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HomeMy WebLinkAbout2010 CON SANDAG - Sweetwater River Bike Path Gap Closure ProjectNOTE TO FILE 01-19-11 IN THE MATTER OF: Resolution of the City Council of the City of National City authorizing the Mayor to execute a Grant Agreement in the amount of $130,000 between the San Diego Association of Governments (SANDAG) and the City of National City for the Sweetwater River Bike Path Gap Closure Project along Plaza Bonita Road within National City, and funded by the Transportation Development Act/Transnet Bicycle, Pedestrian, and Neighborhood Safety Program. Please note the following: A FULLY EXECUTED ORIGINAL GRANT AMENDMENT WAS NEVER FILED WITH THE OFFICE OF THE CITY CLERK ORIGINATING DEPARTMENT: _ CDC Housing & Grants _ City Attorney _ Human Resources _ City Manager _ MIS _ Community Svcs. _ Planning X Engineering _ Police Finance Public Works Fire 01-07-10 — Forwarded to Steve Manganiello in Engineering three (3) original partially executed Agreements to process for signature NTF TDA/TransNet BICYCLE, PEDESTRIAN AND NEIGHBORHOOD SAFETY PROGRAM FISCAL YEAR 2010 GRANT AGREEMENT 5001209 BETWEEN THE SAN DIEGO ASSOCIATION OF GOVERNMENTS AND CITY OF NATIONAL CITY REGARDING SWEETWATER RIVER BIKE PATH GAP CLOSURE - PLAZA BONITA ROAD THIS GRANT AGREEMENT 5001209 ("Agreement") is made this 5th day of Jan. , 2010, by and between the San Diego Association of Governments (hereinafter referred to as "SANDAG"), 401 B Street, Suite 800, San Diego, CA, and the City of National City, 1243 National City Blvd., National City, CA (hereinafter referred to as "Grantee"). The following recitals are a substantive part of this Agreement: RECITALS In November 2004. the voters of San Diego County approved SANDAG Ordinance 04-01, which extended the ]ransNet half -cent sales and use tax through 2048 (Extension Ordinance). B. The Extension Ordinance contains provisions to fund the Bicycle, Pedestrian, and Neighborhood Safety Program (BPNSP), which began being funded by the Extension Ordinance on April 1, 2008. C. The SANDAG Board of Directors also approved programming of approximately $3 million in Transportation Development Act, Article 3, Bicycle and Pedestrian Facilities and Programs (TDA funds) on June 26, 2009, by Resolution No. 2009-30. In April, 2009, SANDAG issued a Request for Proposals from local jurisdictions in San Diego County wishing to apply for a portion of the BPNSP Funding/TDA Funds for use on capital improvement and planning projects meeting certain criteria. Both BPNSP Funding and TDA funds were eligible funding sources for the BPNSP (BPNSP Funding). F. Grantee successfully applied for BPNSP Funding for the following project: Sweetwater River Bike Path Gap Closure - Plaza Bonita Road (hereinafter referred to as the "Project"). The scope of work, schedule, and budget for the Project is included as Attachment A. G. The purpose of this Agreement is to establish the terms and conditions for SANDAG to provide Grantee with funding to implement the Project. H. Grantee will receive up to $7,500 of the grant monies awarded to this Project for staff costs. Grantee has requested that SANDAG staff provide project management services and provide engineering and environmental planning services for the Project through one of SANDAG's 1 existing engineering, environmental, and design on -call service contracts for the remaining amount of the grant ($122,500). Such an agreement would allow for engineering and environmental planning services on the Project in the most time -effective manner. I. Although SANDAG will work with Grantee on project management and provide Grantee with assistance in engineering, environmental, and design services, SANDAG will not be responsible for Project construction or hold any substantial control of the Project. NOW, THEREFORE, it is agreed as follows: Section 1. Definitions A. Application. 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. B. Agreement. This Grant Agreement, together with all attachments hereto, which are hereby incorporated into this Agreement and contain additional terms and conditions that are binding upon the parties. C. Approval, Authorization, Concurrence, Waiver. A 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 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. D. Approved Project Budget. The most recent statement of the costs of the Project, the maximum amount of assistance from SANDAG for which 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 Attachment A. BPNSP Funds and Funding. Funding from the TransNet Extension Ordinance for the Bicycle, Pedestrian, and Neighborhood Safety Program and TDA Article 3 Funds. F. Grantee. The local jurisdiction that is the recipient of BPNSP Funding under this Agreement. If Grantee enters into agreements with other parties to assist with the implementation of the Project, each participant in, member of, or party to that agreement is deemed a "subgrantee" and, for purposes of compliance with applicable requirements of the Agreement for its Project, will be treated as a Grantee. G. Maximum SANDAG Contribution. Grantee submitted an application and was evaluated based on its representation that it would abide by a budget for the Project, which has been finalized and attached to this Agreement as the Approved Project Budget (Attachment A). 2 Based on the Approved Project Budget, the maximum amount of BPNSP Funding SANDAG will pay to Grantee for amounts invoiced under this Agreement is $130,000. H. Subgrantee. Any contractor or consultant, at any tier, paid directly or indirectly with funds flowing from this Agreement for the Project. Transportation Development Act Funds (TDA Funds). Article 3 Bicycle and Pedestrian Facilities Programs Funds. Section 2. Project Implementation A. General. The Grantee agrees to carry out the Project as follows: 1. Project Description. Grantee agrees to perform the work as described in the Project Description/Scope of Work attached as Attachment A. 2. Effective Date. The effective date of this Agreement or any amendment hereto is the date on which this Agreement or an amendment is fully executed. The Grantee agrees to undertake Project work promptly after receiving notice that SANDAG has awarded BPNSP Funding 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 Extension Ordinance. 4. Project Schedule. Grantee agrees to complete the Project according to the Project Schedule (attached hereto as Attachment A) and in compliance with the Use -It -or -Lose - It Policy (attached hereto as Attachment B). 5. Project Implementation and Oversight. Grantee agrees to comply with the Project Implementation and Oversight Requirements attached hereto as Attachment C. Additionally, if Grantee hires a consultant to carry out professional services, funded under this Agreement, Grantee shall prepare an Independent Cost Estimate (ICE) prior to soliciting proposals; publicly advertise for competing proposals for the work; use cost as an evaluation factor in selecting the consultant; document a Record of Negotiation (RON) establishing that the amount paid by Grantee for the consultant services is fair and reasonable; and pass through the relevant obligations in this Agreement to the consultant. if Grantee hires a contractor to carry out construction services funded under this Agreement, Grantee shall prepare an Independent Cost Estimate (ICE), (e.g., a construction cost estimate) prior to soliciting proposals; publicly advertise for competing bids for the work; award the work to the lowest responsive and responsible bidder; document a Record of Negotiation (RON) establishing that the amount paid by Grantee for the construction services is fair and reasonable; and pass through the relevant obligations in this Agreement to the contractor. 3 6. Changes to Project Composition. This Agreement was awarded to Grantee based on the application submitted by Grantee, which contained representations by Grantee regarding project parameters, project proximity to transit, and other criteria relevant to evaluating and ranking the Project based on SANDAG BPNSP guidelines. Any substantive deviation from Grantee's representations in the Project Justification during project implementation may require reevaluation or result in loss of funding. If Grantee knows or should know that substantive changes in the Project Justification have occurred or will occur, Grantee will immediately notify SANDAG. SANDAG will then determine whether the Project is still consistent with the overall objectives of the BPNSP and that the changes would not have negatively affected the Project ranking during the grant application process. SANDAG reserves the right to have BPNSP Funding withheld or refunded due to substantive changes to the Project Justification. See Section 9, paragraph F, of this Agreement regarding amendments to the Scope of Work. B. 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. C. Grantee's Responsibility to Extend Agreement Requirements to Other Entities 1. Entities Affected. If an entity other than Grantee is expected to fulfill any responsibilities typically performed by Grantee, the Grantee agrees to assure that the entity carries out Grantee's responsibilities as set forth in this Agreement. 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) 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. D. No SANDAG Obligations to Third Parties. In connection with the Project, 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 4 liabilities to any entity other than the Grantee, including any subgrantee, lessee, or third - party contractor at any tier. E. Changes in Project Performance. 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 Grantee's ability to perform the Project in accordance with the terms of the Agreement. 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, Grantee agrees to send each notice to SANDAG required by this subsection to SANDAG's Office of General Counsel. Grantee further agrees to utilize the procedures set forth in the Use -It -or -Lose -It Policy attached hereto as Attachment B if it anticipates a delay in performance. F. 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 of care. Where approval by SANDAG, the Executive Director, or other representative of SANDAG is indicated in the Scope of Work, it is understood to be conceptual approval only and does not relieve 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 Grantee or its subgrantees. Section 3. Ethics A. Grantee Code of ConductlStandards of Conduct. Grantee agrees to maintain a written code of conduct or standards of conduct that shall govern the actions of its officers, employees, council or board members, or agents engaged in the award or administration of subagreements, leases, or third -party contracts supported with TransNet Ordinance assistance. 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, council or 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. Grantee may set de minimis rules where the financial interest is not substantial, or the gift is an unsolicited item of nominal intrinsic value. 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, 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. 5 1. Personal Conflicts of Interest. Grantee agrees that its code of conduct or standards of conduct shall prohibit the Grantee's employees, officers, council or board members, or agents from participating in the selection, award, or administration of any third - party contract or subagreement supported by BPNSP Funding 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, 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 hut 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 BPNSP Funding 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. Approved Project Budget Except to the extent that SANDAG determines otherwise, in writing, the Grantee agrees as follows: 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 6 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 BPNSP Funding awarded for the Project may be made consistent with applicable laws, regulations, and policies. Prior SANDAG approval is required for transfers of funds between Approved Project Budget categories. Section 5. Payments A. Funding Commitment. Grantee agrees that SANDAG's maximum commitment for the City of National City's Project Costs will not exceed the Maximum SANDAG Contribution of $7,500, payable to the City of National City out of the total grant amount of $130,000. SANDAG's responsibility to make, or, for TDA-funded projects, to authorize the County of San Diego to make payments under this Agreement is limited to the amounts listed in the Approved Project Budget for the Project. Within 30 days of notification to Grantee that specific amounts are owed to SANDAG, whether for excess payments of BPNSP Funding, failure to comply with the Use -It -or -Lose -It Policy (Attachment B), disallowed costs, or funds recovered From third parties or elsewhere, Grantee agrees to remit the owed amounts to SANDAG, including applicable interest, penalties, and administrative charges. B. Payment by SANDAG. SANDAG shall pay up to $7,500 to the City of National City out of the total grant amount of $130,000, or, for TDA-funded projects, authorize the County of San Diego to pay Grantee following receipt and approval of an invoice accompanied by documentation of expenses incurred on the Project. Upon receiving a request for payment and adequate supporting information, SANDAG will make payment, or, for TDA-funded projects, authorize the County of San Diego to make payment for eligible amounts to Grantee within 30 days if Grantee has complied with the requirements of the Agreement including quarterly reporting requirements, has satisfied SANDAG that the BPNSP Funding requested is needed for Project purposes in that requisition period, and is making adequate progress toward Project completion. After Grantee has demonstrated satisfactory compliance with the preceding requirements, SANDAG will reimburse Grantee's apparent allowable costs incurred consistent with the Approved Project Budget for the Project. For TDA-funded Projects, Grantee is advised that the County of San Diego makes payments on the 20`h day of each month, or the following business day. The remaining portion of the $130,000 grant, or $122,500, will not be paid by SANDAG to the City of National City, since SANDAG will be performing the work by SANDAG staff or using SANDAG consultants. However, the full amount of the project costs, up to $130,000, should be recorded for the City of National City's TransNet audit. C. Costs Reimbursed. Grantee agrees that Project costs eligible for BPNSP Funding 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 Scope of Work, 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, 7 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 (see Section 6 Accounting Records), and with accounting principles and procedures approved by the Grantee for its third party contractors and subgrantees, and 8. Eligible for BPNSP Funding as part of the BPNSP. D. TDA Project Eligibility The law specifies that the money should be allocated according to the regulations adopted by SANDAG as the regional transportation planning agency. It also identifies certain categories of eligible projects. These specific project types represent neither an exhaustive list, nor are they listed as priorities (Public Utilities Code Sections 99233.3 and 99234). They are summarized below for reference. • Construction, including related engineering expenses, of bicycle and pedestrian facilities. • Maintenance of bicycle trails provided they are closed to motorized traffic. • Projects serving the needs of commuting bicyclists, including but not limited to, new paths serving major transportation corridors, secure bicycle parking at employment centers, park -and -ride lots, and transit centers where other funds are not available. A comprehensive bicycle and pedestrian facilities plan (no more than once every five years), with an emphasis on bicycle projects intended to primarily accommodate nonrecreational bicycle trips. • Up to 20 percent of the cost to restripe Class II bicycle lanes. Up to 5 percent of the amount available to a city or the county may be expended in conjunction with other funds to support bicycle safety education programs, so long as the funds are not used to fully fund the salary of any one person. E. TransNet Project Eligibility TransNet bicycle funds may be expended for all purposes necessary and convenient to the design, right-of-way acquisition, and construction of facilities intended for use by bicyclists, pedestrian, and neighborhood safety programs. These funds also may be used for programs that help to encourage the use of bicycles/pedestrians, such as secure parking facilities, bicycle/pedestrian promotion programs, and safety programs. 8 F. Excluded Costs 1. In determining the amount of BPNSP Funding SANDAG will provide for the Project, SANDAG will exclude: a. Any Project cost incurred by Grantee before the Effective Date of the Agreement or Amendment thereto; 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; d. Any cost ineligible for SANDAG participation as provided by applicable laws, regulations, or policies. Certain costs at times associated with bicycle and pedestrian projects are not eligible when the benefit provided is not the exclusive use of bicyclists or pedestrians. These instances are listed below. • Curb and gutter are part of the roadway drainage system. As such, newly installed curb and gutter cannot be considered an improvement exclusively for the benefit of the sidewalk or bike lane and are not an eligible expense. • Driveway ramps installed across sidewalks are not for the benefit of pedestrians, and in fact, degrade the pedestrian environment. Claimants may not include the cost of driveway ramps in applications for sidewalk projects. However, the distance across the driveway may be included when computing the per -square - foot cost of the sidewalk. • Where roadway design standards require a roadway shoulder width at least as wide as would be required for a standard bike lane, the cost of the shoulder construction will not be eligible. Appropriate bikeway signage is eligible. Under some circumstances, it may be necessary to remove and replace curb and gutter, driveway ramps, drainage facilities and other existing improvements in order to construct a bikeway or sidewalk. In such cases the cost of this work is most likely eligible, but claimants should carefully document why this is so in the claim submittal. 2. The 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. The 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 Taxpayers' Oversight Committee (ITOC) has been completed, whichever occurs latest. If SANDAG determines that the Grantee is not entitled to receive any portion of the BPNSP Funding requested or paid, SANDAG will notify the Grantee in writing, stating its reasons. Grantee agrees that Project closeout will not alter the 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. G. Maximum SANDAG Participation. Upon receipt of an invoice from Grantee documenting Grantee's incurred and eligible expenses, SANDAG agrees to pay its Maximum Percentage/Amount of SANDAG Participation based on the invoiced amount. Section 6. 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 the Grantee has incurred underlying any payment in which SANDAG has agreed to participate. Section 7. 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 10 all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the 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 be completed within the limits of the Approved Project Budget and Project Schedule. 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. 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 8. 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 final reports, as applicable. B. Project Closeout. Project closeout occurs when SANDAG notifies the Grantee that SANDAG has closed the Project, and either forwards the final BPNSP Funding payment or acknowledges that the 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. Project Use. Grantee was awarded this Agreement based on representations in its grant application regarding the Project's intended use. If the Project is a capital project, Grantee hereby commits to continued use of the Project for the purposes stated in its application for a period of at least five years after completion of construction. SANDAG may require Grantee to refund BPNSP Funding provided for the Project in the event Grantee fails to utilize the Project for its intended purposes as stated in the grant application. Section 9. 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 (Attachment A. 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, as per the Use It or Lose It Policy (Attachment B). 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. 11 B. In the event Grantee encounters difficulty in meeting the Project Schedule or anticipates difficulty in complying with the Project Schedule, the Grantee shall immediately notify the SANDAG Project Manager and shall provide pertinent details, including the reason(s) for the delay in performance and the date by which Grantee expects to complete performance or delivery. This notification shall be informational in character only and receipt of it shall not be construed as a waiver by SANDAG of a project delivery schedule or date, or any rights or remedies provided by this Agreement, including the Use It or Lose It Policy requirements. C. Upon written notice, Grantee agrees that SANDAG may suspend or terminate all or any part of the BPNSP Funding to be provided for the Project if the 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 BPNSP Funding for the Project. D. In general, termination of BPNSP Funding 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 willfully misused BPNSP Funding by failing to make adequate progress, or failing to comply with the terms of the Agreement, SANDAG reserves the right to require Grantee to refund the entire amount of BPNSP Funding provided for the Project or any lesser amount as SANDAG may determine. E. 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 Agreement in writing if the Project Schedule will not be met. An amendment to the Project Schedule may be made at SANDAG's discretion if Grantee's request is consistent with the provisions of the Use -It -or - Lose -It Policy (Attachment B). F. Amendment of Scope. The grant was awarded based on the application submitted by Grantee with the intention that the awarded funds would be used to implement the Project as described in the Scope of Work (Attachment A). Any substantive deviation from the Scope of Work must be approved by SANDAG if grant funds are to he used for such changes. If Grantee believes substantive changes need to be made to the Project, Grantee will immediately notify SANDAG. SANDAG will then determine whether the Project is still consistent with the overall objectives of the BPNSP and that the changes would not have negatively affected the Project ranking during the grant application process. SANDAG reserves the right to have BPNSP Funding withheld or refunded due to substantive Project changes. Section 10. 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 12 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 trom 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 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 appeal to the SANDAG Regional Planning Committee. SANDAG shall respond to a request for mediation within thirty (30) calendar days. The decision of the Regional Planning Committee shall be final. 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 11. 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, provided however, that claims for money due to Grantee from SANDAG under this Agreement may be assigned to a bank, trust company or other financial institution without such approval. Notice of such assignment or transfer shall be promptly furnished to SANDAG in writing. Section 12. Project Manager Grantee has assigned Susan Carter as the Project Manager for the Project. Project Manager continuity and experience is deemed essential in Grantee's ability to carry out the Project in accordance with the terms of this Agreement. Grantee shall not change the Project Manager without notice to SANDAG. 13 Section 13. 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 A Lloyds of London program provided by syndicates of Lloyds of London and other London insurance carriers, providing all participants are qualified to do business in California and the policy provides for an agent for service of process in California. 2. 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. E. Grantee may satisfy the requirements of this Section 13 by maintaining its lawful self -insured status during the period of performance of this Agreement. Section 14. Indemnification and Duty to Defend With regard to any claim, protest, or litigation arising from or related to the Grantee's performance , which is expressly limited to supervising the project design, reviewing plans and attending meetings, in connection with or incidental to the Project or this Agreement, Grantee agrees to 14 defend, indemnify, protect, and hold SANDAG and its agents, officers, Board members, 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 the 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 the 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 the 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. Section 15. Relationship of Parties For purposes of this Agreement, the relationship of the parties is that of independent entities and not as agents of each other or as joint venturers or partners. The parties shall maintain sole and exclusive control over their personnel, agents, consultants, and operations. Section 16. Severability and Integration 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. 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 17. 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 B00 San Diego, CA 92101 Attn: Regional Bike and Pedestrian Program Manager Grantee: City of National City 1243 National City Blvd. National City, CA 91950 Attn: Stephen Manganiello and shall be effective upon receipt thereof. 15 Section 18. 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. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date written above. SAN DIEGO ASSOCIATION OF GOVERNMENTS APPROVED AS TO SUFFICIENCY OF FORM AND LEGALITY: A COLEMAN floe of General Counsel 16 CITY OF NATIONAL CITY FULL NAME:Ron Morrison TITLE: Mayor, City of National City APPROVED AS TO SUFFICIENCY OF FORM AND LEGALITY: FULL NAME: GeorgeEiser TITLE: City Attorney, City of National City ATTACHMENT A SCOPE OF WORK, SCHEDULE, AND BUDGET PROJECT DESCRIPTION: Preparation of an environmental document and final design plans for a Class 1 Bike Path on Plaza Bonita Road, extending north and westerly 2,400 feet from Bonita Mesa road in the City of National City. TASK DELIVERABLES START DATE COMPLETION DATE SANDAG FUNDS Environmental Documentation CEQA Documents October 2009 National City project management SANDAG project management Preliminary Design & Engineering 50% Plan Submittals October 2009 National City project management SANDAG project management Preliminary Design & Engineering 90% Plan Submittals January 2009 National City project management SANDAG project management Final Design 100% Plan Submittals March 2010 National City project management SANDAG project management January 2009 $30,000 S 2, t \ i., $2,500 January 2009 $42,500 000 $1,000 March 2010 $21,250 $1,000 $1,000 April 2010 $21,250 3,300 $3,000 TOTAL $130,000 PROJECT REVENUES GRANTEE'S MAXIMUM FUNDING ALLOWANCE SOURCE FY2010 TOTAL 'T,S00 TransNet $130,000 TOTAL $130,000 17 ATTACHMENT B USE -IT -OR -LOSE -IT POLICY 1. Project Milestone and Completion Deadlines 1.1. This policy applies to all Bicycle, Pedestrian, and Neighborhood Safety Program grant funds, whether from TransNet or another source. By signing a grant agreement for the Bicycle, Pedestrian, and Neighborhood Safety Program, grant recipients agree to the following project delivery objectives. 1.1.1. Capital Grants. The project must be completed according to the schedule provided in the grant agreement, but at the latest, a construction contract must be awarded within two years following execution of the grant agreement, and construction must be completed within eighteen months following award of the construction contract. 1.1.2. Planning Grants. The project must he completed according to the schedule provided in the grant agreement, but at the latest, a consultant contract must be awarded within one year following execution of the grant agreement, and the planning project must be complete within two years following award of the consultant contract. Failure to meet the above deadlines may result in revocation of all grant funds not already expended. 1.2. Grant funds made available as a result of this process may be awarded to the next project on the recommended project priority list from the most recent project selection process, or they may be added to the funds available for the next project funding cycle, at SANDAG's discretion. Any project that loses funding due to failure to meet the deadlines specified in this policy may be resubmitted to compete for funding in a future call for projects. 2. Project Delays and Extensions of up to One Year 2.1. Grant recipients may receive extensions on their project schedules of up to one year for good cause. Extensions of up to twelve months aggregate that would not cause the project to miss a deadline in Sections 1.1.1 or 1.1.2 may be approved by the SANDAG Program Manager for the Bicycle, Pedestrian, and Neighborhood Safety Program. Extensions beyond twelve months aggregate or that would cause the project to miss a deadline in Sections 1.1.1 or 1.1.2 must be approved by the Regional Planning Committee. For an extension to be granted under this Section 2, the following conditions must be met: 2.1.1. For extension requests of up to six months, the grant recipient must request the extension in writing to the SANDAG Program Manager at least two weeks prior to the earliest project schedule milestone deadline for which an extension is being requested. 2.1.2. For extension requests that will cause one or more project milestones to be delayed more than six months, but less than twelve months aggregate, the grant recipient must request an extension in writing to the SANDAG Program Manager at least six weeks prior to the earliest project schedule milestone deadline for which an extension is being requested. 18 2.1.3. The project sponsor seeking the extension must document previous efforts undertaken to maintain the project schedule, the reasons for the delay, and why they were unavoidable, and demo':.crate an ability to succeed in the extended time frame. 2.1.4. If the Program Manager denies an extension request under this Section 2, the project sponsor may appeal within ten business days of receiving the Program Manager's response to the Regional Planning Committee. ';. Extension requests that are rejected by the Regional Planning Committee will result in ten,ti,.:<,tion of the grant agreement and obligation by the project sponsor to return to SANDAG any unexpended funds. Unexpended funds are funds for project costs not incurred prior to rejection of till' extension request by the Regional Planning Committee. 3. Project and Extensions Beyond One Year 3.1. Requests for extensions beyond one year or that will cause a project to miss a deadline in Sections 1.1.1 or 1.1.2 (including those projects that were already granted extensions by the SANDAG Program Manager and are again falling behind schedule) will be considered by the Regional Planning Committee. The Regional Planning Committee will only grant an extension under thin; Section 3 for extenuating conditions beyond the control of the project sponsor, defined as toIlevvs: 3.1.1. Capital Grants 3""1.1. environmental. An extension may be granted when, during the environmental review process, the project sponsor discovers heretofore unknown sites (e.g., archeological, endangered specie) that require additional investigation and mitigation efforts. The project sponsor must demonstrate that the discovery is new and unforeseen. 3.1.1.2. Right -of -Way. Extensions for delays necessary to complete right-of-way acquisition may be granted only when right-of-way needs are identified that could not have been foreseen at the time the grant agreement was signed. 3.1.1.3. Permitting. Delays associated with obtaining permits from external agencies may justify an extension when the project sponsor can demonstrate that every effort has been made to obtain the necessary permits and that the delay is wholly due to the permitting agency. 3.1.1.4. Construction Schedule. Extensions may be granted when unavoidable construction delays create a conflict with restrictions on construction during certain times of the year (for instance, to avoid nesting season for endangered species). 31.1.5. Litigation. Extensions may be granted when a lawsuit has been filed concerning the project being funded. 3.1.1.6. Other. Extensions may be granted due to changes in federal/state policies or laws that can Ile shown to directly affect the project schedule. 19 3.1.2. Planning Grants 3.1.2.1. Changed Circumstances. An extension may be granted for a planning project when circumstances not within the control of the grant recipient, such as an action by an outside agency, require a change in the scope of work for the project. 3.2. The grant recipient shall make its request directly to the Regional Planning Committee, providing a detailed justification for the requested extension, including a revised project schedule and work plan, at least six weeks prior to the earliest project schedule milestone deadline, or deadline in Sections 1.1.1 or 1.1.2, for which an extension is being requested. 3.3. Extension requests that are rejected by the Regional Planning Committee will result in termination of the grant agreement and obligation by the project sponsor to return to SANDAG any unexpended funds. Unexpended funds are funds for project costs not incurred prior to rejection of the extension request. 20 ATTACHMENT C PROJECT OVERSIGHT REQUIREMENTS Capital Grants 1. Contact Information: Grantee must provide SANDAG with contact information for the project manager. Grantee must provide SANDAG with updated contact information in a timely manner if there are any changes to staff assigned. 2. Design Development Meetings: Grantee must provide SANDAG with advance notice (preferably within two weeks) and agendas of all design development meetings, and a meeting summary following the meeting. SANDAG staff may attend any meetings as appropriate. 3. Plan Review: Grantee must submit project design drawings and cost estimates (if available) to SANDAG for review and comment at 30 percent, 60 percent, 90 percent, and 100 percent. SANDAG staff may meet with Grantee to comment on submitted plans and assure substantial conformance. SANDAG may comment on submitted plans regarding: • whether they are consistent with the project proposed in the original grant application, and • consistency with accepted pedestrian/bicycle facility and smart growth design standards. 4. Quarterly Reports: Grantee must submit quarterly reports to SANDAG, detailing accomplishments in the quarter, anticipated progress next quarter, pending issues and actions toward resolution, and status of budget and schedule. 5. Performance Monitoring: SANDAG staff may measure performance of the constructed capital improvements against stated project objectives, and evaluate the overall SGIP. Grantee is expected to meet with SANDAG staff to identify relevant performance measures and data sources, and provide available data and feedback regarding the program as appropriate. Planning Grants 1. Contact Information. Grantee must provide SANDAG with contact information for the project manager. Grantee must provide SANDAG with updated contact information in a timely manner if there are any changes to staff assigned. 2. Stakeholder and Community Meetings. Grantee must provide SANDAG with advance notice (preferably within two weeks) and agendas of all stakeholder and community meetings, and a meeting summary following the meeting. SANDAG staff may attend any meetings as appropriate. 3. Request for Proposals and Consultant Selection. Grantee must submit consultant draft Request for Proposals to SANDAG staff for review and comment. Consultant proposals must also be submitted to SANDAG for review and comment prior to consultant selection. 4. Quarterly Reports. Grantee must submit quarterly reports to SANDAG, detailing accomplishments in the quarter, anticipated progress next quarter, pending issues and actions toward resolution, and status of budget and schedule. 21 RESOLUTION NO. 2010 — 2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A GRANT AGREEMENT IN THE AMOUNT OF $130,000 BETWEEN THE SAN DIEGO ASSOCIATION OF GOVERNMENTS (SANDAG) AND THE CITY OF NATIONAL CITY FOR THE SWEETVVATER RIVER BIKE PATH GAP CLOSURE PROJECT ALONG PLAZA BONITA ROAD WITHIN NATIONAL CITY, AND FUNDED BY THE TRANSPORTATION DEVELOPMENT ACT/TRANSNET BICYCLE, PEDESTRIAN, AND NEIGHBORHOOD SAFETY PROGRAM WHEREAS, on May 5, 2009, per Resolution No. 2009-91, the City Council authorized the filing of a Transportation Development Act (TDA)/TransNet Bicycle, Pedestrian, and Neighborhood Safety Program Grant (BPNSP) application for the Sweetwater River Bike Path Gap Closure Project along Plaza Bonita Road in National City; and WHEREAS, the Sweetwater Bide Path Gap Closure Project (Project) will consist of a Class I Bike Path (for non -motorized use only) along the west side of Plaza Bonita Road from Bonita Mesa Road northerly to the existing Sweetwater River Bike Path, which will "close the gap" in the bikeway network; and WHEREAS, SANDAG and the City of National City desire to enter into a Grant Agreement in the amount of $130,000 for the development of the Project wherein the City will serve as the project sponsor, and provide oversight for the project's environmental design and engineering to assure the City's standard for pedestrian and bicycle safety, facilities design, on - street parking, and compatibility with adjacent land uses are met. Per the Grant Agreement, a budget of $7,500 has been programmed for City staff project management; and WHEREAS, as specified in the Grant Agreement, SANDAG will retain consultant services for project environmental design and engineering, provide project management, and administer project funds. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a Grant Agreement in the amount of $130,000 between the San Diego Association of Governments (SANDAG) and the City of National City for the Sweetwater River Bike Path Gap Closure Project, which will be funded by a Transportation Development Act (TDA)/TransNet Bicycle, Pedestrian, and Neighborhood Safety Program Grant (BPNSP). PASSED and ADOPTED this 5th day of January, 204 ATTEST: F°VMichael R. Dalla, City Clerk Ron Morrison, Mayor APPROVED AS TO FORM: George H.'ser, III City Attorney Passed and adopted by the Council of the City of National City, California, on January 5, 2010 by the following vote, to -wit: Ayes: Councilmembers Morrison, Parra, Sotelo-Solis, Van Deventer, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of Nation- ity, California City erk of the Ci y •,'National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2010-2 of the City of National City, California, passed and adopted by the Council of said City on January 5, 2010. City Clerk of the City of National City, California By: Deputy City of National City, California COUNCIL AGENDA STATEMENT .UIEETING DATE January 5, 2010 AGENDA ITEM NO. 4 ITEM TITLE Resolution of the City Council of the City of National City authorizing the Mayor to execute a Grant Agreement in the amount of $130,000 between the San Diego Association of Governments (SANDAG) and the City of National City for the Sweetwater River Bike Path Gap Closure Project along Plaza Bonita Road in the City of National City funded by the TDA / TransNet Bicycle, Pedestrian and Neighborhood Safety Program (City local match not required) PREPARED BY DEPARTMENT EXT. 4382 Stephen Manganiello AZSA Development Services/Engineering EXPLANATION See attached. Environmental Review X N/A MIS Approval _ Financial Statement Approved By: Account #296-409-500-598-1013: $130,000 (TDA / TransNet BPNSP Grant); $122,500 for SANDAG staff project management and consultant services $7,500 for City staff project management Account No Finance Director STAFF RECOMM DATION A.. pt the r BOARD / CO 1 - ION RECOM DATION N/A ATTACHMENTS (Listed Below) Resolution No. '° ° ° ° - 1. Resolution 2. Grant Agreement A-200 (Rev. 7/03)