HomeMy WebLinkAbout05.J- Public Works 5.J
RESOLUTION (ID # 4650) DOC ID: 4650 A
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Chris Alanis M/CC Meeting Date: 10/17/2016
Prepared by: Michael Grubbs, (909) 384-
5140
Dept: Public Works Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Approving
Master Agreement Administering Agency-State Agreement No. 08-5033F15 with the
State of California, Department of Transportation (Caltrans) for Federal-Aid Projects and
Authorizing the City Manager to Execute Said Agreement and All Program
Supplements to the Master Agreement. (#4650)
Current Business Registration Certificate: Not Applicable
Financial Impact:
There is no Financial Impact due to this action.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
05/05/97 Resolution No. 97-114 approved authorizing the Mayor and Common Council
to execute a Master Agreement for Federal Aid projects between the City of
San Bernardino and the State of California.
11/07/01 Resolution No. 2001-331 approved authorizing the City Administrator or
Designee to execute all Program Supplements to Master Agreement No. 97-
114.
02/01/10 Resolution No. 2010-023 approved authorizing the City Manager or Designee
to execute all Program Supplements to Master Agreement No. 97-114.
Background:
The Congress of the United States enacted the Intermodel Surface Transportation
Efficiency Act of 1991 to fund programs which include, but are not limited to, the Surface
Transportation Program (STP), the Congestion Mitigation and Air Quality Improvement
program (CMAQ), the Transportation Enhancement Activities program (TEA), Active
Transportation Program (ATP) and the Bridge Replacement and Rehabilitation program
(HBRR). Certain of these Federal funds may be available for use on local transportation
facilities for public agencies.
On May 20, 1997 the City of San Bernardino entered into a " Master Agreement
Administering Agency - State Agreement" (Master Agreement No. 97-114) with the
State of California Department of Transportation (Caltrans) for all Federal Aid projects.
However, once the City receives funding approval for a specific project it is necessary to
execute a Program Supplement Agreement for each project in order to receive the funds.
The Master Agreement has no force or effect with respect to any project unless and until a
Updated: 10/13/2016 by Georgeann "Gigi" Hanna A I Packet Pg. 366
5.J
4650
Program Supplement to the Agreement has been executed.
On February 1, 2010, the Mayor and Common Council approved Resolution No. 2010-
023 authorizing the City Manager to approve all Program Supplements. This action was
taken at the suggestion of Caltrans to streamline processes in order to reduce
paperwork and staff time necessary to process such projects.
Caltrans is now requiring that the "Master Agreement Administering Agency-State
Agreement for Federal-Aid Projects" be updated in accordance with a new Agreement
No. 08-50331715, said agreement being attached to the attached Resolution. Caltrans is
also requiring an update of the resolution authorizing the City Manager to approve
. Program Supplements to the Master Agreement.
Program Supplements are an administrative step in the processing of federal and state
funded projects and allowing the City Manager to approve the Supplements is a
streamlining measure only and will in no way affect the review and approve of such
projects by the City Council each year in the process of adopting the Capital
Improvement Program (CIP) and Annual Budget.
City Attorney Review:
Supporting Documents:
RESO Approving Master Agency State Agreement for Federal Aid Projects (DOC)
Master Agency-State Agreement No 08-5033F15 for Fed-Aid Projects (PDF)
Updated: 10/13/2016 by Georgeann "Gigi" Hanna A Packet Pg.367
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1 RESOLUTION NO. E
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2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF a
SAN BERNARDINO APPROVING MASTER AGREEMENT ADMINISTERING
3 AGENCY-STATE AGREEMENT NO. 08-5033F15 WITH THE STATE OF N
CALIFORNIA, DEPARTMENT OF TRANSPORTATION (CALTRANS) FOR
FEDERAL-AID PROJECTS AND AUTHORIZING THE CITY MANAGER TO d
5 EXECUTE SAID AGREEMENT AND ALL PROGRAM SUPPLEMENTS TO THE Q
MASTER AGREEMENT.
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WHEREAS, the Congress of the United States has enacted the lntermodal Surface
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Transportation Efficiency Act (ISTEA) of 1991 and subsequent Transportation Authorization Q
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9 Bills to fund transportation programs; and.
10 WHEREAS, the Legislature of the State of California has enacted legislation by
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which certain federal-aid funds may be made available for use on local transportation related y
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projects of public entities qualified to act as recipients of these federal-aid funds in accordance a
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14 with the intent of federal law; and Q
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15 WHEREAS, before federal funds will be made available for a specific program
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16 project, the Administering Agency and the State of California are required to enter into an °
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17 E agreement to establish terms and conditions applicable to the Administering Agency when
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receiving federal funds for a designated Project facility and to the subsequent operation and c
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20 maintenance of that completed facility; and co
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21 WHEREAS, to receive the reimbursement of federal allocated funds, the City is a
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22 required to first execute a Master Agreement Administering Agency-State Agreement and y
23 then execute a Program Supplement Agreement for each specific project; and
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WHEREAS, in the interest of efficiency, the Mayor and Common Council wishes to a
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26 authorize the City Manager or designee to administratively execute all Program Supplements w
27 to the Master Agreement for Federal-Aid Projects.
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NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON E
1 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: L
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SECTION 1: That the City Manager is hereby authorized and directed to execute
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4 Master Agreement Administering Agency-State Agreement No. 08-5033F15 with the State of
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5 California, Department of Transportation (Caltrans) for Federal-Aid Projects, said Master Q
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6 Agreement No. 08-5033F15 being attached hereto as Exhibit "A" and incorporated herein. ;
7 SECTION 2: That the authorization to execute the above-referenced Agreement is
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rescinded if it is not fully executed by all parties and returned to the Office of the City Clerk
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within one-hundred-eighty(180) days of the passage of this Resolution.
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SECTION 3: That the City Manager or designee is delegated the authority to
12 administratively execute all Program Supplements to Master Agreement Administering d
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13 Agency--State Agreement No 08-5033F15 for Federal-Aid Projects.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
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1 SAN BERNARDINO APPROVING MASTER AGREEMENT ADMINISTERING
2 AGENCY-STATE AGREEMENT NO. 08-5033F15 WITH THE STATE OF a
CALIFORNIA, DEPARTMENT OF TRANSPORTATION (CALTRANS) FOR
3 FEDERAL-AID PROJECTS AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID AGREEMENT AND ALL PROGRAM SUPPLEMENTS TO THE a
4
MASTER AGREEMENT. a
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6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 S Council of the City of San Bernardino at a meeting E
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thereof, held on the day of , 2016,by the following vote, to wit: a;
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10 Council Members: AYES NAYS ABSTAIN ABSENT c
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11 MARQUEZ
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VALDIVIA
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SHORETT
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16 NICKEL °
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17 RICHARD E
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Georgeann Hanna, City Clerk
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22 The foregoing resolution is hereby approved this day of , 2016. y
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24 R. Carey Davis, Mayor 0-
25 City of San Bernardino C
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26 Approved as to form: W
Gary D. Saenz, City Attorney W
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MASTER AGREEMENT
ADMINISTERING AGENCY-STATE AGREEMENT FOR
FEDERAL-AID PROJECTS
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08 City of San Bernardino
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District Administering Agency L
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Agreement No. 08-5033F15 U)
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This AGREEMENT, is entered into effective this day of , 20 by and c
between City of San Bernardino, hereinafter referred to as "ADMINISTERING AGENCY," and the
State of California, acting by and through its Department of Transportation (Caltrans), hereinafter c
referred to as "STATE", and together referred to as "PARTIES" or individually as a "PARTY."
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RECITALS: 0
1. WHEREAS, the Congress of the United States has enacted the Intermodal Surface
Transportation Efficiency Act (ISTEA) of 1991 and subsequent Transportation Authorization Bills Ln
to fund transportation programs; and 7T_
2. WHEREAS, the Legislature of the State of California has enacted legislation by which certain d
federal-aid funds may be made available for use on local transportation related projects of public a
entities qualified to act as recipients of these federal-aid funds in accordance with the intent of
federal law; and a
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3. WHEREAS, before federal funds will be made available for a specific program project, c
ADMINISTERING AGENCY and STATE are required to enter into an agreement to establish Ln
terms and conditions applicable to the ADMINISTERING AGENCY when receiving federal funds M
for a designated PROJECT facility and to the subsequent operation and maintenance of that o
completed facility.
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NOW, THEREFORE, the PARTIES agree as follows: Z
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ARTICLE I - PROJECT ADMINISTRATION
1. This AGREEMENT shall have no force or effect with respect to any program project unless and ,o
until a project-specific "Authorization/Agreement Summary", herein referred to as "E-76" _
document, is approved by STATE and the Federal Highway Administration (FHWA). E
2. The term "PROJECT', as used herein, means that authorized transportation related project and
related activities financed in part with federal-aid funds as more fully-described in an
"Authorization/ Agreement Summary" or "Amendment/Modification Summary", herein referred to
as "E-76" or "E-76 (AMOD)" document authorized by STATE and the Federal Highway
Administration (FHWA).
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3. The E-76/E-76 (AMOD) shall designate the party responsible for implementing PROJECT, type
of work and location of PROJECT.
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4. The PROGRAM SUPPLEMENT sets out special covenants as a condition for the 'E
ADMINISTERING AGENCY to receive federal-aid funds from/through STATE for designated a
PROJECT. The PROGRAM SUPPLEMENT shall also show these federal funds that have been (D
initially encumbered for PROJECT along with the matching funds to be provided by
ADMINISTERING AGENCY and/or others. Execution of PROGRAM SUPPLEMENT by the
PARTIES shall cause ADMINISTERING AGENCY to adopt all of the terms of this AGREEMENT
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as though fully set forth therein in the PROGRAM SUPPLEMENT. Unless otherwise expressly
delegated in a resolution by the governing body of ADMINISTERING AGENCY, and with written
concurrence by STATE, the PROGRAM SUPPLEMENT shall be approved and managed by the
governing body of ADMINISTERING AGENCY. a
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5. ADMINISTERING AGENCY agrees to execute and return each project-specific PROGRAM a
SUPPLEMENT within ninety (90) days of receipt. The PARTIES agree that STATE may suspend
future authorizations/obligations and invoice payments for any on-going or future federal-aid c
project performed by ADMINISTERING AGENCY if any project-specific PROGRAM 0
SUPPLEMENT is not returned within that ninety (90) day period unless otherwise agreed by U—
STATE in writing. o
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6. ADMINISTERING AGENCY further agrees, as a condition to the release and payment of o
federal funds encumbered for the PROJECT described in each PROGRAM SUPPLEMENT, to z°
comply with the terms and conditions of this AGREEMENT and all of the agreed-upon Special a
Covenants or Remarks incorporated within the PROGRAM SUPPLEMENT, and E
Cooperative/Contribution Agreement where appropriate, defining and identifying the nature of the 1
specific PROJECT. ¢
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7. Federal, state and matching funds will not participate in PROJECT work performed in advance v�
of the approval of the E-76 or E-76 (AMOD), unless otherwise stated in the executed project-
specific PROGRAM SUPPLEMENT. ADMINISTERING AGENCY agrees that it will only proceed
with the work authorized for that specific phase(s) on the project-specific E-76 or E-76 (AMOD). <tm
ADMINISTERING AGENCY further agrees to not proceed with future phases of PROJECT prior to N
receiving an E-76 (AMOD) from STATE for that phase(s) unless no further federal funds are
needed or for those future phase(s).
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8. That PROJECT or portions thereof, must be included in a federally approved Federal St 5.Jb
Transportation Improvement Program (FSTIP) prior to ADMINISTERING AGENCY submitting the
"Request for Authorization".
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9. ADMINISTERING AGENCY shall conform to all state statutes, regulations and procedures =
(including those set forth in the Local Assistance Procedures Manual and the Local Assistance
Program Guidelines, hereafter collectively referred to as "LOCAL ASSISTANCE PROCEDURES") L
relating to the federal-aid program, all Title 23 Code of Federal Regulation (CFR) and 2 CFR part a
200 federal requirements, and all applicable federal laws, regulations, and policy and procedural o
or instructional memoranda, unless otherwise specifically waived as designated in the executed
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project-specific PROGRAM SUPPLEMENT.
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10. If PROJECT is not on STATE-owned right of way, PROJECT shall be constructed in Q
accordance with LOCAL ASSISTANCE PROCEDURES that describes minimum statewide design
standards for local agency streets and roads. LOCAL ASSISTANCE PROCEDURES for projects
off the National Highway System (NHS) allow STATE to accept either the STATE's minimum y
statewide design standards or the approved geometric design standards of ADMINISTERING
AGENCY. Additionally, for projects off the NHS, STATE will accept ADMINISTERING AGENCY- Q
approved standard specifications, standard plans, materials sampling and testing quality
assurance programs that meet the conditions described in the then current LOCAL ASSISTANCE
PROCEDURES.
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11. If PROJECT involves work within or partially within STATE-owned right-of-way, that
PROJECT shall also be subject to compliance with the policies, procedures and standards of the
STATE Project Development Procedures Manual and Highway Design Manual and, where
appropriate, an executed Cooperative Agreement between STATE and ADMINISTERING o
AGENCY that outlines the PROJECT responsibilities and respective obligations of the PARTIES.
ADMINISTERING AGENCY and its contractors shall each obtain an encroachment permit through '¢
STATE prior to commencing any work within STATE rights of way or work which affects STATE
facilities. UL
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12. When PROJECT is not on the State Highway System but includes work to be performed by a U_
railroad, the contract for such work shall be prepared by ADMINISTERING AGENCY or by o
STATE, as the PARTIES may hereafter agree. In either event, ADMINISTERING AGENCY shall o
enter into an agreement with the railroad providing for future maintenance of protective devices or o
other facilities installed under the contract. zo
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13. If PROJECT is using STATE funds, the Department of General Services, Division of the State d
Architect, or its designee, shall review the contract PS&E for the construction of buildings,
structures, sidewalks, curbs and related facilities for accessibility and usability. ADMINISTERING a
AGENCY shall not award a PROJECT construction contract for these types of improvements until
the State Architect has issued written approval stating that the PROJECT plans and specifications Cn
comply with the provisions of sections 4450 and 4454 of the California Government Code, if
applicable. Further requirements and guidance are provided in Title 24 of the California Code of
Regulations. Q
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14. ADMINISTERING AGENCY will advertise, award and administer PROJECT in accordance
with the current LOCAL ASSISTANCE PROCEDURES unless otherwise stated in the executed ;
project-specific PROGRAM SUPPLEMENT.
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Packet Pg. 373
15. ADMINISTERING AGENCY shall provide or arrange for adequate supervision and ins 5.J.b
of each PROJECT. While consultants may perform supervision and inspection work for PROJECT
with a fully qualified and licensed engineer, ADMINISTERING AGENCY shall provide a full-time
employee to be in responsible charge of each PROJECT who is not a consultant. ,o
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16. ADMINISTERING AGENCY shall submit PROJECT-specific contract award documents to E
STATE's District Local Assistance Engineer within sixty (60) days after contract award. A copy of L
the award documents shall also be included with the submittal of the first invoice for a construction Q
contract by ADMINISTERING AGENCY.
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17. ADMINISTERING AGENCY shall submit the final report documents that collectively constitute
a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Failure
by ADMINISTERING AGENCY to submit a "Report of Expenditures" within one hundred eighty a
(180) days of project completion will result in STATE imposing sanctions upon ADMINISTERING c
AGENCY in accordance with the current LOCAL ASSISTANCE PROCEDURES.
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18. ADMINISTERING AGENCY shall comply with: (i) section 504 of the Rehabilitation Act of 1973
which prohibits discrimination on the basis of disability in federally assisted programs; (ii) the Q
Americans with Disabilities Act (ADA) of 1990 which prohibits discrimination on the basis of
disability irrespective of funding; and (iii) all applicable regulations and guidelines issued pursuant
to both the Rehabilitation Act and the ADA.
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19. 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 jurisdictions, have prescribed certain
nondiscrimination requirements with respect to contract and other work financed with public funds.
ADMINISTERING AGENCY agrees to comply with the requirements of the FAIR EMPLOYMENT a
PRACTICES ADDENDUM (Exhibit A attached hereto) and the NONDISCRIMINATION
ASSURANCES (Exhibit B attached hereto). ADMINISTERING AGENCY further agrees that any Q
agreement entered into by ADMINISTERING AGENCY with a third party for performance of
PROJECT-related work shall incorporate Exhibits A and B (with third party's name replacing c
ADMINISTERING AGENCY) as essential parts of such agreement to be enforced by that third
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party as verified by ADMINISTERING AGENCY. U.
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ARTICLE II - RIGHTS OF WAY
1. No contract for the construction of a federal-aid PROJECT shall be awarded until all necessary
rights of way have been secured. Prior to the advertising for construction of PROJECT, ,o
ADMINISTERING AGENCY shall certify and, upon request, shall furnish STATE with evidence
that all necessary rights of way are available for construction purposes or will be available by the
time of award of the construction contract. a
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2. ADMINISTERING AGENCY agrees to indemnify and hold STATE harmless from any liability r
that may result in the event the right of way for a PROJECT, including, but not limited to, being N
clear as certified or if said right of way is found to contain hazardous materials requiring treatment
or removal to remediate in accordance with Federal and State laws. The furnishing of right of way
as provided for herein includes, in addition to all real property required for the PROJECT, title free a
and clear of obstructions and encumbrances affecting PROJECT and the payment, as required by =
applicable law, of relocation costs and damages to remainder real property not actually taken but
injuriously affected by PROJECT. ADMINISTERING AGENCY shall pay, from its own non-
matching funds, any costs which arise out of delays to the construction of PROJECT because
utility facilities have not been timely removed or relocated, or because rights of way were not a
available to ADMINISTERING AGENCY for the orderly prosecution of PROJECT work.
3. Subject to STATE approval and such supervision as is required by LOCAL ASSISTANCE
PROCEDURES over ADMINISTERING AGENCY's right of way acquisition procedures,
ADMINISTERING AGENCY may claim reimbursement from federal funds for expenditures v
incurred in purchasing only the necessary rights of way needed for the PROJECT after crediting
PROJECT with the fair market value of any excess property retained and not disposed of by
ADMINISTERING AGENCY. 0
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4. When real property rights are to be acquired by ADMINISTERING AGENCY for a PROJECT, a
said ADMINISTERING AGENCY must carry out that acquisition in compliance with all applicable
State and Federal laws and regulations, in accordance with State procedures as published in c
State's current LOCAL ASSISTANCE PROCEDURES and STATE's Right-of-Way Manual, Lo
subject to STATE oversight to ensure that the completed work is acceptable under the Federal U_
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended. o
5. Whether or not federal-aid is to be requested for right of way, should ADMINISTERING o
AGENCY, in acquiring right of way for PROJECT, displace an individual, family, business, farm z°
operation, or non-profit organization, relocation payments and services will be provided as set
forth in 49 CFR, Part 24. The public will be adequately informed of the relocation payments and E
services which will be available, and, to the greatest extent practicable, no person lawfully a2
occupying real property shall be required to move from his/her dwelling or to move his/her ¢
business or farm operation without at least ninety (90) days written notice from ADMINISTERING 62
AGENCY. ADMINISTERING AGENCY will provide STATE with specific assurances, on each u�
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 ¢
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orderly, timely and efficient relocation of PROJECT-displaced persons as provided in 49 CFR, N
Part 24.
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6. ADMINISTERING AGENCY shall, along with recording the deed or instrument evidenci
in the name of the ADMINISTERING AGENCY or their assignee, also record an Agreement
Declaring Restrictive Covenants (ADRC) as a separate document incorporating the assurances
included within Exhibits A and B and Appendices A, B, C and D of this AGREEMENT, as 2
appropriate.
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ARTICLE III - MAINTENANCE AND MANAGEMENT ,o
1. ADMINISTERING AGENCY will maintain and operate the property acquired, developed, E
constructed, rehabilitated, or restored by PROJECT for its intended public use until such time as L
the parties might amend this AGREEMENT to otherwise provide. With the approval of STATE, 4
ADMINISTERING AGENCY or its successors in interest in the PROJECT property may transfer s
this obligation and responsibility to maintain and operate PROJECT property for that intended
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public purpose to another public entity.
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2. Upon ADMINISTERING AGENCY's acceptance of the completed federal-aid construction Q
contract or upon contractor being relieved of the responsibility for maintaining and protecting
PROJECT, ADMINISTERING AGENCY will be responsible for the maintenance, ownership,
liability, and the expense thereof, for PROJECT in a manner satisfactory to the authorized
representatives of STATE and FHWA and if PROJECT falls within the jurisdictional limits of
another Agency or Agencies, it is the duty of ADMINISTERING AGENCY to facilitate a separate a
maintenance agreement(s) between itself and the other jurisdictional Agency or Agencies
providing for the operation, maintenance, ownership and liability of PROJECT. Until those
agreements are executed, ADMINISTERING AGENCY will be responsible for all PROJECT
operations, maintenance, ownership and liability in a manner satisfactory to the authorized
representatives of STATE and FHWA. If, within ninety (90) days after receipt of notice from
STATE that a PROJECT, or any portion thereof, is not being properly operated and maintained
and ADMINISTERING AGENCY has not satisfactorily remedied the conditions complained of, the
approval of future federal-aid projects of ADMINISTERING AGENCY will be withheld until the 0_
PROJECT shall have been put in a condition of operation and maintenance satisfactory to STATE a'
and FHWA. The provisions of this section shall not apply to a PROJECT that has been vacated a
through due process of law with STATE's concurrence. a
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3. PROJECT and its facilities shall be maintained by an adequate and well-trained staff of ,
engineers and/or such other professionals and technicians as PROJECT reasonably requires. M
Said operations and maintenance staff may be employees of ADMINISTERING AGENCY, another o
unit of government, or a contractor under agreement with ADMINISTERING AGENCY. All o
maintenance will be performed at regular intervals or as required for efficient operation of the o
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ARTICLE IV - FISCAL PROVISIONS
1. All contractual obligations of STATE are subject to the appropriation of resources by the °
Legislature and the allocation of resources by the California Transportation Commission (CTC). _
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2. STATE'S financial commitment of federal funds will occur only upon the execution of this L
AGREEMENT, the authorization of the project-specific E-76 or E-76 (AMOD), the execution of a
each project-specific PROGRAM SUPPLEMENT, and STATE's approved finance letter.
3. ADMINISTERING AGENCY may submit signed invoices in arrears for reimbursement of
participating PROJECT costs on a regular basis once the project-specific PROGRAM
SUPPLEMENT has been executed by STATE. a
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4. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices at least once every six ,
(6) months commencing after the funds are encumbered on either the project-specific PROGRAM
SUPPLEMENT or through a project-specific finance letter approved by STATE. STATE reserves -E
the right to suspend future authorizations/obligations, and invoice payments for any on-going or d
future federal-aid project by ADMINISTERING AGENCY if PROJECT costs have not been
invoiced by ADMINISTERING AGENCY for a six (6) month period.
5. Invoices shall be submitted on ADMINISTERING AGENCY letterhead that includes the address
of ADMINISTERING AGENCY and shall be formatted in accordance with LOCAL ASSISTANCE
PROCEDURES. y
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6. ADMINISTERING AGENCY must have at least one copy of supporting backup documentation a
for costs incurred and claimed for reimbursement by ADMINISTERING AGENCY.
ADMINISTERING AGENCY agrees to submit supporting backup documentation with invoices if d
requested by State. Acceptable backup documentation includes, but is not limited to, agency's LL
progress payment to the contractors, copies of cancelled checks showing amounts made payable o
to vendors and contractors, and/or a computerized summary of PROJECT costs.
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7. Payments to ADMINISTERING AGENCY can only be released by STATE as reimbursement of c
actual allowable PROJECT costs already incurred and paid for by ADMINISTERING AGENCY. o
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8. Indirect Cost Allocation Plans/Indirect Cost Rate Proposals (ICAP/ICRP), Central Service Cost Zo
Allocation Plans and related documentation are to be prepared and provided to STATE (Caltrans
Audits & Investigations) for review and approval prior to ADMINISTERING AGENCY seeking E
reimbursement of indirect costs incurred within each fiscal year being claimed for State and
federal reimbursement. ICAPs/ICRPs must be prepared in accordance with the requirements set Q
forth in 2 CFR, Part 200, Chapter 5 of the Local Assistance Procedural Manual, and the
ICAP/ICRP approval procedures established by STATE. Cn
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9. Once PROJECT has been awarded, STATE reserves the right to de-obligate any excess
federal funds from the construction phase of PROJECT if the contract award amount is less than d
the obligated amount, as shown on the PROJECT E-76 or E-76 (AMOD).
10. STATE will withhold the greater of either two (2) percent of the total of all federal funds
encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGENCY
submits the Final Report of Expenditures for each completed PROGRAM SUPPLEMENT =
PROJECT.
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11. The estimated total cost of PROJECT, the amount of federal funds obligated, and the required
matching funds may be adjusted by mutual consent of the PARTIES hereto with a finance letter, a o
detailed estimate, if required, and approved E-76 (AMOD). Federal-aid funding may be increased
to cover PROJECT cost increases only if such funds are available and FHWA concurs with that E
increase. i
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12. When additional federal-aid funds are not available, ADMINISTERING AGENCY agrees that 2.
the payment of federal funds will be limited to the amounts authorized on the PROJECT specific �
E-76 / E-76 (AMOD) and agrees that any increases in PROJECT costs must be defrayed with
ADMINISTERING AGENCY's own funds.
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13. ADMINISTERING AGENCY shall use its own non-federal funds to finance the local share of
eligible costs and all expenditures or contract items ruled ineligible for financing with federal funds.
STATE shall make the determination of ADMINISTERING AGENCY's cost eligibility for federal
fund financing of PROJECT costs. E
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14. ADMINISTERING AGENCY will reimburse STATE for STATE's share of costs for work
performed by STATE at the request of ADMINISTERING AGENCY. STATE's costs shall include
overhead assessments in accordance with section 8755.1 of the State Administrative Manual.
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15. Federal and state funds allocated from the State Transportation Improvement Program (STIP)
are subject to the timely use of funds provisions enacted by Senate Bill 45, approved in 1997, and
subsequent STIP Guidelines and State procedures approved by the CTC and STATE.
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16. Federal funds encumbered for PROJECT are available for liquidation for a period of six (6)
years from the beginning of the State fiscal year the funds were appropriated in the State Budget. Q
State funds encumbered for PROJECT are available for liquidation only for six (6) years from the
beginning of the State fiscal year the funds were appropriated in the State Budget. Federal or o UZ
state funds not liquidated within these periods will be reverted unless a Cooperative Work
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Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the California LL
Department of Finance (per Government Code section 16304). The exact date of fund reversion o
will be reflected in the STATE signed finance letter for PROJECT. LQ
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17. Payments to ADMINISTERING AGENCY for PROJECT-related travel and subsistence (per Zo
diem) expenses of ADMINISTERING AGENCY forces and its contractors and subcontractors
claimed for reimbursement or as local match credit shall not exceed rates authorized to be paid d
rank and file STATE employees under current State Department of Personnel Administration rn
(DPA) rules. If the rates invoiced by ADMINISTERING AGENCY are in excess of DPA rates, ¢
ADMINISTERING AGENCY is responsible for the cost difference, and any overpayments a
inadvertently paid by STATE shall be reimbursed to STATE by ADMINISTERING AGENCY on in
demand within thirty (30) days of such invoice.
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18. ADMINISTERING AGENCY agrees to comply with 2 CFR, Part 200, Uniform Administrative ¢
Requirements, Cost Principles and Audit Requirement for Federal Awards. N
19. ADMINISTERING AGENCY agrees, and will assure that its contractors and subcontractors will
be obligated to agree, that Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition E
Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of
individual PROJECT cost items.
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Packet Pg. 379
20. Every sub-recipient receiving PROJECT funds under this AGREEMENT shall comply with 2 w
CFR, Part 200, 23 CFR, 48 CFR Chapter 1, Part 31, Local Assistance Procedures, Public
Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non-A&E E
services), and other applicable STATE and FEDERAL regulations. a
21. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or credit 0
that are determined by subsequent audit to be unallowable under 2 CFR, Part 200, 23 CFR, 48 n
CFR, Chapter 1, Part 31, and other applicable STATE and FEDERAL regulations, are subject to
repayment by ADMINISTERING AGENCY to STATE.
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22. Should ADMINISTERING AGENCY fail to refund any moneys due upon written demand by =
STATE as provided hereunder or should ADMINISTERING AGENCY breach this AGREEMENT
by failing to complete PROJECT without adequate justification and approval by STATE, then, N
within thirty 30 days of demand, or within such other period as may be agreed to in writing
between the PARTIES, STATE, acting through the State Controller, the State Treasurer, or any a
other public entity or agency, may withhold or demand a transfer of an amount equal to the
amount paid by or owed to STATE from future apportionments, or any other funds due
ADMINISTERING AGENCY from the Highway Users Tax Fund or any other sources of funds,
and/or may withhold approval of future ADMINISTERING AGENCY federal-aid projects.
23. Should ADMINISTERING AGENCY be declared to be in breach of this AGREEMENT or
otherwise in default thereof by STATE, and if ADMINISTERING AGENCY is constituted as a joint
powers authority, special district, or any other public entity not directly receiving funds through the o
State Controller, STATE is authorized to obtain reimbursement from whatever sources of funding
are available, including the withholding or transfer of funds, pursuant to Article IV - 22, from those
constituent entities comprising a joint powers authority or by bringing of an action against 0D
ADMINISTERING AGENCY or its constituent member entities, to recover all funds provided by o
STATE hereunder.
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24. ADMINISTERING AGENCY acknowledges that the signatory party represents the o
ADMINISTERING AGENCY and further warrants that there is nothing within a Joint Powers o
Agreement, by which ADMINISTERING AGENCY was created, if any exists, that would restrict or o
otherwise limit STATE's ability to recover State funds improperly spent by ADMINISTERING Z
AGENCY in contravention of the terms of this AGREEMENT.
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S.J.b
ARTICLE V
AUDITS, THIRD PARTY CONTRACTING, RECORDS RETENTION AND REPORTS
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1. STATE reserves the right to conduct technical and financial audits of PROJECT work and c
records and ADMINISTERING AGENCY agrees, and shall require its contractors and E
subcontractors to agree, to cooperate with STATE by making all appropriate and relevant L
p PROJECT records available for audit and copying as required by paragraph three (3) of ARTICLE Q
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2. ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintain a
financial management system and records that properly accumulate and segregate reasonable, E
allowable, and allocable incurred PROJECT costs and matching funds by line item for the a
PROJECT. The financial management system of ADMINISTERING AGENCY, its contractors and
all subcontractors shall conform to Generally Accepted Accounting Principles, enable the r
determination of incurred costs at interim points of completion, and provide support for
reimbursement payment vouchers or invoices sent to or paid by STATE. E
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3. ADMINISTERING AGENCY, ADMINISTERING AGENCY's contractors and subcontractors, and
STATE shall each maintain and make available for inspection and audit by STATE, the California
State Auditor, or any duly authorized representative of STATE or the United States all books,
documents, papers, accounting records, and other evidence pertaining to the performance of such
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contracts, including, but not limited to, the costs of administering those various contracts and
ADMINISTERING AGENCY shall furnish copies thereof if requested. All of the above referenced
parties shall make such AGREEMENT, PROGRAM SUPPLEMENT and contract materials
available at their respective offices at all reasonable times during the entire PROJECT period and a
for three (3) years from the date of submission of the final expenditure report by the STATE to the a'
FHWA. a
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4. ADMINISTERING AGENCY is required to have an audit in accordance with the Single Audit Act o
of 2 CFR 200 if it expends $750,000 or more in Federal Funds in a single fiscal year. The Federal
Funds received under a PROGRAM SUPPLEMENT are a part of the Catalogue of Federal U.
Domestic Assistance (CFDA) 20.205. o
5. ADMINISTERING AGENCY agrees to include all PROGRAM SUPPLEMENTS adopting the °
terms of this AGREEMENT in the schedule of projects to be examined in ADMINISTERING Z
AGENCY's annual audit and in the schedule of projects to be examined under its single audit
prepared in accordance with 2 CFR, Part 200. E
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6. ADMINISTERING AGENCY shall not award a non-A&E contract over $5,000, construction co
contract over $10,000, or other contracts over $25,000 (excluding professional service contracts of
the type which are required to be procured in accordance with Government Code sections 4525 cis
(d), (e) and (f)) on the basis of a noncompetitive negotiation for work to be performed under this
AGREEMENT without the prior written approval of STATE. Contracts awarded by
ADMINISTERING AGENCY, if intended as local match credit, must meet the requirements set a
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5.J.b
7. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREE
shall contain provisions 5, 6, 17, 19 and 20 of ARTICLE IV, FISCAL PROVISIONS, and provisions
1, 2, and 3 of this ARTICLE V, AUDITS, THIRD-PARTY CONTRACTING RECORDS
RETENTION AND REPORTS. o
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8. To be eligible for local match credit, ADMINISTERING AGENCY must ensure that local match E
funds used for a PROJECT meet the fiscal provisions requirements outlined in ARTICLE IV in the a
same manner as required of all other PROJECT expenditures. Q
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9. In addition to the above, the pre-award requirements of third-party contractor/consultants with N
ADMINISTERING AGENCY should be consistent with the LOCAL ASSISTANCE PROCEDURES.
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S.J.b
ARTICLE VI - FEDERAL LOBBYING ACTIVITIES CERTIFICATION
1. By execution of this AGREEMENT, ADMINISTERING AGENCY certifies, to the best of the
signatory officer's knowledge and belief, that: ,o
A. No federal or state appropriated funds have been paid or will be paid, by or on behalf of E
ADMINISTERING AGENCY, to any person for influencing or attempting to influence an officer or L
employee of any STATE or federal agency, a member of the State Legislature or United States a
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. a
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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 a
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
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AGREEMENT and each PROGRAM SUPPLEMENT was or will be made or entered into. �
Submission of this certification is a prerequisite for making or entering into this AGREEMENT
imposed by Section 1352, Title 31, United States Code. Any party who fails to file the required d
certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 a
for each such failure.
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2. ADMINISTERING AGENCY also agrees by signing this AGREEMENT that the language of this
certification will be included in all lower tier sub-agreements which exceed $100,000 and that all L
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such sub-recipients shall certify and disclose accordingly. Ln
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Packet Pg. 383
ARTICLE VII - MISCELLANEOUS PROVISIONS
1. ADMINISTERING AGENCY agrees to use all state funds reimbursed hereunder only for
transportation purposes that are in conformance with Article XIX of the California State °
Constitution and the relevant Federal Regulations. c
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2. This AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute L
enacted by the State Legislature or adopted by the CTC that may affect the provisions, terms, or a
funding of this AGREEMENT in any manner.
3. ADMINISTERING AGENCY and the officers and employees of ADMINISTERING AGENCY,
when engaged in the performance of this AGREEMENT, shall act in an independent capacity and C
not as officers, employees or agents of STATE or the federal government. a
4. Each project-specific E-76 or E-76 (AMOD), PROGRAM SUPPLEMENT and Finance Letter
shall separately establish the terms and funding limits for each described PROJECT funded under
the AGREEMENT. No federal or state funds are obligated against this AGREEMENT. E
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5. ADMINISTERING AGENCY certifies that neither ADMINISTERING AGENCY nor its principals
are suspended or debarred at the time of the execution of this AGREEMENT. ADMINISTERING
AGENCY agrees that it will notify STATE immediately in the event a suspension or a debarment
occurs after the execution of this AGREEMENT.
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6. 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, a
excepting bona fide employees or bona fide established commercial or selling agencies .c
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 work actually performed, or in STATE's discretion, to deduct from the o
price of consideration, or otherwise recover, the full amount of such commission, percentage, to
brokerage, or contingent fee. U_
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7. In accordance with Public Contract Code section 10296, ADMINISTERING AGENCY hereby
certifies under penalty of perjury that no more than one final unappealable finding of contempt of o
court by a federal court has been issued against ADMINISTERING AGENCY within the immediate zo
preceding two (2) year period because of ADMINISTERING AGENCY's failure to comply with an
order of a federal court that orders ADMINISTERING AGENCY to comply with an order of the E
National Labor Relations Board.
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8. ADMINISTERING AGENCY shall disclose any financial, business, or other relationship with
STATE, FHWA or Federal Transit Administration (FTA) that may have an impact upon the in
outcome of this AGREEMENT. ADMINISTERING AGENCY shall also list current contractors who
may have a financial interest in the outcome of this AGREEMENT.
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9. ADMINISTERING AGENCY hereby certifies that it does not have nor shall it acquire any N
financial or business interest that would conflict with the performance of PROJECT under this
AGREEMENT.
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Packet Pg. 384
5.J.b
10. ADMINISTERING AGENCY warrants that this AGREEMENT was not obtained or s
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
terminate this AGREEMENT without liability, to pay only for the work actually performed, or to 0
deduct from the PROGRAM SUPPLEMENT price or otherwise recover the full amount of such =
rebate, kickback, or other unlawful consideration. E
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11. Any dispute concerning a question of fact arising under this AGREEMENT that is not disposed ='
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of by agreement shall be decided by the STATE's Contract Officer who may consider any written
or verbal evidence submitted by ADMINISTERING AGENCY. The decision of the Contract Officer, n
issued in writing, shall be conclusive and binding on the PARTIES on all questions of fact
considered and determined by the Contract Officer.
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12. Neither the pending of a dispute nor its consideration by the Contract Officer will excuse =
ADMINISTERING AGENCY from full and timely performance in accordance with the terms of this y
AGREEMENT. y
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13, Neither ADMINISTERING AGENCY nor any officer or employee thereof is responsible for any Q
injury, damage or liability occurring by reason of anything done or omitted to be done by STATE,
under or in connection with any work, authority or jurisdiction arising under this AGREEMENT. It is
understood and agreed that STATE shall fully defend, indemnify and save harmless the
ADMINISTERING AGENCY and all of its officers and employees from all claims, suits or actions
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of every name, kind and description brought forth under, including, but not limited to, tortious, v
contractual, inverse condemnation and other theories or assertions of liability occurring by reason ,
of anything done or omitted to be done by STATE under this AGREEMENT.
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14. Neither STATE nor any officer or employee thereof shall be responsible for any injury, damage
or liability occurring by reason of anything done or omitted to be done by ADMINISTERING Q
AGENCY under, or in connection with, any work, authority or jurisdiction arising under this
AGREEMENT. It is understood and agreed that ADMINISTERING AGENCY shall fully defend, o
indemnify and save harmless STATE and all of its officers and employees from all claims, suits or 2
actions of every name, kind and description brought forth under, including, but not limited to,
tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by o
reason of anything done or omitted to be done by ADMINISTERING AGENCY under this o
AGREEMENT. c
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15. STATE reserves the right to terminate funding for any PROJECT upon written notice to m
ADMINISTERING AGENCY in the event that ADMINISTERING AGENCY fails to proceed with E
PROJECT work in accordance with the project-specific PROGRAM SUPPLEMENT, the bonding
requirements if applicable, or otherwise violates the conditions of this AGREEMENT and/or Q
PROGRAM SUPPLEMENT, or the funding allocation such that substantial performance is
significantly endangered. in
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Packet Pg. 385
5.J.b
16. No termination shall become effective if, within thirty (30) days after receipt of a Noti
Termination, ADMINISTERING AGENCY either cures the default involved or, if not reasonably
susceptible of cure within said thirty (30) day period, ADMINISTERING AGENCY proceeds
thereafter to complete the cure in a manner and time line acceptable to STATE. Any such .°
termination shall be accomplished by delivery to ADMINISTERING AGENCY of a Notice of c
Termination, which notice shall become effective not less than thirty (30) days after receipt, E
specifying the reason for the termination, the extent to which funding of work under this i
AGREEMENT is terminated and the date upon which such termination becomes effective, if Q
beyond thirty (30) days after receipt. During the period before the effective termination date,
ADMINISTERING AGENCY and STATE shall meet to attempt to resolve any dispute. In the event
of such termination, STATE may proceed with the PROJECT work in a manner deemed proper by
STATE. If STATE terminates funding for PROJECT with ADMINISTERING AGENCY, STATE
shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY under the Q
PROGRAM SUPPLEMENT and/or STATE approved finance letter prior to termination, provided,
however, ADMINISTERING AGENCY is not in default of the terms and conditions of this
AGREEMENT or the project-specific PROGRAM SUPPLEMENT and that the cost of PROJECT
completion to STATE shall first be deducted from any sum due ADMINISTERING AGENCY.
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17. In case of inconsistency or conflicts with the terms of this AGREEMENT and that of a project-
specific PROGRAM SUPPLEMENT, the terms stated in that PROGRAM SUPPLEMENT shall
prevail over those in this AGREEMENT.
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18. Without the written consent of STATE, this AGREEMENT is not assignable by
ADMINISTERING AGENCY either in whole or in part.
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19. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in o
writing and signed by the PARTIES, and no oral understanding or agreement not incorporated a,
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IN WITNESS WHEREOF, the PARTIES have executed this AGREEMENT by their duly o
authorized officers. �-
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STATE OF CALIFORNIA M
DEPARTMENT OF TRANSPORTATION City of San Bernardino
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By By Z
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MARK SCOTT E
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Chief, Office of Project Implementation CITY MANAGER _ d
Division of Local Assistance City of San Bernardino
Representative Name & Title ci>
(Authorized Governing Body Representative)
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5.J.b
EXHIBIT A
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FAIR EMPLOYMENT PRACTICES ADDENDUM
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1. In the performance of this Agreement, ADMINISTERING AGENCY will not discriminate against a
any employee for employment because of race, color, sex, sexual orientation, religion, ancestry or 2
national origin, physical disability, medical condition, marital status, political affiliation, family and M
medical care leave, pregnancy leave, or disability leave. ADMINISTERING AGENCY will take
affirmative action to ensure that employees are treated during employment without regard to their
race, sex, sexual orientation, color, religion, ancestry, or national origin, physical disability, medical d
condition, marital status, political affiliation, family and medical care leave, pregnancy leave, or =
disability leave. Such action shall include, but not be limited to, the following: employment;
upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training, including apprenticeship.
ADMINISTERING AGENCY shall post in conspicuous places, available to employees for Q
employment, notices to be provided by STATE setting forth the provisions of this Fair Employment ;
section.
2. ADMINISTERING AGENCY, its contractor(s) and all subcontractors shall comply with the Lo
provisions of the Fair Employment and Housing Act (Government Code Section 1290-0 et seq.), v
and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, cn
Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing
Commission implementing Government Code, Section 12900(a-f), set forth in Chapter 5 of a
Division 4 of Title 2 of the California Code of Regulations are incorporated into this AGREEMENT a.
by reference and made a part hereof as if set forth in full. Each of the ADMINISTERING a
AGENCY'S contractors and all subcontractors shall give written notice of their obligations under a
this clause to labor organizations with which they have a collective bargaining or other o
agreements, as appropriate. LO
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3. ADMINISTERING AGENCY shall include the nondiscrimination and compliance provisions of o
this clause in all contracts and subcontracts to perform work under this AGREEMENT.
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4. ADMINISTERING AGENCY will permit access to the records of employment, employment Z
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advertisements, application forms, and other pertinent data and records by STATE, the State Fair a
Employment and Housing Commission, or any other agency of the State of California designated E
by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment 2
section of this Agreement. Q
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5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occurred
upon receipt of a final judgment to that effect from a court in an action to which ADMINISTERING
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AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Housing N
Commission that it has investigated and determined that ADMINISTERING AGENCY has violated
the Fair Employment 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. E
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5.J.b
(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 w
the goods or services thereunder shall be borne and paid for by ADMINISTERING AGENCY and c
by the surety under the performance bond, if any, and STATE may deduct from any moneys due E
or thereafter may become due to ADMINISTERING AGENCY, the difference between the price L
named in the Agreement and the actual cost thereof to STATE to cure ADMINISTERING a
AGENCY's breach of this Agreement.
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5.Jb
EXHIBIT B
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NONDISCRIMINATION ASSURANCES
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ADMINISTERING AGENCY HEREBY AGREES THAT, as a condition to receiving any federal Q
financial assistance from the STATE, acting for the U.S. Department of Transportation, it will 2
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 (hereinafter referred to as the ACT), and all requirements imposed by or pursuant to Title
49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the a
Secretary, Part 21, "Nondiscrimination in Federally-Assisted Programs of the Department of <0 i
Transportation - Effectuation of Title VI of the Civil Rights Act of 1964" (hereinafter referred to as
the REGULATIONS), the Federal-aid Highway Act of 1973, and other pertinent directives, to the o;
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 E
disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to a
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 necessary to effectuate this agreement. This assurance is required by subsection
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21.7(a) (1) of the REGULATIONS.
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More specifically, and without limiting the above general assurance, ADMINISTERING AGENCY
hereby gives the following specific assurances with respect to its federal-aid Program: 0 a.
1. That ADMINISTERING AGENCY agrees that each "program" and each "facility" as defined in a
subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a "program") LL
conducted, or will be (with regard to a "facility") operated in compliance with all requirements c
imposed by, or pursuant to, the REGULATIONS. Ln
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2. That ADMINISTERING AGENCY shall insert the following notification in all solicitations for bids o
for work or material subject to the REGULATIONS made in connection with the federal-aid o
Program and, in adapted form, in all proposals for negotiated agreements: °
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ADMINISTERING AGENCY hereby notifies all bidders that it will affirmatively insure that in any d
agreement entered into pursuant to this advertisement, minority business enterprises will be E
afforded full opportunity to submit bids in response to this invitation and will not be discriminated 1
against on the grounds of race, color, sex, national origin, religion, age, or disability in Q
consideration for an award.
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3. That ADMINISTERING AGENCY shall insert the clauses of Appendix A of this assurance in
every agreement subject to the ACT and the REGULATIONS.
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4. That the clauses of Appendix B of this Assurance shall be included as a covenant running with N
the land, in any deed effecting a transfer of real property, structures, or improvements thereon, or
interest therein.
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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. ,o
6. That where ADMINISTERING AGENCY receives federal financial assistance in the form, or for E
the acquisition, of real property or an interest in real property, the Assurance shall extend to rights a
to space on, over, or under such property.
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7. That ADMINISTERING AGENCY shall include the appropriate clauses set forth in Appendix C co
and D of this Assurance, as a covenant running with the land, in any future deeds, leases, permits,
licenses, and similar agreements entered into by the ADMINISTERING AGENCY with other
parties: Q
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Appendix C;
(a) for the subsequent transfer of real property acquired or improved under the federal-aid E
Program; and a
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Appendix D;
(b) for the construction or use of or access to space on, over, or under real property acquired, or
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improved under the federal-aid Program.
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8. That this assurance obligates ADMINISTERING AGENCY for the period during which federal
financial assistance is extended to the program, except where the federal financial assistance is to a
provide, or is in the form of, personal property or real property or interest therein, or structures, or .c
improvements thereon, in which case the assurance obligates ADMINISTERING AGENCY or any
transferee for the longer of the following periods: a
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(a) the period during which the property is used for a purpose for which the federal financial u'
assistance is extended, or for another purpose involving the provision of similar services or LL
benefits; or M
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(b) the period during which ADMINISTERING AGENCY retains ownership or possession of the
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9. That ADMINISTERING AGENCY shall provide for such methods of administration for the d
program as are found by the U.S. Secretary of Transportation, or the official to whom he delegates 2
specific authority, to give reasonable guarantee that ADMINISTERING AGENCY, other recipients, Q
sub-grantees, applicants, sub-applicants, transferees, successors in interest, and other
participants of federal financial assistance under such program will comply with all requirements C'n
imposed by, or pursuant to, the ACT, the REGULATIONS, this Assurance and the Agreement.
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10. That ADMINISTERING AGENCY agrees that the United States and the State of California Q
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have a right to seek judicial enforcement with regard to any matter arising under the ACT, the N
REGULATIONS, and this Assurance.
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5.J.b
11. ADMINISTERING AGENCY shall not discriminate on the basis of race, religion, age, disability,
color, national origin or sex in the award and performance of any STATE assisted contract or in .°
the administration on its DBE Program or the requirements of 49 CFR Part 26. ADMINISTERING
AGENCY shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure non- E
discrimination in the award and administration of STATE assisted contracts. ADMINISTERING a
AGENCY'S DBE Implementation Agreement is incorporated by reference in this AGREEMENT. a
Implementation of this program is a legal obligation and failure to carry out its terms shall be
treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out
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its approved DBE Implementation Agreement, STATE may impose sanctions as provided for
under 49 CFR 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 1985 (31 USC 3801 et seq.) a
THESE ASSURANCES are 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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Packet Pg. 391
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APPENDIX A TO EXHIBIT B =
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During the performance of this Agreement, ADMINISTERING AGENCY, for itself, its assignees L
and successors in interest (hereinafter collectively referred to as ADMINISTERING AGENCY) Q
agrees as follows:
(1) Compliance with Regulations: 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, Q
(hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and c
made a part of this agreement.
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(2) Nondiscrimination: ADMINISTERING AGENCY, with regard to the work performed by it during
the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, q
religion, age, or disability in the selection and retention of sub-applicants, including procurements ,
of materials and leases of equipment. ADMINISTERING AGENCY shall 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.
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(3) Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all
solicitations either by competitive bidding or negotiation made by ADMINISTERING AGENCY for a
work to be performed under a Sub-agreement, including procurements of materials or leases of .�
equipment, each potential sub-applicant or supplier shall be notified by ADMINISTERING Q
AGENCY of the ADMINISTERING AGENCY's obligations under this Agreement and the
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REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin. o
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(4) Information and Reports: ADMINISTERING AGENCY shall provide all information and reports U.
required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access to 0
ADMINISTERING AGENCY's books, records, accounts, other sources of information, and its o
facilities as may be determined by STATE or FHWA to be pertinent to ascertain compliance with
such REGULATIONS or directives. Where any information required of ADMINISTERING z°
AGENCY is in the exclusive possession of another who fails or refuses to furnish this information, a�
ADMINISTERING AGENCY shall so certify to STATE or the FHWA as appropriate, and shall set E
forth what efforts ADMINISTERING AGENCY has made to obtain the information. 0
(5) Sanctions for Noncompliance: In the event of ADMINISTERING AGENCY's noncompliance
with the nondiscrimination provisions of this agreement, STATE shall impose such agreement in
sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: c
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(a) withholding of payments to ADMINISTERING AGENCY under the Agreement within a ¢
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reasonable period of time, not to exceed 90 days; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part.
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Page 22 of 26
Packet Pg. 392
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(6) Incorporation of Provisions: ADMINISTERING AGENCY shall include the provisions of =
1 through fi in eve sub-agreement, including procurements of materials and w
paragraphs ( ) 9 ( ) rY g 9 P E
leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. a
ADMINISTERING AGENCY shall take such action with respect to any sub-agreement or a
procurement as STATE or FHWA may direct as a means of enforcing such provisions including
sanctions for noncompliance, provided, however, that, in the event ADMINISTERING AGENCY Cn
becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of
such direction, ADMINISTERING AGENCY may request STATE enter into such litigation to
protect the interests of STATE, and, in addition, ADMINISTERING AGENCY may request the Q
United States to enter into such litigation to protect the interests of the United States.
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Page 23 of 26
Packet Pg.393
5.J.b
The following clauses shall be included in any and all deeds effecting or recording the tran
PROJECT real property, structures or improvements thereon, or interest therein from the United
States.
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(GRANTING CLAUSE)
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NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon the L
condition that ADMINISTERING AGENCY will accept title to the lands and maintain the project a
constructed thereon, in accordance with Title 23, United States Code, the Regulations for the
Administration of federal-aid for Highways and the policies and procedures prescribed by the N
Federal 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, a
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 Y
hereto and made a part hereof.
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(HABENDUM CLAUSE) a
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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 financial 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.
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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 a
successors and assigns, a
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(1) that no person shall on the grounds of race, color, sex, national origin, religion, age or .2
disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to u
discrimination with regard to any facility located wholly or in part on, over, or under such lands o
hereby conveyed (;) (and) * "?
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(2) that ADMINISTERING AGENCY shall use the lands and interests in lands so conveyed, in Z
compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, a
Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in E
federally-assisted programs of the Department of Transportation - Effectuation of Title VI of the 2
Civil Rights Act of 1964, and as said Regulations may be amended (;) and Q
(3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, the in
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 a
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existed prior to this deed.*
* 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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Page 24 of 26
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S.J.b
APPENDIX C TO EXHIBIT B
The following clauses shall be included in any and all deeds, licenses, leases, permits, or similar ,o
instruments entered into by ADMINISTERING AGENCY, pursuant to the provisions of Assurance
7(a) of Exhibit B. E
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The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal 4;
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, permit, etc.) for a purpose for which a U.S. Q
Department of Transportation program or activity is extended or for another purpose involving the
provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall
maintain and operate such facilities and services in compliance with all other requirements 2
imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, 'E
Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally-assisted programs of the Q
Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said
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Regulations may be amended.
(Include in licenses, leases, permits, etc.)'
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That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING r
AGENCY shall have the right to terminate the (license, lease, permit etc.) and to re-enter and
repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, a
etc.) had never been made or issued.
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(Include in deeds)* 0
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That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
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AGENCY shall have the right to re-enter said land and facilities thereon, and the above- LL
described lands and facilities shall thereupon revert to and vest in and become the absolute o
property of ADMINISTERING AGENCY and its assigns.
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* Reverter clause and related language to be used only when it is determined that such a clause is Q
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necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
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Page 25 of 26
Packet Pg. 395
S.J.b
APPENDIX D TO EXHIBIT B
The following shall 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. E
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The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal a
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
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land") that:
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(1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall be Q
excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in c
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 Q
disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected -
41
to discrimination; and M
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(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with
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the Regulations.
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That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shall have the right to terminate the (license, lease, permit, etc.) and to re-enter and a
repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, LL
etc.) had never been made or issued. L
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(Include in deeds)* M
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That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING T
AGENCY shall have the right to re-enter said land and facilities thereon, and the above- o
described lands and facilities shall thereupon revert to and vest in and become the absolute zo
property of ADMINISTERING AGENCY, and its assigns. C
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* 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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Page 26 of 26
Packet Pg. 396