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HomeMy WebLinkAboutCA, STATE, TRANSPORTATION (2) - 2008 'APR 2 4 2008 $1 " . pf,.(;S (0 ) 1 (.q>'1 O. '1h~"1'~\l1'j (pre.. A-2008-064 LOCAL AGENCY - STATE AGREEMENT For BICYCLE TRANSPORTATION ACCOUNT PROJECT 12 District City of Santa Ana Local Agency Agreement No. BTA 07/08-12-0RA-07 THIS AGREEMENT, made in duplicate entered into effect as of this 1st day of July 2007, by and between the political entity identified above, a political subdivision of the State of California, hereinafter referred to as "LOCAL AGENCY", and the State of California, acting by and through the Department of Transportation, hereinafter referred to as "STATE" and together referred to as "PARTIES" or individually as a "PARTY". WITNESSETH: WHEREAS, under the provisions of Streets and Highways Code Section 21 06 (b) and Sections 890 through 894.2, as implemented by regulations in Title 21, Division 2, Chapter 10, of the California Code of Regulations, Bicycle Transportation Account funds (herein referred to as STATE FUNDS) have been allocated to LOCAL AGENCY for the Bicycle Transportation Account project defined in "EXHIBIT A" attached hereto and hereafter referred to as "PROJECT"; and Whereas, before STATE FUNDS will be made available for PROJECT, LOCAL AGENCY and STATE are required to enter into an agreement to establish terms and conditions applicable to the LOCAL AGENCY when receiving STATE FUNDS for a designated PROJECT facility and to the subsequent operation and maintenance of that completed facility. NOW THEREFORE, the PARTIES agree as follows: ARTICLE I - Project Administration 1. This AGREEMENT shall have no force or effect with respect to PROJECT unless and until it has been fully executed by both STATE and LOCAL AGENCY, 2. EXHIBIT A designates the party responsible for implementing PROJECT, type of work, and location of PROJECT. 3. LOCAL AGENCY agrees to execute and return AGREEMENT within ninety (90) days of receipt. The PARTIES agree that STATE may void AGREEMENT if not returned within the ninety (90) day period unless otherwise agreed by STATE in writing. 4. LOCAL AGENCY further agrees, as a condition to the release and payment of STATE FUNDS encumbered for the PROJECT described in EXHIBIT A, to comply with the terms and conditions of this AGREEMENT. I ARTICLE II - Rights of Way 1. No contract for the construction of PROJECT shall be awarded until all necessary rights of way have been secured. Prior to the advertising for construction of PROJECT, LOCAL AGENCY shall certify and, upon request, shall furnish STATE with evidence that all necessary rights of way are available for construction purposes or will be available by the time of award of the construction contract. 2. The furnishing of right of way by LOCAL AGENCY as provided for herein includes, and is limited to, the following: a) Expenditures to purchase all real property required for PROJECT free and clear of liens, conflicting easements, obstructions and encumbrances, after crediting PROJECT with the fair market value of any excess property retained and not disposed of by LOCAL AGENCY. b) The cost of furnishing of right of way as provided for herein includes, in addition to real property required for the PROJECT, title free and clear of obstructions and encumbrances affecting PROJECT and the payment, as required by applicable law, of damages to owners or remainder real property not actually taken but injuriously affected by PROJECT. c) The cost of relocation payments and services provided to owners and occupants pursuant to Government Code Sections 7260-7277 when PROJECT displaces an individual, family, business, farm operation or nonprofit organization. d) The cost of demolition and/or the sale of all improvements on the right of way after credit are recorded for sale proceeds used to offset PROJECT costs. e) The cost of unavoidable utility relocation, protection, or removal. f) The cost of all necessary hazardous material and hazardous waste treatment, encapsulation or removal and protective storage for which LOCAL AGENCY accepts responsibility and where the actual generator cannot be identified and recovery made. 3. LOCAL AGENCY agrees to indemnify and hold STATE harmless from any liability that may result in the event the right of way for PROJECT, including, but not limited to, being clear as certified, or if said right of way is found to contain hazardous materials requiring treatment or removal to remediate in accordance with federal and state laws. LOCAL AGENCY shall pay from its own non-matching funds, any costs which arise out of delays to the construction of PROJECT because utility facilities have not been timely removed or relocated, or because rights of way were not available to LOCAL AGENCY for the orderly prosecution of PROJECT work. 3 6. LOCAL AGENCY shall certify compliance or documentation of Categorical Exemption determination with the applicable provisions of the California Environmental Quality Act (CEQA) as defined in Title 14, California Code of Regulations, Chapter 3, Guidelines for Implementation of the California Environmental Quality Act. ARTICLE IV - Maintenance and Management 1. LOCAL AGENCY will maintain and operate the property acquired, developed, constructed, rehabilitated, or restored by PROJECT for its intended public use until such time as the parties might amend this AGREEMENT to otherwise provide. With the approval of STATE, LOCAL AGENCY or its successors in interest in the PROJECT property may transfer this obligation and responsibility to maintain and operate PROJECT property for that intended public purpose to another public entity. 2. Upon LOCAL AGENCY acceptance of the completed construction contract, or upon the contractor(s) being relieved of the responsibility for maintaining and protecting PROJECT, LOCAL AGENCY will be responsible for the maintenance, ownership, liability, and expense thereof for PROJECT in a manner satisfactory to the authorized representative of STATE, and if PROJECT falls within the jurisdictional limits of another Agency or Agencies, it is the duty of LOCAL AGENCY to facilitate a separate maintenance agreement(s) between itself and the other jurisdictional Agency or Agencies providing for the operation, maintenance, ownership and liability of PROJECT. Until those agreements are executed, LOCAL AGENCY will be responsible for all PROJECT operations, maintenance, ownership and liability in a manner satisfactory to the authorized representative of the STATE. 3. PROJECT and its facilities shall be maintained by an adequate and well-trained staff of engineers and/or such other professionals and technicians, as PROJECT reasonably requires. Said operations and maintenance staff may be employees of LOCAL AGENCY, another unit of government, or contractor under agreement with LOCAL AGENCY. All maintenance will be performed at regular intervals or as required for efficient operation of the completed PROJECT improvements. ARTICLE V - Fiscal Provisions 1. STATE'S financial commitment of STATE FUNDS will occur only upon the execution of this AGREEMENT. 2. STATE shall have the right to terminate this AGREEMENT if a contract for construction of PROJECT has not been awarded by LOCAL AGENCY within the first fiscal year in which STATE FUNDS are allocated. 3. STATE shall have the right to terminate this AGREEMENT if PROJECT costs have not been invoiced by LOCAL AGENCY within the first fiscal year in which ST ATE FUNDS are allocated, and as a minimum, to submit invoices at least once every six (6) months thereafter. 5 13. STATE FUNDS encumbered for PROJECT are available for liquidation only for three (3) years from the beginning of the State Fiscal Year in which the funds were appropriated in the State Budget. STATE FUNDS not liquidated within this period will be reverted unless a Cooperative Work Agreement (CW A) is submitted by LOCAL AGENCY and approved by the California Department of Finance in accordance with Government Code Section 16304. 14. The estimated costs of PROJECT are shown in EXHIBIT A. LOCAL AGENCY may, at its option, award contracts for amounts in excess of said estimates, and final project expenditures may exceed said estimates if sufficient local funds are available to finance the excess. It is understood that the allocation of STATE FUNDS shall not exceed that shown in EXHIBIT A. 15. In the event LOCAL AGENCY'S final costs of PROJECT are less than said estimate by reason of low bid or otherwise, the allocation of ST ATE FUNDS will be decreased in relationship to the percent funded by STATE as shown in EXHIBIT A. 16. Exhibit C defined as the "Certification of State Funding" template, shall be made a part of, and completed by STATE, prior to execution of this agreement. 17. Upon written demand by STATE, any overpayment to LOCAL AGENCY of amounts invoiced to STATE shall be returned to STATE. ARTICLE VI - Audits, Third Party Contracting, Records Retention and Reports 1. STATE reserves the right to conduct technical and financial audits of PROJECT work and records when determined to be necessary or appropriate and LOCAL AGENCY agrees, and shall require its contractors and subcontractors to agree, to cooperate with STATE by making all appropriate and relevant PROJECT records available for audit and copying as required by paragraph three (3) of Article VI. 2. LOCAL AGENCY, its contractors and subcontractors shall establish and maintain an accounting system and records that properly accumulate and segregate incurred PROJECT costs and matching funds by line item for the PROJECT. The accounting system of LOCAL AGENCY, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles; enable the determination of incurred costs at interim points of completion; and provide support for reimbursement payment vouchers or invoices sent to or paid by STATE. 3. For the purpose of determining compliance with Title 21, California Code of Regulations, Chapter 21, section 2500 et seq., when applicable, and other matters connected with the performance and costs of LOCAL AGENCY'S contracts with third parties pursuant to Government Code Section 8546.7, LOCAL AGENCY, LOCAL AGENCY'S contractors and subcontractors, and STATE shall each maintain and make available for inspection and audit all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited 7 5. LOCAL AGENCY and the officers and employees of LOCAL AGENCY, when engaged in the performance of this AGREEMENT, shall act in an independent capacity and not as officers, employees, or agents of STATE. 6. LOCAL AGENCY certifies that neither LOCAL AGENCY nor its principals are suspended or debarred at the time of the execution of this AGREEMENT, and LOCAL AGENCY agrees that it will notify STATE immediately in the event a suspension or a debarment occurs after the execution of this AGREEMENT. 7. LOCAL AGENCY warrants, by execution of this AGREEMENT, that no person or selling agency has been employed or retained to solicit or secure this AGREEMENT upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by LOCAL AGENCY for the purpose of securing business. For breach or violation of this warranty, STATE has the right to annul this AGREEMENT without liability, pay only for the value ofthe PROJECT work actually performed, or in STATE'S discretion, to deduct from the price of PROJECT, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. 8. In accordance with Public Contract Code, section 10296, LOCAL AGENCY hereby certifies under penalty of perjury that no more than one final unacceptable finding of contempt of court by a federal court has been issued against LOCAL AGENCY within the immediate preceding two (2) year period because of LOCAL AGENCY'S failure to comply with an order of a federal court that orders LOCAL AGENCY to comply with an order of the National Labor Relations Board. 9. LOCAL AGENCY shall disclose any financial, business or other relationship with STATE that may have an impact upon the outcome of this AGREEMENT. LOCAL AGENCY shall also list current contractors who may have a financial interest in the outcome of PROJECT undertaken pursuant to this AGREEMENT. 10. LOCAL AGENCY hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of PROJECT initiated under this AGREEMENT. 11. LOCAL AGENCY warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks, or other unlawful consideration either promised or paid to any STATE employee. For breach or violation of this warranty, STATE shall have the right, in its sole discretion; to terminate this AGREEMENT without liability; to pay only for PROJECT work actually performed; or to deduct from PROJECT price or otherwise recover the full amount of such rebate, kickback, or other unlawful consideration. 12. Any dispute concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by the STATE'S Contract Officer, who may consider any written or verbal evidence submitted by LOCAL AGENCY. The 9 LOCAL AGENCY for the reasons stated in paragraph sixteen (16) of ARTICLE VI, STATE shall pay LOCAL AGENCY the sum due LOCAL AGENCY under this AGREEMNT prior to termination, provided; however, LOCAL AGENCY is not in default of the terms and conditions of this AGREEMENT and that the cost of any PROJECT completion to STATE shall first be deducted from any sum due LOCAL AGENCY. 19. The "PROJECT" shall be constructed as provided in this AGREEMENT and in accordance with those laws applicable to LOCAL AGENCY. In the case of inconsistency or conflicts, the terms of this agreement shall prevail. 20. Without the written consent of STATE, this AGREEMENT is not assignable by LOCAL AGENCY either in whole or in part. 21. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in writing and signed by the PARTIES, and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES. IN WITNESS WHEREOF, the parties have executed this AGREEMENT by their duly authorized officers. KEN McGUIRE, Chief Bicycle Facilities Unit Division of Local Assistance LOCAL AGENCY City of Santa Ana '~ ~ By:~~1~ Name: Gerardo Mouet STATE OF CALIFORNIA Department of Transportation By: ~ /ft'i!;;C~ , Title: Executive Director - Parks & Rec. Date: / ;1-// tiy;:,.-r " ... <. _/ / / ' Date: 1/7/08 CITY OF SANTA ANA () 0a~ DAV~ {, City Manager ATTEST: ~~- City Clerk 11 . ' EXHIBIT A PROJECT DESCRIPTION AND COSTS Local Agency: I Agreement No. City of Santa Ana BTA 07/08-12-0RA-07 Project Location: Along an Orange County Flood Control District facility parallel to South Flower Street from Sunflower Avenue to West Alton Avenue. Type of Work: Construct a Class I bikeway. Length: 1.0 miles Funding Engineering! Right of Way Construction Total Cost Percent Source Desig:n Acquisition Contract BTA $20,000 $0 $980,000 $1,000,000 89.93% Local $112,000 $0 $0 $112,000 10.07% Other $0 $0 $0 $0 Total $132,000 $0 $980,000 $1,112,000 100.00% 1 . . EXHIBIT B FAIR EMPLOYMENT AND HOUSING ACT ADDENDUM 1. In the performance of this AGREEMENT, LOCAL AGENCY will not discriminate against any employee for employment because of race, sex, sexual orientation, religion, age, ancestry, national origin, pregnancy leave, or disability leave. LOCAL AGENCY will take affirmative action to ensure that employees are treated during employment, without regard to their race, sex, sexual orientation, color, religion, ancestry, or national origin, physical disability, medical 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 payor other forms of compensation; and selection for training, including apprenticeship. LOCAL AGENCY shall post in conspicuous places, available to employees for employment, notices to be provided ST ATE setting forth the provisions of this Fair Employment section. 2. LOCAL AGENCY, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code 9 1290-0 et seq.), and the applicable regulations promulgated thereunder (Cal. Code Regs. Title 2, 97285.0, et seq.) The applicable regulations ofthe Fair Employment and Housing Commission Implementing Government Code, section 12900(a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full. Each of the LOCAL AGENCY'S contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements, as appropriate. 3. LOCAL AGENCY shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under this AGREEMENT. 4. The Contractor will permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by STATE, for purposes of investigation to ascertain compliance with the Fair Employment section of this AGREEMENT. 5. Remedies for Willful Violations: (a) STATE may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which LOCAL AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that LOCAL AGENCY has violated the Fair Employment Practices Act and has issued an order under Labor Code, section 1 .. ' I ~ .. EXHIBIT C I hereby certify upon my own knowledge that budgeted funds are available for this encumbrance. Date Funding /.2 -//-t.?/ $/ o ()(? C'[')(.,). c)i) / !-- Fund Item Fiscal Year Program BC Category Source BTAFunds 2660-101-0045 2007/2008 2030010660 C 220000 T $1,000,000 Chapter Statues 171 2007 1 CONSENT CALENDAR Motion: 1. AGMT NO. 2008-062 - With Curbside Inc. in an amount not to exceed $40,000 - Public Works Agency. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 08-095 - Accepting $40,000 in grant funds from the County of Orange into the refuse collection fund and appropriating $40,000 to the refuse collection fund's account for other contractual services. 25.F. AGMT NO. 2008-063 - VETERINARY SERVICES FOR THE SANTA ANA ZOO AT PRENTICE PARK - Execute an amendment with Dr. Lorrie Boldrick in the amount of $68,000 for a one-year term - Parks, Recreation & Community Services Agency '25.G. AGREEMENT AND APPROPRIATION ADJUSTMENT FOR THE FLOWER STREET BIKE TRAIL EXTENSION PROJECT Gerardo Mouet, Executive Director of Park and Recreation, gave a presentation related to the award of $1,000,000 to the City of Santa Ana for the bike trail extension project. Motion: 1. AGMT NO. 2008-064 - With the State of California Department of Transportation in the amount of $1,000,000 - Parks, Recreation & Community Services Agency 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 08-106 Recognizing $1,000,000 in the Caltrans - Bicycle Transportation Account (BTA) revenue account and appropriate same in the Caltrans - Bicycle Transportation Account (BT A) expenditure account for the Flower Street Bike Trail Extension Project. MOTION: Sarmiento VOTE: AYES: SECOND: Alvarez Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: ABSTAIN: ABSENT: None (0) None (0) None (0) CITY COUNCIL MINUTES 92 APRIL 7, 2008