HomeMy WebLinkAboutORANGE COUNTY TRANSPORTATION AUTHORITY (OCTA) (29)2
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Return FULLY EXECUTED
Copy to City Clerk, M-30 A-2025-019
COOPERATIVE AGREEMENT NO. C-4-2053
MAR 0 5 2025
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
0. WA(-3) CITY OF SANTA ANA
klam (as-VaneA,(kF)
FOR
FIRST STREET MULTIMODAL BOULEVARD STUDY
THIS COOPERATIVE AGREEMENT (Agreement) is effective this L�day of U 2025
("Effective Date"), by and between the Orange County Transportation Authority, 550 South Main Street,
P.O. Box 14184, Orange California 92863-1584, a public corporation of the State of California (herein
referred to as "AUTHORITY") and the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California
92702, a municipal corporation duly organized and existing under the constitution and laws of the State
of California (herein referred to as "CITY'), each individually known as "PARTY", and collectively referred
to as "PARTIES".
RECITALS:
WHEREAS, AUTHORITY and CITY desire to enter into a Cooperative Agreement to define the
roles and responsibilities related to funding between AUTHORITY and CITY for final design and
construction of the First Street Multimodal Boulevard Study Project as defined in the scope of work
provided in Exhibit A, herein incorporated by reference; (hereinafter referred to as "PROJECT"); and
WHEREAS, the PROJECT is funded with Regional Early Action Planning Grant Program of 2021
(hereinafter referred to as "REAP 2.0") funds; and
WHEREAS, REAP 2.0 is a program that seeks to accelerate progress towards state housing
goals and climate commitments through a strengthened partnership between the state, its regions, and
local entities. REAP 2.0 seeks to accelerate infill housing development, reduce Vehicle Miles Traveled,
increase housing supply at all affordability levels, affirmatively further fair housing, and facilitate the
implementation of adopted regional and local plans to achieve these goals; and
Page 1 of 12
Distributed 3/21/2025
Accounting
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1 COOPERATIVE AGREEMENT NO. C-4-2053
2 BETWEEN
3 ORANGE COUNTY TRANSPORTATION AUTHORITY
4 AND
5 CITY OF SANTA ANA
6 FOR
7 FIRST STREET MULTIMODAL BOULEVARD STUDY
8 THIS COOPERATIVE AGREEMENT(Agreement) is effective this 011k of *bl(W 2025
9 ("Effective Date"), by and between the Orange County Transportation Authority, 550 South Main Street,
10 P.O. Box 14184, Orange California 92863-1584, a public corporation of the State of California (herein
11 referred to as "AUTHORITY") and the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California
12 92702, a municipal corporation duly organized and existing under the constitution and laws of the State
13 of California (herein referred to as"CITY"), each individually known as"PARTY", and collectively referred
14 to as"PARTIES
RECITALS:
15
16 WHEREAS, AUTHORITY and CITY desire to enter into a Cooperative Agreement to define the
17 roles and responsibilities related to funding between AUTHORITY and CITY for final design and
18 construction of the First Street Multimodal Boulevard Study Project as defined in the scope of work
19 provided in Exhibit A, herein incorporated by reference; (hereinafter referred to as"PROJECT"); and
20 WHEREAS, the PROJECT is funded with Regional Early Action Planning Grant Program of 2021
21 (hereinafter referred to as "REAP 2.0°)funds; and
22 WHEREAS, REAP 2.0 is a program that seeks to accelerate progress towards state housing
23 goals and climate commitments through a strengthened partnership between the state, its regions, and
24 local entities. REAP 2.0 seeks to accelerate infill housing development, reduce Vehicle Miles Traveled,
25 increase housing supply at all affordability levels, affirmatively further fair housing, and facilitate the
26 implementation of adopted regional and local plans to achieve these goals; and
Page 1 of 12
COOPERATIVE AGREEMENT NO. C-4-2063
1 WHEREAS, the California Department of Housing and Community Development (HCD)
2 administers REAP 2.0 in accordance with Health and Safety Code sections 50515.06 to 50515.10
3 ("Statues") and REAP 2.0 guidelines for Metropolitan Planning Organizations(MPO) applicants released
4 by HCD pursuant to the Statutes (herein referred to as"REAP 2.0 Guidelines"); and
5 WHEREAS, the Southern California Association of Governments (herein referred to as "SCAG")
6 is the federally designated MPO for Southern California; and
7 WHEREAS, on April 12, 2023, SCAG released a Call for Applications for REAP 2.0; and
8 WHEREAS, the AUTHORITY submitted on behalf of the CITY and was awarded REAP 2.0
9 funding through SCAG for the PROJECT; and
10 WHEREAS, the AUTHORITY'S Board of Directors, at its July 24, 2023, meeting, approved
11 AUTHORITY's financial commitment to the PROJECT of up to Four Million Three Hundred Thousand
12 Dollars ($4,300,000); and
13 WHEREAS, AUTHORITY will provide Four Million Three Hundred Thousand Dollars
14 ($4,300,000) in REAP 2.0 funds to the CITY; and
15 WHEREAS, CITY agrees to act as the lead agency for preliminary engineering, right-of-way,
16 construction and construction management of PROJECT; and
17 WHEREAS, this Agreement defines the specific terms and conditions and funding responsibilities
18 between the PARTIES for completion of PROJECT; and
19 WHEREAS, AUTHORITY and SCAG have entered into a Memorandum of Understanding(MOU)
20 regarding the administration and delivery of projects awarded REAP 2.0 funds.The MOU requires certain
21 flow-down provisions to be included in all agreements entered for this PROJECT. These provisions are
22 contained in Exhibit B to this Agreement ; and
23 WHEREAS, the AUTHORITY's Board of Directors authorized this Agreement on January 27,
24 2025; and
25 WHEREAS, CITY's City Council approved this Agreement on W41 day of
26 Cf JD�(�AA 2025.
Page 2 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as follows:
2 ARTICLE 1. COMPLETE AGREEMENT
3 A. This Agreement, including any attachments incorporated herein and made applicable by
4 reference, constitutes the complete and exclusive statement of the term(s) and condition(s) of this
5 Agreement between AUTHORITY and CITY concerning the PROJECT and it supersedes all prior
6 representations, understandings, and communications. The invalidity in whole or in part of any term or
7 condition of this Agreement shall not affect the validity of other term(s)or conditions(s)of this Cooperative
8 Agreement. The above-referenced Recitals are true and correct and are incorporated by reference
9 herein.
10 B. AUTHORITY's failure to insist on any instance(s)of CITY's performance of any term(s)or
11 condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY's
12 right to such performance or to future performance of such term(s) or condition(s), and CITY's obligation
13 in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall
14 not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized
15 representative of AUTHORITY by way of a written amendment to this Agreement and issued in
16 accordance with the provisions of this Agreement.
17 C. CITY's failure to insist on any instance(s)of AUTHORITY's performance of any term(s)or
18 condition(s)of this Agreement shall not be construed as a waiver or relinquishment of CITY's right to such
19 performance or to future performance of such term(s) or condition(s), and AUTHORITY's obligation in
20 respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not
21 be binding upon CITY except when specifically confirmed in writing by an authorized representative of
22 CITY by way of a written amendment to this Agreement and issued in accordance with the provisions of
23 this Agreement.
24 ARTICLE 2. SCOPE OF AGREEMENT
25 This Agreement specifies the terms and conditions, roles and responsibilities of the PARTIES as
26 they pertain to the subjects and PROJECT addressed herein. Both PARTIES agree that each will
Page 3 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 cooperate and coordinate with the other in all activities covered by this Agreement and any other
2 supplemental agreements that may be required to facilitate purposes thereof.
3 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
4 AUTHORITY agrees to the following responsibilities for the PROJECT:
5 A. AUTHORITY shall provide assistance to CITY in securing the REAP funds.
6 B. AUTHORITY shall not be authorized to program any amount beyond what has been
7 identified in this Agreement as REAP and what is ultimately approved for PROJECT by SCAG.
8 C. AUTHORITY shall review and approve CITY's request for obligation of REAP funds prior
9 to submittal to SCAG.
10 D. AUTHORITY shall allocate the CITY's share of the PROJECT in the amount not-to-
11 exceed Four Million Three Hundred Thousand Dollars($4,300,000)for the PROJECT using REAP funds.
12 E. AUTHORITY shall process all required documents from the CITY and invoice SCAG on
13 behalf of the CITY for the REAP funds.
14 F. AUTHORITY shall submit all status reports as required by SCAG to maintain eligibility for
15 REAP funds.
16 G. AUTHORITY shall inform CITY in writing of any requested changes or delays to the
17 reimbursement of the PROJECT.
18 ARTICLE 4. RESPONSIBILITIES OF CITY
19 CITY agrees to the following responsibilities for the PROJECT:
20 A. CITY shall possess the legal authority to deliver this project and to finance, acquire, and
21 construct the PROJECT consistent with REAP 2.0 Goals and Objectives.
22 B. CITY shall act as the lead agency for the preliminary engineering, right-of-way,
23 construction and construction management of PROJECT.
24 C. CITY is responsible for completing PROJECT in accordance with the funding plan(Exhibit
25 A), and to abide by all SCAG programming guidelines, flow-down provisions (Exhibit B), and any and all
26 other State (California Department of Transportation) requirements.
Page 4 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 D. CITY shall comply with all local and State project delivery requirements including, but not
2 limited to, Disadvantaged Business Enterprise, American with Disabilities Act, and Buy America
3 provisions.
4 E. CITY shall submit applicable National Environmental Policy Act(NEPA)and the California
5 Environmental Quality Act (CEQA) environmental documentation to AUTHORITY.
6 F. CITY shall procure in compliance with all applicable federal, state, and local laws and
7 regulations.
8 G. CITY shall coordinate with AUTHORITY to provide information to the SCAG Project
9 Manager regarding any existing solicitation for the PROJECT. Information shall be provided and a written
10 approval by the SCAG Project Manager shall be obtained. CITY will not advertise or award a contract
11 before SCAG authorization to proceed.
12 H. CITY shall invoice AUTHORITY and provide expenditure reports to AUTHORITY
13 reflecting funds expended for PROJECT and consistent with flow-down provisions, as identified in Exhibit
14 B.
15 I. CITY shall prepare and submit a quarterly report per Exhibit B requirements to
16 AUTHORITY within seven (7) days of the month following the end of each quarter(April, July, October,
17 and January).
18 J. CITY shall prepare and submit invoices and all required reports to AUTHORITY in a timely
19 manner in order to avoid any penalties that could reduce funding to PROJECT.
20 K. CITY agrees that any cost overruns shall be the responsibility of CITY.
21 L. If CITY receives local, state, or federal funds from a non-AUTHORITY source, CITY will
22 not invoice AUTHORITY for the amount received from the other non-AUTHORITY source(s).
23 M. CITY will notify AUTHORITY regarding any non-AUTHORITY revenues received for the
24 PROJECT and AUTHORITY funds may not pay for expenses already supported through these
25 non-AUTHORITY revenues.
26 N. CITY will notify AUTHORITY if REAP 2.0 funds are used for other than the intended
Page 5 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 purposes as defined by federal or state guidelines.
2 O. CITY agrees that AUTHORITY reserves the right to change the fund source programmed
3 to the PROJECT and AUTHORITY would notify CITY of such a change.
4 P. CITY shall maintain and operate the property acquired, developed, rehabilitated,
5 or restored for the life of the resultant facility(ies) or activity.
6 Q. Failure of CITY to abide by conditions above may result in modification of
7 funding, termination of this Agreement, and repayment of the REAP 2.0 funds.
8 ARTICLE 5. REQUEST FOR REIMBURSEMENT
9 In order for CITY to be reimbursed for incurred costs relative to PROJECT, CITY agrees:
10 A. To comply with all flow-down provisions contained in Exhibit B to this Agreement, which
11 are required by the MOU between AUTHORITY and SCAG, and specifically those related to invoicing.
12 B. If CITY uses CITY labor to accomplish PROJECT or services under PROJECT, CITY may
13 utilize its current approved CITY fiscal year budget overhead rate when seeking reimbursement.
14 C. To prepare and submit to AUTHORITY an invoice with supporting documentation within
15 15 days of paying CITY's consultant(s). CITY's invoice shall include allowable PROJECT costs incurred
16 and paid for by CITY. The invoice submitted by CITY shall be signed by an authorized agent who can
17 duly certify the accuracy of the included information.
18 D. The invoice shall be submitted on CITY's letterhead.
19 E. The invoice shall be submitted by CITY, and in duplicate, to AUTHORITY's Accounts
20 Payable Office. Each invoice shall include the following information:
21 1. Agreement Number C-4-2053
22 2. SCAG Project Number OWP No. 305-4926.01
23 3. The total of PROJECT expenditures shall specify the percent and amount of funds to
24 be reimbursed, and include support documentation for all expenses invoiced.
25 4. Progress report with adequate detail describing all work completed.
26 5. The time period covered by the invoice;
Page 6 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 6. Labor(staff name, hours charged, hourly billing rate, current charges, and cumulative
2 charges) performed during the billing period;
3 7. Such other information as requested by AUTHORITY and SCAG as part of Exhibit B,
4 or to reasonably substantiate the validity of an invoice.
5 F. To consult with AUTHORITY's Project Manager for questions regarding non-reimbursable
6 expenses.
7 G. That total payments shall not exceed the maximum obligation specified in Article 6.
8 Maximum Obligation.
9 ARTICLE 6. MAXIMUM OBLIGATION
10 Notwithstanding any provisions of this Agreement to the contrary, AUTHORITY and CITY
11 mutually agree that AUTHORITY's maximum cumulative payment obligation hereunder shall be Four
12 Million Three Hundred Thousand Dollars($4,300,000), unless agreed to and amended by both PARTIES.
13 ARTICLE 7. DELEGATED AUTHORITY
14 Any actions required to be taken by CITY in the implementation of this Agreement, including
15 execution of amendments, are delegated to its Director of Public Works, or designee, and any actions
16 required to be taken by AUTHORITY in the implementation of this Agreement, including execution of
17 amendments, are delegated to AUTHORITY's Chief Executive Officer, or designee.
18 ARTICLE 8. AUDIT AND INSPECTION
19 AUTHORITY and CITY shall maintain a complete set of records in accordance with generally
20 accepted accounting principles. The original records shall be maintained within the CITY limits. Upon
21 reasonable notice, CITY shall permit the authorized representatives of AUTHORITY to inspect and audit
22 all work, materials, payroll, books, accounts and other data and records of CITY for a period of not less
23 than four (4) years after final payment, or until any on-going audit is completed whichever is longer. For
24 purposes of audit, the date of completion of this Agreement shall be the later date of AUTHORITY's
25 payment of CITY's final billing (so noted on the invoice) or SCAG's final payment of all REAP funds to
26 AUTHORITY under this Agreement. AUTHORITY shall have the right to reproduce any such books,
Page 7 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 records, and accounts. The above provision with respect to audits shall extend to and/or be included in
2 construction contracts with CITY's contractor.
3 ARTICLE 9. INDEMNIFICATION
4 A. CITY shall indemnify, defend and hold harmless AUTHORITY, its officers, directors,
5 employees and agents from and against any and all claims (including attorney's fees and reasonable
6 expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, worker's
7 compensation subrogation claims, damage to or loss of use of property alleged to be caused by the
8 negligent acts, omissions or willful misconduct by CITY, its officers, directors, employees or agents in
9 connection with or arising out of the performance of this Agreement.
10 B. AUTHORITY shall indemnify, defend and hold harmless CITY, its officers, directors,
11 employees and agents from and against any and all claims (including attorney's fees and reasonable
12 expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, worker's
13 compensation subrogation claims, damage to or loss of use of property alleged to be caused by the
14 negligent acts, omissions or willful misconduct by AUTHORITY, its officers, directors, employees or
15 agents in connection with or arising out of the performance of this Agreement.
16 C. The indemnification and defense obligations of this Agreement shall survive its expiration
17 or termination.
18 ARTICLE 10. ADDITIONAL PROVISIONS
19 The AUTHORITY and CITY agree to the following mutual responsibilities:
20 A. Term of Agreement: This Agreement shall continue in full force and effect until
21 December 31, 2027, or until all REAP funds have been expended, whichever is later. This Agreement
22 may only be extended upon written mutual consent by both PARTIES.
23 /
24 /
25 /
26 /
Page 8 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 B. Amendment: This Agreement may be amended in writing at any time by the mutual
2 consent of both PARTIES. No amendment shall have any force or effect unless executed in writing by
3 both PARTIES.
4 C. Termination: In the event either PARTY defaults in the performance of any of their
5 obligations under this Agreement or breaches any of the provisions of this Agreement, the non-defaulting
6 Party shall have the option to terminate this Agreement upon thirty (30) days' prior written notice to the
7 other Party.
8 D. Termination for Convenience: Either PARTY may terminate this Agreement for
9 convenience by providing thirty (30) calendar days prior written notice of its intent to terminate for
10 convenience to the other PARTY.
11 E. Compliance with All Laws: AUTHORITY and CITY shall comply with all applicable federal,
12 state, and local laws, statues, ordinances and regulations of any governmental authority having
13 jurisdiction over the PROJECT.
14 F. Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to
15 execute this Agreement on behalf of said PARTIES and that, by so executing this agreement, the
16 PARTIES hereto are formally bound to the provisions of this Agreement.
17 G. Severability: If any term, provision, covenant or condition of this Agreement is held to be
18 invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the
19 remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or
20 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
21 H. Counterparts of Agreement: This Agreement may be executed and delivered in any
22 number of counterparts, each of which, when executed and delivered shall be deemed an original and all
23 of which together shall constitute the same agreement. Electronic signatures will be permitted.
24 I. Assignment: Neither this Agreement, nor any of the PARTIES rights, obligations, duties,
25 or authority hereunder may be assigned in whole or in part by either PARTY without the prior written
26 consent of the other PARTY in its sole and absolute discretion. Any such attempt of assignment shall be
Page 9 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 deemed void and of no force and effect. Consent to one assignment shall not be deemed consent to any
2 subsequent assignment, nor the waiver of any right to consent to such subsequent assignment.
3 J. Obligations To Comply with Law: Nothing herein shall be deemed nor construed to
4 authorize or require any PARTY to issue bonds, notes or other evidence of indebtedness under the terms,
5 in amounts, or for purposes other than as authorized by local, state or federal law.
6 K. Governing Law: The laws of the State of California and applicable local and federal laws,
7 regulations and guidelines shall govern this Agreement.
8 L. Litigation fees: Should litigation arise out of this Agreement for the performance thereof,
9 the court shall award costs and expenses, including attorney's fees, to the prevailing PARTY.
10 M. Notices: Any notices, requests, or demands made between the PARTIES pursuant to this
11 Agreement are to be directed as follows:
12 To CITY: To AUTHORITY:
13 City of Santa Ana Orange County Transportation Authority
14 Traffic Engineering Section/M-43 550 South Main Street
15 20 Civic Center Plaza P.O. Box 14184
16 Santa Ana, CA 92701 Orange, CA 92863-1584
17 Attention: Nabil Saba Attention: Megan Bornman
18 Executive Director, Public Works Agency Senior Contract Administrator
19 Phone: (714) 647-5654 Phone: (714) 560-5064
20 Email: nsaba(@santa-ana.org E-mail: mbornman a@octa.net
21 CC: Alicia Yang
22 OCTA Project Manager
23 Phone: (714) 560-5362
24 E-mail: avana(cDoctamet
25 /
26 /
Page 10 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 N. Successors and Assigns: The provisions of this Agreement shall bind and inure to the
2 benefit of each of the PARTIES hereto, and all successors or assigns of the PARTIES hereto.
3 O. Time is of the Essence: Time is of the essence for the work identified in Exhibit A. All
4 work must be completed no later than December 31, 2027.
5 P. Force Maleure: Either PARTY shall be excused from performing its obligations under this
6 Agreement during the time and to the extent that it is prevented from performing by an unforeseeable
7 cause beyond its control, including but not limited to; any incidence of fire, flood; acts of God;
8 commandeering of material, products, plants orfacilities by the federal,state or local government; national
9 fuel shortage; or a material act or omission by the other PARTY; when satisfactory evidence of such
10 cause is presented to the other PARTY, and provided further that such nonperformance is unforeseeable,
11 beyond the control and is not due to the fault or negligence of the PARTY not performing.
12 /
13 /
14 /
15 /
16 /
17 /
18 /
19 /
20 /
21 /
22 /
23 /
24 /
25 /
26 /
Page 11 of 12
COOPERATIVE AGREEMENT NO. C-4-2053
1 This Agreement shall be effective upon execution by both PARTIES.
2 IN WITNESS WHEREOF, the PARTIES hereto have caused this
3 Agreement No. C-4-2053 to be executed as of the date of the last signature below.
4 CITY OF SANTA ANA ORANGE COUNTY TRANSPORTATION AUTHORITY
5 1)amU U. 0hilson
6 By: Rt Ad By: Darrell E.Johnson(Mar 18,2025 14:21 PDT)
Minh Thai Darrell E. Johnson
7 Assistant City Manager Chief Executive Officer
8
Dated: _ ZS
9 - _\
10 ATTEST: _ ` APPROVED AS TO FORM:
By; By: James Don (Jan 27,2025 14:29 PST)
12 Jennifer L. H II James M. Donich
City Cl General Counsel
13
14 Dated: �L�Z+sZ-,�
15 APPROVED AS TO FORM; APPROVED:
16 r
17 By: By:
Jonathan T. Martinez Kia Mortazavi
18 Assistant City Attorney Executive Director, Planning
19
RECOMMENDED FOR APPROVAL:
20
21 By: 't,
22 R-rNabil Saba, P.E.
Executive Director, Public Works Agency
23
24 Dated:
�$ 225
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Page 12 of 12
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Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
As a recipient of funds from the California Department of Housing and Community Development
(HCD), the Southern California Council of Governments (SCAG) through the Regional Early
Action Planning Grant Program of 2021 (REAP 2.0) has awarded funding to projects meeting the
goals and objectives of the program. The Orange County Transportation Authority (OCTA) has
successfully secured funding from REAP 2.0 to deliver the awarded projects and seek
reimbursement for qualifying work. Any implementing agency expected to receive funds from
OCTA for projects awarded REAP 2.0 funds shall deliver the projects in compliance with the
following flow-down provisions frorn the SCAG and OCTA Memorandum of Understanding
(MOU)No. M-009-24:
Section 3.c. (Scope of Work and Sub-Recipient's Responsibilities—nexus to REAP 2.0)
Section 3,e. —3.g. (Scope of Work and Sub-Recipient's Responsibilities—procurements)
Section 31. (Scope of Work and Sub-Recipient's Responsibilities—penalty of perjury)
Section 5.e. (Funding repayment of ineligible costs)
Section 6 (Invoices)
Section 7 (Reporting)
Section 8 (Accounting)
Section 9 (Allowable Uses of Grant Funds)
Section 10 (Work Products)
Section 13 (Insurance)
Section 14 (indemnification)
Section 18 (Records Retention)
Section 19 (Monitoring and Audits)
Section 21 (Compliance with Laws, Rules, and Regulations)
Section 22 (Public Works and Construction)
Section 23 (Conflict of Interest)
Section 24 (Independent Contractor)
Section 25 (Assignment)
Section 26 (Release of Information)
The terms as it is presented in the MOU for each of the provisions above are included in the next
section. Please note the following:
• Sub-Recipient refers to the implementing agency (e.g. City of Santa Ana).
• OCTA will be responsible for submitting all invoices and reports to SCAG; therefore, the
sub-recipient (City of Santa Ana) will be required to provide the necessary invoices and
reports in the format indicated to OCTA prior to the deadlines indicated in the provisions
but will not need to submit invoices or reports to SCAG directly.
• The period of performance is from January 27, 2025, to June 30, 2026.
• It is the responsibility of the sub-recipient to flow-down the appropriate provisions if
consultants or similar are used to assist in delivering the project.
Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
3. Scone of Work and Sub-Recipient's Responsibilities
c. Sub-Recipient must demonstrate a clear and significant nexus to all the REAP 2.0 Goals and
Objectives, as described in Section 9 of this MOU, and must carry out the Projects to meet the
REAP 2.0 Goals and Objectives. Any lack of action or action inconsistent with REAP 2.0
Goals and Objectives may result in review and could be subject to modification of funding,
termination of this MOU, and repayment of the Grant Funds.
e. As a recipient of federal and state funds, SCAG has the responsibility for ensuring that its
procurement process complies with all applicable federal, state and funding requirements. For
all agreements entered into containing funds provided under this MOU or to perform work
under this MOU, Sub-Recipient shall procure in compliance with all applicable federal, state,
and local laws and regulations.
f. The term "Consultant(s)" shall hereinafter refer to all entities that Sub-Recipient procures,
manages, or otherwise enters into contracts or agreements with, in furtherance of the Projects
or this MOU regardless of the timing,nature of service/work provided or type of organization,
including but not limited to government entities, political subdivisions, subrecipients,
consultants, contractors, service providers, suppliers, independent contractors, professionals,
managers, architects, engineers, and subcontractors.
g. Upon request, Sub-Recipient shall provide information to the SCAG Project Manager
regarding any existing solicitation including but not limited to Requests for Proposals,
Invitation for Bids, Request for Qualifications, and Requests for Quotation (collectively
"RFP"). For new RFPs developed or finalized after the Effective Date of this MOU, Sub-
Recipient shall provide information to the SCAG Project Manager and obtain SCAG Project
Manager's written approval on any final RFP prior to its issuance. SCAG may require
documentation of RFPs and Notices to Proceed before approval of invoice reimbursement.
k. Any and all notices, reports,or other communications required by this MOU, including but not
limited to invoices, accounting reports, supporting documentation, and monitoring reports,
shall be submitted under the penalty of perjury.
5. Funding
e. Any costs for which Sub-Recipient receives reimbursement or credit that is determined by a
subsequent audit or other review by either SCAG, HCD, other State authorities or federal
cognizant agency to be ineligible or otherwise unallowable, are to be repaid by Sub-Recipient
within thirty (30) calendar days of Sub-Recipient receiving notice or a written demand for
reimbursement from SCAG. Such repayment may include interest,penalties or related fees, as
determined by HCD or other State authorities. Should Sub-Recipient fail to reimburse
unallowable costs due to SCAG within thirty (30) calendar days of demand, or within such
other period as may be agreed between both parties hereto, SCAG is authorized to withhold
and/or off-set future payments to Sub-Recipient.
21 Page
Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
6. Invoices
a. This MOU is a Cost Reimbursement agreement. Amounts claimed must reflect the actual
incurred and paid cost of completed work. The actual incurred and paid costs may not exceed
the Project's budget set forth in the most current fully executed SOW Approval Form. All
invoices submitted to SCAG for payment shall be e-mailed to accountspayable@scag.ca.gov
(file cannot exceed TOMB). All invoices submitted to SCAG for the Projects shall reference
the OWP Project Number(OWP No. 305-4926.01). A separate invoice must be submitted for
each individual Project.
b. By the twenty-first following the start of a new quarter (i.e., January 21, April 21, July 21,
October 21), Sub-Recipient shall submit an invoice for each Project to SCAG using the
"Invoice Report" attached as Exhibit C. The Invoice Report must be submitted in both PDF
format and the Excel file provided by SLAG. The Invoice Report shall also include, in
narrative form, a progress report section with a description of services performed by Sub-
Recipient's staff and Consultant(s) as well as progress toward completion of tasks related to
the Project for the prior quarter, a reporting of all costs incurred for that period, and progress
achieved toward the REAP 2.0 Goals and Objectives. SCAG shall review the Invoice Report
for compliance with this MOU. If SCAG determines that the Invoice Report is compliant with
this MOU, SCAG shall approve the Invoice Report and issue payment to the Sub-Recipient.
c. Incomplete or inaccurate invoices may be returned to Sub-Recipient for correction without
payment until corrected and approved. SCAG may,at its discretion,disallow any unsupported
costs and process the invoice. If Sub-Recipient corrects the error, the disallowed items can be
included in the next set of invoices.
d. Travel expenses and per diem rates are not to exceed the rate specified by the State of
California Department of Human Resources for similar employees (i.e. non-represented
employees) unless written verification is supplied that government hotel rates were not then
commercially available to Sub-Recipient, and its Consultant(s) at the time and location
required as specified in the California Department of Transportation's Travel Guide Exception
Process, which can be found at the following link:
http://www.dot.ca..goy/hq/ase/travel/ap b/bul.htm. Also see the link for a summary of travel
reimbursement rules.
e. The Parties acknowledge that SCAG's fiscal year is from July 1 to June 30. Sub-Recipient
agrees to submit all invoices to SCAG for eligible expenses incurred through June 30th, no
later than July 21st during the Term of this MOU. SCAG shall not be obligated to pay Sub-
Recipient for any invoice received after such date.
f. Sub-Recipient shall submit its final invoice to SCAG within thirty(30) days of the completion
of each individual Project, but no later than June 30, 2026, whichever is first. SCAG shall not
be obligated to pay-Sub Recipient for any invoice received after such date.
g. Sub-Recipient will require that its Consultant(s) pay any contractors and subcontractors for
satisfactorily completed work no later than ten(10)days of receipt of each payment from Sub-
s I Pa;c
Exhibit B--Flow-Down Provisions
Cooperative Agreement No. C-4-2053
Recipient. The ten (10) calendar days period is applicable unless a shorter period is required
by applicable law.
7. Reporting
a. At any time during the term of this MOU, SCAG may request additional information, as
needed,to demonstrate satisfaction of all requirements identified in the MOU.
b. By February 10 of each year following receipt of funding pursuant to this MOU,Sub-Recipient
shall submit an Annual Report using the"Sub-Recipient Report Template,"attached as Exhibit
D("Report Template"). Sub-Recipient shall submit a separate Annual Report for each Project.
The Annual Report shall include, in narrative form, a description of services performed by
Sub-Recipient's staff and Consultant(s)as well as progress toward completion of tasks related
to the Project for the prior year, a reporting of all costs incurred for that period, and progress
achieved toward the REAP 2.0 Goals and Objectives.
c. When a Project is finalized, and no later than June 30, 2026, Sub-Recipient shall submit a
Close-Out Report for the Project. At the time of the execution of this MOU, HCD has not
provided the requirements for the Close-Out Report due to HCD by all grantees at the
conclusion of the grant performance period. Therefore, the Close-Out Report format required
by SCAG of Sub-Recipient is not available at this time, but will be provided when it becomes
available.
d. All reports submitted to SCAG shall reference the OWP Project Number (OWP No. 305-
4926,01).
8. Accountine
a. Sub-Recipient shall establish and maintain an accounting system and reports that properly
accumulate incurred Project costs by line. The accounting system shall conform to Generally
Accepted Accounting Principles ("GAAP"), enable the determination of incurred costs as
interim points of completion, and provide support for payment vouchers and invoices.
b. Sub-Recipient shall establish a separate ledger account for receipts and expenditures of Project
Funds and Grant Funds and maintain expenditure details in accordance with the Scopes of
Work, as outlined in the most current fully executed SOW Approval Form, for each Project.
c. Sub-Recipient shall maintain documentation of its completed procurements(including the use
of sole source purchasing), and financial records of expenditures incurred during the course of
the Projects in accordance with GAAP.
9. Allowable Uses of Grant Funds
a. SCAG shall not award or disburse funds unless it determines that the Project Funds and Grant
Funds shall be expended in compliance with the REAP 2.0 Goals and Objectives.
41Pan
Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
i. REAP 2.0 Goals("Goals")are to invest in housing,planning,and infill housing-supportive
infrastructure across the entire state in a manner that reduces Vehicle Miles Traveled
("VMT"), increases housing affordability, and advances equity. More detailed information
on the Goals can be found in Section 201 of the REAP 2.0 Notice of Funding Availability
("NOFA")and Final Guidelines for MPO Applicants and are made a part of the provisions
of this MOU as if set forth in full.
ii. REAP 2.0 Objectives ("Objectives") include: (1) accelerating infill development that
facilitates housing supply, choice, and affordability; (2) affirmatively furthering fair
housing; (3) reducing vehicle miles traveled. More detailed information on the Objectives
can be found in Section 202 of the REAP 2.0 NOFA and Final Guidelines for MPO
Applicants and are made a part of the provisions of this MOU as if set forth in full.
b. Project Funds and Grant Funds shall only be used by Sub-Recipient for activities approved by
SLAG and included in the Scopes of Work,as outlined in the most current fully executed SOW
Approval Form.
c. Project Funds and Grant Funds may not be used for administrative costs of persons employed
by Sub-Recipient for activities not directly related to eligible activities.
d. Sub-Recipient shall use no more than five percent(5%)of the Project Funds for administrative
costs related to a Project, or a maximum of Six Hundred Sixty-Four Thousand, Five Hundred
Dollars ($664,500), whichever is lower. For purposes of this MOU, administrative costs are
the costs incurred in direct support of grant administration that are not included in the
organization's indirect cost pool. Additional funds may be used from other sources solely
contributed by Sub-Recipient to support Sub-Recipient's administration of the Projects.
i. Sub-Recipient must clearly indicate if funds will be used towards administrative costs on
or before the Effective Date of this MOU.
ii. If Sub-Recipient is seeking reimbursement for indirect costs and/or fringe benefits costs,
they must annually submit an Indirect Cost Allocation Plan ("ICAP") or an Indirect Cost
Rate Proposal ("ICRP") to its cognizant agency for indirect costs and/or fringe benefits
costs in accordance with Title 2 Code of Federal Regulations Part 200 (2 CFR 200)
Uniform Administrative Requirements, Cost Principles, And Audit Requirements For
Federal Awards. The cognizant agency for indirect costs and/or fringe benefits costs means
the federal agency responsible for reviewing,negotiating, and approving ICAPs or ICRPs.
Sub-Recipient must provide their approved indirect cost rate and/or fringe benefit rate and
provide a copy to SCAG Project Manager of the approved negotiated indirect cost rate
agreement ("NICRA") for the current fiscal year and subsequent years throughout the
performance period. Indirect costs and/or fringe benefits costs may be sought for
reimbursement only if Sub-Recipient has an approved NICRA from its cognizant agency
on or before the Effective Date of this MOU.
iii. If Sub-Recipient is seeking reimbursement for fringe benefits costs with absence of the
approved NICRA and proposes to use a rate to allocate the fringe benefits costs on the basis
5 I Pa_,,
Exhibit B--Flow-Down Provisions
Cooperative Agreement No. C-4-2053
of entity-wide salaries and wages of the employees receiving the benefits, they must
annually prepare the fringe benefits cost allocation plan in accordance with Title 2 Code of
Federal Regulations Part 200 (2 CFR 200) Uniform Administrative Requirements, Cost
Principles,And Audit Requirements For Federal Awards and provide a letter from the Sub-
Recipient's independent auditor confirming the compliance for the current fiscal year and
subsequent years throughout the performance period.
iv. If Sub-Recipient elects a de minim is indirect cost rate of 10%,they must annually complete
a certification form provided by SCAG Project Manager to confirm the eligibility and
compliance with Title 2 Code of Federal Regulations Part 200 (2 CFR 200) Uniform
Administrative Requirements, Cost Principles, And Audit Requirements For Federal
Awards and submit the signed form to SCAG Project Manager for the current fiscal year
and subsequent years throughout the performance period.The de minimis rate of 10%is to
be applied to modified total direct costs (MTDC) as defined by 2 CFR Part 200.1.
e. There must be a strong implementation component for the funded activity through REAP 2.0,
including, where appropriate, agreement by Sub-Recipient to submit the completed planning
document to the applicable board, council, or other entity for adoption. If Sub-Recipient does
not formally request adoption of the funded activity, it may be subject to repayment of the
Grant Funds.
10. Work Products
a. For purposes of this MOU, "Work Products" shall mean all deliverables created or produced
under this MOU including, but not limited to, all deliverables conceived or made either solely
or jointly with others during the terra of this MOU and during a period of six months after the
termination thereof,which relates to the Projects.Work Products shall not include real property
or capital improvements. Work Products includes all deliverables, inventions, innovations,
improvements, or other works of authorship Sub-Recipient or Consultant(s) may conceive of
or develop in the course of this MOU, whether or not they are eligible for patent, copyright,
trademark, trade secret or other legal protection.
b. Sub-Recipient shall submit one (1) electronic copy of all Work Products associated with the
Projects to the assigned SCAG Project Manager.
c. SCAG shall own all Work Products. SCAG grants to Sub-Recipient a perpetual royalty-free,
non-assignable, non-exclusive and irrevocable license to reproduce, publish or otherwise use
Work Products related to the Projects and developed as part of this MOU;provided,however,
that any reproduction, publishing, or reuse of the Work Products will be at Sub-Recipient's
sole risk and without liability or legal exposure to SCAG.
d. Subject to any provisions of law, including but not limited to the California Public Records
Act, all deliverables and related materials related to the Projects shall be held confidential by
Sub-Recipient.Nothing furnished to SCAG which is otherwise known or is generally known,
or has become known,to the related industry shall be deemed confidential. Sub-Recipient shall
safeguard such confidential materials from unauthorized disclosure, using the same standard
61 Page
Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
of care to avoid disclosure as Sub-Recipient treats its confidential information, but in no case
less than reasonable care.
13. Insurance
a. Sub-Recipient, at their own expense, shall procure and maintain policies of insurance, or
provide evidence of self-insurance, of the types and amounts below, for the duration of the
MOU. The policies shall state they afford primary coverage.
Insurance Type Requirements Limits
General Liability Commercial General Liability Not less than $5,000,000 per occurrence,
insurance with coverage at least $10,000,000 general aggregate, for bodily
as broad as Insurance Services injury,personal injury, and property damage.
Office form CG 00 01. The policy must include contractual liability
that has not been amended. Any endorsement
restricting standard ISO "insured contract"
language will not be accepted.
Automobile Automobile insurance at least as Covering bodily injury and property damage
Liability broad as Insurance Services for all activities of the Sub-Recipient arising
Office form CA 00 01. out of or in connection with work to be
performed under this MOU, including
coverage for any owned,hired,non-owned,
or rented vehicles, in an amount not less than
$1,000,000 combined single limit for each
accident.
Workers' Workers' Compensation Including Occupational Diseases in
Compensation/ insurance as required by the accordance with California Law and
Employer's State of California and Employers' Liability Insurance with a limit
Liability Employer's Liability Insurance. of not less than $1,000,000 each accident.
Not required for sole proprietors
or Sub-Recipients with no
employees.
Professional Professional Liability (Errors With limits of not less than$3,000,000 per
Liability and Omissions) insurance occurrence. In addition, it shall be required
Insurance appropriate to the Sub- that the professional liability insurance policy
Recipient's profession. remain in effect for three (3)years after the
Completion Date of this MOU.
Builders Risk Upon commencement of Sub-Recipient shall purchase and maintain
construction and with approval property insurance written on a builder's risk
of SCAG, Sub-Recipient shall "Special Form Cause of Loss"or equivalent
obtain and maintain builder's policy form in an amount not to exceed
risk(course of construction) for amount of the Contract, plus the cost of
the entire duration of the materials supplied or installed by others on a
Project.Not required for full replacement cost basis. The Builder's
Projects without construction. Risk policy shall include a soft cost
endorsement that covers soft costs equal to
7 1 Page
Exhibit B--Flow-Down Provisions
Cooperative Agreement No. C-4-2053
Insurance Type Requirements Limits
twenty percent (20%)of the Contract's full
value. Soft costs are defined as certain
expenses, in addition to labor and materials,
required to complete the Project that has been
delayed due to unexpected physical damage
and include, but are not limited to,the
following: legal/accounting fees, design or
other professional fees, financing costs,taxes,
general administration, lease expenses,
permit fees and insurance premiums. This
insurance shall include the interests of the
Additional Insureds as named below, Sub-
Recipient and the subcontractors of every tier
on the Project as insureds. The insurance
shall cover without limitation, loss or damage
to the Work arising from the perils covered
under"Special Form Cause of Loss"form
coverage including,without duplication of
coverage for theft, fire, lightning, explosion,
or hail, smoke, aircraft or vehicles, riot or
civil commotion,vandalism, malicious
mischief, collapse, earthquake, flood,
windstorm, false-work, testing and delay of
startup, temporary buildings,property in
transit and while stored at a temporary
location, debris removal including demolition
occasioned by enforcement of any applicable
legal requirements, and shall cover
reasonable compensation for Sub-Recipient's
services and expenses required as a result of
such loss. During the Project construction
period, Sub-Recipient and its subcontractors
shall mutually waive all rights of recovery
against each other and against the Additional
Insureds identified below for damages caused
by fire or other perils covered by the Builders
Risk"Special Form Cause of Loss"
insurance. All applicable policies of
insurance covering the Work or the property
of the Sub-Recipient or subcontractor shall be
endorsed to provide a waiver of subrogation
in favor of the Additional Insureds identified
below, Sub-Recipient and all subcontractors
of every tier. Further, Sub-Recipient hereby
releases, and shall cause its subcontractors to
8 1 Page
Exhibit B--Flow-Down Provisions
Cooperative Agreement No. C-4-2053
Insurance Type Requirements Limits
release, the Indemnitees identified in section
14 from any and all claims, losses and
damages caused by fire or other perils
covered by the Builders Risk"Special Form
Cause of Loss" insurance. There shall be no
deductible or self-insured retention exceeding
$10,000.00 per loss, other than earthquake or
flood which may have deductible or self-
insured retentions not exceeding$50,000.00.
The policy may have sublimits not less than
the following: Earthquake$5,000,000.00
Flood $1,000,000.00
Pollution Coverage shall provide for The policy limit shall be no less than
Liability liability arising out of sudden, $1,000,000 per claim and in the aggregate,
accidental, and gradual All activities contemplated in this MOU shall
pollution, and remediation.Not be specifically scheduled on the policy as
required for Projects without "covered operations." The policy shall
construction. provide coverage for remediation of the site
in the event of an environmental
contamination event arising out of the
materials, supplies,products,work,
operations, or workmanship.
Products/ Coverage shall extend a Coverage shall be included on behalf of the
Completed minimum of three (3) years after insured for covered claims arising out of the
Operations project completion.Not required actions of independent contractors. If the
Coverage for Projects without insured is using subcontractors,the Policy
construction. must include work performed"by or on
behalf"of the insured. Policy shall contain no
language that would invalidate or remove the
insurer's duty to defend or indemnify for
claims or suits expressly excluded from
coverage.Policy shall specifically provide for
a duty to defend on the part of the insurer.
SCAG, its officials, officers, agents, and
employees, shall be included as additional
insureds under the Products and Completed
Operations coverage.
b. Higher Limits: no representation is made that the minimum insurance requirements of this
agreement are sufficient to cover the indemnity or other obligations of the sub-recipient under
this agreement.
c. The general liability and automobile liability policies are to contain, or be endorsed to contain,
the following provisions:
91 Page
Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
L SCAG, its officials, employees, and volunteers are to be covered as additional insureds, as
respects to liability arising out of the activities performed by or on behalf of Sub-Recipient;
products and completed operations of Sub-Recipient; premises owned, occupied or used
by Sub-Recipient; or automobiles owned leased, hired or borrowed by Sub-Recipient. The
coverage shall contain no special limitations on the scope of protection afforded to SCAG,
its officials and employees.
ii. For any claims related to this Project, Sub-Recipient's insurance coverage shall be primary
insurance as respects SCAG, its officials and employees. Any insurance or self-insurance
maintained by SCAG shall be excess of Sub-Recipient's insurance and shall not contribute
with it.
iii. Any failure to comply with reporting or other provisions of the policies including breaches
of warranties shall not affect coverage provided to SCAG, its officials and employees.
iv. Sub-Recipient's insurance shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer's liability.
d. The Workers' Compensation and Employer's Liability policies shall include a waiver of
subrogation endorsement in favor of SCAG, its, officials, employees,and volunteers.
e. Any deductibles or self-insured retentions in amounts over $10,000 must be declared to and
approved by SCAG.
f. Insurance is to be placed with California admitted insurers with a current A.M. Best's rating
of no less than A and be admitted, unless otherwise approved by SCAG.
g. Sub-Recipient shall furnish SCAG with original endorsements and certificates of insurance
evidencing coverage required by this clause. All documents are to be signed by a person
authorized by that insurer to bind coverage on its behalf. All documents are to be received and.
approved by SCAG before work commences. Upon request of SCAG at any time, Sub-
Recipient shall provide complete, certified copies of all required insurance policies, including
endorsements affecting the coverage required by these specifications.
h. Sub-Recipient agrees to ensure that its Consultant(s) provide the same minimum insurance
coverage and endorsements required of Sub-recipient. Sub-Recipient agrees to monitor and
review all such coverage and assumes all responsibility for ensuring that such coverage is
provided in conformity with the requirements of this Section. However, in the event Sub-
Recipient's Consultant(s)cannot comply with this requirement,which proof must be submitted
to SCAG, Sub-Recipient shall be required to ensure that its Consultant(s)provide and maintain
insurance coverage and endorsements sufficient to the specific risk of exposure involved with
Consultant(s) scope of work and services, with limits less than required of the Sub-Recipient,
but in all other terms consistent with the Sub-Recipient's requirements under this MOU. This
provision does not relieve Sub-Recipient of its contractual obligations under the MOU and/or
limit its liability to the amount of insurance coverage provided by its Consultant(s). This
provision is intended solely to provide Sub-Recipient with the ability to utilize Consultant(s)
101 Page
Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
who may be otherwise qualified to perform the work or services but may not carry the same
insurance limits as required of Sub-Recipient under this MOU given the limited scope of work
or services provided by the Consultant(s). Sub-Recipient agrees that upon request, all
agreements with Consultant(s)will be submitted to SCAG for review.
14.Indemnification
Sub-Recipient shall fully defend, indemnify and hold harmless SCAG, its members, officers,
employees, and agents from any and all claims, losses, liabilities, damages, expenses, suits or
actions including attorneys' fees, brought forth or arising under any theories or assertions of
liability, occurring by or resulting from or otherwise related to the Projects or this MOU. Such
obligations shall not, however, extend to any claims, losses, liabilities, damages, expenses, suits
or actions that arise from SCAG's willful misconduct.
18. Records Retention
a. Sub-Recipient and its Consultant(s) shall maintain all source documents, books and records
connected with the Projects,all procurements related to the Projects,a]I work performed under
this MOU, and evidence demonstrating the funding was used for the appropriate purposes for
a minimum of five (5) years after December 31, 2026. Wherever practicable, such records
should be collected,transmitted, and stored in open and machine-readable formats.
b. If any litigation, claim, negotiation, audit, monitoring, inspection, or other action has been
started before the expiration of the required record retention period,all records shall be retained
by Sub-Recipient and its Consultant(s) for five(5)years after: (a)the conclusion or resolution
of the matter; (b)the date an audit resolution is achieved for each annual SCAG OWP; or(c)
December 31,2026, whichever is later.
19.Monitoriniz and Audits
a. SCAG may monitor expenditures and activities of Sub-Recipient and its Consultant(s) as
SCAG deems necessary to ensure compliance with the MOU, the Statutes, the REAP 2.0
Guidelines and the.Program Guidelines.
b. At any time during the term of this MOU, SCAG, HCD,the California Department of General
Services, the California Bureau of State Audits, or their designated representatives may
perform or cause to be performed a financial audit of any and all phases of the Projects. At
their request, Sub-Recipient shall provide, at its own expense, a financial audit prepared by an
independent certified public accountant.
c. Sub-Recipient agrees that SCAG, HCD, the California Department of General Services, the
California Bureau of State Audits, or their designated representatives shall have the right to
review, obtain, and copy all records and supporting documentation related to the performance
of this MOU.Sub-Recipient agrees to provide any,relevant information requested. Copies shall
be made and furnished to SCAG upon request at no cost to SCAG.
111 Page
Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
d. Sub-Recipient agrees to permit SCAG, HCD, the California Department of General Services,
the California Bureau of State Audits,or their designated representatives access to its premises,
upon reasonable notice, during normal business hours for the purpose of interviewing
employees who might reasonably have information related to such records and inspecting and
copying such books, records, accounts, and other material that may be relevant to a matter
under investigation for the purpose of determining compliance with this MOU, the Statutes,
the REAP 2.0 Guidelines, or applicable state and federal laws, rules, and regulations.
e. If there are audit findings from SCAG or HCD's audit, Sub-Recipient must submit a detailed
response acceptable to SCAG or HCD for each audit finding within ninety (90) days of the
audit finding report,
21. Compliance with Laws,Rules, and Regulations
a. Sub-Recipient agrees to comply with all federal, state and local laws, rules and regulations
applicable to this MOU.
b. Non-Discrimination/Equal Employment Opportunity
i. During the performance of this MOU, Sub-Recipient assures that no person shall be denied
the MOD's benefits, be excluded from participation or employment, be denied Project
benefits, or be subjected to discrimination based on race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender expression, age, sexual
orientation, or military and veteran status, under the Projects or any program or activity
funded by this MOU, as required by Title VI of the Civil Rights Act of 1964, the Fair
Housing Act(42 U.S.C. §§3601-20)and all implementing regulations,the Americans with
Disabilities Act ("ADA") of 1990 (42 U.S.C. §§ 12101 et seq.) and all applicable
regulations and guidelines issued pursuant to the ADA, and the Age Discrimination Act of
1975 and all implementing regulations. Sub-Recipient shall ensure that the evaluation and
treatment of employees and applicants for employment are free of such discrimination.
ii. Sub-Recipient shall comply with the provisions of the Fair Employment and Housing Act
(Gov. Code § 12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs.tit,
2, § 11000 et seg.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of
the Government Code (Gov. Code §§ 11135-11139.5), and the regulations or standards
adopted by HCD to implement such article.
iii. Sub-Recipient shall permit access by representatives of the Department of Fair
Employment and Housing, SCAG,and HCD upon reasonable notice at any time during the
normal business hours, but in no case less than 24 hours' notice, to such of its books,
records, accounts, and all other sources of information and its facilities as the Department
of Fair Employment and. Housing, SCAG, or HCD shall require to ascertain compliance
with this Section.
121 Page
Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
iv. Sub-Recipient shall give written notice of its obligations under this Section to labor
organizations with which they have a collective bargaining or other agreement.
v. Sub-Recipient shall adopt and implement affirmative processes and procedures that
provide information, outreach and promotion of opportunities in the Projects to encourage
participation of all persons regardless of race, color, national origin, sex, religion, familial
status, or disability. This includes, but is not limited to, a minority outreach program to
ensure the inclusion, to the maximum extent possible, of minorities and women,'and
entities owned by minorities and women, as required by 24 C.F.R. § 92.351.
c. Recycling Certification. Sub-Recipient shall certify in writing under penalty of perjury, the
minimum, if not exact,percentage of post-consumer material as defined in the Public Contract
Code Section 12200, in products, materials, goods, or supplies offered or sold to SCAG
regardless of whether the product meets the requirements of Public Contract Code Section
12209. With respect to printer or duplication cartridges that comply with the requirements of
Section 12156(e),the certification required by this subdivision shall specify that the cartridges
so comply (Pub. Contract Code § 12205).
d. Anti-Trust Claims. Sub-Recipient, by signing this MOU, hereby certifies that if these services
or goods are obtained by means of a competitive bid,the Sub-Recipient shall comply with Title
1,Division 5, Chapter I I of the California Government Code (Gov.Code §§ 4550-4554).
e. ChiId Support Compliance Act. If the Grant Funds provided under this MOU are in excess of
$100,000, Sub-Recipient acknowledges in accordance with Public Contract Code 7110,that:
i. Sub-Recipient recognizes the importance of child and family support obligations and shall
fully comply with all applicable state and federal laws relating to child and family support
enforcement, including, but not limited to, disclosure of information and compliance with
earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of
Part 5 of Division 9 of the Family Code; and
ii. Sub-Recipient,to the best of its knowledge is fully complying with the earnings assignment
orders of all employees and is providing the names of all new employees to the New Hire
Registry maintained by the California.Employment Development Department.
f. Priority Hiring Considerations. If this MOU includes services in excess of$200,000,the Sub-
Recipient shall give priority consideration in filling vacancies in positions funded by the MOU
to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance
with Pub. Contract Code §10353.
g. Loss Leader.If this MOU involves the furnishing of equipment,materials,or supplies then the
following statement is incorporated: It is unlawful for any person engaged in business within
this state to sell or use any article or product as a"loss leader" as defined in Section 17030 of
the Business and Professions Code. (PCC §10344(e).)
13� Wage
Exhibit 13—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
22. Public Works and Construction
Without limiting the generality of Section 21.a., Sub-Recipient agrees to ensure compliance with
all applicable legal authority regarding construction standards and requirements, including but not
limited to the following;
a. Labor Code Requirements
i. Sub-Recipient is hereby put on notice that the one or more of the Projects under the MOU
may qualify as a public works project and Sub-Recipient will therefore be required to
determine whether the Project falls under a classification that would require payment of
prevailing wages. Services constituting public works are described in California Labor
Code Sections 1720-1861, as may be amended or recodified by legislative action from
time-to-time.
ii. If a Project qualifies as a public works project, Sub-Recipient shall be the Awarding Body
for the public works project and required to comply with all requirements applicable to the
Awarding Body,
iii. If Sub-Recipient or its Consultant(s) will perform services that require payment of
prevailing wages,they are required to register with the California Department of Industrial
Relations (DIR) in order to be compliant with the law. Neither Sub-Recipient nor its
Consultant(s) may work on a public works project without a current and active DIR
registration.
iv. In the event that Sub-Recipient or its Consultant(s) engages in the performance of a public
work under this MOU as defined by Labor Code Section 1770 et seq., Sub-Recipient and
its Consultant(s) shall be required to cause such employees who are entitled to prevailing
wages, to be paid the required wage amounts pursuant to applicable state law. Sub-
Recipient and its Consultant(s) shall ensure compliance with the State of California's
General Prevailing Wage Rate requirements in accordance with California Labor Code,
Section 1770, and all Federal, State, and local laws and ordinances applicable to the work.
v. Sub-Recipient further acknowledges that any work that qualifies as a public work within
the meaning of California Labor Code Section 1720 shall require Sub-Recipient and its
Consultant(s) to comply with the provisions of California Labor Code Sections 1775 et
seq. Sub-Recipient agrees to ensure compliance with Labor Code Section 1776 regarding
retention and inspection of payroll records and noncompliance penalties, Labor Code
Section 1777.5 regarding employment of registered apprentices, and Labor Code Section
1813 regarding forfeiture for violations of the maximum hours per day and per week
provisions contained in the same chapter.
b. Sub-Recipient shall comply with all applicable federal, state, and local procurement
requirements for public works and construction projects and shall advertise, open bids, award,
and approve all construction contracts in accordance with the California Public Contract Code
and the California Labor Code.
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Exhibit B—Flow-Down Provisions
Cooperative Agreement No. C-4-2053
c. All construction contracts for the Projects shall be administered and managed by Sub-
Recipient. Sub-Recipient shall prepare or have prepared a detailed schedule of performance
for the Projects, ensuring that all construction is completed within the timeline allowed by the
MOU. Sub-Recipient shall be responsible for requiring the construction contractor to furnish
any applicable labor and material bonds and payments and performance bonds naming the Sub-
Recipient as obligee, and SCAG as additional obligee, or an insurance policy in lieu of such
bonds.
d. Sub-Recipient agrees to procure any and all permits, licenses and approvals necessary to
complete the Projects, including those necessary to perform design, construction, operation
and maintenance, and to comply with all California Environmental Quality Act requirements
applicable to the Projects. Sub-Recipient shall pay all charges and fees and give all notices
necessary or incidental to the Projects.
e. Sub-Recipient shall prepare, or have prepared, all plans, specifications and estimates for the
Projects and ensure that the Projects comply with all applicable federal and state accessibility
requirements, including but not limited to the Americans with Disabilities Act, including its
implementing regulations at 24 Cl~R Part S and any amendments, and California Government
Code Section 4450, and applicable requirements and guidance provided in Title 24 of the
California Code of Regulations, for the construction of buildings, structures, sidewalks, curbs
and related facilities for accessibility and usability.
f. Sub-Recipient shall conduct all necessary due diligence for the Projects, including but not
limited to performing necessary environmental assessments/review of environmental hazard
reports, conducting engineer/geotechnical review, commissioning title reports to identify and
evaluate the condition of title and encumbrances on the subject property, determining the
entity(ies) with site control, including whether any third parties have ownership or site control
rights, and determining the suitability for the Project.
g. Sub-Recipient shall ensure any contractors or subcontractors are paid in accordance with
applicable laws and regulations.
h. Sub-Recipient shall comply with the procedure set forth in Public Contracts Code Section 9204
for processing contractor claims, paying undisputed amounts, and requiring mediation of
disputed amounts.
i. Sub-Recipient shall be responsible for ensuring ongoing maintenance of the Projects after
completion. SLAG shall not be responsible for ongoing maintenance of the Projects after
completion.
23. Conflict of Interest
The Parties shall comply with all applicable federal and state conflict of interest laws,regulations,
and policies.
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Exhibit B--Flow-Down Provisions
Cooperative Agreement No. C-4-2053
24.Independent Contractor
Sub-Recipient and its Consultant(s) shall be independent contractors in the performance of this
MOU, and not officers, employees, or agents of SCAG,
25.Assignment
Neither Party shall assign any rights or interests in this MOU, or any part thereof, without the
written consent of each Party to this MOU,which consent may be granted,withheld or conditioned
in the consenting Party's sole and absolute discretion. Any assignment without such written
consent shall be void and unenforceable.The covenants and agreement of this MOU shall inure to
the benefit of and shall be binding upon each of the Parties and their respective successors and
assignees.
26.Release of Information
Sub-Recipient shall not release any information or Work Products to a third party or otherwise
publish or utilize any information or Work Products obtained or produced by it as a result of or in
connection with the performance of services under this MOU without the prior written
authorization of SCAG, except as provided under this MOU or as required by law (including,
without limitation, pursuant to the California Public Records Act).
All public-facing communications materials relating to this MOU or its subject matter shall
acknowledge SCAG. Communications materials include, but are not limited to, site signage,
printed information materials, print and online publications, websites, advertisements, video,
public service announcements,social media postings,events,media advisories,news releases,and
all other related materials,
To ensure consistency of public information about SCAG programs and funded work products,
Sub-Recipient is required to notify and coordinate with SCAG's Manager of Media & Public
Affairs or a specified designee on any media inquiries or plans for proactively providing
information to media outlets.
All communication materials must be provided to SCAG prior to completion so that inclusion of
this element can be confirmed. SCAG will reply within three business days; if no reply is received,
the Sub-Recipient can proceed without comments.
SCAG Communication Contact:
Alisha James
james@scag.ca.gov
(213)236-1884
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