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CtTY OF SAN BERNARDINO -
"
REQUEST FOR COUNCIL ACTION
File No.6. 50
From:
ROGER G. HARDGRAVE
Subject:
Authorization to Execute Master
Agreement with State of
California - Adninistering
Agency - Federal-Aid Projects
Dept:
Public Works
Date:
4-08-97
O.7/GINAL
Synopsis of Previous Council action:
04-03-78 - Resolution No. 13,220 adopted
Local Agency-State Agreement
No. 08-5033.
authorizing execution of
for Federal-Aid Projects
Recommended motion:
Adopt resolution.
ADtIlli~C ?,~'l;#~d Wilson
Jim Penman
8 APR97 5:Cj
o~
Signature
Contact person: Roqer G. Hardqrave
Staff Report, Master
Supporting data attached: Aqreenent & Resolution
Phone:
5025
Ward:
All
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (Acct. No.)
(Acct. Descriotion)
Finance:
Council Notes:
Res 97- / / tj
S/5/91
Agenda Item No. 1 (p
75-0262
,.
~_....' .."
"CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
.~ - ,
STAFF REPORT
At the Council meeting of 4-06-78, authorization was
granted to execute a Local Agency-State Agreement for Federal-Aid
Projects No. 08-5033.
This agreement set forth the conditions under which
Federal-Aid funds are apportioned to local agencies and expended
on street and highway improvement projects. A program supplement
is entered into by local agencies and the Department of Transpor-
tation for each project financed with Federal-Aid funds
apportioned by the Federal Highway Administration.
An updated Master Agreement, Administering Agency - State
Agreement for Federal-Aid Projects, has been prepared. by the
Department of Transportation and submitted for approval. This
updated agreement reflects the new provisions of the Intermodal
Surface Transportation Efficiency Act (ISTEA), and the re-
engineered State-Local Assistance procedures.
The proposed agreement covers the general requirements of
all Federal-Aid projects relative to the prosecution of projects
and the maintenance of the completed facilities.
Since execution of this Master Agreement is a requirement
for receipt of Federal-Aid Funds, through the Federal Highway Ad-
ministration, we recommend that the updated agreement be
approved.
4-08-97
7\5~0264
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MASTER AGREEMENT
ADMINISTERING AGENCY-STATE AGREEMENT
FOR
FEDERAL-AID PROJECTS
08
District
Citv of San Bernardino
Administering Agency
Agreement No. 08-5033
This AGREEMENT, made effective this day of , 1997, is by and between
the City of San Bernardino, hereinafter referred to as "ADMINISTERING AGENCY," and the State
of California, acting by and through the California Department of Transportation (Caltrans), hereinafter
referred to as "STATE."
WITNESSETH:
WHEREAS, the Congress of the United States has enacted the lntermodal Surface Transportation
Efficiency Act of 1991 to fund programs which include, but are not limited to, the Surface Transportation
Program (RSTP), the Congestion Mitigation and Air Quality Improvement Program (CMAQ), the
Arransportation Enhancement Activities Program (TEA), and the Bridge Replacement and Rehabilitation
"rogram (HBRR) (collectively the "Programs"); and
WHEREAS, the Legislature of the State of California has enacted legislation by which certain
Federal funds (RSTP and CMAQ) may be made available for use on local transportation facilities of public
entities qualified to act as recipients of these federal funds in accordance with the intent of Federal law; and
WHEREAS, before Federal-aid will be made available for a specific Program project,
ADMINISTERING AGENCY and STATE are required to enter into an agreement relative to prosecution
of said project and maintenance of the completed facility.
NOW, THEREFORE, the parties agree as follows;
ARTICLE I . PROJECT ADMINISTRATION
1. This AGREEMENT shall have no force or effect with respect to any Program project
unless and until a project-specific Program Supplement to this AGREEMENT for Federal-aid Projects,
hereinafter referred to as "PROGRAM SUPPLEMENT," has been executed.
2. The term "PROJECT," as used herein, means that authorized project financed in part with
Federal funds as further described in an "Authorization to Proceed" document executed by STATE, in the
subsequent specific PROGRAM SUPPLEMENT, and in a Federal-aid Project Agreement (PR-2).
3. The Financial commitment of STATE administered federal funds will occur only upon the
~ecution of this AGREEMENT, and the execution of each project-specific PROGRAM SUPPLEMENT
..d PR-2.
EXHIBIT -A-
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_ 4. ADMINISTERING AGENCY further agrees. as a condition to payment of funds obligated
W? a PROJECT. to comply with all the agreed-upon Special Covenants or Remarks attached to the
PROGRAM SUPPLEMENT identifying and defining the nature of the specific PROJECT.
5. The PROGRAM SUPPLEMENT shall designate the party responsible for implementing
the various phases of the PROJECT. the Federal funds requested. and the matching funds to be provided
by ADMINISTERING AGENCY and/or STATE. Adoption of the PROGRAM SUPPLEMENT by
ADMINISTERING AGENCY and approval by STATE shall cause such PROGRAM SUPPLEMENT to
be executed and be a part of this AGREEMENT as though fully set forth herein. Unless otherwise
expressly delegated in a resolution by the ADMINISTERING AGENCY's governing body, the
PROGRAM SUPPLEMENT shall be approved and managed by the ADMINISTERING AGENCY's
governing body. .
6. ADMINISTERING AGENCY shall conform to all State statutes. regulations and
procedures (including those set forth in LPP 95-07, "Reengineering." and subsequent approved revisions
. and Local Programs Manual updates, hereafter referred to as REENGINEERED PROCEDURES) relating
to the Federal-aid Program. all Title 23 Federal requirements, and all applicable Federa1laws. regulations.
and policy and procedural or instructional memoranda, unless otherwise designated in the approved
PROGRAM SUPPLEMENT.
7. If PROJECT involves work on the State highway system. it shall also be the subject of a
separate standard form of encroachment permit and, where appropriate, a cooperative agreement between
STATE and ADMINISTERING AGENCY to determine how the PROJECT is to be constructed.
8. If PROJECT is not on STATE-owned right of way. PROJECT shall be constructed in
accordance with REENGINEERED PROCEDURES. The REENGINEERED PROCEDURES describe
Aninimwn statewide design standards for local agency streets and roads. The REENGINEERED
wp'R~EDURES for projects off the National Highway System (NHS) allow the STATE to accept either
the minimwn statewide design standards or ADMINISTERING AGENCY-approved geometric design
standards. Also. for projects off the NHS. STATE will accept ADMINISTERING AGENCY-approved
standard specifications. standard plans. and materials sampling and testing quality assurance programs that
meet the conditions described in the REENGINEERED PROCEDURES.
9. When PROJECT is not on the State highway system but includes work to be performed by
a railroad. the contract for such work shall be prepared by ADMINISTERING AGENCY or by STATE,
as the parties may hereafter agree. In either event, ADMINISTERING AGENCY shall enter into an
agreement with the railroad providing for future maintenance of protective devices or other facilities
installed under the contract
10. ADMINISTERING AGENCY shall provide or arrange for adequate supervision and
inspection of each PROJECT. As provided in the REENGINEERED PROCEDURES, work may be
performed by a consultant(s), provided a fully qualified and licensed employee of ADMINISTERING
AGENCY is in responsible charge.
11. The Congress of the United States. the Legislature of the State of California, and the
Governor of the State of California, each within their respective jurisdiction. have prescribed certain
employment practices with respect to work financed with Federal or State funds. ADMINISTERING
AGENCY agrees to comply with the requirements of the FAIR EMPLOYMENT PRACTICES
ADDENDUM (Exhibit A attached hereto) whenever State funds finance part of the PROJECT, and the
NONDISCRIMINATION ASSURANCES (Exhibit B attached hereto). ADMINISTERING AGENCY
further agrees that any agreement entered into by ADMINISTERING AGENCY with a third party for
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Anenonnance of work connected with the PROJECT shall inCOIpOrate Exhibits A (whenever State funds
~Wnce pan of the PROJEC1) and Exhibit B (with third party's name replacing ADMINISTERING
AGENCY) as parts of such agreement.
ARTICLE n - RIGHTS OF WAY
1. No contract for the construction of a Federal-aid PROJECT shall be awarded until the
necessary rights of way have been secured. Prior to the advertising for consttuction of the PROJECT,
ADMINISTERING AGENCY shall certify and, upon request, shall furnish STAlE with evidence that
necessary rights of way are available for consttuction purposes or will be available by the time of award of
the consll'UCtion contract.
2. ADMINIS1ERING AGENCY agrees to indemnify and hold STAlE harmless from any
liability which may result in the event the right of way for a PROJECT is not clear as certitied. The
furnishing of right of way as provided for herein includes, in addition to all real property required for the
PROJECT, title free and clear of obsttuctions and encumbrances affecting PROJECT and the payment, as
required by applicable law, of damages to real property not actually taken but injuriously affected by
PROJECT. ADMINlSlERING AGENCY shall pay, from its own non-matching funds, any costs which
arise out of delays to the consttuction of the PROJECT because utility facilities have not been removed or
relocated, or because rights of way have not been made available to ADMINIS1ERING AGENCY for the
orderly prosecution of PROJECT work.
3. Subject to STAlE approval and such supervision as is required in REENGINEERED
PROCEDURES over ADMINISTERING AGENCY's right of way acquisition procedures,
eADMINlS1ERING AGENCY may claim reimbursement from Federal funds for expenditures to purchase
only neceS!Qry rights of way included in PROJECT after crediting PROJECT with the fair market value of
any excess property retained and not disposed of by ADMINISTERING AGENCY.
4. When real property rights are to be acquired by ADMINlS1ERING AGENCY for a
PROJECT, said ADMINIS1ERING AGENCY must carry out that acquisition in compliance with the
Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended.
5. Whether or not Federal-aid is to be requested for right of way, should ADMINIS1ERING
AGENCY, in acquiring right of way for PROJECT, displace an individual, family, business, farm
operation, or non-profit organization, relocation payments and services will be provided as set forth in
Chapter 5 of Title 23, U.S. Code. The public will be adequately informed of tile relocation payments and
services which will be available; and, to the greatest extent practicable, no person lawfully occupying real
property shall be required to move from bislher dwelling or to move bislher business or farm operation
without at least 9O-days written notice from ADMINlS1ERING AGENCY. ADMINISTERING
AGENCY will provide STAlE with specific assurances, on each portion of the PROJECT, that no person
will be displaced until comparable decent, safe and sanitary replacement housing is available within a
reasonable period of time prior to displacement, and that ADMINISTERING AGENCY's relocation
program is realistic and adequate to provide orderly, timely and efficient relocation of displaced persons
for the PROJECT as provided in Federal Highway Programs Manual (FHPM 7-5).
6. In all real property transactions acquired for the PROJECT, following recordation of the
deed or such other recorded insttument evidencing title in the name of the ADMINIS1ERING AGENCY
or their assignee, there shall also be recorded a separate document which is an . Agreement Declaring
Restrictive Covenants.. Said Agreement Declaring Restrictive Covenants will incoIpOrate the assurances
included within Exhibits A and B and Appendices A, B, C and D, as appropriate, when executed by
e ADMINIS1ERING AGENCY.
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ARTICLE ill . MANAGEMENT AND MAINTENANCE OF PROPERTY
1. ADMINlSlERING AGENCY will maintain and operate the PROJECT property acquired,
developed, rehabilitated, or restored for its intended public use until such time as the parties might amend
this AGREEMENT to otherwise provide. With the approval of STATE, ADMINlSlERING AGENCY or
its successors in interest in the property may transfer this obligation and responsibility to maintain and
operate the property to another public entity.
2. Upon ADMINISTERING AGENCY acceptance of the completed Federal-aid construction
contract or upon contractor being relieved of the responsibility for maintaining and protecting a portion of
the WOlX, the agency having jurisdiction over the PROJECT shall maintain the completed work in a
manner satisfactory to the authorized representatives of STATE and the United States. H, within 90 days
after receipt of notice from STAlE that a PROJECT, or any portion thereof, under ADMINISTERING
AGENCY's jurisdiction is not being properly maintained and ADMINlSlERING AGENCY has not
satisfactorily remedied the conditions complained of. the approval of future Federal-aid projects of
ADMINISTERING AGENCY will be withheld until the PROJECT shall have been put in a condition of
maintenance satisfactory to STAlE and the Federal Highway Administration. The provisions of this
section shall not apply to a PROJECT which has been vacated through due process of law.
3. The maintenance referred to in paragraph 2, above, includes not only the physical condition
of the PROJECT but its operation as well. PROJECT shall be maintained by an adequate and well-trained
staff of engineers and/or such other professionals and technicians as the project requires. Said
maintenance staff may be employees of ADMINISTERING AGENCY. another unit of government, or a
contractor under agreement with ADMINISTERING AGENCY. All maintenance will be perfonned at
regular intervals or as required for efticient operation of the complete PROJECT improvements.
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ARTICLE IV . FISCAL PROVISIONS
1. The PROJECT. or portions thereof, must be included in a Federally-approved Statewide
Transportation Improvement Program (FSTIP) prior to ADMINISTERING AGENCY submittal of the
"Request for Authorization."
2. State and Federal funds will not participate in PROJECT work performed in advance of
approval of the "Authorization to Proceed." The parties shall execUte a PROGRAM SUPPLEMENT
between STAlE and ADMINISTERING AGENCY subsequently incorporating the "Authorization to
Proceed. "
3. ADMINISlERING AGENCY may submit invoices in arrears for reimbursement of
participating PROJECT costs on a monthly or quarterly progress basis once the PROJECT PROGRAM
SUPPLEMENT has been executed by STATE and the PR-2 has been executed by FHW A. The total of all
amounts claimed, plus any required matching funds, must not exceed the actual total allowable costs of all
completed engineering wolx, right of way acquisition, and construction.
4. Invoices shall be submitted on ADMINISTERING AGENCY letterhead and shall include
this AGREEMENT number, Federal-aid project number, and Progress billing number for the PROJECT.
and shall be in accordance with REENGINEERED PROCEDURES.
5. The estimated total cost of PROJECT, the amounts of Federal-aid programmed, and the
matching amounts agreed upon may be adjusted by mutual consent of the parties hereto in a Finance
LetterlDetail Estimate and a PR-2 document which are to be considered as part of this AGREEMENT.
a Federal-aid program amounts may be increased to cover PROJECT cost increases only if such funds are
_available and FHW A concurs with that increase.
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_ 6. When additional federal-aid funds are not available, the ADMINISTERING AGENCY
Wagrees that the payment of Federal funds will be limited to the amounts approved by the PR-2, or its
modif"lCation (PR-2A), and agrees that any increases in PROJECT costs must be defrayed with
ADMINISlERING AGENCY funds.
7. ADMINISTERING AGENCY shall use its own nonfederal-aid funds to finance the local
share of eligible costs and all expenditures ruled ineligible for financing with Federal funds. STAlE shall
make the determination of ADMINISTERING AGENCY cost eligibility for Federal fund financing.
8. Any overpayment to ADMINISTERING AGENCY of amounts invoiced shall be returned
to STAlE by ADMINISlERING AGENCY upon written demand.
9. Should ADMINISTERING AGENCY fail to refund all moneys due STAlE as provided
hereunder or should ADMINISTERING AGENCY breach this Agreement by failing to complete
PROJECT, then, within 30 days of demand, or within such other period as may be agreed to in writing
between the parties hereto, STATE, acting through the State Controller, the State Treasurer, or any other
public agency, may withhold or demand a transfer of an amount equal to the amount owed to STAlE from
future apportionments. or any other funds due ADMINISTERING AGENCY from the Highway Users
Tax Fund or any other funds and/or may withhold approval of future ADMINISTERING AGENCY
Federal-aid projects.
10. Should ADMINISlERING AGENCY be declared to be in breach of this AGREEMENT or
otherwise in default thereof by STAlE, and if ADMINISTERING AGENCY is constituted as ajoint
powers authority, special district, or any other public entity not directly receiving funds through the State
Controller, STAlE is authorized to obtain reimbursement from whatever sources of funding are available,
including the withholding or transfer of funds, pursuant to Article IV - 9, from those constituent entities
A;omprising a joint powers authority or by bringing of an action against ADMINISlERING AGENCY or
.ts constituent member entities, to recover all funds provided by STAlE hereunder. .
ARTICLE V . RETENTION OF RECORDS/AUDITS
1. For the purpose of determining compliance with Public Contract Code Section 10115, el
seq. and Title 21, California Code of Regulations. Chapter 21, Section 2500 et, seq., when applicable. and
other matters COMected with the performance of the Agreement pursuant to Government Code
Section 10532, ADMINISTERING AGENCY and any third party under contract with ADMINISTERING
AGENCY shall retain all original records to the project financed with Federal funds and shall make records
available upon request by Federal and State representatives. Following final settlement of the project costs
with FHW A the records/documents may be microfilmed by the ADMINISTERING AGENCY. but in any
event shall be retained for a period of three years from STAlE payment of the final voucher. or a four-year
period from the date of the final payment under the contract, whichever is longer. ADMINISTERING
AGENCY shall retain records/documents longer if required in writing by STATE.
2. Per the Single Audit Act of 1984, any ADMINISTERING AGENCY that receives
$100.000.00 or more per fiscal year in Federal Financial Assistance shall have an audit performed by an
independent audit firm per the Single Audit Act - (see OMB-A128, "Audits of State and Local
Governments").
ARTICLE VI . FEDERAL LOBBYING ACTIVITIES CERTIFICATION
. 1. By execution of this AGREEMENT. ADMINISTERING AGENCY certifIeS. to the best of
signatory officer's knowledge and belief. that
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.. A. No STATE or Federal appropriated funds have been paid or will be paid, by or on
_behalf of ADMINISTERING AGENCY, 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 including this
Agreement, the making of any STATE or Federal loan, the entering into of any cooperative contract, and
the extension, continuation, renewal, amendment, or modification of any STATE or Federal contract,
grant, loan, or cooperative contract.
B. If any funds other than Federal 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 an employee of a member of Congress in
connection with this Agreement, grant, local, or cooperative contract, ADMINISTERING AGENCY shall
complete and submit Standard Form-LLL, "Disclosure Form to Rep Lobbying," in accordance with the
form instructions.
C. This certification is a material representation of fact upon which reliance was placed
when this Agreement was made or entered into. Submission of this certification is a prerequisite for
making or entering into this Agreement imposed by Section 1352, TItle 31, U.S. Code. Any party who
fails to tile the required certification shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
2. ADMINISTERING AGENCY also agrees by signing this document that the language of
this certification will be included in all lower tier sub-agreements which exceed $100,000 and that all such
sub-recipients shall certify and disclose accordingly.
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ARTICLE vn . MISCELLANEOUS PROVISIONS
1. Neither STATE nor any officer or employee thereof shall be responsible for any damage or
liability occurring by reason of anything done, or omitted to be done, by ADMINISTERING AGENCY
under, or in connection with, any work, authority or jurisdiction delegated to ADMINISTERING
AGENCY under this AGREEMENT. It is understood and agreed that, pursuant to Government Code
Section 895.4, ADMINISTERING AGENCY shall fully defend, indemnify and save harmless STATE,
its officers, and employees from all claims, suits or actions of every name; kind and description brought
for, or on account of, injury (as defined in Government Code Section 810.8) occurring by reason of
anything done, or omitted to be done, by ADMINISTERING AGENCY under, or in connection with,.any
work, authority or jurisdiction delegated to ADMINISTERING AGENCY under this Agreement. STATE
reserves the right to represent itself in any litigation in which STATE's interests are at stake.
2. Neither ADMINISTERlNG AGENCY nor any officer or employee thereof, shall be
responsible for any damage or liability occurring by reason of anything done, or omitted to be done, by
STATE under, or in connection. with any work, authority, or jurisdiction delegated to STATE under this
AGREEMENT. It is also understood and agreed that, pursuant to Government Code Section 895.4,
STATE shall fully indemnify and hold ADMINISTERING AGENCY harmless from any liability imposed
for injury (as defined by Government Code Section 810.8) occuning by reason of anything done, or
omitted to be done, by STATE under, or in connection with, any work, authority, or jurisdiction delegated
to STATE under this Agreement ADMINISTERING AGENCY reserves the right to represent itself in
any litigation in which ADMINISTERING AGENCY's interests are at stake.
3. ADMINISTERING AGENCY and the officers and employees of ADMINISTERING
~GENCY, when engaged in the performance of this Agreement, shall act in an independent capacity and
...ot as offICerS, employees or agents of STATE.
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_ 4. STATE may terminate this AGREEMENT with ADMINISTERING AGENCY should
., ADMINISTERING AGENCY fail to perfonn the covenants herein contained at the time and in the manner
herein provided. In the event of such tennination. STATE may proceed with the PROJECI' worle in any
manner deemed proper by STATE. If STATE tenninates this AGREEMENT with ADMINISTERING
AGENCY. STATE shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY
under this AGREEMENT prior to tennination, provided, however, that the cost of PROJECI' completion
to STATE shall first be deducted from any sum due ADMINISTERING AGENCY under this
AGREEMENT. and the balance. if any, shall then be paid ADMINISTERING AGENCY upon demand.
5. Without the written consent of STATE. this AGREEMENT is not assignable by
ADMINISTERING AGENCY either in whole or in part.
6. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in
writing and signed by the parties hereto, and no oral understanding or Agreement not incorporated herein
shall be binding on any of the parties hereto.
7. ADMINISTERING AGENCY warrants. by execution of this AGREEMENT, that no
person or selling agency has been employed or retained to solicit or secure this AGREEMENT upon an
agreement or understanding for a commission, percentage, brokerage. or contingent fee, excepting bona
fide employees or bona fide established commercial or selling agencies maintained by ADMINISTERING
AGENCY for the purpose of securing business. For breach or violation of this warranty, STATE has the
right to annul this AGREEMENT without liability, pay only for the value of the worle actually perfonned,
or in STATE's discretion, to deduct from the price of consideration. or otherwise recover. the full amount
of such commission. percentage. brokerage. or contingent fee.
~ 8. In accordance with Public Contract Code Section 10296. ADMINISTERING AGENCY
reby certifies under penalty of perjury that no more than one final unappealable finding of contempt of
court by. a Federal court has been issued against ADMINISTERING AGENCY within the immediate
preceding two-year period because of ADMINISTERING AGENCY's failure to comply with an order of
a Federal court that orders ADMINISTERING AGENCY to comply with an order of the National Labor
Relations Board.
9. ADMINISTERING AGENCY shall disclose any financial. business, or other relationship
with STATE or the FHW A that may have an impact upon the outcome of this AGREEMENT.
ADMINISTERING AGENCY shal1 also list current contractors who may have a financial interest in the
outcome of this AGREEMENT.
10. ADMINISTERING AGENCY hereby certifies that it does not now have nor shall it
acquire any financial or business interest that would conflict with the perfonnance of PROJECI' under this
AGREEMENT.
11. ADMINISTERING AGENCY warrants that this AGREEMENT was not obtained or
secured through rebates, kickbacks or other unlawful consideration either promised or paid to any STATE
employee. For breach or violation of this warranty, STATE shall have the right, in its discretion. to
tenninate this AGREEMENT without liability, to pay only for the worle actually performed, or to deduct
from the PROGRAM SUPPLEMENT price or otherwise recover the full amount of such rebate. kickback,
or other unlawful consideration.
12. This Agreement is subject to any additional restrictions. limitations, conditions. or any
statute enacted by the State Legislature that may affect the provisions, tenDs, or funding of this
AGREEMENT in any manner.
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ARTICLE vm. TERMINATION OF AGREEMENT
1. This Agreement and any PROGRAM SUPPLEMENT(s) executed under this
AGREEMENT shall terminate upon 60 days' prior written notice by STATE.
2. Each separate PROGRAM SUPPLEMENT shall separately establish the term and funding
limits for each described PROJECT funded under this Federal-aid program. No STATE or FHW A funds
are obligated against this AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT by their duly authorized
. officers.
STATE OF CALIFORNIA
IE'ARThDITCF1RANSPCRl'AlICN
CITY OF SAN BERNARDINO
By
ernef, Office of Local Programs
Project Implementation
By
Date
Tom Minor, Mayor
ADMINISTERING AGENCY
Representative Name & Title
(Authorized Governing Body Representative)
Date
ATTEST:
Rachel Clark, City Clerk
Approved as to forn
and legal content:
By
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EXHIBIT A
FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the perfonnance of this Agreement, ADMINISlERING AGENCY will not discriminate
against any employee for employment because of race, color, sex, religion, ancestry or national origin.
ADMINISTERING AGENCY will take afflnnative action to ensure that employees are treated during
employment, without regard to their race, sex, actual or perceived sexual orientation, color, religion,
ancestry, or national origin. Such action shall include, but not be limited to, the following: employment,
upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or tennination; rates of pay
or other fonns of compensation; and selection for training, including apprenticeship. ADMINISTERING
AGENCY shall post in conspicuous places, available to employees for employment, notices to be
provided by STATE setting forth the provisions of this Fair Employment section.
2. ADMINISTERING AGENCY will permit access to the records of employment,
employment advertisements, application forms, and other pertinent data and records by STATE, the State
Fair Employment and Housing Commission, or any other agency of the State of California designated by
STATE, for the pwposes of investigation to ascertain compliance with the Fair Employment section of this
Agreement.
3. Remedies for Willful Violation:
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STATE may determine a willful violation of the Fair Employment provision to have
occurred upon receipt of a final judgment to that effect from a court in an action to
which ADMINISTERING AGENCY was a party, or upon receipt of a written
notice from the Fair Employment and Housing Commission that it has investigated
and determined that ADMINISlERING AGENCY has violated the Fair Employ-
ment Practices Act and had issued an order under Labor Code Section 1426 which
has become final or has obtained an injunction under Labor Code Section 1429.
(b) For willful violation of this Fair Employment Provision, STATE shall have the
right to terminate this Agreement either in whole or in part, and any loss or damage
sustained by STATE in securing the goods or services thereunder shall be bome
and paid for by ADMINISTERING AGENCY and by the surety under the
perfonnance bond, if any, and STATE may deduct from any moneys due or
thereafter may become due to ADMINISTERING AGENCY, the difference
between the price named in the Agreement and the actual cost thereof to STATE to
cure ADMINISTERING AGENCY's breach of this Agreement.
(a)
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EXHmIT B
NONDISCRIMINATION ASSURANCES
ADMINISTERING AGENCY HEREBY AGREES THAT, as a condition to receiving any FederaI
financial assistance from the STAlE, acting for the U.S. DeparlD1ent of Transportation, it will comply
with Title VI of the Civil Rights Act of 1964, 78 Stat 252,42 U.S.C. 2000d-42 U.S.C. 2000d-4
(hereinaftec referred to as the ACT), and all requirements imposed by or pursuant to Title 49, Code of
Federal Regulations, DeparlD1ent of Transportation, Subtitle A, Office of the Secretary, Part 21,
"Nondiscrimination in Federally-Assisted Programs of the DeparlD1ent of Transportation - Effectuation of
T1tle VI of the Civil Rights Act of 1964" (liereinafter referred to as the REGULATIONS), the Fedelal-aid
Highway Act of 1973, and other pertinent directives, to the end that in accordance with the ACT,
REGULATIONS, and other pertinent directives, no person in the United States shall, on the grounds of
race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any program or activity for which
ADMINISTERING AGENCY receives Federal financial assistance from the Federal Department of
Transportation, ADMINISTERING AGENCY HEREBY GIVES ASSURANCE THAT
ADMINISTERING AGENCY will promptly take any measures nec~ssary to effectuate this agreement
This assurance is required by subsection 21.7(a) (1) of the REGULATIONS.
More specifically, and without limiting the 8bove general assurance, ADMINISTERING
AGENCY hereby gives the following specific assurances with respect to its Federal-aid Program:
a 1. That ADMINISTERING AGENCY agrees that each "program" and each "facility" as
. defined in subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a
"program") conducted, or will be (with regard to a "facility") operated in compliance with all requirements
imposed by, or pursuant to, the REGULATIONS.
2. That ADMINISTERING AGENCY shall insert the following notification in all solicitatioDS
for bids for work or material subject to the REGULATIONS made in connection with the Federal-aid
Program and, in adapted form, in all proposals for negotiated agreements:
ADMINISTERING AGENCY hereby notifies all bidders that it will affinnatively
insure that in any agreement entered into pursuant to this advertisement, minority
business enterprises will be afforded full opportunity to submit bids in response to
this invitation and will not be discriminated against on the grounds of race, color,
sex, national origin, religion, age, or disability in consideration for an award.
3. That ADMINISTERING AGENCY shall insert the clauses of Appendix A of this
assurance in every agreement subject to the ACT and the REGULATIONS.
4. That the clauses of Appendix B of this Assurance shall be included as a covenant running
with the land, in any deed effecting a transfer of real property, structures, or improvements thereon, or
interest therein.
5. That where ADMINISTERING AGENCY receives Federal financial assistance to construct
a facility, or part of a facility, the Assurance shall extend to the entire facility and facilities operated in
connection therewith.
e
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- 6. That where ADMINISTERING AGENCY receives Federal financial assistance in the
_ fonn, or for the acquisition, of real property or an interest in real property, the Assurance shall extend to
rights to space on, over, or under such property.
7. That ADMINISTERING AGENCY shall include the appropriate clauses set forth in
Appendix C and D of this Assurance, as a covenant running with the land, in any future deeds, leases,
pennits,licenses, and simi1ar agreements entered into by the ADMINISTERING AGENCY with other
parties:
Appendix C;
(a) for the subsequent transfer of real property acquired or improved under the"Federal-
aid Program; and
Appendix D;
(b) for the construction or use of or access to space on, over, or under real property
acquired, or improved under the Federal-aid Program.
8. That this assurance obligates ADMINISTERING AGENCY for the period during which
Federal financial 's.si~tJ>nce is extended to the program, except where the Federal financial assistance is to
provide, or is in the fonn of, personal property or real property of interest therein, or structures, or
improvements thereon, in which case the assurance obligates ADMINISTERING AGENCY or any
transferee for the longer of the following periods:
e
the period during which the property is used for a purpose for which the Federal
financial assistance is extended, or for another purpose involving the provision of
similar services or benefits; or
(b) the period during which ADMINISTERING AGENCY retains ownership or
possession of the property.
(a)
9. That ADMINISTERING AGENCY shall provide for such methods of administration for
the program as are found by the U.S. Secretary of Transportation, or the official to whom he delegates
specific authority, to give reasonable guarantee that ADMINISTERING AGENCY, other recipients, sub-
grantees, applicants, sub-applicants, transferees, successors in interest, and other participants of Federal
financial assistance under such program will comply with all requirements imposed by, or pursuant to, the
Acr, the REGULATIONS, this Assurance and the AgreemenL
10. That ADMINISTERING AGENCY agrees that the United States and the State of California
have a right to seek judicial enforcement with regard to any matter arising under the Acr, the
REGULATIONS, and this Assurance.
TInS ASSURANCE is given in consideration of and for the purpose of obtaining any and all
Federal grants, loans, agreements, property, discounts or other Federal financial assistance extended after
the date hereof to ADMINISTERING AGENCY by STATE, acting for the U.S. Department of
Transportation, and is binding on ADMINISTERING AGENCY, other recipients, subgrantees,
applicants, sub-applicants, transferees, successors in interest and other participants in the Federal-aid
Highway Program.
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e APPENDIX A TO EXHIBIT B
During the perfonnance of this Agreement. ADMINISTERING AGENCY, for itself, its assignees
and successors in interest (hereinafter collectively referred to as ADMINISTERING AGENCY) agrees as
follows:
(1) Comnliance with Rel!U!ations: ADMINISTERING AGENCY shall comply with the
regulations relative to nondiscrimination in Federally assisted programs of the Department of
Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to
time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and
made a part of this agreement
(2) Nontl;.",;mination: ADMINISTERING AGENCY, with regard to the work perfonned by
it during the AGREEMENT, sha1l not discriminate on the grounds of race, color, sex, national origin,
religion, age, or disability in the selection and retention of sub-applicants, including procurements of
materials and leases of equipment ADMINISTERING AGENCY sha11 not participate either directly or
indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment
practices when the agreement covers a program set forth in Appendix B of the REGULATIONS.
(3) Solicitation..~ for Sub-aweement.~. Includin~ Procuremenl~ of Materials and EQuipment: In
all solicitations either by competitive bidding or negotiation made by ADMINISTERING AGENCY for
work to be perfonned under a Sub-agreement, including procurements of materials or leases of equipment,
each potential sub-applicant or supplier sha1l be notified by ADMINISTERING AGENCY of the
ADMINISTERING AGENCY's obligations under this Agreement and the REGULATIONS relative to
nondiscrimination on the grounds of race, color, or national origin.
a (4) Infonnation and Reports: ADMINISTERING AGENCY shall provide all information and
-reports required by the REGULATIONS, or directives issued pursuant thereto, and shall pennit access to
ADMINISTERING AGENCY's books, records, accounts, other sources of infonnation, and its facilities
as may be detennined by STATE or FHW A to be pertinent to ascertain compliance with such
REGULATIONS or directives. Where any infonnation required of ADMINISTERING AGENCY is in
the exclusive possession of another who fails or refuses to furnish this infonnation, ADMINISTERING
AGENCY sha1l so certify to STATE or the FHW A as appropriate, and shall set forth what efforts
ADMINISTERING AGENCY has made to obtain the information.
(5) Sanctions for Noncomnliance: In the event of ADMINISTERING AGENCY's
noncompliance with the nondiscrimination provisions of this agreement, STATE sha1l impose such
agreement sanctions as it or the FHW A may detennine to be appropriate, including, but not limited to:
(a) withholding of payments to ADMINISTERING AGENCY under the Agreement until
ADMINISTERING AGENCY complies; and/or
(b) cancellation, tennination or suspension of the Agreement, in whole or in part
(6) Incoqloration of Provisions: ADMINISTERING AGENCY sha1l include the provisions of
paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of
equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto.
ADMINISTERING AGENCY sha1l take such action with respect to any sub-agreement or procurement as
STATE or FHW A may direct as a means of enforcing such provisions including sanctions for
noncompliance, provided, however, that. in the event ADMINISTERING AGENCY becQmes involved
in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction,
EMINISTERING AGENCY may request STATE enter into such litigation to protect the interests of
ATE, and, in addition, ADMINISTERING AGENCY may request the United States to enter into such
.tigation to protect the interests of the United States.
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APPENDIX B TO EXHIBIT B
The following clauses shall be included in any and all deeds effecting or recording the transfer of
PROJECT real property, structures or improvements thereon, or interest therein from the United States.
(GRANTING CLAUSE)
NOW. 1HEREFORE, the U.S. Department of Transportation, as authorized by law. and upon the
condition that ADMINISTERlNG AGENCY will accept title to the lands and maintain the project
constructed thereon, in accordance with Title 23, United States Code, the Regulations for the
Adm;n;llttation of Federal-aid for Highways and the policies and procedures prescribed by the FederaI
Highway Administration of the Department of Transportation and, also in accordance with and in
compliance with the Regulations pertaining to and effectuating the provisions of Title VI of the Civil
Rights Act of 1964 (78 Stat 252; 42 U.S.C. 2000d to 2000d-4). does hereby remise, release, quitclaim
and convey unto the ADMINISTERING AGENCY all the right, title, and interest of the U.S. Department
of Transportation in, and to, said lands described in Exhibit" A" attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto ADMINISTERING AGENCY
and its successors forever, subject, however, to the covenant, conditions. restrictions and reservations
herein contained as follows, which will remain in effect for the period during which the real property or
structures are used for a purpose for which Federal fmancial assistance is extended or for another purpose
involving the provision of similar services or benefits and shall be binding on ADMINISTERING
AGENCY, its successors and assigns.
- ADMINISTERING AGENCY, in consideration of the conveyance of said lands and interests in
_lands. does hereby covenant and agree as a covenant running with the land for itself. its successors and
assigns,
(1) that no person shall on the grounds of race, color. sex. national origin. religion. age or
disability, be excluded from participation in, be denied the benefits of. or be otherwise
subjected to discrimination with regard to any facility located wholly or in part on, over, or
under such lands hereby conveyed (;) (and) *
(2) that ADMINISTERING AGENCY shall use the lands and interests in lands so conveyed,
in compliance with all requirements imposed by or pursuant to Title 49. Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21.
Non-discrimination in Federally-assisted programs of the Department of Transportation -
Effectuation of Title VI of the Civil Rights Act of 1964. and as said Regulations may be
amended (;) and
(3) that in the event of breach of any of the above-mentioned nondiscrimination conditions. the
U.S. Department of Transportation shall have a right to re-enter said lands and facilities on
said land. and the above-described land and facilities shall thereon revert to and vest in and
become the absolute property of the U.S. Department of Transportation and its assigns as
such interest existed prior to this deed. * .
e*
Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964. .
13
11129195
e
APPENDIX C TO EXHIBIT B
The following clauses shall be included in any and all deeds, licenses, leases, pennits, or similar
instruments entered into by ADMINISTERING AGENCY, pursuant to the provisions of Assurance 7(a)
of Exhibit B.
The grantee (licensee, lessee, pennittee, etc., as appropriate) for himself, his heirs, personal
representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree (in the case of deeds and leases add "as covenant running with the land") that in the
event facilities are constructed, maintained, or otherwise operated on the said property described in this
(deed, license, lease, pennit, etc.) for a purpose for which a U.S. Department of Transportation program
or activity is extended or for another purpose involving the provision of similar services or benefits, the
(grantee, licensee. lessee, pennittee, etc.), shall maintain and operate such facilities and services in
compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations,
U.S. Department of Transportation, Subtitle A, Office of Secretary, Part 21, Nondiscrimination in
Federa11y-ua,ted programs of the Department of Transportation - Effectuation of Title VI of the Civil
Rights Act of 1964, and as said Regulations may be amended.
(Include in licenses, leases, pennits, etc.).
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shall have the right to tenninate the (license, lease. pennit etc.) and to re-enter and repossess
said land and the facilities thereon, and hold the same as if said (license, lease, pennit, etc.) had never been
made or issued.
(Include in deeds).
e That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shall have the right to re-enter said land and facilities thereon, and the above-described lands
and facilities shall thereupon revert to and vest in and become the absolute property of ADMINISlERING
AGENCY and its assigns.
.
Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
14
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e
APPENDIX D TO EXHIBIT B
The following shaJ1 be included in all deeds, licenses, leases, permits, or similar agreements
entered into by the ADMINISTERING AGENCY, pursuant to the provisions of Assurance 7 (b) of
Exhibit B.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal
representatives, successors in interest and assigns, as a part of the consideration hereof, does hereby
covenant and agree (in the case of deeds, and leases add "as a covenant running with the land") that:
(1) no person on the ground of race, color, sex, national origin, religion, age or disability,
shaJ1 be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in
the use of said facilities;
(2) that in the construction of any improvements on, over, or under such land and the
furnishing of services thereon, no person on the ground of race, color, sex, national origin, religion, age
or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to
discrimination; and
(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance
with the Regulations. .
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shaJ1 have the right to terminate the (license, lease, permit, etc.) and to re-enter and repossess
A;id land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been
Wlade or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shaJ1 have the right to re-enter said land and facilities thereon, and the above-described lands
and facilities shall thereupon reven to and vest in and become the absolute property of ADMINISTERING
AGENCY, and its assigns. .
e
Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
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