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HomeMy WebLinkAboutCALIFORNIA DEPARTMENT OF TRANSPORTATIONINSURANCE NOT REQUIRED A-2022-081 N WORK MAY PROCEED CLERK OF THE COUNCIL DATE: JAN 2 6 2023 City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 1 of 19 Clean California Local Grant Program (State) Restricted Grant Agreement This Restricted Grant Agreement (RGA), between the State of California acting by and through its Department of Transportation, referred to herein as CALTRANS, and the City of Santa Ana, hereinafter referred to as AGENCY, will commence on May 15, 2022, or upon approval by CALTRANS, whichever occurs later. This RGA is of no effect unless approved by CALTRANS. AGENCY shall not receive payment for work performed prior to approval of this RGA and before receipt of Notice to Proceed from CALTRANS. This RGA shall expire on December 31, 2024. Recitals 1. Under this RGA, CALTRANS intends to convey State restricted grant funds to AGENCY, pursuant to Budget Act Line Item 2660-101-0046T, who will implement the project pursuant to the attached Approved Grant Application and Amendment(s) to Grant Application, Attachment III under the terms, covenants, and conditions of this RGA. 2. CALTRANS and AGENCY intend that only funds that are authorized as restricted grants will be subject to this RGA, and that no funds that should be the subject of a Joint Powers Agreement, Interagency Agreement, or other non -grant agreement shall be subject to this RGA. Now, Therefore, based upon the terms, covenants, and conditions of this RGA, the parties agree as follows: Section I AGENCY Agrees: To timely and satisfactorily complete all Project work described in Attachment III ("Project Work") within the project budget and in accordance with the items of this RGA. Section II CALTRANS Agrees: That when conducting an audit of the costs claimed by AGENCY under the provisions of this RGA, to conduct the audit in accordance with applicable laws and regulations. Section III It Is Mutually Agreed: Under this RGA, CALTRANS will convey State grant restricted funds to AGENCY, pursuant to Budget Act Line Item 2660-101-0046T, and AGENCY will use the funds to only conduct the scope of work identified in this agreement and authorized by Streets and Highway Code section 91.41 The funds subject to this RGA must be identified as available to a public entity that is responsible for implementing the scope of work authorized under the Clean California Local Grant Program in CALTRANS' budget, and AGENCY represents and warrants that it is a public entity that is responsible for implementing the scope of work authorized under the Clean California Local Grant Program. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 2 of 19 2. Under this restricted grant, funds may be only used for the purposes set forth in this RGA, AGENCY Resolution (Attachment IV), Approved Grant Application and Amendment(s) to Grant Application (Attachment III), and the Grant Program Guidelines (Attachment 1), and the funds may only be used for costs and expenses that are directly related to such purpose. 3. AGENCY shall perform all the duties and obligations described in the King Street Urban Greening project, hereinafter "Project', subject to the terms and conditions of this RGA and Approved Grant Application and Amendment(s) to Grant Application (Attachment III), which are attached hereto as Attachment III. 4. The resolution authorizing AGENCY to execute this RGA pertaining to the above -described Project is attached hereto as Attachment IV. 5. AGENCY is not requesting an advance payment pursuant to California Streets and Highways Code section 94.41(e). 6. All services performed by AGENCY pursuant to this RGA shall be subject to and performed in accordance with California Streets and Highways Code §91.41 including, but not limited to, Government Code Section 14460(a)(1), as well as all applicable Federal, State, and Local laws, regulations, and ordinances, all applicable CALTRANS policies and procedures, and all applicable CALTRANS published manuals, including, but not limited to, the Grant Program Guidelines (Attachment 1). California Government Code Section 14460(a)(1) provides: 'The department [CALTRANS], and external entities that receive state and federal transportation funds from the department, are spending those funds efficiently, effectively, economically, and in compliance with applicable state and Federal requirements. Those external entities include, but are not limited to, private for profit and nonprofit organizations, local transportation agencies, and other local agencies that receive transportation funds either through a contract with the department or through an agreement or grant administered by the department." City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 3 of 19 7. Project funding is as follows: Fund Title Fund Source Dollar Amount Clean California Local Grant State General Fund (0001) Funds Budget Item 2660-130-001 State Program Code 20.30.010,900 FY 2021/22 $372,810.00 FY2022/231 $1,118,430.00 Cash Local Match Agency Provided $0.00 Value of Third -Party In -Kind Agency Provided $0.00 Contributions Total of other fund sources Agency Provided $0.00 (not in -kind contributions) Total Project Costs $1,491,240.00 No in -kind contributions may be made unless the amount and type of the contribution is identified above. For Caltrans Use Only hereby Certify upon my own personal knowledge that budgeted funds are available for encumbrance. Holly Tran 05/03/2022 $1,491,240.00 Accounting Officer Printed Name Accounting Officer Signature Date Amount Certified 8. This RGA is exempt from the legal review and approval by the Department of General Services, pursuant to Legal Opinions of the Attorney General: 58 Ops. Cal. Atty. Gen. 586 (1975), 63 Ops. Cal. Atty. Gen. 290 (1980), 74 Ops. Cal. Atty. Gen. 10 (1991), and 88 Ops. Cal, Atty. Gen. 56. 9. Notification of Parties a. AGENCY'S Project Manager for Project is Craig Foster, (714) 647-5659. b. CALTRANS' Contract Manager is Troy Andres, (657) 328-6310. "Contract Manager" as used herein includes his/her designee. c. All notices herein provided to be given, or which may be given, by either party to the other, shall be deemed to have been fully given when made in writing and received by the parties at their respective addresses: City of Santa Ana Attention: Craig Foster, NPDES Manager Phone Number: (714) 647-5659 Email: cfoster@santa-ana.org Address: 20 Civic Center Plz (M-22), Santa Ana, CA 92701 City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 4 of 19 California Department of Transportation District 12, Local Assistance Attention: Troy Andres, Transportation Planner Phone Number: (657) 328-6310 Email: troy.andres@dot.ca.gov Address: 1750 E 4th Street Santa Ana, CA 92705 10. Period of Performance a. Reimbursable work under this RGA shall begin no earlier than on May 15, 2022, following the RGA by CALTRANS. All reimbursable work shall terminate no later than June 30, 2024. Project closeout and final invoicing to CALTRANS must be submitted no later than November 1, 2024. Work incurred after June 30, 2024 will not be reimbursed. Payment shall be forfeit for any and all invoicing submitted to CALTRANS after November 1, 2024. Notwithstanding the foregoing, Caltrans will reimburse for actual close out costs incurred by AGENCY through November 1, 2024 (which, in total, shall not exceed 5% of the grant award). b. If requested by the CALTRANS Contract Manager, AGENCY will attend a kickoff meeting with CALTRANS to be scheduled within one (1) week from receipt of Notice to Proceed sent by CALTRANS. 11. Changes in Terms/Amendments This Agreement may only be amended or modified by mutual written agreement of the parties. 12. Cost Limitation a. The maximum total amount granted and reimbursable to AGENCY pursuant to this RGA by CALTRANS shall not exceed $1,491,240.00. b. It is agreed and understood that the CCLGP funds are limited to the amount granted. CALTRANS will only reimburse the cost of services actually incurred in accordance with the provisions of this RGA and as authorized by the CALTRANS Contract Manager at or below that fund limitation established herein. 13. Termination a. CALTRANS reserves the right to terminate this RGA upon written notice to AGENCY at least 30 days in advance of the effective date of such termination in the event CALTRANS determines (at its sole discretion) that AGENCY failed to proceed with PROJECT Work in accordance with the terms of this RGA. In the event of termination for convenience, CALTRANS will reimburse AGENCY for all allowable, authorized, and non -cancelled costs up to the date of termination. AGENCY shall return any unused advance amounts which cannot be supported by eligible expenditure documentation. b. This RGA may be terminated by either party for any reason by giving written notice to the other party at least 30 days in advance of the effective date of such termination. In the event of termination for convenience, CALTRANS will reimburse AGENCY for all costs that are expressly allowable, pre -authorized in writing, and non -cancellable, up to the date of termination. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 5 of 19 c. AGENCY has 60 days after the Termination Date to submit accurate invoices to CALTRANS to make final allowable payments for Project costs in accordance with the terms of this RGA. Failure to submit invoices within this period of time shall result in a waiver by AGENCY of its right to reimbursement of expended costs. Costs that are reimbursed and later determined to be ineligible for reimbursement shall be returned by AGENCY to CALTRANS. 14. Budget Contingency Clause a. It is mutually agreed that if the US Congress or the State Legislature fail to appropriate or allocate funds during the current year and/or any subsequent years covered under this RGA do not appropriate sufficient funds for the program, this RGA shall be of no further force and effect. In this event, CALTRANS shall have no liability to pay any funds whatsoever to AGENCY or to furnish any other considerations under this RGA and AGENCY shall not be obligated to perform any provisions of this RGA. b. The certification of FY 2022/23 funds will be contingent upon the passage of the FY 2022/23 Budget. Payment for any work performed that is funded by FY 2022/23 will be delayed if the FY 2022/23 Budget is not signed by June 30, 2022. Pursuant to Government Code (GC), Section 926.10, no late payment penalty shall accrue during anytime period for which no Budget Act in effect. c. If funding for any fiscal year is reduced or deleted by US Congress or State Legislature for purposes of this program, CALTRANS shall have the option to either terminate this RGA with no liability occurring to CALTRANS, or offer an RGA Amendment to AGENCY to reflect reduced amount. 15. Payment and Invoicing a. AGENCY, its contractors, subcontractors and sub -recipients shall establish and maintain an accounting system and records that properly accumulate and segregate incurred Project costs and matching funds by line. The accounting system of AGENCY, its contractors, all subcontractors, and sub -recipients shall conform to Generally Accepted Accounting Principles (GAAP) and any standards specified by the source of funds, to enable the determination of incurred costs at interim points of completion, and to provide support for reimbursement payment vouchers or invoices. b. The method of payment for this RGA will be based on the actual allowable costs that are incurred in accordance with the provisions of this RGA and in the performance of the Approved Grant Application and Amendment(s) to Grant Application (Attachment III). CALTRANS will reimburse AGENCY for expended actual allowable direct costs, and including, but not limited to, labor costs, travel, and contracted consultant services costs incurred by AGENCY in performance of the Project Work. Indirect costs are reimbursable only if the AGENCY has identified the estimated indirect cost rate in Attachment II and an approved Indirect Cost Allocation Plan or an Indirect Cost Rate Proposal as set forth in Section III —Cost Principles, Item 16d. The total cost shall not exceed the cost reimbursement limitation set forth in Section III —Cost Limitations, Item 11a. Actual costs shall not exceed the estimated wage rates, labor costs, travel, and other estimated costs and fees set forth in Attachment III without an amendment to this RGA, as agreed between CALTRANS and AGENCY. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 6 of 19 c. Reimbursement of AGENCY expenditures will be authorized only for those allowable costs actually incurred by AGENCY in accordance with the provisions of this RGA and in the performance of Project Work. AGENCY must not only have incurred the expenditures on or after the start date and the issuance of the Notice to Proceed letter for this RGA and before the Expiration Date but must have also paid for those costs to claim any reimbursement. d. The AGENCY indirect cost rate must be approved in writing by the California Department of Transportation Independent Office of Audits and Investigations or federal cognizant agency before any reimbursement payment is made by CALTRANS to AGENCY for such cost. e. Travel expenses and per diem rates are not to exceed the rate specified by the State of California Department of Human Resources for similar employees (i.e. non -represented employees) unless written verification is supplied that government hotel rates were not then commercially available to AGENCY, its subrecipients, contractors, and/or subcontractors, at the time and location required as specified in the California Department of Transportation's Travel Guide Exception Process at the following link: httos://travelpocketquide.dot.ca.gov/. Also see website for summary of travel reimbursement rules. f. AGENCY shall submit invoices to CALTRANS at least quarterly, but no more frequently than monthly, in arrears upon completion of project tasks, milestone and/or deliverables in accordance with the Project Timeline in Attachment III to the satisfaction of CALTRANS Contract Manager. Invoices shall reference this RGA Number and shall be signed and submitted to CALTRANS Contract Manager, as stated in Section III —Notification of Parties, Item 8c. g. Invoices shall include the following information: 1) Names of the AGENCY personnel performing work 2) Dates and times of Project Work 3) Locations of Project Work 4) Itemized costs as set forth in Attachment III, including identification of each employee, contractor or subcontractor staff who provided services during the period of the invoice, the number of hours and hourly rates for each employee, contractor, sub -recipient or subcontractor staff member, authorized travel expenses with receipts, receipts for authorized materials or supplies, and contractor, subrecipient and subcontractor invoices. 5) AGENCY shall submit written progress reports with each set of invoices to allow CALTRANS Contract Manager to determine if AGENCY is performing to expectations, is on schedule, is within funding cost limitations, to communicate interim findings, and to afford occasions for airing difficulties respecting special problems encountered so that remedies can be developed. h. Incomplete or inaccurate invoices shall be returned to the AGENCY unapproved for correction. Failure to submit invoices on a timely basis may be grounds for termination of this RGA for material breach per Section III —Termination, Item 12. i. CALTRANS will reimburse AGENCY for all allowable Project costs at least quarterly, but no more frequently than monthly, in arrears as promptly as CALTRANS fiscal procedures permit upon receipt of an itemized signed invoice. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 7 of 19 j. The RGA Expiration Date refers to the last date for AGENCY to incur valid Project costs or credits and is the date this RGA expires. AGENCY has until November 1, 2024 to make final allowable payments to Project contractors or vendors, and submit the Project's Final Report, as defined in Attachment I and a final invoice to CALTRANS for reimbursement for allowable Project costs. Any unexpended Project funds not invoiced by the 60th day will be reverted and will no longer be accessible to reimburse late Project invoices contractor. k. The final invoice will be paid upon submission by AGENCY to CALTRANS and acceptance by CALTRANS of the Final Delivery Report. Complete final delivery reports and invoices must be submitted to CALTRANS by November 1, 2024. 16. Local Match Funds a. AGENCY shall contribute not less than a proportional cash amount toward the services described herein on a monthly or quarterly basis. Notwithstanding the foregoing, to the extent that in -kind contributions are permitted and identified under this RGA, Section III —Project Funding, Item 6, the contributions may be counted as cash only when they are actually received by the AGENCY and confirmed by CALTRANS. Except where expressly allowed in writing herein, reimbursement of credits for local matching funds and in -kind contributions will be made or allowed only for work performed on and after the initial date of this Agreement and on or before June 30, 2024. b. AGENCY agrees to contribute the statutorily required local contribution of matching funds if any is specified within this RGA or in any Attachment hereto, toward the actual cost of the services described in Attachment III. AGENCY shall contribute not less than its required match amount toward the services described herein. Local cash and in -kind match requirements can be found in the Grant Program Guidelines (Attachment 1); but AGENCY must fully satisfy the local cash and in -kind match amount and percentage identified in Section III, Paragraph 7 with the final invoice. 17. Quarterly Progress Reporting a. AGENCY shall submit written quarterly progress reports to the CALTRANS Contract Manager to determine if AGENCY is performing to expectations, is on schedule, is within funding cost limitations, to communicate interim findings, and to afford occasions for airing difficulties respecting special problems encountered so that remedies can be developed. 18. Cost Principles a. AGENCY agrees to comply with Title 2, Code of Federal Regulations (CFR), Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. b. AGENCY agrees, and will assure that its contractors, sub -recipients, in -kind contributors, and subcontractors will be obligated to agree, that (a) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, at seq., shall be used to determine the allowability of individual Project cost items and (b) and (b) all parties shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Every sub -recipient receiving Project funds as a sub -recipient, contractor, or subcontractor under this RGA shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards to the extent applicable. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 8 of 19 c. Any Project costs for which AGENCY has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 200, and/or Part 48, Chapter 1, Part 31, are subject to repayment by AGENCY to CALTRANS. Should AGENCY fail to reimburse moneys due CALTRANS within 30 days of discovery or demand, or within such other period as may be agreed in writing between the parties hereto, CALTRANS is authorized to intercept and withhold future payments due AGENCY from CALTRANS or any third -party source, including, but not limited to, the State Treasurer, the State Controller or any other fund source. d. Prior to AGENCY seeking reimbursement of indirect costs, AGENCY must have identified estimated indirect cost rate in Attachment II, prepare and submit annually to CALTRANS for review and approval an indirect cost rate proposal and a central service cost allocation plan (if any) in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards and Chapter 5 of the Local Assistance Procedures Manual which may be accessed at: https://dot.ca.gov/-/media/dot- media/prog rams/local-assistance/documents/lapm/ch05. pdf e. AGENCY agrees and shall require that all its agreements with consultants and subrecipients contain provisions requiring adherence to this section in its entirety except for section c, above. 19. Americans with Disabilities Act By signing this Agreement, LOCAL AGENCY assures CALTRANS that in the course of performing Project Work, it will fully comply with the applicable provisions of the Americans with Disabilities Act (ADA) of 1990, as amended, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA (42 USC Section 12101 et seq.). 20. Iran Contracting Act Proposed Contractor must complete and submit to CALTRANS the Iran Contracting Act Certification certifying that it is not on the most current DGS list of Entities Prohibited from Contracting with Public Entities in California per the Iran Contracting Act, 2010 (https://www.dgs.ca.gov/PD/Resources/Page-Content/Procurement-Division-Resources-List- Folder/List-of-Ineligible-Businesses), before the Agreement has been executed, unless Contractor is exempted from the certification requirement by Public Contract Code Section 2205(c) or (d). If claiming an exemption, the proposed Contractor shall provide written evidence that supports an exemption under Public Contract Code Section 2203(c) or (d) before execution of the Agreement. 21. Indemnification a. Neither CALTRANS 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 AGENCY, its officers, employees, agents, its contractors, its subrecipients, or its subcontractors under or in connection with any work, authority, or jurisdiction conferred upon AGENCY under this RGA. It is understood and agreed that AGENCY shall fully defend, indemnify, and save harmless CALTRANS and all of CALTRANS' 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, likeness statutes under California Civil Code §§ 3344 and 3344.1, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by AGENCY, its officers, employees, agents, contractors, subrecipients, or subcontractors under this RGA. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 9 of 19 b. AGENCY agrees to fully defend, indemnify, and save harmless CALTRANS and all of its officers and employees from any and all claims, lawsuits, or legal actions, including reasonable attorneys' fees and legal costs, relating to intellectual property claims arising from or related to the Project and/or any work procured under this RGA, including but not limited to claims based on (1) U.S. federal or state trademark infringement laws, (2) patent infringement laws (3) 17 U.S.C. §§ 101-810 (the Copyright Act of 1976, as modified), (4) 17 U.S.C. § 106A(a) (the Visual Artists Rights Act of 1990, WARA"), (5) 17 U.S.C. § 113, (6) California Civil Code § 987 (the California Art Preservation Act), California Civil Code §989, or (7) any other rights arising under U.S. federal or state laws or under the laws of any other country that conveys rights and protections of the same nature as those conveyed under 17 U.S.C. §106A(a) and California Civil Code §987, including intellectual property claims arising from or related to breach of contract, inverse condemnation, conversion, and/or taking of property. 22. Nondiscrimination Clause (2 CCR 11105 Clause b) a. During the performance of this RGA, the AGENCY, its contractors, its subrecipients, and its subcontractors shall not deny the contract's benefits to any person on the basis 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, nor shall they discriminate unlawfully against any employee or applicant for employment because 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. AGENCY shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. b. AGENCY shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code Sections 12900 et seq.), the regulations promulgated thereunder (California Code of Regulations, Title 2, Sections 11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code Sections 11135-11139.5), and the regulations or standards adopted by CALTRANS to implement such article. c. AGENCY shall permit access by representatives of the Department of Fair Employment and Housing and CALTRANS upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours' notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or CALTRANS shall require to ascertain compliance with this clause. d. AGENCY and its contractors, its sub -recipients, and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. e. AGENCY shall include the nondiscrimination and compliance provisions of this clause in all agreements with its sub -recipients, contractors, and subcontractors, and shall include a requirement in all agreements with all of same that each of them in turn include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts they enter into to perform work under this RGA. 23. Retention of Records/Audits a. AGENCY, its contractors, subcontractors, and sub -recipients, agree to comply with Title 2, Code of Federal Regulations (CFR), Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 10 of 19 b. AGENCY, its contractors, subcontractors, and sub -recipients shall establish and maintain an accounting system and records that properly accumulate and segregate incurred Project costs and matching funds by line. The accounting system of AGENCY, its contractors, all subcontractors, and sub -recipients shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. All accounting records and other supporting papers of AGENCY, its contractors, subcontractors and sub -recipients connected with Project performance under this RGA shall be maintained for a minimum of three (3) years from the date of final payment to AGENCY and shall be held open to inspection, copying, and audit by representatives of CALTRANS, the California State Auditor, and auditors representing the federal government. Copies thereof will be furnished by AGENCY, its contractors, its subcontractors, and sub -recipients upon receipt of any request made by CALTRANS or its agents. In conducting an audit of the costs and match credits claimed under this RGA, CALTRANS will rely to the maximum extent possible on any prior audit of AGENCY pursuant to the provisions of State and AGENCY law. In the absence of such an audit, any acceptable audit work performed by AGENCY's external and internal auditors may be relied upon and used by CALTRANS when planning and conducting additional audits. c. For the purpose of determining compliance with applicable State and AGENCY law in connection with the performance of AGENCY's contracts with third parties pursuant to Government Code Section 8546.7, AGENCY, AGENCY's sub -recipients, contractors, subcontractors, and CALTRANS, shall each maintain and make available for inspection 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. All of the above referenced parties shall make such materials available at their respective offices at all reasonable times during the entire Project period and for three (3) years from the date of final payment to AGENCY under this RGA. CALTRANS, the California State Auditor, or any duly authorized representative of CALTRANS or the United States Department of Transportation, shall each have access to any books, records, and documents that are pertinent to a Project for audits, examinations, excerpts, and transactions, and AGENCY shall furnish copies thereof if requested. d. AGENCY, its subrecipients, contractors, and subcontractors will permit access to all records of employment, employment advertisements, employment application forms, and other pertinent data and records by the State Fair Employment Practices and Housing Commission, or any other agency of the State of California designated by CALTRANS, for the purpose of any investigation to ascertain compliance with this RGA. e. Additionally, all grants may be subject to a pre -award audit prior to execution of this RGA to ensure AGENCY has an adequate financial management system in place to accumulate and segregate reasonable, allowable and allocable costs. f. Any contract with a contractor, subcontractor, or sub -recipient entered into as a result of this RGA shall contain all the provisions of this article. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 11 of 19 24. Adjudication of Facts in Disputes a. Any dispute concerning a question of fact arising under this RGA that is not disposed of by agreement shall be decided by the CALTRANS Contract Officer, who may consider any written or verbal evidence submitted by AGENCY. The CALTRANS Contract Officer shall issue a written decision within 30 days of receipt of the dispute. If AGENCY rejects the decision of the CALTRANS Contract Officer, AGENCY can pursue any and all remedies authorized by law. Neither party waives any rights to pursue remedies authorized by law. b. Neither the pendency of a dispute nor its consideration by CALTRANS Contract Officer will excuse AGENCY from full and timely performance in accordance with the terms of this RGA. 25. INTENTIONALLY DELETED 26. Third -Party Contracts a. AGENCY shall perform the work contemplated with resources available within its own organization and no portion of the work shall be contracted to a third party without prior written authorization by the CALTRANS Contract Manager unless expressly included (subrecipient identified) in Attachment III as Project Work. b. All State -government -funded procurements must be conducted using a fair and competitive procurement process. AGENCY may use its own procurement procedures as long as the procedures comply with the local AGENCY's laws, rules, and ordinances governing procurement and all applicable provisions of State law, including, without limitation, the requirement that the AGENCY endeavor to obtain at least three (3) competitive bids for solicitation of goods, services, and consulting services (see Part 2, Chapter 2, Articles 3 and 4 of the Public Contract Code); a qualifications -based solicitation process, for which statements of qualifications are obtained from at least three (3) qualified firms for architecture and engineering services (see Title 1, Division 5, Chapter 10 of the Government Code); and, the applicable provisions of the State Contracting Manual (SCM), Chapter 5, which are not inconsistent with this Item 23, Third Party Contracts. The SCM can be found and the following link: httos://www.dgs.ca.gov/OLS/Resources/Paae- Content/Office-of-Legal-Services-Resources-List-Folder/State-Contracting. c. Any contract entered into as a result of this RGA shall contain all the provisions stipulated in this RGA to be applicable to AGENCY's sub -recipients, contractors, and subcontractors. Copies of all agreements with sub -recipients, contractors, and subcontractors, must be submitted to the CALTRANS Contract Manager. d. CALTRANS does not have a contractual relationship with the AGENCY's subrecipients, contractors, or subcontractors, and the AGENCY shall be fully responsible for all work performed by its subrecipients, contractors, or subcontractors. e. Prior authorization in writing by the CALTRANS Contract Manager shall be required before AGENCY enters into any non -budgeted sub -agreement. AGENCY shall provide an evaluation of the necessity or desirability of incurring such costs. AGENCY shall retain all receipts for such purchases or services and shall submit them with invoices per Section III — Payment and Invoicing, Item 14(e)(4), above. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 12 of 19 f. Any contract entered into by AGENCY as a result of this RGA shall mandate that travel and per diem reimbursements and third -party contract reimbursements to subrecipients, contractors, and subcontractors, will be allowable as Project costs only after those costs are incurred and paid for by the subrecipients, contractors, and subcontractors. Travel expenses and per diem rates for subcontractors shall be reimbursed pursuant to Section III —Payment and Invoicing, Item 14c, above. 27. Drug -Free Workplace Certification By signing this RGA, AGENCY hereby certifies under penalty of perjury under the laws of California that AGENCY will comply with the requirements of the Drug -Free Workplace Act of 1990 (Gov. Code Sections 8350 et seq.) and will provide a Drug -Free workplace by doing all of the following: a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a). b. Establish a Drug -Free Awareness Program as required by Government Code Section 8355(a)(2) to inform employees about all of the following: 1) The dangers of drug abuse in the workplace. 2) The person's or organization's policy of maintaining a Drug -Free workplace. 3) Any available counseling, rehabilitation, and employee assistance programs. 4) Penalties that may be imposed upon employees for drug abuse violations. c. Provide, as required by Government Code Section 8355(a)(3), that every employee who works on the proposed contract or grant: 1) Will receive a copy of the company's Drug -Free policy statement. 2) Will agree to abide by the terms of the company's statement as a condition of employment on the contract or grant. d. Failure to comply with these requirements may result in suspension of payments under this RGA or termination of this RGA or both, and AGENCY may be ineligible for the award of any future state contracts if CALTRANS determines that any of the following has occurred: (1) AGENCY has made a false certification or, (2) AGENCY violates the certification by failing to carry out the requirements as noted above. 28. Relationship of Parties It is expressly understood that this agreement is executed by and between two (2) independent governmental entities and is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of an independent party. 29. State -Owned Data a. AGENCY agrees to comply with the following requirements to ensure the preservation, security, and integrity of State-owned data on portable computing devices and portable electronic storage media: City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 13 of 19 1) Encrypt all State-owned data stored on portable computing devices and portable electronic storage media using government -certified Advanced Encryption Standard (AES) cipher algorithm with a 256-bit or 128-bit encryption key to protect CALTRANS data stored on every sector of a hard drive, including temp files, cached data, hibernation files, and even unused disk space. 2) Data encryption shall use cryptographic technology that has been tested and approved against exacting standards, such as FIPS 140-2 Security Requirements for Cryptographic Modules. 3) Encrypt, as described above, all State-owned data transmitted from one computing device or storage medium to another. 4) Maintain confidentiality of all State-owned data by limiting data sharing to those individuals contracted to provide services on behalf of the State, and limit use of State information assets for State purposes only. 5) Install and maintain current anti -virus software, security patches, and upgrades on all computing devices used during the course of the Agreement. 6) Notify the CALTRANS Contract Manager immediately of any actual or attempted violations of security of State-owned data, including lost or stolen computing devices, files, or portable electronic storage media containing State-owned data. 7) Advise the owner of the State-owned data, the AGENCY Information Security Officer, and the AGENCY Chief Information Officer of vulnerabilities that may present a threat to the security of State-owned data and of specific means of protecting that State-owned data. b. AGENCY agrees to use the State-owned data only for State purposes under this Agreement. c. AGENCY agrees to not transfer State-owned data to any computing system, mobile device, or desktop computer without first establishing the specifications for information integrity and security as established for the original data file(s) (State Administrative Manual (SAM) Section 5335.1). 30. CALTRANS' Use of "Before" and "After" Project Photographs a. AGENCY acknowledges it provided a "Before" photograph of the Project with the AGENCY's application for the Clean California Local Grant Program. AGENCY acknowledges and agrees it must provide an "After" photograph of the Project as part of the close out reporting process. b. AGENCY warrants it is the copyright owner of the "Before" and "After" Project photographs. c. Neither the 'Before" nor "After" Project photographs shall include the faces of any individuals. d. AGENCY grants to CALTRANS an irrevocable, perpetual, royalty -free, sublicensable, unlimited, worldwide license to prepare derivative works, make, publish, display, and distribute two-dimensional reproductions and/or copies, digitally and in print, of the "Before" and "After" Project photographs, or derivatives thereof, for non-commercial purposes or any State government purposes. This includes, but is not limited to, reproductions used in brochures, media publicity, public outreach campaigns (including television and social media campaigns), education, and exhibition catalogues or other similar publication. e. When applicable, AGENCY shall obtain and provide to CALTRANS any and all documentation CALTRANS reasonably determines is necessary or desirable to perfect the license described in this RGA to CALTRANS. This documentation shall be provided to CALTRANS within fifteen (15) days of written notice that this documentation is required. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 14 of 19 31. Limited Grant of Rights to CALTRANS for Use of Educational Programming ("educational programming") Created or Produced for Project and Visual Art Located Outside of State Right -of - Way ("Artwork") Created or Produced for Project a. Educational programming: AGENCY shall obtain from any and all copyright owner(s) of educational programming a sublicensable, irrevocable, perpetual, royalty -free, unlimited, worldwide license to prepare derivative works, make, publish, display, and distribute two-dimensional reproductions and/or copies, digitally and in print, of the educational programming created or produced for Project under this RGA, or derivatives thereof, for non-commercial purposes or any State government purposes. This includes, but is not limited to, reproductions used in brochures, media publicity, public outreach campaigns (including television and social media campaigns), education, exhibition catalogues or other similar publication. AGENCY shall obtain any and all other intellectual property rights necessary to make this grant to CALTRANS as described in this RGA. ii. AGENCY grants to CALTRANS an irrevocable, perpetual, royalty -free, sublicensable, unlimited, worldwide license to prepare derivative works, make, publish, display, and distribute two-dimensional reproductions and/or copies, digitally and in print, of the educational programming created or produced for Project under this RGA, or derivatives thereof, for non-commercial purposes or any State government purposes. This includes, but is not limited to, reproductions used in brochures, media publicity, public outreach campaigns (including television and social media campaigns), education, and exhibition catalogues or other similar publication. iii. When applicable, AGENCY shall obtain and provide to CALTRANS any and all documentation CALTRANS reasonably determines is necessary or desirable to perfect the license or sublicense described in this RGA to CALTRANS. This documentation shall be provided to CALTRANS within fifteen (15) days of written notice that this documentation is required. iv. To the extent any logos, including trademarks or service marks, belonging to third parties and/or the AGENCY are used on educational programming created or produced for Project under this RGA, AGENCY agrees to obtain and grant all necessary rights for CALTRANS to use and allow agents of CALTRANS to use the logos in connection with use of the educational programming for non-commercial purposes or State government purposes. This includes but is not limited to reproductions used in brochures, media publicity, public outreach campaigns (including television and social media campaigns), education and exhibition catalogues or other similar publication. This documentation shall be provided to CALTRANS within fifteen (15) days of written notice that this documentation is required. b. Artwork: AGENCY shall obtain from the artist(s), or any other copyright owner(s) of Artwork, a sublicensable, irrevocable, perpetual, royalty -free, unlimited, worldwide license to prepare derivative works, make, publish, display, and distribute two-dimensional reproductions and/or copies, digitally and in print, of Artwork created or produced for Project under this RGA, or derivatives thereof, for non-commercial purposes or any State government purposes. This includes, but is not limited to, reproductions used in brochures, media publicity, public outreach campaigns (including television and social media campaigns), education, and exhibition catalogues or other similar publication. AGENCY shall obtain any and all other intellectual property rights necessary to make this grant to CALTRANS as described in this City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 15 of 19 RGA. ii. AGENCY grants to CALTRANS an irrevocable, perpetual, royalty -free, sublicensable, unlimited, worldwide license to prepare derivative works, make, publish, display, and distribute two-dimensional reproductions and/or copies, digitally and in print, of Artwork created or produced for Project under this RGA, or derivatives thereof, for non-commercial purposes or any State government purposes. This includes, but is not limited to, reproductions used in brochures, media publicity, public outreach campaigns (including television and social media campaigns), education, and exhibition catalogues or other similar publication. iii. AGENCY shall obtain and provide to CALTRANS any and all documentation CALTRANS reasonably determines is necessary or desirable to perfect the license or sublicense described in this RGA to CALTRANS. This documentation shall be provided to CALTRANS within fifteen (15) days of written notice that this documentation is required. 32. Government Purpose Rights for Inventions a. Inventions are any idea, methodologies, design, concept, technique, invention, discovery, improvement or development regardless of patentability made solely by AGENCY or jointly with the AGENCY's contractor, subcontractor and/or subrecipient during the term of this RGA and in performance of any work under this RGA, provided that either the conception or reduction to practice thereof occurs during the term of this RGA and in performance of work issued under this RGA. b. CALTRANS will have Government Purpose Rights to any inventions created as a result of the Project. "Government Purpose Rights' are the unlimited, irrevocable, worldwide, perpetual, royalty -free, non-exclusive rights, and licenses to use, modify, reproduce, perform, release, display, create derivative works from, and disclose any said invention. "Government Purpose Rights" also include the right to release or disclose said invention(s) outside CALTRANS for any State government purpose and to authorize recipients to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the invention(s) for any State government purpose. "Government Purpose Rights" do not include any rights to use, modify, reproduce, perform, release, display, create derivative works from, or disclose the invention(s) for any commercial purpose. 33. Additional Intellectual Property Provisions a. To the extent any intellectual property is created or produced for Project under this RGA, and not covered in other provisions of this RGA, AGENCY agrees to take reasonable steps to ensure that CALTRANS has the rights necessary to allow for use of the intellectual property in a fashion substantially similar to other rights for non-commercial uses and State government purposes described in this RGA. b. If additional uses are reasonably determined to be needed by CALTRANS for public outreach purposes, AGENCY will obtain rights and grant CALTRANS and its agents said additional rights for use of the "Before" and "After" Project photos, Artwork created or produced for Project under this RGA, and educational programming created or produced for Project under this RGA. The grant will bean irrevocable, non-exclusive, perpetual, royalty -free, sublicensable, unlimited, worldwide license. c. When requested to so do by AGENCY, all reproductions and/or copies by CALTRANS of "Before" or "After" Project photographs, educational programming, and Artwork shall contain a credit to the Artist/ Copyright owner(s) and a copyright notice in substantially the following form: 0 [Artist/Copyright owner's name, date of publication]. AGENCY bears sole responsibility to City of Santa Ana Agreement Number CCL-5063-206 AIMS ADV ID: 1222000096 Page 16 of 19 promptly notify CALTRANS, in writing, about instances where such accreditation is requested and provide the Artist/ Copyright owner's name and date of publication. CALTRANS will make reasonable efforts to affix the copyright notice in a timely manner. d. Required disclaimer language for educational programming and Artwork created or produced for Project under this RGA. i. Educational programming: AGENCY must place a disclaimer statement in a conspicuous manner on the educational programming created or produced for Project under this RGA a disclaimer that states the content of the educational programming does not reflect the official views or policies of CALTRANS. The educational programming does not constitute a standard, specification, or regulation. ii. Artwork: AGENCY must place a disclaimer statement in a conspicuous manner on or in close proximately to the Artwork created or produced for Project under this RGA a disclaimer statement that the contents of the artwork do not reflect the official views or policies of CALTRANS. e. Avoidance of Infringement: In performing work under this RGA, AGENCY and its employees agree to avoid designing or developing any items that infringe one or more patents or other intellectual property rights of any third party. If AGENCY or its employees becomes aware of any such possible infringement in the course of performing any work under this RGA, AGENCY or its employees shall immediately notify CALTRANS in writing. f. Contractors, Subcontractors, and Subrecipients: Through contract with its sub -recipients, contractors, and subcontractors, AGENCY shall affirmatively bind by contract all of its contractors, subcontractors, subrecipients, and service vendors (hereinafter "AGENCY's Contractor/Subcontractor/Subrecipient") providing services under this RGA to conform to the provisions of paragraphs 31-33 of this RGA. In performing services under this RGA, AGENCY's Contractor/Subcontractor/Subrecipient shall agree to avoid designing or developing any items that infringe one (1) or more patents or other intellectual property rights of any third party. If AGENCY's Contractor/Subcontractor/Subrecipient becomes aware of any such possible infringement in the course of performing any work under this RGA, AGENCY's Contractor/Subcontractor/Subrecipient shall immediately notify the AGENCY in writing, and AGENCY will then immediately notify CALTRANS in writing. 34. Visual Art Located on California State Right -of -Way AGENCY agrees if Project involves visual art located on California State right-of-way, Project must be submitted and adhere to CALTRANS' most current Transportation Art Proposal process, policies, guidelines, and requirements. Information regarding CALTRANS' Transportation Art program can be found at https:Hdot.ca.gov/programs/design/lap-landscape-architecture-and- community-livability/lap-liv-i-transportation-art. AGENCY bears sole responsibility for ensuring that any Project will be timely submitted through CALTRANS' Transportation Art Proposal process, approved, and installed prior to any deadlines as required by this RGA. a. AGENCY acknowledges that funds provided by CALTRANS under this RGA shall not be used for maintenance outside of the project time limits as provided in this RGA. b. AGENCY acknowledges that the CALTRANS' Transportation Art Proposal process requires, among other things, CALTRANS ownership of any tangible visual final artwork, an unlimited, irrevocable copyright assignment to CALTRANS of the final artwork, and waiver of moral rights under California Civil Code § 987 (the California Art Preservation Act) and 17 U.S.C. § 106A(a) (the Visual Artists Rights Act of 1990, WARX) of the final artwork. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 17 of 19 c. AGENCY acknowledges that any submittal to the CALTRANS' Transportation Art Proposal process includes restrictions on the type of work that can be located on California State right-of- way. 35. Assumption of Risk and Indemnification Regarding Exposure to Environmental Health Hazards In addition to, and not a limitation of, Contractor's indemnification obligations contained elsewhere in this Agreement, Contractor hereby assumes all risks of the consequences of exposure of Contractor's employees, agents, Subcontractors, Subcontractors' employees, and any other person, firm, or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement, to any and all environmental health hazards, local and otherwise, in connection with the performance of this Agreement. Such hazards include, but are not limited to, bodily injury and/or death resulting in whole or in part from exposure to infectious agents and/or pathogens of any type, kind or origin. Contractor also agrees to take all appropriate safety precautions to prevent any such exposure to Contractor's employees, agents, Subcontractors, Subcontractors' employees, and any other person, firm or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement. Contractor also agrees to indemnify and hold harmless CALTRANS, the State of California, and each and all of their officers, agents and employees, from any and all claims and/or losses accruing or resulting from such exposure. Except as provided by law, Contractor also agrees that the provisions of this paragraph shall apply regardless of the existence or degree of negligence or fault on the part of CALTRANS, the State of California, and/or any of their officers, agents and/or employees. 36. Mandatory Organic Waste Recycling It is understood and agreed that pursuant to Public Resources Code Sections 42649.8 et seq., if Contractor generates two (2) cubic yards or more of organic waste or commercial solid waste per week, Contractor shall arrange for organic waste or commercial waste recycling services that separate/source organic waste for organic waste recycling. Contractor shall provide proof of compliance, i.e. organic waste recycling services or commercial waste recycling services that separate/source organic waste recycling, upon request from CALTRANS Contract Manager 37. Project Close Out/Closeout Report a. AGENCY will provide a final close out report to the CALTRANS Contract Manager no later than November 1, 2024. CALTRANS reserves the right to inspect the project location prior to approving the final invoice and closeout report. b. CALTRANS reserves the right to withhold final payment to AGENCY pending receipt and approval of the final closeout report by the CALTRANS Contract Manager. c. Payments shall be forfeit if invoices are submitted after November 1, 2024. City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 18 of 19 38. ADA Compliance All entities that provide electronic or information technology or related services that will be posted online by CALTRANS must be in compliance with Government Code Sections 7405 and 11135 and the Web Content Accessibility Guidelines (WCAG) 2.0 or subsequent version, published by the Web Accessibility Initiative of the World Wide Web Consortium at a minimum Level AA success. All entities will respond to and resolve any complaints/deficiencies regarding accessibility brought to their attention. 39. Prevailing Wages and Labor Code Compliance AGENCY shall comply with any and all applicable labor and prevailing wage requirements in Labor Code Sections 1720 through 1815 and implementing regulations for any public works or maintenance contracts and subcontracts executed for the AGENCY's work on or for the Project. 40. In the event of any inconsistency between the provisions which constitute this RGA, the following order of precedence shall apply: I. This Restricted Grant Agreement (as amended); II. The CALTRANS Local Grant Program Guidelines; III. Approved Indirect Cost Rate (if applicable); IV. Approved Grant Application (as amended); and V. AGENCY Resolution. 41. Survival AGENCY's representations, the indemnification provisions in paragraph 21, intellectual property provisions in paragraphs 30, 31, 32, and 33, and all other provisions which by their inherent character establish ongoing obligations shall remain in full force and effect, regardless of any expiration and/or termination of this RGA. 42. Sanctions No agreements under this RGA shall be made with individuals and/or entities that are determined to be a target of sanctions by the State of California while such sanctions are in effect. A-2022-081 Section IV Attachments: City of Santa Ana Agreement Number CCL-5063-206 AMS ADV ID: 1222000096 Page 19 of 19 The following attachments are incorporated into, and are made a part of this RGA by this reference and attached hereto. I. Grant Program Guidelines II. Approved Indirect Cost Rate (if applicable) III. Approved Grant Application and Amendment(s) to Grant Application (if applicable) IV. AGENCY Resolution In Witness Whereof, the parties hereto have executed this RGA on the day and yearfirst herein above written: STATE OF CALIFORNIA CITY OF SANTA ANA DEPARTMENT OF TRANSPORTATION Gretchen Chavez NA%kL, 5A15A Title: Title: Office Chief EAT-WTIVC preEGT6P- Clean California Local Grant Program PLIBLl c, uo¢-KS Division of Local Assistance GTy aF $A.3TA ANA _ Date: 01113/2023 Date: aVtV oL3 Norma Orozco Acting Clerk of the Council Date: APROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: l— BrMyffn Salvaberre Deputy City Attorney