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HomeMy WebLinkAbout25C - AGMT BICYCLIST PED EDUCATIONREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2019 TITLE: MEMORANDUM OF UNDERSTANDING WITH THE SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS TO IMPLEMENT THE BICYCLIST/PEDESTRIAN EDUCATION CAMPAIGN AT A TOTAL PROJECT COST NOT TO EXCEED $53,466 (STRATEGIC PLAN NO. 1, 3B) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1� Reading ❑ Ordinance on Vd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a Memorandum of Understanding with the Southern California Association of Governments for Bicyclist and Pedestrian Education funds in an amount not to exceed $28,480 through December 31, 2019, and committing the City of Santa Ana to an In -Kind Match of $24,986 in project management services, to implement the City of Santa Ana Bicyclist/Pedestrian Education Campaign at a total project cost of $53,466, subject to non -substantive changes approved by the City Manager and City Attorney. In -kind Match of $24,986 will be funded by the General Fund. DISCUSSION The Santa Ana Public Works Agency, in partnership with Southern California Association of Governments (SCAG), has been awarded a grant for a Bicyclists and Pedestrian Safety Education Program from the State of California Department of Transportation Active Transportation Program. SCAG as the recipient agency is responsible for the procurement and payment of the consultant organization handling most of the direct education activities that includes adult bicycle safety classes, youth bike rodeos, safety assemblies for elementary and high school students, and a direct media campaign of safety messages on street lights, transit shelters, and local radio stations. The City of Santa Ana, as a sub -recipient on this project, is responsible for implementing the City of Santa Ana Bicyclist/Pedestrian Education Campaign at a total project cost of $53,466. Funding in the amount of $28,480 is identified for the Santa Ana Police Department to conduct saturation patrols with efforts focusing on primary collision factors such as distracted or impaired driving in areas with a high number of bicycle- and pedestrian -involved collisions. A Memorandum of Understanding (MOU) between SCAG and the City is required to implement the project. The MOU specifies a local match requirement of $24,986 that will be achieved through in - kind services provided by Public Works Agency Traffic Engineering staff through project management of the entire education program and traffic safety presentations to community organization and neighborhood associations. 25C-1 Memorandum of Understanding with Southern California Association of Governments June 18, 2019 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 - Community Safety, Objective #3 (promote fiscal accountability to ensure financial responsibility at all levels of the organization), Strategy B (promote ongoing efforts to obtain grant funding for activities that will assist in preventing, enforcing and reducing criminal activity and traffic collisions). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT In Fiscal Year 2019-20, the City of Santa Ana Police Department staff will conduct saturation patrols and the Public Works Traffic Engineering staff will provide in -kind Project Management services to meet the requirements of the MOU between SCAG and the City. The following table summarizes the funds budgeted to deliver this bicycle and pedestrian safety program: Accounting Unit - Accounting Unit - Account No. Fiscal Year Account No. Fund Description Amount Project No. Description FY 2019-20 Public Works Select Street Construction — July -June 40317600-65205 SCAG Grants Internal Departments Personnel $28,480 Charges FY 2019-20 01117620-various General Fund PWA-TrafficfTransportation $24,986 Jul -June Engineering — Salaries & Benefits Total $53,466 All funds are scheduled for expenditure in Fiscal Year 2019-20. APPROVED AS TO FUNDS AND ACCOUNTS: FuadIi eiss, PE, PIS K t ryn DowAs, CPA g� Execuirector Executive Director Publics Agency Finance and Management Services Agency FSS/TH/CW Exhibit: 1. Memorandum of Understanding with Southern California Association of Governments 25C-2 Exhibit 1 MOU No.: M-025-18 SCAG ProjectIOWP No.: 225-3564J2.11 COVER PAGE MEMORANDUM OF UNDERSTANDING No. M-025-18 SCAG Overall Work Program (OWP) No: 225-3564J2.11 Federal/State Awarding Agency: Federal Highway Administration (FHWA) CFDA Number and Name: 20.205 Federal Award Identification Number (FAIN) No: N/A Federal Award Date: N/A Total Amount of the Federal Award: N/A Federal Award Project Description: N/A Pass -Through Awarding Agency: State of California Department of Transportation Pass -Through Award No: ATPLNI-6049(018) Pass -Through Award Date: 01/26/2018 (E-76 Authorization Date) Pass -Through Award Amount: $1,784,000 in Federal Funds and $579,000 in Local Match Pass -Through Agency Contact: David Wang, Senior Transportation Engineer Sub -Recipient Name: City of Santa Ana Sub -Recipient's DUNS No: 083153247 Total Amount of Federal Funds Obligated to the Sub -Recipient: $28,480 Total Amount of Non -Federal Funds Obligated by the Sub -Recipient: $24,986 Total Amount of the Subaward Project: $53,466 Reimbursement Ratio: 53.27% Subaward Period of Performance Start Date: Effective Date of the MOU Subaward Period of Performance End Date: 12/31/2019 Type of Contract: Project Specific Method of Payment: Lump Sum Project R&D: N/A Indirect Cost Rate for the Federal Award: 10% de minimis rate Subaward Project Title: City of Santa Ana Bicyclist/Pedestrian Education Campaign Implementation Subaward Project Description: The City of Santa Ana Police Department shall conduct sixteen (16) Saturation Patrols and the City of Santa Ana Public Works Traffic Engineering staff will conduct ten (10) bicycle and pedestrian traffic safety presentations to community organizations. These services support the objective of a larger project to conduct a yearlong educational outreach campaign related to bicycle and pedestrian safety in the City of Santa Ana. February 26, 2019 Page I 25C-3 MOU No.: M-025-18 SCAG ProjecdOWP No.: 225-3564J2.11 MEMORANDUM OF UNDERSTANDING No. M-025-18 BETWEEN THE SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS AND THE CITY OF SANTA ANA FOR BICYCLIST/PEDESTRIAN EDUCATION CAMPAIGN IMPLEMENTATION (SCAG Project/OWP No. 225-356412.11) This Memorandum of Understanding ("MOU" or "Agreement") is by and between the Southern California Association of Governments ("SCAG") and the City of Santa Ana ("CITY"), for Bicyclist/Pedestrian Education Campaign Implementation, subsequently herein referred to as "Project." SCAG and CITY are individually referred to herein as "Party" and may be collectively referred to herein as "Parties." RECITALS WHEREAS, SCAG is a Joint Powers Agency and a federally designated Metropolitan Planning Organization (MPO) for Southern California. As an MPO, SCAG is primarily responsible for the development of a Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) for the counties of Imperial, Los Angeles, Orange, San Bernardino, Riverside, and Ventura; WHEREAS, SCAG has also initiated its Sustainability Planning Grant Program ("Sustainability Program") to assist Southern California jurisdictions in evaluating planning options and stimulating development consistent with SCAG's RTP/SCS and the region's overall planning goals. SCAG's Sustainability Program support visioning efforts, infill analyses, economic and policy analyses, and marketing and communication programs; WHEREAS, pursuant to its annual Overall Work Program (OWP), SCAG will be engaged in activities and projects that will require certain technical, professional, or support services from time to time related to its work regarding the RTP/SCS and the Sustainability Program; WHEREAS, CITY will conduct a citywide bicycle and pedestrian education campaign that will include advertisements, safety courses, police saturation patrols, safety/encouragement events, and other related activities to improve awareness in the city related to bicycle and pedestrian safety issues; WHEREAS, through its Sustainability Program, SCAG has awarded the CITY grant funds to pursue the Project which supports the goals and policies of SCAG's 2016 RTP/SCS; WHEREAS, the purpose of this MOU is to describe the responsibilities of the Parties, which includes SCAG to provide funding for the Project; WHEREAS, SCAG shall provide funding for the Project using federal grant funds awarded to SCAG as part of SCAG 2017 Active Transportation Safety and Encouragement Campaign, administered by the California Department of Transportation (Caltrans); Whereas, the Parties agree and acknowledge that performance of the Scope of Work shall be done by CITY and its applicable personnel, and that CITY shall not utilize third party contractors or subcontractors Febmary 26, 2019 Page 2 25C-4 MOU No.: M-025-18 SCAG ProjecUOWP No.: 225-3564J2.11 for purposes of this Project and that any modification regarding this matter shall require approval by SCAG; WHEREAS, SCAG shall contribute a maximum, not to exceed, amount of Twenty -Eight Thousand Four Hundred Eighty Dollars ($28,480.00) towards the total value of the Project, using Federal Transportation Funds for the Project; WHEREAS, CITY will perform the services required for the Project as identified in the Scope of Work and Budget, attached hereto and incorporated herein by this reference in Exhibit "A"; WHEREAS, CITY will perform in -kind services as part of a Local In -Kind Match commitment in the total amount of Twenty -Four Thousand Nine Hundred Eighty -Six Dollars ($24,986) for the Project as described in the In -Kind Scope of Work and Budget, attached hereto and subsequently referred to as Exhibit `B" and report the expenditures using In -Kind Match Report From ("Match Report"), attached hereto and subsequently referred to as Exhibit "C"; WHEREAS, CITY's designated project manager, in coordination with SCAG's designated project manager, will ensure the Scope of Work described in Exhibit A and B is performed by the CITY; WHEREAS, performance by the CITY will begin on the dates indicated herein and shall be completed by December 31, 2019; WHEREAS, this MOU shall supersede and replace any previous agreements or negotiations between SCAG and CITY related to the Project described herein; and WHEREAS, SCAG's Fiscal Year is from July 1 through June 30. NOW THEREFORE, IT IS MUTUALLY AGREED THAT: 1. MOU Contents This MOU is comprised of these terms and conditions and any attached Exhibits, and may be amended only by written agreement between SCAG and CITY. Such terms and conditions may be subject to change. The Recitals to this Agreement are also incorporated herein by this reference. 2. Scone of Work a. CITY shall perform the Scope of Work described in Exhibit A, in accordance with applicable regulations, ordinances, policies and procedures, Caltrans published manuals, including Caltrans Local Assistance Procedures (http://www.dot.ca.gov/hq/LocalPrograms/lam/lapm.htm) and Federal and State requirements, including but not limited to the requirements set forth in Sections 7, 13, 14, 15 and 16 of this MOU. b. SCAG shall only be obligated to reimburse the CITY for work performed as part of Exhibit A regarding the Project, up to the maximum amount of Twenty -Eight Thousand Four Hundred Eighty Dollars ($28,480.00). SCAG intends to use Federal Transportation Funds to meet its funding obligations described herein. February 26, 2019 Page 3 25C-5 MOU No.: M-025-18 SCAG ProjecUOWP No.: 225-3564J2.11 c. CITY shall provide the Local In -Kind Match services as described in Exhibit B for the Project, in the total amount of Twenty -Four Thousand Nine Hundred Eighty -Six Dollars ($24,986.00). The combined total of Fifty -Three Thousand Four Hundred Sixty -Six Dollars ($53,466.00) will be referred to herein as "Total Project Cost" during the term of this MOU. d. SCAG will provide reimbursement based on the match ratio of the Total Federal Transportation Funds ($28,480.00) and Total Project Cost ($53,466.00); 53.27% of approved invoiced costs. e. Subject to the execution of this MOU, CITY shall be responsible for performing the Scope of Work described in Exhibit A and Exhibit B, with written Quarterly Reports and In -Kind Commitment Report provided to SCAG's Project Manager. SCAG'S Project Manager shall review, approve and pay the reimbursement request submitted by CITY. f. SCAG's Project Manager shall be notified and invited to: the kick-off meeting, all steering or technical advisory committee meetings, all public engagement outreach events, and all City Council or Commission meetings where the Project in whole or in part is being presented or discussed. 3. Term The Term of this Agreement shall begin on the Effective Date of the Agreement and continue until December 31, 2019, hereinafter referred to as the "Completion Date," unless terminated earlier as provided herein. Time is of the essence in the performance of services under this MOU. 4. Program Management a. All work under this MOU shall be coordinated with SCAG and CITY through the Project Managers. b. For purposes of this MOU, SCAG designates the following individual as its Project Manager: Rye Baerg Program Manager (213)236-1866 baerg@scag.ca.gov SCAG reserves the right to change this designation upon written notice to CITY. c. For purposes of this MOU, CITY designates the following individual as its Project Manager: Cory Wilkerson Active Transportation Coordinator (714)647-5643 cwilkerson@santa-ana.org CITY reserves the right to change this designation upon written notice to SCAG. 5. Funding Febmary 26, 2019 Page 4 25C-6 MOU No.: M-025-18 SCAG ProjecdOWP No.: 225-3564J2.11 a. SCAG's contribution to the Project is funded wholly with Federal Transportation Funds, up to Twenty -Eight Thousand Four Hundred Eighty Dollars ($28,480.00). SCAG shall not be obligated to reimburse the CITY for any Project costs that exceed Twenty -Eight Thousand Four Hundred Eighty Dollars ($28,480.00). SCAG shall not be obligated to pay for any increase in Project costs which exceeds SCAG's obligated funding amount. b. CITY's in -kind service contribution to the Project is funded wholly with Local Transportation Funds (non-federal), in the amount of Twenty -Four Thousand Nine Hundred Eighty -Six Dollars ($24,986.00). 6. Invoices, Progress Reports and Match Reports a. SCAG's contribution to the Project shall be made on a reimbursement basis to the CITY, after CITY has performed the services made pursuant to the Scope of Work, Exhibit A and B. All invoices submitted to SCAG for payment shall be e-mailed to accountspayable@scag.ca.gov (file cannot exceed 1 OMB). b. Not less frequently than once in every month, CITY shall submit an invoice to SCAG using the Invoice Report, attached hereto and incorporated herein by this reference and subsequently herein referred to as "Exhibit D." SCAG shall reimburse the CITY for the services rendered at the reimbursement ratio of 53.27%. The Invoice Report shall include a narrative description of the progress toward completion of tasks related to the Project, percentage of completion per task, copies of receipts with a proof of the payment by CITY, payroll reports, copies of all deliverables, and In -Kind Commitment Report, Exhibit C. Upon satisfactory receipt and approval of the Invoice Report by SCAG's Project Manager, or the resolution of any dispute or concern with the Invoice Report by the Parties, SCAG will provide reimbursement to the CITY. c. All CITY's costs charged pursuant to this MOU shall be supported by properly executed payrolls showing labor (wage) rates per hour, copies of time records, including complete timesheets or time cards signed by the employee and approved by the supervisor; invoices and vouchers, evidencing in proper detail the nature of the charges, and other documentation requested by SCAG. d. All direct costs billed must be specifically identified and supported with original receipts, invoices, or statements. Any travel and subsistence costs must be reasonable and are limited to those rates paid to non-represented/excluded State employees under California's State Department of Personnel Administration rules, subject to changes posted at: http://www.dot.ca.gov/ha/asc/travel/ch 12/1 consultant.htm. e. If applicable, for credit or reimbursement of indirect costs for work provided pursuant to Exhibits A, CITY shall comply with applicable Federal and State requirements including but not limited to Caltrans regulations and policies. If CITY has a negotiated indirect cost rate approved by a cognizant agency, CITY must submit a copy of the approved indirect cost allocation plan to SCAG. Credit of indirect costs is contingent upon receipt by SCAG of a copy of a current indirect cost plan approved by Calftans or a cognizant agency. However, the last approved indirect cost allocation plan shall remain in place until each new annual plan is approved, so long as Caltrans Febmary 26, 2019 Page 5 25C-7 MOU No.: M-025-18 SCAG ProjectlOWP No.: 225-3564J2.11 permits such practice. If CITY has not received a negotiated indirect cost rate previously, CITY may elect to charge a de minimis rate of 10% of modified total direct costs (MTDC). By the tenth day following the start of a new quarter (i.e., January 10, April 10, July 10, October 10), CITY shall submit a Quarterly Report in a format reasonably acceptable to SCAG' Project Manager. The Quarterly Report shall include, in narrative form, a description of services performed by CITY as well as progress toward completion of tasks related to the Project for the prior quarter and a reporting of all costs incurred regarding the Project, and include copies of receipts and paid invoices attached for SCAG's records. g. CITY shall submit an In -Kind Match Report with its invoice to SCAG, consistent with Exhibit C, with the following information included, but not limited to: Name of Project, Description of Services Provided, Period of the Service Performed, Staff Cost Incurred, Actual Hourly Pay Rates, Total Hours Worked, Fringe Benefit Rate, and Fringe Costs. Upon request of SCAG, the CITY shall provide additional information or documentation to support the costs contained in the In -Kind Match Report within thirty (30) calendar days. The matching funds will not participate in the Project work performed in advance of the effective date of this MOU. h. On all documents submitted to SCAG for the Project, including Invoices, Quarterly Reports and In -Kind Match Report, the Project Number (OWP No. 225-3564J2.11) shall be referenced from the Effective Date through December 31, 2019. The Parties acknowledge that SCAG's fiscal year is from July 1 to June 30. CITY agrees to submit any pending invoices to SCAG on or before July 21 during the contract's term (e.g., 7/31/18 & 7/31/19). 7. Cost Principles a. CITY agrees to comply with the following: 1) The Contract Cost Principles and Procedures, 48 Code of Federal Regulations (CFR), Federal Acquisition Regulations System, Chapter 1, Subchapter E, Part 31, et seq. (Office of Management and Budget Circular A-87 Revised, "Cost Principles for State, Local, and Indian Tribal Governments) and 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, Caltrans Local Assistance Procedures, Public Contract Code (PCC) 10300-10334 (procurement of goods), PCC 1033 5-103 81 (non-A&E services), and other applicable State and Federal regulations, shall be used to determine the acceptability of individual project cost items. 2) The CITY agrees, and will require that its contractors be obligated to agree, that (a) the 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; and (b) all parties shall comply with Federal administrative procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments and 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. The CITY and every contractor receiving Project funds under this Agreement shall comply with Federal administrative procedures in accordance with 49 February 26, 2019 Page 6 25C-8 MOU No.: M-025-18 SCAG Project/OWP No.: 225-3564J2.11 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. b. Any costs for which the CITY receives reimbursement or credit that is determined by a subsequent audit or other review by either SCAG, Caltrans or other State or Federal authorities to be unallowable under, but not limited to, Title 2, CFR, part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, and 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, are to be repaid by the CITY within thirty (30) calendar days of the CITY receiving notice of audit findings and a written demand for reimbursement from SCAG. Should the CITY fail to reimburse unallowable costs due SCAG within thirty (30) calendar days of demand, or within such other period as may be agreed between both parties hereto, SCAG is authorized to withhold future payments due to the CITY. 8. Electronic Version of Work Products a. For purposes of this Agreement, "Work Products" shall mean any deliverables, including reports, data files, newsletters or any other written or electronic materials provided pursuant to the Scope of Work described in Exhibit A. b. CITY shall submit one (1) electronic copy of all completed deliverables associated with the Project to the assigned SCAG Project Manager. c. SCAG shall own all Work Products and shall grant to CITY a royalty -free, non-exclusive and irrevocable license to reproduce, publish or otherwise use Work Products related to the Project and developed as part of this MOU; provided, however, that any reproduction, publishing, or reuse of the Work Products without written verification by SCAG will be at CITY's sole risk and without liability or legal exposure to SCAG. Such written verification by SCAG shall not be unreasonably denied and shall be provided by SCAG within ten calendar days of CITY's request therefor. d. Subject to the California Public Records Act, all deliverables and related materials related to the Project shall be held confidential by CITY unless otherwise authorized for disclosure by the SCAG Project Manager. Nothing furnished to CITY or SCAG which is otherwise known or is generally known, or has become known, to the related industry shall be deemed confidential. CITY shall also safeguard such confidential materials from unauthorized disclosure, using the same standard of care to avoid disclosure, as CITY treats its confidential information, but in no case less than reasonable care. 9. MOU Changes a. No alteration or deviation of the terms of this MOU shall be valid unless made in writing and properly executed by both parties. b. Either Party may request, at anytime, amendments to this MOU and will notify the other party regarding such changes. Within ten (10) calendar days from the date of the written notice, the requesting Party shall notify the other Party of the impact of such changes on the Scope of Work, schedule, and budget. Upon agreement between the Parties as to the required changes, February26, 2019 Page 7 25C-9 MOU No.: M-025-18 SCAG Project/OW No.: 225-3564J2.11 an amendment to this MOU shall be prepared regarding the same. If the Parties are unable to reach an agreement regarding the changes requested by SCAG, the Parties may terminate this MOU in accordance with the provisions set forth in Section 20 (a) of this MOU. 10. Notices Any notice or notices required or permitted to be given pursuant to this MOU may be personally served on the other party by the party giving such notice, or may be served by certified mail, return receipt requested, to the following addresses: To SCAG: Basil Panas Chief Financial Officer Southern California Association of Governments 900 Wilshire Blvd., Suite 1700 Los Angeles, CA 90017 Phone: (213) 236-1817 pans@scag.ca.gov To CITY: Kristine Ridge City Manager City of Santa Ana 20 Civic Center Plaza (M-31) P.O. Box 1988 Santa Ana, CA 92702 11.Insurance CITY shall, at its own expense, procure and maintain policies of insurance of the types and amounts below, for the duration of the MOU. The policies shall state they afford primary coverage. The minimum required insurance coverage required by SCAG is set for below. a. Minimum Scope of Insurance —Coverage shall beat least as broad as: (1) Insurance Services Office Commercial General Liability coverage (Occurrence form CG0001), or its equivalent. (2) Insurance Services Office form number CA0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto) or its equivalent. (3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (4) Professional Liability (Errors and Omissions) insurance appropriate to the profession February 26, 2019 Page 8 25C-10 MOU No.: M-025-18 SCAG ProjecUOWP No.: 225-3564J2.11 b. Minimum Limits of Insurance —CITY and SCAG shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. (2) Automobile Liability: Including contractual liability insuring owned, non -owned, hired and all vehicles by CITY with a combined single limit of not less than $1,000,000 applicable to bodily injury, or death, and loss of or damage to property in any one occurrence. (3) Workers' Compensation Liability: Including Occupational Diseases in accordance with California Law and Employers' Liability Insurance with a limit of not less than $1,000,000 each accident. (4) Professional Liability Insurance: With limits of not less than $1,000,000 per occurrence. In addition, it shall be required that the professional liability insurance policy remain in effect for six (6) months after the Completion Date of this MOU. c. Other Insurance Provisions — Both CITY and SCAG should comply with the other insurance provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: (1) SCAG, its officials and employees are to be covered as additional insureds, as respects to liability arising out of the activities performed by or on behalf of CITY, products and completed operations of CITY; premises owned, occupied or used by CITY; or automobiles owned leased, hired or borrowed by CITY. The coverage shall contain no special limitations on the scope of protection afforded to SCAG, its officials and employees. (2) For any claims related to this Project, CITY's insurance coverage shall be primary insurance as respects SCAG, its officials and employees. Any insurance or self-insurance maintained by SCAG shall be excess of CITY's insurance and shall not contribute with it. (3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SCAG, its officials and employees. (4) CITY's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (5) Workers' Compensation and Employer's Liability policies shall contain the inclusion of SCAG, its members, subsidiaries, officials and employees and shall provide a waiver of subrogation. d. Deductibles and Self -Insured Retentions —Any deductibles or self -insured retentions in amounts over $10,000 must be declared to and approved by SCAG. e. Acceptability of Insurers — Insurance is to be placed with California admitted insurers with a current A.M. Best's rating of no less than A and be admitted, unless otherwise approved by February 26, 2019 Page 9 25C-11 MOU No.: M-025-1 S SCAG Project/OWP No.: 225-3564J2.11 SCAG. Verification of Coverage — CITY shall fiunish SCAG with original endorsements and certificates of insurance evidencing coverage required by this clause. All documents are to be signed by a person authorized by that insurer to bind coverage on its behalf. All documents are to be received and approved by SCAG before work commences. Upon request of SCAG at any time, CITY shall provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications. 12. Indemnification a. Except for the negligence or willful misconduct of SCAG and any of its directors, officers, agents, employees, assigns, and successors in interest, CITY undertakes and agrees to defend, indemnify, and hold harmless SCAG and any of its directors, officers, agents, employees, assigns, and successors in interest from and against all suits and causes of action, claims, losses, demands and expenses, including, but not limited to, attorneys fees and cost of litigation, damage or liability of any nature whatsoever, for death or injury to any person, employees and agents, or damage or destruction of any property of either party hereto or of third parties, arising in any manner by reason of the negligent acts, errors or omissions or violations of law by CITY, employees and agents in connection with its activities in pursuing the Project or under this MOU. b. Except for the negligence or willful misconduct of CITY and any of its directors, officers, agents, employees, assigns, and successors in interest, SCAG undertakes and agrees to defend, indemnify, and hold harmless CITY and any of its directors, officers, agents, employees, assigns, and successors in interest from and against all suits and causes of action, claims, losses, demands and expenses, including, but not limited to, attorney's fees and cost of litigation, damage or liability of any nature whatsoever, for death or injury to any person, including SCAG's employees and agents, or damage or destruction of any property of either party hereto or of third parties, arising in any manner by reason of the negligent acts, errors or omissions or violations of law by SCAG or its employees and agents in connection with its activities in pursuing the Project or under this MOU. 13. Records Retention and Audits a. CITY shall maintain all source documents, books and records connected with the Project and all work performed under this MOU for a minimum of four (4) years from the Completion Date or the date an audit resolution is achieved for each annual SCAG Overall Work Program (OWP), whichever is later, and shall make all supporting information available upon request for inspection and audit by representatives of SCAG, the California State Auditor, or other authorized government agency. Copies shall be made and furnished by SCAG upon request at no cost to SCAG. b. SCAG shall maintain all source documents, books and records connected with the Project under this MOU for a minimum of four (4) years from the Completion Date or the date an audit resolution is achieved for each annual SCAG OWP, and shall make all supporting information available upon request for inspection and audit by representatives of CITY, the California State February 26, 2019 Page 10 25C-12 MOU No.: M-025-18 SCAG ProjecUOWP No.: 225-3564J2.11 Auditor, or other authorized government agency. Copies shall be made and furnished by CITY upon request at no cost to the CITY. c. CITY shall establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) to support Invoices which segregate and accumulate the costs of work elements by line item and produce Progress Reports which clearly identify reimbursable costs and other expenditures by OWP work elements. d. If applicable, CITY agrees to include all costs associated with this MOU and any amendments thereto to be examined in the annual audit and in the schedule of activities to be examined under a single audit prepared by CITY in compliance with Subpart F of the Office of Management and Budget's Uniform Grant Guidance, formerly referred to as Circular A-133. The CITY is responsible for assuring that the Single Auditor has reviewed the requirements of this MOU. Copies of said audits shall be submitted to SCAG. e. Neither the pendency of a dispute nor its consideration by a Party or the State shall excuse the other Party from full and timely performance in accordance with the terms of this MOU. 14. Federal Certifications and Assurances a. CITY shall adhere to the requirements contained in SCAG's annual Certification and Assurances (FHWA and FTA "Metropolitan Transportation Planning Process Certification") submitted as part of SCAG's OWP, pursuant to 23 CFR 450.334 and the 23 U.S.C. 1234. This Certification shall be published annually in SCAG's OWP. Such requirements shall apply to CITY to the same extent as SCAG and may include, but are not limited to: 1) Title VI of the Civil Rights Act of 1964 and Title VI Assurance executed by California under 23 U.S.C. 324 and 29 U.S.C. 794; 2) Pub. Law 105-178, 112 Stat. 107 and any successor thereto, regarding the involvement of disadvantaged business enterprises in FHWA and FTA funded projects (Sec. 105(f), Pub. L. 970424, 96 Stat. 2100, 49 CFR part 26); and 3) The Americans with Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, as amended) and the United States Department of Transportation (US DOT) implementing regulations (49 CFR 27, 37, and 38). b. CITY shall additionally comply with the requirements contained in the annual FTA "Certifications and Assurances for FTA Assistance," including "Certifications and Assurances Required of Each Applicant" and the "Lobbying Certification" in compliance with 49 U.S.C. Chapter 53; published annually in SCAG's OWP. Such assurances shall apply to CITY to the same extent as SCAG, and include but are not limited, the following areas: 1) Standard Assurances 2) Debarment, Suspension, and Other Responsibility Matters for Primary Covered Transactions 3) Drug Free Work Place Agreement 4) Intergovernmental Review Assurance February 26, 2019 Page I l 25C-13 MOU No.: M-025-18 SCAG ProjecUOWP No.: 225-3564J2.11 5) Nondiscrimination Assurance 6) DBE Assurance 7) Nondiscrimination on the Basis of Disability 8) Certification and Assurances Required by the U.S. Office of Management and Budget c. Federal Lobbying Activities Certification. 1) By signing this MOU, CITY certifies, to the best of its knowledge and belief, that no State or Federal funds have been paid or will be paid, by or on behalf of CITY, respectively, to any person for influencing or attempting to influence an officer or employee of any State or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding of any State or Federal contract, the making of any State or Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any State or Federal contract, grant, loan, or cooperative agreement. 2) If any funds other than State or Federal 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 Federal grant, CITY, as applicable, shall complete and submit Federal Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with those form instructions." 3) This certification is a material representation of fact, upon which reliance was placed when this MOU was entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S.C. and by the Master Fund Transfer Agreement between SCAG and the State. 15. Equal Employment OAportunitv/Nondiserimination a. In the performance of work undertaken pursuant to this MOU, the Parties and their assignees and successors in interest, shall affirmatively require that their employees and contractors shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), medical condition (cancer), age, marital status, denial of family and medical care leave, and denial of pregnancy disability leave. b. The Parties shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. The Parties shall comply with the provisions of the Fair Employment and Housing Act (Goverment Code, Section 12900 et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing the Government Code sections referenced above, are incorporated into this MOU by reference and made a part hereof as if set forth in full. February 26, 2019 Page 12 25C-14 MOU No.: M-025-18 SCAG ProjectlOWP No.: 225-3564J2.11 c. Noncompliance: In the event of noncompliance by either Party with the nondiscrimination provisions of this MOU, the other Party may cancel, terminate or suspend the MOU, in whole or in part. d. If required by DOT, additional or alternate sanctions for noncompliance may be imposed. e. 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. CITY agrees to comply with the requirements of the Fair Employment Practices Addendum (Exhibit E attached hereto) and the Nondiscrimination Assurances (Exhibit F attached hereto). 16. Conflict of Interest The Parties shall comply with Federal and State conflict of interest laws, regulations and policies. 17. Independent Contractor CITY, officers, employees and agents shall be independent contractors in the performance of this MOU, and not officers, employees, contractors or agents of SCAG. 18. Disputes Except as otherwise provided in this MOU, if a dispute arises between the Parties to this MOU, the Parties hereto agree to use the following procedure to resolve such dispute, prior to pursuing other legal remedies: a) A meeting shall be held promptly between the Parties that will be attended by the CITY's Project Manager and SCAG's Project Manager as well as individuals with decision -making authority (to the extent reasonably possible), who will attempt in good faith to negotiate a resolution of the dispute. b) If the Parties are unsuccessful in resolving the dispute under (a) above, they may: (1) agree to submit the matter to mediation, binding judicial reference, or a private adjudicator (if all Parties so agree); or (2) initiate litigation following advance written notice to the other Party of not less than thirty (30) days. c) If any party should bring a legal action against the other to enforce the terms of this MOU, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs, as determined by a court of competent jurisdiction in said proceeding. 19. Noncompliance Febmary26, 2019 Page 13 25C-15 MOU No.: M-025-18 SCAG Project/OWP No.: 225-3564J2.11 In addition to such other remedies as provided by law, in the event of noncompliance with any grant condition or specific requirement of this MOU, this MOU may be terminated. 20. Termination of MOU a. Termination for Convenience. Either Party may terminate this MOU at any time by giving written notice to the other party of such termination at least thirty (30) calendar days before the effective date of such termination. In such event, all finished or unfinished documents and other materials as described in the MOU shall be provided to SCAG and CITY shall be paid for all services performed provided the required consultation between CITY and SCAG has been undertaken in accordance with Section 2(e) of this MOU. Further, the Party terminating this MOU before the effective date of termination shall be responsible for any actual, incurred termination costs incurred as a result of such termination notice. b. Termination for Cause. If through any cause, CITY shall fail to timely and adequately fulfill its obligations under this MOU, or if CITY violates any of the covenants, agreements, or stipulations of this MOU, SCAG shall thereupon have the right to terminate the MOU by giving not less than ten (10) calendar days written notice to CITY of the intent to terminate and specifying the effective date thereof. SCAG shall provide a reasonable opportunity for CITY to cure prior to termination. In no event shall such opportunity to cure extend beyond the term of the MOU. In the event that SCAG invokes this termination clause, all finished or unfinished documents and other materials as described in the MOU shall be returned to SCAG at its option. c. If through any cause, SCAG shall fail to timely and adequately fulfill its obligations under this MOU, or if SCAG violates any of the covenants, agreements, or stipulations of this MOU, CITY shall thereupon have the right to terminate the MOU by giving not less than ten (10) calendar days written notice to SCAG of the intent to terminate and specifying the effective date thereof. CITY shall provide a reasonable opportunity for SCAG to cure prior to termination. In no event shall such opportunity to cure extend beyond the term of the MOU. In the event that CITY invokes this termination clause, all finished or unfinished documents and other materials as described in the MOU shall be returned to CITY at its option. 21. Non -Assignment a. Neither Party shall assign this MOU, or any part thereof, without the written consent of each Party to this MOU. Any assignment without such written consent shall be void and unenforceable. b. The covenants and agreement of this MOU shall inure to the benefit of, and shall be binding upon each of the Parties and their respective successors and assignees. 22. Release of Information CITY shall not release any information to a third party or otherwise publish or utilize any information obtained or produced by it as a result of or in connection with the performance of services under this Agreement without the prior written authorization of SCAG, except as required by law and with prior written notice to SCAG. Febmary26, 2019 Page 14 25C-16 MOU No.: M-025-18 SCAG ProjecdOWP No.: 225-3564J2.11 23. Severability If any provision of this MOU is held to be illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable, and the legality, validity, and enforceability of the remaining provisions shall not be affected thereby. 24. Survival The following sections survive expiration or termination of this MOU: Section 8 (Electronic Version of Work Products) Section 12 (Indemnification) Section 18 (Disputes) Section 22 (Release of Information) 25. Jurisdiction and Venue This MOU shall be deemed an agreement under the laws of the State of California and for all purposes shall be interpreted in accordance with such laws. Both Parties hereby agree and consent to the exclusive jurisdiction of the courts of the State of California and that the venue of any action brought thereunder shall be Los Angeles County, California. 26. Waiver No delay or failure by either Party to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver thereof of such Party's right thereafter to exercise or enforce each and every right and provision of this Agreement. A Waiver to be valid shall be in writing but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver. 27. Standard of Care The Parties shall perform the work required for the production of the Project under this MOU in accordance with generally accepted industry standards, practices, and principles applicable to such work. 28. Force Maieure Neither CITY nor SCAG shall be liable or deemed to be in default for any delay or failure in performance under this MOU or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, or any other similar cause beyond the reasonable control of CITY or SCAG. 29. Execution of MOU or Amendment February 26, 2019 Page 15 25C-17 MOU No.: M-025-18 SCAG Project/OWP No.: 225-3564J2.11 This MOU, or any amendment related thereto (Amendment), may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. The signature page of this MOU or any Amendment may be executed by way of a manual or authorized signature. Delivery of an executed counterpart of a signature page to this MOU or an Amendment by electronic transmission scanned pages shall be deemed effective as a delivery of a manually or digitally executed counterpart to this MOU or any Amendment. 30. Effective Date This MOU shall be effective as of the last date in which the document is executed by both Parties. 31. Entire MOU This MOU, including the attached Exhibits A, B, C, D, E and F represents and contains the entire agreement of the Parties with respect to the matters set forth herein. This MOU supersedes any and all prior negotiations, discussions and, if any, previous agreements between the Parties. February 26, 2019 Page 16 25C-18 MOU No.: M-025-18 SCAG ProjectlOWP No.: 225-3564J2.11 SIGNATURE PAGE TO MEMORANDUM OF UNDERSTANDING NO. M-025-18 IN WITNESS WHEREOF, the Parties have caused this MOU to be executed by their duly authorized representatives as of the dates indicated below: SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS ("SCAG") m Basil Panas Chief Financial Officer APPROVED AS TO FORM: Joann Africa Chief Counsel/Director of Legal Services CITY OF SANTA ANA ("CITY") ATTEST: Date Date CITY OF SANTA ANA NORMA MITRE KRISTINE RIDGE Acting Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: IV, -f.'L hn M. Funk Assistant City Attorney Fuad S. Sweiss, PE, PLS Executive Director Public Works Agency Febm ry 26, 2019 Page 17 25C-19 MOU No.: M-025-18 SCAG Project/OWP No.: 225-3564J2.11 Exhibit A SCOPE OF WORK AND BUDGET Task 1: Conduct Saturation Patrols The City of Santa Ana Police Department shall conduct sixteen (16) Saturation Patrols; strategies may include impaired driving enforcement, enforcement operations focusing on primary collision factors, distracted driving, night-time seat belt enforcement, and special enforcement operations encouraging motorcycle safety, enforcement and public awareness in areas with a high number of bicycle and pedestrian collisions, and educational programs. These strategies are designed to earn media attention thus enhancing the overall deterrent effect. Task 1 Deliverables: 1.1 Documentation of Saturation Patrols (photos, list of dates/times/locations, number of contacts, digital copies of materials provided) Task Activity Grant IndCind Total Deliverables Budget Bud et Cost Task 1: Conduct Saturation Not to exceed $0.00 Not to Documentation of Saturation Patrols Patrols $28,480.00 exceed (photos, list of dates/times/locations, $28,480.00 number of contacts, digital copies of materialsprovided) Total Grant $28,480.00 $0.00 $28,480.00 February 26, 2019 Page 18 25C-20 MOUNo.: M-025-18 SCAG Project/OWP No.: 225-3564J2.1 l Exhibit B IN -HIND SCOPE OF WORK AND BUDGET Task 2: Present Pedestrian and Bicycle Safety Education to Community Organizations The City of Santa Ana Public Works Traffic Engineering staff shall conduct ten (10) bicycle and pedestrian traffic safety presentations to community organizations; including neighborhood associations and local non-profit coalitions. The presentations will include information on the City's recently adopted Vision Zero Plan - Safe Mobility Santa Ana; as well as general pedestrian and bicycle best practices and behaviors. Task 2 Deliverables: 2.1 Documentation of Bicycle and Pedestrian Safety Presentations (photos, list of dates/times/locations, number of participants, digital copies of materials provided) Task 3: Project Management Monthly project manager status meetings will occur via telephone (using City of Santa Ana conference call phone number that will be provided) to ensure regular and consistent communication on upcoming tasks, identifying potential risks and challenges to success. Participation in the monthly meetings shall include SCAG Project Manager, City of Santa Ana Project Manager and the Consultant Project Manager. The status meetings will occur to ensure the project remains on time and within budget, and expectations are defined. The Consultant will develop the agenda and prepare a summary of monthly meeting notes. City Staff will participate in managing the project and will be responsible for updating the City's website to ensure scheduled events are advertised. Task 3 Deliverables: 3.1 Documentation of Project Manager Meetings (agendas, minutes, documents reviewed) 3.2 Updated Website Task Activity Grant In -Kind Total Deliverables Budget Budget Cost Task 2: Present Pedestrian and Documentation of Bicycle Bicycle Safety Education and Pedestrian Safety to Community Presentations (photos, list of Organizations dates/times/locations, number of participants, digital copies $0.00 $24,986.00 $24,986.00 of materialsprovided) Task 3: Project Management Documentation of Project Manager Meetings (agendas, minutes, documents reviewed) Updated Web site Total Local In -Kind Match $0.00 $24,986.00 $24,986.00 February 26, 2019 Page 19 25C-21 MOUNo.: M-025-18 SCAG Project/OWP No.: 225-356472.11 Exhibit C In -Kind Report Format Use Agency Letterhead _ IN -KIND MATCH REPORT Email In -Kind Report to: accountsoavableCdscaz.ca.zov Basil Pangs Chief Financial Officer _ at _. __I _� *s Date: ��1 SCAG OWP#:I jn Kurr,Match Rep2rt#:1 �� _-��,..i. _ `j _ _ Reporting Period: Southern California Association of Governments 900 Wilshire Blvd, 17th Floor Los Angeles, CA 90017 Projcot Title: _ Cost Categories Hourly Rate Hours Amount Fringe Rate Fringe MCRate* HIC Amount Direct Labor C/assification(s): $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Subtotal- Direct Labor $0.00 $0.00 $0.00 $0.00 Other Direct Costs / ODCs) $0.00 $0.00 $0.00 $0.00 $0.00 Subtotal - ODCs: $0.00 $0.00 $0.00 TOTAL for IN -KIND MATCH SO.001 1 $0.00 I, , certify that this in -kind match report and the information attached is true and correct. I also certify that all eligible and required documentation is on fie for this report and that I am the person duty authorized to sign this certification on behalf of my agency. I further certify that our agency is not using any federal funds to match expenditure funds. -�_ - T Signature -. Tiale Print Name Date �_-- 'IfappGcable, for credit of vmduM costs for work provided as m-kmd conmbiIDoq a subrecipem must submit an approved Indhees Cass Allocation Plan (ICAP) or Indirect Cost Rate Proposal (IC") to SCAG on an amtwl basis for SCAGs review. Its subrecipient has not received a negotiated indirect cost rate prevuarly, then the sub-recgsm may elect to charge a do mmmds rate of 10% of modified total deect carts (MTDC). February26, 2019 Page 20 25C-22 MOU No.: M-025-18 SCAG Projecb'OWP No.: 225-3564J2.11 Exhibit D Invoice Report Format Use AgencyLettethead INVOICE Email invoice to: Date: accountsoavable@scag.ca.gov _ _ _ ( = , � :i�r7 _nr-_ PY _ _ Invoice#d Basil Panes ChiefFinancial I t Invoice Period: CaliforniaOfficer-- Southern CafAssociation of Governments _ MOU #d 900 Wdshae Blvd., Suite 1700 OWP #d Los Angeles, CA 90017 Pro ect Title: It I Case Categories Budge! Garen( Lrvmce Current Progress Completion Curren( lnvnice Total Previously In -iced Y7D Expenditure YTD Progress Completion Balance Tack 1 Task 1.1 -Project Kickoff mectin $0.00 0% $0.00 $0.00 $0.00 0% Task 1.2 - Project Coordination $0.00 0% 0% Task 2 Task2.1- $0.00 0% $0.00 $0.00 $0.00 Task 3 Task 3.1 - $0.00 0% $0.00 $0.00FSO 00 Task 4 Task 4.1 - $0.001 $0.00 $0.00 $0.00 Task 5 Task 5.1 - $0.00 0 $0.00 $0.00 $0.00 Task 6 Task 6.1- $0.00 0% $0.00 $0.00 $0.00 Task 7 Task 7.1 - $0.00 0% $0.00 $0.00 $0.00 Task 8 Task 8.1 - $0.00 0% $0.00 $0.00 $0.00 TOTAL 1 $70,000.00 1 $0.001 1 $0.00 $0.00 $0.00 $70,000.00 Please send check to: CCYt©FTBD 1„ - AddtessT< CitylSste➢21P,1,��. _ 71E � February 26, 2019 Page 21 25C-23 MOU No.: M-025-18 SCAG ProjectIMP No.: 225-3564J2.11 Exhibit E Fair Employment Practices Addendum In the performance of this Agreement, the City of Santa Ana ("CITY") will not discriminate against any employee for employment because of race, color, sex, sexual orientation, religion, ancestry or national origin, physical disability, medical condition, marital status, political affiliation, family and medical care leave, pregnancy leave, or disability leave. CITY 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 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. CITY shall post in conspicuous places, available to employees for employment, notices to be provided by SCAG setting forth the provisions of this Fair Employment section if requested by CITY. 2. CITY, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 1290-0 et seq.), and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900(a-0, set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this MOU by reference and made a part hereof as if set forth in full. Each of the CITY'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. CITY shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under this MOU. 4. CITY will permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by SCAG, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by SCAG, for the purposes of investigation to ascertain compliance with the Fair Employment section of this MOU. 5. Remedies for Willful Violation: a) SCAG 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 CITY was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that CITY 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. b) For willful violation of this Fair Employment Provision, SCAG shall have the right to terminate this MOU either in whole or in part, and any loss or damage sustained by SCAG in securing the goods or services thereunder shall be borne and paid for by CITY and by the surety under the performance bond, if any, and SCAG may deduct from any moneys due or thereafter may become due to CITY, the difference between the price named in the MOU and the actual cost thereof to SCAG to cure CITY's breach of this MOU. February 26, 2019 Page 22 25C-24 MOU No.: M-025-18 SCAG ProjecUOWP No.: 225-3564J2.11 Exhibit F Nondiscrimination Assurances For purposes of this Agreement, the City of Santa Ana ("CITY") HEREBY AGREES THAT, as a condition to receiving any federal financial assistance from SCAG, it will comply with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-42 U.S.C. 2000d-4 (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 Secretary, Part 21, "Nondiscrimination in Federally -Assisted Programs of the Department of 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 end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person in the United States shall, on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which CITY receives federal financial assistance from the Federal Department of Transportation. CITY HEREBY GIVES ASSURANCE THAT CITY will promptly take any measures necessary to effectuate this MOU. This assurance is required by subsection 21.7(a) (1) of the REGULATIONS. More specifically, and without limiting the above general assurance, CITY hereby gives the following specific assurances with respect to its federal -aid Program: 1. That CITY agrees that each "program" and each "facility" as defined in subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a "program") conducted, or will be (with regard to "facility") operated in compliance with all requirements imposed by, or pursuant to, the REGULATIONS. 2. That CITY shall insert the following notification in all solicitations for bids for work or material subject to the REGULATIONS made in connection with the federal -aid Program and, in adapted from, in all proposals for negotiated agreements: CITY hereby notifies all bidders that it will affirmatively ensure that in any agreement entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex, national original, religion, age, or disability in consideration for an award. That CITY shall insert the clauses of Appendix A of this Exhibit F in every agreement subject to the ACT and the REGULATIONS. 4. That the clauses of Appendix B of this Exhibit F shall be included as a covenant running with the land, in any deed effecting a transfer of real property, structures, or improvements thereon, or interest therein. That where CITY 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. 6. That where CITY receives federal financial assistance in the form, or for the acquisition, of real property or an interest in real property, the Assurance shall extend to rights to space on, over, or under such property. February 26, 2019 Page 23 25C-25 MOU No.: M-025-18 SCAG ProjecUOWP No.: 225-3564J2.11 7. That CITY shall include the appropriate clauses set forth in Appendix C and D of this Assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the CITY with other parties: Appendix C; a) for the subsequent transfer of real property acquired or improved under the federal -aid Program; and Appendix D; b) for the construction or use of or access to space on, over, or under real property acquired, or improved under the federal -aid Program. That this assurance obligates CITY for the period during which federal financial assistance is extended to the program, except where the federal financial assistance is to provide, or is in the form of, personal property or real property or interest therein, or structures, or improvements thereon, in which case the assurance obligates CITY or any transferee for the longer of the following periods: a) the period during which the property is used for a purpose for which the federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or b) the period during which CITY retains ownership or possession of the property. 9. That CITY shall provide for such methods of administration for the program as are found by the U.S. Secretary of Transportation, or the official to whom he delegates specific authority, to give reasonable guarantee that CITY, other recipients, sub -grantees, applicants, sub -applicants, transferees, successors in interest, and other participants of federal financial assistance under such program will comply with all requirements imposed by, or pursuant to, the ACT, the REGULATIONS, this Assurance and the MOU. 10. That CITY agrees that SCAG, the United States and the State of California have a right to seek judicial enforcement with regard to any matter arising under the ACT, the REGULATIONS, and this Assurance. 11. CITY shall not discriminate on the basis of race, religion, age, disability, color, national origin or sex in the award and performance of any SCAG assisted contract or in the administration on its DBE Program or the requirements of 49 CFR Part 26. CITY shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure non-discrimination in the award and administration of SCAG assisted contracts. CITY'S DBE Implementation Agreement is incorporated by reference in this MOU. 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 its approved DBE Implementation Agreement, SCAG 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 (31USC 3801 et seq.) February 26, 2019 Page 24 25C-26 MOUNo.: M-025-18 SCAG Project/OW No.: 225-3564J2.11 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 CITY by SCAG, and is binding on CITY, other recipients, subgrantees, applicants, sub -applicants, transferees, successors in interest and other participants in the federal -aid Highway Program. February26, 2019 Page 25 25C-27 MOU No.: M-025-18 SCAG Project/OWP No.: 225-3564J2.11 APPENDIX A TO EXHIBIT F During the performance of this Agreement, the City of Santa Ana, for itself, its assignees and successors in interest (hereinafter collectively referred to as "CITY") agrees as follows: (1) Compliance with Regulations: CITY shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this MOU. (2) Nondiscrimination: CITY, with regard to the work performed by it during the MOU, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub -applicants, including procurements of materials and leases of equipment. CITY 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. (3) Solicitations for Sub -agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CITY for 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 CITY of the CITY's obligations under this MOU and the REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and Reports: CITY shall provide all information and reports required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access to CITY's books, records, accounts, other sources of information, and its facilities as may be determined by SCAG, STATE or FHWA to be pertinent to ascertain compliance with such REGULATIONS or directives. Where any information required of CITY is in the exclusive possession of another who fails or refuses to furnish this information, CITY shall so certify to SCAG, STATE or the FHWA as appropriate, and shall set forth what efforts CITY has made to obtain the information. (5) Sanctions for Noncompliance: In the event of CITY's noncompliance with the nondiscrimination provisions of this agreement, SCAG shall impose such agreement sanctions as it or the STATE and FHWA may determine to be appropriate, including, but not limited to: (a) withholding of payments to CITY under the MOU within a reasonable period of time, not to exceed 90 days; and/or (b) cancellation, termination or suspension of the MOU, in whole or in part (6) Incorporation of Provisions: CITY shall include the provisions of paragraphs (1) through (6) in every sub -agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. CITY shall take such action with respect to any sub -agreement or procurement as SCAG, STATE or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CITY becomes involved in, or is threatened with, litigation with a sub -applicant or supplier as a result of such February 26, 2019 Page 26 25C-28 MOU No.: M-025-18 SCAG ProjecdOWP No.: 225-3564J2.11 direction, CITY may request SCAG enter into such litigation to protect the interests of SCAG, and, in addition, CITY may request the United States to enter into such litigation to protect the interests of the United States. Febnmy 26, 2019 Page 27 25C-29 MOU No.: M-025-18 SCAG ProjectIMP No.: 225-3564J2.11 APPENDIX B TO EXHIBIT F The following clauses shall be included in any and all deeds effecting or recording the transfer of PROJECT real property, structures or improvements thereon, or interest therein from the United States. (GRANTING CLAUSE) NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon the condition that CITY will accept title to the lands and maintain the project 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 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, release, quitclaim and convey unto the CITY all the right, title, and interest of the U.S. Department of Transportation in, and to, said lands described in Exhibit "E" attached hereto and made a part hereof. (HABENDUM CLAUSE) TO HAVE AND TO HOLD said lands and interests therein unto CITY 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 CITY, its successors and assigns. CITY, in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, (1) that no person shall on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed (;) (and) * (2) that CITY shall use the lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in federally -assisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended (;) and (3) that in the event of breach of any of the above -mentioned nondiscrimination conditions, the U.S. Department of Transportation shall have a right to re-enter said lands and facilities on said land, and the above -described land and facilities shall thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this deed.* * 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. February 26, 2019 Page 28 25C-30 MOU No.: M-025-18 SCAG ProjectlOWP No.: 225-3564J2.11 APPENDIX C TO EXHIBIT F The following clauses shall be included in any and all deeds, licenses, leases, permits, or similar instruments entered into by CITY, pursuant to the provisions of Assurance 7(a) of Exhibit F. The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add "as covenant running with the land") that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally - assisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. (Include in licenses, leases, permits, etc.)* That in the event of breach of any of the above nondiscrimination covenants, CITY 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, etc.) had never been made or issued. (Include in deeds)* That in the event of breach of any of the above nondiscrimination covenants, CITY shall have the right to re-enter said land and facilities thereon, and the above- described lands and facilities shall thereupon revert to and vest in and become the absolute property of CITY and its assigns. * Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964. Febmary 26, 2019 Page 29 25C-31 MOU No.: M-025-18 SCAG ProjectlOWP No.: 225-3564J2.11 APPENDIX D TO EXHIBIT F The following shall be included in all deeds, licenses, leases, permits, or similar agreements entered into by the CITY, pursuant to the provisions of Assurance 7 (b) of Exhibit F. The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal representatives, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds, and leases add "as a covenant running with the land") that: (1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in the use of said facilities; (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the ground of race, color, sex, national origin, religion, age or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and (3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with the Regulations. (Include in licenses, leases, permits, etc.)* That in the event of breach of any of the above nondiscrimination covenants, CITY 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, etc.) had never been made or issued. (Include in deeds)* That in the event of breach of any of the above nondiscrimination covenants, CITY shall have the right to re-enter said land and facilities thereon, and the above- described lands and facilities shall thereupon revert to and vest in and become the absolute property of CITY, and its assigns. * Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964. February 26, 2019 Page 30 25C-32