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HomeMy WebLinkAboutReso 154-2017 (17-1148)City of South San Francisco P.O. Box 711 (City Hall, lip 400 Grand Avenue) South San Francisco, CA City Council Resolution: RES 154 -2017 File Number: 17 -1148 Enactment Number: RES 154 -2017 RESOLUTION APPROVING COOPERATIVE AGREEMENT NO. 04 -2684 WITH THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR THE WORK ELEMENTS PERFORMED FOR THE CONSTRUCTION OF THE GRAND BOULEVARD PROJECT PHASE II. WHEREAS, staff recommends approval of the Cooperative Agreement No. 04 -2684 with the State of California Department of Transportation (Caltrans) for work elements performed for the construction of the Grand Boulevard Project Phase II (Project No. stl502); and WHEREAS, the Grand Boulevard Initiative Project ( "Project ") is a collaboration of nineteen (19) cities, counties, local and regional agencies; and WHEREAS, the South San Francisco portion of the Project starts at McClellan Drive and ends at Chestnut Avenue, which is approximately one mile; and WHEREAS, the City of South San Francisco applied for grants to help fund the construction of the Project located within the City; and WHEREAS, in 2013, the City received a grant in the amount of $1,000,000 from the One Bay Area Grant (OBAG) program to fund the Arroyo Drive and Chestnut Avenue (Phase I) portion; and WHEREAS, in 2014, the City received a grant in the amount $1,991,000 from City /County Association of Governments (C /CAG) State Transportation Improvement Program and Transportation Enhancement to fund the McClellan Drive to Kaiser Way ( "Phase II ") portion; and WHEREAS, Caltrans requires a Cooperative Agreement between the City and Caltrans since the Project is funded by Regional Transportation Improvement Program (RTIP); and WHEREAS, a Cooperative Agreement between Caltrans and the City is required to document the Project's Phase II construction; and WHEREAS, the Cooperative Agreement sets forth the roles and responsibilities, as well as the general City of South San Francisco Page 1 File Number., 17 -1148 Enactment Number: RES 154 -2017 conditions between the City of South San Francisco and Caltrans; and WHEREAS, funding for this project is included in the City of South San Francisco's Fiscal Year 2017 -18 Capital Improvement Program. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco that the City Council hereby approves the Cooperative Agreement No. 04 -2684 between the City and State of California Department of Transportation. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the Cooperative Agreement No. 04 -2684 on behalf of the City Council of South San Francisco, subject to approval as to form by the City Attorney. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take any other related actions consistent with the intention of the resolution. At a meeting of the City Council on 12/13/2017, a motion was made by Mark Addiego, seconded by Pradeep Gupta, that this Resolution be adopted. The motion passed. Yes: 5 Mayor Normandy, Councilmember Garbarino, Vice Mayor Matsumoto, Councilmember Cjupta, and Councilmember Addiego hest City of South San Francisco Page 2 Agreement 04-2684 Project No. 0416000115 EA 4G602 04-SM-82-20.5 Project Development Agreement 2017-02-17 (Created October 30, 2017) 1 of 20 COOPERATIVE AGREEMENT This AGREEMENT, effective on _______________________________, is between the State of California, acting through its Department of Transportation, referred to as CALTRANS, and: City of South San Francisco, a body politic and municipal corporation or chartered city of the State of California, referred to hereinafter as CITY OF SOUTH SAN FRANCISCO. RECITALS 1. PARTIES are authorized to enter into a cooperative agreement for improvements to the State Highway System per the California Streets and Highways Code sections 114 and 130. 2. For the purpose of this AGREEMENT, Grand Boulevard Initiative Complete Streets Program, Construct median landscaping and other sustainable/green street feature on State Route 82, El Camino Real, from Kaiser Way to McLellan Drive, will be referred to hereinafter as PROJECT. The PROJECT scope of work is defined in the project initiation and approval documents (e.g. Project Study Report, Permit Engineering Evaluation Report, or Project Report). 3. All obligations and responsibilities assigned in this AGREEMENT to complete the following PROJECT COMPONENT will be referred to hereinafter as WORK: • CONSTRUCTION Each PROJECT COMPONENT is defined in the CALTRANS Workplan Standards Guide as a distinct group of activities/products in the project planning and development process. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 2 of 20 4. The term AGREEMENT, as used herein, includes this document and any attachments, exhibits, and amendments. This AGREEMENT is separate from and does not modify or replace any other cooperative agreement or memorandum of understanding between the PARTIES regarding the PROJECT. PARTIES intend this AGREEMENT to be their final expression that supersedes any oral understanding or writings pertaining to the WORK. The requirements of this AGREEMENT will preside over any conflicting requirements in any documents that are made an express part of this AGREEMENT. If any provisions in this AGREEMENT are found by a court of competent jurisdiction to be, or are in fact, illegal, inoperative, or unenforceable, those provisions do not render any or all other AGREEMENT provisions invalid, inoperative, or unenforceable, and those provisions will be automatically severed from this AGREEMENT. Except as otherwise provided in the AGREEMENT, PARTIES will execute a written amendment if there are any changes to the terms of this AGREEMENT. PARTIES agree to sign a CLOSURE STATEMENT to terminate this AGREEMENT. However, all indemnification, document retention, audit, claims, environmental commitment, legal challenge, maintenance and ownership articles will remain in effect until terminated or modified in writing by mutual agreement or expire by the statute of limitations. 5. The following work associated with this PROJECT has been completed or is in progress: • CITY OF SOUTH SAN FRANCISCO approved the Categorical Exemption on April 14, 2016. • CALTRANS approved the Categorical Exemption on September 13, 2016. • CALTRANS completed the R/W Certification on August 16, 2017. • CITY OF SOUTH SAN FRANCISCO completed the Plans, Specifications and Estimate on July 15, 2017 under a Project Engineering Environmental Report (PEER) process. PEER review process does not require a PS&E cooperative agreement.. 6. In this AGREEMENT capitalized words represent defined terms, initialisms, or acronyms. 7. PARTIES hereby set forth the terms, covenants, and conditions of this AGREEMENT. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 3 of 20 RESPONSIBILITIES Sponsorship 8. A SPONSOR is responsible for establishing the scope of the PROJECT and securing the financial resources to fund the WORK. A SPONSOR is responsible for securing additional funds when necessary or implementing PROJECT changes to ensure the WORK can be completed with the funds obligated in this AGREEMENT. PROJECT changes, as described in the CALTRANS Project Development Procedures Manual, will be approved by CALTRANS as the owner/operator of the State Highway System. 9. City of South San Francisco is the SPONSOR for the WORK in this AGREEMENT. Implementing Agency 10. The IMPLEMENTING AGENCY is the PARTY responsible for managing the scope, cost, schedule, and quality of the work activities and products of a PROJECT COMPONENT. • CITY OF SOUTH SAN FRANCISCO is the Construction IMPLEMENTING AGENCY. CONSTRUCTION work includes construction contract administration, surveying/staking, inspection, quality assurance, and assuring regulatory compliance. The CONSTRUCTION component budget identifies the capital costs of the construction contract/furnished materials (CONSTRUCTION Capital) and the cost of the staff work in support of the construction contract administration (CONSTRUCTION Support). 11. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will provide a Quality Management Plan (QMP) for the WORK in that component. The Quality Management Plan describes the IMPLEMENTING AGENCY’s quality policy and how it will be used. The Quality Management Plan will include a process for resolving disputes between the PARTIES at the team level. The Quality Management Plan is subject to CALTRANS review and approval. 12. Any PARTY responsible for completing WORK will make its personnel and consultants that prepare WORK available to help resolve WORK-related problems and changes for the entire duration of the PROJECT including PROJECT work that may occur under separate agreements. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 4 of 20 Funding 13. Funding sources, PARTIES committing funds, funding amounts, and invoicing/payment details are documented in the Funding Summary section of this AGREEMENT. PARTIES will amend this AGREEMENT by updating and replacing the Funding Summary, in its entirety, each time the funding details change. Funding Summary replacements will be executed by a legally authorized representative of the respective PARTIES. The most current fully executed Funding Summary supersedes any previous Funding Summary created for this AGREEMENT. 14. PARTIES will not be reimbursed for costs beyond the funds obligated in this AGREEMENT. 15. Unless otherwise documented in the Funding Summary, overall liability for project costs within a PROJECT COMPONENT will be in proportion to the amount contributed to that PROJECT COMPONENT by each fund type. 16. Unless otherwise documented in the Funding Summary, any savings recognized within a PROJECT COMPONENT will be credited or reimbursed, when allowed by policy or law, in proportion to the amount contributed to that PROJECT COMPONENT by each fund type. 17. WORK costs, except those that are specifically excluded in this AGREEMENT, are to be paid from the funds obligated in the Funding Summary. Costs that are specifically excluded from the funds obligated in this AGREEMENT are to be paid by the PARTY incurring the costs from funds that are independent of this AGREEMENT. CALTRANS’ Quality Management 18. CALTRANS, as the owner/operator of the State Highway System, will perform quality management work including independent quality assurance (IQA) and owner/operator approvals for the portions of WORK within the existing and proposed State Highway System right-of-way. 19. CALTRANS’ independent quality assurance (IQA) efforts are to ensure that City of South San Francisco's quality assurance results in WORK that is in accordance with the applicable standards and the PROJECT’s quality management plan (QMP). An IQA does not include any efforts necessary to develop or deliver WORK or any validation by verifying or rechecking WORK. When CALTRANS performs IQA it does so for its own benefit. No one can assign liability to CALTRANS due to its IQA. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 5 of 20 20. CALTRANS, as the owner/operator of the State Highway System, will approve WORK products in accordance with CALTRANS policies and guidance and as indicated in this AGREEMENT. 21. CITY OF SOUTH SAN FRANCISCO will provide WORK-related products and supporting documentation upon CALTRANS’ request for the purpose of CALTRANS’ quality management work. CEQA/NEPA Lead Agency 22. CITY OF SOUTH SAN FRANCISCO is the CEQA Lead Agency for the PROJECT. 23. CALTRANS is a CEQA Responsible Agency for the PROJECT. 24. CALTRANS is the NEPA Lead Agency for the PROJECT. Environmental Permits, Approvals and Agreements 25. PARTIES will comply with the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements as those commitments and conditions apply to each PARTIES responsibilities in this AGREEMENT. 26. Unless otherwise assigned in this AGREEMENT, the IMPLEMENTING AGENCY for a PROJECT COMPONENT is responsible for all PROJECT COMPONENT WORK associated with coordinating, obtaining, implementing, renewing, and amending the PROJECT permits, agreements, and approvals whether they are identified in the planned project scope of work or become necessary in the course of completing the PROJECT. 27. The PROJECT will not require environmental permits/approvals. CONSTRUCTION 28. As the CONSTRUCTION IMPLEMENTING AGENCY, CITY OF SOUTH SAN FRANCISCO is responsible for all CONSTRUCTION WORK except those activities and responsibilities that are assigned to another PARTY and those activities that are excluded under this AGREEMENT. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 6 of 20 29. CALTRANS will be responsible for completing the following CONSTRUCTION SUPPORT activities: CALTRANS Work Breakdown Structure Identifier (If Applicable) AGREEMENT Funded Cost 100.20.10.xx Quality Management YES 30. Physical and legal possession of the right-of-way must be completed prior to advertising the construction contract, unless PARTIES mutually agree to other arrangements in writing. 31. Right-of-way conveyances must be completed prior to WORK completion, unless PARTIES mutually agree to other arrangements in writing. 32. CITY OF SOUTH SAN FRANCISCO will include a Disadvantaged Business Enterprise (DBE) utilization goal in the PROJECT construction contract(s) in accordance with the Local Assistance Procedures Manual. CITY OF SOUTH SAN FRANCISCO will award the construction contract to the lowest responsive bidder who makes a Good Faith Effort to meet the DBE goal. 33. CALTRANS will not issue an Encroachment Permit to CITY OF SOUTH SAN FRANCISCO for construction work until the following conditions are met: • CALTRANS accepts the final plans, specifications, and estimate • CALTRANS accepts the Right-of-Way Certification • Any new or amended Maintenance Agreement required for the WORK are executed. 34. CITY OF SOUTH SAN FRANCISCO will require the construction contractor to furnish payment and performance bonds naming CITY OF SOUTH SAN FRANCISCO as obligee, and CALTRANS as additional obligee, and to carry liability insurance in accordance with CALTRANS Standard Specifications. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 7 of 20 35. CITY OF SOUTH SAN FRANCISCO will advertise, open bids, award, and approve the construction contract in accordance with the California Public Contract Code and the California Labor Code. By accepting responsibility to advertise and award the construction contract, CITY OF SOUTH SAN FRANCISCO also accepts responsibility to administer the construction contract. 36. If the lowest responsible construction contract bid is greater than the funding commitment to CONSTRUCTION CAPITAL, PARTIES must agree in writing on a course of action within fifteen (15) working days. If no agreement is reached within fifteen (15) work days the IMPLEMENTING AGENCY will not award the construction contract. 37. CALTRANS will not issue an Encroachment Permit to City of South San Francisco's construction contractor until CALTRANS accepts: • The payment and performance bonds • The CONSTRUCTION Quality Management Plan 38. The CONSTRUCTION Quality Management Plan will describe how construction material verification and workmanship inspections will be performed at manufacturing sources and the PROJECT job-site. The construction material and source inspection Quality Management Plan is subject to review and approval by the State Materials Engineer. 39. The CONSTRUCTION Quality Management Plan will address the radiation safety requirements of the California Code of Regulations 17 CCR § 30346 when the work requires Gamma-Gamma Logging acceptance testing for Cast in Drilled Hole (CIDH) pile or whenever else it is applicable. In accordance with these regulations CITY OF SOUTH SAN FRANCISCO, as the "well operator", will have a written agreement with any consultant or external entity performing these tests. 40. CITY OF SOUTH SAN FRANCISCO will provide a Resident Engineer and CONSTRUCTION SUPPORT staff that are independent of the construction contractor. The Resident Engineer will be a Civil Engineer, licensed in the State of California, who is responsible for construction contract administration activities. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 8 of 20 41. CITY OF SOUTH SAN FRANCISCO will implement changes to the construction contract through Change Orders. PARTIES will review and concur on all Change Orders over $50,000. 42. CALTRANS will review and concur with: • Change Orders affecting public safety, public convenience, protected environmental resources, the preservation of property, all design and specification changes, and all major changes as defined in the CALTRANS Construction Manual. These Change Orders must receive written concurrence by CALTRANS prior to implementation. • The Stormwater Pollution Prevention Plan (SWPPP) or the Water Pollution Control Plan (WPCP). 43. If CONSTRUCTION CAPITAL is funded with state or federal funds then CITY OF SOUTH SAN FRANCISCO will administer and process all construction contract claims using a CALTRANS-approved process. CALTRANS will provide quality management work for the claims process. 44. CITY OF SOUTH SAN FRANCISCO is designated as the Legally Responsible Person pursuant to the Construction General Permit, State Water Resources Control Board (SWRCB) Order Number 2009-0009-DWQ, as defined in Appendix 5, Glossary, and assumes all roles and responsibilities assigned to the Legally Responsible Person as mandated by the Construction General Permit. CITY OF SOUTH SAN FRANCISCO is required to comply with the CALTRANS MS4 National Pollutant Discharge Elimination System (NPDES) permit for all work within the State Highway System. 45. CITY OF SOUTH SAN FRANCISCO may request CALTRANS to complete portions of CONSTRUCTION SUPPORT work as reimbursed engineering services. Should CALTRANS agree to perform the requested services, PARTIES will document the arrangement in a written Task Order. Such an arrangement does not change the responsibilities assigned in this AGREEMENT. Engineering services requested by CITY OF SOUTH SAN FRANCISCO and provided by CALTRANS during CONSTRUCTION are to be reimbursed from the funds obligated in this AGREEMENT. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 9 of 20 46. As the CONSTRUCTION IMPLEMENTING AGENCY, CITY OF SOUTH SAN FRANCISCO is responsible for maintenance of the State Highway System within the PROJECT limits as part of the construction contract until the following conditions are met: • Any required Maintenance Agreements are executed for the portions of State Highway System for which relief of maintenance is to be granted. • CALTRANS approves a request from CITY OF SOUTH SAN FRANCISCO for relief from maintenance of the PROJECT or a portion thereof. 47. PARTIES confirm that upon WORK completion, no maintenance agreement will be necessary. 48. Upon WORK completion, ownership or title to all materials and equipment constructed or installed for the operations and/or maintenance of the State Highway System within State Highway System right-of-way as part of WORK become the property of CALTRANS. CALTRANS will not accept ownership or title to any materials or equipment constructed or installed outside State Highway System right-of-way. 49. Within one hundred eighty (180) calendar days following the completion and acceptance of the PROJECT construction contract, CITY OF SOUTH SAN FRANCISCO will furnish CALTRANS with a complete set of “As-Built” plans and Change Orders, including any changes authorized by CALTRANS, on a CD ROM and in accordance with CALTRANS’ then current CADD User’s Manual (Section 4.3), Plans Preparation Manual, and CALTRANS practice. The plans will have the Resident Engineer’s name, contract number, and construction contract acceptance date printed on each plan sheet, and with the Resident Engineer’s signature only on the title sheet. The As-Built plans will be in Microstation DGN format, version 7.0 or later. In addition, CITY OF SOUTH SAN FRANCISCO will provide one set of As-Built plans and addenda in TIFF format. The submittal must also include all CALTRANS requested contract records, and land survey documents. The land survey documents include monument preservation documents and Records of Surveys prepared to satisfy the requirements of the California Land Surveyors Act (Business and Professions Code sections 8700 – 8805). Copies of survey documents and Records of Surveys filed in accordance with Business & Professions Code, including sections 8762 and 8771, will contain the filing information provided by the county in which filed. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 10 of 20 Schedule 50. PARTIES will manage the WORK schedule to ensure the timely use of obligated funds and to ensure compliance with any environmental permits, right-of-way agreements, construction contracts, and any other commitments. PARTIES will communicate schedule risks or changes as soon as they are identified and will actively manage and mitigate schedule risks. 51. The IMPLEMENTING AGENCY for each PROJECT COMPONENT will furnish PARTIES with a final report of the WORK completed. Additional Provisions Standards 52. PARTIES will perform all WORK in accordance with federal and California laws, regulations, and standards; FHWA standards; and CALTRANS standards. CALTRANS standards include, but are not limited to, the guidance provided in the: • CALTRANS policies and directives • Project Development Procedures Manual (PDPM) • Workplan Standards Guide • Construction Manual • Construction Manual Supplement for Local Agency Resident Engineers • Local Agency Structure Representative Guidelines Noncompliant Work 53. CALTRANS retains the right to reject noncompliant WORK. CITY OF SOUTH SAN FRANCISCO agrees to suspend WORK upon request by CALTRANS for the purpose of protecting public safety, preserving property rights, and ensuring that all WORK is in the best interest of the State Highway System. Qualifications 54. Each PARTY will ensure that personnel participating in WORK are appropriately qualified or licensed to perform the tasks assigned to them. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 11 of 20 Consultant Selection 55. CITY OF SOUTH SAN FRANCISCO will invite CALTRANS to participate in the selection of any consultants that participate in the WORK. Encroachment Permits 56. CALTRANS will issue, upon proper application, the encroachment permits required for WORK within State Highway System right-of-way. Contractors and/or agents, and utility owners will not work within the State Highway System right-of-way without an encroachment permit issued in their name. CALTRANS will provide encroachment permits to PARTIES, their contractors, consultants and agents at no cost. If the encroachment permit and this AGREEMENT conflict, the requirements of this AGREEMENT will prevail. 57. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will coordinate, prepare, obtain, implement, renew, and amend any encroachment permits needed to complete the WORK. Protected Resources 58. If any PARTY discovers unanticipated cultural, archaeological, paleontological, or other protected resources during WORK, all WORK in that area will stop and that PARTY will notify all PARTIES within 24 hours of discovery. WORK may only resume after a qualified professional has evaluated the nature and significance of the discovery and CALTRANS approves a plan for its removal or protection. Disclosures 59. PARTIES will hold all administrative drafts and administrative final reports, studies, materials, and documentation relied upon, produced, created, or utilized for the WORK in confidence to the extent permitted by law and where applicable, the provisions of California Government Code section 6254.5(e) will protect the confidentiality of such documents in the event that said documents are shared between PARTIES. PARTIES will not distribute, release, or share said documents with anyone other than employees, agents, and consultants who require access to complete the WORK without the written consent of the PARTY authorized to release them, unless required or authorized to do so by law. 60. If a PARTY receives a public records request pertaining to the WORK, that PARTY will notify PARTIES within five (5) working days of receipt and make PARTIES aware of any disclosed public documents. PARTIES will consult with each other prior to the release of any public documents related to the WORK. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 12 of 20 Hazardous Materials 61. HM-1 is hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law, irrespective of whether it is disturbed by the PROJECT or not. HM-2 is hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by the PROJECT. The management activities related to HM-1 and HM-2, including and without limitation, any necessary manifest requirements and disposal facility designations are referred to herein as HM-1 MANAGEMENT and HM-2 MANAGEMENT respectively. 62. If HM-1 or HM-2 is found the discovering PARTY will immediately notify all other PARTIES. 63. CALTRANS, independent of the PROJECT, is responsible for any HM-1 found within the existing State Highway System right-of-way. CALTRANS will undertake, or cause to be undertaken, HM-1 MANAGEMENT with minimum impact to the PROJECT schedule. CALTRANS will pay, or cause to be paid, the cost of HM-1 MANAGEMENT for HM-1 found within the existing State Highway System right-of-way with funds that are independent of the funds obligated in this AGREEMENT. 64. CITY OF SOUTH SAN FRANCISCO, independent of the PROJECT, is responsible for any HM-1 found within the PROJECT limits and outside the existing State Highway System right- of-way. CITY OF SOUTH SAN FRANCISCO will undertake, or cause to be undertaken, HM-1 MANAGEMENT with minimum impact to the PROJECT schedule. CITY OF SOUTH SAN FRANCISCO will pay, or cause to be paid, the cost of HM-1 MANAGEMENT for HM-1 found within the PROJECT limits and outside of the existing State Highway System right-of-way with funds that are independent of the funds obligated in this AGREEMENT. 65. The CONSTRUCTION IMPLEMENTING AGENCY is responsible for HM-2 MANAGEMENT within the PROJECT limits. 66. CALTRANS’ acquisition or acceptance of title to any property on which any HM-1 or HM-2 is found will proceed in accordance with CALTRANS’ policy on such acquisition. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 13 of 20 Claims 67. Any PARTY that is responsible for completing WORK may accept, reject, compromise, settle, or litigate claims arising from the WORK without concurrence from the other PARTY. 68. PARTIES will confer on any claim that may affect the WORK or PARTIES’ liability or responsibility under this AGREEMENT in order to retain resolution possibilities for potential future claims. No PARTY will prejudice the rights of another PARTY until after PARTIES confer on the claim. 69. If the WORK expends state or federal funds, each PARTY will comply with the federal Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards of 2 CFR, Part 200. PARTIES will ensure that any for-profit consultant hired to participate in the WORK will comply with the requirements in 48 CFR, Chapter 1, Part 31. When state or federal funds are expended on the WORK these principles and requirements apply to all funding types included in this AGREEMENT. Accounting and Audits 70. PARTIES will maintain, and will ensure that any consultant hired by PARTIES to participate in WORK will maintain, a financial management system that conforms to Generally Accepted Accounting Principles (GAAP), and that can properly accumulate and segregate incurred PROJECT costs and billings. 71. PARTIES will maintain and make available to each other all WORK-related documents, including financial data, during the term of this AGREEMENT. PARTIES will retain all WORK-related records for three (3) years after the final voucher. PARTIES will require that any consultants hired to participate in the WORK will comply with this Article. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 14 of 20 72. PARTIES have the right to audit each other in accordance with generally accepted governmental audit standards. CALTRANS, the state auditor, FHWA (if the PROJECT utilizes federal funds), and CITY OF SOUTH SAN FRANCISCO will have access to all WORK -related records of each PARTY, and any consultant hired by a PARTY to participate in WORK, for audit, examination, excerpt, or transcription. The examination of any records will take place in the offices and locations where said records are generated and/or stored and will be accomplished during reasonable hours of operation. The auditing PARTY will be permitted to make copies of any WORK-related records needed for the audit. The audited PARTY will review the draft audit, findings, and recommendations, and provide written comments within thirty (30) calendar days of receipt. Upon completion of the final audit, PARTIES have forty-five (45) calendar days to refund or invoice as necessary in order to satisfy the obligation of the audit. Any audit dispute not resolved by PARTIES is subject to mediation. Mediation will follow the process described in the General Conditions section of this AGREEMENT. 73. If the WORK expends state or federal funds, each PARTY will undergo an annual audit in accordance with the Single Audit Act in the federal Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards as defined in 2 CFR, Part 200. 74. When a PARTY reimburses a consultant for WORK with state or federal funds, the procurement of the consultant and the consultant overhead costs will be in accordance with Chapter 10 of the Local Assistance Procedures Manual. Interruption of Work 75. If WORK stops for any reason, IMPLEMENTING AGENCY will place the PROJECT right- of-way in a safe and operable condition acceptable to CALTRANS. 76. If WORK stops for any reason, each PARTY will continue to implement the obligations of this AGREEMENT, including the commitments and conditions included in the environmental documentation, permits, agreements, or approvals that are in effect at the time that WORK stops, and will keep the PROJECT in environmental compliance until WORK resumes. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 15 of 20 Penalties, Judgements and Settlements 77. The cost of awards, judgments, or settlements generated by the WORK are to be paid from the funds obligated in this AGREEMENT. 78. The cost of legal challenges to the environmental process or documentation may be paid from the funds obligated in this AGREEMENT. 79. Any PARTY who action or lack of action causes the levy of fines, interest, or penalties will indemnify and hold all other PARTIES harmless per the terms of this AGREEMENT. Project Files 80. CITY OF SOUTH SAN FRANCISCO will furnish CALTRANS with the Project History Files related to the PROJECT facilities on State Highway System within sixty (60) days following the completion of each PROJECT COMPONENT. CITY OF SOUTH SAN FRANCISCO will prepare the Project History File in accordance with the Project Development Procedures Manual, Chapter 7. All material will be submitted neatly in a three-ring binder and on a CD ROM in PDF format. Environmental Compliance 81. If during performance of WORK additional activities or environmental documentation is necessary to keep the PROJECT in environmental compliance, PARTIES will amend this AGREEMENT to include completion of those additional tasks. GENERAL CONDITIONS Venue 82. PARTIES understand that this AGREEMENT is in accordance with and governed by the Constitution and laws of the State of California. This AGREEMENT will be enforceable in the State of California. Any PARTY initiating legal action arising from this AGREEMENT will file and maintain that legal action in the Superior Court of the county in which the CALTRANS district office that is signatory to this AGREEMENT resides, or in the Superior Court of the county in which the PROJECT is physically located. Exemptions 83. All CALTRANS’ obligations under this AGREEMENT are subject to the appropriation of resources by the Legislature, the State Budget Act authority, and the allocation of funds by the California Transportation Commission. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 16 of 20 Indemnification 84. Neither CALTRANS nor any of their officers and employees, are responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY OF SOUTH SAN FRANCISCO, its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CITY OF SOUTH SAN FRANCISCO under this AGREEMENT. It is understood and agreed that CITY OF SOUTH SAN FRANCISCO, to the extent permitted by law, will defend, indemnify, and save harmless CALTRANS and all of their officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by CITY OF SOUTH SAN FRANCISCO, its contractors, sub-contractors, and/or its agents under this AGREEMENT. 85. Neither CITY OF SOUTH SAN FRANCISCO nor any of their officers and employees, are responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CALTRANS under this AGREEMENT. It is understood and agreed that CALTRANS, to the extent permitted by law, will defend, indemnify, and save harmless CITY OF SOUTH SAN FRANCISCO and all of their officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under this AGREEMENT. Non-parties 86. PARTIES do not intend this AGREEMENT to create a third party beneficiary or define duties, obligations, or rights for entities not signatory to this AGREEMENT. PARTIES do not intend this AGREEMENT to affect their legal liability by imposing any standard of care for fulfilling the WORK different from the standards imposed by law. 87. PARTIES will not assign or attempt to assign obligations to PARTIES not signatory to this AGREEMENT without an amendment to this AGREEMENT. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 17 of 20 Ambiguity and Performance 88. CITY OF SOUTH SAN FRANCISCO will not interpret any ambiguity contained in this AGREEMENT against CALTRANS. CITY OF SOUTH SAN FRANCISCO waives the provisions of California Civil Code section 1654. A waiver of a PARTY’s performance under this AGREEMENT will not constitute a continuous waiver of any other provision. 89. A delay or omission to exercise a right or power due to a default does not negate the use of that right or power in the future when deemed necessary. Defaults 90. If any PARTY defaults in its performance of the WORK, a non-defaulting PARTY will request in writing that the default be remedied within thirty (30) calendar days. If the defaulting PARTY fails to do so, the non-defaulting PARTY may initiate dispute resolution. Dispute Resolution 91. PARTIES will first attempt to resolve AGREEMENT disputes at the PROJECT team level as described in the Quality Management Plan. If they cannot resolve the dispute themselves, the CALTRANS district director and the executive officer of CITY OF SOUTH SAN FRANCISCO will attempt to negotiate a resolution. If PARTIES do not reach a resolution, PARTIES’ legal counsel will initiate mediation. PARTIES agree to participate in mediation in good faith and will share equally in its costs. Neither the dispute nor the mediation process relieves PARTIES from full and timely performance of the WORK in accordance with the terms of this AGREEMENT. However, if any PARTY stops fulfilling its obligations, any other PARTY may seek equitable relief to ensure that the WORK continues. Except for equitable relief, no PARTY may file a civil complaint until after mediation, or forty-five (45) calendar days after filing the written mediation request, whichever occurs first. PARTIES will file any civil complaints in the Superior Court of the county in which the CALTRANS district office signatory to this AGREEMENT resides or in the Superior Court of the county in which the PROJECT is physically located. 92. PARTIES maintain the ability to pursue alternative or additional dispute remedies if a previously selected remedy does not achieve resolution. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 18 of 20 Prevailing Wage 93. When WORK falls within the Labor Code § 1720(a)(1) definition of "public works" in that it is construction, alteration, demolition, installation, or repair; or maintenance work under Labor Code § 1771, PARTIES will conform to the provisions of Labor Code §§ 1720-1815, and all applicable provisions of California Code of Regulations found in Title 8, Division 1, Chapter 8, Subchapter 3, Articles 1-7. PARTIES will include prevailing wage requirements in contracts for public work and require contractors to include the same prevailing wage requirements in all subcontracts. Work performed by a PARTY’s own employees is exempt from the Labor Code's Prevailing Wage requirements. If WORK is paid for, in whole or part, with federal funds and is of the type of work subject to federal prevailing wage requirements, PARTIES will conform to the provisions of the Davis- Bacon and Related Acts, 40 U.S.C. §§ 3141-3148. When applicable, PARTIES will include federal prevailing wage requirements in contracts for public works. WORK performed by a PARTY’s employees is exempt from federal prevailing wage requirements. Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 19 of 20 DEFINITIONS PARTY – Any individual signatory party to this AGREEMENT. PARTIES – The term that collectively references all of the signatory agencies to this AGREEMENT. WORK BREAKDOWN STRUCTURE (WBS) – A WBS is a standardized hierarchical listing of project work activities/products in increasing levels of detail. The CALTRANS WBS defines each PROJECT COMPONENT as a group of work activities/products. The CALTRANS Work Breakdown Structure is defined in the CALTRANS Workplan Standards Guide. Contact Information CALTRANS Joonkoo Kang, Project Manager 111 Grand Ave Oakland, CA 94612 Office Phone: 510-622-0130 Email: [email protected] CITY OF SOUTH SAN FRANCISCO Eunejune Kim, Director of Public Works 550 N. Canal City of South San Francisco, CA 94080 Office Phone: (650) 887-8550 Fax Number: (650) 887-8665 Email: [email protected] Agreement 04-2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 20 of 20 SIGNATURES PARTIES are empowered by California Streets and Highways Code to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this AGREEMENT on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this AGREEMENT. Signatories may execute this AGREEMENT through individual signature pages provided that each signature is an original. This AGREEMENT is not fully executed until all original signatures are attached. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION Helena (Lenka) Culik-Caro Deputy District Director, Design VERIFICATION OF FUNDS AND AUTHORITY: Jeffrey Armstrong District Budget Manager CERTIFIED AS TO FINANCIAL TERMS AND POLICIES: _ Tamara Warren HQ Accounting Supervisor CITY OF SOUTH SAN FRANCISCO Mike Futrell City Manager Attest: Name : Krista Martinelli Title : City Clerk Approved as to form and procedure: Jason Rosenberg City Attorney AGREEMENT 04 - 2684 Project No. 0416000115 EA 4G602 04-SM-82-20.5 Project Development Agreement 2017-02-17 (Created October 30, 2017) 1 of 2 FUNDING SUMMARY NO. 01 FUNDING TABLE v. 2 IMPLEMENTING AGENCY CITY OF SOUTH SAN FRANCISCO Totals Source Party Fund Type CONST. SUPPORT CONST. CAPITAL STATE CALTRANS STIP/IIP 0 1,991,000 1,991,000 LOCAL City of South San Francisco Local 445,140 976,600 1,421,740 Totals 445,140 2,967,600 3,412,740 SPENDING SUMMARY v 21 CONST. SUPPORT CONST. CAPITAL Fund Type CALTRANS CITY OF SOUTH SAN FRANCISCO CITY OF SOUTH SAN FRANCISCO Totals STIP/IIP 0 0 1,991,000 1,991,000 Local 0 445,140 976,600 1,421,740 Totals 0 445,140 2,967,600 3,412,740 FUNDING SUMMARY No. 01 AGREEMENT 04 - 2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 2 of 4 Funding 1. If there are insufficient funds available in this AGREEMENT to place the PROJECT right- of-way in a safe and operable condition, the appropriate IMPLEMENTING AGENCY will fund these activities until such time as PARTIES amend this AGREEMENT. That IMPLEMENTING AGENCY may request reimbursement for these costs during the amendment process. 2. If there are insufficient funds in this AGREEMENT to implement the obligations and responsibilities of this AGREEMENT, including the applicable commitments and conditions included in the PROJECT environmental documentation, permits, agreements, and/or approvals that are in effect at a time that WORK stops, each PARTY accepts responsibility to fund their respective WORK until such time as PARTIES amend this AGREEMENT. Each PARTY may request reimbursement for these costs during the amendment process. ICRP Rate 3. The cost of any engineering support performed by CALTRANS includes all direct and applicable indirect costs. CALTRANS calculates indirect costs based solely on the type of funds used to pay support costs. State and federal funds administered by CALTRANS are subject to the current Program Functional Rate. All other funds are subject to the current Program Functional Rate and the current Administration Rate. The Program Functional Rate and Administration Rate are adjusted periodically. 4. If the WORK is funded with state or federal funds, any PARTY seeking CALTRANS reimbursement of indirect costs must submit an indirect cost rate proposal and central service cost allocation plan (if any) in accordance with 2 CFR, Part 200 and Chapter 5 of the Local Assistance Procedures Manual. These documents are to be submitted annually to CALTRANS’ Audits and Investigations for review and acceptance prior to CALTRANS’ reimbursement of indirect costs. 5. Travel, per diem, and third-party contract reimbursements for WORK are to be paid from the funds in this AGREEMENT only after the contractor performs the work and incurs said costs. AGREEMENT 04 - 2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 3 of 4 Payments for travel and per diem will not exceed the rates paid rank and file state employees under current California Department of Personnel Administration (DPA) rules current at the effective date of this AGREEMENT. If CITY OF SOUTH SAN FRANCISCO invoices for rates in excess of DPA rates, CITY OF SOUTH SAN FRANCISCO will fund the cost difference and reimburse CALTRANS for any overpayment. 6. In accordance with the CALTRANS Federal-Aid Project Funding Guidelines, PARTIES must obtain approval from the Federal Highway Administration prior to any PROJECT funding changes that that will change the federal share of funds. Invoicing and Payment 7. PARTIES will invoice for funds where the SPENDING SUMMARY shows that one PARTY provides funds for use by another PARTY. PARTIES will pay invoices within forty-five (45) calendar days of receipt of invoice when not paying with Electronic Funds Transfer (EFT). When paying with EFT, CITY OF SOUTH SAN FRANCISCO will pay invoices within five (5) calendar days of receipt of invoice. 8. If CITY OF SOUTH SAN FRANCISCO has received EFT certification from CALTRANS then CITY OF SOUTH SAN FRANCISCO will use the EFT mechanism and follow all EFT procedures to pay all invoices issued from CALTRANS. 9. When a PARTY is reimbursed for actual cost, invoices will be submitted each month for the prior month's expenditures. After all PROJECT COMPONENT WORK is complete, PARTIES will submit a final accounting of all PROJECT COMPONENT costs. Based on the final accounting, PARTIES will invoice or refund as necessary to satisfy the financial commitments of this AGREEMENT. 10. If an executed Program Supplement Agreement (PSA) or STIP Planning, Programming, and Monitoring Program Fund Transfer Agreement (PPM) exists for this PROJECT then CITY OF SOUTH SAN FRANCISCO will abide by the billing and payment conditions detailed for the fund types identified in the PSA or PPM. 11. If CALTRANS reimburses CITY OF SOUTH SAN FRANCISCO for any costs later determined to be unallowable, CITY OF SOUTH SAN FRANCISCO will reimburse those funds. 12. CALTRANS fund contribution for the PROJECT will not exceed a total of $1,991,000. AGREEMENT 04 - 2684 Project No. 0416000115 Project Development Agreement 2017-02-17 (Created October 30, 2017) 4 of 4 CONSTRUCTION Support 13. CITY OF SOUTH SAN FRANCISCO will invoice and CALTRANS will reimburse for actual costs incurred and paid. CONSTRUCTION Capital 14. CITY OF SOUTH SAN FRANCISCO will invoice and CALTRANS will reimburse for actual costs incurred and paid.