180)
days
of
PROJECT
completion.
Failure
by
ADMINISTERING
AGENCY
to
submit
a
"Final
Project
Expenditure
Report",
within
180
days
of
project
completion
will
result
in
STATE
imposing
sanctions
upon
ADMINISTERING
AGENCY
in
accordance
with
the
Local
Assistance
Procedures
Manual.
22. ADMINISTERING
AGENCY
shall
comply
with
the
Americans
with
Disabilities
Act
(ADA)
of
1990
that
prohibits
discrimination
on
the
basis
of
disability
and
all
applicable
regulations
and
guidelines
issued
pursuant
to
the
ADA.
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16 June 7, 2022, Item #16
23. The
Governor
and
the
Legislature
of
the
State
of
California,
each
within
their
respective
jurisdictions,
have
prescribed
certain
nondiscrimination
requirements
with
respect
to
contract
and
other
work
financed
with
public
funds.
ADMINISTERING
AGENCY
agrees
to
comply
with
the
requirements
of
the
FAIR
EMPLOYMENT
PRACTICES
ADDENDUM,
attached
hereto
as
Exhibit
A
and
further
agrees
that
any
agreement
entered
into
by
ADMINISTERING
AGENCY
with
a
third
party
for
performance
of
work
connected
with
PROJECT
shall
incorporate
Exhibit
A
(with
third
party's
name replacing
ADMINISTERING
AGENCY)
as
parts
of
such
agreement.
24. ADMINISTERING
AGENCY
shall
include
in
all
contracts
and
subcontracts
awarded
when
applicable,
a
clause
that
requires
each
subcontractor
to
comply
with
California
Labor
Code
requirements
that
all
workers
employed
on
public
works
aspects
of
any
project
(as
defined
in
California
Labor
Code
sections
1720-1815)
be
paid
not
less
than
the
general
prevailing
wage
rates
predetermined
by
the
Department
of
Industrial
Relations
as
effective
at
the
date
of
contract
award
by
the
ADMINISTERING
AGENCY.
ARTICLE
II -RIGHTS-OF-WAY
1. No
contract
for
the
construction
of
a
STATE
FUNDED
PROJECT
shall
be
awarded
until
all
necessary
rights
of
way
have
been
secured.
Prior
to
the
advertising
for
construction
of
PROJECT,
ADMINISTERING
AGENCY
shall
certify
and, upon
request,
shall
furnish
STATE
with
evidence
that
all
necessary
rights-of-way
are
available
for
construction
purposes
or
will
be
available
by
the
time
of
award
of
the
construction
contract.
2. The
furnishing
of
rights
of
way
by
ADMINISTERING
AGENCY
as
provided
for
herein
includes,
and
is
limited
to,
the
following,
unless
the
PROGRAM
SUPPLEMENT
provides
otherwise. (a)
Expenditures
of
capital
and
support
to
purchase
all
real
property
required
for
PROJECT
free
and
clear
of
liens,
conflicting
easements,
obstructions
and
encumbrances,
after
crediting
PROJECT
with
the
fair
market
value
of
any
excess
property
retained
and
not
disposed
of
by
ADMINISTERING
AGENCY.
(b)
The
cost
of
furnishing
of
right-of-way
as
provided
for
herein
includes,
in
addition
to
real
property
required
for
the
PROJECT,
title
free
and
clear
of
obstructions
and
encumbrances
affecting
PROJECT
and
the
payment,
as
required
by
applicable
law,
of
damages
to
owners
of
remainder
real
property
not
actually
taken
but
injuriously
affected
by
PROJECT.
(c)
The
cost
of
relocation
payments
and
services
provided
to
owners
and
occupants
pursuant
to
Government
Code
sections
7260-7277
when
PROJECT
displaces
an
individual,
family,
business,
farm
operation
or
nonprofit
organization.
(d)
The
cost
of
demolition
and/or
the
sale
of
all
improvements
on
the
right-of-way
after
credit
is
recorded
for
sale
proceeds
used
to
offset
PROJECT
costs.
(e)
The
cost
of
all
unavoidable
utility
relocation,
protection
or
removal.
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16 June 7, 2022, Item #16
(f) The cost of all necessary hazardous material and hazardous waste treatment, encapsulation or removal and protective storage for which ADMINISTERING AGENCY accepts responsibility and where the actual generator cannot be identified, and recovery made.
3. ADMINISTERING AGENCY agrees to indemnify and hold STATE harmless from any liability that may result in the event the right-of-way for a PROJECT is not clear as certified by ADMINISTERING AGENCY, including, but not limited to, if said right-of-way is found to contain hazardous materials requiring treatment or removal to remediate in accordance with Federal and State laws. ADMINISTERING AGENCY shall pay, from its own non-matching funds, any costs which arise out of delays to the construction of PROJECT because utility facilities have not been timely removed or relocated, or because rights-of-way were not available to ADMINISTERING AGENCY for the orderly prosecution of PROJECT work.
ARTICLE Ill -MAINTENANCE AND MANAGEMENT
1. ADMINISTERING AGENCY will maintain and operate the property acquired, developed, constructed, rehabilitated, or restored by PROJECT for its intended public use until such time as the parties might amend this AGREEMENT to otherwise provide. With the approval of STATE, ADMINISTERING AGENCY or its successors in interest in the PROJECT property may transfer this obligation and responsibility to maintain and operate PROJECT property for that intended public purpose to another public entity.
2. Upon ADMINISTERING AGENCY's acceptance of the completed construction contract or upon contractor being relieved of the responsibility for maintaining and protecting PROJECT, ADMINISTERING AGENCY will be responsible for the maintenance, ownership, liability, and the expense thereof, for PROJECT in a manner satisfactory to the authorized representatives of STATE and if PROJECT falls within the jurisdictional limits of another Agency or Agencies, it is the duty of ADMINISTERING AGENCY to facilitate a separate maintenance agreement(s) between itself and the other jurisdictional Agency or Agencies providing for the operation, maintenance, ownership and liability of PROJECT. Until those agreements are executed, ADMINISTERING AGENCY will be responsible for all PROJECT operations, maintenance, ownership and liability in a manner satisfactory to the authorized representatives of STATE. If, within ninety (90) days after receipt of notice from STATE that a PROJECT, or any portion thereof, is not being properly operated and maintained and ADMINISTERING AGENCY has not satisfactorily remedied the conditions complained of, the approval of future STATE FUNDED PROJECTS of ADMINISTERING AGENCY will be withheld until the PROJECT shall have been put in a condition of operation and maintenance satisfactory to STATE. The provisions of this section shall not apply to a PROJECT that has been vacated through due process of law with STATE's concurrence.
3. PROJECT and its facilities shall be maintained by an adequate and well-trained staff of engineers and/or such other professionals and technicians as PROJECT reasonably requires.
Said operations and maintenance staff may be employees of ADMINISTERING AGENCY, another unit of government, or a contractor under agreement with ADMINISTERING AGENCY.
All maintenance will be performed at regular intervals or as required for efficient operation of the complete PROJECT improvements.
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June 7, 2022, Item #16
4. ADMINISTERING
AGENCY
shall
comply
with
all
applicable
law,
including
but
not
limited
to,
all
applicable
legal
authority
regarding
construction
standards.
ARTICLE
IV
-FISCAL
PROVISIONS
1. All
contractual
obligations
of
STATE
are
subject
to
the
appropriation
of
resources
by
the
Legislature
and
the
allocation
of
resources
by
the
CTC.
2. STATE'S
financial
commitment
of
STATE
FUNDS
will
occur
only
upon
the
execution
of
this
AGREEMENT,
the
execution
of
each
project-specific
PROGRAM
SUPPLEMENT
and/or
ST
ATE's
approved
finance
letter.
3. ADMINISTERING
AGENCY
agrees,
as
a
minimum,
to
submit
invoices
in
arrears
for
reimbursement
of
allowable
PROJECT
costs
at
least
once
every
six
months
commencing
after
the
ST
ATE
FUNDS
are
encumbered
on
either
the
project-specific
PROGRAM
SUPPLEMENT
or
through
a
project-specific
finance
letter
approved
by
STATE.
STATE
reserves
the
right
to
suspend
future
allocations
and
invoice
payments
for
any
on-going
or
future
STATE
FUNDED
project
performed
by
ADMINISTERING
AGENCY
if
PROJECT
costs
have
not
been
invoiced
by
ADMINISTERING
AGENCY
for
a
six-month
period
4. Invoices
shall
be
submitted
on
a
standardized
billing
summary
template,
in
accordance
with
Chapter
5 of
the
LAPM
to
claim
reimbursement
by
ADMINISTERING
AGENCY.
For
construction
invoices,
pay
estimates
must
be
included.
5. ADMINISTERING
AGENCY
must
retain
at
least
one
copy
of
supporting
backup
documentation
for
allowable
costs
incurred
and
claimed
for
reimbursement
by
ADMINISTERING
AGENCY.
ADMINISTERING
AGENCY
agrees
to
submit
supporting
backup
documentation
with
invoices
if
requested
by
State.
Acceptable
backup
documentation
includes,
but
is
not
limited
to,
agency's
progress
payment
to
the
contractors,
copies
of
cancelled
checks
showing
amounts
made
payable
to
vendors
and
contractors,
and/or
a
computerized
summary
of
PROJECT
costs.
6. Payments
to
ADMINISTERING
AGENCY
can
only
be
released
by
STATE
as
reimbursements
of
actual
allowable
PROJECT
costs
already
incurred
and
paid
for
by
the
ADMINISTERING
AGENCY.
7. Indirect
Cost
Allocation
Plans/Indirect
Cost
Rate
Proposals (ICAP/ICRP),
Central
Service
Cost
Allocation
Plans
and
related
documentation
are
to
be
prepared
and
provided
to
the
Inspector
General
-
Independent
Office
of
Audits
and
Investigations
for
review
and
approval
prior
to
ADMINISTERING
AGENCY
seeking
reimbursement
of
indirect
cost
incurred
within
each
fiscal
year
being
claimed
for
reimbursement.
ICAPs/lCRPs
must
be
prepared
in
accordance
with
the
requirements
set
forth
in
2 CFR,
Part
200,
Chapter
5 of
the
LAPM,
and
the
ICAP/ICRP
approval
procedures
established
by
STATE.
11 of
20 Page
7 of
16 June 7, 2022, Item #16
8. STATE will withhold the greater of either two (2) percent of the total of all STATE FUNDS encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGENCY submits the Final Report of Expenditures for each completed PROGRAM SUPPLEMENT PROJECT.
9. The estimated total cost of PROJECT, the amount of STATE FUNDS obligated, and the required matching funds may be adjusted by mutual consent of the PARTIES with a finance letter, and an allocation notification letter when applicable. STATE FUNDING may be increased to cover PROJECT cost increases only if such additional funds are available and the CTC and/or STATE concurs with that increase in the form of an allocation and finance letter.
10. When such additional STATE FUNDS are not available, ADMINISTERING AGENCY agrees that any increases in PROJECT costs must be defrayed with ADMINISTERING AGENCY's own funds.
11. ADMINISTERING AGENCY shall use its own non-STATE FUNDS to finance the local share of eligible costs and all PROJECT expenditures or contract items ruled ineligible for financing with STATE FUNDS. STATE shall make the final determination of ADMINISTERING AGENCY's cost eligibility for STATE FUNDED financing with respect to claimed PROJECT costs.
12. ADMINISTERING AGENCY will reimburse STATE for STATE's share of costs for work performed by STATE at the request of ADMINISTERING AGENCY. STATE's costs shall include overhead assessments in accordance with section 8755.1 of the State Administrative Manual.
13. STATE FUNDS allocated by the CTC and/or STATE are subject to the timely use of funds provisions approved in CTC Guidelines and State procedures approved by the CTC and STATE.
14. STATE FUNDS encumbered for PROJECT are available for liquidation only for a limited period from the beginning of the State fiscal year when those funds were appropriated in the State Budget. STATE FUNDS not liquidated within these periods will be reverted unless a Cooperative Work Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the California Department of Finance in accordance with Section 16304 of the Government Code. The exact date of fund reversion will be reflected in the STATE signed PROJECT finance letter.
15. Payments to ADMINISTERING AGENCY for PROJECT-related travel and subsistence (per diem) expenses of ADMINISTERING AGENCY forces and its contractors and subcontractors claimed for reimbursement or as local match credit shall not exceed rates authorized to be paid to rank and file STATE employees under current California Department of Human Resources (CalHR) rules unless a Cooperative Work Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the California Department of Finance in accordance with Government Code section 16304. If the rates invoiced by ADMINISTERING AGENCY are in excess
12 of 20 Page 8 of 16
June 7, 2022, Item #16
of CalHR rates, ADMINISTERING AGENCY is responsible for the cost difference, and any overpayments inadvertently paid by STATE shall be reimbursed to STATE by ADMINISTERING AGENCY on demand.
16. ADMINISTERING AGENCY agrees to comply with California Government Code 4525- 4529.14. Administering Agency shall undertake the procedures described in California Government Code 4527(a) and 4528(a). Administering Agency shall also comply with 2 CFR Part 200 Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, excluding 2 CFR Part 200.318-200.326.
17. ADMINISTERING AGENCY agrees and will assure that its contractors and subcontractors will be obligated to agree that Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual PROJECT cost items. Every recipient and sub-recipient receiving PROJECT funds under this AGREEMENT shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, excluding 2 CFR Part 200.318-200.326Governments.
ADMINISTERING AGENCY agrees to comply with the provisions set forth in 23 CFR Parts 140, 645 and 646 when contracting with railroad and utility companies.
18. Every recipient and sub-recipient receiving PROJECT funds under this AGREEMENT shall comply with 2 CFR 200 excluding 2 CFR Part 200.318-200.326, 48 CFR Chapter 1, Part 31, LAPM, Public Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non-A&E services), California Government Code 4525-4529.5 including 4527(a) and 4528(a), and other applicable STATE regulations.
19. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or credit that are determined by subsequent audit to be questioned, disallowed, or unallowable under 2 CFR, Part 200, 48 CFR, Chapter 1, Part 31, 23 CFR Parts 140, 645 and 646, LAPM, Public Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non-A&E services), California Government Code 4525-4529.5 including 4527(a) and 4528(a), and other applicable STATE regulations are subject to repayment by ADMINISTERING AGENCY to STATE and may result in STATE imposing sanctions on ADMINISTERING AGENCY as described in Chapter 20 of the Local Assistance Procedures Manual.
20. Should ADMINISTERING AGENCY fail to refund any moneys due upon written demand by STATE as provided herein or should ADMINISTERING AGENCY breach this AGREEMENT by failing to complete PROJECT without adequate justification and approval by STATE, then, within thirty (30) days of demand, or within such other period as may be agreed to in writing between the PARTIES hereto, STATE, acting through the State Controller, the State Treasurer, the CTC or any other public entity or agency, may intercept, withhold and demand the transfer of an amount equal to the amount paid by or owed to STATE for each PROJECT, from future apportionments, or any other funds due ADMINISTERING AGENCY from the Highway Users Tax Fund or any other sources of funds, and/or may also withhold approval of future STATE FUNDED projects proposed by ADMINISTERING AGENCY.
21. Should ADMINISTERING AGENCY be declared to be in breach of this AGREEMENT or otherwise in default thereof by STATE, and if ADMINISTERING AGENCY is 13 of 20 Page 9 of 16
June 7, 2022, Item #16
constituted as a Joint powers authority, special district, or any other public entity not directly receiving funds through the State Controller, STATE is authorized to obtain reimbursement from whatever sources of funding are available, including the withholding or transfer of funds, from those constituent entities comprising a joint powers authority or by bringing of an action against ADMINISTERING AGENCY or its constituent member entities, to recover all funds provided by STATE hereunder.
22. ADMINISTERING AGENCY acknowledges that the signatory party represents the ADMINISTERING AGENCY and further warrants that there is nothing within a Joint Powers Agreement, by which ADMINISTERING AGENCY was created, if any exists, that would restrict or otherwise limit STATE's ability to recover STATE FUNDS improperly spent by ADMINISTERING AGENCY in contravention of the terms of this AGREEMENT.
ARTICLE V
AUDITS, THIRD PARTY CONTRACTING, RECORDS RETENTION AND REPORTS
1. STATE reserves the right to conduct technical and financial audits of PROJECT work and records and ADMINISTERING AGENCY agrees, and shall require its contractors and subcontractors to agree, to cooperate with STATE by making all appropriate and relevant PROJECT records available for audit and copying as required by paragraph three (3) of Article V.
2. ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintain a financial management system and records that properly accumulate and segregate reasonable, allowable, and allocable incurred PROJECT costs and matching funds by line item for the PROJECT. The financial management system of ADMINISTERING AGENCY, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles, enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices sent to or paid by STATE.
3. ADMINISTERING AGENCY, ADMINISTERING AGENCY's contractors and subcontractors, and STATE shall each maintain and make available for inspection and audit by STATE, the California State Auditor, or any duly authorized representative of STATE or the United States, all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts, and ADMINISTERING AGENCY shall furnish copies thereof if requested. All of the above-referenced parties shall make such AGREEMENT and PROGRAM SUPPLEMENT materials available at their respective offices at all reasonable times during the entire PROJECT period and for three (3) years, or 35 years for Prop 1 B funds, from the date of final payment to ADMINISTERING AGENCY.
4. ADMINISTERING AGENCY shall not award a construction contract over $25,000 on the basis of a noncompetitive negotiation for work to be performed under this AGREEMENT without the prior written approval of STATE. All contracts awarded by ADMINISTERING AGENCY intended or used as local match credit must meet the requirements set forth in this AGREEMENT regarding local match funds.
14 of 20 Page 10 of 16
June 7, 2022, Item #16
5. ADMINISTERING AGENCY shall comply with Chapter 10 (commencing with Section 4525) Division 5 of Title 1 of the Government Code and shall undertake the procedures described in California Government Code 4527(a) and 4528(a). Administering Agency shall comply with Chapter 10 of the LAPM for A&E Consultant Contracts.
6. ADMINISTERING AGENCY shall comply with Government Code Division 5 Title 1 sections 4525-4529.5 and shall undertake the procedures described in California Government Code 4527(a) and 4528(a) for procurement of professional service contracts. Administering Agency shall follow Public Contract Code Section 10335-10381 for other professional service contracts.
7. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREEMENT shall contain all of the provisions of Article IV, FISCAL PROVISIONS, and this ARTICLE V, AUDITS, THIRD-PARTY CONTRACTING, RECORDS RETENTION AND REPORTS and shall mandate that travel and per diem reimbursements and third-party contract reimbursements to subcontractors will be allowable as PROJECT costs only after those costs are incurred and paid for by the subcontractors.
8. To be eligible for local match credit, ADMINISTERING AGENCY must ensure that local match funds used for a PROJECT meet the fiscal provisions requirements outlined in ARTICLE IV in the same manner that is required of all other PROJECT expenditures.
9. Except as provided in this Article, this AGREEMENT is solely between and for the benefit of the PARTIES and there are no third-party beneficiaries.
ARTICLE VI -MISCELLANEOUS PROVISIONS
1. ADMINISTERING AGENCY agrees to use all PROJECT funds reimbursed hereunder only for transportation purposes that are in conformance with Article XIX of the California State Constitution and other California laws.
2. ADMINISTERING AGENCY shall conform to all applicable State and Federal statutes and regulations, and the Local Assistance Program Guidelines and Local Assistance Procedures Manual as published by STATE and incorporated herein, including all subsequent approved revisions thereto applicable to PROJECT unless otherwise designated in the project-specific executed PROJECT SUPPLEMENT.
3. This AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the State Legislature or adopted by the CTC that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
4. ADMINISTERING AGENCY and the officers and employees of ADMINISTERING AGENCY, when engaged in the performance of this AGREEMENT, shall act in an independent capacity and not as officers, employees or agents of ST A TE.
15 of 20 Page 11 of 16
June 7, 2022, Item #16
5. Each project-specific PROGRAM SUPPLEMENT shall separately establish the terms and funding limits for each described PROJECT funded under this AGREEMENT and that PROGRAM SUPPLEMENT. No STATE FUNDS are obligated against this AGREEMENT.
6. ADMINISTERING AGENCY certifies that neither ADMINISTERING AGENCY nor its principals are suspended or debarred at the time of the execution of this AGREEMENT, and ADMINISTERING AGENCY agrees that it will notify STATE immediately in the event a suspension or a debarment occurs after the execution of this AGREEMENT.
7. ADMINISTERING AGENCY certifies, by execution of this AGREEMENT, that no person or selling agency has been employed or retained to solicit or secure this AGREEMENT upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by ADMINISTERING AGENCY for the purpose of securing business. For breach or violation of this warranty, STATE has the right to annul this AGREEMENT without liability, pay only for the value of the PROJECT work actually performed, or in STATE's discretion, to deduct from the price of PROGRAM SUPPLEMENT consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.
8. In accordance with Public Contract Code section 10296, ADMINISTERING AGENCY hereby certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against ADMINISTERING AGENCY within the immediate preceding two (2) year period because of ADMINISTERING AGENCY's failure to comply with an order of a federal court that orders ADMINISTERING AGENCY to comply with an order of the National Labor Relations Board.
9. ADMINISTERING AGENCY shall disclose any financial, business, or other relationship with STATE that may have an impact upon the outcome of this AGREEMENT or any individual PROJECT encompassed within a PROGRAM SUPPLEMENT. ADMINISTERING AGENCY shall also list current contractors who may have a financial interest in the outcome of a PROJECT undertaken pursuant to this AGREEMENT. These disclosures shall be delivered to STATE in a form deemed acceptable by the STATE prior to execution of this AGREEMENT.
10. ADMINISTERING AGENCY hereby certifies that it does not have, nor shall it acquire, any financial or business interest that would conflict with the performance of any PROJECT initiated under this AGREEMENT.
11. ADMINISTERING AGENCY certifies that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any STATE employee. For breach or violation of this warranty, STATE shall have the right, in its sole discretion, to terminate this AGREEMENT without liability, to pay only for PROJECT work actually performed, or to deduct from a PROGRAM SUPPLEMENT price or otherwise recover the full amount of such rebate, kickback, or other unlawful consideration. 16 of 20 Page 12 of 16
June 7, 2022, Item #16
12. Any dispute concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by the STATE's Contract Manager, who shall be identified to ADMINISTERING AGENCY at the time of execution of this AGREEMENT and, as applicable , any time that Contract Manager changes during the duration of this AGREEMENT who may consider any written or verbal evidence submitted by ADMINISTERING AGENCY.
The decision of the Contract Manager, issued in writing, shall be conclusive and binding on the PARTIES on all questions of fact considered and determined by the Contract Manager.
13. Neither the pendency of a dispute nor its consideration by the Contract Manager will excuse the ADMINISTERING AGENCY from full and timely performance in accordance with the terms of this AGREEMENT and each PROGRAM SUPPLEMENT.
14. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by ADMINISTERING AGENCY under or in connection with any work, authority or jurisdiction of ADMINISTERING AGENCY arising under this AGREEMENT. It is understood and agreed that ADMINISTERING AGENCY shall fully defend, indemnify and save harmless STATE and all of its officers and employees from all claims and suits or actions of every name, kind and description brought forth under, including but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by ADMINISTERING AGENCY under this AGREEMENT.
15. Neither ADMINISTERING AGENCY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by STATE, under or in connection with any work, authority or jurisdiction arising under this AGREEMENT. It is understood and agreed that STATE shall fully defend, indemnify and save harmless the ADMINISTERING AGENCY and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including but not limited to, tortious, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by ST ATE under this AGREEMENT.
16. In the event of (a) ADMINISTERING AGENCY failing to timely proceed with effective PROJECT work in accordance with the project-specific PROGRAM SUPPLEMENT; (b) failing to maintain any applicable bonding requirements; and (c) otherwise materially violating the terms and conditions of this AGREEMENT and/or any PROGRAM SUPPLEMENT, STATE reserves the right to terminate funding for that PROJECT upon thirty (30) days' written notice to ADMINISTERING AGENCY.
17. No termination notice shall become effective if, within thirty (30) days after receipt of a Notice of Termination, ADMINISTERING AGENCY either cures the default involved or, if the default is not reasonably susceptible of cure within said thirty (30) day period the ADMINISTERING AGENCY proceeds thereafter to complete that cure in a manner and time line acceptable to STATE.
18. Any such termination shall be accomplished by delivery to ADMINISTERING AGENCY of a Notice of Termination, which notice shall become effective not less than thirty (30) days after receipt, specifying the reason for the termination, the 17 of 20 Page 13 of 16
June 7, 2022, Item #16
extent to which funding of work under this AGREEMENT and the applicable PROGRAM SUPPLEMENT is terminated and the date upon which such termination becomes effective, if beyond thirty (30) days after receipt. During the period before the effective termination date, ADMINISTERING AGENCY and STATE shall meet to attempt to resolve any dispute. In the event of such termination, STATE may proceed with the PROJECT work in a manner deemed proper by STATE. If STATE terminates funding for PROJECT with ADMINISTERING AGENCY for the reasons stated in paragraph sixteen (16) of ARTICLE VI, STATE shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY under the PROGRAM SUPPLEMENT and/or ST ATE-approved finance letter prior to termination, provided, however, ADMINISTERING AGENCY is not in default of the terms and conditions of this AGREEMENT or the project-specific PROGRAM SUPPLEMENT and that the cost of any PROJECT completion to STATE shall first be deducted from any sum due ADMINISTERING AGENCY.
19. In the case of inconsistency or conflicts with the terms of this AGREEMENT and that of a project-specific PROGRAM SUPPLEMENT and/or Cooperative Agreement, the terms stated in that PROGRAM SUPPLEMENT and/or Cooperative Agreement shall prevail over those in this AGREEMENT.
20. Without the written consent of STATE, this AGREEMENT is not assignable by ADMINISTERING AGENCY either in whole or in part.
21. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in writing and signed by the PARTIES, and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT by their duly authorized officer.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
By ___________ _
Chief, Office of Project Implementation
Division of Local Assistance
Date -----------
City of Poway
By ___________ _
City of Poway
Representative Name & Title
(Authorized Governing Body Representative)
Date -----------
18 of 20 Page 14 of 16
June 7, 2022, Item #16
EXHIBIT A -FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of this Agreement, ADMINISTERING AGENCY will not discriminate against any employee for employment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. ADMINISTERING AGENCY will take affirmative action to ensure that employees are treated during employment without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Such action shall include, but not be limited to, the following:
employment; upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. ADMINISTERING AGENCY shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section.
2. ADMINISTERING AGENCY, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, 12900 et seq.), and the applicable regulations promulgated thereunder (Cal. Code Regs., Title 2, 11000, et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12900(a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full. Each of the ADMINISTERING AGENCY'S contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements, as appropriate.
3. ADMINISTERING AGENCY shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under this AGREEMENT.
4. ADMINISTERING AGENCY will permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment section of this Agreement.
5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which ADMINISTERING AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that ADMINISTERING AGENCY has violated the Fair Employment Practices Act. 19 of 20 Page 15 of 16
June 7, 2022, Item #16
(b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate this Agreement either in whole or in part, and any loss or damage sustained by STATE in securing the goods or services thereunder shall be borne and paid for by ADMINISTERING AGENCY and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or thereafter may become due to ADMINISTERING AGENCY, the difference between the price named in the Agreement and the actual cost thereof to STATE to cure ADMINISTERING AGENCY's breach of this Agreement. 20 of 20 Page 16 of 16