HomeMy WebLinkAboutReso 152-2018 (18-773)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
• City Council
Resolution: RES 152 -2018
File Number: 18 -773 Enactment Number: RES 152 -2018
RESOLUTION APPROVING THE MASTER FUNDING
AGREEMENT WITH THE METROPOLITAN TRANSPORTATION
COMMISSION FOR FISCAL YEAR 2017 -18 THROUGH FISCAL
YEAR 2026 -27 AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID AGREEMENT.
WHEREAS, staff recommends approval of the Master Funding Agreement with the Metropolitan
Transportation Commission ( "MTC ") for Fiscal Year 2017 -18 through Fiscal Year 2026 -2027; and
WHEREAS, the City of South San Francisco's ( "City ") administration of state and federally funded
local transportation projects is carried out under a Master Administrating Agreement with the MTC; and
WHEREAS, in a Master Funding Agreement, the local agency agrees to comply with all Federal and
State laws, regulations, policies and procedures relative to the design, right -of -way acquisition,
environmental compliance and construction; and
WHEREAS, each individual grant - funded project requires an execution of a Funding Agreement
( "Agreement ") for local match contribution which defines the funding information and other covenants
governing reimbursement of the City's costs; and
WHEREAS, the Agreement will allow the City to seek reimbursement at the maximum of $565,330 of
eligible design and construction phase costs for the Innovative Deployments to Enhance Arterials
( "IDEA ") Category 1 Project; and
WHEREAS, on February 7, 2018, the City of South San Francisco was notified via a letter that the
City's Category 1 Project grant application was selected for an award amount of $565,330; and
WHEREAS, the core goals of the IDEA Program are to improve travel time and travel time reliability
along arterials for automobiles and transit vehicles, improve safety for all users, decrease emissions and
fuel consumption and improve knowledge of and proficiency in the use of advanced technologies for
arterial operations; and
WHEREAS, the Agreement will specifically allow the City to use funds to improve arterial operation
and incident management by deploying automated traffic signal performance measures on several
corridors and implementing variable lane assignment operational strategy at one of the City's major
signalized intersections; and
City of South San Francisco Page 1
File Number. 18 -773
Enactment Number., RES 152 -2018
WHEREAS, the project area includes Airport Boulevard, Gateway Boulevard, Oyster Point Boulevard,
Forbes Boulevard, East Grand Avenue and South Airport Boulevard; and
WHEREAS, the Agreement authorizes Federal funding reimbursement in the amount of $565,330 for
the design and construction phase work; and
WHEREAS, the reimbursable project funding specified in this agreement is included in the City of
South San Francisco's Fiscal Year 2018 -19 Capital Improvement Program.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco that
the Master Funding Agreement with the Metropolitan Transportation Commission for Fiscal Year
2017 -18 through the Fiscal Year 2026 -27 is approved.
BE IT FURTHER RESOLVED, by the City Council of the City of South San Francisco that the City
Manager is authorized to execute the Master Funding Agreement with the Metropolitan Transportation
Commission for Fiscal Year 2017 -18 through the Fiscal Year 2026 -27, on behalf of the City.
BE IT FURTHER RESOLVED, that the City Manager is authorized to take any other action consistent
with the intent of this Resolution, subject to approval as to form by the City Attorney.
BE IT FURTHER RESOLVED, that execution of the Agreement will allow the City to obtain Federal
funds for reimbursement through the existing Funding Agreement for the Innovative Deployments to
Enhance Arterials (IDEA) Category 1 Project.
At a meeting of the City Council on 9/12/2018, a motion was made by Pradeep Gupta, seconded by Mark
Addiego, that this Resolution be approved. The motion passed.
Yes: 4 Mayor Normandy, Mayor Pro Tem Matsumoto, Councilmember Gupta, and
Absent
City of South San Francisco Page 2
MASTER FUNDING AGREEMENT
BETWEEN THE METROPOLITAN TRANSPORTATION COMMISSION
AND
THE CITY OF SOUTH SAN FRANCISCO
PLANNING, PROGRAMMING,
TRANSPORTATION, TRANSIT, LAND USE OR OTHER PROJECTS
FOR
FISCAL YEAR 2018-19 through FISCAL YEAR 2027-28
EXHIBIT A
Page 1 of 53
TABLE OF CONTENTS
ARTICLE PAGE
1.0 GENERAL ......................................................................................................................... 4
2.0 INTERAGENCY AGREEMENT ADMINISTRATION .............................................. 5
3.0 FUNDING .......................................................................................................................... 5
4.0 TERM................................................................................................................................. 6
5.0 PAYMENT ........................................................................................................................ 6
6.0 DELAYS AND FAILURE TO PERFORM .................................................................... 6
7.0 AMENDMENTS ............................................................................................................... 6
8.0 TERMINATION ............................................................................................................... 7
9.0 USE OF THIRD PARTY CONTRACTS ....................................................................... 7
10.0 INDEMNIFICATION ...................................................................................................... 7
11.0 LAWS AND REGULATIONS ........................................................................................ 7
12.0 RECORDS ......................................................................................................................... 8
13.0 AUDITS ............................................................................................................................. 8
14.0 SUBCONTRACTS ............................................................................................................ 8
15.0 PROHIBITED INTERESTS............................................................................................ 9
16.0 ORGANIZATIONAL CONFLICTS OF INTEREST ................................................... 9
17.0 CHOICE OF LAW ......................................................................................................... 10
18.0 PARTIAL INVALIDITY ............................................................................................... 10
19.0 NO THIRD PARTY BENEFICIARIES ....................................................................... 10
20.0 ORDER OF PRECEDENCE ......................................................................................... 11
EXHIBIT A, FORM OF SUPPLEMENT ................................................................................ 12
EXHIBIT B-2, ADDITIONAL TERMS AND CONDITIONS (FEDERALLY REQUIRED
CLAUSES) ................................................................................................................................... 15
CERTIFICATION OF RESTRICTIONS ON LOBBYING................................................... 23
EXHIBIT B-3, ADDITIONAL TERMS AND CONDITIONS (STATE REQUIRED
CLAUSES) ................................................................................................................................... 24
EXHIBIT B-4, ADDITIONAL TERMS AND CONDITIONS (PREVAILING WAGE
RATES, APPRENTICESHIPS, AND PAYROLL RECORDS, NON FEDERALLY
FUNDED AGREEMENTS) ....................................................................................................... 37
EXHIBIT B-5, ADDITIONAL TERMS AND CONDITIONS (PREVAILING WAGE
RATES, APPRENTICESHIPS, AND PAYROLL RECORDS, FEDERALLY FUNDED
AGREEMENTS) ......................................................................................................................... 38
EXHIBIT A
Page 2 of 53
EXHIBIT B-6, ADDITIONAL TERMS AND CONDITIONS (RM1, RM2, AB 1171) ....... 42
EXHIBIT B-7, ADDITIONAL TERMS AND CONDITIONS (STP) .................................... 49
EXHIBIT C, FORM 10-C .......................................................................................................... 53
EXHIBIT A
Page 3 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 4
MASTER FUNDING AGREEMENT
Between METROPOLITAN TRANSPORTATION COMMISSION
And THE CITY OF SOUTH SAN FRANCISCO
For PLANNING, PROGRAMMING,
TRANSPORTATION, TRANSIT, LAND USE OR OTHER PROJECTS
This Master Funding Agreement, effective as of July 1, 2018 (this “Master Funding
Agreement” or “Agreement”), is entered into by and between the Metropolitan Transportation
Commission (hereafter "MTC"), a regional transportation planning agency established pursuant
to California Government Code § 66500 et seq., and the City of South San Francisco (hereafter
"AGENCY"). MTC and AGENCY are collectively referred to herein as “the Parties.”
WITNESSETH
WHEREAS, MTC has been designated as the Metropolitan Planning Organization
(MPO - federal) and the Regional Transportation Planning Agency (“RTPA” - state) for the San
Francisco Bay Region; and
WHEREAS, MTC from time to time expects to provide funds available to it as MPO,
RTPA or otherwise to AGENCY; and
WHEREAS, it is expected that these funds will be used for planning, programming,
transportation, transit, land use or other projects relevant to MTC or its statutory purposes (the
“Project” or “Projects”); and
WHEREAS, the Parties wish to set forth the terms and conditions under which MTC may
from time to time provide funding to AGENCY for the period from July 1, 2017 to June 30,
2028; and
WHEREAS, before MTC will make funds available hereunder, MTC and AGENCY will
enter into at least one Supplement to this Master Funding Agreement, which must be in
substantially the form attached hereto as Exhibit A (each, a “Supplement”) to establish the terms
and conditions applicable to AGENCY when receiving funds for the Project;
NOW, THEREFORE, the Parties hereto agree as follows:
1.0 GENERAL
This Master Funding Agreement shall have no force and effect with respect to a Project
or any portion thereof unless and until a Supplement has been fully executed by both MTC and
EXHIBIT A
Page 4 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 5
AGENCY governing the relevant Project. Exhibit A, Form of Supplement, is attached hereto and
incorporated herein. Each Supplement shall include the following information:
a. A description of the applicable Project scope of work;
b. A maximum payment amount for the applicable Project scope of work;
c. An indication of whether the various clauses attached hereto as Exhibits B-1
through B-7 shall apply to AGENCY’s implementation of the applicable Project scope of work;
d. Any additional covenants, conditions, restrictions or reporting requirements that
apply to the applicable Project scope of work or funding source MTC is providing to AGENCY;
e. Identification of the MTC and AGENCY project managers for the applicable
Project scope of work;
f. The estimated budget and payment milestones for the applicable Project scope of
work; and
g. Any MTC or AGENCY resolutions, authorizations or approvals, or any other key
documents, relevant to the applicable Project scope of work or funding source MTC is providing
to AGENCY.
Upon execution by MTC and AGENCY of such a Supplement, AGENCY shall assume
the responsibility for implementing the applicable Project scope of work, and MTC will
administer funding to AGENCY in accordance with this Agreement, the applicable Supplement,
and any other documents incorporated by reference into such Supplement.
2.0 INTERAGENCY AGREEMENT ADMINISTRATION
The administration of this Agreement will be conducted by MTC staff. Day-to-day
management of individual projects required under this Agreement is assigned to the appropriate
Project Manager at AGENCY and Project Manager at MTC, as set forth in the applicable
Supplement.
3.0 FUNDING
A. The total compensation to be paid to AGENCY under this Agreement shall be the
sum of the amounts of compensation payable to AGENCY as set forth in each Supplement.
B. AGENCY and MTC jointly agree to exert their best efforts to manage each
component of the Project in such a way that prevents costs from exceeding the estimated budget
set forth in the applicable Supplement.
C. Reimbursement of AGENCY travel expenses and per diem rates are not to exceed
the rate specified by the State of California Department of Personnel Administration for similar
employees (i.e. non-representative employees)
EXHIBIT A
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MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 6
4.0 TERM
This Agreement is in effect from July 1, 2018 to June 30, 2028. This Agreement term
may be extended by mutual written agreement.
5.0 PAYMENT
Contingent upon AGENCY’s satisfactory completion of work products or milestones, as
applicable, required under the applicable Supplement, AGENCY shall submit invoices to MTC
for that portion of the funds available to AGENCY that have been expended. This invoice will
be in the format and provided no more frequently than prescribed by MTC in the applicable
Supplement. In addition, all supporting documentation must accompany expenditures included
on AGENCY invoices. Payment shall be made by MTC within thirty (30) days of receipt of an
acceptable invoice, which shall be subject to the review and approval of MTC’s Project Manager
or a designated representative. Approval of an invoice shall not be unreasonably withheld.
AGENCY should submit invoices electronically via email to MTC at [email protected] or
deliver or mail invoices to MTC, as follows:
Attention: Accounting Section
Metropolitan Transportation Commission
Bay Area Metro Center
375 Beale Street, Suite 800
San Francisco, CA, 94105
6.0 DELAYS AND FAILURE TO PERFORM
Whenever AGENCY encounters any difficulty that will delay timely performance of
work, AGENCY shall notify MTC in writing. The parties agree to cooperate to work out a
mutually satisfactory course of action.
If MTC determines that (a) AGENCY’s failure to complete a product on a timely basis is
due to causes solely within AGENCY’s control; and/or (b) AGENCY has failed to consider
MTC recommendations aimed at facilitating progress toward that product, MTC may impose
such sanctions as it may determine appropriate. Sanctions may include withholding of
commensurate payment due under this Agreement until compliance is achieved.
7.0 AMENDMENTS
This Agreement or any Supplement hereto may be amended by mutual agreement of
MTC and AGENCY at any time during the term of the Agreement. All such changes shall be
incorporated in written amendments, which shall specify the changes in work performed and any
EXHIBIT A
Page 6 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 7
adjustments in compensation and schedule. All amendments shall be executed by the authorized
Executive or a designated representative of MTC and AGENCY and specifically identified as
amendments to the Agreement. The MTC Project Manager is not a designated representative,
for purposes of executing an amendment.
8.0 TERMINATION
Either party may terminate this Agreement, in whole or in part, at any time upon
ninety (90) days’ written notice. In this event, AGENCY shall submit a requisition to MTC for
an amount representing the actual cost of services performed up to the effective date of
termination for which AGENCY has not been previously reimbursed. In no event shall the
maximum expenditure allowed under this Agreement, as it may be adjusted by a written
amendment signed by both parties, be exceeded. Upon payment of the amount found due, MTC
shall be under no further obligation to AGENCY, monetarily or otherwise.
9.0 USE OF THIRD PARTY CONTRACTS
AGENCY may subcontract or subvene funds to local agencies, consultants or contractors
for performance of portions of the work required under this Agreement, without the prior written
consent of MTC, provided AGENCY complies with any other applicable requirements of this
Agreement and the applicable Supplement hereto, and applicable federal and state requirements.
10.0 INDEMNIFICATION
AGENCY shall indemnify, defend, and hold harmless MTC, its Commissioners,
representatives, agents and employees from and against all claims, injury, suits, demands,
liability, losses, damages and expenses, whether direct or indirect (including any and all costs
and expenses in connection therewith), incurred by reason of any act or failure to act of
AGENCY, its officers, employees or agents, or subconsultants or any of them in connection with
this Agreement.
11.0 LAWS AND REGULATIONS
AGENCY shall comply with any and all laws, statutes, ordinances, rules, regulations or
requirements of the federal, state and/or a local government, and of any agency thereof,
including but not limited to the California Department of Transportation (Caltrans) Local
Assistance Procedures Manual, as they exist at the time of execution of the Agreement and as
they may be amended in the future, which relate to or in any manner affect the performance of
this Agreement and any Supplements.
EXHIBIT A
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MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 8
12.0 RECORDS
AGENCY agrees to establish and maintain an accounting system conforming to generally
accepted accounting principles (GAAP) that is adequate to accumulate and segregate reasonable,
allowable, and allocable project costs. AGENCY further agrees to keep all records pertaining to
the Project(s) being funded for audit purposes for a minimum of: (a) three (3) years following
final payment to AGENCY, (b) four (4) years following the fiscal year of last expenditure under
the Agreement; or (c) until completion of any litigation, claim or audit, whichever is longest.
13.0 AUDITS
AGENCY shall permit MTC and MTC’s authorized representatives to have access to
AGENCY’s books, records, accounts, and any and all work products, materials, and other data
relevant to this Agreement, for the purpose of making an audit, examination, excerpt and
transcription during the term of this Agreement and for the period specified in Article 12.
AGENCY shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts,
work products, materials and data for that period of time. Such permission shall extend to books,
records, accounts, and any and all work products, materials, and other data relevant to this
Agreement of the AGENCY’s contractors and subcontractors, if any. If applicable, should MTC
request access to the construction site and related field operations, MTC shall provide reasonable
notice to AGENCY, and AGENCY shall provide access as it deems reasonable and safe, subject
to the rights of the property owner if such owner is not AGENCY.
AGENCY further agrees to include in all its subcontracts hereunder exceeding $25,000 a
provision to the effect that the subconsultant agrees that MTC or any of MTC’s duly authorized
representatives shall have access to and the right to examine any directly pertinent books,
documents, papers, and records of such subconsultant for the term specified above.
“Subconsultant” is defined in Article 14.0 Subcontracts, below.
14.0 SUBCONTRACTS
A. For purposes of this Agreement, “subconsultant” shall mean any consultant or
contractor under contract with the AGENCY to perform Project work. Any subconsultants
must be engaged under written contract with AGENCY with provisions allowing AGENCY to
comply with all requirements of this Agreement. Failure of a subconsultant to provide any
insurance required under this Agreement shall be at the risk of AGENCY. MTC’s Project
Manager shall be notified in writing of any substitution or addition of subconsultants.
For any Project funded by FTA, FHWA or Caltrans, AGENCY shall complete Form 10-C, as
may be revised by Caltrans from time to time, the current version of which is attached hereto as
EXHIBIT A
Page 8 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 9
Exhibit C, Form 10-C, within thirty (30) days of executing an agreement with a subconsultant
and submit it to MTC’s Project Manager. MTC shall not process payment of any invoice under
the applicable Supplement relating to work by a subconsultant unless AGENCY shall have
submitted to MTC a Form 10-C with respect to its contract with such subconsultant.
B. Nothing contained in this Agreement or otherwise, shall create any contractual
relation between MTC and any subconsultants, and no subcontract shall relieve AGENCY of
his/her responsibilities and obligations hereunder. AGENCY agrees to be as fully responsible to
MTC for the acts and omissions of its subconsultants and of persons either directly or indirectly
employed by any of them as it is for the acts and omissions of persons directly employed by
AGENCY. AGENCY's obligation to pay its subconsultants is an independent obligation from
MTC's obligation to make payments to AGENCY.
C. Applicable provisions of this Agreement shall be included in any subcontract or
subconsultant agreement in excess of $25,000 entered into under of this Agreement.
15.0 PROHIBITED INTERESTS
No member, officer, employee or agent of MTC, during his/her tenure shall have any
prohibited interest as defined by California Government Code Sections 1090, et seq., direct or
indirect, in the Agreement or the proceeds thereof. Prohibited interests include interests of
immediate family members, domestic partners, and their employers or prospective employers.
Accordingly, AGENCY further covenants that it has made a complete disclosure to MTC of all
facts of which AGENCY is aware upon due inquiry bearing upon any possible interest, direct or
indirect, that it believes any member, officer, agent or employee of MTC (or an immediate
family member, domestic partner or employer or prospective employer of such member, officer,
agent or employee) presently has, or will have in the Agreement, or in the performance thereof,
or in any portion of the profits thereunder. Willful failure to make such disclosure, if any, shall
constitute grounds for cancellation and termination hereof by MTC.
16.0 ORGANIZATIONAL CONFLICTS OF INTEREST
AGENCY shall take all reasonable measures to preclude the existence or development of
an organizational conflict of interest in connection with work performed by subconsultants or
subcontractors under this Agreement. An organizational conflict of interest occurs when, due to
other activities, relationships, or contracts, a firm or person is unable, or potentially unable, to
render impartial assistance or advice to MTC or AGENCY; a firm or person’s objectivity in
performing the contract work is or might be impaired; or a firm or person has an unfair
EXHIBIT A
Page 9 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 10
competitive advantage in proposing for award of a contract as a result of information gained in
performance of this or some other Agreement.
AGENCY shall not engage the services of any subconsultant or subcontractor on any
work related to this Agreement if the subconsultant or subcontractor, or any employee of the
subconsultant or subcontractor, has an actual or apparent organizational conflict of interest
related to work or services contemplated under this Agreement.
If at any time during the term of this Agreement AGENCY becomes aware of an
organizational conflict of interest in connection with the work performed by a subconsultant or
subcontractor hereunder, AGENCY shall immediately provide MTC with written notice of the
facts and circumstances giving rise to this organizational conflict of interest. AGENCY’s written
notice will also describe alternatives for addressing or eliminating the organizational conflict of
interest. If at any time during the period of performance of this Agreement, MTC becomes
aware of an organizational conflict of interest in connection with performance of any work
hereunder by a subconsultant or subcontractor, MTC shall similarly notify AGENCY. In the
event a conflict is presented, whether disclosed by AGENCY or its subconsultant or
subcontractor, or discovered by MTC, MTC will consider the conflict presented and any
alternatives proposed and meet with AGENCY to determine an appropriate course of action.
MTC’s determination as to the manner in which to address the conflict shall be final.
Failure to comply with this section may subject AGENCY or its subconsultant or
subcontractor to damages incurred by MTC in addressing organizational conflicts that arise out
of work performed by such subconsultant or subcontractor, or to termination of this Agreement
for breach.
17.0 CHOICE OF LAW
All questions pertaining to the validity and interpretation of the Agreement shall be
determined in accordance with the laws of the State of California applicable to agreements made
and to be performed within the State.
18.0 PARTIAL INVALIDITY
If any term or condition of this Agreement is found to be illegal or unenforceable, such
term or condition shall be deemed stricken and the remaining terms and conditions shall remain
valid and in full force and effect.
19.0 NO THIRD PARTY BENEFICIARIES
This Agreement is not for the benefit of any person or entity other than the parties.
EXHIBIT A
Page 10 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 11
20.0 ORDER OF PRECEDENCE
In the event of a conflict in the provisions of this Agreement, any Supplement hereto, or
the Exhibits hereto incorporated by reference into such Supplement, the following order of
priority shall be used in resolving such conflict: the applicable Supplement shall have first
priority, then the Exhibits incorporated into such Supplement, then this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the day and year first written above.
METROPOLITAN TRANSPORTATION
COMMISSION
CITY OF SOUTH SAN FRANCISCO
Steve Heminger, Executive Director Mike Futrell, City Manager
J:\CONTRACT\Contracts-New\CON 17-18\Funding Agreements\IDEA Program\Cat 1\draft finals\South San Francisco\South San Francisco
Master Funding Agreement - IDEA Cat 1 (Transfer) - Final.docx
EXHIBIT A
Page 11 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 12
EXHIBIT A
FORM OF SUPPLEMENT
SUPPLEMENT 1 TO MASTER FUNDING AGREEMENT
This Supplement No. ___ to Master Funding Agreement (“Supplement or “Agreement”)
is entered into this , 2018, by and between the Metropolitan Transportation Commission
(hereafter “MTC”) and the City of South San Francisco (hereafter “AGENCY”) and supplements
the Master Funding Agreement, dated ____ ___, 2018, by and between MTC and AGENCY.
Pursuant to this Supplement, MTC agrees to provide an amount not to exceed [ dollar
amount in written form] dollars ($), consisting of $ [funding type] funds and $ matching funds
[if applicable], to AGENCY to fund the deployment of the Innovative Deployments to Enhance
Arterials (IDEA) Category 1 Project (as more fully described in Annex I hereto, the “Supplement
Project”). The estimated budget for the Supplement Project scope of work is attached as Annex
II hereto.
The AGREEMENT is funded in whole, or in part, by [funding source] Funds allocated
to MTC by the [Funding Agency], funds from which have been awarded to AGENCY by MTC.
MTC will reimburse AGENCY for its actual eligible costs incurred for completed
Supplement Project milestones or deliverables described in Annex II hereto.
The Supplement Project work will commence _______, and be completed no later than
_____.
The clauses selected below and attached as exhibits to the Master Funding Agreement
shall apply to AGENCY’s performance of the applicable Supplement Project scope of work
hereunder:
Exhibit B-1, Additional Terms and Conditions (General), Paragraph A
Exhibit B-1, Additional Terms and Conditions (General), Paragraph B
Exhibit B-2, Additional Terms and Conditions (Federally Required Clauses)
Exhibit B-3, Additional Terms and Conditions (State Required Clauses)
Exhibit B-4, Additional Terms and Conditions (Prevailing Wage Rates, Apprenticeships,
and Payroll Records, Non-Federally-Funded Agreements)
Exhibit B-5, Additional Terms and Conditions (Prevailing Wage Rates, Apprenticeships,
and Payroll Records, Federally-Funded Agreements)
Exhibit B-6, Additional Terms and Conditions (Regional Toll Funds including RM1,
RM2, and AB1171)
Exhibit B-7, Additional Terms and Conditions (Regional Discretionary Federal Funds
including STP and CMAQ)
[Insert any additional covenants, conditions, restrictions or reporting requirements that apply to
the Supplement Project scope of work or funding source MTC is providing to AGENCY.]
EXHIBIT A
Page 12 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 13
[Describe/attach any MTC or AGENCY resolutions, authorizations or approvals, or any
other key documents, relevant to the applicable Project scope of work or funding source MTC is
providing to AGENCY.]
The MTC Project Manager for the Supplement Project is [name, telephone, email]. The
AGENCY Project Manager for the Supplement Project is [name, telephone, email].
This Supplement is supplemental to the Master Funding Agreement; all terms and
conditions of the Master Funding Agreement, as may be amended, remain unchanged hereby.
Capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Master Funding Agreement.
METROPOLITAN TRANSPORTATION
COMMISSION
CITY OF SOUTH SAN FRANCISCO
Steve Heminger, Executive Director Mike Futrell, City Manager
EXHIBIT A
Page 13 of 53
MTC/City of South San Francisco
Funding Agreement for FY 2017-18 to FY 2026-27
Page 14
EXHIBIT B-1
ADDITIONAL TERMS AND CONDITIONS (GENERAL)
A. INSURANCE REQUIREMENTS
AGENCY shall, at its own expense, obtain and maintain (and/or cause its
subconsultant(s) to obtain and maintain, as applicable) the types of insurance and financial
security listed (if any) in the applicable attachment or exhibit to the relevant Supplement against
claims, damages and losses due to injuries to persons or damage to property or other losses that
may arise in connection with the performance of work under such Supplement, and in effect at
all times for the duration of such Supplement. All policies will be issued by insurers acceptable
to MTC, generally with a Best’s Rating of A- or better with a Financial Size Category of VIII or
better, or as otherwise specified in the applicable Supplement. Notwithstanding anything to the
contrary, AGENCY may satisfy the insurance requirements herein utilizing self-insurance
providing equivalent coverage.
B. CLAIMS OR DISPUTES
Unless otherwise directed in writing by MTC, AGENCY shall continue performance under
this Agreement while any matters in dispute are being resolved. Further, MTC shall pay
AGENCY for any undisputed work performed by AGENCY prior to or during the resolution of
the matters in dispute. In the event there is a dispute concerning the interpretation of this
Agreement or any aspect of the Project that the project managers identified by MTC and
AGENCY are unable to resolve, the project manager for either MTC or AGENCY may request
that an ad hoc Dispute Resolution Committee (“DRC”) be convened to resolve the dispute. The
DRC shall consist of two members, one appointed by the MTC Executive Director and the other
appointed by the Chief Executive Officer of AGENCY. The responsibility of chairing each ad
hoc DRC shall alternate between the agencies, beginning with MTC. Further, disputes between
MTC and AGENCY that cannot be resolved by the DRC may be submitted to alternative dispute
resolution, as agreed to by the parties. Fees and expenses of the mediator will be borne equally.
EXHIBIT A
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Funding Agreement for FY 2017-18 to FY 2026-27
Page 15
EXHIBIT B-2
ADDITIONAL TERMS AND CONDITIONS
FEDERALLY REQUIRED CLAUSES
1. EQUAL EMPLOYMENT OPPORTUNITY
In accordance with Title VI of the Civil Rights Act, as amended (42 U.S.C. § 2000d);
Section VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e); Section 303 of the
Age Discrimination Act of 1975, as amended (42 U.S.C. § 6102); Section 202 of the Americans
with Disabilities Act of 1990 (42 U.S.C. § 12132); and, for FTA-funded projects, 49 U.S.C. §
5332 and any implementing requirements that FTA may issue. AGENCY agrees that it will not,
on the grounds of race, religious creed, color, national origin, age, physical disability or sex,
discriminate or permit discrimination against any employee or applicant for employment.
2. DISADVANTAGED BUSINESS ENTERPRISE (DBE) POLICY
It is the policy of MTC and the U.S. Department of Transportation to ensure
nondiscrimination in the award and administration of DOT-assisted contracts and to create a
level playing field on which disadvantaged business enterprises, as defined in 49 Code of Federal
Regulations Part 26, can compete fairly for contracts and subcontracts relating to MTC’s
procurement and professional services activities.
AGENCY shall not discriminate on the basis of race, color, national origin or sex in the
performance of the applicable Supplement. AGENCY shall carry out applicable requirements of
49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by
AGENCY to carry out these requirements is a material breach of contract, which may result in
the termination of the applicable Supplement or this Agreement, or such other remedy as MTC
deems appropriate.
3. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
AGENCY agrees to comply with all the requirements imposed by Title VI of the Civil
Rights Act of 1964 (42 U.S.C. § 2000(d)) and the regulations of the Department of
Transportation issued thereunder (49 CFR Part 21). For FTA-funded projects, AGENCY further
agrees to comply with the current FTA Circular 4702.1A, “Nondiscrimination Guidelines for
FTA Recipients,” the U.S. DOT Order to Address Environmental Justice in Minority Populations
and Low-Income Populations, and the U.S. DOT Policy Guidance Concerning Recipients’
Responsibilities to Limited English Proficient (LEP) Persons.
EXHIBIT A
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4. ACCESS REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES
AGENCY agrees to comply with all applicable requirements of the Americans with
Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq.; Section 504 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; Section 16 of the Federal Transit Act,
as amended, 49 U.S.C. § 5310(f); and their implementing regulations.
5. STATE ENERGY CONSERVATION PLAN
AGENCY shall comply with all mandatory standards and policies relating to energy
efficiency that are contained in the State energy conservation plan issued in compliance with the
Energy Policy and Conservation Act (42 U.S.C. § 6321).
6. ALLOWABILITY OF COSTS
AGENCY shall comply with the cost principles (as applicable) in Office of Management
and Budget (OMB) Circulars A-87, or A-122, or 48 Code of Federal Regulations Chapter 1 Part
31, or 49 Code of Federal Regulations Part 18, or in 2 Code of Federal Regulations Parts 200 and
1201, as applicable. In addition, all subcontracts must be in accordance with 2 Code of Federal
Regulations Part 200, as applicable, MTC's funding agreement with DOT and any regulations,
guidelines and circulars of DOT, applicable as a result of such funding agreement. Further, all
subconsultants shall agree to comply with 48 Code of Federal Regulations, Chapter 1, Part 31.
7. LICENSE FOR FEDERAL GOVERNMENT PURPOSES
FTA/FHWA reserves a royalty-free, non-exclusive and irrevocable license to reproduce,
publish or otherwise use, and to authorize others to use, for federal government purposes: (a) the
copyright in any work developed under the applicable Supplement; and (b) any rights of
copyright to which MTC or AGENCY purchases ownership under the applicable Supplement.
8. IDENTIFICATION OF DOCUMENTS
All reports and other documents completed as part of the applicable Supplement shall
carry the following notation on the front cover or title page:
"The preparation of this report has been financed in part by grants from the: [select
appropriate agency] Federal Transit Administration/Federal Highway Administration, U.S.
Department of Transportation. The contents of this report do not necessarily reflect the official
views or policy of the U.S. Department of Transportation."
EXHIBIT A
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9. AUDITS
AGENCY agrees to grant MTC, the U.S. DOT, FTA or FHWA, as applicable, the
Comptroller General of the United States, the State of California, and their authorized
representatives access to AGENCY’s books, records, accounts, and any and all work products,
materials, and other data relevant to the applicable Supplement, for the purpose of making an
audit, examination, excerpt and transcription during the term of the applicable Supplement and
for the period specified in Article 14. AGENCY shall in no event dispose of, destroy, alter, or
mutilate said books, records, accounts, work products, materials and data for that period of time.
If, as a result of any audit, it is determined by the auditor that reimbursement of any costs
including profit or fee under the applicable Supplement was in excess of that represented and
relied upon during price negotiations or represented as a basis for payment, AGENCY agrees to
reimburse MTC for those costs within sixty (60) days of written notification by MTC.
AGENCY further agrees to include in all its subcontracts hereunder exceeding $25,000 a
provision to the effect that the subrecipient agrees that MTC the U.S. DOT, FTA or FHWA, as
applicable, the Comptroller General of the United States, the State of California, and their
authorized representatives shall have access to and the right to examine any directly pertinent
books, documents, papers, and records of such subrecipient for the term specified above.
10. FLY AMERICA REQUIREMENTS.
AGENCY agrees to comply with 49 U.S.C. 40118 (the “Fly America Act”) in accordance
with the General Services Administration's regulations at 41 CFR Part 301 - 10, which provide
that recipients and subrecipients of Federal funds and their consultants are required to use U.S.
flag air carriers for U.S. Government-financed international air travel and transportation of their
personal effects or property to the extent such service is available, unless travel by foreign air
carrier is a matter of necessity as defined by the Fly America Act. AGENCY shall submit, if a
foreign air carrier was used, an appropriate certification or memorandum adequately explaining
why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign
air carrier and shall, in any event, provide a certificate of compliance with the Fly America
requirements, if used. AGENCY agrees to include the requirements of this Section in all
subcontracts that may involve international air transportation.
11. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND
RELATED ACTS.
A. AGENCY acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations,
EXHIBIT A
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“Program Fraud Civil Remedies,” 49 CFR Part 31, apply to its actions pertaining to
this Project. Upon execution of the underlying contract, AGENCY certifies or
affirms the truthfulness and accuracy of any statement it has made, it makes, it may
make, or causes to be made, pertaining to the underlying Supplement or the FTA
assisted project for which work is being performed under the applicable Supplement.
In addition to other penalties that may be applicable, AGENCY further
acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent
claim, statement, submission, or certification, the Federal Government reserves the
right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on
AGENCY to the extent the Federal Government deems appropriate.
B. AGENCY also acknowledges that if it makes, or causes to be made, a false, fictitious,
or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in
part with Federal assistance originally awarded by FTA under the authority of 49
U.S.C. § 5307, the Government reserves the right to impose the penalties of 18
U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on AGENCY, to the extent the Federal
Government deems appropriate.
C. AGENCY agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that
the clauses shall not be modified, except to identify the subconsultant who will be
subject to the provisions.
12. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES
MTC and AGENCY acknowledge and agree that, notwithstanding any concurrence by
the Federal Government in or approval of the applicable Supplement or this Agreement, absent
the express written consent by the Federal Government, the Federal Government is not a party to
this Agreement and shall not be subject to any obligations or liabilities to MTC, AGENCY or
any other party (whether or not a party to this Agreement) pertaining to any matter resulting from
this Agreement.
13. DEBARMENT
This Article is only applicable if the applicable Supplement exceeds $25,000. AGENCY
certifies that neither it, nor any of its participants, principals or subrecipients is or has been
debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
covered transactions, as they are defined in 2 CFR Parts 180 and 1200, by any Federal agency or
department.
EXHIBIT A
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14. CLEAN AIR AND WATER POLLUTION ACTS
This Article is only applicable if the applicable Supplement exceeds $100,000.
AGENCY agrees to comply with the applicable requirements of all standards, orders, or
requirements issued under the Clean Air Act (42 U.S.C. § 7501 et seq.), the Clean Water Act (33
U.S.C. § 1251 et seq.), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR Part 15).
15. LOBBYING
This Article is only applicable if the applicable Supplement exceeds $100,000.
AGENCY agrees to comply with the restrictions on the use of federal funds for lobbying
activities set forth in 31 United States Code §1352 and 49 C.F.R. Part 20.
Attachments:
Attachment A – Federally Required Certifications (AGENCY shall either provide these
certifications to MTC or shall provide copies of such certifications AGENCY has independently
made to the Federal Government.)
EXHIBIT A
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EXHIBIT B-2
Attachment A
Federally Required Certifications
CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER
RESPONSIBILITY MATTERS
Instructions for Certification:
1. By signing and submitting this bid or proposal, the prospective lower tier
participant is providing the signed certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance
was placed when this transaction was entered into. If it is later determined that the prospective
lower tier participant knowingly rendered an erroneous certification, in addition to other
remedies available to the Federal Government, MTC may pursue available remedies, including
suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to MTC if
at any time the prospective lower tier participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed circumstances.
4. The terms “covered transaction,” “debarred,” “suspended,” “ineligible,” “lower tier
covered transaction,” “participant,” “persons,” “lower tier covered transaction,” “principal,”
“proposal,” and “voluntarily excluded,” as used in this clause, have the meanings set out in the
Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part
29]. You may contact MTC for assistance in obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this proposal that, should the
proposed covered transaction be entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless authorized in writing by MTC.
6. The prospective lower tier participant further agrees by submitting this proposal that it
will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion – Lower Tier Covered Transaction”, without modification, in all lower tier
covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it determines the
eligibility of its principals. Each participant may, but is not required to, check the
Nonprocurement List issued by U.S. General Service Administration.
EXHIBIT A
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8. Nothing contained in the foregoing shall be construed to require establishment of system
of records in order to render in good faith the certification required by this clause. The
knowledge and information of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant
in a covered transaction knowingly enters into a lower tier covered transaction with a person who
is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction,
in addition to all remedies available to the Federal Government, MTC may pursue available
remedies including suspension and/or debarment.
EXHIBIT A
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CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
LOWER TIER COVERED TRANSACTION
(1) The prospective lower tier participant certifies, by submission of this bid or proposal,
that neither it nor its “principals” [as defined at 49 C.F.R. Section 29.105(p)] is presently
debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any Federal department or agency.
(2) When the prospective lower tier participant is unable to certify to the statements in
this certification, such prospective participant shall attach an explanation to this proposal.
Date (signature of authorized official)
(type/print name and title)
EXHIBIT A
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CERTIFICATION OF RESTRICTIONS ON LOBBYING
I, hereby certify on behalf of that:
(name and title of grantee
official)
(name of grantee)
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract,
grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report
Lobbying,” in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the
award documents for all sub awards at all tiers (including subcontracts, sub grants, and contracts
under grants, loans, and cooperative agreements) and that all sub recipients shall certify and
disclose accordingly.
This certification is a material representation of fact upon which reliance is placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making
or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who
fails to file the required certification shall be subject to a civil penalty of not less than $10,000
and not more than $100,000 for each such failure.
Executed this day of , 20__
By:
(signature of authorized official)
(title of authorized official)
EXHIBIT A
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EXHIBIT B-3
ADDITIONAL TERMS AND CONDITIONS
STATE REQUIRED CLAUSES
1) Attachment A – Fair Employment Practices Addendum
2) Attachment B – Nondiscrimination Assurances
a. Appendix A – Clauses to be inserted in every agreement subject to the ACT, as
defined in Attachment B of this Exhibit and REGULATIONS, also as defined in
Attachment B.
b. Appendix B – To be included as covenant running with the land, in any deed
affecting a transfer of real property, structures, or improvements thereon, or
interest therein
c. Appendix C – To be included for subsequent transfer of real property acquired or
improved under federal-aid Program
d. Appendix D – To be included for the construction or use of or access to space on,
over, or under real property acquired or improved under the federal-aid Program
3) Attachment C – State Department of Transportation Requirements
EXHIBIT A
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EXHIBIT B-3
ATTACHMENT A
FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of the applicable Supplement, AGENCY shall not discriminate against any
employee for employment because of sex, race, color, ancestry, religious creed, national origin,
physical disability (including HIV and AIDS), mental disability, medical condition (e.g. cancer),
age (over 40), marital status, and denial of family care leave. AGENCY shall take affirmative
action to ensure that employees are treated during employment without regard to their race, sex,
sexual orientation, color, religion, ancestry, or national origin, physical disability, medical
condition, marital status, political affiliation, family and medical care leave, pregnancy leave, or
disability leave. Such action shall include, but not be limited to, the following: employment;
upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination;
rates of pay or other forms of compensation; and selection for training, including apprenticeship.
AGENCY shall post in conspicuous places, available to employees for employment, notices to
be provided by STATE setting forth the provisions of this Fair Employment section.
2. AGENCY, its contractor(s) and all subcontractors shall comply with the provisions of the Fair
Employment and Housing Act (Government Code Section 12900 et seq.), and the applicable
regulations promulgated thereunder (California code of Regulations, Title 2, Section 7285.0 et
seq.). The applicable regulations of the Fair Employment and Housing Commission
implementing Government Code, Section 12900(a-f), set forth in Chapter 5 of Division 4 of Title
2 of the California Code of Regulations are incorporated into the applicable Supplement by
reference and made a part hereof as if set forth in full. Each of the AGENCY’S contractors and
all subcontractors shall give written notice of their obligations under this clause to labor
organizations with which they have a collective bargaining or other agreements as appropriate.
3. AGENCY shall include the nondiscrimination and compliance provisions of this clause in all
contracts and subcontracts to perform work under the applicable Supplement.
4. AGENCY shall permit access to the records of employment, employment advertisements,
application forms, and other pertinent data and records by STATE, the State Fair Employment
and Housing Commission, or any other agency of the State of California designated by STATE,
for the purposes of investigation to ascertain compliance with the Fair Employment section of
the applicable Supplement.
5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occurred
upon receipt of a final judgment to that effect from a court in an action to which AGENCY was a
party, or upon receipt of a written notice from the Fair Employment and Housing Commission
that it has investigated and determined that AGENCY has violated the Fair Employment
Practices Act and had issued an order under Labor Code Section 1426 which has become final or
has obtained an injunction under Labor Code Section 1429.
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(b) For willful violation of this Fair Employment Provision, STATE shall have the right to
terminate the funding for the applicable Supplement either in whole or in part, and any loss or
damage sustained by STATE in securing the goods or services thereunder shall be borne and
paid for by AGENCY and by the surety under the performance bond, if any, and STATE may
deduct from any moneys due or thereafter may become due to AGENCY, the difference between
the price named in the Agreement and the actual cost thereof to STATE to cure AGENCY’s
breach of the applicable Supplement.
EXHIBIT A
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EXHIBIT B-3
ATTACHMENT B
NONDISCRIMINATION ASSURANCES
AGENCY HEREBY AGREES THAT, as a condition to receiving any federal financial
assistance from the STATE, acting for the U.S. Department of Transportation, it will comply
with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-42 U.S.C. 2000d-4
(hereinafter referred to as the ACT), and all requirements imposed by or pursuant to Title 49,
Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary,
Part 21, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation
- Effectuation of Title VI of the Civil Rights Act of 1964” (hereinafter referred to as the
REGULATIONS), the Federal-aid Highway Act of 1973, and other pertinent directives, to the
end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person
in the United States shall, on the grounds of race, color, sex, national origin, religion, age or
disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected
to discrimination under any program or activity for which AGENCY receives federal financial
assistance from the Federal Department of Transportation. AGENCY HEREBY GIVES
ASSURANCE THAT AGENCY shall promptly take any measures necessary to effectuate the
applicable Supplement. This assurance is required by subsection 21.7(a) (1) of the
REGULATIONS.
More specifically, and without limiting the above general assurance, AGENCY hereby gives the
following specific assurances with respect to its federal-aid Program:
1. That AGENCY agrees that each “program” and each “facility” as defined in subsections 21.23
(e) and 21.23 (b) of the REGULATIONS, will be (with regard to a “program”) conducted, or
will be (with regard to a “facility”) operated in compliance with all requirements imposed by, or
pursuant to, the REGULATIONS.
2. That AGENCY shall insert the following notification in all solicitations for bids for work or
material subject to the REGULATIONS made in connection with the federal-aid Program and, in
adapted form, in all proposals for negotiated agreements: AGENCY hereby notifies all bidders
that it will affirmatively insure that in any agreement entered into pursuant to this advertisement,
minority business enterprises will be afforded full opportunity to submit bids in response to this
invitation and will not be discriminated against on the grounds of race, color, sex, national
origin, religion, age, or disability in consideration for an award.
3. That AGENCY shall insert the clauses of Appendix A of this assurance in every agreement
subject to the ACT and the REGULATIONS.
4. That the clauses of Appendix B of this Assurance shall be included as a covenant running with
the land, in any deed affecting a transfer of real property, structures, or improvements thereon, or
interest therein.
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5. That where AGENCY receives federal financial assistance to construct a facility, or part of a
facility, the Assurance shall extend to the entire facility and facilities operated in connection
therewith.
6. That where AGENCY receives federal financial assistance in the form, or for the acquisition,
of real property or an interest in real property, the Assurance shall extend to rights to space on,
over, or under such property.
7. That AGENCY shall include the appropriate clauses set forth in Appendix C and D of this
Assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses,
and similar agreements entered into by the AGENCY with other parties:
Appendix C;
(a) for the subsequent transfer of real property acquired or improved under the federal-aid
Program; and
Appendix D;
(b) for the construction or use of or access to space on, over, or under real property acquired, or
improved under the federal-aid Program.
8. That this assurance obligates AGENCY for the period during which federal financial
assistance is extended to the program, except where the federal financial assistance is to provide,
or is in the form of, personal property or real property or interest therein, or structures, or
improvements thereon, in which case the assurance obligates AGENCY or any transferee for the
longer of the following periods:
(a) the period during which the property is used for a purpose for which the federal financial
assistance is extended, or for another purpose involving the provision of similar services or
benefits; or
(b) the period during which AGENCY retains ownership or possession of the property.
9. That AGENCY shall provide for such methods of administration for the program as are found
by the U.S. Secretary of Transportation, or the official to whom he delegates specific authority,
to give reasonable guarantee that AGENCY, other recipients, sub-grantees, applicants, sub-
applicants, transferees, successors in interest, and other participants of federal financial
assistance under such program will comply with all requirements imposed by, or pursuant to, the
ACT, the REGULATIONS, this Assurance and the Agreement.
10. That AGENCY agrees that the United States and the State of California have a right to seek
judicial enforcement with regard to any matter arising under the ACT, the REGULATIONS, and
this Assurance.
11. AGENCY shall not discriminate on the basis of race, religion, age, disability, color, national
origin or sex in the award and performance of any STATE assisted contract or in the
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administration on its DBE Program or the requirements of 49 CFR Part 26. AGENCY shall take
all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the
award and administration of STATE assisted contracts. The California Department of
Transportation Disadvantaged Business Enterprise Program Implementation Agreement for
Local Agencies is incorporated by reference in the applicable Supplement. Implementation of
this program is a legal obligation and failure to carry out its terms shall be treated as a violation
of the applicable Supplement. Upon notification to the recipient of its failure to carry out the
Implementation Agreement, STATE may impose sanctions as provided for under 49 CFR Part
26 and may, in appropriate cases, refer the matter for enforcement under 18 USC 1001 and/or the
Program Fraud Civil Remedies Act of 1985 (31 USC 3801 et seq.)
THESE ASSURANCES are given in consideration of and for the purpose of obtaining any and
all federal grants, loans, agreements, property, discounts or other federal financial assistance
extended after the date hereof to AGENCY by STATE, acting for the U.S. Department of
Transportation, and is binding on AGENCY, other recipients, subgrantees, applicants, sub-
applicants, transferees, successors in interest and other participants in the federal-aid Highway
Program.
EXHIBIT A
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APPENDIX A TO ATTACHMENT B (Clauses to be inserted in every agreement subject to
ACT and REGULATIONS)
During the performance of the applicable Supplement, AGENCY, for itself, its assignees and
successors in interest (hereinafter collectively referred to as AGENCY) agrees as follows:
(1) Compliance with Regulations: AGENCY shall comply with the regulations relative to
nondiscrimination in federally assisted programs of the Department of Transportation, Title 49,
Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter
referred to as the REGULATIONS), which are herein incorporated by reference and made a part
of the applicable Supplement.
(2) Nondiscrimination: AGENCY, with regard to the work performed by it during the
Agreement, shall not discriminate on the grounds of race, color, sex, national origin, religion,
age, or disability in the selection and retention of sub-applicants, including procurements of
materials and leases of equipment. AGENCY shall not participate either directly or indirectly in
the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment
practices when the agreement covers a program set forth in Appendix B of the REGULATIONS.
(3) Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all
solicitations either by competitive bidding or negotiation made by AGENCY for work to be
performed under a Sub-agreement, including procurements of materials or leases of equipment,
each potential sub-applicant or supplier shall be notified by AGENCY of the AGENCY’s
obligations under the applicable Supplement and the REGULATIONS relative to
nondiscrimination on the grounds of race, color, or national origin.
(4) Information and Reports: AGENCY shall provide all information and reports required by the
REGULATIONS, or directives issued pursuant thereto, and shall permit access to AGENCY’s
books, records, accounts, other sources of information, and its facilities as may be determined by
STATE or FHWA to be pertinent to ascertain compliance with such REGULATIONS or
directives. Where any information required of AGENCY is in the exclusive possession of
another who fails or refuses to furnish this information, AGENCY shall so certify to STATE or
the FHWA as appropriate, and shall set forth what efforts AGENCY has made to obtain the
information.
(5) Sanctions for Noncompliance: In the event of AGENCY’s noncompliance with the
nondiscrimination provisions of the applicable Supplement, STATE shall impose such
agreement sanctions as it or the FHWA may determine to be appropriate, including, but not
limited to:
(a) withholding of payments to AGENCY under the Agreement within a reasonable period of
time, not to exceed 90 days; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part.
(6) Incorporation of Provisions: AGENCY shall include the provisions of paragraphs (1) through
(6) in every sub-agreement, including procurements of materials and leases of equipment, unless
exempt by the REGULATIONS, or directives issued pursuant thereto.
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AGENCY shall take such action with respect to any sub-agreement or procurement as STATE or
FHWA may direct as a means of enforcing such provisions including sanctions for
noncompliance, provided, however, that, in the event AGENCY becomes involved in, or is
threatened with, litigation with a sub-applicant or supplier as a result of such direction,
AGENCY may request STATE enter into such litigation to protect the interests of STATE, and,
in addition, AGENCY may request the United States to enter into such litigation to protect the
interests of the United States.
EXHIBIT A
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APPENDIX B TO ATTACHMENT B To be included as covenant running with the land, in
any deed affecting a transfer of real property, structures, or improvements thereon, or interest
therein)
The following clauses shall be included in any and all deeds effecting or recording the transfer of
PROJECT real property, structures or improvements thereon, or interest therein from the United
States.
(GRANTING CLAUSE)
NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon
the condition that AGENCY shall accept title to the lands and maintain the project constructed
thereon, in accordance with Title 23, United States Code, the Regulations for the Administration
of federal-aid for Highways and the policies and procedures prescribed by the Federal Highway
Administration of the Department of Transportation and, also in accordance with and in
compliance with the Regulations pertaining to and effectuating the provisions of Title VI of the
Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d to 2000d-4), does hereby remise,
release, quitclaim and convey unto AGENCY all the right, title, and interest of the U.S.
Department of Transportation in, and to, said lands described in Exhibit “A” attached hereto and
made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto AGENCY and its successors
forever, subject, however, to the covenant, conditions, restrictions and reservations herein
contained as follows, which will remain in effect for the period during which the real property or
structures are used for a purpose for which federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits and shall be binding on
AGENCY, its successors arid assigns.
AGENCY, in consideration of the conveyance of said lands and interests in lands, does hereby
covenant and agree as a covenant running with the land for itself, its successors and assigns,
(1) that no person shall on the grounds of race, color, sex, national origin, religion, age or
disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected
to discrimination with regard to any facility located wholly or in part on, over, or under such
lands hereby conveyed (;) (and) *
(2) that AGENCY shall use the lands and interests in lands so conveyed, in compliance with all
requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in federally-
assisted programs of the Department of Transportation - Effectuation of Title VI of the Civil
Rights Act of 1964, and as said Regulations may be amended (;) and
(3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, the
U.S. Department of Transportation shall have a right to re-enter said lands and facilities on said
land, and the above-described land and facilities shall thereon revert to and vest in and become
EXHIBIT A
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the absolute property of the U.S. Department of Transportation and its assigns as such interest
existed prior to this deed.*
*Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
EXHIBIT A
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APPENDIX C TO ATTACHMENT BTo be included for subsequent transfer of real property
acquired or improved under federal-aid Program)
The following clauses shall be included in any and all deeds, licenses, leases, permits, or similar
instruments entered into by AGENCY, pursuant to the provisions of Assurance 7(a) of
Attachment I-2.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal
representatives, successors in interest, and assigns, as a part of the consideration hereof, does
hereby covenant and agree (in the case of deeds and leases add ‘as covenant running with the
land”) that in the event facilities are constructed, maintained, or otherwise operated on the said
property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation program or activity is extended or for another purpose involving
the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall
maintain and operate such facilities and services in compliance with all other requirements
imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation,
Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally-assisted programs of the
Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as
said Regulations may be amended.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall
have the right to terminate the (license, lease, permit etc.) and to re-enter and repossess said land
and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been
made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall
have the right to re-enter said land and facilities thereon, and the above described lands and
facilities shall thereupon revert to and vest in and become the absolute property of AGENCY and
its assigns.
*Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
EXHIBIT A
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APPENDIX D TO ATTACHMENT B Appendix D – (To be included for the construction or
use of or access to space on, over, or under real property acquired or improved under the federal-
aid Program)
The following shall be included in all deeds, licenses, leases, permits, or similar agreements
entered into by AGENCY, pursuant to the provisions of Assurance 7 (b) of Attachment I-2 .
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal
representatives, successors in interest and assigns, as a part of the consideration hereof, does
hereby covenant and agree (in the case of deeds, and leases add “as a covenant running with the
land”) that:
(1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall
be excluded from participation in, denied the benefits of, or otherwise subjected to
discrimination in the use of said facilities;
(2) that in the construction of any improvements on, over, or under such land and the furnishing
of services thereon, no person on the ground of race, color, sex, national origin, religion, age or
disability shall be excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination; and
(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with
the Regulations.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall
have the right to terminate the (license, lease, permit, etc.) and to re-enter and repossess said land
and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been
made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall
have the right to re-enter said land and facilities thereon, and the above described lands and
facilities shall thereupon revert to and vest in and become the absolute property of AGENCY,
and its assigns.
*Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
EXHIBIT A
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EXHIBIT B-3, ATTACHMENT C
STATE DEPARTMENT OF TRANSPORTATION REQUIREMENTS
Caltrans Non – Discrimination
A. In the performance of work undertaken pursuant to the applicable Supplement, AGENCY
shall not, and shall affirmatively require that its contractors shall not, unlawfully discriminate,
harass or allow harassment, against any employee or applicant for employment because of sex,
race, color, ancestry, religious creed, national origin, physical disability (including HIV and
AIDS), mental disability, medical condition (e.g. cancer), age (over 40), marital status, and
denial of family care leave.
B. AGENCY shall ensure, and shall require that its contractors and all subcontractors and/or
subrecipients shall ensure, that the evaluation and treatment of their employees and applicants for
employment are free from such discrimination and harassment. AGENCY shall comply, and
ensure that its contractors and subcontractors and/or subrecipients shall comply, with the
provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.)
and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2,
Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing
Commission implementing Government Code, Section 12990 (af), set forth in Chapter 5 of
Division 4 of Title 2 of the California Code of Regulations, are incorporated into the applicable
Supplement by reference and made a part hereof as if set forth in full.
C. Each of AGENCY’s contractors, subcontractors, and/or subrecipients shall give written notice
of their obligations under this clause to labor organizations with which they have collective
bargaining or other labor agreements. AGENCY shall include the non-discrimination and
compliance provisions hereof in all contracts and subcontracts to perform work under the
applicable Supplement.
D. AGENCY shall comply with the nondiscrimination program requirements of Title VI of the
Civil Rights Act of 1964. Accordingly, 49 CFR Part 21, and 23 CFR Part 200 are made
applicable to the applicable Supplement by this reference. Wherever the term “Contractor”
appears therein, it shall mean AGENCY.
E. AGENCY shall permit, and shall require that its contractors, subcontractors, and subrecipients
will permit, access to all records of employment, employment advertisements, application forms,
and other pertinent data and records by the State Fair Employment Practices and Housing
Commission or any other agency of the State of California designated by STATE to investigate
compliance with these non-discrimination provisions.
EXHIBIT A
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EXHIBIT B-4
ADDITIONAL TERMS AND CONDITIONS
PREVAILING WAGE RATES, APPRENTICESHIPS, AND PAYROLL RECORDS
NON FEDERALLY FUNDED AGREEMENTS
AGENCY’s contractor(s) and all subcontractors shall comply with applicable sections of
the California Labor Code and regulations promulgated thereunder (including without limitation,
Sections 1720 et seq. and Title 8 of the California Code of Regulations Sections 16000 et seq.)
governing the payment of prevailing wages, as determined by the Director of the California
Department of Industrial Relations, in regards to work performed and/or funded under this
Agreement. In particular, AGENCY’s attention is drawn to Labor Code Sections 1771 (payment
of prevailing wage rate), 1775 (penalty for non-payment), 1776 (payroll records), and 1777.5
(use of apprentices). AGENCY’s contractor(s) and all subcontractors, to the extent the work of
such contractor(s) and subcontractors under this Agreement are subject to California Labor Code
Section 1720 et seq., shall be registered with the Department of Industrial Relations pursuant to
Labor Code section 1725.5 and shall furnish electronic certified payroll records directly to the
Labor Commissioner through the internet portal of the Division of Labor Standards
Enforcement. Per Master Funding Agreement Article 12.0, Records and 13.0 Audits, MTC
reserves the right to request copies of the certified payroll records.
EXHIBIT A
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EXHIBIT B-5
ADDITIONAL TERMS AND CONDITIONS
PREVAILING WAGE RATES, APPRENTICESHIPS, AND PAYROLL RECORDS
FEDERALLY FUNDED AGREEMENTS
The Additional Federal Clauses Applicable to Public Works included in Attachment A,
attached hereto and incorporated herein by this reference, and the Davis-Bacon prevailing wages
apply to work performed and/or funded under the applicable Supplement. AGENCY agrees that
AGENCY will require its contractor(s) and all subcontractors will pay the higher of (i) the
applicable wage set forth in Federal Wage Determinations, and (ii) the applicable California
prevailing rate. Certified payroll records in the form set forth in the Public Works Payroll
Reporting Form, as found at https://www.dol.gov/whd/forms/wh347.pdf, shall be prepared or
collected from its contractor(s) and all subconsultant(s) on a weekly basis by the AGENCY. Per
Master Funding Agreement Article 12.0, Records and 13.0 Audits, MTC reserves the right to
request copies of the certified payroll records. MTC may withhold payment if the certified
payrolls to be submitted by AGENCY pursuant to this Exhibit B-5, Prevailing Wage Rates,
Apprenticeships, and Payroll Records, are not current.
EXHIBIT A
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EXHIBIT B-5
ADDITIONAL FEDERAL CLAUSES APPLICABLE TO PUBLIC WORKS
1. Buy America
2. Davis-Bacon Act
3. Contract Work Hours and Safety Standards Act
4. Copeland Anti-Kickback Act
5. Prompt Payment of Funds Withheld to Subcontractors
EXHIBIT A
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1. Buy America Requirements
Buy America – Attention is directed to the “Buy America” requirements of the surface
Transportation Assistance Act of 1982 (Section 165) and the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA) Sections 1041(a) and 1048(a), and the regulations adopted
pursuant thereto. In conformance with the law and regulations, all manufacturing processes for
steel and iron materials furnished for incorporation into the work on this project shall occur in
the United States; with the exception that pig iron and processed, pelletized and reduced iron ore
manufactured outside of the United States may be used in the domestic manufacturing process
for such steel and iron materials. The application of coatings, such as epoxy coating,
galvanizing, painting, and other coating that protects or enhances the value of steel or iron
materials shall be considered a manufacturing process subject to the “Buy America”
requirements. A Certificate of Compliance shall be furnished for steel and iron materials. The
certificates shall specifically certify that all manufacturing processes for the materials occurred in
the United States, except for the above exceptions.
The requirements imposed on AGENCY by the law and regulations do not prevent a minimal
use of foreign steel and iron materials if the total combined cost of the materials used does not
exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is
greater. The AGENCY or its contractor(s) shall furnish the Engineer acceptable documentation
of the quantity and value of the foreign steel and iron prior to incorporation the materials into the
work.
Certification requirement for procurement of steel, iron, or manufactured products.
The AGENCY hereby certifies that all manufacturing process for steel and iron materials
occurred in the United States, except for the above exceptions.
Signature:
Name and Title:
Company Name:
Date:
EXHIBIT A
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2. DAVIS-BACON ACT
For all prime construction, alteration or repair contracts in excess of $2,000 awarded by
FTA, the Contractor shall comply with the Davis-Bacon Act and the Copeland “Anti-Kickback”
Act. Under 49 U.S.C. § 5333(a), prevailing wage protections apply to laborers and mechanics
employed on FTA assisted construction, alteration, or repair projects. The Contractor will
comply with the Davis-Bacon Act, 40 U.S.C. §§ 3141-3144, and 3146-3148 as supplemented by
DOL regulations at 29 C.F.R. part 5, “Labor Standards Provisions Applicable to Contracts
Governing Federally Financed and Assisted Construction.” In accordance with the statute, the
Contractor shall pay wages to laborers and mechanics at a rate not less than the prevailing wages
specified in a wage determination made by the Secretary of Labor. In addition, the Contractor
agrees to pay wages not less than once a week. The Contractor shall also comply with the
Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by DOL regulations at 29
C.F.R. part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in
Whole or in part by Loans or Grants from the United States.” The Contractor is prohibited from
inducing, by any means, any person employed in the construction, completion, or repair of public
work, to give up any part of the compensation to which he or she is otherwise entitled.
3. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Contract Work Hours and Safety Standards Act - (i) The AGENCY’s contractor agrees to
comply with section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C.
section 333, and applicable DOL regulations, "Safety and Health Regulations for Construction"
29 C.F.R. Part 1926. Among other things, the AGENCY’s contractor agrees that it will not
require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings or
working conditions.
(ii) Subcontracts - The AGENCY’s contractor also agrees to include the requirements of this
section in each subcontract. The term "subcontract" under this section is considered to refer to a
person who agrees to perform any part of the labor or material requirements of a contract for
construction, alteration or repair. A person who undertakes to perform a portion of a contract
involving the furnishing of supplies or materials will be considered a "subcontractor" under this
section if the work in question involves the performance of construction work and is to be
performed: (1) directly on or near the construction site, or (2) by the employer for the specific
project on a customized basis. Thus, a supplier of materials which will become an integral part
of the construction is a "subcontractor" if the supplier fabricates or assembles the goods or
materials in question specifically for the construction project and the work involved may be said
to be construction activity. If the goods or materials in question are ordinarily sold to other
customers from regular inventory, the supplier is not a "subcontractor." The requirements of this
section do not apply to contracts or subcontracts for the purchase of supplies or materials or
articles normally available on the open market.
EXHIBIT A
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4. COPELAND ANTI-KICKBACK ACT
Compliance with Copeland Act requirements - The AGENCY’s contractor shall comply with
the requirements of 29 CFR part 3, which are incorporated by reference in this contract.
5. PROMPT PAYMENT OF FUNDS WITHHELD TO SUBCONTRACTORS
The AGENCY shall hold retainage from the prime contractor and shall make prompt and regular
incremental acceptances of portions, as determined by the agency of the contract work and pay
retainage to the prime contractor based on these acceptances. The AGENCY’s prime contractor
or subcontractor shall return all monies withheld in retention from a subcontractor within 30 days
after receiving payment for work satisfactorily completed and accepted including incremental
acceptances of portions of the contract work by the agency. Federal regulation (49 CFR 26.29)
requires that any delay or postponement of payment over 30 days may take place only for good
cause and with the agency’s prior written approval. Any violation of this provision shall subject
the violating AGENCY’s prime contractor or subcontractor to the penalties, sanctions, and other
remedies specified in Section 7108.5 of the California Business and Professions Code. These
requirements shall not be construed to limit or impair any contractual, administrative, or judicial
remedies otherwise, available to the prime contractor or subcontractor in the event of a dispute
involving late payment, or nonpayment by the prime contractor, deficient subcontract
performance, or noncompliance by a subcontractor. This provision applies to both DBE and
non-DBE prime contractors and subcontractors.
EXHIBIT A
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EXHIBIT B-6
ADDITIONAL TERMS AND CONDITIONS (REGIONAL TOLL FUNDS INCLUDING RM1,
RM2, AND AB 1171)
Recitals
WHEREAS, Streets and Highways Code (SHC) Sections 30950 et seq. created the Bay
Area Toll Authority (“BATA”) which is a public instrumentality governed by the same board as
that governing MTC; and
WHEREAS, pursuant to SHC Section 31010(b), funds generated in excess of those
needed to meet the toll commitments as specified by paragraph (4) of subdivision (b) of Section
188.5 of the SHC shall be available to BATA for funding projects consistent with SHC Sections
30913 and 30914; and
WHEREAS, MTC adopted Resolution No. 3434, Revised, which establishes
commitments of bridge toll funds, including such AB 1171 funds, to specific projects and
corridors; and
WHEREAS, on November 8, 1988, voters approved Regional Measure 1 (“RM1”),
which authorized a standard auto toll of $1 on the seven state-owned toll bridges in the San
Francisco Bay Area to fund various transportation projects within the region; and
WHEREAS, on March 2, 2004, voters approved Regional Measure 2 (“RM2”),
increasing the toll for all vehicles on the seven state-owned toll bridges in the San Francisco Bay
Area by $1.00 to fund various transportation projects within the region that have been
determined to reduce congestion or to improve travel in the toll bridge corridors; and
WHEREAS, RM2 established the Regional Traffic Relief Plan and listed specific capital
projects and programs and transit operating assistance as eligible to receive RM2 funding as
identified in SHC Section 30914(c) and (d). The funding amounts assigned to certain of the
programs and projects were subsequently revised by MTC Resolution No. 3801; and
WHEREAS, to the extent the Project is receiving RM2 funding hereunder, SHC Section
30914(c) lists the Project to which this Exhibit B-6 and the applicable Supplement apply as one
such eligible transportation project and designates AGENCY as project sponsor; and
WHEREAS, pursuant to MTC Resolution No. 3636, MTC established procedures
whereby eligible transportation project sponsors may submit allocation requests for Regional
Measure 2 Bridge Toll funding. A copy of MTC Resolution No. 3636 is attached hereto and
incorporated herein as Attachment D, MTC Resolution No. 3636; and
WHEREAS, AGENCY submitted one or more allocation requests for RM2, AB 1171,
and/or RM1 funding for the Project to which this Exhibit B-6 applies. A copy of the applicable
allocation request(s) as well as AGENCY’s resolution(s) approving the allocation request(s) are
EXHIBIT A
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attached to the applicable Supplement and incorporated herein as Attachment A, Updated Initial
Project Report, and Attachment B, AGENCY Resolution(s), respectively; and
WHEREAS, by the resolution(s) attached to the applicable Supplement and incorporated
herein as Attachment A as Attachment C, MTC Resolution(s) Approving Project Request, MTC
approved AGENCY’s request(s) for the applicable funds for the applicable Project.
I. AGENCY AGREES
A. AGENCY agrees to perform or caused to be performed the activities described in Attachment A,
Updated Initial Project Report. AGENCY will provide all necessary staffing and support resources to
complete the Project as described in Attachment A, AGENCY agrees to meet all conditions listed in
Attachment C, MTC Resolution(s) Approving Project Request.
B. AGENCY shall provide MTC with annual progress reports on or before each July 31
throughout the term of this Agreement in accordance with the monitoring and reporting
requirements specified in MTC Resolution No. 3636.
C. AGENCY shall submit invoices to MTC no less than annually, but may submit invoices
as frequently as monthly. In either case, AGENCY shall submit an invoice to MTC within thirty
(30) days after the end of each period for which payment is sought covering costs for the Project
activities accomplished through the end of such period, not covered by previously submitted
invoices. Each invoice shall be supported by the following information: (i.) A brief narrative
progress report of the activities accomplished during the invoice period, including the percentage
of the contract complete and the percentage of funding expended; (ii.) the costs requested for
reimbursement with RM1, RM2 and/or AB 1171 funds, as applicable; (iii.) the total costs
expended for the invoice period broken down by type and source of funding; (iv.) the total RM1,
RM2 and/or AB 1171 funds, as applicable received as reimbursement to date; (v.) the total costs
expended for project name to date broken down by type and source of funding; and (vi.) any
additional supporting data in a form and detail required by MTC.
D. AGENCY agrees to spend RM1, RM2 and/or AB 1171 funds, as applicable, at a rate not
exceeding the schedule attached to the applicable Supplement and incorporated herein as
Attachment E, Reimbursement Schedule.
E. AGENCY shall comply with and shall assure that any AGENCY contractor performing
Project work with RM1, RM2 and/or AB 1171 funds, as applicable, received under this
Agreement complies with MTC Resolution No. 3636, Revised, as well as the provisions of
MTC’s RM2 Policy Guidance contained in Attachment D, MTC Resolution No. 3636, relative to
constructing, operating, and maintaining the Project. MTC may update Resolution No. 3636
from time to time. The AGENCY agrees to comply with the most current Resolution that is
approved at any given time.
F. AGENCY is responsible for completing the Project within cost, scope and schedule as
described in Attachment A, Updated Initial Project Report, as it may be updated from time to
time. Any updates must be approved by AGENCY and MTC in writing before being
incorporated into this Agreement.
EXHIBIT A
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G. AGENCY certifies that:
The Project is consistent with the Regional Transportation Plan (“RTP”).
All environmental permits or clearances necessary for the Project have been or will be
obtained, and the year of Project funding for the construction phase of the Project has
taken into consideration the time necessary to obtain permitting approval for the Project
as an operable and useable segment.
The Project or portion thereof to be funded under this Agreement will be fully funded
upon the execution of the applicable Supplement.
AGENCY has reviewed the Project needs and has adequate internal staffing and support
resources to deliver and complete the Project within the cost, scope, and schedule set
forth in the Initial Project Report, as updated, attached to the applicable Supplement as
Attachment A.
If applicable to the Project, AGENCY is an eligible sponsor of projects in MTC
Resolution No. 3434, Revised.
If applicable, AGENCY is authorized to submit an application for RM2 funds for the
Project in accordance with SHC Section 30914(c).
If applicable, AGENCY is authorized to submit an application for AB 1171 funds for the
Project in accordance with SHC Section 31010(b).
The Project is in compliance with the requirements of the California Environmental
Quality Act (Public Resources Code Section 2l000 et seq.), and with the State
Environmental Impact Report Guidelines (l4 California Code of Regulations Sections
l5000 et seq.), and if relevant, the National Environmental Policy Act (NEPA) (42 USC
4321 et seq.) and the applicable regulations thereunder.
There is no legal impediment to AGENCY making allocation requests for RM1, RM2
and/or AB 1171 funds, as applicable.
There is no pending or threatened litigation which might in any way adversely affect the
Project or the ability of AGENCY to deliver such Project.
H. In addition to AGENCY’s commitment under Article 10, INDEMNIFICATION, of the
Master Funding Agreement, AGENCY agrees at its own cost, expense, and risk to defend any
and all claims, actions, suits, or other legal proceedings brought or instituted against MTC, its
Commissioners, representatives, agents, and employees, or any of them, arising out of such act
or omission, and to pay and satisfy any resulting judgments. In addition to any other remedy
authorized by law, so much of the funding due under this allocation of RM1, RM2 and/or AB
1171 funds, as applicable, as shall reasonably be considered necessary by MTC may be retained
until disposition has been made of any claim for damages.
I. If any revenues or profits from any non-governmental use of the Project are collected by
AGENCY, those revenues or profits shall be used exclusively for the public transportation
services for which the Project was initially approved, either for capital improvements or
maintenance and operational costs, otherwise MTC is entitled to a proportionate share equal to
MTC’s percentage participation in the Project. MTC’s percentage participation shall equal the
amount of funds allocated to Project, divided by the total Project budget as shown in
EXHIBIT A
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Attachment E, Reimbursement Schedule, as updated from time to time, as such amount may be
adjusted to reflect total project costs.
J. Project assets purchased by AGENCY with RM1, RM2 and/or AB 1171 funds, as
applicable, including facilities and equipment, shall be used for the intended public
transportation uses and should said facilities and equipment cease to be operated or maintained
for their intended public transportation purposes for their useful life, MTC shall be entitled to a
present day value refund or credit (at MTC’s option) based on MTC’s share of the fair market
value of the facilities and equipment at the time the public transportation uses ceased, which sum
shall be paid back to MTC in the same proportion that RM1, RM2 and/or AB 1171 funds, as
applicable, were originally used.
K. AGENCY shall post on both ends of the Project construction site(s), unless prohibited by
the site owner if such owner is not the AGENCY, at least two signs visible to the public stating
that the Project is funded with RM1, RM2 and/or AB 1171 funds, as applicable.
L. AGENCY’s City Manager, General Manager, Executive Director, Chief Executive Officer,
or equivalent officer, or designee, is delegated the authority to make non-substantive changes or
minor amendments to the initial project report as he/she deems appropriate; otherwise, Article 7,
AMENDMENTS, of this Agreement applies.
M. AGENCY agrees to comply with the provisions of MTC Resolution No. 3636, Revised,
and the MTC Resolutions set forth in Attachment C, MTC Resolution(s) Approving Project
Request.
II. MTC AGREES
A. MTC agrees to provide AGENCY with RM1, RM2 and/or AB 1171 funds, as applicable,
within the allocation amounts in Attachment C, MTC Resolution(s) Approving Project Request
and as restated in the relevant Supplement for the purpose of funding the Project as described in
Attachment A.
The entire funding amount is available for reimbursement based on the schedule included in
Attachment E, Reimbursement Schedule, to the applicable Supplement. In addition, if
applicable, MTC agrees to support AGENCY’s allocation request from the State according to the
Allocation Request Schedule provided in Attachment F to the applicable Supplement.
In the event AGENCY does not use all RM1, RM2 and/or AB 1171 funds, as applicable, made
available in a given fiscal year, those unused amounts will be available for reimbursement in
subsequent year(s) for the duration of this Agreement.
EXHIBIT A
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III. IT IS MUTUALLY AGREED
A. MTC may terminate the applicable Supplement, in its sole discretion, for any force
majeure event, including but not limited to any earthquake, flood or other natural disaster, any
epidemic, blockade, rebellion, war, act of sabotage or civil commotion, fire, explosion or strike,
or prolonged economic conditions affecting the ability of the Bay Area Toll Authority to make
payments to bond holders who shall in all circumstances have priority to payment of funds, if
such event (i) irrecoverably disrupts or renders impossible AGENCY’s performance hereunder;
or (ii) disrupts MTC’s ability to make payments hereunder. If MTC so terminates the applicable
Supplement, AGENCY will be entitled to payment for non-recoverable Project costs incurred
prior to the date of such termination, including but not limited to any amounts AGENCY owes to
the owner of the Project construction sites, if such owner is not AGENCY, up to the maximum
amount payable under this Agreement.
B. If AGENCY fails to perform as specified in this Agreement and the applicable
Supplement, MTC may terminate the applicable Supplement or this Agreement for cause.
Termination shall be effected by serving a sixty (60) day advance written notice of termination
on AGENCY, setting forth the manner in which AGENCY is in default. If AGENCY does not
cure the breach or describe to MTC’s satisfaction a plan for curing the breach within the sixty
(60) day period, MTC may terminate this Agreement or the applicable Supplement for cause. In
the event of such termination for cause, AGENCY will be entitled only to those costs incurred
for already completed Project work, not to exceed the maximum amount payable under this
Agreement for such Project work, however, in no event shall MTC be required to reimburse
AGENCY for any costs incurred for work causing or contributing to the default.
C. If the Project is cancelled, suspended indefinitely, or otherwise not completed for any
reason, AGENCY shall repay MTC any RM1, RM2 and/or AB 1171 funds, as applicable,
expended that exceed MTC’s proportionate share of eligible costs for the Project.
D. Upon completion of the Project, AGENCY will properly account for all Project costs
incurred.
E. The applicable Supplement shall terminate upon closeout of the PROJECT in accordance
with Policies and Procedures in MTC Resolution No. 3636, Revised, or on the termination date,
if any, set forth in the Supplement, whichever is sooner.
F. The terms and conditions of this Agreement include the following and each is
incorporated by reference herein as if fully set forth herein.
Attachment A – Updated Initial Project Report (Allocation Request)
Attachment B – AGENCY Resolution(s) (and opinion of counsel, if applicable)
Attachment C – MTC Resolution(s) Approving Project Request(s)
Attachment D – MTC Resolution No. 3636, Revised
Attachment E – Reimbursement Schedule
EXHIBIT A
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Funding Agreement for FY 2017-18 to FY 2026-27
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Attachment F – Allocation Request Schedule
EXHIBIT A
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EXHIBIT B-7
ADDITIONAL TERMS AND CONDITIONS (REGIONAL DISCRETIONARY FEDERAL
FUNDS INCLUDING STP AND CMAQ)
1. TERMINATION
Notwithstanding Article 8.0, TERMINATION in the Master Funding Agreement, MTC
may terminate this Agreement without cause upon ten (10) days prior written notice. If MTC
terminates this Agreement without cause, AGENCY shall be entitled to payment for costs
incurred for incomplete deliverables, up to the maximum amount payable for each deliverable.
If AGENCY fails to perform as specified in this Agreement, MTC may terminate this Agreement
for cause by written notice and AGENCY shall be entitled only to costs incurred for work
product acceptable to MTC, not to exceed the maximum amount payable under this Agreement
for such work product.
2. RETENTION OF RECORDS
AGENCY agrees to establish and maintain an accounting system confirming to GAAP
that is adequate to accumulate and segregate reasonable, allowable, and allocable project costs.
AGENCY further agrees to keep all records pertaining to the project being funded for
audit purposes for a minimum of three (3) years following final payment to AGENCY or four (4)
years following the fiscal year of the last expenditure under this Agreement, whichever is longer,
in accordance with generally accepted accounting principles. Copies of AGENCY audits, if any,
performed during the course of Project development and at Project completion shall be
forwarded to MTC no later than one hundred eighty (180) days after fiscal year end close.
3. AUDITS
Notwithstanding Article 13.0, AUDITS in the Master Funding Agreement, AGENCY
agrees to grant MTC, or any agency that provides MTC with funds for the Project, including but
not limited to, the U.S. Department of Transportation, FHWA, the Comptroller General of the
United States, the State, and their authorized representatives access to AGENCY’s books and
records for the purpose of verifying that funds are properly accounted for and proceeds are
expended in accordance with the terms of this Agreement. All documents shall be available for
inspection during normal business hours at any time while the Project is underway and for the
retention period specified in Article 4.
AGENCY further agrees to include in all its third-party contracts hereunder a provision
to the effect that the contractor agrees that MTC, the U.S. Department of Transportation, FHWA,
the Comptroller General of the United States, the State, or any of their duly authorized
representatives shall have access to and the right to examine any directly pertinent books,
documents, papers, and records of such subcontractor, during normal business hours, for the term
specified above. The term “contract” as used in this clause excludes agreements not exceeding
$25,000.
EXHIBIT A
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4. LICENSE TO WORK PRODUCTS
AGENCY hereby grants to MTC an irrevocable, non-exclusive, royalty-free license to
use without restriction and share with any person or entity all drawings, designs, specifications,
manuals, reports, studies, surveys, models, software, source code and source code
documentation, documentation or system architecture, and any other documents, materials, data,
and products (“Work Products”) developed, prepared, or assembled by AGENCY or AGENCY’s
consultant(s) or its subconsultants pursuant to this Agreement. MTC may exercise their licenses
to Work Products through sublicenses to a third party, without the approval of AGENCY or
AGENCY’s consultant(s) or subconsultants. FHWA reserves a royalty-free, non-exclusive and
irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for
federal government purposes: (a) the copyright in any work developed under this Agreement;
and (b) any rights of copyright to which AGENCY or AGENCY’s consultant(s) or
subconsultants purchase ownership under this Agreement.
5. EQUAL EMPLOYMENT OPPORTUNITY
In accordance with Title VI of the Civil Rights Act, as amended (42 U.S.C. § 2000d);
Section 303 of the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6102); Section 202
of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12132); and 49 U.S.C. § 5332 for
FTA-funded projects, AGENCY agrees that it shall not, on the grounds of race, religious creed,
color, national origin, age, physical disability or sex, discriminate or permit discrimination
against any employee or applicant for employment.
6. DISADVANTAGED BUSINESS ENTERPRISES (DBE)
It is the policy of MTC and the U.S. Department of Transportation to ensure
nondiscrimination in the award and administration of DOT-assisted contracts and to create a
level playing field on which disadvantaged business enterprises, as defined in 49 Code of Federal
Regulations Part 26, can compete fairly for contracts and subcontracts relating to MTC’s
procurement and professional services activities.
AGENCY shall not discriminate on the basis of race, color, national origin or sex in the
performance of this Agreement. AGENCY shall carry out applicable requirements of 49 CFR
Part 26 in the award and administration of DOT-assisted contracts. Failure by AGENCY to
carry out these requirements is a material breach of contract, which may result in the termination
of this agreement or such other remedy as MTC deems appropriate.
7. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
AGENCY agrees to comply with all the requirements imposed by Title VI of the Civil
Rights Act of 1964 (47 U.S.C. § 2000(d)) and the regulations of the Department of
Transportation issued thereunder (49 CFR Part 21).
8. ACCESS REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES
AGENCY agrees to comply with all applicable requirements of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. § 794; Section 16 of the Federal Transit Act, as amended, 49
U.S.C. § 5310(f); and their implementing regulations.
9. STATE ENERGY CONSERVATION PLAN
EXHIBIT A
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AGENCY shall comply with all mandatory standards and policies relating to energy
efficiency that are contained in the State energy conservation plan issued in compliance with the
Energy Policy and Conservation Act (42 U.S.C. § 6321).
10. DEBARMENT
AGENCY certifies that neither it, nor any of its participants, principals or subcontractors
is or has been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from covered transactions, as they are defined in 49 CFR Part 29, by any Federal
agency or department.
11. CLEAN AIR AND WATER POLLUTION ACTS
AGENCY agrees to comply with the applicable requirements of all standards, orders, or
requirements issued under the Clean Air Act (42 U.S.C. § 7501 et seq.), the Clean Water Act (33
U.S.C. § 1251 et seq.), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR Part 15).
12. LOBBYING
AGENCY agrees to comply with the restrictions on the use of federal funds for lobbying
activities set forth in 31 United States Code §1352 and 49 C.F.R. Part 20.
13. INDEMNIFICATION
Notwithstanding Article 10.0, INDEMNIFICATION, in the Master Funding Agreement
AGENCY shall indemnify and hold harmless MTC, Caltrans, their Commissioners, Directors,
officers, agents and employees from any and all claims, demands, suits, loss, damages, injury
and/or liability (including any and all costs and expenses in connection therewith), incurred by
reason of any act or failure to act of AGENCY, its officers, directors, employees, agents and
contractors, or any of them, under or in connection with this Agreement; and AGENCY agrees at
its own cost, expense and risk to defend any and all claims, actions, suits, or other legal
proceedings brought or instituted against MTC, Caltrans, their Commissioners, Directors,
officers, agents, and employees, or any of them, arising out of such act or omission, and to pay
and satisfy any resulting judgments.
14. COMPLIANCE WITH LAWS
AGENCY shall comply with any and all laws, statutes, ordinances, rules, regulations or
requirements of the federal, state, or local government, and any agency thereof, including, but
not limited to MTC, the U.S. DOT, FHWA, the State, and Caltrans, which relate to or in any
manner affect the performance of this Agreement. Those laws, statutes, ordinances, rules,
regulations, and procedural requirements that are imposed on MTC as an AGENCY of federal or
state funds are hereby in turn imposed on AGENCY (including, but not limited to, 49 CFR Part
18, “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and
Local Governments”), and are herein incorporated by this reference and made a part hereof.
AGENCY contractors shall agree to comply with all 48 CFR, Chapter 1, Part 31,
Contract Cost Principles and Procedures. In addition, AGENCY certifies that the AGENCY and
its contractors shall comply with the requirements of the California Environmental Quality Act
(CEQA), California Public Resources Code Section 21,000 et seq. and with the State
Environmental Impact Report Guidelines (14 California Code of Regulators Section 15000 et
EXHIBIT A
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Funding Agreement for FY 2017-18 to FY 2026-27
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seq.) and the National Environmental Policy Act (NEPA), 42 U.S.C. Section 4321 et seq. and the
applicable regulations thereunder.
15. IDENTIFICATION OF DOCUMENTS
AGENCY shall ensure that all reports and other documents completed as part of this
Agreement shall carry the following notation on the front cover or title page:
“The preparation of this report has been financed in part by grants from the U.S.
Department of Transportation. The contents of this report do not necessarily reflect the official
views or policy of the U.S. Department of Transportation.”
EXHIBIT A
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EXHIBIT C
FORM 10-C
EXHIBIT A
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