HomeMy WebLinkAbout10 C41990 & Res 2021-56 - State-Funded Projects No. 08-5414S21STAFF REPORT
CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
MEETING DATE: August 26, 2021
PREPARED BY: Audrey Nickerson, Project Manager
REQUEST: Waive further reading and Adopt Resolution No. 2021-56 Approving
Master Agreement, Administering Agency — State Agency
Agreement for State -Funded Projects, No. 08-5414S21.
Recommendation
Waive further reading and adopt Resolution No. 2021-56 approving Master
Agreement, Administering Agency — State Agency Agreement, No. 08-5414S21
between the California Department of Transportation and the City of Palm Desert,
and all related agreements as described therein by designated City staff.
Strategic Plan
Implementation of State -funded transportation projects subject to Master Agreement,
Administering Agency — State Agency Agreement, No. 08-5414S21 ("Master
Agreement"), would enable the City to advance the following priorities identified in the
City's Strategic Plan, without exhausting local funds:
Transportation Mini -Vision: By 2033, each resident and visitor will have safe, convenient
and efficient transportation options.
Transportation Priority 1: Create walkable neighborhoods and areas within Palm Desert
that would include residential, retail, services and employment centers, and parks,
recreation, and open space to reduce the use of low occupancy vehicles.
Background Analysis
On May 5, 2020, the California Department of Transportation ("Caltrans") released a call
for projects to be funded through "Cycle 10" of the HSIP program. Staff evaluated the
most recent five years of collision data, collected during preparation of the City's Local
Roadways Safety Plan, to identify pedestrian safety as an emphasis area for
improvements. On September 29, 2020, staff submitted two HSIP grant applications to
Caltrans for the following improvements:
Proiect No. HSIPL-5414(017): Installation of retroreflective backplates on all signal
heads throughout the City and replacement of 35 existing pedestrian signal heads
with countdown pedestrian signal heads
August 26, 2021 - Staff Report
Adopt Resolution No. 2021-56 Approving Master Agreement
Page2of3
Proiect No. HSIPL-5414(018): Installation of high -visibility thermoplastic markings
at 13 high -density intersections to enhance the visibility of crosswalks
On March 26, 2021, the City received notification that both grant applications were
awarded 100 percent HSIP funding in the amount of $2,159,800. While no local funding
match is required, the City must front the funds and then be reimbursed by Caltrans. The
approved FY 2021/2022 Capital Improvement Budget includes the upfront funding for the
grants from Measure A.
Before State funds can be made available to the City, the City of Palm Desert must enter
into an agreement with Caltrans to establish the terms and conditions applicable when
receiving State funds for a designated facility and to the subsequent operation and
maintenance of that completed facility.
On July 15, 2021, Caltrans provided a revised Master Agreement to the City, entitled
Administering Agency -State Agreement for State -Funded Projects, No. 08-5414S21. The
City must authorize the Master Agreement for the administration and disbursements of
State funds. The Master Agreement is included as Attachment 2.
Pursuant to the Master Agreement, the City must enter into project specific Program
Supplemental Agreements, Fund Exchange Agreements, and/or Fund Transfer
Agreements prior to receiving eligible reimbursement. Caltrans allows a City Council to
delegate authority to execute Program Supplement Agreements as an alternative to
requiring a City to adopt a Resolution for each phase of, and for each State funded
transportation project. Using a "blanket" Resolution allows for streamlining the process to
execute Program Supplement Agreements that are routine in nature. The proposed
resolution achieves this intent and authorizes the City Manager or the Public Works
Director the authority to accept, execute and endorse all Program Supplemental
Agreements, Fund Exchange Agreements, and/or Fund Transfer Agreements.
Environmental Review
The requested City Council action is not a "Project" as defined by the California
Environmental Quality Act (CEQA). Pursuant to CEQA Guidelines Section 15378(a), a
"Project" means the whole of an action, which has a potential for resulting in either a direct
physical change in the environment, or a reasonably foreseeable indirect physical change
in the environment. According to Section 15378(b), a Project does not include: (5)
Organizational or administrative activities of governments that will not result in direct or
indirect physical changes in the environment.
August 26, 2021 - Staff Report
Adopt Resolution No. 2021-56 Approving Master Agreement
Page 3 of 3
Fiscal Analysis
There are no costs associated with adopting this resolution. Execution of the Master
Agreement and all related agreements allow for the City's receipt of State funds on each
phase of each project authorized by Caltrans.
LEGAL REVIEW
RWH
Robert W. Hargreaves
City Attorney
DEPT. REVIEW
Andy Firestine
Andy Firestine
Assistant City Manager
FINANCIAL ASSISTANT
REVIEW CITY MANAGER
Jose Luis Espinoza Andy Firestine
For Janet M. Moore Andy Firestine
Director of Finance Assistant City Manager
City Manager, L. Todd Hileman: L. To0101 f t�l ev�t av�
ATTACHMENTS:
1. Resolution No. 2021-56
2. Master Agreement, Administering Agency — State Agency Agreement for State
Funded Projects, No. 08-5414S21
CITY COUNCIL ¥TION
APPROVED V DENIED
RECEIVED OTHEF
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ABSENT: One
ABSTAIN: Non R.
VERIFIED BY• NOR S IDS
Original on File with City Clerk's Office
[This page has intentionally been left blank.]
RESOLUTION NO. 2021-56
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, APPROVING MASTER
AGREEMENT, ADMINISTERING AGENCY — STATE
AGENCY AGREEMENT FOR STATE -FUNDED PROJECTS,
NO. 08-5414S21, AND APPROVING AND AUTHORIZING
DESIGNATED CITY STAFF TO ACCEPT, EXECUTE AND
ENDORSE ALL PROGRAM SUPPLEMENT AGREEMENTS,
FUND EXCHANGE AGREEMENTS, AND FUND TRANSFER
AGREEMENTS TO THE MASTER AGREEMENT,
ADMINISTERING AGENCY -STATE AGREEMENT FOR
STATE AID PROJECTS, NO. 08-5414S21.
WHEREAS, the City of Palm Desert is eligible to receive State funding for certain
transportation projects, through the California Department of Transportation; and
WHEREAS, Master Agreements, Program Supplemental Agreements, Fund
Exchange Agreements and/or Fund Transfer Agreements need to be executed with the
California Department of Transportation before such funds could be claimed; and
WHEREAS, the City of Palm Desert wishes to delegate authorization to execute
Master Agreement, Administering Agency -State Agreement for State Aid Projects, No.
08-5414S21 and any amendments thereto to the Mayor.
WHEREAS, Article I, Paragraph 4, of the "Master Agreement" sets forth the
requirement for execution of a Program Supplement to the Master Agreement by the City
as a prerequisite for receiving State funds
WHEREAS, the City of Palm Desert wishes to grant authorization to execute all
Program Supplemental Agreements, Fund Exchange Agreements, Fund Transfer
Agreements and/or any amendments thereto to the City Manager or the Public Works
Director.
NOW, THEREFORE IT IS HEREBY RESOLVED, ORDERED AND FOUND by
the City Council of the City of Palm Desert, State of California, as follows:
1. The foregoing recitals are true and correct.
2. The City Council hereby approves Master Agreement, Administering Agency -State
Agreement for State Aid Projects, No. 08-5414S21, and any amendments thereto,
with the California Department of Transportation and authorizes the mayor to
execute and endorse said agreement.
3. The City Council hereby approves the related agreements described in the Section
and delegates and authorizes the City Manager or the Public Works Director the
authority to accept, execute and endorse all Program Supplemental Agreements,
Fund Exchange Agreements, and/or Fund Transfer Agreements to the Master
RESOLUTION NO. 2021-56
Agreement, Administering Agency — State Agreement for State -Funded Projects,
No. 08-5414S21, and any amendments thereto, with the California Department of
Transportation.
4. This resolution shall take effect immediately upon its adoption.
PASSED, APPROVED, AND ADOPTED on this 26th day of August 2021 by the
following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
KATHLEEN KELLY, MAYOR
ATTEST:
NORMA I. ALLEY, MMC, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
CONTRACT NO. C41990
MASTER AGREEMENT
ADMINISTERING AGENCY -STATE AGREEMENT FOR
STATE -FUNDED PROJECTS
08 City of Palm Desert
District Administering Agency
Agreement No. 08-5414S21
This AGREEMENT, is entered into effective this day of , 20 , by and
between the City of Palm Desert, hereinafter referred to as "ADMINISTERING AGENCY," and
the State of California, acting by and through its Department of Transportation (Caltrans),
hereinafter referred to as "STATE", and together referred to as "PARTIES" or individually as a
"PARTY."
RECITALS:
1. WHEREAS, the Legislature of the State of California has enacted legislation by which certain
State funds are made available for use on local transportation related projects of public entities
qualified to act as recipients of these state funds; and
2. WHEREAS, ADMINISTERING AGENCY has applied to the California Transportation
Commission (CTC) and/or STATE for funding from a State -funded program (herein referred to
as STATE FUNDS), as defined in the Local Assistance Program Guidelines (LAPG) and/or in
the respective CTC Guidelines, for use on local authorized transportation related projects as a
local administered project(s), hereinafter referred to as "PROJECT"; and
3. WHEREAS, said PROJECT will not receive any federal funds; and
4. WHEREAS, before STATE FUNDS will be made available for PROJECT, ADMINISTERING
AGENCY and STATE are required to enter into an agreement to establish terms and conditions
applicable to the ADMINISTERING AGENCY when receiving STATE FUNDS for a designated
PROJECT facility and to the subsequent operation and maintenance of that completed facility.
NOW, THEREFORE, the PARTIES agree as follows:
Page 1 of 16
CONTRACT NO. C41990
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 state funded projects,
hereinafter referred to as "PROGRAM SUPPLEMENT", has been fully executed by both STATE
and ADMINISTERING AGENCY.
2. The State approved project -specific allocation notification letter and approved CTC allocation
documentation designate the party responsible for implementing PROJECT, type of work, and
location of PROJECT for projects requiring CTC allocation by PROJECT component of work.
3. The PROGRAM SUPPLEMENT sets out special covenants as a condition for the
ADMINISTERING AGENCY to receive STATE FUNDS from/through STATE for designated
PROJECT. The PROGRAM SUPPLEMENT shall also show these STATE FUNDS that have
been 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 the terms of this AGREEMENT
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.
4. ADMINISTERING AGENCY agrees to execute and return each project -specific PROGRAM
SUPPLEMENT. The PARTIES agree that STATE may suspend future allocations,
encumbrances and invoice payments for any on- going or future STATE FUNDED PROJECT
performed by ADMINISTERING AGENCY if any project -specific PROGRAM SUPPLEMENT is
not returned, unless otherwise agreed by STATE in writing.
5. ADMINISTERING AGENCY further agrees, as a condition to the release and payment of
STATE FUNDS encumbered for the PROJECT described in each PROGRAM SUPPLEMENT,
to comply with the terms and conditions of this AGREEMENT and all the agreed -upon Special
Covenants or Remarks incorporated within the PROGRAM SUPPLEMENT, and
Cooperative/Contribution Agreement where appropriate, defining and identifying the nature of
the specific PROJECT.
6. STATE FUNDS will not participate in any portion of PROJECT work performed in advance of
the effective date of allocation by CTC, or by STATE for allocations delegated to STATE by
CTC, for said PROJECT.
7. Projects allocated with STATE FUNDS will be administered in accordance with the current
CTC STIP Guidelines, applicable chapter(s) of the LAPG, LAPM and/or any other instructions
published by STATE.
8. ADMINISTERING AGENCY agrees to ensure compliance with all relevant State laws and
requirements for work related to PROJECT, including the California Environmental Quality Act
(CEQA).
9. ADMINISTERING AGENCY's eligible costs for preliminary engineering work includes all
preliminary work directly related to PROJECT up to contract award for construction, including,
but not limited to, environmental studies and permits (E&P),
Page 2 of 16
CONTRACT NO. C41990
preliminary surveys and reports, laboratory work, soil investigations, the preparation of plans,
specifications and estimates (PS&E), advertising for bids, awarding of a contract and project
development contract administration.
10. ADMINISTERING AGENCY's eligible costs for construction engineering include actual
inspection and supervision of PROJECT construction work; construction staking; laboratory and
field testing; and the preparation and processing of field reports, records, estimates, final
reports, and allowable expenses of employees/consultants engaged in such activities.
11. Unless the PARTIES agree otherwise in writing, ADMINISTERING AGENCY's employees
or its contracted engineering consultant shall be responsible for all PROJECT engineering work.
12. ADMINISTERING AGENCY shall not proceed with final design of PROJECT until final
environmental approval of PROJECT. Final design entails the design work necessary to
complete the PS&E and other work necessary for a construction contract but not required
earlier for environmental clearance of that PROJECT.
13. If PROJECT is not on STATE -owned right-of-way, PROJECT shall be constructed in
accordance with Chapter 11 of the LAPM that describes minimum statewide design standards
for local agency streets and roads. The design standards for projects off the National Highway
System (NHS) allow STATE to accept either the current Caltrans Highway Design Manual
standards, the current FHWA-adopted American Association of State Highway and
Transportation Officials (AASHTO) A Policy on Geometric Design of Highways and Streets
standards, or the approved geometric design standards of ADMINISTERING AGENCY.
Additionally, for projects off the NHS, STATE will accept ADMINISTERING AGENCY -approved
standard specifications, standard plans, materials sampling and testing quality assurance
programs that meet the conditions described in the then current Local Assistance Procedures
Manual.
14. 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
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.
15. When PROJECT is not on the State Highway System (SHS) 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.
16. ADMINISTERING AGENCY shall comply with the provisions of sections 4450 and 4454 of
the California Government Code, as well as other Department of General Services guidance, if
applicable, for the contract PS&E for the construction of buildings, structures, sidewalks, curbs
and related facilities for accessibility and
Page 3
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CONTRACT NO. C41990
usability. Further requirements and guidance are provided in Title 24 of the California Code of
Regulations.
17. ADMINISTERING AGENCY shall provide a full-time public employee to be in responsible
charge of each PROJECT. ADMINISTERING AGENCY shall provide or arrange for adequate
supervision and inspection of each PROJECT. ADMINISTERING AGENCY may utilize
consultants to perform supervision and inspection work for PROJECT with a fully qualified and
licensed engineer. Utilization of consultants does not relieve ADMINISTERING AGENCY of its
obligation to provide a full-time public employee to be in responsible charge of each PROJECT.
18. Unless otherwise provided in the PROGRAM SUPPLEMENT, ADMINISTERING AGENCY
shall advertise, award, and administer the PROJECT construction contract or contracts.
19. The cost of maintenance, security, or protection performed by ADMINISTERING AGENCY
or contractor forces during any temporary suspension of PROJECT or at any other time may not
be charged to the PROJECT.
20. ADMINISTERING AGENCY shall submit PROJECT -specific award information to STATE's
District Local Assistance Engineer, within sixty (60) days after contract award.
21. ADMINISTERING AGENCY shall submit the final report documents that collectively
constitute a "Final Project Expenditure Report", LAPM Exhibit 17-M, within one hundred eighty
(180) days of PROJECT completion. Failure by ADMINISTERING AGENCY to submit a "Final
Project Expenditure Report", within 180 days of project completion will result in STATE
imposing sanctions upon ADMINISTERING AGENCY in accordance with the Local Assistance
Procedures Manual.
22. ADMINISTERING AGENCY shall comply with the Americans with Disabilities Act (ADA) of
1990 that prohibits discrimination on the basis of disability and all applicable regulations and
guidelines issued pursuant to the ADA.
23. The Governor and the Legislature 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 PRACTICES ADDENDUM, attached hereto as
Exhibit A and further agrees that any agreement entered into by ADMINISTERING AGENCY
with a third party for performance of work connected with PROJECT shall incorporate Exhibit A
(with third party's name replacing ADMINISTERING AGENCY) as parts of such agreement.
24. ADMINISTERING AGENCY shall include in all contracts and subcontracts awarded when
applicable, a clause that requires each subcontractor to comply with California Labor Code
requirements that all workers employed on public works aspects of any project (as defined in
California Labor Code sections 1720-1815) be paid not less than the general prevailing wage
rates predetermined by the Department of Industrial Relations as effective at the date of
contract award by the ADMINISTERING AGENCY.
Page 4 of 16
CONTRACT NO. C41990
ARTICLE II - RIGHTS -OF -WAY
1. No contract for the construction of a STATE FUNDED PROJECT shall be awarded until all
necessary rights of way have been secured. Prior to the advertising for construction of
PROJECT, 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.
2. The furnishing of rights of way by ADMINISTERING AGENCY as provided for herein
includes, and is limited to, the following, unless the PROGRAM SUPPLEMENT provides
otherwise.
(a) Expenditures of capital and support to purchase all real property required for PROJECT free
and clear of liens, conflicting easements, obstructions and encumbrances, after crediting
PROJECT with the fair market value of any excess property retained and not disposed of by
ADMINISTERING AGENCY.
(b) The cost of furnishing of right-of-way as provided for herein includes, in addition to real
property required for the PROJECT, title free and clear of obstructions and encumbrances
affecting PROJECT and the payment, as required by applicable law, of damages to owners of
remainder real property not actually taken but injuriously affected by PROJECT.
(c) The cost of relocation payments and services provided to owners and occupants pursuant to
Government Code sections 7260-7277 when PROJECT displaces an individual, family,
business, farm operation or nonprofit organization.
(d) The cost of demolition and/or the sale of all improvements on the right-of-way after credit is
recorded for sale proceeds used to offset PROJECT costs.
(e) The cost of all unavoidable utility relocation, protection or removal.
(f) The cost of all necessary hazardous material and hazardous waste treatment, encapsulation
or removal and protective storage for which ADMINISTERING AGENCY accepts responsibility
and where the actual generator cannot be identified, and recovery made.
3. ADMINISTERING AGENCY agrees to indemnify and hold STATE harmless from any liability
that may result in the event the right-of-way for a PROJECT is not clear as certified by
ADMINISTERING AGENCY, including, but not limited to, if said right-of-way is found to contain
hazardous materials requiring treatment or removal to remediate in accordance with Federal
and State laws. 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 available to
ADMINISTERING AGENCY for the orderly prosecution of PROJECT work.
Page 5
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CONTRACT NO. C41990
ARTICLE III - MAINTENANCE AND MANAGEMENT
1. ADMINISTERING AGENCY will maintain and operate the property acquired, developed,
constructed, rehabilitated, or restored by PROJECT for its intended public use until such time as
the parties might amend this AGREEMENT to otherwise provide. With the approval of STATE,
ADMINISTERING AGENCY or its successors in interest in the PROJECT property may transfer
this obligation and responsibility to maintain and operate PROJECT property for that intended
public purpose to another public entity.
2. Upon ADMINISTERING AGENCY's acceptance of the completed construction 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 if PROJECT falls within the jurisdictional limits of another Agency or Agencies, it is
the duty of ADMINISTERING AGENCY to facilitate a separate 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. 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 STATE FUNDED
PROJECTS of ADMINISTERING AGENCY will be withheld until the PROJECT shall have been
put in a condition of operation and maintenance satisfactory to STATE. The provisions of this
section shall not apply to a PROJECT that has been vacated through due process of law with
STATE's concurrence.
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.
Said operations and maintenance staff may be employees of ADMINISTERING AGENCY,
another unit of government, or a contractor under agreement with ADMINISTERING AGENCY.
All maintenance will be performed at regular intervals or as required for efficient operation of the
complete PROJECT improvements.
4. ADMINISTERING AGENCY shall comply with all applicable law, including but not limited to,
all applicable legal authority regarding construction standards.
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CONTRACT NO. C41990
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 CTC.
2. STATE'S financial commitment of STATE FUNDS will occur only upon the execution of this
AGREEMENT, the execution of each project -specific PROGRAM SUPPLEMENT and/or
STATE's approved finance letter.
3. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices in arrears for
reimbursement of allowable PROJECT costs at least once every six months commencing after
the STATE FUNDS are encumbered on either the project -specific PROGRAM SUPPLEMENT
or through a project -specific finance letter approved by STATE. STATE reserves the right to
suspend future allocations and invoice payments for any on -going or future STATE FUNDED
project performed by ADMINISTERING AGENCY if PROJECT costs have not been invoiced by
ADMINISTERING AGENCY for a six-month period
4. Invoices shall be submitted on a standardized billing summary template, in accordance with
Chapter 5 of the LAPM to claim reimbursement by ADMINISTERING AGENCY. For
construction invoices, pay estimates must be included.
5. ADMINISTERING AGENCY must retain at least one copy of supporting backup
documentation for allowable costs incurred and claimed for reimbursement by
ADMINISTERING AGENCY. ADMINISTERING AGENCY agrees to submit supporting backup
documentation with invoices if requested by State. Acceptable backup documentation includes,
but is not limited to, agency's progress payment to the contractors, copies of cancelled checks
showing amounts made payable to vendors and contractors, and/or a computerized summary of
PROJECT costs.
6. Payments to ADMINISTERING AGENCY can only be released by STATE as
reimbursements of actual allowable PROJECT costs already incurred and paid for by the
ADMINISTERING AGENCY.
7. Indirect Cost Allocation Plans/Indirect Cost Rate Proposals (ICAP/ICRP), Central Service
Cost Allocation Plans and related documentation are to be prepared and provided to the
Inspector General - Independent Office of Audits and Investigations for review and approval
prior to ADMINISTERING AGENCY seeking reimbursement of indirect cost incurred within each
fiscal year being claimed for reimbursement. ICAPs/ICRPs must be prepared in accordance
with the requirements set forth in 2 CFR, Part 200, Chapter 5 of the LAPM, and the ICAP/ICRP
approval procedures established by STATE.
8. STATE will withhold the greater of either two (2) percent of the total of all STATE FUNDS
encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGENCY
submits the Final Report of Expenditures for each completed PROGRAM SUPPLEMENT
PROJECT.
9. The estimated total cost of PROJECT, the amount of STATE FUNDS obligated, and the
required matching funds may be adjusted by mutual consent of the PARTIES with a finance
letter, and an allocation notification letter when applicable. STATE FUNDING may be increased
to cover PROJECT cost increases only if such additional funds are available and the CTC
and/or STATE concurs with that increase in the
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CONTRACT NO. C41990
form of an allocation and finance letter.
10. When such additional STATE FUNDS are not available, ADMINISTERING AGENCY agrees
that any increases in PROJECT costs must be defrayed with ADMINISTERING AGENCY's own
funds.
11. ADMINISTERING AGENCY shall use its own non -STATE FUNDS to finance the local share
of eligible costs and all PROJECT expenditures or contract items ruled ineligible for financing
with STATE FUNDS. STATE shall make the final determination of ADMINISTERING AGENCY's
cost eligibility for STATE FUNDED financing with respect to claimed PROJECT costs.
12. 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.
13. STATE FUNDS allocated by the CTC and/or STATE are subject to the timely use of funds
provisions approved in CTC Guidelines and State procedures approved by the CTC and
STATE.
14. STATE FUNDS encumbered for PROJECT are available for liquidation only for a limited
period from the beginning of the State fiscal year when those funds were appropriated in the
State Budget. STATE FUNDS not liquidated within these periods will be reverted unless a
Cooperative Work Agreement (CWA) is submitted by ADMINISTERING AGENCY and
approved by the California Department of Finance in accordance with Section 16304 of the
Government Code. The exact date of fund reversion will be reflected in the STATE signed
PROJECT finance letter.
15. Payments to ADMINISTERING AGENCY for PROJECT -related travel and subsistence (per
diem) expenses of ADMINISTERING AGENCY forces and its contractors and subcontractors
claimed for reimbursement or as local match credit shall not exceed rates authorized to be paid
to rank and file STATE employees under current California Department of Human Resources
(CaIHR) rules unless a Cooperative Work Agreement (CWA) is submitted by ADMINISTERING
AGENCY and approved by the California Department of Finance in accordance with
Government Code section 16304. If the rates invoiced by ADMINISTERING AGENCY are in
excess of CaIHR rates, ADMINISTERING AGENCY is responsible for the cost difference, and
any overpayments inadvertently paid by STATE shall be reimbursed to STATE by
ADMINISTERING AGENCY on demand.
16. ADMINISTERING AGENCY agrees to comply with California Government Code 4525-
4529.14. Administering Agency shall undertake the procedures described in California
Government Code 4527(a) and 4528(a). Administering Agency shall also comply with 2 CFR
Part 200 Uniform Administrative Requirements, Cost Principles and Audit Requirement for
Federal Awards, excluding 2 CFR Part 200.318-200.326.
17. ADMINISTERING AGENCY agrees and will assure that its contractors and subcontractors
will be obligated to agree that Contract Cost Principles and Procedures, 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the
allowability of individual PROJECT cost items.
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CONTRACT NO. C41990
Every recipient and sub -recipient receiving PROJECT funds under this AGREEMENT shall
comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform
Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards,
excluding 2 CFR Part 200.318-200.326Governments. ADMINISTERING AGENCY agrees to
comply with the provisions set forth in 23 CFR Parts 140, 645 and 646 when contracting with
railroad and utility companies.
18. Every recipient and sub -recipient receiving PROJECT funds under this AGREEMENT shall
comply with 2 CFR 200 excluding 2 CFR Part 200.318-200.326, 48 CFR Chapter 1, Part 31,
LAPM, Public Contract Code (PCC) 10300- 10334 (procurement of goods), PCC 10335-10381
(non-A&E services), California Government Code 4525-4529.5 including 4527(a) and 4528(a),
and other applicable STATE regulations.
19. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or credit
that are determined by subsequent audit to be questioned, disallowed, or unallowable under 2
CFR, Part 200, 48 CFR, Chapter 1, Part 31, 23 CFR Parts 140, 645 and 646, LAPM, Public
Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non-A&E
services), California Government Code 4525-4529.5 including 4527(a) and 4528(a), and other
applicable STATE regulations are subject to repayment by ADMINISTERING AGENCY to
STATE and may result in STATE imposing sanctions on ADMINISTERING AGENCY as
described in Chapter 20 of the Local Assistance Procedures Manual.
20. Should ADMINISTERING AGENCY fail to refund any moneys due upon written demand by
STATE as provided herein or should ADMINISTERING AGENCY breach this AGREEMENT by
failing to complete PROJECT without adequate justification and approval by STATE, then,
within thirty (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,
the CTC or any other public entity or agency, may intercept, withhold and demand the transfer
of an amount equal to the amount paid by or owed to STATE for each PROJECT, 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 also withhold approval of future STATE
FUNDED projects proposed by ADMINISTERING AGENCY.
21. 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 State Controller, STATE is authorized to obtain reimbursement from whatever
sources of funding are available, including the withholding or transfer of funds, 20from those
constituent entities comprising a joint powers authority or by bringing of an action against
ADMINISTERING AGENCY or its constituent member entities, to recover all funds provided by
STATE hereunder.
22. ADMINISTERING AGENCY acknowledges that the signatory party represents the
ADMINISTERING AGENCY and further warrants that there is nothing within a Joint Powers
Agreement, by which ADMINISTERING AGENCY was created, if any exists, that would restrict
or otherwise limit STATE's ability to recover STATE FUNDS improperly spent by
ADMINISTERING AGENCY in contravention of the terms of this AGREEMENT.
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of 16
CONTRACT NO. C41990
ARTICLE V
AUDITS, THIRD PARTY CONTRACTING, RECORDS RETENTION AND REPORTS
1. STATE reserves the right to conduct technical and financial audits of PROJECT work and
records and ADMINISTERING AGENCY agrees, and shall require its contractors and
subcontractors to agree, to cooperate with STATE by making all appropriate and relevant
PROJECT records available for audit and copying as required by paragraph three (3) of Article
V.
2. ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintain
a financial management system and records that properly accumulate and segregate
reasonable, allowable, and allocable incurred PROJECT costs and matching funds by line item
for the PROJECT. The financial management system of ADMINISTERING AGENCY, its
contractors and all subcontractors shall conform to Generally Accepted Accounting Principles,
enable the determination of incurred costs at interim points of completion, and provide support
for reimbursement payment vouchers or invoices sent to or paid by STATE.
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 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 and PROGRAM SUPPLEMENT
materials available at their respective offices at all reasonable times during the entire PROJECT
period and for three (3) years, or 35 years for Prop 1 B funds, from the date of final payment to
ADMINISTERING AGENCY.
4. ADMINISTERING AGENCY shall not award a construction contract over $25,000 on the
basis of a noncompetitive negotiation for work to be performed under this AGREEMENT without
the prior written approval of STATE. All contracts awarded by ADMINISTERING AGENCY
intended or used as local match credit must meet the requirements set forth in this
AGREEMENT regarding local match funds.
5. ADMINISTERING AGENCY shall comply with Chapter 10 (commencing with Section 4525)
Division 5 of Title 1 of the Government Code and shall undertake the procedures described in
California Government Code 4527(a) and 4528(a). Administering Agency shall comply with
Chapter 10 of the LAPM for A&E Consultant Contracts.
6. ADMINISTERING AGENCY shall comply with Government Code Division 5 Title 1 sections
4525-4529.5 and shall undertake the procedures described in California Government Code
4527(a) and 4528(a) for procurement of professional service contracts. Administering Agency
shall follow Public Contract Code Section 10335-10381 for other professional service contracts.
7. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREEMENT
shall contain all of the provisions of Article IV, FISCAL PROVISIONS, and this ARTICLE V,
AUDITS, THIRD -PARTY CONTRACTING, RECORDS RETENTION AND REPORTS and shall
mandate that travel and per diem reimbursements and third -
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CONTRACT NO. C41990
party contract reimbursements to subcontractors will be allowable as PROJECT costs only after
those costs are incurred and paid for by the subcontractors.
8. To be eligible for local match credit, ADMINISTERING AGENCY must ensure that local
match funds used for a PROJECT meet the fiscal provisions requirements outlined in ARTICLE
IV in the same manner that is required of all other PROJECT expenditures.
9. Except as provided in this Article, this AGREEMENT is solely between and for the benefit of
the PARTIES and there are no third -party beneficiaries.
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CONTRACT NO. C41990
ARTICLE VI - MISCELLANEOUS PROVISIONS
1. ADMINISTERING AGENCY agrees to use all PROJECT funds reimbursed hereunder only
for transportation purposes that are in conformance with Article XIX of the California State
Constitution and other California laws.
2. ADMINISTERING AGENCY shall conform to all applicable State and Federal statutes and
regulations, and the Local Assistance Program Guidelines and Local Assistance Procedures
Manual as published by STATE and incorporated herein, including all subsequent approved
revisions thereto applicable to PROJECT unless otherwise designated in the project -specific
executed PROJECT SUPPLEMENT.
3. This AGREEMENT is subject to any additional restrictions, limitations, conditions, or any
statute enacted by the State Legislature or adopted by the CTC that may affect the provisions,
terms, or funding of this AGREEMENT in any manner.
4. 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 not as officers, employees or agents of STATE.
5. Each project -specific PROGRAM SUPPLEMENT shall separately establish the terms and
funding limits for each described PROJECT funded under this AGREEMENT and that
PROGRAM SUPPLEMENT. No STATE FUNDS are obligated against this AGREEMENT.
6. ADMINISTERING AGENCY certifies that neither ADMINISTERING AGENCY nor its
principals are suspended or debarred at the time of the execution of this AGREEMENT, and
ADMINISTERING AGENCY agrees that it will notify STATE immediately in the event a
suspension or a debarment occurs after the execution of this AGREEMENT.
7. ADMINISTERING AGENCY certifies, 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 PROJECT work actually performed, or in STATE's discretion, to deduct
from the price of PROGRAM SUPPLEMENT 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 hereby
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 (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 National Labor Relations Board.
9. ADMINISTERING AGENCY shall disclose any financial, business, or other relationship with
STATE that may have an impact upon the outcome of this AGREEMENT or any individual
PROJECT encompassed within a PROGRAM SUPPLEMENT. ADMINISTERING AGENCY
shall also list current contractors who may have a financial interest in the outcome of a
PROJECT undertaken pursuant to this
Page 12 of 16
CONTRACT NO. C41990
AGREEMENT. These disclosures shall be delivered to STATE in a form deemed acceptable by
the STATE prior to execution of this AGREEMENT.
10. ADMINISTERING AGENCY hereby certifies that it does not have, nor shall it acquire, any
financial or business interest that would conflict with the performance of any PROJECT initiated
under this AGREEMENT.
11. ADMINISTERING AGENCY certifies 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
sole discretion, to terminate this AGREEMENT without liability, to pay only for PROJECT work
actually performed, or to deduct from a PROGRAM SUPPLEMENT price or otherwise recover
the full amount of such rebate, kickback, or other unlawful consideration.
12. Any dispute concerning a question of fact arising under this AGREEMENT that is not
disposed of by agreement shall be decided by the STATE's Contract Manager, who shall be
identified to ADMINISTERING AGENCY at the time of execution of this AGREEMENT and, as
applicable , any time that Contract Manager changes during the duration of this AGREEMENT
who may consider any written or verbal evidence submitted by ADMINISTERING AGENCY.
The decision of the Contract Manager, issued in writing, shall be conclusive and binding on the
PARTIES on all questions of fact considered and determined by the Contract Manager.
13. Neither the pending of a dispute nor its consideration by the Contract Manager will excuse
the ADMINISTERING AGENCY from full and timely performance in accordance with the terms
of this AGREEMENT and each PROGRAM SUPPLEMENT.
14. Neither STATE nor any officer or employee thereof is responsible for any injury, 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 of ADMINISTERING
AGENCY arising under this AGREEMENT. It is understood and agreed that ADMINISTERING
AGENCY shall fully defend, indemnify and save harmless STATE and all of its officers and
employees from all claims and suits or actions of every name, kind and description brought forth
under, including but not limited to, tortuous, contractual, inverse condemnation or other theories
or assertions of liability occurring by reason of anything done or omitted to be done by
ADMINISTERING AGENCY under this AGREEMENT.
15. Neither ADMINISTERING AGENCY nor any officer or employee thereof is responsible for
any injury, damage or liability occurring by reason of anything done or omitted to be done by,
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 of every name, kind and description brought forth under, including but not limited to,
tortuous, 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.
16. In the event of (a) ADMINISTERING AGENCY failing to timely proceed with effective
PROJECT work in accordance with the project -specific PROGRAM SUPPLEMENT; (b) failing
to maintain any applicable bonding requirements; and (c)
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CONTRACT NO. C41990
otherwise materially violating the terms and conditions of this AGREEMENT and/or any
PROGRAM SUPPLEMENT, STATE reserves the right to terminate funding for that PROJECT
upon thirty (30) days' written notice to ADMINISTERING AGENCY.
17. No termination notice shall become effective if, within thirty (30) days after
receipt of a Notice of Termination, ADMINISTERING AGENCY either cures the default
involved or, if the default is not reasonably susceptible of cure within said thirty (30)
day period the ADMINISTERING AGENCY proceeds thereafter to complete that cure
in a manner and time line acceptable to STATE.
18. Any such termination shall be accomplished by delivery to ADMINISTERING
AGENCY of a Notice of Termination, which notice shall become effective not less
than thirty (30) days after receipt, specifying the reason for the termination, the
extent to which funding of work under this AGREEMENT and the applicable
PROGRAM SUPPLEMENT is terminated and the date upon which such termination
becomes effective, if 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 for the reasons
stated in paragraph sixteen (16) of ARTICLE VI, STATE shall pay ADMINISTERING
AGENCY the sum due ADMINISTERING AGENCY under the 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 any
PROJECT completion to STATE shall first be deducted from any sum due
ADMINISTERING AGENCY.
19. In the case of inconsistency or conflicts with the terms of this AGREEMENT and
that of a project -specific PROGRAM SUPPLEMENT and/or Cooperative Agreement,
the terms stated in that PROGRAM SUPPLEMENT and/or Cooperative Agreement
shall prevail over those in this AGREEMENT.
20. Without the written consent of STATE, this AGREEMENT is not assignable by
ADMINISTERING AGENCY either in whole or in part.
21. No alteration or variation of the terms of this AGREEMENT shall be valid unless
made in writing and signed by the PARTIES, and no oral understanding or
agreement not incorporated herein shall be binding on any of the PARTIES.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT by their
duly authorized officer.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
By
Chief, Office of Project Implementation
Division of Local Assistance
Date
City of Palm Desert
By
City of Palm Desert
Representative Name & Title
(Authorized Governing Body Representative)
Date
Page 14 of 16
CONTRACT NO. C41990
EXHIBIT A - FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of this Agreement, ADMINISTERING AGENCY will not discriminate
against any employee for employment on account of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and
veteran status. ADMINISTERING AGENCY will take affirmative action to ensure that employees
are treated during employment without regard to their race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, genetic information,
marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or
military and veteran status. 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 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
provisions of the Fair Employment and Housing Act (Gov. Code, 1290-0 et seq.), and the
applicable regulations promulgated thereunder (Cal. Code Regs., Title 2, 11000, 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 Division 4 of Title 2 of the
California Code of Regulations are incorporated into this AGREEMENT by reference and made
a part hereof as if set forth in full. Each of the ADMINISTERING AGENCY'S contractors and all
subcontractors shall give written notice of their obligations under this clause to labor
organizations with which they have a collective bargaining or other agreements, as appropriate.
3. ADMINISTERING AGENCY shall include the nondiscrimination and compliance provisions of
this clause in all contracts and subcontracts to perform work under this AGREEMENT.
4. 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 purposes of investigation to ascertain compliance with the Fair
Employment section of this Agreement.
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 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
ADMINISTERING AGENCY has violated the Fair Employment Practices Act.
(b) For willful violation of this Fair Employment Provision, STATE shall have the right
Page 15 of 16
CONTRACT NO. C41990
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 borne and paid for by
ADMINISTERING AGENCY and by the surety under the performance 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.
Page 16 of 16