CITY OF SIMI VALLEY
MEMORANDUM
Aug
ust 22, 2022
TO: City Council
FRO
M: Department of Public Works
SUBJECT: AWARD OF CONTRACT FOR THE CONSTRUCTION OF FY 2021 -22
ANNUAL MAJOR STREETS REHABILITATION PROGRAM,
(M
ADERA ROAD FROM STRATHEARN PLACE TO ROYAL AVENUE),
CP60000018, AND ADOPTION OF A RESOLUTION APPROVING
PROGRAM SUPPLEMENT NO. F 051 TO THE MASTER AGREEMENT
FOR
FEDERAL AID PROJECT NO. HIPL 5405
(093), SPECIFICATION NO. SV 22-2 0
RECOMMENDATION
It
is recommended that the City Council:
1. Award the attached contract (page 6) to Toro Enterprise, Inc. (Toro) in the amount of $1,243,776.61 for the cons truction of the FY 2021-2 2 A nnual Ma jor Streets Rehabilitation Program, Mader a Road from Strathear n Place to Royal Avenue, CP60000018, Specification No. SV 22-20, Federal Aid Project No. HIPL 5405 (093);
2. Adopt attached Resolution No. 2022-4 9 (page 13) appr oving Program Supplement No. F051 to the Master Agreement for Federal-A id Project No. HIPL 5405 (093), so the City can receive Federal funds (Attachment A to the Res olution, page 15).
BACKGROUND AND OVERVIEW
Staff recommends that the City Council award a construction contract to Toro in the amount of $1,243,776.61 for the construction of FY 2021- 22 Annual Major Streets Rehabilitation Program, Madera Road from Strathearn Place to Royal Avenue, CP60000018, Specification No. SV 22- 20, Federal Aid Project No. HIPL 5405 ( 093), (Location Map, Attachment A, page 5) and adopt Resolution No. 2022-49 approving Program Supplement No. F051 to the Master Agreement s o that the City can receive Federal funds.
On June 27 , 2022, the Public Works Department solicited construction bids for the rehabilitation of Madera Road. Improvements consist of rubberized asphalt overlay, concrete repair of curb, gutter, sidewalk, tree root pruning, traffic signing and striping, and all appurtenant work in conjunction with street improvements. Of the bids received, the bid from Toro Enterprises, Inc. was the most responsive and cost competitive.
A2279.SR.JD
AGENDA ITEM NO.
Consent (6)
A2279.SR.JD
A Master Agreement is in place with the State of California Department of Transportation (Caltrans), which enables the City to receive Federal funds under the Federal Aid Program. For each specific project, the City must enter into a Supplemental Agreement with Caltrans to receive the funds under this Master Agreement, and adopt a resolution approving the Supplemental Agreement. Federal funds in the amount of $1,300,000 has been approved for this project.
FINDINGS AND ALTERNATIVES
A
Notice Inviting Bids was published in the Ventura County Star and was also submitted to various publications and plan rooms. A Notice was also emailed to the contractors on the City’s contractors’ list, including local contractors, and was posted on the City’s website.
On
July 27, 2022, the bid opening date, three bids were received and the results are shown in the table below:
Contractor Bid Amount
Toro Enterprises Inc.
Oxnard, CA
$1,243,776.61
All American Asphalt
Corona, CA
$1,543,871.61
Granite Construction Company,
Ventura, CA
$1,614,440.00
Engineer’s Estimate $1,300,000.00
S
taff reviewed the bids received and determined that the lowest bid submitted by Toro Enterprises, Inc. (Toro) to be responsive and cost competitive. Based on Toro’s previous work accomplishments, staff believes that Toro possesses the necessary qualifications and experience for the construction of the project, and is considered to be a responsible bidder.
A
dditionally, construction materials testing and inspection services will be required during the construction of this project. The Department is in the process of receiving cost proposals for this service. Staff estimate construction materials testing and inspection costs to be $25,000.
O
n the basis of awarding a construction contract to Toro, the total project cost is estimated as follows:
Construction Bid Amount (Toro) $1,243,776.61
Soils/Materials Testing and Inspection Services $25,000.00 Total Project Cost $1,268,776.61
2 A2279.SR.JD
Although Federal funds will provide funding for this project through the State, s ufficient funding is available in the FY 2022-23 Streets and Road budget.
B
ased on an award date of August 22 2022, construction will start in early September of 2022, and completion of the project is anticipated by end of October 2022.
T
raffic control to minimize inconvenience will be monitored closely during construction, and the contractor will be required to maintain sufficient traffic flow, pedestrian access, and access to private properties.
T
he following alternatives are available to the City Council:
1. Award the attached contract to Toro Enterprises, Inc. in the amount of $1,243,776.61 for the cons truction of the FY 2021-2 2 Annual Major Streets Rehabilitation Program, Madera Road from S trathearn Place to Royal Avenue, CP60000018, Specification No. SV 22-20, Federal Aid Project No. HIPL 5405 (093);
2. Adopt attached Resolution No. 2022-49 approving Program Supplement No. F0 51 to the Master Agreement for Federal-A id Project No. HIPL 5405 (093), so that the City can receive Federal funds (Attachment A to the Res olution).
3. Do not award the contract at this time and provide other direction to staff.
S
taff recommends Alternatives Nos. 1 and 2.
SUGGESTED CITY COUNCIL MOTION
I
move to award a construction contract to Toro Enterprises , Inc. in the amount of $1,243,776.61 for the construction of FY 2021- 22 Annual Major Streets Rehabilitation Program, Madera Road from Strathearn Place to Royal Avenue, CP60000018, Specification No. SV 22- 20, Federal Aid Project No. HIPL 5405 (093), and adopt Resolution No. 2022- 49 approving Program Supplement No. F051 to the Master Agreement so that the City can receive Federal funds.
3 A2279.SR.JD
SUMMARY
On
June 27, 2022, the Public Works Department solicited bids for the construction of the FY 2021-22 Annual Major Streets Rehabilitation Program, Madera Road from Strathearn Place to Royal Avenue, CP60000018, Specification No. SV 22- 20, Federal Aid Project No. HIPL 5405 (093). Toro Enterprises, Inc., submitted the lowest responsive and responsible bid. Therefore, it is recommended that the City Council award a contract to Toro Enterprises, Inc., in the amount of $1,243,776.61 for construction of the project and adopt a resolution approving Program Supplement No. F051 to the Master Agreement. ___
_________________________________
Ronald K. Fuchiwaki
Public Works Director
P
repared by: Fuad Shamout, Senior Engineer
INDEX Page
Attachment A – Location Map.................................................................5 Contract...................................................................................................6 Resolution No. 2022-49.........................................................................13 Attachment A to Resolution – Program Supplement No. F051.............15 4 DEPARTMENT OF PUBLIC WORKS
CITY OF SIMI VALLEY
ATTACHMENT A
5 A2279.CON.JD
CONTRACT BETWEEN THE CIT Y OF SIMI VALLEY AND
TORO ENTERPRISES, INC. FOR FY 2021-22 ANNUAL MAJOR
STREETS REHABILITATION PROGRAM: MADERA ROAD
(STRATHEARN PLACE TO ROYAL AVENUE), CP60000018,
FEDERAL AID PROJECT NO. HIPL 5405 (093) ,
SPECIFICATION NO. SV 22-20
THIS CONTRACT is made and entered into in the City of Simi Valley on this 22nd day of August 2022, by and between the CITY OF SIMI VALLEY, a municipal corporation, hereinafter referred to as CITY, and TORO ENTERPRISES, INC. a California corporation, hereinafter referred to as CONTRACTOR.
RECITALS
WHEREAS, on June 27, 2022, CITY invited bids for the FY 2021-22 Annual Major Streets Rehabilitation Program: Madera Road (Strathearn Place to Royal Avenue), CP60000018, Federal Aid Project No. HIPL 5405 (093) per Specification No. SV 22-20; and
WHEREAS, pursuant to said invitation, CONTRACTOR submitted a Proposal which was accepted by CITY for said project.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are true and correct and are a part of this CONTRACT.
2. Term. The term of this CONTRACT shall be from the date this CONTRACT is made and entered, as first written above, and shall be completed no later than 40 consecutive working days after the receipt of the Notice to Proceed and final acceptance of all work by the City.
3. Incorporation By Reference. Public Contract Code Section 22300, Specification No. SV 22-20, consisting of 273 pages and all documents incorporated by reference therein, and the CONTRACTOR'S Bid consisting of the CONTRACTOR’S Proposal Statement, Proposed Schedule of Work and Prices, and Bidder’s Statement of Subcontractors and Material Fabricators, are hereby incorporated by reference and made a part of this CONTRACT.
4. Precedence of CONTRACT Documents . If there is a conflict between or among CONTRACT documents, the document highest in precedence shall control. The precedence shall be:
6 A2279.CON.JD
First: This Document consisting of 43 pages excluding paragraph 3 Second: Permits from other agencies as may be required by law Third: Special Provisions
Fourth: Bid Terms and Conditions
Fifth: Detailed Plans
Sixth: Standard Plans
Seventh: Standard Specifications Modifications
Eighth: "Standard Specifications for Public Works Construction" (SSPWC)
Ninth: Reference Specifications
Tenth: CONTRACTOR'S Proposal
Change orders, supplemental agreements, and approved revisions to plans and specifications become a part of item First.
5. Obligations of the CITY
.
A. The CITY shall be obligated to pay CONTRACTOR based
upon the actual City -authorized quantities in place and the unit and/or lump sum prices bid by CONTRACTOR, including but not limited to all labor, material and equipment, rather than the CONTRACT bid price.
B. CITY shall make regular progress payments to the
CONTRACTOR within 30 days after mutual concurrence with the unit quantities and/or lump sum items of work performed, subject to applicable retention requirements. In no event shall the total amount paid exceed the CONTRACT bid price of $1,243,776.61 unless otherwise agreed to by the parties in writing.
C. Upon receipt of an invoice for work performed to CITY'S satisfaction, CITY shall make progress payments within thirty (30) days of receipt of invoice. If the work is not performed satisfactorily or the invoice is defective, CITY shall notify CONTRACTOR, in writing, of the reasons within seven (7) days of receipt of invoice.
The intent of this Section is to comply with Public Contract Code Section 20104.50.
6. Obligations of the CONTRACTOR
.
A. CONTRACTOR shall perform as required by this
CONTRACT. CONTRACTOR agrees to perform the services more specifically set forth in the “Scope of Work” attached hereto and incorporated herein as Exhibit “A” and as further described in the incorporated documents. CONTRACTOR also warrants on behalf of itself and all subcontractors engaged for the performance of this CONTRACT that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder.
B. CONTRACTOR shall obey all Federal, State, local, and special district laws, ordinances, and regulations.
7 A2279.CON.JD
C. CONTRACTOR shall abide by the CITY’S Business Tax
Ordinance, of which proof of payment must be obtained prior to performance of this CONTRACT. CONTRACTOR shall maintain a valid Business Tax Certificate for the term of the CONTRACT.
D. Prevailing wage: In addition to any applicable federal requirements, the CONTRACTOR shall comply with all applicable California laws related to prevailing wage, including but not limited to California Labor Code 1720 et seq. and all other California prevailing wage laws and regulations, and all requirements, regulations or decisions of the California Department of Industrial Relations related thereto.
CONTRACTOR further stipulates to follow all requirements and pay any penalties due, if any, under Section 1813 of the California Labor Code. The CONTRACTOR shall post the prevailing rate per diem wages at each job site. Further CONTRACTOR shall indemnify, defend, and hold CITY harmless from any claim that prevailing wages should have been paid pursuant to this CONTRACT, including federal prevailing wage requirements under the Davis-Bacon Act, if applicable and shall be liable for the payment of same and any penalties thereon. CONTRACTOR is responsible for paying all legally required prevailing wages, and in the case of a difference between state and Federal law, the highest legally required rate. CITY has provided the most recent Federal Prevailing Wage rates of which CITY is aware, General Decision No. CA 20220015 dat ed 04/29/2022, as set forth in Exhibit “B”, which is attached hereto and incorporated herein, and CONTRACTOR shall pay at a minimum these rates, or any such replacement or successor rates as published by the Federal government, unless federal law would not require CONTRACTOR to pay such replacement or successor rates.
CONTRACTOR and all subcontractors must be registered
and remain registered with DIR (Department of Industrial Relations) through the term of the CONTRACT in accordance with the California Labor Code (“Labor Code”), in particular Labor Code Section 1771.1, and any successor or replacement provision thereto, unless a small project exemption applies ($25,000 for public works or $15,000 for maintenance). CONTRACTOR further agrees that it will follow all requirements and obligations set forth in Labor Code Section 1776.
7. Audit.
A. At any time during normal business hours and as often as the CITY may deem necessary, CONTRACTOR shall make available to CITY for inspection its records pertaining to this CONTRACT. CONTRACTOR shall permit CITY to audit, examine and/or reproduce such records. CONTRACTOR will retain such financial records, time sheets, work progress reports, invoices, bills and project records for at least two (2) years after termination or final payment under this CONTRACT. This paragraph shall survive for two (2) years after termination of this CONTRACT.
B. CITY shall have the option of inspecting and/or auditing all records and other written materials used by CONTRACTOR in preparing its statements to CITY as a condition precedent to any payment to CONTRACTOR.
8 A2279.CON.JD
8. Hold Harmless and Indemnification . CONTRACTOR shall defend, indemnify, and hold harmless CITY, its agents, officials, officers, representatives, and employees, from and against all claims, lawsuits, liabilities or damages of whatever nature arising out of or in connection with, or relating in any manner to any act or omission of CONTRACTOR, its agents, employees, and subcontractors, and employees thereof, pursuant to the performance or non- performance of this CONTRACT. The CONTRACTOR shall thoroughly investigate any and all claims and indemnify the CITY and do whatever is necessary to protect the CITY, its agents, officials, officers, representatives, and employees as to any such claims, lawsuits, liabilities, expenses, or damages arising out of this CONTRACT. The CITY shall be included as an Additional Insured in the automobile/liability insurance policies and endorsements of the CONTRACTOR. The CONTRACTOR must se lect an attorney acceptable to the CITY who will defend such proceeding and the CITY will control any litigation thereof. Such approval by the CITY will not be unreasonably withheld. This paragraph shall survive the termination of the CONTRACT.
9. Amendments. Any amendment, modification, or variation from the terms of this CONTRACT shall be in writing and shall be effective only upon mutual written approval by the Director of Public Works and CONTRACTOR.
10. Anti-Discrimination. In the performance of the terms of this CONTRACT, CONTRACTOR shall not engage in, nor permit subcontractors to engage in, discrimination in employment of persons because of the age, race, color, religious creed, sex, sexual orientation, national origin, ancestry, physical disability, mental disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735.
11. Termination. If, during the term of this CONTRACT, CITY determines that CONTRACTOR is not faithfully abiding by any term or condition contained herein, CITY may notify CONTRACTOR in writing of such defect or failure to perform. The notice must give to the CONTRACTOR a ten (10) day period of time thereafter in which to perform said work or cure the deficiency. If CONTRACTOR has not performed the work or cured said deficiency within the ten (10) days specified in the notice, such failure shall constitute a breach of this CONTRACT, and CITY may terminate this CONTRACT immediately by written notice to CONTRACTOR to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under this CONTRACT except, however, any and all obligations of CONTRACTOR'S surety shall remain in full force and effect and shall not be extinguished, reduced, or in any manner waived by the termination hereof. In said event, CONTRACTOR shall be entitled to the reasonable value of its services performed from the beginning of the period in which the breach occurs up to the day it received CITY'S Notice of Termination, minus any damages, including liquidated damages if so provided herein, occasioned by such breach. CITY reserves the right to delay any such payment until completion or confirmed abandonment of the project, as may be determined in the CITY'S sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall CONTRACTOR be entitled to receive in excess of the compensation quoted in its bid.
9 A2279.CON.JD
12. Insurance. CONTRACTOR shall, prior to commencing performance hereunder, submit proof of all insurance coverage as required by the Specification or other document incorporated in and made a part of this CONTRACT.
13. Federal Forms and Requirements . CONTRACTOR shall comply with federal funding (FHWA) and Caltrans requirements as outlined in form FHWA-1273, as set forth in Exhibit “C”, attached hereto and incorporated herein.
14. Complete CONTRACT
. This CONTRACT shall constitute the
complete CONTRACT between the parties hereto. No verbal agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such verbal agreement, understanding, or representation be binding upon the parties hereto.
15. Independent Contractor. It is expressly understood between the parties to this CONTRACT that no employee/employer relationship is intended; CONTRACTOR is an independent contractor.
16. Time of Performance
. Time is of the essence in this CONTRACT.
17. Liquidated Damages. Should the CONTRACTOR fail to complete the project, or any part thereof, in the time agreed upon in the CONTRACT or within such extra time as may have been allowed for delays or extensions granted as provided in the CONTRACT, the CONTRACTOR shall reimburse the CITY for the additional expense and damage for each calendar day that the CONTRACT remains uncompleted after the CONTRACT completion date. It is agreed that the amount of such additional expense and damage incurred by reason of failure to complete the CONTRACT is the per diem rate $1,500 per calendar day. Such amounts are hereby agreed upon as liquidated damages for the loss to the CITY resulting from the failure of the CONTRACTOR to complete the project within the allotted time and to the value of the operation of the works dependent thereon.
It is expressly understood and agreed that this amount is a reasonable amount and is established in lieu of damages which are incapable of calculation at the inception hereof; and this amount is not to be considered in the nature of a penalty. The CITY shall have the right to deduct such damages from any amount due, or that may become due to the CONTRACTOR, or the amount of such damages shall be due and collectible from the CONTRACTOR or the CONTRACTOR'S Surety.
Progress payments made after the scheduled completion date shall not constitute a waiver of liquidated damages.
18. Conflict of Interest
. Neither CONTRACTOR nor any employees,
agents, or subcontractors of CONTRACTOR who will be assigned to this project, to the best of CONTRACTOR'S knowledge, own any property or interest in properties, business relationships, or sources of income which may be affected by the performance of this CONTRACT. Should one party hereto learn of any such interest, income source, or business relationship, such fact shall immediately be brought to the attention of the other 10 A2279.CON.JD
party hereto. If the parties thereupon cannot mutually agree upon a means to eliminate the conflict, CITY may terminate the CONTRACT immediately for non- performance pursuant to Section 11 herein.
19. Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto; provided, however, that no party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of law, without the prior written consent of the other party, and any such assignment without said consent shall be void.
20. Authority to Execute Contract. Both CITY and CONTRACTOR do covenant that each individual executing this CONTRACT on behalf of each party is a person duly authorized and empowered to execute contracts for such party.
21. Jurisdiction and Venue . Jurisdiction is in an appropriate court in the State of California and venue lies in Ventura County, and the parties do not consent to arbitration. In the event of any dispute, each party shall bear its own fees and costs (including attorneys’ fees). This CONTRACT shall be governed by California law, without regard to conflict of law principles.
22. Non-Appropriation of Funds
. Payments due and payable to
CONTRACTOR for current goods and/or services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY. In the event CITY has not appropriated sufficient funds for payment of goods and/or services beyond the current fiscal year, this CONTRACT shall cover only those costs incurred up to the conclusion of the current fiscal year.
23. Notices
. All written notices required by, or related to this
CONTRACT shall be sent by Certified Mail, Return Receipt Requested, postage prepaid and addressed as listed below. Neither party to this CONTRACT shall refuse to accept such mail; the parties to this CONTRACT shall promptly inform the other party of any change of address. All notices required by this CONTRACT are effective on the day of receipt, unless otherwise indicated her ein. The mailing address of each party to this CONTRACT is as follows:
CITY Ronald K. Fuchiwaki, Public Works Director
Department of Public Works
2929 Tapo Canyon Road
Simi Valley, CA 93063
Staff Contact: Fuad Shamout, Senior Engineer
(805) 583-6788
11 A2279.CON.JD
CONTRACTOR Toro Enterprises, Inc.
2101 East Ventura Boulevard
Oxnard, California 93036
Staff Contact: Sean Castillo, President
(805) 483-4515
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written.
Attest: City of Simi Valley, A Municipal Corporation
By:
Lucy Blanco, City Clerk Keith L. Mashburn, Mayor of the City of Simi Valley, California
Approved as to Form: Toro Enterprises, Inc.
By:
David L. Caceres, City Attorney
Print Name:
Approved as to Content: Title:
By:
Brian Paul Gabler, City Manager
Print Name:
Title:
Carolyn Johnson
Administrative Services Director
Ronald K. Fuchiwaki
Public Works Director
12 A2279.RES.JD
RESOLUTION NO. 2022-49
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SIMI VALLEY ADOPTING PROGRAM SUPPLEMENT
NO. F051 TO ADMINISTERING AGENCY -STATE
AGREEMENT NO. 07 -5405F15 FOR THE MAJOR STREET S
REHABILITATION PROJECT
WHEREAS, pursuant to the modified Master Agreement Administering Agency-State Agreement No. 07- 5405F15, with the State of California for Federal Aid Projects, the City of Simi Valley has applied for Federal monies for the construction of the Major Streets Rehabilitation Project; and
WHEREAS, Caltrans has reviewed and found the subject project eligible for Federal funding; and
WHEREAS, Program Supplement No. F051 to the Administering Agency-State Agreement No. 07- 5405F15 outlines the conditions and covenants of Federal funding for the subject project; and
WHEREAS, the City Council is desirous of approving and accepting Program Supplement No. F051 to Administering Agency -State Agreement No. 07-5405F15.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SIMI VALLEY DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The above recitals are true and correct.
SECTION 2 . Program Supplement No. F0 51 to Administering Agency-State Agreement No. 07- 5405F15 for Federal -Aid Project, attached hereto as Attachment A, is hereby approved and accepted by the City of Simi Valley, and the Mayor is authorized to execute the Program Supplement on behalf of the City.
13 RES NO. 2022-49
A2279.RES.JD
SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the Office of the City Clerk.
PASSED and ADOPTED this 22nd day of August 2022.
Attest:
Lucy Blanco, City Clerk Keith L. Mashburn, Mayor of the City of Simi Valley, California
Approved as to Form: Approved as to Content:
David L. Caceres, City Attorney Brian Paul Gabler, City Manager
Ronald K. Fuchiwaki
Public Works Director
14 F051
FOR FEDERAL-AID PROJECTS NO 07-5405F15
0722000231 07-VEN-0-SIMV
HIPL-5405(093)
5405
This Program Supplement hereby adopts and incorporates the Administering Agency-State Agreement for Federal Aid which was entered into between the Administering Agency and the State on 09/20/2016 and is subject to all the terms and conditions thereof. This Program Supplement is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No. approved by the Administering Agency on (See copy attached).
The Administering Agency further stipulates that as a condition to the payment by the State of any funds derived from sources noted below obligated to this PROJECT, the Administering Agency accepts and will comply with the special covenants or remarks set forth on the following pages.
MADERA ROAD FROM STRATHERAN PLACE TO ROYAL AVENUE
PAVEMENT REHABILITATION CONSISTING OF GRIND,
OVERLAY AND DIG OUTS.
0.0(MILES)
Federal Funds
Estimated Cost Matching Funds
Z911 $283,999.00
Z905 $197,046.00
Z910 $395,329.00
Z919 $423,626.00
CITY OF SIMI VALLEY
By ________________________________ By ________________________________ Title _______________________________
Date _______________________________
Attest _______________________________ Date _______________________________ Division of Local Assistance
I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance:
Accounting Officer _______________________ Date _______________ PROGRAM SUPPLEMENT NO.
to
ADMINISTERING AGENCY-STATE AGREEMENT
Adv. Project ID Date:
Location:
Project Number:
E.A. Number:
Locode:
PROJECT LOCATION:
TYPE OF WORK: LENGTH:
LOCAL OTHER
$1,360,000.00 $0.00 $60,000.00
Chief, Office of Project Implementation
STATE OF CALIFORNIA
Department of Transportation
$1,300,000.00
1 Page of 7Program Supplement 07-5405F15-F051- ISTEA
05/12/2022
ATTACHMENT A
May 12, 2022
RES. NO. 2022-49
15 SPECIAL COVENANTS OR REMARKS
07-VEN-0-SIMV
HIPL-5405(093)
1. A. The ADMINISTERING AGENCY will advertise, award and administer this project in accordance with the current published Local Assistance Procedures Manual.
B. ADMINISTERING AGENCY agrees that it will only proceed with work authorized for specific phase(s) with an "Authorization to Proceed" and will not proceed with future phase(s) of this project prior to receiving an "Authorization to Proceed" from the STATE for that phase(s) unless no further State or Federal funds are needed for those future phase(s).
C. STATE and ADMINISTERING AGENCY agree that any additional funds which might be made available by future Federal obligations will be encumbered on this PROJECT by use of a STATE-approved "Authorization to Proceed" and Finance Letter. ADMINISTERING AGENCY agrees that Federal funds available for reimbursement will be limited to the amounts obligated by the Federal Highway Administration.
D. Award information shall be submitted by the ADMINISTERING AGENCY to the District Local Assistance Engineer within 60 days of project contract award and prior to the submittal of the ADMINISTERING AGENCY'S first invoice for the construction contract.
Failure to do so will cause a delay in the State processing invoices for the construction phase.
Attention is directed to Section 15.7 "Award Package" of the Local Assistance Procedures Manual.
E. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices at least once every six months commencing after the funds are encumbered for each phase by the execution of this Project Program Supplement Agreement, or by STATE's approval of an applicable Finance Letter. STATE reserves the right to suspend future authorizations/obligations for Federal aid projects, or encumbrances for State funded projects, as well as to suspend invoice payments for any on-going or future project by ADMINISTERING AGENCY if PROJECT costs have not been invoiced by ADMINISTERING AGENCY for a six-month period.
If no costs have been invoiced for a six-month period, ADMINISTERING AGENCY agrees to submit for each phase a written explanation of the absence of PROJECT activity along with target billing date and target billing amount.
ADMINISTERING AGENCY agrees to submit the final report documents that collectively constitute a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Failure of ADMINISTERING AGENCY to submit a "Final Report of Expenditures" within 180 days of PROJECT completion will result in STATE imposing sanctions upon ADMINISTERING AGENCY in accordance with the current Local Assistance Procedures Manual.
2 Page of 7Program Supplement 07-5405F15-F051- ISTEA
RES. NO. 2022-49
16 SPECIAL COVENANTS OR REMARKS
07-VEN-0-SIMV
HIPL-5405(093)
F. Administering Agency shall not discriminate on the basis of race, religion, age, disability, color, national origin, or sex in the award and performance of any Federal-assisted contract or in the administration of its DBE Program Implementation Agreement. The Administering Agency shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of Federal-assisted contracts. The Administering Agency's DBE Implementation Agreement is incorporated by reference in this Agreement. Implementation of the DBE Implementation Agreement, including but not limited to timely reporting of DBE commitments and utilization, is a legal obligation and failure to carry out its terms shall be treated as a violation of this Agreement. Upon notification to the Administering Agency of its failure to carry out its DBE Implementation Agreement, the State may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
G. Any State and Federal funds that may have been encumbered for this project are available for disbursement for limited periods of time. For each fund encumbrance the limited period is from the start of the fiscal year that the specific fund was appropriated within the State Budget Act to the applicable fund Reversion Date shown on the State approved project finance letter. Per Government Code Section 16304, all project funds not liquidated within these periods will revert unless an executed Cooperative Work Agreement extending these dates is requested by the ADMINISTERING AGENCY and approved by the California Department of Finance.
ADMINISTERING AGENCY should ensure that invoices are submitted to the District Local Assistance Engineer at least 75 days prior to the applicable fund Reversion Date to avoid the lapse of applicable funds. Pursuant to a directive from the State Controller's Office and the Department of Finance; in order for payment to be made, the last date the District Local Assistance Engineer can forward an invoice for payment to the Department's Local Programs Accounting Office for reimbursable work for funds that are going to revert at the end of a particular fiscal year is May 15th of the particular fiscal year. Notwithstanding the unliquidated sums of project specific State and Federal funding remaining and available to fund project work, any invoice for reimbursement involving applicable funds that is not received by the Department's Local Programs Accounting Office at least 45 days prior to the applicable fixed fund Reversion Date will not be paid. These unexpended funds will be irrevocably reverted by the Department's Division of Accounting on the applicable fund Reversion Date.
H. As a condition for receiving federal-aid highway funds for the PROJECT, the Administering Agency certifies that NO members of the elected board, council, or other key decision makers are on the Federal Government Exclusion List. Exclusions can be found at www.sam.gov. 3 Page of 7Program Supplement 07-5405F15-F051- ISTEA
RES. NO. 2022-49
17 SPECIAL COVENANTS OR REMARKS
07-VEN-0-SIMV
HIPL-5405(093)
2. A. ADMINISTERING AGENCY shall conform to all State statutes, regulations and procedures (including those set forth in the Local Assistance Procedures Manual and the Local Assistance Program Guidelines, hereafter collectively referred to as "LOCAL ASSISTANCE PROCEDURES") relating to the federal-aid program, all Title 23 Code of Federal Regulation (CFR) and 2 CFR Part 200 federal requirements, and all applicable federal laws, regulations, and policy and procedural or instructional memoranda, unless otherwise specifically waived as designated in the executed project-specific PROGRAM SUPPLEMENT.
B. Invoices shall be formatted in accordance with LOCAL ASSISTANCE PROCEDURES.
C. ADMINISTERING AGENCY must have at least one copy of supporting backup documentation for 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.
D. Indirect Cost Allocation Plan/Indirect Cost Rate Proposals (ICAP/ICRP), Central Service Cost Allocation Plans and related documentation are to be prepared and provided to STATE (Caltrans Audits & Investigations) for review and approval prior to ADMINISTERING AGENCY seeking reimbursement of indirect costs incurred within each fiscal year being claimed for State and federal reimbursement. ICAPs/ICRPs must be prepared in accordance with the requirements set forth in 2 CFR, Part 200, Chapter 5 of the Local Assistance Procedural Manual, and the ICAP/ICRP approval procedures established by STATE.
E. STATE will withhold the greater of either two (2) percent of the total of all federal funds encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGENCY submits the Final Report of Expenditures for each completed PROGRAM SUPPLEMENT PROJECT.
F. 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 rank and file STATE employees under current State Department of Personnel Administration (DPA) rules. If the rates invoiced by ADMINISTERING AGENCY are in excess of DPA 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 within thirty (30) days of such invoice. 4 Page of 7Program Supplement 07-5405F15-F051- ISTEA
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G. ADMINISTERING AGENCY agrees to comply with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards.
H. 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.
I. Every sub-recipient receiving PROJECT funds under this AGREEMENT shall comply with 2 CFR, Part 200, 23 CFR, 48 CFR Chapter 1, Part 31, Local Assistance Procedures, Public Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non-A&E services), and other applicable STATE and FEDERAL regulations.
J. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 200, 23 CFR, 48 CFR, Chapter 1, Part 31, and other applicable STATE and FEDERAL regulations, are subject to repayment by ADMINISTERING AGENCY to STATE.
K. 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 the following paragraph:
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, PROGRAM SUPPLEMENT, and contract materials available at their respective offices at all reasonable times during the entire PROJECT period and for three (3) years from the date of submission of the final expenditure report by the STATE to the FHWA.
L. 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
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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 set to or paid by STATE.
M. ADMINISTERING AGENCY is required to have an audit in accordance with the Single Audit Act of 2 CFR 200 if it expends $750,000 or more in Federal Funds in a single fiscal year of the Catalogue of Federal Domestic Assistance.
N. ADMINISTERING AGENCY agrees to include all PROGRAM SUPPLEMENTS adopting the terms of this AGREEMENT in the schedule of projects to be examined in ADMINISTERING AGENCY's annual audit and in the schedule of projects to be examined under its single audit prepared in accordance with 2 CFR, Part 200.
O. ADMINISTERING AGENCY shall not award a non-A&E contract over $5,000, construction contracts over $10,000, or other contracts over $25,000 [excluding professional service contracts of the type which are required to be procured in accordance with Government Code sections 4525 (d), (e) and (f)] on the basis of a noncompetitive negotiation for work to be performed under this AGREEMENT without the prior written approval of STATE. Contracts awarded by ADMINISTERING AGENCY, if intended as local match credit, must meet the requirements set forth in this AGREEMENT regarding local match funds.
P. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREEMENT shall contain provisions B, C, F, H, I, K, and L under Section 2 of this agreement.
3. In the event that right of way acquisition for or construction of this project of the initial federal authorization for preliminary engineering is not started by the close of the tenth fiscal year following the fiscal year in which the project is authorized, the ADMINISTERING AGENCY shall repay the Federal Highway Administration through Caltrans the sum of Federal funds paid under the terms of this agreement.
4. Appendix E of the Title VI Assurances (US DOT Order 1050.2A) During the performance of this agreement, the ADMINISTERING AGENCY, ADMINISTERING AGENCY'S contractors and subcontractor, (hereinafter referred to as the "contractor") agrees to comply with the following nondiscrimination statutes and authorities; including but not limited to:
Pertinent Nondiscrimination Authorities:
A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
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1970, (42 U.S.C. 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); C. Federal-Aid Highway Act of 1973, (23 U.S.C. 324 et seq.), (prohibits discrimination on the basis of sex);
D. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; E. The Age Discrimination Act of 1975, as amended, (42 U.S.C. 6101 et seq.), (prohibits discrimination on the basis of age);
F. Airport and Airway Improvement Act of 1982, (49 U.S.C. 4 71, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); G. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or
activities" to include all of the programs or activities of the Federal-aid recipients, subrecipients and contractors, whether such programs or activities are Federally funded or not);
H. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; I. The Federal Aviation Administration's Nondiscrimination statute (49 U.S.C. 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); J. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; K. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
L. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). 7 Page of 7Program Supplement 07-5405F15-F051- ISTEA
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