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Sourcewell Contract # 101223-AXN | Amendment #1
AMENDMENT #1
TO
CONTRACT # 101223-AXN
THIS AMENDMENT is effective upon the date of the last signature below (Effective Date) by and between Sourcewell and Axon Enterprise, Inc. (Supplier), collectively referred to as “parties.” Sourcewell awarded a contract to the Supplier to provide Public Safety Video Surveillance Solutions with Related Equipment, Software and Accessories to Sourcewell and its Participating Entities, effective February 6, 2024, through December 15, 2027 (Contract).
Supplier requested that its Canadian affiliate, Axon Public Safety Canada, Inc., be named as an additional Contract holder.
Therefore, the parties agree that as of the effective date of this Amendment, the named Contract holder “Axon Enterprise, Inc.” in Contract # 101223-AXN will be replaced with “Axon Enterprise, Inc. and it's Canadian affiliate Axon Public Safety Canada, Inc.” Except as amended by this Amendment, the Contract remains in full force and effect.
Sourcewell Axon Enterprise, Inc. and it's Canadian
affiliate Axon Public Safety Canada, Inc.
By: By:
Jeremy Schwartz, Chief Procurement Officer Robert Driscoll, VP, Assoc. General Counsel Date: Date:
Agenda Item 5
CITY OF YUBA CITY
STAFF REPORT
Date: March 18, 2025
To: Honorable Mayor & Members of the City Council;
From: Development Services Department
Presentation By: Doug Libby, Deputy Director of Development Services Summary
Subject: Reconnecting Communities and Neighborhoods Grant Agreement - Signing Authority
Recommendation: Adopt a Resolution with the following actions:
A. Authorize the City Manager to enter into a Subrecipient Agreement with Sacramento Area Council of Governments to receive $750,000 in grant funding for the Reconnecting Communities and Neighborhoods Grant through the US Department of Transportation and;
B. Authorize the Finance Director to make a supplemental appropriation of $250,000 to CIP account 941353, and $500,000 to CIP account 941354 to receive grant funds
Fiscal Impact: The $750,000 in grant funds will be used as follows:
- $250,000 to Public Works for a SR20 Bike/Pedestrian Crossing Feasibility study, and
- $500,000 to Development Services for the Central City Specific Plan Update and Green Zone Objective Design Standards
Purpose:
To authorize the City Manager and City staff to enter into an Agreement with the Sacramento Area Council of Governments (SACOG) and receive $750,000 in grant funding through the US Department of Transportation (USDOT).
Council's Strategic Goal:
This project addresses Council’s goals of fiscal responsibility, public safety, and infrastructure.
Background:
The Sacramento Area Council of Governments (SACOG) received funding from the U.S. Department of Transportation for the next phase of their Green Means Go project. This planning investment will be used to accelerate development in designated “Green Zones”, or areas that have been identified for infill development and to reimagine neighborhoods and address transportation needs, through the Reconnecting Communities and Neighborhoods (RCN) grant.
SACOG reached out to City Staff to identify potential projects and needs within our jurisdiction, that could benefit from the RCN grant. Staff identified three (3) potential projects: 1. Updating the Central City Specific Plan, 2. Updating the City’s Objective Design Standards, and 3. Facilitating a SR20 Bike/Pedestrian Path Crossing Feasibility Study.
In March of 2024, The City was notified that SACOG’s regional application to the USDOT, including the City’s $750,000 portion, was approved, and now, the City has received the final Subrecipient Agreement from SACOG for review and execution.
Analysis:
The Subrecipient Agreement for the RCN grant awards $150,000 for the Objective Design Standards Update, $350,000 for the Central City Specific Plan Update, and $250,000 for the SR20 Bike/Pedestrian Path Crossing Feasibility Study. All work on these items is to be completed by the end of 2029. City Staff will work with consultants to meet the timeline and provide the required deliverables.
The Subrecipient Agreement now requires review by the City Attorney and signature by the City Manager for execution.
Fiscal Impact:
The $750,000 in grant funds will be used as follows:
- $250,000 to Public Works for a SR20 Bike/Pedestrian Crossing Feasibility study, and - $500,000 to Development Services for the Central City Specific Plan Update and Green Zone Objective Design Standards Update
Alternatives:
Provide direction to staff on possible modification of Subrecipient Agreement with SACOG. This may require negotiation between parties, delaying the time that the City will have to complete the projects.
Recommendation:
Adopt a Resolution to:
A. Authorize the City Manager to enter into a Subrecipient Agreement with Sacramento Area Council of Governments to receive $750,000 in grant funding for the Reconnecting Communities and Neighborhoods Grant through the US Department of Transportation and; B. Authorize the Finance Director to make a supplemental appropriation of $250,000 to CIP account 941353, and $500,000 to CIP account 941354 to receive grant funds.
Attachments:
1. Attachment 1- Resolution Authorizing City Manager to Enter Subrecipient Agreement for RCN Grant with SACOG
2. Attachment 2 - RCN Subrecipient Agreement with SACOG Prepared By: Submitted By:
Shannon Sardo
Administrative Analyst II
Diana Langley
City Manager
01248.0005/747906.1
ATTACHMENT 1
01248.0005/747906.1
RESOLUTION NO. ________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF YUBA CITY AUTHORIZING
THE CITY MANAGER TO ENTER INTO A SUBRECIPIENT AGREEMENT WITH SACRAMENTO AREA COUNCIL OF GOVERNMENTS TO RECEIVE $750,000 IN
GRANT FUNDING FOR THE RECONNECTING COMMUNITIES AND
NEIGHBORHOODS PROGRAM
WHEREAS, SACOG is a Designated Subrecipient of the United States Department of Transportation (USDOT) Neighborhood Access and Equity Discretionary Grant Program (NAE Grant Program); and
WHEREAS, SACOG is the Designated Subrecipient acting as the “pass-through” entity for purposes of payment of the federal funds to the Subrecipient, per the requirements on pass-through entities under 2 C.F.R. parts 200 et seq. and 1201 et seq., including 2 C.F.R. 200.331–200.333 and 23
U.S.C. 106(g)(4) where applicable; and
WHEREAS, The City of Yuba City has been awarded $750,000 for the Reconnecting Communities and Neighborhoods Program through SACOG; and WHEREAS, the parties wish to enter into this Subrecipient Agreement to document the terms and conditions of SACOG’s funding of The City’s project.
NOW, THEREFORE BE IT RESOLVED AND ORDERED by the City Council of the City of Yuba City as follows:
(1) The City Council hereby authorizes the City Manager to enter into the Subrecipient Agreement with Sacramento Area Council of Governments for the grant funding from the US Department of Transportation for the Reconnecting Communities and Neighborhoods Program, subject to approval as to legal form by the City Attorney; and
(2) The City Council further hereby authorizes the Finance Director to provide budget appropriation to receive grant funds, as it relates to the Reconnecting Communities and Neighborhoods Program Grant.
The foregoing Resolution was duly and regularly introduced, passed, and adopted by the City Council of the City of Yuba City at a regular meeting thereof held on the 18th day of March 2025.
AYES:
NOES:
ABSENT:
ATTEST:
01248.0005/747906.1
Dave Shaw, Mayor
Ciara Wakefield, Deputy City Clerk
APPROVED AS TO FORM
COUNSEL FOR YUBA CITY
Shannon L. Chaffin, City Attorney
Aleshire & Wynder, LLP
ATTACHMENT 2
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
CFDA #/Title: 20.940/Reconnecting Communities Pilot
Federal Awarding Agency: Department of Transportation
SACRAMENTO AREA COUNCIL OF GOVERNMENTS
SUBRECIPIENT AGREEMENT
With
CITY OF YUBA CITY
for the
Reconnecting Communities and Neighborhoods Program:
Yuba City Central Revitalization Plan and SB 20 Bike/Pedestrian Crossing THIS SUBRECIPIENT AGREEMENT is made and entered into effective on _____________ by and between SACRAMENTO AREA COUNCIL OF GOVERNMENTS, a California joint powers agency (“SACOG”) and CITY OF YUBA CITY (“Subrecipient”).
RECITALS
WHEREAS, SACOG is a Designated Subrecipient of the United States Department of Transportation (USDOT) Neighborhood Access and Equity Discretionary Grant Program (NAE Grant Program); and
WHEREAS, the U.S. Department of Transportation General Terms and Conditions Under the Fiscal Year 2023 Neighborhood Access and Equity Program: FHWA Projects (NAE Terms and Conditions), revised April 8, 2024, is referenced as part of the USDOT Agreement and defines additional responsibilities and requirements that must be followed as a condition to receiving and using the NAE Grant funding; and
WHEREAS, the U.S. Department of Transportation Exhibits to FHWA Grant Agreements Under the Fiscal Year 2022 Reconnecting Communities Pilot Program (Exhibits), dated April 24, 2023, is referenced in the RCP Terms and Conditions, and further defines responsibilities and requirements that must be followed as a condition to receiving and using the RCP Grant funding; and WHEREAS, the Reconnecting Communities Program Discretionary Grants Performance Measurement Guidance (Performance Measures), updated July 6, 2023, is referenced in this Agreement and used in the USDOT Agreement and the RCP Terms and Conditions to define responsibilities and requirements regarding the development, measurement, and reporting of project performance measures; and
WHEREAS, the SACOG is the Designated Subrecipient acting as the “pass-through” entity for purposes of payment of the federal funds to the Subrecipient, per the requirements on pass-through entities under 2 C.F.R. parts 200 et seq. and 1201 et seq., including 2 C.F.R. 200.331–200.333 and 23 U.S.C. 106(g)(4) where applicable; and
WHEREAS, the parties wish to enter into this Subrecipient Agreement (“Agreement”) to document the terms and conditions of SACOG’s funding of Subrecipient’s project.
NOW, THEREFORE, the Parties agree as follows:
1
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
1. Scope of Work: The purpose of this Agreement is to set out the terms and conditions applicable to SACOG’s transfer of NAE Grant Program funds to Subrecipient and for Subrecipient to fully perform all work necessary to complete the Project as identified in Exhibit A (Scope of Work) which includes the tasks to be performed by Subrecipient as well as Project deliverables, timeline and budget.
Attached hereto as Exhibit C and incorporated herein is the Funding Agreement. Any proposed amendment to Exhibit A must be agreed to in advance by the parties pursuant to a written amendment in accordance with Section 12 and is subject to approval by SACOG, or any other Federal or State agency having jurisdiction.
a. Scope of Responsibilities.
1) SACOG shall engage the Subrecipient and the Subrecipient shall be responsible for the complete performance of the work described in Exhibit A, including the grantfunded and any in-kind match work, in accordance with the budget constraints described in Exhibit A
2) Subrecipient subcontracts for work identified in Exhibit A are required to be procured consistent with any applicable rules and guidelines.
b. Personnel. The Subrecipient shall hire personnel to perform the work described in Exhibit A, only in the following manner.
1) Subrecipient Personnel. The Subrecipient, upon approval and authorization of its governing body, shall utilize employees with salaries that do not vary on the basis of funds received from SACOG.
c. Materials to be Furnished to the Subrecipient.
1) SACOG shall, if applicable, provide the Subrecipient with a right to use (without charge by SACOG) information, data, reports, records and maps which are in possession of or readily available to SACOG, for the purposes of carrying out work under this Agreement. However, SACOG's proprietary information or otherwise confidential or privileged materials shall not be provided to the Subrecipient, unless authorized by SACOG's legal counsel, except as provided under the Public Records Act and other state and federal laws.
2) At the option of SACOG and if allowable under Federal and State grant requirements, SACOG may, if applicable to project scope of work, procure equipment, software, or other materials for use by the Subrecipient, only for purposes of carrying out work described under this Agreement. The Subrecipient agrees to comply with all license agreements for software or other materials procured by SACOG for use by the Subrecipient.
3) If applicable, all equipment, software, or other materials provided to the Subrecipient under this Agreement shall remain the property of SACOG and shall be returned to SACOG upon project completion.
2
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
2. Time of Performance:
a. Subrecipient will commence work upon the effective date of this Agreement and will complete work as expeditiously as is consistent with generally accepted standards of professional skill and care and the orderly progress of work. Subrecipient will provide written progress reports to SACOG quarterly as shown in Exhibit D. Subrecipient agrees to follow, and to require its contractors to follow, the timeline identified in Exhibit A. If a substantive change to the identified timeline is desired, Subrecipient’s Project Manager will provide an immediate written request for approval to the SACOG Project Manager, including the reasons for the requested change. Approval by the SACOG Project Manager will not be unreasonably withheld.
b. All work will be completed and this Agreement will expire on December 31, 2029 unless otherwise terminated as provided for in this Agreement or extended by written agreement between the parties, which written agreement is subject to approval by SACOG. Final invoices must be submitted by January 31, 2030.
c. The services provided pursuant to this Agreement shall begin upon issuance of a Notice to Proceed by SACOG’s Procurement Officer to the Subrecipient.
3. Compliance with Laws: Subrecipient will comply with all applicable Federal, State, and local laws, codes, ordinances, regulations, orders, circulars, and directives, including, without limitation, all Federal regulatory requirements associated with the funding provided to Subrecipient hereunder.
These regulations, orders, circulars, and directives include, without limitation, the following: 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000, et seq.; and 2 CFR, Chapters 1 and 2, Parts 200, 215, 220, 225, and 230, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Further, Subrecipient will require the appropriate debarment certification form from all Subrecipient contractors and Subrecipient certifies that it will not knowingly enter into any transaction with a contractor, subcontractor, material supplier, or vendor who is debarred, suspended, declared ineligible, or voluntarily excluded from covered transactions by any Federal or State agency.
4. Funding Amount: The amount to be paid to Subrecipient under this Agreement will not exceed SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000.00) unless agreed to in advance by the parties pursuant to a written amendment In no instance will SACOG be liable for any payments or costs for work in excess of this amount, nor for any unauthorized or ineligible costs.
5. Reporting and Payment:
a. On a quarterly basis, Subrecipient will provide SACOG with both a written report on the progress made on the Scope of Work (Exhibit A) and an invoice for reimbursement pursuant to Subsection 6.b. below. Invoices for contractual work completed through June 30 of a fiscal year must be submitted by July 30. Final invoices must be submitted by January 31, 2030. Subrecipient shall submit written invoices by email to the SACOG Project Manager. Subrecipient’s written progress report shall be completed on the 3
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
required Quarterly Report form included as Exhibit D, and shall be for the periods ending March, June, September and December.
b. Payments to Subrecipient hereunder will be made in arrears. Subrecipient will submit a detailed and properly documented invoice on its letterhead for reimbursement at least quarterly, which invoice will include the following: (i) a description of the work performed, (ii) a detailed accounting of costs incurred, and (iii) evidence that Subrecipient has already incurred costs for the Project using eligible funds. Attached as Exhibit H is SACOG’s matrix of required supporting documentation for subrecipient invoices. c. The Subrecipient shall, in accordance with applicable law, be entitled to reimbursement of indirect costs.
d. Subrecipient will be notified within ten (10) business days following receipt of its invoice by SACOG of any circumstances or data identified by SACOG in Subrecipient’s invoice that would cause withholding of approval and subsequent payment. Subrecipient’s invoice will include documentation of reimbursable expenses and billed items sufficient for SACOG, in its opinion, to substantiate billings. SACOG reserves the right to withhold payment of disputed amounts.
e. Subrecipient agrees that the “Contract Cost Principles and Procedures,” 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000, et seq., “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” 2 CFR, Part 200.
f. Subrecipient shall comply with, and shall require its subcontractors to comply with, the requirements for non-State employee travel and subsistence (per diem) expenses found in the California Department of Transportation (“Caltrans”) Travel Guide, Non-State Employee Travel (referencing the current California Department of Personnel Administration rules) at the following link: https://travelpocketguide.dot.ca.gov/. Lodging rates shall not exceed rates authorized to be paid non-State employees unless written verification is supplied that such rates are not commercially available to Contractor and/or its subcontractors at the time and location required as specified in the Caltrans Travel Guide Exception Process.
g. Subrecipient and its contractors and subcontractors shall establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) which segregates and accumulates reasonable, allowable, and allocable costs and matching funds for work elements by line item and produces reports which clearly identify reimbursable costs and other expenditures and shall provide support for all invoices sent to SACOG.
h. Any costs for which payment has been made to Subrecipient that are determined by subsequent audit to be unallowable under 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000, et seq., 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, or any other applicable State or Federal regulations, are subject to repayment by Subrecipient to SACOG within thirty (30) days of the Sub recipient receiving notice of final audit findings. Should Subrecipient fail to return disallowed cost to SACOG within thirty (30) days, SACOG is authorized to withhold payments due to Subrecipient from other SACOG-administered programs.
4
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
i. Subrecipient and its contractors and subcontractors shall comply with:
California Public Contract Code, Sections 10300 to 10334, and 10335 to 10381; and all other applicable State and Federal statutes, regulations, and guidelines or additional restrictions, limitations, conditions, or any statute enacted by the state legislature or adopted by the California Transportation Commission that may affect the provisions, terms, or funding of this project in any manner.
j. All costs charged to this Agreement by the Subrecipient shall be supported by properly executed payrolls showing labor (wage) rates per hour, and if applicable, copies of Internal Revenue Service W-2 or 1099 Forms, or both; time records, including timesheets or time cards signed by the employee and approved by the supervisor; and invoices and vouchers, evidencing in proper detail the nature of the charges. These costs shall comply with the cost principles cited above in this Section of the Agreement. k. Any subcontract in excess of $25,000 entered into as a result of this Agreement, will contain all of the provisions of Subsections 5(f) through 5(k) above. The Subrecipient agrees to furnish documentation to SACOG to support this requirement that its agreements with a contractor contain the required provisions.
6. Contract Documents: Each and every term, condition and provision of the following documents are incorporated herein by reference:
a. The Designated Subrecipient Agreement;
b. NAE Terms and Conditions located at NAE FY23 FTA - General.pdf (transportation.gov);
c. RCP Terms and Conditions located at
https://www.transportation.gov/sites/dot.gov/files/2023-04/rcp-fy2022-fhwa-generalterms-and-conditions-20230424.pdf ;
7. Independent Contractor: The Subrecipient, and the agents and employees of the Subrecipient, in the performance of this Agreement, will act as and be independent contractors and not officers or employees or agents of SACOG. Subrecipient, its officers, employees, agents, and subcontractors, if any, will have no power to bind or commit SACOG to any decision or course of action, and will not represent to any person or business that they have such power. Subrecipient has and will retain the right to exercise full control of the supervision of the work and over the employment, direction, compensation and discharge of all persons assisting Subrecipient in the performance of work funded by this Agreement. Subrecipient will be solely responsible for all matters relating to the payment of its employees and contractors including, but not limited to, compliance with all laws, statutes, and regulations governing such matters.
8. Termination:
a. Either party may terminate this Agreement for any reason, with or without cause, at any time, by giving the other party fifteen (15) days written notice. The notice will be deemed served and effective for all purposes on the date it is deposited in the U.S. mail, certified, 5
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
return receipt requested, addressed to the other party at the address indicated in Section 17 below.
b. If either party issues a notice of termination, SACOG will reimburse Subrecipient for work actually performed up to the effective date of the notice of termination, subject to the limitations in Section 6 and less any compensation to SACOG for damages suffered as a result of Subrecipient’s failure to comply with the terms of this Agreement. c. Subrecipient will have the right to terminate this Agreement in the event SACOG is unable to make required payments, including, without limitation, a failure of Caltrans or CalSTA to appropriate funds. In such event, Subrecipient will provide SACOG with seven (7) days written notice of termination. The notice will be deemed served and effective on the date it is deposited in the U.S. mail, certified, return receipt requested, addressed to SACOG at the address indicated in Section 17.
SACOG will make payment to Subrecipient through the date of termination, subject to the provisions of Section 6 above.
9. Assignment: The parties understand that SACOG entered into this Agreement based on the Project proposed by Subrecipient. Therefore, without the prior express written consent of SACOG, this Agreement is not assignable by the Subrecipient either in whole or in part.
10. Binding Agreement: This Agreement will be binding on the parties hereto, their assigns, successors, administrators, executors, and other representatives.
11. Time: Time is of the essence in this Agreement and will follow the timeline set forth in the scope of work (Exhibit A), unless modified pursuant to Section 12.
12. Amendments: No alteration or variation of the terms of this Agreement will be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein, will be binding on any of the parties hereto.
13. Contractors and Subcontractors: Subrecipient will be fully responsible for all work performed by its contractors and subcontractors.
a. SACOG reserves the right to review and approve, which approval shall not be unreasonably withheld, any contract or agreement to be funded in whole or in part using funds provided under this Agreement.
b. Any contract or subcontract to be funded in whole or in part using funds provided under this Agreement will require the contractor and its subcontractors, if any, to:
1) Comply with applicable State and Federal law requirements that pertain to, among other things, labor standards, Non-Discrimination, the Americans with Disabilities Act, Equal Employment Opportunity, the Drug- Free Workplace Act, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000, et seq., and “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal 6
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Awards,” 2 CFR, Part 200.
2) Maintain at least the minimum State-required Workers’ Compensation Insurance for those employees who will perform the work or any part of it. 3) Maintain unemployment insurance and disability insurance as required by law, along with liability insurance in an amount that is reasonable to compensate any person, firm, or corporation who may be injured or damaged by the Subrecipient or any subcontractor in performing work associated with this Agreement or any part of it. 4) Retain all books, records, accounts, documentation, and all other materials relevant to this Agreement for a period of three (3) years from the date of termination of this Agreement, or three (3) years from the conclusion or resolution of any and all audits or litigation relevant to this Agreement and any amendments, whichever is later. 5) Permit SACOG and/or its representatives, upon reasonable notice, unrestricted access to any or all books, records, accounts, documentation, and all other materials relevant to this Agreement for the purpose of monitoring, auditing, or otherwise examining said materials.
6) Comply with all applicable requirements of Title 49, Part 26 of the Code of Federal Regulations, as set forth in Section 28.
14. Written and Electronic Versions of Work Products and Related Materials; Publishing. The Subrecipient shall provide copies of all of its deliverables created pursuant to the Scope of Work to SACOG in an electronic format. Hard copies will also be provided upon SACOG’s request. Related materials, including any reports, newsletters or other written materials will also be provided in hard copy and/or electronic format, upon SACOG’s request.
a. Any graphic images accompanying the text of these written materials shall be included, in digitized form, in the electronic version.
b. The electronic versions of all written materials and accompanying graphic images shall, when printed or otherwise displayed, appear in the identical format, location, quality, and state of replicating in which they appear in the hard copy versions. c. Materials in the electronic version shall be presented to SACOG in a commonly used electronic format, including the native file.
d. All deliverables produced under this Agreement which include Subrecipient logos shall also include the SACOG.
15. Indemnity: Subrecipient will indemnify, defend, and hold harmless SACOG, its directors, officers, members, agents, and employees (collectively and individually, the “Indemnitee(s)”) from and against any and all actions, claims, demands, losses, costs, expenses, including reasonable attorneys’ fees and costs, damages, and liabilities (collectively “Losses”) arising out of or in any way connected with the performance of this Agreement, including, without limitation, any demand for return of all or a portion of the funds provided by SACOG to Subrecipient under this Agreement, excepting only Losses caused by the sole, active negligence or willful misconduct of an Indemnitee in proportion to fault. Subrecipient shall pay all costs and expenses that may be incurred by SACOG in enforcing this indemnity, including reasonable attorneys’ fees. The provisions of this Section shall survive the expiration, termination, or assignment of this Agreement. 7
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16. Audit, Retention and Inspection of Records:
a. SACOG or its designee, including but not limited to any State or Federal agency, will have the right to review, obtain, copy, and audit all books, records, computer records, accounts, documentation and any other materials (collectively “Records”) pertaining to performance of this Agreement, including any Records in the possession of any contractors or subcontractors. Such Records shall include all records of employment, employment advertisements, employment application forms, and other pertinent employment data, as well as any records pertaining to compliance with Public Contract Code Sections 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500, et seq. (when applicable) and other matters connected with the performance of the contract pursuant to Government Code Section 8546.7.
b. Subrecipient agrees to provide SACOG or its designee, the State, the California State Auditor or any duly authorized representative of the State or Federal government (including FHWA), with any relevant information requested and will permit SACOG or its designees access to its premises, upon reasonable notice, during normal business hours, for the purpose of interviewing employees and inspecting and copying such Records for the purpose of determining compliance with any applicable Federal and State laws and regulations. Subrecipient further agrees to maintain such Records for a period of three (3) years after final payment under the Agreement or three (3) years from the conclusion or resolution of any and all audits or litigation relevant to this Agreement and any amendments, whichever is later.
c. If so directed by SACOG upon expiration of this Agreement, the Subrecipient will cause all Records relevant to the Scope of Work to be delivered to SACOG as depository.
17. Project Managers: SACOG’s Project Manager for this Agreement is Greg Chew, unless SACOG otherwise informs Subrecipient. With the exception of notice of termination sent by certified mail pursuant to Section 8 above, any notice, report, or other communication required by this Agreement will be emailed or mailed by first-class mail to the SACOG Project Manager at the following address:
Greg Chew, Senior Planner
Sacramento Area Council of Governments
1415 L Street, Suite 300
Sacramento, CA 95814
Phone: 916-340-6227
Email: [email protected]
Subrecipient’s Project Managers for this Agreement are Ben Moody and/or Doug Libby. No substitution of Subrecipient’s Project Manager is permitted without prior written agreement by SACOG, which agreement will not be unreasonably withheld. With the exception of notice of termination sent by certified mail pursuant to Section 8 above, any notice, report, or other communication to Subrecipient required by this Agreement will be emailed or mailed by first-class mail to:
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Ben Moody, Director of Public Works and Development Services City of Yuba City
1201 Civic Center Blvd.
Yuba City, CA 95993
Phone: 530-822-4629
Email: [email protected]
Doug Libby, Deputy Director, Development Services
City of Yuba City
1201 Civic Center Blvd.
Yuba City, CA 95993
Phone: 530-822-3231
Email: [email protected]
18. Successors: This Agreement will be binding on the parties hereto, their assigns, successors, administrators, executors, and other representatives.
19. Waivers: No waiver of any breach of this Agreement will be held to be a waiver of any prior or subsequent breach. The failure of SACOG to enforce at any time the provisions of this Agreement or to require at any time performance by the Subrecipient of these provisions, will in no way be construed to be a waiver of such provisions nor to affect the validity of this Agreement or the right of SACOG to enforce these provisions.
20. Litigation: Subrecipient will notify SACOG immediately of any claim or action undertaken by it or against it that affects or may affect this Agreement or SACOG, and will take such action with respect to the claim or action as is consistent with the terms of this Agreement and the interests of SACOG.
21. Americans with Disabilities Act (ADA) of 1990; Accessibility: By signing this Agreement, Subrecipient assures SACOG that it complies with the Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. § 12101, et seq.), which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA including, but not limited to, those found within the Code of Federal Regulations, Title 49, parts 27, 37, and 38. Subrecipient also agrees that it will award no construction contract unless its plans and specifications for such facilities conform to the provisions of California Government Code Sections 4450 and 4454, if applicable.
22. Compliance with Non-discrimination and Equal Employment Opportunity Laws: It is SACOG’s policy to comply with State and Federal laws and regulations including Title VI of the Civil Rights Act of 1964, Americans with Disabilities Act of 1990 (ADA) and other Federal discrimination laws and regulations, (including 49 CFR Part 21 through Appendix C, 23 CFR part 200, 23 CFR part 230, 49 U.S.C. 5332, 42 U.S.C. 12101, et seq., and the Title VI Assurance executed by California under 23 U.S.C. 324 and 29 U.S.C. 794), as well as the Unruh Civil Rights Act of 1959, the California Fair Employment and Housing Act (Government Code Section 12990, et seq.), and other California State 9
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discrimination laws and regulations. SACOG does not discriminate against any employee or applicant for employment because of race, religion (including religious dress and grooming practices) color, national origin, (includes use and possession of a driver’s license issued to persons unable to prove their presence in the United States is authorized under federal law), ancestry, disability, (including physical and mental, including HIV and AIDS) medical condition, (including genetic characteristics, cancer or a record or history of cancer), military or veteran status, marital status, sex/gender (includes pregnancy, childbirth, breastfeeding, and/or related medical conditions), age (40 and above), gender identity, gender expression, or sexual orientation pursuant to Sections 12940 et seq. of the Government Code. SACOG prohibits discrimination by its employees, subrecipients, contractors and consultants.
Subrecipient hereby certifies, under penalty of perjury under the laws of California, that it complies with, and that Subrecipient will require that its contractors and subcontractors comply with, the following nondiscrimination and equal opportunity laws. Any failure by Subrecipient to comply with these provisions shall constitute a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as SACOG may deem appropriate. a. Subrecipient and its contractors and subcontractors shall comply with all provisions prohibiting discrimination on the basis of race, color, or national origin of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d, et seq., with U.S. D.O.T. regulations, “Nondiscrimination in Federally- Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act”, 49 C.F.R. Part 21, and with any applicable implementing Federal directives that may be issued. Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person shall, on the basis of race, color, ancestry, national origin, religion, religious creed, sex, age, or disability, be excluded from participation in, denied the benefits of, or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest. b. Subrecipient and its contractors and subcontractors shall comply with all applicable equal employment opportunity (EEO) provisions of 42 U.S.C. § 2000e, implementing Federal regulations, and any applicable implementing Federal directives that may be issued.
Subrecipient and its contractors and subcontractors shall ensure that applicants and employees are treated fairly without regard to their race, color, creed, sex, disability, age, or national origin.
c. Subrecipient and its contractors and subcontractors will act in accordance with Title VI and will not unlawfully discriminate, harass, or allow harassment, against any employee or applicant for employment because of sex, sexual orientation, race, color, ancestry, religion, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition, age or marital status. Subrecipient and its contractors and subcontractors will further ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment, including the improper denial of family and medical care leave and pregnancy disability leave. Subrecipient and its contractors and subcontractors will comply with all applicable Federal and State employment laws and regulations including, without limitation, the provisions of the California Fair Employment and Housing Act 10
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(Government Code § 12900, et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, § 7285.0, et seq.), as well as Title 2, California Code of Regulations, Section 8103. The applicable regulations of the Fair Employment and Housing Commission implementing Government Code §§ 12990 (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. Subrecipient and its contractors and subcontractors will give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
d. Subrecipient and its subcontractors shall also comply with the Older Americans Act, as amended (42 U.S.C. 6101), prohibiting discrimination on the basis of age, Section 324 of Title 23 U.S.C., prohibiting discrimination based on gender, and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and 49 CFR part 27 regarding discrimination against individuals with disabilities.
e. Subrecipient, with regard to the work performed by it during the Agreement, shall act in accordance with Title VI. Specifically, Subrecipient shall not discriminate on the basis of race, color, ancestry, national origin, religion, religious creed, sex, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. Subrecipient shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment. f. Subrecipient and its contractors will include the provisions of this Section 22 in all contracts to perform work funded under this Agreement. Subrecipient shall take such action with respect to any such contract as SACOG or U.S. DOT may direct as a means of enforcing such provisions, including sanctions for noncompliance. g. Sanctions for Noncompliance: In the event of the Subrecipient's noncompliance with the nondiscrimination provisions of this Agreement, SACOG shall impose such contract sanctions as it or the U.S. DOT may determine to be appropriate, including, but not limited to:
1) Withholding of payments to the Subrecipient under this Agreement until the Subrecipient complies, and/or
2) Cancellation, termination or suspension of the Agreement, in whole or in part.
23. Drug-Free Certification: By signing this Agreement, Subrecipient hereby certifies under penalty of perjury under the laws of the State of California that Subrecipient will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code § 8350, et seq.) and will provide a drug-free workplace by taking the following actions:
a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited, and specifying actions to be taken against employees for violations.
b. Establish a Drug-Free Awareness Program to inform employees about:
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1) The dangers of drug abuse in the workplace;
2) The person’s or the organization’s policy of maintaining a drug-free workplace; 3) Any available counseling, rehabilitation, and employee assistance programs; and 4) Penalties that may be imposed upon employees for drug abuse violations. c. Every employee of Subrecipient who works under this Agreement will:
1) Receive a copy of Subrecipient’s Drug-Free Workplace Policy Statement; and 2) Agree to abide by the terms of Subrecipient’s Statement as a condition of employment on this Agreement.
24. Union Organizing: By signing this Agreement, Subrecipient hereby acknowledges the applicability of Government Code § 16645 through § 16649 to this Agreement, excluding § 16645.2 and § 16645.7.
a. Subrecipient will not assist, promote, or deter union organizing by employees performing work on this Agreement if such assistance, promotion, or deterrence contains a threat of reprisal or force, or a promise of benefit.
b. Subrecipient will not meet with employees or supervisors on SACOG or State property if the purpose of the meeting is to assist, promote, or deter union organizing, unless the property is equally available to the general public for meetings.
25. Prohibition of Expending State or Federal Funds for Lobbying:
a. Subrecipient certifies, to the best of his or her knowledge or belief, that:
1) No State or Federal appropriated funds have been paid or will be paid, by or on behalf of the Subrecipient, to any person for influencing or attempting to influence an officer or employee of any State or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding of any State or Federal contract, the making of any State or Federal grant, the making of any State or Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any State or Federal contract, grant, loan, or cooperative agreement. 2) If any funds other than Federally appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or any employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative Agreement, the Subrecipient will complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. b. This certification is a material representation of fact upon which reliance was placed when this Agreement was entered into. Submission of this certification is a prerequisite for 12
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making or entering into this Agreement imposed by Section 1352, Title 31, U.S. Code.
Any person who fails to file the required certification will be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. c. Subrecipient also agrees by signing this Agreement that he or she will require that the language of this certification be included in all lower tier contracts and subcontracts.
26. Prevailing Wage and Labor Requirements.
a. Should Subrecipient award any construction contracts utilizing Federal funds under this Agreement, Subrecipient agrees to comply with all pertinent statutes, rules and regulations promulgated by the Federal government including, but not limited to, (i) prevailing wage requirements of the Davis Bacon Act (40 U.S.C. §276a, et seq.) and related regulations (29 CFR Part 5); (ii) anti-kick back and payroll records requirements of the Copeland “Anti-Kickback” Act (40 U.S.C. §276c and 18 U.S.C. §874) and related regulations (29 CFR Part 3); and (iii) workweek computation and overtime requirements of the Contract Work Hours and Safety Standards Act (40 U.S.C. §327-333) and related regulations (29 CFR Part 5).
b. Should Subrecipient award any “public work” contract, as defined by California Labor Code Section 1720, utilizing State funds under this Agreement, Subrecipient agrees to comply with all pertinent California statutes, rules, and regulations including, but not limited to, prevailing wage provisions of Labor Code Section 1771. c. Any contract or subcontract entered into as a result of this Agreement will contain all of the provisions of this section.
27. Disadvantaged Business Enterprise (DBE) Assurances by SACOG: SACOG has signed the following assurances, applicable to all U.S. Department of Transportation (DOT) assisted contracts:
SACOG shall not discriminate on the basis of race, color, national origin, or sex in the award or performance of any DOT assisted contract or in the administration of its DBE Program or the requirements of 49 Code of Federal Regulations (CFR) Part 26. SACOG shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT assisted contracts. SACOG’s DBE Program, as required by 49 CFR Part 26 and as approved by DOT, is incorporated by reference in the Agreement. Implementation of the SACOG DBE Program is a legal obligation and failure to carry out its terms shall be treated as a violation of this Agreement. Upon notification to SACOG of any failure to carry out its approved program, DOT may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 USC 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 USC 3801, et seq.)
28. Disadvantaged Business Enterprise (DBEs) Participation by Subrecipient and its Contractors: This Agreement is subject to, and Subrecipient agrees to comply with, Title 49, Part 26 of the Code of Federal Regulations (CFR) entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation (DOT) Financial Assistance Programs.” DBE’s and other small businesses, as defined in Title 49 CFR Part 26, are encouraged to participate in the performance of agreements financed in whole or in part with Federal funds; however, DBE participation is not a condition of award. Subrecipient agrees to complete the SACOG DBE Information Form so that SACOG may 13
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compile statistics for Federal reporting purposes. The SACOG DBE Information Form is attached hereto as Exhibit I and incorporated herein by this reference. a. Non-Discrimination: Subrecipient shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Subrecipient shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of United States Department of Transportation-assisted contracts. Failure by Subrecipient to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy, as SACOG deems appropriate. b. Prompt Payments to DBE and Non-DBE Subcontractors: Subrecipient shall insert the following clauses in any contract funded under this Agreement:
1) Contractor agrees to pay each subcontractor under this Agreement for satisfactory performance of its contract no later than 30 days from the receipt of each payment Contractor receives from Subrecipient. Any delay or postponement of payment from the above-referenced time frame may occur only for good cause following written approval of Subrecipient. This clause applies to both DBE and non-DBE subcontracts. 2) Contractor agrees to return retainage payments to each subcontractor within 30 days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above-referenced time frame may occur only for good cause following written approval of Subrecipient. Pursuant to 49 CFR Section 26.29, a subcontractor’s work will be deemed satisfactorily completed when all the tasks called for in the subcontract have been accomplished and documented as required by Subrecipient agency. If Subrecipient makes an incremental acceptance of a portion of the work hereunder, the work of a subcontractor covered by that acceptance will be deemed satisfactorily completed. This clause applies to both DBE and non-DBE subcontracts.
In the event Contractor fails to promptly return retainage as specified above, Subrecipient shall consider it a breach of this Agreement, which may result in the termination of this Agreement or other such remedy as Subrecipient agency deems appropriate including, but not limited to, administrative sanctions or penalties, including the remedies specified in Section 7108.5 of the California Business and Professions Code.
3) The foregoing requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to Contractor or subcontractor in the event of a dispute involving late payment or non-payment to the Contractor or deficient subcontract performance or noncompliance by a subcontractor. c. Records: Subrecipient shall maintain records of all contracts and subcontracts entered into with certified DBEs and records of materials purchased from certified DBE suppliers.
The records shall show the name and business address of each DBE contractor, subcontractor or vendor and the total dollar amount actually paid each DBE contractor, subcontractor or vendor. The records shall show the date of payment and the total dollar 14
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figure paid to all firms. Upon completion of the contract, a summary of these records shall be prepared and submitted to SACOG.
d. Termination of a DBE: In conformance with 49 CFR Section 26.53:
1) Subrecipient shall not permit its contractor to terminate a listed DBE subcontractor unless the contractor has received prior written authorization from Subrecipient’s Project Manager. Subrecipient’s Project Manager will authorize termination only if the Project Manager determines that the contractor has good cause to terminate the DBE subcontractor. As used in this Section, “good cause” includes those circumstances listed in 49 CFR Section 26.53(f)(3).
2) Prior to requesting Subrecipient’s authorization to terminate and/or substitute a DBE subcontractor, the contractor shall give notice in writing to the DBE subcontractor, with a copy to Subrecipient, of its intent to request termination and/or substitution, and the reason for the request. The DBE subcontractor shall have five (5) days to respond to the contractor’s notice and state the reasons, if any, why it objects to the proposed termination of its subcontract and why Subrecipient should not approve the contractor’s action. Subrecipient may, in instances of public necessity, approve a response period shorter than five (5) days.
3) If a DBE subcontractor is terminated or fails to complete its work for any reason, the contractor shall be required to make good faith efforts to replace the original DBE subcontractor with another DBE.
e. DBE Certification and Decertification: If a DBE subcontractor is decertified during the life of the contract, the decertified subcontractor shall notify the Subrecipient in writing with the date of decertification. If a subcontractor becomes a certified DBE during the life of the contract, the subcontractor shall notify the Subrecipient in writing with the date of certification. The contractor shall then provide to SACOG’s Project Manager written documentation indicating the DBE’s existing certification status. f. Noncompliance by Subrecipient. Subrecipient’s failure to comply with any requirement of this Section is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as SACOG may deem appropriate.
Any contract entered into by Subrecipient as a result of this Agreement shall contain all of the provisions of this Section.
29. Non-Liability of SACOG: SACOG shall not be liable to Subrecipient or any third party for any claim for loss of profits or consequential damages. Further, SACOG shall not be liable to Subrecipient or any third party for any loss, cost, claim or damage, either direct or consequential, allegedly arising from a delay in performance or failure to perform under this Agreement.
30. Debarment Responsibilities: Subrecipient agrees that it will comply with the provisions of 24 CFR Part 24 relating to the employment, engagement of services, awarding of contracts or funding 15
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of any contractors or subcontractors during any period of debarment, suspension or placement in ineligibility status.
31. Costs and Attorneys’ Fees: If either party commences any legal action against the other party arising out of this Agreement or the performance thereof, the prevailing party in such action may recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and reasonable attorneys’ fees.
32. Governing Law and Choice of Forum: This Agreement will be administered and interpreted under California law as if written by both parties. Any litigation arising from this Agreement will be brought in the Superior Court of Sacramento County.
33. Integration: This Agreement represents the entire understanding of SACOG and Subrecipient as to those matters contained herein and supersedes all prior negotiations, representations, or agreements, both written and oral. This Agreement may not be modified or altered except in accordance with Section 12.
34. Severability: If any term or provision of this Agreement or the application thereof to any person or circumstance will, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is invalid or unenforceable, will not be affected thereby, and each term and provision of this Agreement will be valid and will be enforced to the fullest extent permitted by law, unless the exclusion of such term or provision, or the application of such term or provision, would result in such a material change so as to cause completion of the obligations contemplated herein to be unreasonable.
35. Headings: The headings of the various sections of this Agreement are intended solely for convenience of reference and are not intended to explain, modify, or place any interpretation upon any of the provisions of this Agreement.
36. Authority: Each person signing this Agreement on behalf of a party hereby certifies, represents, and warrants that he or she has the authority to bind that party to the terms and conditions of this Agreement.
37. Ownership; Permission: Subrecipient represents and warrants that all materials used in the performance of the Project work, including, without limitation, all computer software materials and all written materials are either produced and owned by Subrecipient or that all required permissions and license agreements have been obtained and paid for by Subrecipient. Subrecipient will defend, indemnify and hold harmless SACOG and its directors, officers, employees, and agents from any claim, loss, damage, cost, liability, or expense to the extent of any violation or falsity of the foregoing representation and warranty.
38. Counterparts: This Agreement may be executed in multiple counterparts, each of which will constitute an original, and all of which taken together will constitute one and the same instrument.
Documents executed, scanned, and transmitted electronically and electronic signatures shall be 16
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deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures.
39. Amendments Required by Federal or State Agencies: If the FTA, FHWA, Caltrans, or any other Federal or State agency having jurisdiction, requires a change to the terms of this Agreement, the parties will amend this Agreement as necessary, or will terminate it immediately.
40. Ambiguities: The parties have each carefully reviewed this Subrecipient Agreement and have agreed to each term and condition herein. No ambiguity will be construed against either party.
41. Press Releases: Each party will obtain other party’s prior written approval of any press releases, or other public outreach materials, that include any reference to such other party or such other party’s logo.
42. FFATA Requirements: Subrecipient agrees that it will comply with the requirements of the Federal Funding Accountability and Transparency Act (FFATA), including U.S. OMB guidance, “Reporting Subaward and Executive Compensation Information,” 2 C.F.R. Part 170, [75 Fed. Reg. 55670 - 55671, September 14, 2010]. Subrecipient’s compliance shall include the reporting, record retention, and access requirements set forth in Exhibit “E,” attached hereto and incorporated herein.
43. Clean Air Act: Subrecipient agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, including sections 174 and 176, subdivisions (c) and (d) (42 U.S.C. §§ 7504, 7506 (c) and (d)) and 40 CFR part 93 (“Clean Air requirements”). Subrecipient agrees to report each Clean Air requirement violation to SACOG and understands and agrees that SACOG will, in turn, report each Clean Air requirement violation as required to assure notification to FTA and the appropriate EPA Regional Office. Subrecipient also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.
44. Disputes: Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be submitted in writing to a committee consisting of SACOG’s Contracts Administrator and General Counsel. This Committee may consider the written information or additional verbal information submitted by Subrecipient at the request of the Committee.
A determination shall be made by the Committee within ten (10) business days. In the event that Subrecipient disputes the Committee’s determination, Subrecipient may request review by SACOG’s Executive Director of unresolved claims or disputes, other than audit, not later than thirty (30) days after completion of all work under the Agreement. The Subrecipient’s request for review must be submitted in writing. Neither the pendency of a dispute, nor its consideration by the Committee, will excuse Subrecipient from full and timely performance in accordance with this Agreement.
45. Rebates, Kickbacks, or Other Unlawful Consideration: Subrecipient warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration, either promised or paid to any SACOG employee. For breach or violation of this warranty, SACOG shall 17
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
have the right, in its discretion: to terminate this Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the Agreement price, or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
46. State Prevailing Wage Rates: If the Scope of Work is for a public works project pursuant to California Labor Code Section 1720, et seq., including surveying work, then the following provisions apply:
a. Subrecipient shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the work. b. Any subcontract entered into as a result of this Agreement, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. c. When prevailing wages apply to the services described in the Scope of Work, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov.”
47. Equipment Purchase:
a. Prior authorization in writing, by SACOG’s Project Manager shall be required before Subrecipient enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or Subrecipient services. Subrecipient shall provide an evaluation of the necessity or desirability of incurring such costs. b. For purchase of any item, service or consulting work not covered in Subrecipient’s Cost Proposal and exceeding $10,000 prior authorization by SACOG’s Project Manager, three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
c. Any equipment purchased as a result of this contract is subject to the following:
“Subrecipient shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least one year and an acquisition cost of $10,000 or more. If the purchased equipment needs replacement and is sold or traded in, SACOG shall receive a proper refund or credit at the conclusion of the contract, or if the contract is terminated, Subrecipient may either keep the equipment and credit SACOG in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established SACOG procedures, and credit SACOG in an amount equal to the sales price. If Subrecipient elects to keep the equipment, fair market value shall be determined at Subrecipient’s expense, on the basis of a competent independent appraisal of such equipment.
Appraisals shall be obtained from an appraiser mutually agreeable to SACOG and Subrecipient, and if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by SACOG.” 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than 18
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
$10,000 is credited to the project.
d. All subcontracts in excess $25,000 shall contain the above provisions. (Signature Page to Follow)
19
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
IN WITNESS THEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE DATE; FIRST APPEARING ABOVE:
SACRAMENTO AREA COUNCIL OF
GOVERNMENTS
CITY OF YUBA CITY
JAMES CORLESS
Executive Director
DIANA LANGLEY
City Manager
APPROVED AS TO FORM: APPROVED AS TO FORM:
SLOAN SAKAI YEUNG & WONG, LLP
Legal Counsel to SACOG
SHANNON CHAFFIN, City Attorney
Aleshire & Wynder, LLP
RECOMMENDED BY: ATTEST:
GREG CHEW
Senior Planner
BEN MOODY
Director of Public Works and
Development Services
20
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
EXHIBIT A
SACOG – Reconnecting Communities and Neighborhoods (RCN) Sub-Recipient Grantee Scope of Work/Deliverables/Budget Project Title: Yuba City Central Revitalization Plan and SB 20 Bike/Pedestrian Crossing Task
# Detailed Description of Tasks / Milestones
Task Timeline
(in months
and year)
Deliverable(s)
including delivery
date
Total
Budget
RCN
Funding
Other
Funds
(include
source)
ACTIVITY #0: PROJECT
REPORTING
0. Regular reporting to SACOG (this is a
required task for all projects) for ALL
ACTIVITIES
Month 1 –
November
2024
Project
assumed to
be completed
November
2026. Grant
deadline
September
30, 2029
1. Progress report
and invoicing
$40,000 $40,000 N/A
Project Reporting - Subtotal $40,000 $40,000 N/A
ACTIVITY #A: CENTRAL CITY
SPECIFIC PLAN
A1. Task 1: Project Initiation and Management
In a kick-off meeting with City staff, the
consultant team will review, refine, and
finalize the scope of work, project schedule,
and plan area boundaries. A site visit to the
plan area will be included. This meeting
will include a high-level discussion
regarding the goals of the project,
opportunities and constraints, and potential
for changing the name of the Plan.
As part of project management for the
Specific Plan Update, consultants will keep
the project on track through regular
meetings with City staff. PM also includes
time for invoicing through the life of the
project.
Month 1-24 1. Final Scope of
Work, Work
Plan and
Schedule
2. Kickoff Meeting
Agenda and
Summary
3. Monthly Checkin Calls
4. Monthly
Consultant
Invoices
$20,000 $20,000 N/A
21
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
A2. Task 2: Existing Conditions and Policy
Documents Review
The consultant(s) will review existing
physical conditions of the Plan Area and
document changes that have taken place
since adoption. Existing land use,
transportation and economic development
will be reviewed.
Existing noise conditions will be collected
and analyzed in anticipation of an
amendment to the Noise Ordinance in
future tasks.
In addition, the consultant will review
relevant policy documents that may
influence goals for the Specific Plan
Update, including the existing Central City
Specific Plan, Yuba City General Plan,
Zoning Ordinance and Development Code,
6th Cycle Housing Element, and other
appropriate documents.
The consultant will compile findings into an
Opportunities and Constraints report,
including Existing Physical Conditions,
Noise Conditions, and Existing Policy and
Regulatory Documents Review, and
highlighting opportunities for new
entertainment uses, housing, connectivity
improvements and others.
Months 2-4 1. Opportunities
and Constraints
Report
$50,000 $50,000 N/A
22
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
A3. Task 3: Community Engagement
The consultant will collaborate with City
Staff to plan, manage, and implement
community engagement activities as
outlined in a proposed outreach plan.
The consultant will prepare and provide any
materials required to implement the
proposed engagement plan including but
not limited to flyers, posters, presentation
materials, and other engagement tools
(e.g. surveys), and reports.
This effort will include leading and
facilitating meetings with key stakeholders,
community workshops to gain input from
members of the public, and study sessions
with the Planning Commission and City
Council.
Month 2-20 1. Engagement
Plan
2. Engagement
materials
3. Three (3)
Stakeholder
meetings
4. Two (2)
Community
Workshops
5. Two (2)
Planning
Commission
and City
Council Study
Sessions
$70,000 $70,000 N/A
23
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
A4. Task 4: Alternatives Development and
Selection
The consultant(s) will prepare two to three
Land Use and Connectivity Alternatives for
land use, connectivity, parking and other
elements of the Specific Plan.
Alternatives will be described in plans,
graphic visuals, and text.
The consultant will also propose
approaches to updating regulations within
the Specific Plan area, that may include
revisions to existing regulations, or another
regulatory approach to development
standards. These approaches will be
summarized in a memorandum.
Following the collection of input on the
Land Use and Connectivity Alternatives
and Urban Design Concepts, a Preferred
Alternative will be identified. This will
serve as the basis for the Specific Plan
Update.
In addition, the consultant will develop
Urban Design Concepts for the Specific
Plan Area with a focus on placemaking to
create a lively main street environment that
will attract entertainment uses. The Urban
Design Concepts will be illustrated by
drawings, sections and other visual
materials.
Month 4-8 1. Two (2) to
Three (3) Land
Use and
Connectivity
Alternatives
2. Approaches to
Updating
Regulations
3. Preferred
Alternative
4. Urban Design
Concepts
$60,000 $60,000 N/A
24
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
A5. Task 5: Draft Specific Plan Update
The consultant will develop an
Administrative Draft Specific Plan Update,
compliant with State law, for review by
City staff. The Specific Plan Update will
serve as the City’s regulatory document for
the next 20 years, guiding long-range
development and implementation. The
Specific Plan Update chapters will likely
include Introduction, Vision, Land Use,
Urban Design, Development Standards, and
Circulation and Parking.
After review by City staff, the consultant
will create a Public Review Draft Specific
Plan Update.
Any required Zoning and General Plan
amendments will be created by the
consultant to be approved when the Specific
Plan Update is adopted. In addition, a Noise
Ordinance Amendment is anticipated to be
needed to accommodate entertainment uses
in the Specific Plan area.
Month 8-14 1. Administrative
Draft Specific
Plan Update
2. Public Review
Draft Specific
Plan Update
3. Zoning and
General Plan
Amendments
4. Noise Ordinance
Amendment
$72,000 $72,000 N/A
A6. Task 6: Environmental Analysis
The project consultant will prepare an
environmental analysis consistent with
CEQA. This is likely to be an Addendum to
the existing Specific Plan EIR. Technical
sections in the Addendum are anticipated to
be needed for transportation analysis and
noise analysis, among others.
The consultant will also coordinate with the
City to provide SB-18 Tribal Consultation
as State law requires.
Month 14-20 1. Addendum to
existing Central
City Specific
Plan EIR
2. SB-18 Tribal
Consultation
$42,000 $42,000 N/A
25
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
A7. Task 7: Presentation and Adoption of
Specific Plan Update
The consultant will work with City staff to
present the Specific Plan Update, and
Zoning, General Plan and Noise Ordinance
Amendments, along with associated
environmental analysis, at hearings for the
Planning Commission and City Council.
The consultant will make any final
revisions to the Specific Plan and
environmental analysis based on
changes adopted by the City Council.
Month 20-22 1. Planning
Commission
Hearing
2. City Council
Hearing
3. Adopted Final
Specific Plan
Update in PDF
format
$16,000 $16,000 N/A
Activity #A Central City Specific Plan
Sub-total Costs
$330,000 $330,000 N/A
ACTIVITY #B: OBJECTIVE DESIGN
STANDARDS
B1 Request for Proposals Development and
Release:
City will draft and release an RFP to invite
qualified consultants to submit proposals
for the development of Citywide Objective
Design Standards. The RFP will outline the
project scope, project requirements, and
evaluation criteria.
Month 1-3 Released RFP,
Proposals Received
$10,000 $10,000 N/A
B2 Award Contract:
City will evaluate all submitted proposals
based on the criteria outlined in the RFP.
The evaluation process will involve scoring
proposals on experience, cost, and quality
of previous work of a similar nature. The
City will then award the contract to the
most qualified firm.
Month 4 Awarded Contract $5,000 $5,000 N/A
26
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
B3 Project Initiation and Management
City will work with the selected firm to
finalize the project specific Scope of Work
and Project Schedule. Project team will be
established, and a kick-off meeting will be
held to exchange information and initiate
work on the project. The Consultant will
conduct project management tasks
throughout the project, including
overseeing schedule, budget, invoicing, and
staffing. The consultant will establish
regular check-ins with City staff to review
progress. All subsequent tasks will be
conducted primarily by the Consultant, in
direct communication with City staff.
Month 4 Final Scope of
Work, Kick-off
meeting agenda
$15,000 $15,000 N/A
B4 Research and Analysis of Existing
Conditions
Consultant will conduct extensive review
and analysis of Yuba City’s General Plan,
Zoning Ordinance, Design Guidelines,
Specific Plans, and other City documents to
understand and analyze existing policies
and framework. These documents, and
extensive analysis, will be used as a
reference when preparing the Citywide
Objective Design Standards. Consultant
will also visit the City to assess existing
character, neighborhoods and districts. This
research will be compiled into a draft
Analysis of Existing Conditions Memo and
revised following City staff comment.
Months 5-7 Draft and Final
Analysis of Existing
Conditions Memo
$25,000 $25,000 N/A
27
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
B5 Community Engagement
The consultant will create a draft
Community Engagement Plan for the
Citywide Objective Design Standards
project outreach. The plan will outline
engagement efforts, methods, timing, and
responsibilities throughout the engagement
effort.
In addition, the Community Engagement
Plan will include specific ways that the
project team can facilitate engagement in
historically underrepresented and
underserved communities. The Plan will
outline stakeholders, including but not
limited to individuals in the housing, real
estate, and development fields. The Plan
will include specific task, materials, and
meetings that will be conducted in the
community to increase community
engagement in the project. This may
include the following:
• Print and Digital Engagement
Materials / Website
• Presentations / Workshops with
the Planning Commission
and/or City Council
• Stakeholder Meetings
• Community Meetings
Months 8-12 Draft and Final
Community
Engagement Plan,
Engagement
Materials,
Presentations and
Agendas to
Council,
Commissions,
Stakeholders, and
Summaries from
Community
Meetings
$40,000 $40,000 N/A
28
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
B6 Development of Citywide Objective Design
Standards
The Consultant will compile input and
analysis from previous tasks and develop
specific recommendations for new formbased objective design standards. These specific recommendations will be outlined
for City staff, in addition to diagrams,
section, axonometric views, and/or other
illustration formats to best graphically and
functionally communicate the standard to
the reader. These recommendations will be
presented to City staff for review and
discussion, and then subsequently finalized
for community and stakeholder review.
After compiling input from staff,
community members, and stakeholders on
the recommendations, the Consultant will
draft the Citywide Objective Design
Standards. All design guidance will be
objective, meaning they shall involve no
personal or subjective judgement by a
public official and are uniformly verifiable
by reference to an external and uniform
benchmark or criterion. Following review
of the administrative draft document, staff
will provide comments to the Consultant,
which will result in the Public Review
Draft.
Objective Design Standards are generally
exempt from environmental review. The
Consultant will provide documentation
required under the California
Environmental Quality Act (CEQA)
supporting a determination of statutory
exemption, which can be used in agenda
reports during the approval process.
Months 13-
17 Draft and Final
Recommendations
Memo, Draft and
Final Objective
Design Standards
Document,
Environmental
Review Memo
$35,000 $35,000 N/A
B7 Presentation and Adoption Hearings Months 18-
19 Council/
Commission
presentations, Final
Citywide Objective
Design Standards
document
$10,000 $10,000 N/A
Activity #B Objective Design Standards –
Sub-total costs
$140,000 $140,000
29
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
ACTIVITY #C: STATE ROUTE 20
BICYCLE/PEDESTRIAN CROSSING
C1 Request for Proposals Development and
Release:
City will draft and release an RFP to invite
qualified planning and engineering
consultants to submit proposals for
evaluation of a potential bike/pedestrian
crossing along State Route 20 within the
city limits of Yuba City.
Months 1-4 RFP for
Engineering/
planning services
$10,000 $10,000
C2 Award Contract:
City will evaluate all submitted proposals
based on the criteria outlined in the RFP.
The evaluation process will involve scoring
proposals on experience, cost, and quality
of previous work of a similar nature. The
City will then award the contract to the
most qualified firm.
Month 5 Awarded Contract $5,000 $5,000
C3 Project Initiation and Management
City will work with the selected firm to
finalize the project specific Scope of Work
and Project Schedule. Project team will be
established, and a kick-off meeting will be
held to exchange information and initiate
work on the project. The Consultant will
conduct project management tasks
throughout the project, including
overseeing schedule, budget, invoicing, and
staffing. The consultant will establish
regular check-ins with City staff to review
progress. All subsequent tasks will be
conducted primarily by the Consultant, in
direct communication with City staff.
Month 6 Final Scope of
Work, Kick-off
meeting agenda
$15,000 $15,000
C4 Research and Analysis of Existing
Conditions
Consultant will conduct extensive review of
SR 20 and seeking potential options for
bike/ped crossing. Consultant will evaluate
and document existing conditions and
identify best potential opportunity areas.
Months 7-10 Draft and Final
Analysis of Existing
Conditions Memo
$35,000 $35,000
30
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
C5 Community Engagement
The consultant and city will contact known
stakeholder groups, such as neighborhoods
groups, recreation bike groups, businesses
along the corridor for input in potential
locations and solutions. City may hold up
to two public community meetings to
discuss options and conceptual design
solutions.
Months 11-
13 Summary memo of
comments from
stakeholder groups;
public meeting
agendas and
presentations; notes
from meetings.
$40,000 $40,000
C6 Concept planning and engineering for
bike/ped crossing
Develop preliminary conceptual plans for
one to three locations including design
configurations. Select one preferred option.
Months 14-
17 Document
summarizing
conceptual design
plans and locations,
with identified
preferred option
$50,000 $50,000
C7 Council presentation and action as needed
City council or appropriate body will be
debriefed on analysis and preferred
technical solution for SR 20 bike/ped
crossing
Month 18 Staff report $10,000 $10,000
C8 Engineering Documentation
With remaining funds, prepare a Design
Memorandum document the preferred
location and conceptual design
Months 19-
21 Based on available
resources, prepare
engineering
documentation for
preferred location
and design of
bike/ped crossing
$75,000 $75,000
Activity #C: State Route 20
Bicycle/Pedestrian Crossing – Subtotal
Costs
$240,000 $240,000
TOTAL COSTS – all activities $750,000 $750,000
31
Contract #: CT250031
Funding Source: Reconnecting Communities & Neighborhoods Program (RCN) Account Set: SAC239-PASS THROUGH-DOT-G100
EXHIBIT B
DEBARMENT CERTIFICATION FORM
The Contractor certifies that, neither the Contractor firm nor any owner, partner, director, officer, or principal of the Contractor, nor any person in a position with management responsibility or responsibility for the administration of Federal funds:
a) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal or State department/agency; b) has within a three-year period preceding this certification been convicted of or had a civil judgment rendered against it for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract (Federal, State, or local); violation of Federal or State antitrust statutes; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
c) is presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (b) above; or
d) has within a three-year period preceding this certification had one or more public transactions or contracts (Federal, State, or local) terminated for cause or default.
The Contractor further certifies that it shall not knowingly enter any transaction with any subcontractor, material supplier, or vendor who is debarred, suspended, declared ineligible, or voluntarily excluded from covered transactions by any Federal or State department/agency.
By: __________________________________ Date: ________________ (Authorized Signer for Subrecipient)
__________________________________
(Printed Name and Title of Signer)
__________________________________
Subrecipient Local Agency
__________________________________
Local Agency Address
__________________________________
City, State, Zip
__________________________________
Phone number & Email address
32
(Form revised 3/2022) Page 1 of 3
ISSUE MEMORANDUM
TO Dee Lam, Division Chief
Division of Local Assistance
(916) 202-0620; [email protected]
FROM Gretchen Chavez (Acting), Deputy Division Chief
Division of Local Assistance
(279) 599-1075; [email protected]
PREPARED BY Robert Peterson (Acting), Deputy Division Chief Division of Local Assistance
(916) 206-7197; [email protected]
Bob Baca, Branch Chief
Division of Local Assistance
(279) 599-3199; [email protected]
DATE November 20, 2024
SUBJECT Reconnecting Communities and Neighborhoods (RCN) Neighborhood Access and Equity (NAE) Program, Sacramento Area Council of Governments (SACOG) Recipient Agreement (RA) and Designated Subrecipient Agreement (DSA)
Request for Approval For Information
Request for Discussion For Signature
BB 11/20/2024 RP
RP 11/21/2024
EXHIBIT C
FUNDING AGREEMENT
33
SUBJECT Reconnecting Communities and Neighborhoods (RCN) Neighborhood Access and Equity (NAE) Program, SACOG
Recipient Agreement (RA) and Designated Subrecipient
Agreement (DSA)
(Form revised 3/2022) Page 2 of 3
TRACKING NUMBER
TIME FACTOR
SACOG (subrecipient) has requested that the California Department of Transportation (Caltrans) sign the agreement at its earliest convenience.
BACKGROUND
SACOG, in collaboration with the California Department of Transportation (Caltrans), will be using RCN (NAE) Grant Program funds for SACOG: GREEN MEANS GO: Green Zone Access and Equity Regional Planning Project (Project).
DISCUSSION/PRO-CON ARGUMENTS
Signing this RA and DSA, will allow SACOG to advance planning, engineering, design and project development activities to address barrier transportation facilities in nine federally designated disadvantaged communities that are (1) locally prioritized for infill development and (2) share the challenge of high volume, autocentric facilities that bisect existing neighborhoods to limit both economic and transportation mobility.
EFFECT ON EXISTING LAW
Not applicable.
ESTIMATED COST
The Project cost is estimated to be $22,500,000 requested through RCN (NAE) funds.
34
SUBJECT Reconnecting Communities and Neighborhoods (RCN) Neighborhood Access and Equity (NAE) Program, SACOG
Recipient Agreement (RA) and Designated Subrecipient
Agreement (DSA)
(Form revised 3/2022) Page 3 of 3
RECOMMENDATION
It is recommended that the Division Chief sign the grant agreement (RA and DSA), so SACOG can move forward with the award of the GREEN MEANS GO:
Green Zone Access and Equity Regional Planning Project.
APPROVED
Gretchen Chavez (Acting), Deputy Division
Chief
Date
ATTACHMENTS
1. FY 2023 RCN (NAE) Recipient Agreement (Between FHWA and Caltrans)
2. FY 2023 RCN (NAE) Subrecipient Agreement (Between Caltrans and SACOG)
CC FILE
11/21/2024
35
FYs 2023 Neighborhood Access and Equity Grant Program
Recipient - Designated Subrecipient Agreement
SACOG Green Means Go Project
FY 2023 NEIGHBORHOOD ACCESS AND EQUITY (NAE)
DISCRETIONARY GRANT PROGRAM
RECIPIENT - DESIGNATED SUBRECIPIENT AGREEMENT
This Federal Fiscal Year (FY) 2022-2023 project specific Neighborhood Access and Equity (NAE) Discretionary Grant Program Recipient - Designated Subrecipient Agreement (Agreement) is between the State of California Department of Transportation (Caltrans) Division of Local Assistance (Recipient or Caltrans) and Sacramento Area Council of Governments (SACOG), a Metropolitan Planning Organization (Designated Subrecipient), collectively known as “Parties.”
RECITALS
WHEREAS, NAE Grant funds were provided under the authority of the Inflation Reduction Act, Pub. L. No. 117-169 (Aug. 16, 2022) (the “IRA”) made funds available to the United States Department of Transportation (the “USDOT”) for fiscal year 2022 to carry out the Neighborhood Access and Equity (NAE) Grant Program; and WHEREAS, on July 5, 2023, the United States Department of Transportation (USDOT) posted a funding opportunity through the Fiscal Year (FY) 2023, Neighborhood Access and Equity (NAE) Grant Program at Grants.gov, with the funding opportunity title “Neighborhood Access and Equity (NAE) Program” and funding opportunity number DOT-NAE-FY23-01; and WHEREAS, this notice of funding opportunity posted at Grants.gov, as amended on July 19, 2023, (the “NOFO”) solicited applications for Federal financial assistance under the fiscal years 2023 NAE Program; and
WHEREAS, on or before September 28, 2023, the Designated Subrecipient applied for NAE Grant funding from the United States Department of Transportation (USDOT) for SACOG Green Means Go: Green Zone Access and Equity Regional Planning Project (Project), which will advance planning, engineering, design and project development activities to address barrier transportation facilities; establish a Community-Based Organization Working Group to support equity-centered planning processes that engage traditionally marginalized groups; and establish career pathways for vulnerable community members; and
WHEREAS, the Designated Subrecipient’s application for Project (Grant Application), referenced in section 1 of schedule A of the SACOG Green Means Go: Green Zone Access and Equity Regional Planning Project for Project between the USDOT and the Recipient, includes Standard Form 424 and all information and attachments the Designated Subrecipient submitted with that form through Grants.gov, and
WHEREAS, on March 13, 2024, the USDOT announced application selections under the NOFO selecting Project for NAE Grant funding in the amount of $22,500,000 for the Project; .and WHEREAS, in this Agreement, “NAE Grant” means an award of these funds to Project that were made available through the NOFO; and
36
FYs 2023 Neighborhood Access and Equity Grant Program
Recipient - Designated Subrecipient Agreement
SACOG Green Means Go Project
WHEREAS, as a condition to receive the NAE Grant, the USDOT requires the Recipient and the USDOT, to enter into the USDOT Grant Agreement under the Fiscal Year 2023 NAE Program Project Agreement for the [SACOG Green Means Go: Green Zone Access and Equity Regional Planning Project] (USDOT Agreement) that awards and allocates $22,500,000 in NAE Grant funding for the Project to the Recipient; and
WHEREAS, this Agreement reflects the Recipient decision to subaward the NAE Grant Project funding to the Designated Subrecipient; and
WHEREAS, this Agreement reflects the Designated Subrecipient decision to receive the Subaward, defined in 2 C.F.R. § 200.1, of the NAE Grant funding for the purpose of carrying out the Federal award; and
WHEREAS, the Office of the Secretary of Transportation is responsible for the USDOT’s overall administration of the NAE Grant Program; and
WHEREAS, the Federal Highway Administration (Administering Operating Administration) will administer the USDOT Agreement, on behalf of the USDOT; and WHEREAS, the U.S. Department of Transportation General Terms and Conditions Under the Fiscal Year 2023 Neighborhood Access and Equity Program: FHWA Projects (NAE Terms and Conditions), revised October 1, 2024, is referenced as part of the USDOT Agreement and defines additional responsibilities and requirements that must be followed as a condition to receiving and using the NAE Grant funding; and
WHEREAS, the U.S. Department of Transportation Exhibits to FHWA Grant Agreements Under the Fiscal Year 2023 Reconnecting Communities Pilot Program/Neighborhood Access and Equity Program (RCN): FHWA Projects (Exhibits), dated April 8, 2024, is referenced in the NAE Terms and Conditions, and further defines responsibilities and requirements that must be followed as a condition to receiving and using the NAE Grant funding; and WHEREAS, the Reconnecting Communities Program Discretionary Grants Performance Measurement Guidance (Performance Measures), updated July 6, 2023, is referenced in this Agreement and used in the USDOT Agreement and the NAE Terms and Conditions to define responsibilities and requirements regarding the development, measurement, and reporting of project performance measures; and
WHEREAS, the Parties want the Designated Subrecipient to carry out the Project with the Recipient acting as the “pass-through” entity for purposes of payment of the federal funds to the Designated Subrecipient, per the requirements on pass-through entities under 2 C.F.R. parts 200 et seq. and 1201 et seq., including 2 C.F.R. 200.331–200.333 and 23 U.S.C. 106(g)(4) where applicable; and
WHEREAS, for the purpose of 23 U.S.C. 106(g), the Recipient shall act as if funds under this award are Federal funds under title 23, United States Code; and WHEREAS, on or about 03/18/2016, the Parties entered into an Administering Agency - State Agreement for Federal-Aid Projects agreement (Master Agreement); and 37
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WHEREAS, the Parties, will concurrently enter into this Agreement, which defines specific project responsibilities between the Designated Subrecipient and the Recipient for Project and include specific project responsibilities to USDOT that are necessary for the development and timely delivery of the Project; and
WHEREAS, this Agreement further establishes oversight and delegation of responsibilities between the Recipient and the Designated Subrecipient, outlined in this Agreement, the Master Agreement, and as allowed per Article 3.7(2) of the NAE Terms and Conditions.
The Parties therefore agree to the following:
AGREEMENT
ARTICLE I. PURPOSE
Section 1.01 Purpose.
(a) The purpose of this award is to fund an eligible project that improves walkability, safety, and affordable transportation access through context-sensitive strategies; addresses an existing eligible facility that create barriers to community connectivity or negative impacts on the human or natural environment, especially in disadvantaged or underserved communities; conducts planning and capacity building activities in disadvantaged or underserved communities; or conducts technical assistance to units of local government to facilitate efficient and effective contracting, design, and project delivery and to build capacity for delivering surface transportation projects. The parties will accomplish this purpose by achieving the following objectives:
1) timely completing the Project; and
2) ensuring the award funds provided under this Agreement are not used as a substitute for non-Federal investment in the Project, except as proposed in the Technical Application, and as modified by schedule D.
(b) In this section, the term “facility,” is used as defined at 23 U.S.C. 177(c).
ARTICLE II. USDOT AND RECIPIENT ROLES
Section 2.01 Division of USDOT Responsibilities.
(a) The Office of the Secretary of Transportation is responsible for the USDOT’s overall administration of this Grant Program, the approval and execution of the USDOT Agreement, and any modifications to the Recipient Agreement under section 15.1 of the USDOT Agreement.
(b) The Federal Highway Administration (the “FHWA”) will administer the Recipient Agreement on behalf of the USDOT. The “Administering Operating Administration” means the FHWA.
(c) The Recipient is responsible for the approval of this agreement and any modifications to this agreement under section 15.01.
Section 2.02 USDOT Program Contacts
If the Capital-Planning Designation in section 1 of schedule F is “Planning”:
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FHWA NAE Program Manager—Planning Grants
Kenneth Petty
Federal Highway Administration
Office of Planning, Environment, and Realty
1200 New Jersey Avenue SE
Room E72-330
Washington, DC 20590
(202) 366-6654
[email protected]
If the Capital-Planning Designation in section 1 of schedule F is “Capital Construction”:
FHWA NAE Program Manager—Capital Construction Grants
Karen Perritt
Federal Highway Administration
Office of Planning, Environment, and Realty
1200 New Jersey Avenue SE
Room E76-326
Washington, DC 20590
(202) 366-9482
[email protected]
And for all awards:
OST RCN Program Manager
United States Department of Transportation
Office of Infrastructure Deployment (OST P-40)
1200 New Jersey Avenue SE
Washington, DC 20590
[email protected]
Section 2.03 USDOT Program Contacts
(a) The Recipient is the pass-through entity for purposes of payment of the federal funds to the Designated Subrecipient per the requirements on pass-through entities under 2 C.F.R. parts 200 and 1201, including 2 C.F.R. 200.331–200.333 and 23 U.S.C. 106(g)(4) where applicable.
Article III. DESIGNATED SUBRECIPIENT ROLE
Section 3.01 Statements on the Project.
(a) The Designated Subrecipient states that:
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1) all material statements of fact in the Technical Application were accurate when that application was submitted; and
2) schedule E documents all material changes in the information contained in that application.
Section 3.02 Statements on Authority and Capacity.
(a) The Designated Subrecipient states that:
1) it has the authority to receive Federal financial assistance under this agreement; 2) it has the legal authority to complete the Project;
3) it has the capacity, including institutional, managerial, and financial capacity, to comply with its obligations under this agreement;
4) not less than the difference between the total eligible project costs listed in section 3 of schedule D of the USDOT Agreement and the Neighborhood Access and Equity (NAE) Program Grant Amount listed in section 1 of schedule D is committed to fund the Project;
5) it has sufficient funds available to ensure that infrastructure completed or improved under this agreement will be operated and maintained in compliance with this agreement and applicable Federal law; and
6) the individual executing this agreement on behalf of the Designated Subrecipient has authority to enter this agreement and make the statements in this article 3 and in section 21.07 on behalf of the Designated Subrecipient .
Section 3.03 USDOT and Recipient Reliance.
(a) The Designated Subrecipient acknowledges that:
1) the USDOT and the Recipient relied on statements of fact in the Technical Application to select the Project to receive this award;
2) the USDOT and the Recipient relied on statements of fact in both the Technical Application and this agreement to determine that the Designated Subrecipient and the Project are eligible under the terms of the NOFO;
3) the USDOT relied on statements of fact in the Technical Application and the USDOT Application to establish the terms of the USDOT agreement; and 4) the Recipient relied on statements of fact in both the Technical Application and the USDOT Agreement to establish the terms of this agreement; and 5) the USDOT selection of the Project to receive this award prevented awards under the NOFO to other eligible applicants.
Section 3.04 Project Delivery.
(a) The Designated Subrecipient shall complete the Project under the terms of this agreement.
(b) The Designated Subrecipient shall ensure that the Project is financed, constructed, operated, and maintained in accordance with all Federal laws, regulations, and policies that are applicable to projects of the Administering Operating Administration and the Recipient.
Section 3.05 Rights and Powers Affecting the Project.
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(a) The Designated Subrecipient shall not take or permit any action that deprive it or the Recipient of any rights or powers necessary to their performance under the USDOT Agreement and under this Agreement, without written approval of the Recipient and the USDOT.
(b) The Designated Subrecipient shall act promptly, in a manner acceptable to the USDOT and the Recipient, to acquire, extinguish, or modify any outstanding rights or claims of right of others that would interfere with the Designated Subrecipient’s performance under the USDOT Agreement and to the Designated Subrecipient’s performance under this agreement.
Section 3.06 Notification of Changes to Key Personnel.
(a) The Designated Subrecipient shall notify all USDOT and all Recipient representatives who are identified in section 5 of schedule A in writing within 30 calendar days of any change in key personnel who are identified in section 4 of schedule A.
Section 3.07 Subaward to Designated Subrecipient.
(a) Section 9 of schedule A of the USDOT Agreement identifies a Designated Subrecipient, therefore:
1) the Recipient hereby awards a subaward to the Designated Subrecipient for the purpose described in section 1.01;
2) the Recipient and the Designated Subrecipient entered into this agreement, separate from the USDOT Agreement and to which the USDOT is not a party, which assigns responsibilities, including administrative and oversight responsibilities, among the Recipient and the Designated Subrecipient; and
3) for the purpose of 2 C.F.R. parts 200 and 1201, the Recipient is a pass-through entity.
Section 3.08 Designated Subrecipient Statements and Responsibilities. (a) Section 9 of schedule A in the USDOT Agreement identifies a Designated Subrecipient.
The Designated Subrecipient:
1) affirms all statements and acknowledgments that are attributed to the Recipient under sections 3.1 and 3.2 of the USDOT Agreement; and
2) shall assume the Recipient's reporting obligations under articles 7 and 8 of the NAE Terms and Conditions.
Article IV. AWARD AMOUNT, OBLIGATION, AND TIME PERIODS
Section 4.01 Federal Award Amount.
(a) The USDOT awarded a Neighborhood Access and Equity (NAE) Grant to the Recipient in the amount listed in section 1 of schedule D of the USDOT Agreement as the NAE Program Grant Amount.
(b) The Recipient hereby subawards an NAE grant to the Designated Subrecipient in the amount listed in 1 of schedule D of the USDOT Agreement as the NAE Program subaward Grant Amount.
Section 4.02 Federal Funding Source
(a) If section 4 of schedule F identifies the Funding Source as “General Fund,” then the NAE Grant is from the NAE Program funding that was made available in fiscal year 2022 to be 41
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available until September 30, 2026, to be available until September 30, 2026, at IRA, tit.
VI, subt. E § 60501.
Section 4.03 Federal Obligations.
(a) If the Federal Obligation Type identified in section 2 of schedule D is “Single,” then:
1) this agreement apportions for the budget period the amount listed in section 1 of schedule D as the NAE Grant Amount and sections 4.3(c)–4.3(h) do not apply to this agreement;
2) the Designated Subrecipient shall submit a Request for Authorization to the Recipient, per the process and procedures detailed in the Local Assistance Procedures Manual (LAPM) for the amount of funding and the phase of work specified in Schedule D of the USDOT Agreement; and
3) the federal reimbursable work on Project shall not begin, until the Designated Subrecipient requests and receives FHWA authorization approval via an “E76” document, that shows the appropriate amount of federal funds have been authorized by FHWA to the appropriate phase of work, as detailed in Schedule D of the USDOT Agreement.
(b) If the Federal Obligation Type identified in section 2 of schedule D is “Multiple,” then:
1) an amount up to the NAE Grant Amount listed in section 1 of schedule D will be obligated with one initial authorization and one or more subsequent, optional authorizations, as described in sections 4.3(c)–4.3(h). 2) the Designated Subrecipient shall submit a Request for Authorization to the Recipient, for the amount of funding and phase of work specified in Schedule D of the USDOT Agreement, per the process and procedures detailed in the Local Assistance Procedures Manual (LAPM). The Request for Authorization submitted by the Designated Subrecipient to the Recipient shall not exceed the amount obligated to the project by FHWA and Section 4.03(a) of shall not apply to this Agreement. 3) the NAE federal reimbursable work on any Project phase of work shall not begin, until the Designated Subrecipient requests and receives FHWA authorization approval via an “E76” document, that shows the appropriate amount of federal funds have been authorized by FHWA to the appropriate phase of work, as detailed in Schedule D of the USDOT Agreement.
(c) The Obligation Condition Table in section 2 of schedule D of the USDOT Agreement allocates the NAE Grant among separate portions of the Project for the purpose of the Federal obligation of funds. The scope of each portion of the Project that is identified in that table is described in section 2 of schedule B of the USDOT Agreement. (d) The USDOT Agreement apportions for the budget period only the amounts allocated in the Obligation Condition Table in section 2 of schedule D to portions of the Project for which that table does not list an obligation condition.
(e) The USDOT Agreement does not apportion amounts allocated in the Obligation Condition Table in section 2 of schedule D to portions of the Project for which that table lists an obligation condition. The parties may obligate the amounts allocated to those 42
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portions of the Project only as described in sections 4.03(f) and 4.03(g), or by modifying this agreement under article 15.
(f) For each portion of the Project for which the Obligation Condition Table in section 2 of schedule D lists an obligation condition, the amount allocated in that table to that portion of the Project is apportioned and may be authorized by the Designated Subrecipient if the parties execute an instrument, in the form provided in Exhibit D, documenting that:
1) the USDOT and Recipient determine that the obligation condition listed in that table for that portion of the Project is satisfied;
2) the USDOT and Recipient determine that all applicable Federal requirements for obligating the amount are satisfied; and
3) the Designated Subrecipient states that it is not required to request a modification of the USDOT Agreement under article 5 of this Agreement.
(g) The Designated Subrecipient shall not request reimbursement of costs for a portion of the Project for which the Obligation Condition Table in section 2 of schedule D lists an obligation condition, unless the amount allocated in that table to that portion of the Project is apportioned under section 4.03(f) and authorized by the FHWA. (h) The Designated Subrecipient acknowledges that the USDOT and the Recipient are not liable for payments for a portion of the Project for which the Obligation Condition Table in section 2 of schedule D lists an obligation condition, unless the amount allocated in that table to that portion of the Project is obligated under section 4.03(f).
Section 4.04 Budget Period.
(a) The budget period for this award begins on the date of this agreement and ends on the budget period end date that is listed in section 1 of schedule C. In this agreement, “budget period” is used as defined at 2 C.F.R. 200.1.
Section 4.05 Period of Performance.
(a) If the USDOT Payment System identified in section 6 of schedule A is “FMIS,” then the period of performance for this award begins on the date of this agreement and ends on project end date in FMIS.
(b) Reserved.
(c) In this Agreement, “period of performance” is used as defined at 2 C.F.R. 200.1.
Article V. STATEMENT OF WORK, SCHEDULE, AND BUDGET CHANGES Section 5.01 Notification Requirement.
(a) The Designated Subrecipient shall notify all USDOT representatives who are identified in section 5 of schedule A and all Recipient representatives in section 3 of schedule A in writing within 30 calendar days of any change in circumstances or commitments that adversely affect the Designated Subrecipient’s plan to complete the Project. (b) In the notification under section 5.01(a), the Designated Subrecipient shall describe the change and what actions the Designated Subrecipient has taken or plans to take to ensure completion of the Project.
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(c) This notification requirement under this section 5.01 is separate from any requirements under this article 5 that the Designated Subrecipient request modification of this agreement.
Section 5.02 Scope and Statement of Work Changes.
(a) If the Project’s activities differ from the activities described in schedule B of the USDOT Agreement, then the Designated Subrecipient shall request a modification of the USDOT Agreement to update schedule B.
Section 5.03 Schedule Changes.
(a) If one or more of the following conditions are satisfied, then the Designated Subrecipient shall request a modification of this agreement to update schedule C:
1) a completion date for the Project or a component of the Project is listed in section 2, schedule C of the USDOT Agreement and the Designated Subrecipient’s estimate for that milestone changes to a date that is more than six months after the date listed in section 2 of schedule C of the USDOT Agreement; or
2) a schedule change would require the budget period to continue after the budget period end date listed in section 1 of schedule C of the USDOT Agreement. (b) For other schedule changes, the Designated Subrecipient shall follow the applicable procedures of the Administering Operating Administration and the Recipient, and document the changes in writing.
Section 5.04 Budget Changes.
(a) The Designated Subrecipient acknowledges that if the cost of completing the Project increases:
1) that increase does not affect the Designated Subrecipient’s obligation under this agreement to complete the Project; and
2) the USDOT and the Recipient will not increase the amount of this award to address any funding shortfall.
(b) The Designated Subrecipient shall request a modification of the USDOT Agreement to update schedule D if, in comparing the Project’s budget to the amounts listed in section 3 of schedule D of the USDOT Agreement:
1) the total “Non-Federal Funds” amount decreases; or
2) the total eligible project costs amount decreases.
(c) For budget changes that are not identified in section 5.04(b), the Designated Subrecipient shall follow the applicable procedures of the Administering Operating Administration and the Recipient, and document the changes in writing. (d) If there are Project Cost Savings, then the Designated Subrecipient may propose to the USDOT and the Recipient, in writing consistent with the Administering Operating Administration’s and the Recipient's requirements, to include in the Project, specific additional activities that are within the scope of this award, as defined in section 1.01 of this Agreement and schedule B of the USDOT Agreement, and that the Designated Subrecipient could complete with the Project Cost Savings. In this agreement, “Project Cost Savings” means the difference between the actual eligible project costs and the total eligible project costs that are listed in section 3 of schedule D of the USDOT 44
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Agreement, but only if the actual eligible project costs are less than the total eligible project costs that are listed in section 3 of schedule D. There are no Project Cost Savings if the actual eligible project costs are equal to or greater than the total eligible project costs that are listed in section 3 of schedule D of the USDOT Agreement. (e) If there are Project Cost Savings and either the Designated Subrecipient does not make a proposal under section 5.04(d) of this Agreement, or the Recipient does not accept the proposal under section 5.04(d) of this Agreement, or the USDOT does not accept the Designated Subrecipient’s proposal under section 5.4(d) of the USDOT Agreement then:
1) in a request under section 5.04(b), the Designated Subrecipient shall reduce the Federal Share by the Project Cost Savings; and
2) if that modification reduces this award and the USDOT or Recipient had reimbursed costs exceeding the revised award, the Designated Subrecipient shall refund to the USDOT and Recipient the difference between the reimbursed costs and the revised award. In this agreement, “Federal Share” means the sum of the total “NAE Funds” and “Other Federal Funds” amounts that are listed in section 3 of schedule D of the USDOT Agreement.
(f) The Designated Subrecipient acknowledges that amounts that are required to be refunded under section 5.4(e)(2) constitute a debt to the Federal Government that the USDOT and Recipient may collect under 2 C.F.R. 200.346 and the Standards for Administrative Collection of Claims (31 C.F.R. part 901).
Section 5.05 USDOT and Recipient Acceptance of Changes. (a) The USDOT may accept or reject modifications requested under this article 5, and in doing so may elect to consider only the interests of the RCN Program and the USDOT. (b) The Recipient may accept or reject modifications requested under this article 5, and in doing so may elect to consider only the interests of the RCN Program and the Recipient.
Section 5.06 Designated Subrecipient acknowledgement
(a) The Designated Subrecipient acknowledges that requesting a modification under this article 5 does not amend, modify, or supplement this agreement unless the Recipient accepts that modification request and the parties modify this agreement under section
15.01 of this Agreement.
(b) The Designated Subrecipient acknowledges that requesting a modification under this article 5 does not amend, modify, or supplement the USDOT Agreement unless the USDOT and Recipient both accept that modification request and the parties modify the USDOT Agreement under section 15.1 of the USDOT Agreement.
Article VI. GENERAL REPORTING TERMS
Section 6.01 Report Submission.
(a) The Designated Subrecipient shall send all reports required by this agreement to all USDOT contacts who are listed in section 5 of schedule A of the USDOT Agreement, all USDOT contacts who are listed in section 2.02 of this Agreement, and all Recipient Contacts listed in Section 3 of schedule A of the USDOT Agreement.
Section 6.02 Alternative Reporting Methods.
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(a) The Administering Operating Administration and Recipient may establish processes for the Designated Subrecipient to submit reports required by this agreement, including electronic submission processes.
(b) If the Designated Subrecipient is notified of those processes in writing, the Designated Subrecipient shall use the processes required by the Administering Operating Administration and the Recipient.
Section 6.03 Paperwork Reduction Act Information.
(a) Under 5 C.F.R. 1320.6, the Designated Subrecipient is not required to respond to a collection of information that does not display a currently valid control number issued by the Office of Management and Budget (the “OMB”).
(b) Notwithstanding any other term of this agreement, the due date for any information collections required under this agreement, including the reporting requirements in articles 7 and 8, is the later of (1) the due date stated with the requirement and (2) the 30th day after OMB approves that information collection.
Article VII. PROGRESS AND FINANCIAL REPORTING
Section 7.01 Quarterly Project Progress Reports and Recertifications. (a) On or before the 20th day of the first month of each calendar year quarter and until the end of the period of performance, the Designated Subrecipient shall submit to the USDOT and the Recipient a Quarterly Project Progress Report and Recertification in the format and with the content described in exhibit C.
(b) If the date of this agreement is in the final month of a calendar year quarter, then the Designated Subrecipient shall submit the first Quarterly Project Progress Report and Recertification in the second calendar year quarter that begins after the date of this agreement.
Section 7.02 Final Progress Reports and Financial Information. (a) No later than 120 days after the end of the period of performance, the Designated Subrecipient shall submit:
1) a Final Project Progress Report and Recertification in the format and with the content described in exhibit C for each Quarterly Project Progress Report and Recertification, including a final Federal Financial Report (SF-425); and 2) any other information required under the Administering Operating Administration’s and the Recipient's award closeout procedures.
Article VIII. PERFORMANCE REPORTING
Section 8.01 Baseline Performance Measurement.
(a) If the Capital-Planning Designation in schedule F of the USDOT Agreement is “Capital” or "Capital Construction" then:
1) before the start of construction on the Project, but not earlier than one year before the start of construction on the Project, the Designated Subrecipient shall collect baseline data for each performance measure that is enumerated in schedule G of the USDOT Agreement; and
2) not later than January 31 of the calendar year that begins after the Designated Subrecipient collects baseline data under section 8.01(a) of this Agreement, the 46
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Designated Subrecipient shall submit a Baseline Performance Measurement Report containing the data collected under section 8.01(a), stating the dates when the data was collected, and describing, in detail, the data sources, assumptions, variability, and estimated levels of precision for each performance measure that is enumerated in schedule G of the USDOT Agreement.
Section 8.02 Post-construction Performance Measurement. (a) If the Capital-Planning Designation in schedule F of the USDOT Agreement is "Capital" or "Capital Construction" then:
1) for each performance measure that is enumerated in schedule G and has a quarterly measurement frequency, for each of 19 consecutive calendar quarters, beginning with the first calendar quarter that begins after the Project substantial completion date, at least once during the quarter, the Recipient shall collect data for that performance measure; and
2) for each performance measure that is enumerated in schedule G of the USDOT Agreement and has an annual measurement frequency, the Designated Subrecipient shall collect data for that performance measure on at least five separate occasions:
i) once during the three consecutive calendar quarters that begin after the Project substantial completion date;
ii) once during the fourth calendar quarter after the first collection; iii) once during the eighth calendar quarter after the first collection; iv) once during the twelfth calendar quarter after the first collection; and v) once during the sixteenth calendar quarter after the first collection. (b) Not later than January 31 of each year that follows a calendar year during which data was collected under section 8.02(a) of this Agreement, the Designated Subrecipient shall submit to the USDOT and the Recipient a Post-construction Performance Measurement Report containing the data collected under section 8.02(a) of this Agreement in the previous calendar year and stating the dates when the data was collected. (c) If an external factor significantly affects the value of a performance measure collected under section 8.02(a) of this Agreement, then the Designated Subrecipient shall identify that external factor in the Post-construction Performance Measurement Report described in section 8.02(b) of this Agreement and discuss the external factor’s influence on the performance measure.
Section 8.03 Project Outcomes Report.
(a) If the Capital-Planning Designation in section 1 of schedule F of the USDOT Agreement is “Capital Construction,” then the Designated Subrecipient shall submit to the USDOT, not later than January 31 of the year that follows the final calendar year during which data was collected under section 8.02(a) of this Agreement, a Project Outcomes Report that contains:
1) an analysis of the impacts of the project, including a comparison of the baseline performance measurement data collected under section 8.01 of this Agreement with the post-construction performance measurement data that the Designated 47
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Subrecipient reported in the final Post-construction Performance Measurement Report required under section 8.02(b) of this Agreement; 2) for each performance measure that is enumerated in schedule G of the USDOT Agreement, an analysis of the accuracy of the projected outcome listed in schedule G of the USDOT Agreement; and
3) all data collected under sections 8.01 and 8.02(a) of this Agreement.
Section 8.04 General Performance Measurement Requirements. (a) For each performance measure that is enumerated in schedule G of the USDOT Agreement, the Designated Subrecipient shall ensure that all data collections under article 8 of this Agreement are completed in a manner consistent with the description, location, and other attributes associated with that performance measure in schedule G of the USDOT Agreement.
Section 8.05 Outcome Measurement and Reporting Survival. (a) The data collection and reporting requirements in article 8 of this Agreement survive the termination of this agreement.
Article IX. Noncompliance and Remedies
Section 9.01 Noncompliance Determinations.
(a) If the USDOT or the Recipient determine that the Designated Subrecipient may have failed to comply with the United States Constitution, Federal law, or the terms and conditions of this Agreement, the USDOT or the Recipient may notify the Designated Subrecipient of a proposed determination of noncompliance. For that notice to be effective, it must be written and the USDOT or the Recipient must include an explanation of the nature of the noncompliance, describe a remedy, state whether that remedy is proposed or effective at an already determined date, and describe the process through and form in which the Designated Subrecipient may respond to the notice.
(b) If the USDOT or Recipient notifies the Designated Subrecipient of a proposed determination of noncompliance under section 9.01(a) of this Agreement, the Designated Subrecipient may, not later than 7 calendar days after the notice, respond to that notice in the form and through the process described in that notice. In its response, the Designated Subrecipient may:
1) accept the remedy;
2) acknowledge the noncompliance, but propose an alternative remedy; or 3) dispute the noncompliance. To dispute the noncompliance, the Designated Subrecipient must include in its response documentation or other information supporting the Designated Subrecipient’s compliance.
(c) The USDOT or the Recipient may make a final determination of noncompliance only:
1) after considering the Designated Subrecipient’s response under section 9.01(b); or 2) if the Designated Subrecipient fails to respond under section 9.01(b), after the time for that response has passed.
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(d) To make a final determination of noncompliance, the USDOT or the Recipient must provide to the Designated Subrecipient a notice that states the basis for that determination.
Section 9.02 Remedies.
(a) If the USDOT or the Recipient makes a final determination of noncompliance under section 9.01, the USDOT or the Recipient may impose a remedy, including:
1) adding conditions or modifying existing conditions on the award; 2) any remedy permitted under 2 C.F.R. 200.339-200.340, including withholding of payments; disallowance of previously reimbursed costs, requiring refunds from the Designated Subrecipient to the USDOT via the Recipient; suspension or termination of the award; or suspension and disbarment under 2 C.F.R. part 180; or 3) any other remedy legally available.
(b) To impose a remedy, the USDOT or Recipient must provide to the Designated Subrecipient a written notice that describes the remedy, but the USDOT or Recipient may make the remedy effective before the Designated Subrecipient receives that notice.
(c) If the USDOT or Recipient determine that it is in the public interest, the USDOT or Recipient may impose a remedy, including all remedies described in section 9.02(a) of this Agreement, before making a final determination of noncompliance under section
9.01 of this Agreement. If USDOT or Recipient do so, then the notice provided under section 9.01(d) must also state whether the remedy imposed will continue, be rescinded, or modified.
(d) In imposing a remedy under this section 9.02 or making a public interest determination under section 9.02(c), the USDOT or the Recipient may elect to consider the interests of only the USDOT or the Recipient, respectively.
(e) The Designated Subrecipient acknowledges that amounts that the USDOT or Recipient require the Designated Subrecipient to refund to the USDOT or Recipient, due to a remedy under this section 9.02 constitute a debt to the Federal Government that the USDOT and Recipient may collect under 2 C.F.R. 200.346 and the Standards for Administrative Collection of Claims (31 C.F.R. part 901).
Section 9.03 Other Oversight Entities.
(a) Nothing in this article 9 limits any party’s authority to report activity under this agreement to the United States Department of Transportation Inspector General or other appropriate oversight entities.
Article X. AGREEMENT TERMINATION
Section 10.01 Recipient Termination.
(a) The Recipient may terminate this agreement and all of its obligations under this agreement if any of the following occurs:
1) the Designated Subrecipient fails to timely obtain or timely provide any non-NAE Grant contribution or alternatives approved by the USDOT and the Recipient as provided in this agreement and consistent with schedule D of the USDOT Agreement; 49
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2) a completion date for the Project or a component of the Project is listed in section 2 of schedule C and the Designated Subrecipient fails to meet that milestone by six months after the date listed in section 2 of schedule C; 3) the Designated Subrecipient fails to meet a milestone listed in section 3 of schedule C by the deadline date listed in that section for that milestone; 4) the Designated Subrecipient fails to comply with the terms and conditions of this Agreement, including a material failure to comply with the project schedule in schedule C even if it is beyond the reasonable control of the Designated Subrecipient; 5) circumstances cause changes to the Project that the USDOT or Recipient determines are inconsistent with the USDOT's basis for selecting the Project to receive a NAE Grant; or
6) the USDOT or Recipient determines that termination of this agreement is in the public interest.
(b) In terminating this agreement under this section, the Recipient may elect to consider only the interests of the Recipient.
(c) This section 10.01 does not limit the Recipient’s ability to terminate this agreement as a remedy under section 9.02.
(d) The Designated Subrecipient may request that the Recipient terminate the agreement under this section 10.01.
Section 10.02 Closeout Termination.
(a) This Agreement terminates on Project Closeout.
(b) In this Agreement, “Project Closeout” means the date that the USDOT informs the Recipient that the award is closed out. Under 2 C.F.R. 200.344, Project Closeout should occur no later than one year after the end of the period of performance.
Section 10.03 Post-Termination Adjustments.
(a) The Designated Subrecipient acknowledges that under 2 C.F.R. 200.345–200.346, termination of the agreement does not extinguish the USDOT's or Recipient's authority to disallow costs, including costs that the USDOT or Recipient reimbursed before termination, and recover funds from the Designated Subrecipient.
Section 10.04 Non-Terminating Events.
(a) The end of the budget period described under section 4.04 does not terminate this Agreement or the Designated Subrecipient’s obligations under this Agreement. (b) The end of the period of performance described under section 4.05 does not terminate this Agreement or the Designated Subrecipient’s obligations under this Agreement. (c) The cancellation of funds under section 14.02 does not terminate this agreement or the Designated Subrecipient’s obligations under this agreement.
Section 10.05 Other Remedies.
(a) The termination authority under this article 10 supplements and does not limit the USDOT's and Recipient's remedial authority under article 9 or 2 C.F.R. part 200, including 2 C.F.R. 200.339–200.340.
Article XI. MONITORING, FINANCIAL MANAGEMENT, CONTROLS, AND RECORDS Section 11.01 Recipient Monitoring and Record Retention. 50
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(a) The Designated Subrecipient shall monitor activities under this award, including activities under subawards and contracts, to ensure:
1) that those activities comply with this agreement; and 2) that funds provided under this award are not expended on costs that are not allowable under this award or not allocable to this award. (b) If the Designated Subrecipient makes a subaward under this award, the Designated Subrecipient shall monitor the activities of the subrecipient in compliance with 2 C.F.R. 200.332(e).
(c) The Designated Subrecipient shall retain records relevant to the award as required under 2 C.F.R. 200.334.
Section 11.02 Financial Records and Audits.
(a) The Designated Subrecipient shall keep all project accounts and records that fully disclose the amount and disposition by the Designated Subrecipient of the award funds, the total cost of the Project, and the amount or nature of that portion of the cost of the Project supplied by other sources, and any other financial records related to the project. (b) The Designated Subrecipient shall keep accounts and records described under section
11.02(a) in accordance with a financial management system that meets the requirements of 2 C.F.R. 200.302–200.307, 2 C.F.R. 200 subpart F, and title 23, United States Code, and will facilitate an effective audit in accordance with 31 U.S.C. 7501– 7506.
(c) The Designated Subrecipient shall separately identify expenditures under the fiscal year 2023 NAE Program in financial records required for audits under 31 U.S.C. 7501–7506.
Specifically, the Designated Subrecipient shall:
1) list expenditures under that program separately on the schedule of expenditures of Federal awards required under 2 C.F.R. 200 subpart F, including “FY 2023” in the program name; and
2) list expenditures under that program on a separate row under Part II, Item 1 (“Federal Awards Expended During Fiscal Period”) of Form SF-SAC, including “FY 2023” in column c (“Additional Award Identification”).
Section 11.03 Internal Controls.
(a) The Designated Subrecipient shall establish and maintain internal controls as required under 2 C.F.R. 200.303.
Section 11.04 USDOT Record Access.
(a) The USDOT and the Recipient may access Designated Subrecipient records related to this award under 2 C.F.R. 200.337.
Section 11.05 Oversight Responsibilities.
(a) This award is subject to the oversight requirements of title 23, United States Code.
Article XII. CONTRACTING AND SUBAWARDS
Section 12.01 Minimum Wage Rates.
(a) The Designated Subrecipient shall include, in all contracts in excess of $2,000 for work on the Project that involves labor, provisions establishing minimum rates of wages, to be predetermined by the United States Secretary of Labor, in accordance with 23 U.S.C. 51
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113, that contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids for the work.
Section 12.02 Buy America.
(a) Steel, Iron, and Manufactured Products.
1) Steel, iron, and manufactured products used in the Project are subject to 23 U.S.C. 313, as implemented by the Federal Highway Administration. 2) The Designated Subrecipient acknowledges that this agreement is neither a waiver of 23 U.S.C. 313(a) nor a finding under 23 U.S.C. 313(b).
(b) Construction Materials.
1) Construction materials used in the Project are subject to the domestic preference requirement at § 70914 of the Build America, Buy America Act, Pub. L. No. 117-58, div. G, tit. IX, subtit. A, 135 Stat. 429, 1298 (2021), as implemented by OMB, USDOT, and FHWA.
2) 2) The Designated Subrecipient acknowledges that this agreement is neither a waiver of § 70914(a) nor a finding under § 70914(b).
(c) Buy America Preference.
1) Under 2 C.F.R. 200.322, as appropriate and to the extent consistent with law, the Designated Subrecipient should, to the greatest extent practicable under this award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products).
2) The Designated Subrecipient shall include the requirements of 2 C.F.R. 200.322 in all subawards including all contracts and purchase orders for work or products under this award.
Section 12.03 Small and Disadvantaged Business Requirements. (a) If any funds under this award are administered by or through a State Department of Transportation, the Designated Subrecipient shall expend those funds in compliance with the requirements at 49 C.F.R. part 26 (“Participation by disadvantaged business enterprises in Department of Transportation financial assistance programs”). (b) If any funds under this award are not administered by or through a State Department of Transportation, the Designated Subrecipient shall expend those funds in compliance with the requirements at 2 C.F.R. 200.321 (“Contracting with small businesses, minority businesses, women’s business enterprises, veteran-owned businesses, and labor surplus area firms”).
Section 12.04 Engineering and Design Services.
(a) As applicable, the Designated Subrecipient shall award each contract or sub-contract for program management, construction management, planning studies, feasibility studies, architectural services, preliminary engineering, design, engineering, surveying, mapping, or related services with respect to the project in the same manner that a contract for architectural and engineering services is negotiated under the Brooks Act, 40 U.S.C. 1101-1104 as implemented in 23 U.S.C. 112(b)(2), or an equivalent qualifications-based 52
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requirement prescribed for or by the Designated Subrecipient and approved in writing by the USDOT.
Section 12.05 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment.
(a) The Designated Subrecipient acknowledges that Section 889 of Pub. L. No. 115-232 and 2 C.F.R. 200.216 prohibit the Designated Subrecipient and all subrecipients from procuring or obtaining certain telecommunications and video surveillance services or equipment under this award.
Section 12.06 Pass-through Entity Responsibilities.
(a) If the Designated Subrecipient makes a subaward under this award, the Designated Subrecipient shall comply with the requirements on pass-through entities under 2 C.F.R. parts 200 and 1201, including 2 C.F.R. 200.331–200.333.
Section 12.07 Subaward and Contract Authorization.
(a) If the USDOT Office for Subaward and Contract Authorization identified in section 7 schedule A is “FHWA Division,” then the Designated Subrecipient shall comply with subaward and contract authorization requirements under 23 C.F.R chapter I. (b) If the USDOT Office for Subaward and Contract Authorization identified in section 7 of schedule A is “FHWA Office of Acquisition and Grants Management,” then the Designated Subrecipient shall obtain prior written approval from the USDOT agreement officer pursuant to 2 C.F.R. 200.308, 2 C.F.R. 200.333, and 23 C.F.R. part 172, as applicable, and provide a copy of this written approval to the Recipient, for the subaward or contracting out of any work under this agreement. Unless otherwise specified in writing by the agreement officer, approvals under 2 C.F.R. 200.308 will be contingent upon a fair and reasonable price determination on the part of the Designated Subrecipient and the agreement officer’s concurrence on that determination. Approvals under 2 CFR 200.308(f)(6) do not apply to the acquisition of supplies, material, equipment, or general support services.
Article XIII. COSTS, PAYMENTS, AND UNEXPENDED FUNDS
Section 13.01 Limitation of Federal Award Amount.
(a) Under this award, the USDOT and Recipient shall not provide funding greater than the amount obligated under section 4.03.
(b) The Designated Subrecipient acknowledges that the USDOT and the Recipient is not liable for payments exceeding that amount, and the Designated Subrecipient shall not request reimbursement of costs exceeding that amount.
Section 13.02 Projects Costs.
(a) This award is subject to the cost principles at 2 C.F.R. 200 subpart E, including provisions on determining allocable costs and determining allowable costs.
Section 13.03 Timing of Project Costs.
(a) The Designated Subrecipient shall not charge to this award costs that are incurred after the budget period.
(b) The Designated Subrecipient shall not charge to this award costs that were incurred before the date of this agreement unless those costs are identified in section 5 of 53
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schedule D and would have been allowable if incurred during the budget period. This limitation applies to costs incurred under an advance construction authorization (23 U.S.C. 115), costs incurred prior to authorization (23 C.F.R. 1.9(b)), and pre-award costs under 2 C.F.R. 200.458.
(c) This agreement hereby terminates and supersedes any previous USDOT and Recipient approval for the Designated Subrecipient to incur costs under this award for the Project. (d) Section 5 of schedule D is the exclusive USDOT approval of costs incurred before the date of this agreement.
Section 13.04 Designated Subrecipient Recovery of Federal Funds. (a) The Designated Subrecipient shall make all reasonable efforts, including initiating litigation, if necessary, to recover Federal funds if the USDOT or Recipient determine, after consultation with the Designated Subrecipient, that those funds have been spent fraudulently, wastefully, or in violation of Federal laws, or misused in any manner under this award.
(b) The Designated Subrecipient shall not enter a settlement or other final position, in court or otherwise, involving the recovery of funds under the award unless approved in advance in writing by the USDOT and Recipient.
Section 13.05 Unexpended Federal Funds.
(a) Any Federal funds that are awarded at section 4.01 but not expended on allocable, allowable costs remain the property of the United States.
Section 13.06 Timing of Payments to the Recipient.
(a) Reimbursement is the payment method for the NAE program. (b) The Designated Subrecipient shall not request reimbursement of a cost before the Designated Subrecipient has entered into an obligation for that cost.
Section 13.07 Payment Method.
(a) If the USDOT Payment System identified in section 6 of schedule A is “FMIS,” then the Designated Subrecipient shall follow FMIS procedures to request and receive reimbursement payments under this award.
Article XIV. LIQUIDATION, ADJUSTMENTS, AND FUNDS AVAILABILITY Section 14.01 Liquidation of Recipient Obligations.
(a) The Designated Subrecipient shall liquidate all obligations of award funds under this agreement not later than 120 days after the end of the period of performance. (b) Liquidation of obligations and adjustment of costs under this Agreement follow the requirements of 2 C.F.R. 200.344–200.346.
Section 14.02 Funds Cancellation.
(a) NAE Program funding that is obligated for this award under section 4.03 remains available until expended.
Article XV. AGREEMENT MODIFICATIONS
Section 15.01 Bilateral Modifications.
(a) The parties may amend, modify, or supplement this agreement by mutual agreement in writing signed by the Recipient and the Designated Subrecipient. Either party may 54
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request to amend, modify, or supplement this agreement by written notice to the other party.
(b) The USDOT Agreement may be amended, modified, or supplemented by mutual agreement in writing, signed by the FHWA and the Recipient. The Designated Subrecipient may request to amend, modify, or supplement the USDOT Agreement by written notice to the FHWA and the Recipient.
Section 15.02 Contact Modifications.
(a) The Recipient may update the contacts who are listed in section 3 of schedule A by written notice to the USDOT contacts who are listed in section 5 of schedule A, the USDOT contacts who are listed in section 2.02, and the Designated Subrecipient contacts in section 9 of the USDOT Agreement.
(b) The USDOT may update the contacts who are listed in section 5 of schedule A and section 2.02 by written notice to all of the Recipient contacts who are listed in section 3 of schedule A.
(c) The Designated Subrecipient may update the contacts who are listed in section 9 of schedule A by written notice to the Recipient and USDOT.
Section 15.03 Provisions that Conflict with Federal law. (a) If any provision of this Agreement conflicts with Federal law including the Program Statute, then the Federal law prevails.
(b) Either party may notify the other party upon discovery that a provision conflicts with Federal law and the parties may agree to amend this Agreement in accordance with section 20.01.
(c) Either party must provide written notice to the other party when it acts or refuses to act where its action or inaction conflicts with a provision of this Agreement but complies with Federal law.
Section 15.04 Other Modifications.
(a) The parties shall not amend, modify, or supplement the USDOT Agreement or this Agreement except as permitted under sections 15.01, 15.02, or 15.03. (b) If an amendment, modification, or supplement is not permitted under sections 15.01,
15.02, or 15.03, it is void.
Article XVI. CLIMATE CHANGE AND ENVIRONMENTAL JUSTICE
Section 16.01 Climate Change and Environmental Justice. (a) Consistent with Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad” (Jan. 27, 2021), schedule H documents the consideration of climate change and environmental justice impacts of the Project.
Article XVII. RACIAL EQUITY AND BARRIERS TO OPPORTUNITY Section 17.01 Racial Equity and Barriers to Opportunity. (a) Consistent with Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (Jan. 20, 2021), schedule I documents activities related to the Project to improve equity and reduce barriers to opportunity.
Section 17.02 Community Engagement Activities.
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(a) This provision is applicable to only Capital Construction Grants and Regional Partnership Challenge Grants, not Planning Grants.
(b) The USDOT has determined that, for the purpose of the requirement stated in section F.2.i of the NOFO, through the activities documented in section 3 of schedule I, the Designated Subrecipient has sufficiently considered community engagement related to the Project.
Section 17.03 Activities to Safeguard Affordability.
(a) This provision is applicable to only Capital Construction Grants and Regional Partnership Challenge Grants, not Planning Grants.
(b) The USDOT has determined that, for the purpose of the requirement stated in section F.2.i of the NOFO, through the activities documented in section 4 of schedule I, the Designated Subrecipient has sufficiently considered safeguards to retain affordability for existing residents and businesses in the Project area and surrounding communities.
Article XVIII. LABOR AND WORK
Section 18.01 Labor and Work.
(a) Consistent with Executive Order 14025, “Worker Organizing and Empowerment” (Apr. 26, 2021), and Executive Order 14052, “Implementation of the Infrastructure Investment and Jobs Act” (Nov. 15, 2021), schedule J documents the consideration of job quality and labor rights, standards, and protections related to the Project.
Section 18.02 OFCCP Mega Construction Project Program.
(a) If the total eligible project costs that are listed in section 3 of schedule D are greater than $35,000,000 and the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) selects this award for participation in the Mega Construction Project Program, then the Designated Subrecipient shall partner with OFCCP and the Recipient, as requested by OFCCP or the Recipient.
Article XIX. Reserved.
Article XX. CRITICAL INFRASTRUCTURE SECURITY AND RESILIENCE Section 20.01 Critical Infrastructure Security and Resilience. (a) Consistent with Presidential Policy Directive 21, “Critical Infrastructure Security and Resilience” (Feb. 12, 2013), and the National Security Presidential Memorandum on Improving Cybersecurity for Critical Infrastructure Control Systems (July 28, 2021), the Designated Subrecipient shall consider physical and cyber security and resilience in planning, design, and oversight of the Project.
(b) If the Security Risk Designation in section 5 Schedule F is “Elevated,” then, not later that than two years after the date of this agreement, the Designated Subrecipient shall submit to the USDOT a report that:
1) identifies a cybersecurity Point of Contact for the transportation infrastructure being improved in the Project;
2) summarizes or contains a cybersecurity incident reporting plan for the transportation infrastructure being improved in the Project;
3) summarizes or contains a cybersecurity incident response plan for the transportation infrastructure being improved in the Project;
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