HomeMy WebLinkAboutSan Diego Association of Governments SANDAG; 2009-09-30; 5001324TransNet ENVIRONMENTAL MITIGATION PROGRAM FISCAL YEAR 2009
GRANT AGREEMENT 5001324 BETWEEN
THE SAN DIEGO ASSOCIATION OF GOVERNMENTS
AND
CITY OF CARLSBAD
REGARDING ACCESS CONTROL AND HABITAT RESTORATION PROJECT
THIS GRANT AGREEMENT 5001324 is made this 30th day of September, 2009, by and between
the San Diego Association of Governments (hereinafter referred to as "SANDAG"), 401 B Street,
Suite 800, San Diego, CA, and City of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA (hereinafter
referred to as "Grantee").
The following recitals are a substantive part of this Agreement:
A. In November 2004, the voters of San Diego County approved SANDAG Ordinance 04-01,
which extended the TransNet Vz cent sales and use tax through 2048 (TransNetOrdinance).
B. The TransNet Extension Ordinance contains provisions for the creation of an Environmental
Mitigation Program (EMP), which began being funded by the TransNet Ordinance on April 1,
2008.
C. In December 2008, SANDAG issued a request for proposals from entities wishing to apply for
a portion of the EMP funds for use on environmental land management projects meeting
certain criteria.
D. Grantee successfully applied for EMP funds for the following project: Calavera Preserve
Planning Area Access Control and Habitat Restoration Project (hereinafter referred to as the
"Project").
E. The purpose of this Agreement is to establish the terms and conditions for SANDAG to
provide Grantee with funding to implement the Project (TransNet Ordinance Assistance).
F. Although SANDAG will be providing financial assistance to Grantee to support the Project,
SANDAG will not take an active role in managing the Project or retain substantial control
over any portion of the Project.
NOW, THEREFORE, it is agreed as follows:
Section 1. Definitions
A. Application means the signed and dated grant application, including any amendment
thereto, with all explanatory, supporting, and supplementary documents filed with SANDAG
by or on behalf of the Grantee and accepted or approved by SANDAG. All of Grantee's
application materials, not in conflict with this Agreement, are hereby incorporated into this
Agreement as though fully set forth herein.
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
B. Approval, Authorization, Concurrence, Waiver means a conscious written statement
(transmitted in typewritten hard copy or electronically) of a SANDAG official authorized to
permit the Grantee to take or omit an action required by this Agreement, which action may
not be taken or omitted without such permission. Except to the extent that SANDAG
determines otherwise in writing, such approval, authorization, concurrence, or waiver
permitting the performance or omission of a specific action does not constitute permission to
perform or omit other similar actions. An oral permission or interpretation has no legal force
or effect.
C. Approved Project Budget means the most recent statement of the costs of the Project, the
maximum amount of assistance from SANDAG for which the Grantee is currently eligible, the
specific tasks (including specific contingencies) covered, and the estimated cost of each task
that has been approved by SANDAG. The Approved Project Budget is attached hereto as
Exhibit B.
D. Grantee means that, even if a single organization within a legal entity has executed this
Agreement as the Grantee, the entire legal entity is the Grantee. If the Grantee is a
consortium, partnership, or other multi-party entity, each participant in, member of, or party
to that consortium, partnership, or multi-party entity is deemed "Grantee" for purposes of
compliance with applicable requirements of the Agreement for the Project.
E. Subgrantee means any contractor or consultant, at any tier, paid directly or indirectly with
funds flowing from this Agreement for the Project.
Section 2. Project Implementation
A. General. Grantee agrees to carry out the Project as follows:
1. Project Description. Grantee agrees to perform the work as described in the Scope of
Work attached as Exhibit A.
2. Effective Date. The effective date of the Agreement or any amendment thereto is
the date on which this Agreement is fully executed. The Grantee agrees to undertake
Project work promptly after receiving notice that SANDAG has awarded TransNet
Ordinance Assistance for the Project.
3. Grantee's Capacity. Grantee agrees to maintain or acquire sufficient legal, financial,
technical, and managerial capacity to: (a) plan, manage, and complete the Project and
provide for the use of any Project property; (b) carry out the safety and security aspects
of the Project; and (c) comply with the terms of the Agreement and all applicable laws,
regulations, and policies pertaining to the Project and the Grantee, including but not
limited to the TransNet Ordinance.
4. Project Schedule. Grantee agrees to complete the Project in a timely manner.
Nevertheless, SANDAG and the Grantee agree that milestone dates and other Project
completion dates set forth in the Project Schedule attached hereto as Exhibit C are to
be treated as good faith estimates rather than precise and firm legal requirements.
Changes to Exhibit C or any other Exhibit to the Agreement shall require written
approval from SANDAG.
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
B. Application of Laws. Should a federal or state law preempt a local law, regulation, or the
TransNet Ordinance, the Grantee must comply with the federal or state law and
implementing regulations. No provision of the Agreement requires the Grantee to observe or
enforce compliance with any provision, perform any other act, or do any other thing in
contravention of federal, state, territorial, or local law, regulation, or ordinance. If
compliance with any provision of the Agreement violates or would require the Grantee to
violate any law, the Grantee agrees to notify SANDAG immediately in writing. Should this
occur, SANDAG and the Grantee agree that they will make appropriate arrangements to
proceed with or, if necessary, terminate the Project or portions thereof expeditiously.
C. Significant Participation by a Subgrantee. Although Grantee may delegate any or
almost all Project responsibilities to one or more subgrantees, the Grantee agrees that it,
rather than any subgrantee, is ultimately responsible for compliance with all applicable laws,
regulations, and this Agreement.
D. Grantee's Responsibility to Extend Agreement Requirements to Other Entities
1. Entities Affected. Grantee agrees to take appropriate measures necessary to ensure
that all Project participants comply with all applicable Federal laws, regulations, and
policies affecting Project implementation. In addition, if an entity other than the
Grantee is expected to fulfill any responsibilities typically performed by the Grantee,
the Grantee agrees to assure that the entity carries out the Grantee's responsibilities as
set forth in this Agreement.
2. Documents Affected. The applicability provisions of laws, regulations, and policies
determine the extent to which those provisions affect an entity (such as a subgrantee)
participating in the Project through the Grantee. Thus, the Grantee agrees to use a
written document to ensure that each entity participating in the Project complies with
applicable laws, regulations, and policies.
a. Required Clauses. Grantee agrees to use a written document (such as a
subagreement, lease, third-party contract, or other legally binding document)
including all appropriate clauses stating the entity's responsibilities under
applicable laws, regulations, or policies.
b. Flowdown. Grantee agrees to include in each document (subagreement, lease,
third-party contract, or other) any necessary provisions requiring the Project
participant (third-party contractor, subgrantee, or other) to impose applicable
laws, Agreement requirements and directives on its subgrantees, lessees, third-
party contractors, and other Project participants at the lowest tier necessary.
E. No SANDAG Obligations to Third Parties. In connection with the Project, the Grantee
agrees that SANDAG shall not be subject to any obligations or liabilities to any subgrantee,
lessee, third-party contractor, or other person or entity that is not a party to the Agreement
for the Project. Notwithstanding that SANDAG may have concurred in or approved any
solicitation, subagreement, lease, or third-party contract at any tier, SANDAG has no
obligations or liabilities to any entity other than the Grantee, including any subgrantee,
lessee, or third-party contractor at any tier.
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
F. Changes in Project Performance (i.e., Disputes, Breaches, Defaults, or Litigation). Grantee
agrees to notify SANDAG immediately, in writing, of any change in local law, conditions
(including its legal, financial, or technical capacity), or any other event that may adversely
affect the Grantee's ability to perform the Project in accordance with the terms of the
Agreement. The Grantee also agrees to notify SANDAG immediately, in writing, of any
current or prospective major dispute, breach, default, or litigation that may adversely affect
SANDAG's interests in the Project; and agrees to inform SANDAG, also in writing, before
naming SANDAG as a party to litigation for any reason, in any forum. At a minimum, the
Grantee agrees to send each notice to SANDAG required by this subsection to SANDAG's
Office of General Counsel.
G. Standard of Care. Grantee expressly warrants that the work to be performed pursuant to
this Agreement shall be performed in accordance with the applicable standard care. Where
approval by SANDAG, the Executive Director, or other representative of SANDAG or USFWS is
indicated in the Scope of Work, it is understood to be conceptual approval only and does not
relieve the Grantee of responsibility for complying with all laws, codes, industry standards,
and liability for damages caused by negligent acts, errors, omissions, noncompliance with
industry standards, or the willful misconduct of the Grantee or its subgrantees.
Section 3. Ethics
A. Grantee Code of Conduct/Standards of Conduct. Grantee agrees to maintain a written
code of conduct or standards of conduct that shall govern the actions of its officers,
employees, board members, or agents engaged in the award or administration of
subagreements, leases, or third-party contracts supported with TransNet Ordinance
assistance. The Grantee agrees that its code of conduct or standards of conduct shall specify
that its officers, employees, board members, or agents may neither solicit nor accept
gratuities, favors, or anything of monetary value from any present or potential subgrantee,
lessee, or third-party contractor at any tier or agent thereof. Such a conflict would arise when
an employee, officer, board member, or agent, including any member of his or her immediate
family, partner, or organization that employs, or intends to employ, any of the parties listed
herein has a financial interest in the entity selected for award. The Grantee may set
de minimis rules where the financial interest is not substantial, or the gift is an unsolicited
item of nominal intrinsic value. The Grantee agrees that its code of conduct or standards of
conduct shall also prohibit its officers, employees, board members, or agents from using their
respective positions in a manner that presents a real or apparent personal or organizational
conflict of interest or personal gain. As permitted by state or local law or regulations, the
Grantee agrees that its code of conduct or standards of conduct shall include penalties,
sanctions, or other disciplinary actions for violations by its officers, employees, board
members, or their agents, or its third-party contractors or subgrantees or their agents.
1. Personal Conflicts of Interest. Grantee agrees that its code of conduct or standards
of conduct shall prohibit the Grantee's employees, officers, board members, or agents
from participating in the selection, award, or administration of any third-party contract
or subagreement supported by TransNet Ordinance Assistance if a real or apparent
conflict of interest would be involved. Such a conflict would arise when an employee,
officer, board member, or agent, including any member of his or her immediate family.
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
partner, or organization that employs or intends to employ any of the parties listed
herein has a financial interest in the firm selected for award.
2. Organizational Conflicts of Interest. Grantee agrees that its code of conduct or
standards of conduct shall include procedures for identifying and preventing real and
apparent organizational conflicts of interest. An organizational conflict of interest
exists when the nature of the work to be performed under a proposed third-party
contract or subagreement may, without some restrictions on future activities, result in
an unfair competitive advantage to the third-party contractor or subgrantee or impair
its objectivity in performing the contract work.
B. SANDAG Code of Conduct. SANDAG has established policies concerning potential conflicts
of interest. These policies apply to Grantee. For all awards by SANDAG, any practices which
might result in unlawful activity are prohibited, including but not limited to rebates,
kickbacks, or other unlawful considerations. SANDAG staff is specifically prohibited from
participating in the selection process when those staff have a close personal relationship,
family relationship, or past (within the last 12 months), present, or potential business or
employment relationship with a person or business entity seeking a contract. It is unlawful for
any contract to be made by SANDAG if any individual board member or staff has a prohibited
financial interest in the contract. Staff is also prohibited from soliciting or accepting gratuities
from any organization seeking funding from SANDAG. SANDAG's officers, employees, agents,
and board members shall not solicit or accept gifts, gratuities, favors, or anything of
monetary value from consultants, potential consultants, or parties to subagreements. By
signing this Agreement, Grantee affirms that it has no knowledge of an ethical violation by
SANDAG staff or Grantee. If Grantee has any reason to believe a conflict of interest exists
with regard to the Agreement or the Project, it should notify the SANDAG Office of General
Counsel immediately.
C. Bonus or Commission. Grantee affirms that it has not paid, and agrees not to pay, any
bonus or commission to obtain approval of its TransNet Ordinance Assistance application for
the Project.
D. False or Fraudulent Statements or Claims. Grantee acknowledges and agrees that by
executing the Agreement for the Project, the Grantee certifies or affirms the truthfulness and
accuracy of each statement it has made, it makes, or it may make in connection with the
Project.
Section 4. Amount of Funding Assistance
Grantee agrees that SANDAG will provide TransNet Ordinance Assistance for the Project equal to
the smallest of the following amounts: (a) the "Maximum SANDAG Amount Approved" of
$286,667, or (b) the amount calculated in accordance with the "Maximum Percentage(s) of SANDAG
Participation," which is $286,667. SANDAG's responsibility to make payments under this Agreement
is limited to the amounts listed in the Approved Project Budget for the Project. Grantee's estimate
in its application for funding from SANDAG for the Project is the amount that forms the basis upon
which SANDAG determines the "Maximum SANDAG Amount Awarded" and "Maximum
Percentage(s) of SANDAG Participation."
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
Section 5. Matching Funds
Grantee has proposed to provide matching funds for the Project and therefore agrees as follows:
A. Duty to Obtain Matching Funds. Grantee agrees to provide sufficient funds or approved
in-kind resources, together with the TransNet Ordinance Assistance awarded, that will assure
payment of the actual cost of each Project activity covered by the Agreement for the Project.
The amount of matching funds and percentage(s) of matching funds Grantee shall provide
are set forth in the Approved Project Budget. Grantee agrees to complete all proceedings
necessary to provide its share of the Project costs at or before the time the matching funds
are needed for Project costs.
B. Prompt Payment of Matching Funds. Grantee agrees to provide the proportionate
amount of the matching funds promptly as it incurs Project costs or Project costs become due.
C. Reduction of Matching Funds. Grantee agrees that no refund or reduction of the amount
of matching funds may be made unless, at the same time, a reduction of the proportional
amount of the TransNet Ordinance Assistance provided is made to SANDAG in order to
maintain the Maximum Percentage(s) of SANDAG Participation.
Section 6. Approved Project Budget
Except to the extent that SANDAG determines otherwise in writing, the Grantee agrees as follows:
The Grantee and SANDAG have agreed to a Project budget that is designated the "Approved
Project Budget." Grantee will incur obligations and make disbursements of Project funds only as
authorized by the Approved Project Budget. An amendment to the Approved Project Budget
requires the issuance of a formal amendment to the Agreement, except that re-allocation of funds
among budget items or fiscal years that does not increase the total amount of the TransNet
Ordinance Assistance awarded for the Project and does not negatively impact the benefits obtained
from the Project may be made consistent with applicable laws, regulations, and policies. Prior
SANDAG approval is required for transfers of funds from non-construction to construction
categories or vice versa or when, in non-construction grants, cumulative transfers of funds between
total direct cost categories exceed ten (10) percent of the total budget.
Section 7. Payments
A. Grantee's Request for Payment When Matching Funds Are Required. Grantee will
demonstrate or certify that it will provide adequate matching funds that, when combined
with payments from SANDAG, will cover all costs to be incurred for the Project. Except to the
extent that SANDAG determines, in writing, that Grantee may defer its provision of its
matching funds for the Project, a Grantee required under the terms of this Agreement to
provide matching funds for the Project agrees that it will not:
1. Request or obtain matching funds exceeding the amount justified by the matching
share previously provided, or
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
2. Take any action that would cause the proportion of TransNet Ordinance Assistance
made available to the Project at any time to exceed the percentage authorized by the
Agreement for the Project.
B. Payment by SANDAG. Upon receiving a request for payment and adequate supporting
information, SANDAG will make payment for eligible amounts to Grantee within 30 days if
Grantee has complied with the requirements of the Agreement, has satisfied SANDAG that
the TransNet Ordinance Assistance requested is needed for Project purposes in that
requisition period, and is making adequate progress toward Project completion. After the
Grantee has demonstrated satisfactory compliance with the preceding requirements,
SANDAG may reimburse the Grantee's apparent allowable costs incurred (or to be incurred in
the requisition period), as set forth in the Approved Project Budget for the Project.
C. Costs Reimbursed. Grantee agrees that Project costs eligible for TransNet Ordinance
Assistance must comply with all the following requirements. Except to the extent that
SANDAG determines otherwise, in writing, to be eligible for reimbursement, Project costs
must be:
1. Consistent with the Project Description, the Approved Project Budget, and other
provisions of the Agreement,
2. Necessary in order to accomplish the Project,
3. Reasonable for the goods or services purchased,
4. Actual net costs to the Grantee (i.e., the price paid minus any refunds, rebates, or other
items of value received by the Grantee that have the effect of reducing the cost
actually incurred, excluding program income),
5. Incurred for work performed after the Effective Date of the Agreement,
6. Satisfactorily documented,
7. Treated consistently in accordance with accounting principles and procedures approved
by SANDAG for the Grantee, and with accounting principles and procedures approved
by the Grantee for its third-party contractors and subgrantees, and
8. Eligible for TransNet Ordinance Assistance as part of the EMP.
D. Excluded Costs
1. In determining the amount of TransNet Ordinance Assistance SANDAG will provide for
the Project, SANDAG will exclude:
a. Any Project cost incurred by the Grantee before the Effective Date of the
Agreement or Amendment thereto;
b. (b) Any cost that is not included in the latest Approved Project Budget;
c. Any cost for Project property or services received in connection with a
subagreement, lease, third-party contract, or other arrangement that is required
to be, but has not been, concurred in or approved in writing by SANDAG;
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
d. Any cost ineligible for SANDAG participation as provided by applicable laws,
regulations, or policies.
2. Grantee understands and agrees that payment to the Grantee for any Project cost does
not constitute SANDAG's final decision about whether that cost is allowable and
eligible for payment under the Project and does not constitute a waiver of any
violation by the Grantee of the terms of the Agreement for the Project. Grantee
acknowledges that SANDAG will not make a final determination about the allowability
and eligibility of any cost until the final payment has been made on the Project or the
results of an audit of the Project requested by SANDAG or its Independent Taxpayer
Oversight Committee (ITOC) has been completed, whichever occurs latest. If SANDAG
determines that Grantee is not entitled to receive any portion of the TransNet
Ordinance Assistance requested or paid, SANDAG will notify Grantee in writing, stating
its reasons. Grantee agrees that Project closeout will not alter Grantee's responsibility
to return any funds due SANDAG as a result of later refunds, corrections, or other
similar transactions; nor will Project closeout alter SANDAG's right to disallow costs and
recover funds provided for the Project on the basis of a later audit or other review.
E. Federal Claims, Excess Payments, Disallowed Costs, including Interest
1. Grantee's Responsibility to Pay. Upon notification to the Grantee that specific
amounts are owed to SANDAG, whether for excess payments of TransNet Ordinance
Assistance, disallowed costs, or funds recovered from third parties or elsewhere,
Grantee agrees to remit to SANDAG promptly the amounts owed, including applicable
interest, penalties, and administrative charges.
Section 8. Accounting Records
In compliance with applicable laws, regulations, and policies, the Grantee agrees as follows:
A. Project Accounts. Grantee agrees to establish and maintain for the Project either a
separate set of accounts or separate accounts within the framework of an established
accounting system that can be identified with the Project. Grantee also agrees to maintain all
checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents related
in whole or in part to the Project so that they may be clearly identified, readily accessible, and
available to SANDAG upon request and, to the extent feasible, kept separate from documents
not related to the Project.
B. Documentation of Project Costs and Program Income. Except to the extent that
SANDAG determines otherwise, in writing, the Grantee agrees to support all costs charged to
the Project, including any approved services or property contributed by Grantee or others,
with properly executed payrolls, time records, invoices, contracts, or vouchers describing in
detail the nature and propriety of the charges, including adequate records to support the
costs Grantee has incurred underlying any payment SANDAG has agreed to participate in
based upon a "payable" milestone.
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and Habitat Restoration Project Grant Agreement No. 5001324
Section 9. Reporting, Record Retention, and Access
A. Types of Reports. Grantee agrees to submit to SANDAG all reports required by laws and
regulations, policies, the Agreement, and any other reports SANDAG may specify.
B. Report Formats. Grantee agrees that all reports and other documents or information
intended for public availability developed in the course of the Project and required to be
submitted to SANDAG must be prepared and submitted in electronic and or typewritten hard
copy formats as SANDAG may specify. SANDAG reserves the right to specify that records be
submitted in particular formats.
C. Record Retention. During the course of the Project and for three years thereafter from the
date of transmission of the final expenditure report, the Grantee agrees to maintain, intact
and readily accessible, all data, documents, reports, records, contracts, and supporting
materials relating to the Project as SANDAG may require.
D. Access to Records of Grantees and Subgrantees. Grantee agrees to permit, and require
its subgrantees to permit, SANDAG or its authorized representatives, upon request, to inspect
all Project work, materials, payrolls, and other data, and to audit the books, records, and
accounts of Grantee and its subgrantees pertaining to the Project.
E. Project Closeout. Grantee agrees that Project closeout does not alter the reporting and
record retention requirements of this Agreement.
F. Quarterly Reports. It shall be the responsibility of Grantee to advise SANDAG on a
quarterly basis of the progress of its work, expenditures incurred, and information regarding
whether the Project is projected to comply with the fee payment schedule and Project budget
limits. The quarterly progress report shall be submitted in writing to SANDAG. Grantee shall
document the progress and results of work performed under this Agreement to the
satisfaction of SANDAG and, if applicable, to the satisfaction of any government agency as
directed by SANDAG. This may include progress and final reports, plans, specifications,
estimates, or other evidence of attainment of the Agreement objectives, which are requested
by SANDAG or the ITOC. Grantee may be required to attend meetings of SANDAG staff and
committees, including ITOC, to report on its progress and respond to questions.
Section 10. Project Completion, Audit, Settlement, and Closeout
A. Project Completion. Within ninety (90) calendar days following Project completion or
termination by SANDAG, the Grantee agrees to submit a final certification of Project
expenses and audit reports, as applicable.
B. Audit of Grantee. Grantee agrees to have performed financial and compliance audits
SANDAG may require. If performed, these financial and compliance audits must comply with
the provisions of OMB Circular A-133, Revised, "Audits of States, Local Governments, and
Non-Profit Organizations," the latest OMB A-133 Compliance Supplement for U.S. DOT, and
any further revision or supplement thereto. The Grantee also agrees to obtain any other
audits required by SANDAG. The Grantee agrees that these audits will be conducted in
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
accordance with U.S. Government Accountability Office, (U.S. GAO) "Government Auditing
Standards." The Grantee agrees that Project closeout will not alter the Grantee's audit
responsibilities. Audit costs are allowable Project costs.
C. Performance Audit. Grantee agrees to cooperate with SANDAG or the ITOC with regard to
any performance audit that is performed pursuant to the TransNet Ordinance on the Project.
D. Project Closeout. Project closeout occurs when SANDAG notifies Grantee that SANDAG has
closed the Project, and either forwards the final TransNet Ordinance Assistance payment or
acknowledges that Grantee has remitted the proper refund. Grantee agrees that Project
closeout by SANDAG does not invalidate any continuing requirements imposed by the
Agreement or any unmet requirements set forth in a written notification from SANDAG.
Section 11. Timely Progress and Right of SANDAG to Terminate
A. Grantee shall make diligent and timely progress toward completion of the Project within the
timelines set forth in the Project Schedule (Exhibit C). If timely progress is not achieved,
SANDAG may review the status of the Project to determine if the funds should be reallocated
to another eligible project. Grantee understands and agrees that any failure to make
reasonable progress on the Project or violation of the Agreement that endangers substantial
performance of the Project shall provide sufficient grounds for SANDAG to terminate the
Agreement for the Project.
B. Upon written notice, the Grantee agrees that SANDAG may suspend or terminate all or any
part of the TransNet Ordinance Assistance to be provided for the Project if Grantee has
violated the terms of the Agreement, or if SANDAG determines that the purposes of the laws
or policies authorizing the Project would not be adequately served by the continuation of
TransNet Ordinance Assistance for the Project.
C. In general, termination of TransNet Ordinance Assistance for the Project will not invalidate
obligations properly incurred by the Grantee before the termination date to the extent those
obligations cannot be canceled. If, however, SANDAG determines that Grantee has misused
TransNet Ordinance Assistance by failing to make adequate progress, failing to make
reasonable and appropriate use of Project property, or failing to comply with the terms of
the Agreement, SANDAG reserves the right to require Grantee to refund the entire amount
of TransNet Ordinance Assistance provided for the Project or any lesser amount as SANDAG
may determine.
D. Expiration of any Project time period established in the Project Schedule will not, by itself,
automatically constitute an expiration or termination of the Agreement for the Project,
however, Grantee must request and SANDAG must agree to amend the contract if the Project
Schedule will not be met. An amendment to the Project Schedule may be made at SANDAG's
discretion if Grantee provides documentation that the Project is delayed due to factors
external to the control of Grantee.
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Section 12. Civil Rights
The Grantee agrees to comply with all applicable civil rights laws, regulations and policies. These
include, but are not limited to, the following:
A. Nondiscrimination. Grantee agrees to comply, and assures the compliance of each
subgrantee, lessee, or third-party contractor at any tier of the Project, with all provisions
prohibiting discrimination on the basis of race, color, gender, religion, disability, or national
origin under either Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act
or the California Fair Employment and Housing Act as amended.
B. Equal Employment Opportunity. Grantee agrees to take affirmative action to ensure that
applicants are employed and that employees are treated during employment without regard
to their race, color, religion, sex, disability, age, or national origin. Such action shall include,
but not be limited to, employment, upgrading, demotions or transfers, recruitment or
recruitment advertising, layoffs or terminations, rates of pay or other forms of compensation,
and selection for training, including apprenticeship.
Section 13. Ownership of Work Product
SANDAG shall own any deliverables created in whole or in part for SANDAG's benefit pursuant to
the Scope of Work for the Project. The term "deliverables" includes but is not limited to all original
drawings, reports, and other documents, including detailed calculations and other work product
developed for the Project or services performed on the Project.
Section 14. Disputes and Venue
A. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the
State of California.
B. Dispute Resolution Process. In the event Grantee has a dispute with SANDAG during the
performance of this Agreement, Grantee shall continue to perform unless SANDAG informs
Grantee in writing to cease performance. The dispute resolution process for disputes arising
under this Agreement shall be as follows:
1. Grantee shall submit a statement of the grounds for the dispute, including all pertinent
dates, names of persons involved, and supporting documentation, to SANDAG's Project
Manager. The Project Manager and other appropriate SANDAG staff will review the
documentation in a timely manner and reply to Grantee within 20 days. Upon receipt
of an adverse decision by SANDAG, Grantee may submit a request for reconsideration
to SANDAG's Executive Director. The request for reconsideration must be received
within 10 days from the postmark date of SANDAG's reply. The Executive Director will
respond to the request for reconsideration within 10 working days. The decision of the
Executive Director will be final and in writing.
2. If Grantee is dissatisfied with the results following exhaustion of the above dispute
resolution procedures, Grantee shall make a written request to SANDAG for mediation
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with ten days from the postmark of SANDAG's reply. SANDAG shall respond to a
request for mediation within thirty (30) calendar days. If SANDAG agrees mediation is
appropriate, a mutually-acceptable mediator shall be selected by the parties, and the
parties will proceed to mediation of the dispute.
C. Venue. If any action is brought to interpret or enforce any term of this Agreement, the
action shall be brought in a state or federal court situated in the County of San Diego, State
of California. In the event of any such litigation between the parties, the prevailing party
shall be entitled to recover all reasonable costs incurred, including reasonable attorney's fees,
litigation and collection expenses, witness fees, and court costs as determined by the court.
Section 15. Assignment
Grantee agrees that Grantee shall not assign, sublet, or transfer (whether by assignment or
novation) this Agreement or any rights under or interest in this Agreement without the written
consent of SANDAG, which may be withheld for any reason. Prior notice of such proposed
assignment or transfer shall be promptly furnished to SANDAG in writing.
Section 16. Insurance
Grantee shall procure and maintain during the period of performance of this Agreement, and for
12 months following completion, policies of insurance from insurance companies authorized to do
business in the State of California or the equivalent types and amounts of self-insurance, as follows:
A. General Liability. Combined single limit of $1,000,000 per occurrence and $2,000,000
general aggregate for personal and bodily injury, including death, and broad form property
damage. The policy must include an acceptable "Waiver of Transfer Rights of Recovery
Against Others Endorsement." The policy must name SANDAG as an additional insured in the
endorsement. A deductible or retention may be utilized, subject to approval by SANDAG.
B. Automobile Liability. For personal and bodily injury, including death, and property
damage in an amount not less than $1,000,000.
C. Workers' Compensation and Employer's Liability. Policy must comply with the laws of
the State of California. The policy must include an acceptable "Waiver of Right to Recover
From Others Endorsement" naming SANDAG as an additional insured.
D. Other Requirements. Grantee shall furnish satisfactory proof by one or more certificates
(original copies) that it has the foregoing insurance. The insurance shall be provided by an
acceptable insurance provider, as determined by SANDAG, which satisfies the following
minimum requirements:
1. An insurance carrier qualified to do business in California and maintaining an agent for
service of process within the state. Such insurance carrier shall maintain a current A.M.
Best rating classification of "A-" or better, and a financial size of "$10 million to $24
million (Class V) or better," or
12
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
2. An insurance carrier qualified to do business in California and a policy provision for an
agent for service of process in California.
3. Certificates of insurance shall be filed with SANDAG. These policies shall be primary
insurance as to SANDAG so that any other coverage held by SANDAG shall not
contribute to any loss under Grantee's insurance. Each insurance policy shall contain a
clause which provides that the policy may not be canceled without first giving thirty
(30) days' advance written notice to SANDAG. For purposes of this notice requirement,
any material change in the policy prior to its expiration shall be considered a
cancellation.
Section 17. Indemnification and Hold Harmless
A. Generally. With regard to the Grantee's performance in connection with or incidental to
the Project, the Grantee agrees to defend, indemnify, protect, and hold SANDAG and its
agents, officers and employees harmless, from and against any and all claims asserted or
liability established for damages or injuries to any person or property, including injury to
Grantee's or its subgrantees' employees, agents, or officers, which arise from or are
connected with or are caused or claimed to be caused by the negligent, reckless, or willful
acts or omissions of Grantee and its subgrantees and their agents, officers, or employees, in
performing the work or services herein, and all expenses of investigating and defending
against same, including attorney fees and costs; provided, however, that Grantee's duty to
indemnify and hold harmless shall not include any claims or liability arising from the
established sole negligence or willful misconduct of SANDAG, its agents, officers, or
employees.
B. Intellectual Property. Upon request by SANDAG, the Grantee agrees to indemnify, save,
and hold harmless SANDAG and its officers, agents, and employees acting within the scope of
their official duties against any liability, including costs and expenses, resulting from any
willful or intentional violation by Grantee of proprietary rights, copyrights, or right of
privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition
of any data furnished under the Project. Grantee shall not be required to indemnify SANDAG
for any such liability caused solely by the wrongful acts of SANDAG employees or agents.
Section 18. Independent Contractor
A. Status of Grantee. Grantee shall perform the services provided for within this Agreement
as an independent contractor, and not as an employee of SANDAG. Grantee shall be under
the control of SANDAG as to the result to be accomplished and not the means, and shall
consult with SANDAG as provided for in the Scope of Work. The payments made to Grantee
pursuant to this Agreement shall be the full and complete compensation to which Grantee is
entitled. SANDAG shall not make any federal or state tax withholdings on behalf of Grantee.
SANDAG shall not be required to pay any workers' compensation insurance on behalf of
Grantee. Grantee agrees to indemnify SANDAG for any tax, retirement contribution, social
security, overtime payment, or workers' compensation payment which SANDAG may be
required to make on behalf of Grantee or any employee of Grantee for work done under this
Agreement.
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Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
B. Actions on behalf of SANDAG. Except as SANDAG may specify in writing, Grantee shall
have no authority, express or implied, to act on behalf of SANDAG in any capacity
whatsoever, as an agent or otherwise. Grantee shall have no authority, express or implied, to
bind SANDAG or its members, agents, or employees, to any obligation whatsoever, unless
expressly provided in this Agreement.
Section 19. Integration
This Agreement represents the entire understanding of SANDAG and Grantee as to those matters
contained in it. No prior oral or written understanding shall be of any force or effect with respect to
those matters covered hereunder. This Agreement may not be modified or altered except in
writing, signed by SANDAG and the Grantee.
Section 20. Severability
If any provision of the Agreement is determined invalid, the remainder of that Agreement shall not
be affected if that remainder would continue to conform to the requirements of applicable laws or
regulations.
Section 21. Notice
Any notice or instrument required to be given or delivered by this Agreement may be given or
delivered by depositing the same in any United States Post Office, registered or certified, postage
prepaid, addressed to:
San Diego Association of Governments
401 B Street, Suite 800
San Diego, CA 92101
Attn: Keith Greer
Grantee:
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Attn: Barbara Kennedy, Project Manager
and shall be effective upon receipt thereof.
Section 22. Signatures
The individuals executing this Agreement represent and warrant that they have the legal capacity
and authority to do so on behalf of their respective legal entities.
14
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date written
above.
SAN DIEGO ASSOCIATION CITY OF CARLSBAD
OF GOVERNMENTS
GARY L. GALLEGOS LtSA HILDABRAND
(J Executive Director City Manager
APPROVED AS TO SUFFICIENCY OF FORM
AND LEGALITY:
ice of General Counsel
15
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
EXHIBIT A
SCOPE OF WORK
The purpose of the project is to provide access control, habitat restoration, and public outreach for
the 735-acre Calavera Preserve Planning Area located in the northeast quadrant of the City of
Carlsbad. The project consists of a strategic plan with four primary components:
1) Installation of perimeter fencing, interior fencing, signage, and gates at key locations to
guide users to stay on authorized trails, to discourage access on decommissioned trails, and
as a deterrent to illegal dumping. Installation is planned to occur outside of the nesting
season.
2) Restoration of five acres of non-native grassland to Diegan Coastal Sage Scrub and
decommissioning of unauthorized trails in the restoration area. Includes three years of
maintenance by the contractor and two years of maintenance by volunteers.
3) Public outreach, active use of volunteers, and education to increase public awareness.
4) Project administration, reporting, contract management, and project management over a
five-year period.
The project will extend over a period of five years; however, the grant funding period will be for
three years. The last two years, which includes maintenance and monitoring of the revegetation
area and annual reporting, does not rely on grant funds.
Task #1: Install Fencing and Gates
Description:
Three types of fencing, gates, signs, and a kiosk will be installed in various locations within the
project area in two phases. Phase I includes installation of:
• Three-strand smooth wire fencing along portions of the east and west boundaries, and
between the boundary of the Lake Calavera Mitigation Parcel and the Carlsbad Highlands
Ecological Reserve.
• Chain-link fencing and access/pedestrian gates between the preserve and Lake Blvd.
(northeast boundary) at Skyhaven Lane (north-central boundary) and near the
residences/SDGE easement.
• Post and rail fencing near the entrance to the preserve area on Tamarack Avenue
(northwest boundary).
• Interior signage ("No Trespassing'T'Habitat Restoration Area") at various locations along
the fences.
• An entry kiosk on the eastern boundary of the preserve near the terminus of Cannon Road.
16
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
Phase II includes installation of:
• Three-strand smooth wire fencing in key areas along the southern boundary of the Carlsbad
Highlands Ecological Reserve. Installation will be coordinated with the California
Department of Fish and Game (CDFG).
• Interior signage ("No Trespassing'T'Habitat Restoration Area") will be installed at various
locations along the fence.
Taskl
Task 1.1
Install Fencing and Gates Total Cost Matching
Funds
Grant
Funding
Install perimeter fencing
7,770 If. 3-strand smooth wire
fencing (Phase 1)
5,350 If. 3-strand smooth wire
fencing (Phase II)
2,738 If. chain-link fencing
1,080 If. post and rail fencing
Surveyor - lump sum (Phase I)
Surveyor - lump sum (Phase II)
Subtotal Task 1. 1:
$ 46,620
$ 32,100
$ 41,070
$ 21,594
$ 1,000
$ 7,500
$149,884
$ 11,520
$ 0
$ 41,070
$ 0
$ 1,000
$ 0
$ 53,590
$ 35,100
$ 32,100
$ 0
$ 21,594
$ 0
$ 7,500
$ 96,294
Task 1.2 Install gates
12-foot access gate (1)
Pedestrian gates (2)
Subtotal Task 1.2:
$ 5,000
$ 5,000
$ 10,000
$ 5,000
$ 5,000
$ 10,000
$ 0
$ 0
$ 0
Task 1.3 Install interior fencing
4,111 If. 3-strand smooth wire
fencing
Surveyor (lump sum)
Subtotal Task 1.3:
$ 24,666
1,500
$ 26,166
$ 12,333
$ 0
$ 12,333
$ 12,333
$ 1,500
$ 13,833
Task 1.4 Install small signs and entry kiosks
Kiosk (1)
Small "No Trespassing" signs (43)
Install signs
Subtotal Task 1.4:
Task 1 total:
$ 1,000
$ 516
$ 640
$ 2,156
$ 188,206
$ 0
$ 276
$ 340
$ 616
$ 76,539
$ 1,000
$ 240
$ 300
$ 1,540
$ 111,667
Deliverables:
• Photos of signs, gates, fencing, and kiosks, including an aerial photo of the approximate
locations.
• Photo documentation of decommissioned trails (access barred by fencing).
• Costs for fencing, signs, gates, and kiosk.
17
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
Task #2: Habitat Restoration
Description:
The habitat restoration effort consists of restoration of five acres of non-native grassland to Diegan
Coastal Sage Scrub (DCSS), decommissioning unauthorized trails in the restoration area, monitoring
over a three-year period, and maintenance over a five-year period. The boundaries of the
revegetation area will be determined by City staff, CNLM, and USFWS. Revegetation is planned to
be completed prior to December 2009 in order to take advantage of the rainy season for plant
establishment. The restoration area will need to meet the 120-day and annual success criteria
established by the restoration contractor. The initial 120-day establishment period would occur
within the first four months of the five-year period. Monitoring visits would be conducted monthly
during year 1. In year 2, visits would be conducted monthly from February through July and twice
during the remainder of the year. Quarterly visits will be conducted during year 3. Annual visits will
be conducted in June each year to coincide with the peak of the growing season for vegetation and
an annual report will be provided for years 1-5. The restoration will be maintained by the
contractor during years 1-3 and by volunteers during years 4 and 5.
Task 2
Task 2.1
Task 2.2
Habitat Restoration Total Cost Matching
Funds
Grant
Funding
Restoration + 120-day monitoring
5 acres
Subtotal Task 2. 1:
$ 100,000
$ 100,000
$ 0
$ 0
$ 100,000
$ 100,000
Restoration Monitoring and Maintenance
Yearl
Year 2
Year3
Year 4
Years
Subtotal Task 2.2:
Task 2 total:
$ 25,000
$ 25,000
$ 25,000
$ 25,000
$ 25,000
$ 125,OOO
$ 22S,OOO
$ 0
$ 0
$ 0
$ 25,000
$ 25,000
$ 50,000
$ 5O,000
$ 25,000
$ 25,000
$ 25,000
$ 0
$ 0
$ 75,000
$ 175,000
Deliverables:
• Copy of Restoration Plan
• Copy of restoration contract
• Quarterly and Annual Reports (see Task 4)
Task #3: Public Outreach and Education
Description:
The Public Outreach and Education component will be coordinated with the current efforts by the
Parks and Recreation Department (including the Citywide Trail Volunteer Trail Program) and the
Center for Natural Lands Management (CNLM). Outreach activities will include the following:
18
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
• Meet with the adjacent neighbors to educate them about edge effects, preserve rules, and
how their activities (e.g., feeding wild animals, encroaching ornamental plantings into the
preserve, etc.) may impact native wildlife and habitat.
• Guided nature walks to educate the public about native plants and animals, invasive species,
and the restoration process.
• Development of educational materials including HOA newsletter articles, brochures, and
posters.
• Patrolling to discourage unauthorized activities.
• Active use of volunteers to install boundary signs and habitat restoration signs.
• Use of volunteers for stewardship of the restoration area during years 4 and 5.
The public outreach and education component will be implemented by City Staff (Parks and
Recreation Department and Planning Department), CNLM, Preserve Steward (City-funded
consultant), and CDFG.
TaskS Public Outreach and
Education
In-kind services
Total
Cost
$43,880
Matching
Funds
$43,880
Grant
Funding
$0
Deliverables:
• Quarterly reports listing activities completed during the reporting period and a proposed
list of activities for the following quarter.
• Summary of enforcement activities and trash removal.
• Copies of educational newsletters, brochures, and posters.
Task # 4: project administration
Description:
The Project will be administered by City staff and the Preserve Steward. The administration tasks
include reporting, contract management, project management, and volunteer coordination. The
measures of success for the project will be summarized in quarterly and annual reports, which will
include the following:
• Successful habitat restoration will meet the 120-day and annual success criteria.
• Reduction of habitat fragmentation will be documented by aerial photographs over a
period of five years and include reports by preserve managers.
• Reduction in complaints and incidents related to unauthorized use.
• Reduction in illegal dumping and trash.
• Reduction in the formation of new illegal trails, BMX bikejumps, and erosion.
• Passive restoration of unauthorized trails will be documented by aerial photographs over a
period of five years.
19
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
• Success of the public outreach component can be measured by all of the above, as well as a
reduction in dumping, planting of ornamentals, and feeding of wildlife along the boundary
between the residential back yards and the preserve area.
Task 4 Project Administration
In-kind services
Total
Cost
$35,046
Matching
Funds
$35,046
Grant
Funding
$0
Deliverables:
• Quarterly Reports: Years 1-3
• Annual Report: End of Year 4
• Final Report: End of Year 5
Task 5: Final Report and Quarterly Status Updates
A. Quarterly Update Status will include:
• Work done during last quarter
• Work to be done in next quarter
• Challenges/Issues encountered signed by project manager
B. Final Report will include:
a. Baseline pre-treatment photos
b. Treatment photos
c. Final photos of herbicide areas
d. Maps of Baseline pre-treatment photos
e. Treatment photos
f. Final photos of revegetated areas
g. Maps of areas revegetated
h. Effectiveness of revegetation % of resprout
20
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
EXHIBIT B
APPROVED PROJECT BUDGET
Invoices will be provided to SANDAG on a quarterly basis covering the costs of the work done by
Task during that time period.
Maximum SANDAG Contribution: $286,667.00
Maximum Percentage(s) of SANDAG Participation (if applicable): N/A
21
Calavera Preserve Planning Area Access Control
and Habitat Restoration Project Grant Agreement No. 5001324
EXHIBIT C
PROJECT SCHEDULE
TASK
1
2.1
2.2
2.2
2.2
2.2
3
2.2
2.2
4
4
NAME
Install perimeter fencing, gates, signs and
entry kiosk
Habitat Restoration (installation)
Restoration Monitoring and Maintenance
120-day monitoring
Restoration Monitoring and Maintenance
(to end of year 1 )
Restoration Monitoring and Maintenance
(year 2)
Restoration Monitoring and Maintenance
(year 3)
Public Outreach and Education
Restoration Monitoring and Maintenance
(year 4)
Restoration Monitoring and Maintenance
(year 5)
Project Administration Quarterly Reports
years 1-3
Project Administration Annual Reports
years 4 and 5
START
September
2009
September
2009
December
2009
April
2010
January
2011
January
2012
September
2009
January
2013
January
2014
January
2010
January
2013
END
June
2010
December
2009
March
2010
December
2010
December
2011
December
2012
December
2012
December
2013
December
2014
December
2012
December
2014
22
TransNet EMP GRANT PROGRAM INVOICE
To: Keith Greer
SANDAG
401 "B" Street, Suite 800
San Diego, CA 92101-4231
From NAME
ORGANIZATION
ADDRESS
Grant Number:
Project Name:
Grant Invoice Number:
Billing Period:
Invoice Date:
NAME OF GRANT
#
FROM
DATE
TO
PROJECT TASK
1
2
3
4
5
6
7
8
9
Description of Task
Description of Task
Description of Task
Description of Task
Description of Task
Description of Task
Description of Task
Description of Task
Description of Task
Description of Task
EXPENDED
MATCHING FUNDS
$
$
$
$
$
$
$
$
$
$
BEGINNING
GRANT
BALANCE
$
$
$
S
$
$
$
$
$
$
PREVIOUS
GRANT
EXPENDATURES
$
$
$
$
S
$
$
$
$
$
| Total: $
CURRENT GRANT
EXPENDATURES
$
$
$
$
S
$
$
$
$
$
EXPENDITURES
TO DATE
$
S$$$$$$$$$
REMAINING
BALANCE
$
$
$
$
$
$
$
$
S
$
$
Total Current Expenditures:
Previous 10% Withheld:
Total Amount Due this Invoice:
$
$
$
CERTIFICATION OF GRANTEE
I hereby certify that the above costs were incurred in performance of the work required under the afrrangement of the grant and are consisent with the amounts evidenced by
supporting documents and expenditures.
Signature Printed Name and Title Date
Deliverables: Summary of Deliverables Provided with Invoice
23