Loading...
HomeMy WebLinkAbout1997-07-22; City Council; 14270; MASTER AGREEMENT ADMINISTERING AGENCY-STATE AGREEMENTS FOR FEDERAL-AID PROJECTS AGREEMENT NO. 11-5308* \ 0 e ,. . b (. ..r , CITY OF CARLSBAD - AGENUA BILL AB# lq, 230 CITY ATTY. c FOR FEDERAL-AID PROJECTS MTG. 7122197 TITLE: MASTER AGREEMENT ADMINISTERING AGENCY-STATE AGREEMENTS AGREEMENT NO. 11-5308 DEPT. ENG I cm MGR. 2 Q 0 9 f z 0 F 0 4 J G z 3 0 0 RECOMMENDED ACTION: Adopt Resolution No. y1-5 3 8’ approving the Master Agreement Admin! Agency-State Agreement for Federal-Aid Projects (Agreement No. 11-5308). ITEM EXPLANATION: Federal-aid projects funding to the City of Carlsbad is administered by the Cz Department of Transportation (Caltrans). The agreement under which this is done is ref( as the “Master Agreement”. This agreement was originally approved by Resolution Nc on November 21, 1978. All transportation projects which get federal or state fund processed by a supplemental agreement which refers to this Master Agreement. The federal government has modified laws under the lntermadal Surface Transpi Efficiency Act (ISTEA) and the state has “reengineered” their Local Assistance proced require less oversight on federally funded local road projects. Previously, Caltrans did the following: 1. Field review prior to initial application. 2. Review and approval of consultant agreements. 3. Review and approval of plans, specifications, and estimates. 4. Concurrence in award of construction contract. 5. Invoice review. 6. Construction oversight and final inspection. Under the new agreement, the above Caltrans reviews will continue to be done for f funded projects that are on the National Hiqhwav Svstem onlv. This system consists state highways and all interstate freeways. Federally funded local road projects wil followed. Right-of-way acquisition and certification processing is not affected by this Chi reviewed by Caltrans. For those projects, the City must certify that the procedures ha FISCAL IMPACT: A signed Master Agreement is required in order to receive any federal or state fur transportation projects. The Master Agreement does not authorize any federal or stab Authorization is done with Supplemental Agreements which are executed for each proje EXHIBITS: 1. Resolution No. 9 9- 538 approving the Master Agreement Adm’ Agency-State Agreement for Federal-Aid Projects (Agreement No. 11-5308). 2. Master Agreement Administering Agency-State Agreement for Federal-Aid Projl * e e 1 RESOLUTION NO. 97-538 2 3 4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A MASTER AGREEMENT FOR FEDERAL-AID PROJECTS WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION-AGREEMENT NO. 11-5308. 5 Agreement for Federal-Aid Projects: and 6 WHEREAS, the California Department of Transportation has revised the 7 WHEREAS, the City Council hereby finds it necessary, desirable, and in the public ~ 8 to approve said agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cz 9 California, as follows: 10 1. That the above recitations are true and correct. I' I( 2. That the Master Agreement between the California Department of Transp l2 and directed to execute said agreement. l3 and the City of Carlsbad is hereby approved and the Mayor and City Clerk are hereby aut 14 15 held on the 22d day of July , 1997 by the following vote, to wit: 16 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City AYES: Council Members Lewis, Finnila, Nygaard, Kulchin, and Hall 17 NOES: None ABSENT: None 18 19 20 21 I 22 I I ATTEST: (SEAL) 25 26 27 28 I1 Exhi @ @ MASTER AGREEMENT ADMINISTERING AGENCY-STATE AGREEMENT FOR FEDERAL-AID PROJECTS 11 City of Carlsbad District Administering Agency Agreement No. 11-5308 This AGREEMENT, made effective this day of , 1997, is by and between the City of Carlsbad, hereinafter referred to as "ADMINISTERING AGENCY," and the State of California, acting by and through the California Department of Transportation (Caltrans), hereinafter referred to as "STATE." WITNESSETH: WHEREAS, the Congress of the United States has enacted the Intermodal Surface Transportatic Efficiency Act of 1991 to fund programs which include, but are not limited to, the Surface Transportatic Program (RSTP), the Congestion Mitigation and Air Quality Improvement Program (CMAQ), the Transportation Enhancement Activities Program (TEA), and the Bridge Replacement and Rehabilitation Program (HBRR) (collectively the "Programs"); and WHEREAS, the Legislature of the State of California has enacted legislation by which certain Federal funds (RSTP and CMAQ) may be made available for use on local transportation facilities of pub entities qualified to act as recipients of these federal funds in accordance with the intent of Federal law; a WHEREAS, before Federal-aid will be made available for a specific Program project, ADMINISTERING AGENCY and STATE are required to enter into an agreement relative to prosecutio of said project and maintenance of the 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 any Program project unless and until a project-specific Program Supplement to this AGREEMENT for Federal-aid Projects, hereinafter referred to as "PROGRAM SUPPLEMENT," has been executed. 2. The term "PROJECT," as used herein, means that authorized project financed in part wil Federal funds as further described in an "Authorization to Proceed" document executed by STATE, in tl subsequent specific PROGRAM SUPPLEMENT, and in a Federal-aid Project Agreement (PR-2). 3. The Financial commitment of STATE administered federal funds will occur only upon tl execution of ths AGREEMENT, and the execution of each project-specific PROGRAM SUPPLEMEN and PR-2. 1 11/25 Exhibit 2 a e 4. ADMINISTERING AGENCY further agrees,'as a condition to payment of funds oblil to a PROJECT, to comply with all the agreed-upon Special Covenants or Remarks attached to the PROGRAM SUPPLEMENT iden-g and defining the nature of the specific PROJECT. 5. The PROGRAM SUPPLEMENT shall designate the party responsible for implementi the various phases of the PROJECT, the Federal funds requested, and the matching funds to be provic by ADMINISTERING AGENCY and/or STATE. Adoption of the PROGRAM SUPPLEMENT by ADMINISTERING AGENCY and approval by STATE shall cause such PROGRAM SUPPLEMENl be executed and be a part of this AGREEMENT. as though fully set forth herein. Unless otherwise expressly delegated in a resolution by the ADMINISTERING AGENCY'S governing body, the PROGRAM SUPPLEMENT shall be approved and managed by the ADMINISTERING AGENCY'S governing body. 6. ADMINISTERING AGENCY shall conform to all State statutes, regulations and procedures (including those set forth in LPP 95-07, "Reengineering," and subsequent approved revisi . and Local Programs Manual updates, hereafter referred to as REENGINEERED PROCEDURES) reh to the Federal-aid Program, all Title 23 Federal requirements, and all applicable Federal laws, regulatii and policy and procedural or instructional memoranda, unless otherwise designated in the approved PROGRAM SUPPLEMENT. 7. If PROJECT involves work on the State highway system, it shall also be the subject of separate standard form of encroachment pennit and, where appropriate, a cooperative agreement betwe STATE and ADMINISTERING AGENCY to determine how the PROJECT is to be constructed. 8. If PROECT is not on STATE-owned right of way, PROJECT shall be constructed in accordance with REENGINEERED PROCEDURES. The REENGINEERED PROCEDURES descd minimum statewide design standards for local agency streets and roads. The REENGINEERED PROCEDURES for projects off the National Highway System (NHS) allow the STATE to accept eitht the minimum statewide design standards or ADMNSTEFUNG AGENCY-approved geometric design standards. Also, for projects off the NHS, STATE will accept ADMINISTERING AGENCY-approv standard specifications, standard plans, and materials sampling and testing quality assurance programs meet the conditions described in the REENGmERED PROCEDURES. 9. When PROJECT is not on the State highway system but includes work to be performa a railroad, the contract far such work shall be prepared by ADMINISTERING AGENCY or by STAT as the parties may hereafter agree. In either event, ADMINISTERING AGENCY shall enter into an agreement with the railroad providing for future maintenance of protective devices or other facilities installed under the contract. 10. ADMINISTERING AGENCY shall provide or arrange for adequate supervision and inspection of each PROJECT. As provided in .the REENGINEERED PROCEDURES, work may be performed by a consultant(s), provided a fully qualified and licensed employee of ADMINISTERING AGENCY is in responsible charge. 1 1. The Congress of the United States, the Legislature of the State of California, and the Governor of the State of California, each within their respective jurisdiction, have prescribed certain employment practices with respect to work financed with Federal or State funds. ADMINISTERING AGENCY agrees to comply with the requirements of the FAIR EMPLOYMENT PRACTICES ADDENDUM (Exhibit A attached hereto) whenever State funds finance part of the PROJECT, and the NONDISCRIMINATION ASSURANCES (Exhibit B attached hereto). ADMINISTERING AGEN(3 further agrees that any agreement entered into by ADMINISTERING AGENCY with a third party for .. 2 11/2! 0 e performance of work connected with the PROJECT shall incorporate Exhibits A (whenever State funds finance part of the PROJECT) and Exhibit B (with third party's name replacing ADMINISTERING AGENCY) as parts of such agreement. ARTICLE 11 - RIGHTS OF WAY 1. No contract for the construction of a Federal-aid PROJECT shall be awarded until the necessary rights of way have been secured. Prior to the advertising for construction of the PROJECT, ADMINISTERING AGENCY shall certify and, upon request, shall furnish STATE with evidence that necessary rights of way are available for construction purposes or will be available by the time of award the construction contract. 2. ADMINISTERING AGENCY agrees to indemnify and hold STATE hannless from any liability which may result in the event the right of way for a PROJECT is not clear as certified. The furnishing of right of way as provided for herein includes, in addition to all real property required forth( PROJECT, title free and clear of obstructions and encumbrances affecting PROJECT and the payment, b required by applicable law, of damages to real property not actually taken but injuriously affected by PROJECT. ADMINISTERING AGENCY shall pay, from its own non-matching funds, any costs whic arise out of delays to the construction of the PROJECT because utility facilities have not been removed o relocated, or because rights of way have not been made available to ADMINISTERING AGENCY for tl orderly prosecution of PROJECT work. 3. Subject to STATE approval and such supervision as is required in REENGINEEREZD PROCEDURES over ADMINISTERING AGENCY'S right of way acquisition procedures, ADMINISTERING AGENCY may claim reimbursement from Federal funds for expenditures to purcha only necessary rights of way included in PROJECT after crediting PROJECT with the fair market value any excess property retained and not disposed of by ADMINISTERING AGENCY. 4. When real property rights are to be acquired by ADMINISTERING AGENCY for a PROJECT, said ADMINISTERING AGENCY must carry out that acquisition in compliance with the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended 5. Whether or not Federal-aid is to be requested for right of way, should ADMINISTERIN AGENCY, in acquiring right of way for PROJECT, displace an individual, family, business, farm operation, or non-profit organization, relocation payments and services will be provided as set forth in Chapter 5 of Title 23, U.S. Code. The public will be adequately informed of the relocation payments an services which will be available;and, to the greatest extent practicable, no person lawfully occupying rn property shall be required to move from hisher dwelling or to move hidher business or fann operation AGENCY will provide STATE with specific assurances, on each portion of the PROJECT, that no pew will be displaced until comparable decent, safe and sanitary replacement housing is available within a reasonable period of time prior to displacement, and that ADMINISTERING AGENCY'S relocation program is realistic and adequate to provide orderly, timely and efficient relocation of displaced persons for the PROJECT as provided in Federal Highway Programs Manual (FHPM 7-5). without at least 90-days written notice from ADMINISTEEUNG AGENCY. ADMINISTERING 6. In all real property transactions acquired for the PROJECT, following recordation of the deed or such other recorded instrument evidencing title in the name of the ADMINISTERING AGENCY or their assignee, there shall also be recorded a separate document which is an "Agreement Declaring Restrictive Covenants." Said Agreement Declaring Restrictive Covenants will incorporate the assurance: included within Exhibits A and B and Appendices A, B, C and D, as appropriate, when executed by ADMINISTERING AGENCY. 3 111291 0 0 ARTICLE III - MANAGEMENT AND MAINTENANCE OF PROPERTY 1. ADMINISTERING AGENCY will maintain and operate the PROJECT property acquit developed, rehabilitated, or restored for its intended public use until such time as the parties might amel this AGREEMENT to otherwise provide. With the approval of STATE, ADMINISTERING AGENC its successors in interest in the property may transfer this obligation and responsibility to maintain and operate the property to another public entity. 2. Upon ADMINISTERING AGENCY acceptance of the completed Federal-aid constructi contract or upon contractor being relieved of the responsibility for maintaining and protecting a portion the work, the agency having jurisdiction over the PROTECT shall maintain the completed work in a manner satisfactory to the authorized representatives of STATE and the United States. If, within 90 da after receipt of notice from STATE that a PROJECT, or any portion thereof, under ADMINISTERING AGENCY'S jurisdiction is not being properly maintained and ADMINISTERING AGENCY has not satisfactorily remedied the conditions complained of, the approval of future Federal-aid projects of ADMINISTERING AGENCY will be withheld until the PROJECT shall have been put in a condition o maintenance satisfactory to STATE and the Federal Highway Administration. The prov~ions of t.hls section shall not apply to a PROJECT which has been vacated through due process of law. 3. The maintenance referred to in paragraph 2, above, includes not only the physical condil of the PROJECT but its operation as well. PROJECT shall be maintained by an adequate and well-train staff of engineers and/or such other professionals and technicians as the project requires. Said maintenance staff may be employees of ADMINISTERING AGENCY, another unit of government, or contractor under agreement with ADMINISTERING AGENCY. All maintenance will be performed at regular intervals or as required for efficient operation of the complete PROJECT improvements. ARTICLE IV - FISCAL PROVISIONS 1. The PROJECT, or portions thereof, must be included in a Federally-approved Statewide Transportation Improvement Program (FSTIP) prior to ADMINISTERING AGENCY submittal of the "Request for Authorization." 2. State and Federal funds will not participate in PROJECT work performed in advance of approval of the "Authorization to Proceed." The parties shall execute a PROGRAM SupPLEMENT between STATE and AD"ERING AGENCY subsequently incorporating the "Authorization to Proceed." 3. ADMINISTERING AGENCY may submit invoices in arrears for reimbursement of participating PROJECT costs on a monthly or quarterly progress basis once the PROJECT PROGRAM SUPPLEMENT has been executed by STATE and the PR-2 has been executed by FHWA. The total of i amounts claimed, plus any required matching funds, must not exceed the actual total allowable costs of a completed engineering work, right of way acquisition, and construction. 4. Invoices shall be submitted on ADMINISTERING AGENCY letterhead and shall include this AGREEMENT number, Federal-aid project number, and Progress billing number for the PRO= and shall be in accordance with REENGINEERED PROCEDURES. 5. The estimated total cost of PROJECT, the amounts of Federal-aid programmed, and the matching amounts agreed upon may be adjusted by mutual consent of the parties hereto in a Finance LetterDetail Estimate and a PR-2 document which are to be considered as part of this AGREEMENT. Federal-aid program amounts may be increased to cover PROJECT cost increases only if such funds are available and FHWA concurs with that increase. 4 11/29/S 0 0 6. When additional federal-aid funds are not available, the ADMINISTERING AGENCY agrees that the payment of Federal funds will be limited to the amounts approved by the PR-2, or its modification (PR-2A), and agrees that any increases in PROJECT costs must be defrayed with ADMINISTERING AGENCY funds. 7. ADMINISTERING AGENCY shall use its ovmnonfederal-aid funds to finance the loca share of eligible costs and all expenditures ruled ineligible for financing with Federal funds. STATE sh; make the determination of ADMINISTERING AGENCY cost eligibility for Federal fund financing. 8. Any overpayment to ADMINISTERING AGENCY of amounts invoiced shall be retumt to STATE by ADMINISTERING AGENCY upon written demand. 9 - Should ADMINISERNG AGENCY fail to rehd aLl moneys due STATE as provided hereunder or should ADMINISTERING AGENCY breach this Agreement by failing to complete PROJECT, then, within 30 days of demand, or within such other period as may be agreed to in writing between the parties hereto, STATE, acting through the State Controller, the State Treasurer,, or any othel public agency, may withhold or demand a transfer of an amount equal to the amount owed to STATE frc future apportionments, or any other funds due ADMINISTERING AGENCY from the Highway Users Tax Fund or any other funds andor may withhold approval of future ADMINISTERING AGENCY Federal-aid projects. 10. Should ADMINISTERING AGENCY be declared to be in breach of this AGREEMEN'I otherwise in default thereof by STATE, and if ADMINISTERING AGENCY is constituted as a joint powers authority, special district, or any other public entity not directly receiving funds through the Stab Controller, STATE is authorized to obtain reimbursement from whatever sources of funding are availab: including the withholding or transfer of funds, pursuant to Article IV - 9, from those constituent entities comprising a joint powers authority or by bringing of an action against ADMINISTERING AGENCY c its constituent member entities, to recover all funds provided by STATE hereunder. ARTICLE V - RETENTION OF RECORDWAUDITS 1. For the purpose of determining compliance with Public Contract Code Section 101 15, et. seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et, seq., when applicable, i other matters connected with the performance of the Agreement pursuant to Government Code Section 10532, ADMINISTEWG AGENCY and any third party under contract with ADMINISTEM AGENCY shall retain all original records to the project financed with Federal funds and shall make rec01 available upon request by Federal and State representatives. Following fmd settlement of the project co; with FHWA the recordddocuments may be microfilmed by the ADMINISTEFUNG AGENCY, but in a event shall be retained for a period of three years from STATE payment of the final voucher, or a four-y period from the date of the final payment under the contract, whichever is longer. ADMINISTERING AGENCY shall retain recordddocuments longer if required in writing by STATE. 2. Per the Single Audit Act of 1984, any ADMINISTEFUNG AGENCY that receives $lOO,O00.00 or more per fscal year in Federal Financial Assistance shall have an audit performed by an independent audit firm per the Single Audit Act - (see OMB-A128, "Audits of State and Local Governments"). ARTICLE VI - FEDERAL LOBBYING ACTIVITIES CERTIFICATION 1. By execution of this AGREEMENT, ADMINISTERING AGENCY certifies, to the best the signatory officer's knowledge and belief, that: 5 11/29) 0 0 A. No STATE or Federal appropriated funds have been paid or will be paid, by or o behalf of ADMINISTERING AGENCY, to any person for influencing or attempting to influence an officer or employee of any STATE or Federal agency, a Member of the State Legislature or United State Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding of any STATE or Federal contract including th Agreement, the making of any STATE or Federal loan, the entering into of any cooperative contract, anc the extension, continuation, renewal, amendment, or modifkation of any STATE or Federal contract, grant, loan, or cooperative contract. B . If any funds other than Federal appropriated funds have been paid, or will be paic to any person for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress or an employee of a member of Congress in connection with this Agreement, grant, local, or cooperative contract, ADMINISTERING AGENCY sh complete and submit Standard Form-LLL, "Disclosure Form to Rep Lobbying,'' in accordance with the form instructions. C. This certification is a material representation of fact upon which reliance was plact when this Agreement was made or entered into. Submission of this certification is a prerequisite for making or entering into this Agreement imposed by Section 1352, Title 31, U.S. Code. Any party who fails to fie the required certification shall be subject to a civil penalty of not less than Sl0,OOO and not more than $lOO,OOO for each such failure. 2. ADMINISTERING AGENCY also agrees by signing this document that the language of this certification will be included in all lower tier sub-agreements which exceed $lOO,OOO and that all SUC sub-recipients shall certify and disclose accordingly. ARTICLE VI1 - MISCELLANEOUS PROVISIONS 1. Neither STATE nor any offlcer or employee thereof shall be responsible for any damage ( liability occurring by reason of anything done, or omitted to be done, by ADMINISTERING AGENCY under, or in connection with, any work, authority or jurisdiction delegated to ADMINISTERING AGENCY under this AGREEMENT. It is understood and agreed that, pursuant to Government Code Section 895.4, ADMINISTERING AGENCY shall fully defend, indemnify and save harmless STATE, its officers, and employees from all claims, suits or actions of every name; kind and description brought for, or on account of, injury (as defmed in Government Code Section 810.8) occurring by reason of anything done, or omitted to be done, by ADMINISTERING AGENCY under, or in connection with, a work, authority or jurisdiction delegated to ADMINISTERING AGENCY under this Agreement. STAT reserves the right to represent itself in any litigation in which STATE'S interests are at stake. 2. Neither ADMINISTERING AGENCY nor any officer or employee thereof, shall be responsible for any damage or liability occurring by reason of anything done, or omitted to be done, by STATE under, or in connection, with any work, authority, or jurisdiction delegated to STATE under this AGREEMENT. It is also understood and agreed that, pursuant to Government Code Section 895.4, STATE shall fully indemnify and hold ADMINISTERING AGENCY harmless from any liability impose for injury (as defined by Government Code Section 810.8) occurring by reason of anything done, or omitted to be done, by STATE under, or in connection with, any work, authority, or jurisdiction delegatt to STATE under this Agreement. ADMINISTERlNG AGENCY reserves the right to represent itselfin any litigation in which ADMINISTERING AGENCY'S interests are at stake. 3. ADMINISTERING AGENCY and the offkers and employees of ADMINISTERING AGENCY, when engaged in the performance of this Agreement, shall act in an independent capacity and not as officers, employees or agents of STATE. 6 1 1/29/5 0 0 4. STATE may terminate this AGREEMENT with ADMINISTERING AGENCY should ADMINISTERING AGENCY fail to perform the covenants herein contained at the time and in the mu manner deemed proper by STATE. If STATE terminates this AGREEMENT with ADMINISTERTNG AGENCY, STATE shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENC under this AGREEMENT prior to termination, provided, however, that the cost of PROJECT completil to STATE shall first be deducted from any sum due ADMINISTERING AGENCY under this AGREEMENT, and the balance, if any, shall then be paid ADMINISTERING AGENCY upon &man( 5. Without the written consent of STATE, this AGREEMENT is not assignable by herein provided. In the event of such termination, STATE may proceed with the PROJECT work in ax ADMINISTERING AGENCY either in whole or in part. 6. No alteration or variation of the terms of this AGREEMENT shall be valid unless made writing and signed by the parties hereto, and no oral understanding or Agreement not incorporated here] shd be binding on any of the parties hereto. 7. ADMINISTERING 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 bon; AGENCY for the purpose of securing business. For breach or violation of this warranty, STATE has 1 right to annul this AGREEMENT without liability, pay only for the value of the work actually performe or in STATE'S discretion, to deduct from the price of consideration, or otherwise recover, the full amolr of such commission, percentage, brokerage, or contingent fee. fide employees or bona fide established cornmerclal or selling agencies maintained by AD"ElUl 8. In accordance with Public Contract Code Section 10296, ADMINISTERING AGENCY hereby certifies under penalty of perjury that no more than one final unappealable finding of contempt oj court by. a Federal court has been issued against ADMINISTERING AGENCY within the immediate preceding two-year period because of ADMINISTERING AGENCY'S failure to comply with an order t a Federal court that orders ADMINISTERING AGENCY to comply with an order of the National Lab0 Relations Board. 9. ADMINISTERING AGENCY shall disclose any financial, business, or other relationshi with STATE or the FHWA that may have an impact upon the outcome of this AGREEMENT. ADMINISTERING AGENCY shall also list current contractors who may have a financial interest in the outcome of this AGREEMENT. 10. ADMMISTERNG 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 under tl AGREEMENT. 11. ADMTNISTERJNG AGENCY wanants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any STAT employee. For breach or violation of this warranty, STATE shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the work actually performed, or to deduct from the PROGRAM SUPPLEMENT price or otherwise recover the full amount of such rebate, kickbac or other unlawful consideration. 12. . This Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the State Legislature that may affect the provisions, terms, or funding of this AGREEMENT in any manner. 7 11/29! e e .. ARTICLE VI11 - TERMINATION OF AGREEMENT 1. This Agreement and any PROGRAM SUPPLEMENT(s) executed under this AGREEIvENT shall terminate upon 60 days' prior written notice by STATE. 2. Each separate PROGRAM SUPPLEMENT shall separately establish the term and fundi limits for each described PROJECT funded under this Federal-aid program. No STATE or FHWA fun are obligated against this AGREEMENT. IN WITNESS WHEREOF, the parties have executed this AGREEMENT by their duly authoriz, officers, STATE OF CALIFORNIA CITY OF CARLSBAD DEPARllbENTOFWS~TA~~ BY B Chief, Office of Local Programs Project Implementation CLAUDE A. LEWIS, Mayor ADMINISTERING AGENCY Representative Name & Title (Authorized Governing Body Representative) Date Date July 25, 1997 8 1112915 0 0 EXHIBIT A FAIR EMPLOYMENT PRACTICES ADDENDUM 1. In the performance of this Agreement, ADMINISmwG AGENCY will not - against any employee for employment because of race, color, sex, religion, ancestry or national ongin. employment, without regard to their race, sex, actual or perceived sexual orientation, color, religion, ancestry, or national origin. Such action shall include, but not be limited to, the following: employme1 upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of p or other forms of compensation; and selection for training, including apprenticeship. ADMINIS'I'Em AGENCY shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section. ADMINISTERING AGENCY will take affiiative action to ensure that employees are treated during 2. ADMINISTERING AGENCY will permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the SUI Fair Employment and Housing Commission, or any other agency of the State of California designated t STATE, for the purposes of investigation to ascertain compliance with the Fair Employment section oft Agreement. 3. Remedies for Willful Violation: (a) STATE may determine a willful violation of the Fair Employment provision to ha occurred upon receipt of a final judgment to that effect from a court in an action u which AJXUI"IMT.ERING AGENCY W~S a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigate and determined that ADMINISTERING AGENCY has violated the Fair Employ- ment Practices Act and had issued an order under Labor Code Section 1426 whicl has become final or has obtained an injunction under Labor Code Section 1429. (b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate this Agreement either in whole or in part, and any loss or damag sustained by STATE in securing the goods or services thereunder shall be borne and paid for by AD"ERING AGENCY and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or thereafter may become due to ADMINISTERING AGENCY, the difference between the price named in the Agreement and the actual cost thereof to STATE to cure ADMINISTERING AGENCY'S breach of this Agreement. 9 11/29/9! 0 m EXHIBIT B NONDISCRIMINATION ASSURANCES ADMINISTERING AGENCY HEREBY AGREES THAT, as a condition to receiving any Fd financial assistance from the STATE, acting for the U.S. Department of Transportation, it will comply with Title VI of the Civil Rights Act of 1964,78 Stat. 252,42 U.S.C. 2000d-42 U.S.C. 2OOOd-4 (hereinafter referred to as the ACT), and all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, "Nondiscrimination in Federally-Assisted Programs of the Department of Transportation - Effectuation ( Title VI of the Civil Rights Act of 1964" (hereinafter referred to as the REGULATIONS), the Federal4 Highway Act of 1973, and other pertinent directives, to the end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person in the United States shall, on the grounds 0: race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied benefits of, or be otherwise subjected to discrimination under any program or activity for which ADMINISTERING AGENCY receives Federal fmancial assistance from the Federal Department of Transportation, ADMINISTERING AGENCY HEREE3Y GIVES ASSURANCE THAT ADMINISTERING AGENCY will promptly take any measum neceSSary to effectuate this agreement. This assurance is required by subsection 21.7(a) (1) of the REGULATIONS. More specifically, and without limiting the above general assurance, ADMINISTERING AGENCY hereby gives the following specific assurances with respect to its Federa" Program: 1. That ADMINISTERING AGENCY agrees that each "program" and each "facility" as defined in subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a "program") conducted, or will be (with regard to a "facility") operated in compliance with all requiremen imposed by, or pursuant to, the REGULATIONS. 2. That ADMINISTERING AGENCY shall insert the following notification in d.solicitatic for bids for work or material subject to the REGuLATlONS made in connection with the Federal-aid Programmd, in adapted form, in all proposals for negotiated agreements: ADMlMSTERING AGENCY hereby notifks all bidders that it will affirmatively insure that in any agreement entered into pursuant to this advertisement, minority ' business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, Sex, nationd origin, religion, age, or disability in consideration for an award. 3. That ADMINISTERING AGENCY shall insert the clauses of Appendix A of this assurance in every agreement subject to the ACT and the REGULATIONS. 4. That the clauses of Appendix B of this Assurance shall be included as a covenant running with the land, in any deed effecting a transfer of real property, structures, or improvements thereon, or interest therein. 5. That where ADMINISTEFUNG AGENCY receives Federal financial assistance to constrt a facility, or part of a facility, the Assurance shall extend to the entire facility and facilities operated in connection therewith. 10 1112915 0 e 6. That where ADMINISTERING AGENCY receives Federal financial assistance in the form, or for the acquisition, of real property or an interest in real property, the Assurance shall extend to rights to space on, over, or under such property. 7. That ADMINISTERING AGENCY shall include the appropriate clauses set forth in Appendix C and D of this Assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the ADMINISTERING AGENCY with other parties: Appendix C; (a) for the subsequent transfer of real property acquired or improved under the Feder aid Program; and Appendix D; (b) for the construction or use of or access to space on, over, or under real property 8. That this assurance obligates ADMINISTERING AGENCY for the period during which acquired, or improved under the Federal-aid Program. Federal financial assistance is extended to the program, except where the Federal financial assistance is t provide, or is in the form of, personal property or real property of interest therein, or structures, or improvements thereon, in which case the assurance obligates ADMINISTERING AGENCY or any transferee for the longer of the following periods: (a) the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision o similar seMces or benefits; or (b) the period during which ADMINISTERING AGENCY retains ownership or possession of the property. 9. That ADMINISTERING AGENCY shall provide for such methods of administration fol the program as are found by the U.S. Secretary of Transportation, or the official to whom he delegates specific authority, to give reasonable guarantee that ADMINISTERING AGENCY, other recipients, sul grantees, applicants, sub-applicants, transferees, successors in interest, and other participants of Federa financial assistance under such program will comply with all requirements imposed by, or pursuant to, t ACT, the REGULATIONS, this Assurance and the Agreement. 10. That ADMINISTERING AGENCY agrees that the United States and the State of Califor have a right to seek judicial enforcement with regard to any matter arising under the ACT, the REGULATIONS, and this Assurance. THIS ASSURANCE is given in consideration of and for the purpose of obtaining any and all Federal grants, loans, agreements, property, discounts or other Federal financial assistance extended aft the date hereof to ADMINISTERING AGENCY by STATE, acting for the U.S. Department of Transportation, and is binding on ADMINISTERING AGENCY, other recipients, subgrantees, applicants, sub-applicants, transferees, successors in interest and other participants in the Federal-aid Highway Program. 11 11/29 e e APPENDIX A TO EXHIBIT B During the performance of this Agreement, ADMINISTERING AGENCY, for itself, its assign and successors in interest (hereinafter collectively referred to as ADMINISTERING AGENCY) agrees follows: (1) Compliance with Regulations: ADMINISTERING AGENCY shall comply with the regulations relative to nondiscrimination in Fededly assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement (2) Nondiscrimination: ADMIN)[STERING AGENCY, with regard to the work performed it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. ADMINISTERING AGENCY shall not participate either directly 01 indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employrr practices when the agreement covers a program set forth in Appendix B of the REGULATIONS. (3) Solicitations for Sub-agreements. Includin? Procurements of Materials and Euuiment: all solicitations either by competitive bidding or negotiation made by ADMINISTERING AGENCY for work to be performed under a Sub-agreement, including procurements of materials or leases of equipm each potential sub-applicant or supplier shall be notified by ADMINISTEZUNG AGENCY of the ADMINISTERING AGENCY'S obligations under this Agreement and the REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and ReDort& ADMINISTERING AGENCY shall provide all information a: reports required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access ADMINISTERING AGENCY'S books, records, accounts, other sources of information, and its faciliti as may be determined by STATE or FHWA to be pertinent to ascertain compliance with such REGULATIONS or directives. Where any information required of ADMINISTERING AGENCY is ir the exclusive possession of another who fails or refuses to furnish this infomation, ADMINISTERINC AGENCY shall so certify to STATE or the FHWA as appropriate, and shall set forth what efforts ADMINISTERING AGENCY has made to obtain the information. (5) &nctions for Noncompliance: In the event of ADMINISTERING AGENCY'S noncompliance with the nondiscrimination provisions of this agreement, STATE shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: (a) withholding of payments to ADMINISTERXNG AGENCY under the Agreement UI ADMINISTERING AGENCY complies; andor (b) cancellation, termination or suspension of the Agreement, in whole or in part. (6) Incorporation of Provisions: ADMIMSTEEUNG AGENCY shall include the provisions ( paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. ADMINISTERING AGENCY shall talce such action with respect to any sub-agreement or procurement STATE or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event ADMINISTERING AGENCY becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, ADMINISTERING AGENCY may request STATE enter into such litigation to protect the interests of STATE, and, in addition, ADMINISTERING AGENCY may request the United States to enter into sucl litigation to protect the interests of the United States. 12 11/29/ a 0 APPENDIX B TO EXHIBIT B The following clauses shall be included in any and all deeds effecting or recording the transfer (1 PROJECT real property, structures or improvements thereon, or interest therein from the United States (GRANTING CLAUSE) NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon 1 condition that ADMINISTERING AGENCY will accept title to the lands and maintain the project constructed thereon, in accordance with Title 23, United States Code, the Regulations for the Administration of Federal-aid for Highways and the policies and procedures prescribed by the Federal Highway Administration of the Department of Transportation and, also in accordance with and in compliance with the Regulations pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d to 2000d-4), does hereby remise, release, quitcld and convey unto the ADMINISTERING AGENCY all the right, title, and interest of the U.S. Departme: of Transportation in, and to, said lands described in Exhibit “A attached hereto and made a part hereof. (HABENDUM CLAUSE) TO HAVE AND TO HOLD said lands and interests therein unto ADMINISTERING AGENCY and its ~uccessors forever, subject, however, to the covenant, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the ~~al property or structures are used for a purpose for which Federal fmancial assistance is extended or for another purpos involving the provision of similar services or benefits and shall be binding on ADMINISTERING AGENCY, its successors and assigns. ADMINISTERING AGENCY, in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, (1) that no person shall on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, ( under such lands hereby conveyed (;) (and) * (2) that ADMINISTEFUNG AGENCY shall use the lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended (;) and Non-discrimination in Federally-assisted programs of the Department of Ttan~p”i011- (3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, thc U.S. Department of Transportation shall have a right to re-enter said lands and facilities 01 said land, and the above-described land and facilities shall thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this deed.* * Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964. 13 1 1129191 0 APPENDIX C TO EXHIBIT B The following clauses shall be included in any and all deeds, licenses, leases, permits, or simila instruments entered into by ADMINISTERING AGENCY, pursuant to the provisions of Assurance 7(; of Exhibit B. The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add "as covenant running with the land") that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Departmen1 of Transportation progra or activity is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. (Include in licenses, leases, permits, etc.)* That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERIN< AGENCY shall have the right to terminate the (license, lease, permit etc.) and to re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never bt made or issued. (Include in deeds)* That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING AGENCY shall have the right to re-enter said land and facilities thereon, and the above-described lands and facilities shall thereupon revert to and vest in and become the absolute property of ADMINISTERIN AGENCY and its assigns. .. * Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964. .. 14 11129/9 e @ APPENDIX D TO EXHIBIT B The following shall be included in all deeds, licenses, leases, permits, or similar agreements entered into by the AD"ERING AGENCY, pursuant to the provisions of Assurance 7 (b) of Exhi bit B. The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal representatives, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds, and leases add "as a covenant running with the land") that: (1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination i~ the use of said facilities; (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the ground of race, color, sex, national origin, religion, age ordisability shall be excluded from participation in; denied the benefits of, or otherwise be subjected to discrimination; and (3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with the Regulations. (Include in licenses, leases, permits, etc.)* That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING AGENCY shall have the right to terminate the (license, lease, permit, etc.) and to re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never bee made or issued, (Include in deeds)* That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING AGENCY shall have the right to re-enter said land and facilities thereon, and the above-described lands and facilities shall thereupon revert to and vest in and become the absolute property of ADMINlSTERTNC AGENCY, and its assigns. ~ ~~ ~~ ~ ~ ~ ~ ~~~~- * Reverter clause and related language to be used only when it is determined that such a claw is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964. 15 11/29/95