DRAFT Agreement No. 04-3020
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COOPERATIVE AGREEMENT COVER SHEET
Work Description
A BICYCLE/PEDESTRIAN OVERCROSSING (BPOC) PROPOSED ACROSS HIGHWAY 101 AND SITUATED TO THE SOUTH OF THE EXISTING
GUERNVILLE/STEELE LANE INTERCHANGE CONNECTING EDWARDS
A VENUE AND ELLIOTT A VENUE
Contact Information
The information provided below indicates the primary contact information for each PARTY to this AGREEMENT. PARTIES will notify each other in writing of any personnel or location changes. Contact information changes do not require an amendment to this AGREEMENT.
CALTRANS
Gezahegn Tizazu, Project Manager
111 Grand Avenue
Oakland, CA 94612
Office Phone: (510) 714-7089
Email: [email protected]
CITY OF SANTA ROSA
Jose Mederos, Assistant Engineer
69 Stony Circle
Santa Rosa, CA 95404
Office Phone: (707) 543-3915
Mobile Phone: (707) 494-5418
Email: [email protected]
EXHIBIT A
DRAFT Agreement No. 04-3020
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Table of Contents
COOPERATIVE AGREEMENT COVER SHEET ........................................................................... 1 Work Description ............................................................................................................................ 1 Contact Information ....................................................................................................................... 1 CALTRANS ............................................................................................................................... 1 CITY OF SANTA ROSA ........................................................................................................... 1 COOPERATIVE AGREEMENT ....................................................................................................... 4 RECITALS ......................................................................................................................................... 4 RESPONSIBILITIES ......................................................................................................................... 6 Sponsorship .................................................................................................................................... 6 Implementing Agency .................................................................................................................... 6 Funding ........................................................................................................................................... 7 CALTRANS' Quality Management ................................................................................................ 7 CEQA/NEPA Lead Agency ............................................................................................................ 7 Environmental Permits, Approvals and Agreements ...................................................................... 8 CONSTRUCTION ......................................................................................................................... 8 Schedule ....................................................................................................................................... 12 Additional Provisions ................................................................................................................... 10 Standards .................................................................................................................................. 10 Noncompliant Work ................................................................................................................. 13 Qualifications ........................................................................................................................... 13 Consultant Selection ................................................................................................................. 13 Encroachment Permits .............................................................................................................. 13 DRAFT Agreement No. 04-3020
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Protected Resources ................................................................................................................. 11 Disclosures ............................................................................................................................... 14 Hazardous Materials ................................................................................................................. 14 Claims ....................................................................................................................................... 16 Accounting and Audits ............................................................................................................. 16 Interruption of Work ................................................................................................................. 13 Penalties, Judgments and Settlements ...................................................................................... 17 Project Files .............................................................................................................................. 17 Environmental Compliance ...................................................................................................... 17 GENERAL CONDITIONS .............................................................................................................. 17 Venue ............................................................................................................................................ 17 Exemptions ................................................................................................................................... 18 Indemnification ............................................................................................................................ 18 Non-parties ................................................................................................................................... 18 Ambiguity and Performance ........................................................................................................ 15 Defaults ........................................................................................................................................ 19 Dispute Resolution ....................................................................................................................... 19 Prevailing Wage ............................................................................................................................ 20 SIGNATURES .................................................................................................................................. 21
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COOPERATIVE AGREEMENT
This AGREEMENT, executed on and effective from __________________________, is between the State of California, acting through its Department of Transportation, referred to as CALTRANS, and:
City of Santa Rosa, a body politic and municipal corporation or chartered city of the State of California, referred to hereinafter as CITY .
An individual signatory agency in this AGREEMENT is referred to as a PARTY . Collectively, the signatory agencies in this AGREEMENT are referred to as PARTIES.
RECITALS
1. PARTIES are authorized to enter into a cooperative agreement for improvements to the State Highway System (SHS) per the California Streets and Highways Code, Sections 114 and 130.
2. For the purpose of this AGREEMENT, a Bicycle/Pedestrian Overcrossing (BPOC) proposed across Highway 101 and situated to the south of the existing Guernville/Steele Lane Interchange connecting Edwards Avenue and Elliott Avenue, will be referred to hereinafter as PROJECT. The PROJECT scope of work is defined in the project initiation and approval documents.
3. All obligations and responsibilities assigned in this AGREEMENT to complete the following PROJECT COMPONENT will be referred to hereinafter as WORK:
• CONSTRUCTION
Each PROJECT COMPONENT is defined in the CALTRANS Workplan Standards Guide as a distinct group of activities/products in the project planning and development process.
4. The term AGREEMENT, as used herein, includes this document and any attachments, exhibits, and amendments.
This AGREEMENT is separate from and does not modify or replace any other cooperative agreement or memorandum of understanding between the PARTIES regarding the PROJECT.
PARTIES intend this AGREEMENT to be their final expression that supersedes any oral understanding or writings pertaining to the WORK. The requirements of this DRAFT Agreement No. 04-3020
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AGREEMENT will preside over any conflicting requirements in any documents that are made an express part of this AGREEMENT.
If any provisions in this AGREEMENT are found by a court of competent jurisdiction to be, or are in fact, illegal, inoperative, or unenforceable, those provisions do not render any or all other AGREEMENT provisions invalid, inoperative, or unenforceable, and those provisions will be automatically severed from this AGREEMENT.
Except as otherwise provided in the AGREEMENT, PARTIES will execute a written amendment if there are any changes to the terms of this AGREEMENT.
PARTIES agree to sign a CLOSURE STATEMENT to terminate this AGREEMENT.
However, all indemnification, document retention, audit, claims, environmental commitment, legal challenge, maintenance and ownership articles will remain in effect until terminated or modified in writing by mutual agreement or expire by the statute of limitations.
5. The following work associated with this PROJECT has been completed or is in progress:
• CITY completed the Project Initiation Document (PID) on October 25, 2016 (Cooperative Agreement No. 04-2351).
• CALTRANS approved the Mitigated Negative Declaration on February 8, 2021 (Cooperative Agreement No. 04-2617).
• CALTRANS approved the Categorical Exemption on February 8, 2021 (Cooperative Agreement No. 04-2617).
• CITY completed the Project Approval and Environmental Document on March 22, 2021 (Cooperative Agreement No. 04-2617).
• CITY is developing the Plans, Specifications, and Estimate (PS&E) (Cooperative Agreement No. 04-2773).
• CITY is developing the Right-of-Way Certification (Cooperative Agreement No. 04- 2837).
6. In this AGREEMENT capitalized words represent defined terms, initialisms, or acronyms.
7. PARTIES hereby set forth the terms, covenants, and conditions of this AGREEMENT.
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RESPONSIBILITIES
Sponsorship
8. A SPONSOR is responsible for establishing the scope of the PROJECT and securing the financial resources to fund the WORK. A SPONSOR is responsible for securing additional funds when necessary or implementing PROJECT changes to ensure the WORK can be completed with the funds committed in this AGREEMENT.
PROJECT changes, as described in the CALTRANS Project Development Procedures Manual, will be approved by CALTRANS as the owner/operator of the State Highway System.
9. CITY is the SPONSOR for the WORK in this AGREEMENT.
Implementing Agency
10. The IMPLEMENTING AGENCY is the PARTY responsible for managing the scope, cost, schedule, and quality of the work activities and products of a PROJECT COMPONENT. • CITY is the CONSTRUCTION IMPLEMENTING AGENCY .
CONSTRUCTION includes construction contract administration, surveying/staking, inspection, quality assurance, and assuring regulatory compliance. The CONSTRUCTION component budget identifies the capital costs of the construction contract/furnished materials (CONSTRUCTION CAPITAL) and the cost of the staff work in support of the construction contract administration (CONSTRUCTION SUPPORT).
11. CITY will provide a Quality Management Plan (QMP) for the WORK in every PROJECT COMPONENT that they are implementing. The QMP describes the IMPLEMENTING AGENCY's quality policy and how it will be used. The QMP will include a process for resolving disputes between the PARTIES at the team level. The QMP is subject to CALTRANS review and concurrence.
12. Any PARTY responsible for completing WORK will make its personnel and consultants that prepare WORK available to help resolve WORK-related problems and changes for the entire duration of the PROJECT including PROJECT work that may occur under separate agreements.
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Funding
13. The WORK does not use funds administered by CALTRANS. PARTIES will amend this AGREEMENT should this condition change.
14. Each PARTY is responsible for the costs they incur in performing the WORK.
CALTRANS' Quality Management
15. CALTRANS, as the owner/operator of the State Highway System (SHS), will perform quality management work including Quality Management Assessment (QMA) and owner/operator approvals for the portions of WORK within the existing and proposed SHS right-of-way.
16. CALTRANS' Quality Management Assessment (QMA) efforts are to ensure that CITY's quality assurance results in WORK that is in accordance with the applicable standards and the PROJECT's quality management plan (QMP). QMA does not include any efforts necessary to develop or deliver WORK or any validation by verifying or rechecking WORK.
When CALTRANS performs QMA, it does so for its own benefit. No one can assign liability to CALTRANS due to its QMA.
17. CALTRANS, as the owner/operator of the State Highway System, will approve WORK products in accordance with CALTRANS policies and guidance and as indicated in this AGREEMENT.
18. CITY will provide WORK-related products and supporting documentation upon CALTRANS' request for the purpose of CALTRANS' quality management work.
19. The cost of CALTRANS’ quality management work is to be borne by CALTRANS.
CEQA/NEPA Lead Agency
20. CALTRANS is the CEQA Lead Agency for the PROJECT.
21. CALTRANS is the NEPA Lead Agency for the PROJECT.
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Environmental Permits, Approvals and Agreements
22. CITY will comply with the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements as those commitments and conditions apply to CITY's responsibilities in this AGREEMENT.
23. Unless otherwise assigned in this AGREEMENT, the IMPLEMENTING AGENCY for a PROJECT COMPONENT is responsible for all PROJECT COMPONENT WORK associated with coordinating, obtaining, implementing, renewing, and amending the PROJECT permits, agreements, and approvals whether they are identified in the planned project scope of work or become necessary in the course of completing the PROJECT.
24. The PROJECT requires the following environmental permits/approvals:
ENVIRONMENTAL PERMITS/REQUIREMENTS
National Pollutant Discharge Elimination System (NPDES)/State Water Resources Control Board
CONSTRUCTION
25. As the CONSTRUCTION IMPLEMENTING AGENCY , CITY is responsible for all CONSTRUCTION WORK except those activities and responsibilities that are assigned to another PARTY and those activities that are excluded under this AGREEMENT.
26. CALTRANS will be responsible for completing the following CONSTRUCTION SUPPORT activities:
CALTRANS Work Breakdown Structure Identifier (If Applicable) 100.20.10.xx Quality Management
27. Physical and legal possession of the right-of-way must be completed prior to advertising the construction contract, unless PARTIES mutually agree to other arrangements in writing.
28. Right-of-way conveyances must be completed prior to WORK completion, unless PARTIES mutually agree to other arrangements in writing.
29. CALTRANS will not issue an encroachment permit to CITY for construction work until the following conditions are met:
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• CALTRANS accepts the final plans, specifications, and estimate • CALTRANS accepts the Right-of-Way Certification
• Any new or amended maintenance agreements required for the WORK are executed.
30. CITY will require the construction contractor to furnish payment and performance bonds naming CITY as obligee, and CALTRANS as additional obligee, and to carry liability insurance in accordance with CALTRANS Standard Specifications.
31. CITY will advertise, open bids, award, and approve the construction contract in accordance with the California Public Contract Code and the California Labor Code. By accepting responsibility to advertise and award the construction contract, CITY also accepts responsibility to administer the construction contract.
32. CALTRANS will not issue an encroachment permit to CITY's construction contractor until CALTRANS accepts:
• The payment and performance bonds
• The CONSTRUCTION Quality Management Plan
33. The CONSTRUCTION Quality Management Plan (QMP) will describe how construction material verification and workmanship inspections will be performed at manufacturing sources and the PROJECT job-site. The construction material and Source Inspection QMP (SIQMP) are subject to review and approval by the State Materials Engineer.
34. The CONSTRUCTION Quality Management Plan will address the radiation safety requirements of the California Code of Regulations 17 CCR § 30346 when the work requires Gamma-Gamma Logging acceptance testing for Cast in Drilled Hole (CIDH) pile or whenever else it is applicable. In accordance with these regulations, CITY , as the "well operator", will have a written agreement with any consultant or external entity performing these tests.
35. CITY will provide a Resident Engineer and CONSTRUCTION SUPPORT staff that are independent of the construction contractor. The Resident Engineer will be a Civil Engineer, licensed in the State of California, who is responsible for construction contract administration activities. CITY will provide a licensed Structure Representative with a minimum of 5 years of experience in administering bridge projects with CIDH piles 5-feet or greater in diameter, new bridge falsework over a highway, and shoring analysis greater than 5-feet in depth adjacent to traffic and construction equipment. Resident Engineer shall have experience in administering large transportation construction projects over $10 DRAFT Agreement No. 04-3020
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Million in bid cost. The Resident Engineer and Structure Representative shall be subject to the concurrence of CALTRANS prior to the start of WORK. CITY will provide a specialty engineer with a minimum of 5 years of experience in the construction of cable stay and/or steel bridge construction. The specialty engineer shall oversee all quality assurance aspects of the principal span from submittal approval process through final construction and acceptance of the superstructure by CALTRANS.
36. CALTRANS will review and concur with:
• Change Orders affecting public safety, public convenience, protected environmental resources, the preservation of property, all design and specification changes, and all major changes as defined in the CALTRANS Construction Manual. These Change Orders must receive written concurrence by CALTRANS prior to implementation. • The Stormwater Pollution Prevention Plan (SWPPP) or the Water Pollution Control Plan (WPCP).
• All temporary supports or falsework installed for the structure whether the supports lie within or outside of the State Highway System (SHS) right-of-way.
• All temporary shoring for any excavations greater than 5-feet in depth within the SHS right-of-way.
All temporary supports, falsework or temporary shoring shall be considered reviewed and approved prior to providing an electronic copy of agreed format to the State for concurrence. Drawings shall be signed by a Registered Engineer in the State of California acting on behalf of CITY . Once the plans are authorized to the contractor an electronic copy shall be transmitted to the State Oversight Engineer prior to construction of authorized plans.
37. CITY will administer and process all construction contract claims pursuant to the requirements set forth under Public Contract Code, Section 9204. In addition, all public works claims of $375,000 or less shall be resolved in accordance with Public Contract Code Section 20104, et seq. and other applicable laws.
38. CITY is designated as the Legally Responsible Person pursuant to the Construction General Permit, State Water Resources Control Board (SWRCB) Order Number 2009-0009-DWQ, as defined in Appendix 5, Glossary, and assumes all roles and responsibilities assigned to the Legally Responsible Person as mandated by the Construction General Permit. CITY is DRAFT Agreement No. 04-3020
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required to comply with the CALTRANS MS4 National Pollutant Discharge Elimination System (NPDES) permit for all work within the State Highway System.
39. As the CONSTRUCTION IMPLEMENTING AGENCY , CITY is responsible for maintenance of the State Highway System (SHS) within the PROJECT limits as part of the construction contract until the following conditions are met:
• Any required maintenance agreements are executed for the portions of SHS for which relief of maintenance is to be granted.
• CALTRANS approves a request from CITY for relief from maintenance of the PROJECT or a portion thereof.
40. CITY will ensure all necessary maintenance agreements will be executed and/or amended with CALTRANS.
41. Upon WORK completion, ownership or title to all materials and equipment constructed or installed for the operations and/or maintenance of the State Highway System (SHS) within SHS right-of-way as part of WORK become the property of CALTRANS.
CALTRANS will not accept ownership or title to any materials or equipment constructed or installed outside SHS right-of-way.
42. Within one hundred eighty (180) calendar days following the completion and acceptance of the PROJECT construction contract, CITY will furnish CALTRANS with a complete set of "As-Built" plans and Change Orders, including any changes authorized by CALTRANS, using an approved transfer mechanism, such as a CD ROM, flash drive, Filr. The submitted digital files must be completed in accordance with Caltrans specifications, policies, and manuals, including requirements in Sections 2 and 3, of Chapter 17 in the Project Development Procedures Manual, then current CADD User's Manual (Section 4.3), Plans Preparation Manual, and CALTRANS practice. The plans will have the Resident Engineer's name, contract number, and construction contract acceptance date printed on each plan sheet, and with the Resident Engineer's signature only on the title sheet. The As-Built plans will be in Microstation DGN format, version 8.0. When applicable, the digital submittal must also include high accuracy locating and underground facilities data. In addition, CITY will provide one set of As-Built plans and addenda in TIFF format.
The submittal must also include all CALTRANS requested contract records, and land survey documents. The land survey documents include monument preservation documents and records of surveys prepared to satisfy the requirements of the California Professional DRAFT Agreement No. 04-3020
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Land Surveyors' Act (Business and Professions Code, Sections 8700 – 8805). Copies of survey documents and Records of Surveys filed in accordance with Business & Professions Code, Sections 8762 and 8771, will contain the filing information provided by the county in which filed.
CITY shall submit shop drawings stamped as built for all steel and cable stay work for the principal bridge span and supports. The format shall be as required in the CALTRANS specifications.
CITY shall accurately measure and note the final vertical clearances for the structure at all low points within traveled ways, in accordance with CALTRANS procedures on the As- Built plans.
Schedule
43. PARTIES will manage the WORK schedule to ensure the timely use of committed funds and to ensure compliance with any environmental permits, right-of-way agreements, construction contracts, and any other commitments. PARTIES will communicate schedule risks or changes as soon as they are identified and will actively manage and mitigate schedule risks.
Additional Provisions
Standards
44. PARTIES will perform all WORK in accordance with federal and California laws, regulations, and standards; Federal Highway Administration (FHWA) standards; and CALTRANS standards. CALTRANS standards include, but are not limited to, the guidance provided in the:
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• CADD Users Manual
• CALTRANS policies and directives
• Plans Preparation Manual
• Project Development Procedures Manual (PDPM)
• Workplan Standards Guide
• Construction Manual
• Encroachment Permits Manual
• Construction Manual Supplement for Local Agency Resident Engineers • Local Agency Structure Representative Guidelines
• CALTRANS Bridge Construction Records and Procedures Manual • CALTRANS Falsework Manual
• CALTRANS Trenching and Shoring Manual
Noncompliant Work
45. CALTRANS retains the right to reject noncompliant WORK. CITY agrees to suspend WORK upon request by CALTRANS for the purpose of protecting public safety, preserving property rights, and ensuring that all WORK is in the best interest of the State Highway System.
Qualifications
46. Each PARTY will ensure that personnel participating in WORK are appropriately qualified or licensed to perform the tasks assigned to them.
Consultant Selection
47. CITY will invite CALTRANS to participate in the selection of any consultants that participate in the WORK.
Encroachment Permits
48. CALTRANS will issue, upon proper application, the encroachment permits required for WORK within State Highway System (SHS) right-of-way. CITY , their contractors, consultants, agents, and utility owners will not work within the SHS right-of-way without an encroachment permit issued by CALTRANS. CALTRANS will provide encroachment permits to CITY at no cost. CALTRANS will provide encroachment permits to utility owners at no cost. If the encroachment permit and this AGREEMENT conflict, the requirements of this AGREEMENT will prevail.
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49. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will coordinate, prepare, obtain, implement, renew, and amend any encroachment permits needed to complete the WORK.
Protected Resources
50. If any PARTY discovers unanticipated cultural, archaeological, paleontological, or other protected resources during WORK, all WORK in that area will stop and that PARTY will notify all PARTIES within 24 hours of discovery. WORK may only resume after a qualified professional has evaluated the nature and significance of the discovery and CALTRANS approves a plan for its removal or protection.
Disclosures
51. PARTIES will hold all administrative drafts and administrative final reports, studies, materials, and documentation relied upon, produced, created, or utilized for the WORK in confidence to the extent permitted by law and where applicable, the provisions of California Government Code, Section 7921.505(c)(5) will protect the confidentiality of such documents in the event that said documents are shared between PARTIES.
PARTIES will not distribute, release, or share said documents with anyone other than employees, agents, and consultants who require access to complete the WORK without the written consent of the PARTY authorized to release them, unless required or authorized to do so by law.
52. If a PARTY receives a public records request pertaining to the WORK, that PARTY will notify PARTIES within five (5) working days of receipt and make PARTIES aware of any disclosed public records.
Hazardous Materials
53. HM-1 is hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law, whether it is disturbed by the PROJECT or not.
HM-2 is hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by the PROJECT.
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The management activities related to HM-1 and HM-2, including and without limitation, any necessary manifest requirements and disposal facility designations are referred to herein as HM-1 MANAGEMENT and HM-2 MANAGEMENT respectively.
54. If HM-1 or HM-2 is found, the discovering PARTY will immediately notify all other PARTIES.
55. CALTRANS, independent of the PROJECT, is responsible for any HM-1 found within the existing State Highway System right-of-way. CALTRANS will undertake, or cause to be undertaken, HM-1 MANAGEMENT with minimum impact to the PROJECT schedule.
CALTRANS, independent of the PROJECT, will pay, or cause to be paid, the cost of HM-1 MANAGEMENT related to HM-1 found within the existing State Highway System right- of-way.
56. CITY , independent of the PROJECT, is responsible for any HM-1 found within the PROJECT limits and outside the existing State Highway System right-of-way. CITY will undertake, or cause to be undertaken, HM-1 MANAGEMENT with minimum impact to the PROJECT schedule.
CITY , independent of the PROJECT, will pay, or cause to be paid, the cost of HM-1 MANAGEMENT for HM-1 found within the PROJECT limits and outside of the existing State Highway System right-of-way.
57. The CONSTRUCTION IMPLEMENTING AGENCY is responsible for HM-2 MANAGEMENT within the PROJECT limits.
CITY and CALTRANS will comply with the Soil Management Agreement for Aerially Deposited Lead Contaminated Soils (Soil Management Agreement) executed between CALTRANS and the California Department of Toxic Substances Control (DTSC). Under Section 3.2 of the Soil Management Agreement, CALTRANS and CITY each retain joint and severable liability for noncompliance with the provisions of the Soil Management Agreement. CITY will assume all responsibilities assigned to CALTRANS in the Soil Management Agreement during PROJECT COMPONENTS for which they are the IMPLEMENTING AGENCY except for final placement and burial of soil within the State right-of-way, per Section 4.5 of the Soil Management Agreement, which is subject to CALTRANS concurrence and reporting to DTSC which will be performed by CALTRANS.
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58. CALTRANS' acquisition or acceptance of title to any property on which any HM-1 or HM- 2 is found will proceed in accordance with CALTRANS' policy on such acquisition.
Claims
59. CITY may accept, reject, compromise, settle, or litigate claims of any consultants or contractors hired to complete WORK without concurrence from the other PARTY .
60. PARTIES will confer on any claim that may affect the WORK or PARTIES' liability or responsibility under this AGREEMENT in order to retain resolution possibilities for potential future claims. No PARTY will prejudice the rights of another PARTY until after PARTIES confer on the claim.
61. If the WORK expends state or federal funds, each PARTY will comply with the Federal Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards of 2 CFR, Part 200. PARTIES will ensure that any for-profit consultant hired to participate in the WORK will comply with the requirements in 48 CFR, Chapter 1, Part 31. When state or federal funds are expended on the WORK these principles and requirements apply to all funding types included in this AGREEMENT.
Accounting and Audits
62. If the WORK expends state or federal funds, each PARTY will undergo an annual audit in accordance with the Single Audit Act in the Federal Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards as defined in 2 CFR, Part 200.
63. When a PARTY reimburses a consultant for WORK with state or federal funds, the procurement of the consultant and the consultant overhead costs will be in accordance with the Local Assistance Procedures Manual, Chapter 10.
Interruption of Work
64. If WORK stops for any reason, IMPLEMENTING AGENCY will place the PROJECT right-of-way in a safe and operable condition acceptable to CALTRANS.
65. If WORK stops for any reason, each PARTY will continue with environmental commitments included in the environmental documentation, permits, agreements, or approvals that are in effect at the time that WORK stops, and will keep the PROJECT in environmental compliance until WORK resumes.
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Penalties, Judgments and Settlements
66. The cost of awards, judgments, fines, interest, penalties, attorney's fees, and/or settlements generated by the WORK are considered WORK costs.
67. The cost of legal challenges to the environmental process or documentation are considered WORK costs.
68. Any PARTY whose action or lack of action causes the levy of fines, interest, or penalties will indemnify and hold all other PARTIES harmless per the terms of this AGREEMENT.
Project Files
69. CITY will furnish CALTRANS with the Project History Files related to the PROJECT facilities on State Highway System within sixty (60) days following the completion of each PROJECT COMPONENT. CITY will assure that the Project History File is prepared and submitted in compliance with the Project Development Procedures Manual, Chapter 7. All material will be submitted neatly in a three-ring binder and in PDF format.
Environmental Compliance
70. If during performance of WORK additional activities or environmental documentation is necessary to keep the PROJECT in environmental compliance, PARTIES will amend this AGREEMENT to include completion of those additional tasks.
GENERAL CONDITIONS
71. All portions of this AGREEMENT, including the RECITALS section, are enforceable.
Venue
72. PARTIES understand that this AGREEMENT is in accordance with and governed by the Constitution and laws of the State of California. This AGREEMENT will be enforceable in the State of California. Any PARTY initiating legal action arising from this AGREEMENT will file and maintain that legal action in the Superior Court of the county in which the CALTRANS district office that is signatory to this AGREEMENT resides, or in the Superior Court of the county in which the PROJECT is physically located.
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Exemptions
73. All CALTRANS' obligations and commitments under this AGREEMENT are subject to the appropriation of resources by the Legislature, the State Budget Act authority, programming and allocation of funds by the California Transportation Commission (CTC).
Indemnification
74. Neither CALTRANS nor any of its officers and employees, are responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY , its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CITY under this AGREEMENT. It is understood and agreed that CITY , to the extent permitted by law, will defend, indemnify, and save harmless CALTRANS and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by CITY , its contractors, sub- contractors, and/or its agents under this AGREEMENT.
75. Neither CITY nor any of its officers and employees, are responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CALTRANS under this AGREEMENT. It is understood and agreed that CALTRANS, to the extent permitted by law, will defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under this AGREEMENT.
Non-parties
76. PARTIES do not intend this AGREEMENT to create a third-party beneficiary or define duties, obligations, or rights for entities in PARTIES not signatory to this AGREEMENT.
PARTIES do not intend this AGREEMENT to affect their legal liability by imposing any standard of care for fulfilling the WORK different from the standards imposed by law.
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77. PARTIES will not assign or attempt to assign obligations to entities not signatory to this AGREEMENT without an amendment to this AGREEMENT.
Ambiguity and Performance
78. Neither PARTY will interpret any ambiguity contained in this AGREEMENT against the other PARTY . PARTIES waive the provisions of California Civil Code, Section 1654.
A waiver of a PARTY’s performance under this AGREEMENT will not constitute a continuous waiver of any other provision.
79. A delay or omission to exercise a right or power due to a default does not negate the use of that right or power in the future when deemed necessary.
Defaults
80. If any PARTY defaults in its performance of the WORK, a non-defaulting PARTY will request in writing that the default be remedied within thirty (30) calendar days. If the defaulting PARTY fails to do so, the non-defaulting PARTY may initiate dispute resolution.
Dispute Resolution
81. PARTIES will first attempt to resolve AGREEMENT disputes at the PROJECT team level as described in the Quality Management Plan. If they cannot resolve the dispute themselves, the CALTRANS District Director and the Executive Officer of CITY will attempt to negotiate a resolution. If PARTIES do not reach a resolution, PARTIES' legal counsel will initiate mediation. PARTIES agree to participate in mediation in good faith and will share equally in its costs.
Neither the dispute nor the mediation process relieves PARTIES from full and timely performance of the WORK in accordance with the terms of this AGREEMENT. However, if any PARTY stops fulfilling its obligations, any other PARTY may seek equitable relief to ensure that the WORK continues.
Except for equitable relief and/or to preserve the statute of limitations, no PARTY may file a civil complaint until after mediation, or forty-five (45) calendar days after filing the written mediation request, whichever occurs first.
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PARTIES will file any civil complaints in the Superior Court of the county in which the CALTRANS District Office signatory to this AGREEMENT resides or in the Superior Court of the county in which the PROJECT is physically located.
82. PARTIES maintain the ability to pursue alternative or additional dispute remedies if a previously selected remedy does not achieve resolution.
Prevailing Wage
83. When WORK falls within the Labor Code § 1720(a)(1) definition of "public works" in that it is construction, alteration, demolition, installation, or repair; or maintenance work under Labor Code § 1771, PARTIES will conform to the provisions of Labor Code §§ 1720-1815, and all applicable provisions of California Code of Regulations, Title 8, Division 1, Chapter 8, Subchapter 3, Articles 1-7. PARTIES will include prevailing wage requirements in contracts for public work and require contractors to include the same prevailing wage requirements in all subcontracts.
Work performed by a PARTY's own employees is exempt from the Labor Code's Prevailing Wage requirements.
If WORK is paid for, in whole or part, with federal funds and is of the type of work subject to federal prevailing wage requirements, PARTIES will conform to the provisions of the Davis-Bacon and Related Acts, 40 U.S.C. §§ 3141-3148.
When applicable, PARTIES will include federal prevailing wage requirements in contracts for public works. WORK performed by a PARTY's employees is exempt from federal prevailing wage requirements.
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SIGNATURES
PARTIES are authorized to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this AGREEMENT on behalf of the respective agencies and hereby covenants to have followed all the necessary legal requirements to validly execute this AGREEMENT. By signing below, the PARTIES each expressly agree to execute this AGREEMENT electronically.
The PARTIES acknowledge that executed copies of this AGREEMENT may be exchanged by facsimile or email, and that such copies shall be deemed to be effective as originals.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
Wajahat Nyaz
Deputy District Director, Design
Verification of Funds and Authority:
Jeffrey Kuehnel
Budget Manager
Certified as to financial terms and policies:
Percy Ramil
HQ Accounting Supervisor
HQ Legal Representative
HQ Legal Rep Title
CITY OF SANTA ROSA
Mark Stapp
Mayor
Attest:
Dina Manis
City Clerk
Hannah Ford-StilleAssistant City Attorney