Loading...
HomeMy WebLinkAbout04/19/2011, C 2 - EXECUTION OF A MASTER AGREEMENT AND PROGRAM SUPPLEMENTS FOR STATE FUNDED TRANSIT PROJECTS Co N n V L Mmwe Dek April 19 2011 acEnda REpont ,NmNum6. 01a CITY OF SAN LUIS OBISPO FROM: Jay D Walter, Director of Public Works Prepared By: John Webster, Transit Manager SUBJECT: EXECUTION OF A MASTER AGREEMENT AND PROGRAM SUPPLEMENTS FOR STATE FUNDED TRANSIT PROJECTS RECOMMENDATIONS 1. Adopt a resolution, authorizing the City Manager to execute a master agreement and program supplements for State funded transit projects. 2. Authorize the Public Works Director to execute all Program Supplements for State funded transit projects and any amendments thereto required by the California Department of Transportation. DISCUSSION Background On June 5, 2001 the Council approved a ten year Master grant agreement with the California Department of Transportation, (Resolution NO. 9190-2001 series-Attachment 1) that authorized the City of San Luis Obispo to receive funding now or in the future for transit related projects. The current Master agreement expired on March 1, 2011. In order to utilize State Transportation Improvement Program (STIP) Funds, the City is required to adopt by resolution (Attachment 2) which authorizes the execution of a Master Agreement(Attachment 3) with the California Transportation Department. This Master Agreement has a ten-year term and will pertain to all state funded transit projects utilizing the following funding sources: 1. Passenger Rail and Clean Air Bond Act of 1990 2. Clean Air and Transportation Improvement Act of 1990 3. Public Transportation Account Funds 4. State Highway Account 5. Traffic Congestion Relief Funds 6. General Fund 7. Other State Funding Sources As future transit projects are developed, funded, and approved by the California Transportation Commission, projects will be administratively incorporated into the Master Agreement as Program Supplement Amendments. Program Supplement Amendments consist of a brief project description, a funding plan, and provides other basic information. Program Supplement Amendments must be executed before the City can charge against any project. There are two advantages of the Master Agreement. The first advantage of this agreement is that the City will not be required to execute by resolution a separate cooperative agreement for each transit project. The other advantage of this agreement is that it streamlines the Program Supplement Amendment process by delegating the C2-1 2010-11 Program of Projects Page 2 authority to execute amendments to Director of Public Works, the same authority he has for other state funding programs. FISCAL IMPACT There will be no impact to the General Fund with the approval of these recommendations. ALTERNATIVE Deny Master Agreement: The Council may decide not to adopt the Master Agreement, and pursue project funds through the Federal Transit Administration. This alternative is not recommended because State funding is an essential component of the City's Transit Program. ATTACHMENTS 1. Resolution NO. 9190-2001 series 2. Resolution 3. Master Agreement T:\Council Agenda Rcports\Public Works CAR\201 I\TRANS MCAR-MASTER AGREEMENT STATE FUNDED TRANSIT PROJECTS-April 19- 201 I\CAR MASTER AGREEMENT STATE FUNDED TRANSIT PROJECTS-April 19-201 I.doc C2-2 ATTACHMENT i • RESOLUTION NO. 9190(2001 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO AUTHORIZING FOR THE EXECUTION OF A MASTER AGREEMENT AND PROGRAM SUPPLEMENTS FOR STATE FUNDED TRANSIT PROJECTS WHEREAS,the City of San Luis Obispo may receive funding from the State of California now or sometime in the future for transit related projects;and WHEREAS,substantial revisions were made to the programming and funding process for the transportation projects programmed in the State Transportation Improvement Program,by Chapter 622(SB 45)of the Statutes of 1997; and WHEREAS,the Traffic Congestion Relief Act of 2000(the Act)was established by Chapters 91 (AB 2928)and 92(SB 496), as amended.by SB 1662,of the statutes of 2000,creating the Traffic Congestion Relief Program(ICRP);and WHEREAS,these statutes related to state funded transit projects require.a local or regional implementing agency to execute a cooperative agreement with Caltrans before it can be reimbursed for project expenditures; and WHEREAS,the California Transportation Commission(CTC) guidelines for the Traffic Congestion Relief Program,encourages Caltrans and the implementing agency to maximize the use of existing agreements such as Master Agreements and Program Supplements to expedite development and execution of cooperative agreements; and NOW,THEREFORE,BE IT RESOLVED by the City Council of San Luis Obispo,the City agrees to comply with all conditions and requirements set forth in this agreement and applicable statues,regulations and guidelines for all state funded transit projects. WHEREAS,the CTC,who governs the administration of transit related projects, requires a cooperative agreement,for TCRP projects to include a certification,by resolution of the governing board of a local or regional agency,as required by statutes,that it will sustain its level of expenditures for transportation purposes at a level that is consistent with the average of its annual expenditures during the 1997=98, 1998-99,and 1999-2000 fiscal years, including funds reserved for transportation purposes,during the fiscal years that the allocation is available for use; and NOW,THEREFORE,BE IT RESOLVED that the level of expenditures for transportation purposes will be sustained at a level that is consistent with the average of its annual expenditures during the 1997-98, 1998-99, and 1999-2000 fiscal years,including funds reserved for transportation purposes,during the fiscal years that allocations for TCRP Projects are available for use. R 9190 C2-3 ATTACHMENT • Resolution No. 9190(2001 Series) Page 2of2 WHEREAS,the City wishes to delegate authorization to execute these agreements and any amendments thereto to the City Administrative Officer; and NOW THEREFORE,BE IT RESOLVED that the City Administrative Officer be authorized to execute all Program.Supplements for State.Funded Transit Projects and any amendments thereto with the California Department of Transportation. On motion of Council Member Schwartz, seconded by Council Member Marx, and on the following roll call vote: AYES: Council Members Marx,Mulholland, Schwartz, Vice Mayor Ewan and Mayor Settle NOES: None ABSENT: None The foregoing resolution was passed and adopted this 51h day of June 2001. Allen Settle, ayor Ea- 2 Citv . erlc APPROVED AS TO FROM: #ttoley 1-117_d ATTACHMENT 2 - RESOLUTION NO. (2011 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO AUTHORIZING THE EXECUTION OF A MASTER AGREEMENT AND PROGRAM SUPPLEMENTS FOR STATE FUNDED TRANSIT PROJECTS WHEREAS,the City of San Luis Obispo may receive state funding from the California Department of Transportation(Department) now or sometime in the future for transit projects; and WHEREAS, substantial revisions were made to the programming and funding process for the transportation projects programmed in the State Transportation Improvement Program,by Chapter 622 (SB 45) of the Statutes of 1997; and WHEREAS, the Traffic Congestion Relief Act of 2000 (the Act) was established by Chapters 91 (AB 2928) and 92 (SB 496), as amended by SB 1662, of the statutes of 2000, creating the Traffic Congestion Relief Program (TCRP); and WHEREAS; the statutes related to state-funded transit projects require a local or regional implementing agency to execute an agreement with the Department before it can be reimbursed for project expenditures; and WHEREAS, the Department utilizes Master Agreements for State-Funded Transit Projects, along with associated Program Supplements, for the purpose of administering and reimbursing state transit funds to local agencies; and WHEREAS, the City of San Luis Obispo wishes to delegate authorization to execute these agreements and any amendments thereto to the Public Works Director, and NOW, THEREFORE, BE IT RESOLVED by the City Council of San Luis Obispo that; 1. The fund recipient agrees to comply with all conditions and requirements set forth in this agreement and applicable statutes, regulations and guidelines for all state- funded transit projects. 2. The City Manager is authorized to execute the Master Agreement and for the Public Works Director to execute and all Program Supplements for State-Funded Transit Projects and any Amendments thereto with the California Department of Transportation. C2-5 ATTACHMENT 2 On motion of seconded by , and on the following roll call vote: AYES: NOES: ABSENT: The foregoing resolution was passed and adopted this day of , 2011 Jan Howell Marx, Mayor ATTEST` City Clerk Elaina Cano Attorney Christine Dietrick C2-6 ATTACHMENT 3 -- Recipient Name Master Agreement No.64AOXXX Master Agreement State Funded Transit Projects �--- La "! California Department of Transportation DIVISION OF MASS TRANSPORTATION 1120 N STREET, ROOM 3300 P. O. BOX 942874, MS-39 SACRAMENTO, CA 94274-0001 PHONE (916) 654-9842 Revised 11/3/10 C2-7 ATTACHMENT 3 Recipient Narne Nlaa[erNo,64AGYXX Pa"e i o'ii STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION DIVISION OF MASS TRANSPORTATION .TABLE OF CONTENTS FUNDING SOURCES COVERED BY THIS AGREEMENT as identified in each Program Supplement 1 ARTICLE I-PROJECT ADMINISTRATION 1 Section 1. Program Supplement 1 A. General 1 B. . Project Overrun 3 C. Scope of Work 4 D. Program Supplement Amendments 4 Section 2. Allowable Costs and Payments 4 A. Allowable Costs and Progress Payment Vouchers 4 B. Advance Payments(TCR Projects Only) 5 C. Expedited Payments(Excludes TCR Projects) 6 D. Advance Expenditure of Local Funds 6 E. Travel Reimbursement 6 F. Final Invoice 7 ARTICLE II—GENERAL PROVISIONS 7 Section 1.Funding 7 A. Local Match Funds 7 B. Funding Contingencies 8 C. Funds Movement 8 Section 2. Audits and Reports 8 A. Cost Principles 8 B. Record Retention g C. Quarterly Review 10 Section 3. Special Requirements 10 A. California Transportation Commission(CTC)Resolutions 10 B. Recipient Resolution 11 C. Termination I D. Third Party Contracting 12 E. Change in Terms/Amendments 13 F. Project Ownership 13 G. Disputes 15 H. Hold Harmless and Indemnification 15 1. Labor Code Compliance 16 J. Non-Discrimination 16 K. State Fire Marshal Building Standards 17 L. Americans with Disabilities Act 17 M. Access for Persons with Disabilities 17 N. Disabled Veterans Program Requirements 17 O. Environmental Process 18 Reused 11/2/10 C2-9 ATTACHMENT 3 Recipient Name osier Agreernent No.64A10X.XX Page is of 11 ARTICLE III—SPECIAL PROVISIONS 18 Section 1. Bond Provisions 18 A. General Bond Provisions 18 Section 2. TCRP PROJECTS 20 Section 3. PROJECT MANAGEMENT 21 Attachment I—CTC Resolution G-91-2 22 Attachment II—Recipient Agency Board Resolution 24 Revised 11/7/10 C2-10 1 I ATTACHMENT 3 Recipient N, Nfasier Agreco:ent No.64AOXXh Page t of 24 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION DIVISION OF MASS TRANSPORTATION MASTER AGREEMENT STATE FUNDED TRANSIT PROJECTS Effective Date of this Agreement: Month Date,Year Termination Date of this Agreement: Month Date, Year Recipient: Recipient Name APPLICABLE FUNDING SOURCES COVERED BY THIS AGREEMENT WILL BE IDENTIFIED IN EACH SPECIFIC PROGRAM SUPPLEMENT ADOPTING THE TERMS OF THIS AGREEMENT ♦ General Fund ♦ State Highway Account ♦ Public Transportation Account ♦ Transportation Investment Fund ♦ Traffic Congestion Relief Fund (TCR), GC 14556.40 ♦ Clean Air and Transportation Improvement Act of 1990 (PROP. 116) Bond Fund ♦ Other State Funding Sources This AGREEMENT, entered into effective as of the date set forth above, is between the signatory public entity identified hereinabove, hereinafter referred to as RECIPIENT, and the STATE OF CALIFORNIA, acting by and through its Department of Transportation, hereinafter referred to as STATE. ARTICLE I -PROJECT ADMINISTRATION Section 1. Program Supplement A. General (1) This AGREEMENT shall have no force and effect with respect to any PROJECT unless and until a separate PROJECT specific "PROGRAM SUPPLEMENT— STATE FUNDED TRANSIT PROJECT(S)," hereinafter referred to as"PROGRAM SUPPLEMENT," adopting all of the terms and conditions of this AGREEMENT has been fully executed by both STATE and RECIPIENT. (2) RECIPIENT agrees to complete each defined PROJECT; or the identified PROJECT Phase/Component thereof, described in the PROGRAM SUPPLEMENT adopting all of the terns and conditions of this AGREEMENT. Revised 11/2/10 C2-11 ct ATTACHMENT 3 Recipient Natne Master Aoreemem,No.64AOXXX Page 2 c*24 (3) A financial commitment of actual PROJECT funds will only occur in each detailed and separate PROGRAM SUPPLEMENT. No funds are obligated by the prior execution of this AGREEMENT alone. (4) RECIPIENT further agrees, as a condition to the release and payment of the funds encumbered for the PROJECT described in each PROGRAM SUPPLEMENT, to comply with the terms and conditions of this AGREEMENT and all the agreed-upon Special Covenants and Conditions attached to or made a part of the PROGRAM SUPPLEMENT identifying and defining the nature of that specific PROJECT. (5) The PROGRAM SUPPLEMENT shall include: a detailed Scope of Work conforming to the included Project Description, a Project Schedule, an Overall Funding Plan, and a Project Financial Plan as required by the applicable Guidelines. a. The Scope of Work shall include a detailed description of the PROJECT and will itemize the major tasks and their estimated costs. b. The Project Schedule shall include major tasks and/or milestones and their associated beginning and ending dates and duration. c. The Overall Funding Plan shall itemize the various PROJECT Components, the committed funding program(s)or source(s), and the matching funds to be provided by RECIPIENT and/or other funding sources, if any [these Components include Environmental and Permits; Plans, Specifications and Estimates(PS&E); Right-of- Way(ROW); and Construction(including transit vehicle acquisition)]. d. The Project Financial Plan shall identify estimated expenditures for each PROJECT Component by funding source. (6) Adoption and execution of the PROGRAM SUPPLEMENT by RECIPIENT and STATE, incorporating the terms and conditions of this AGREEMENT into the PROGRAM SUPPLEMENT as though fully set forth therein, shall be sufficient to bind RECIPIENT to these terms and conditions when performing the PROJECT. Unless otherwise expressly delegated to a third-party in a resolution by RECIPIENT's governing body, which delegation must be expressly assented to and concurred in by STATE, the PROGRAM SUPPLEMENT shall be managed by RECIPIENT. (7) The estimated cost and scope of each PROJECT will be as described in the applicable PROGRAM SUPPLEMENT. STATE funding participation for each PROJECT is limited to those amounts actually encumbered by STATE as evidenced in that applicable PROGRAM SUPPLEMENT. A contract awarded by RECIPIENT for PROJECT work in an amount in excess of said approved estimate or the PROGRAM SUPPLEMENT funding limit may exceed any said PROGRAM SUPPLEMENT cost estimate and the limits of STATE's participation provided: a. RECIPIENT provides the necessary additional funding,or b. A cost increase in STATE'S share of PROJECT funding is first requested by RECIPIENT (before the cost overrun occurs) and that increase is approved by Revised I U?110 C2-12 ATTACHMENT 3 Recipient Name Buster Agreement No.64AU XX Paee 3 of 14 STATE in the form of an Allocation Letter comprising the encumbrance document for that increased STATE funding level. (8) State programmed fund amounts may be increased to cover PROJECT cost increases only if- a. Such funds are available; b. STATE concurs with that proposed increase; and c. STATE issues an approved Allocation Letter, Fund Shift Letter, or a Time Extension Letter with additional funding as stated in an executed amendment to that PROGRAM SUPPLEMENT. (9) When additional State programmed funds are not available, RECIPIENT agrees that reimbursements of invoiced PROJECT costs paid to RECIPIENT will be limited to, and shall not exceed, the amounts already approved in the PROGRAM SUPPLEMENT containing the STATE approved encumbrance documents and that any increases in PROJECT costs above that STATE supported funding level must be defrayed by RECIPIENT with non-State funds. (10)For each approved PROGRAM SUPPLEMENT, RECIPIENT agrees to contribute at least the statutorily or other required local contribution of appropriate matching funds (other than State funds) if any matching funds are specified within the PROGRAM SUPPLEMENT, or any attachment thereto, toward the actual cost of the PROJECT or the amount, if any, specified in an executed SB 2800 (Streets and Highways Code section 164.53)Agreement for local match fund credit,whichever is greater. RECIPIENT shall contribute not less than the required match amount toward the cost of the PROJECT in accordance with a schedule of payments as shown in a Project Financial Plan prepared by RECIPIENT as part of a PROGRAM SUPPLEMENT. (11)Upon the stated expiration date of this AGREEMENT, any PROGRAM SUPPLEMENTS executed under this AGREEMENT for a PROJECT with work yet to be completed pursuant to the approved Project Schedule shall be deemed to extend the term of this AGREEMENT only to conform to the specific PROJECT termination or completion date contemplated by the applicable PROGRAM SUPPLEMENT to allow that uncompleted PROJECT to be administered under the extended terms and conditions of this AGREEMENT. B. Project Overrun (1) If RECIPIENT and STATE determine, at any time during the performance of a PROJECT, that the PROJECT budget may be exceeded, RECIPIENT shall take the following steps: a. Notify the designated STATE representative of the nature and projected extent of the overrun and,within a reasonable period thereafter, identify and quantify Revised 11/2/10 C2-13 ATTACHMENT 3 Recipient Name Master Alf-eemenl No.64AOXXX Paee 4 of_4 potential cost savings or other measures which RECIPIENT will institute to bring the Project Budget into balance; and b. Schedule the projected overrun for discussion at the next Quarterly Review meeting; and C. Identify the source of additional RECIPIENT or other third party funds that can be made available to complete PROJECT. C. Scope of Work (1) RECIPIENT shall be responsible for complete performance of the work described in the approved PROGRAM SUPPLEMENT for the PROJECT related to the commitment of encumbered funds. All work shall be accomplished in accordance with the applicable provisions of the Public Utilities Code, the Streets and Highways Code,the Government Code, and other applicable statutes and regulations. (2) RECIPIENT acknowledges and agrees that RECIPIENT is the sole control and manager of each PROJECT and its subsequent employment, operation, repair and maintenance for the benefit of the public. RECIPIENT shall be solely responsible for complying with the funding and use restrictions established by(a) the statutes from which these funds are derived, (b)the California Transportation Commission(CTC), (c) the State Treasurer, (d) the Internal Revenue Service, (e) the applicable PROGRAM SUPPLEMENT, and (f)this AGREEMENT. D. Program Supplement Amendments PROGRAM SUPPLEMENT amendments will be required whenever there are CTC-approved changes to the cost, scope of work, or delivery schedule of a PROJECT from those specified in the original PROJECT Application and the original PROGRAM SUPPLEMENT. Those changes shall be mutually binding upon the Parties only following the execution of a PROGRAM SUPPLEMENT amendment. Section 2. Allowable Costs and Payments A. Allowable Costs and Progress Payment Vouchers (1) Not more frequently than once a month, but at least quarterly, RECIPIENT will prepare and submit to STATE (directed to the attention of the appropriate State District Transit Representative)-signed Progress Payment Vouchers for actual PROJECT costs incurred and paid for by RECIPIENT consistent with the Scope of Work document in the PROGRAM SUPPLEMENT and STATE'shall pay those uncontested allowable costs once the voucher is approved. If no costs were incurred during any given quarter, RECIPIENT is exempt from submitting a signed Progress Payment Voucher; but is still required to present a progress report at each Quarterly Review. Revised 11/2110 C2-14 � 1 ATTACHMENT 3 Recipient Name Caster A ement No.54,' OXX Page ; of 14 (2) STATE shall not be required to reimburse more funds, cumulatively, per quarter of any fiscal year greater than the sums identified and included in the PROJECT Financial Plan. However, accelerated reimbursement of PROJECT funds in excess of the amounts indicated in the Project Financial Plan, cumulatively by fiscal year, may be allowed at the sole discretion of STATE if such funds are available for encumbrance to fulfill that need. (3) Each such voucher will report the total of PROJECT expenditures from all sources (including those of RECIPIENT and third parties) and will specify the percent of State reimbursement requested and the fund source. The voucher should also summarize State money requested by PROJECT component(environmental and permits,plans specifications, and estimates(PS&E); right of way; construction;rolling stock; or--if bond funded--private activity usage) and phase, and shall be accompanied by a report describing the overall work status and progress on PROJECT tasks. If applicable, the first voucher shall also be accompanied by a report describing any tasks specified in the PROGRAM SUPPLEMENT which were accomplished prior to the Effective Date of this AGREEMENT or the PROGRAM SUPPLEMENT with costs to be credited toward any required local contribution described in Article lI, Section 1 of this Agreement(but only if expended pursuant to any applicable prior executed Agreement for Local Match Fund Credit between RECIPIENT and STATE). (4) An Indirect Cost Rate Proposal and/or Central Service Cost Allocation plan and related documentation approved under cognizant agency regulations are to be provided to STATE (Caltrans Audits &Investigations) annually for their review, and approval and filing prior to ADMINISTERING AGENCY seeking reimbursement of indirect costs incurred within each fiscal year being claimed for reimbursement. B. Advance Payments (TCR Projects Only) (1) Advance reimbursements or payments by STATE are not allowed except in the case of TCR funded Projects, and only then when expressly authorized by the CTC. (2) In order to receive a CTC approved TCR payment advance,RECIPIENT must provide duplicate signed invoices to STATE requesting payment of that authorized advance. (3) For TCR Projects approved for advanced payment allocation by the CTC, said advance payment shall be deposited by RECIPIENT in an interest bearing account held by institutions with long-term credit ratings of"AA" or better from at least two nationally recognized credit rating agencies, or in instruments issued by and secured by the full faith and credit of the U.S. Government or by an agency of the U.S. Government. No TCR interest earnings may be spent on the PROJECT. Interest earned shall be recorded and documented from the time the TCR funds are first deposited in RECIPIENT's account until all the approved TCR advance funds have been expended or returned to STATE together with all accrued interest. Interest earned shall be reported to STATE's Project Coordinator on an annual basis and upon the final PROJECT .Revised 112/10 C2-15 ATTACHMENT 3 _ Recipient Nance :'Master Agreement No.64AUYX\ PatV 6 of-14 payment when interest earnings, overpayments, and unexpended advanced TCR funds shall be returned to STATE no later than thirty(30)days after PROJECT completion or termination of the PROGRAM SUPPLEMENT,whichever is first in time. (4) Advanced funds are to be expended only as indicated in the approved TCR Application. RECIPIENT must be able to document the expenditures/disbursement of funds advanced to only pay for actual allowable PROJECT costs incurred. (5) Except as expressly allowed hereinbelow,non-TCR funds and TCR project funds not authorized for advance payment can only be released by STATE as reimbursement of actual allowable PROJECT costs already incurred and paid for by RECIPIENT no earlier than the effective date of this AGREEMENT and not incurred beyond the AGREEMENT/PROGRAM SUPPLEMENT Termination Date. (6) Where advance payments are authorized in a PROGRAM SUPPLEMENT, RECIPIENT must report and document the expenditure/disbursement of funds advanced to pay for actual eligible PROJECT costs incurred, at least quarterly,using a Progress Payment Voucher to be approved by STATE's District Project Administrator. C. Expedited Payments Should RECIPIENT have a valid Memorandum of Understanding(MOU) for"Expedited Payment" on file with STATE's Accounting Service Center, RECIPIENT will, not more frequently than as authorized by that MOU,prepare and submit to STATE an Expedited Payment Invoice for reimbursements that are consistent with that MOU, this AGREEMENT, and the applicable PROGRAM SUPPLEMENT. Expedited.Payments are subject to policies established in the Caltrans Accounting Manual. One time payments and final payments eligible for expedited pay pursuant to this Section will have ten percent(10%) of each invoice amount withheld until PROJECT completion and STATE has evaluated RECIPIENT's performance and made a determination that all requirements assumed under this AGREEMENT and the relevant PROGRAM SUPPLEMENT have been satisfactorily fulfilled by RECIPIENT. D. Advance Expenditure of Local Funds Government Code section 14529.17 (AB 872) allows public agencies to expend their own funds on certain programmed projects prior to the CTC's allocation of funds, and, upon receipt of CTC approval, to then seek reimbursement for those allowable prior expenditures following execution of a PROGRAM SUPPLEMENT wherein STATE acknowledges and accepts those statutorily authorized prior expenditures as a credit towards a required RECIPIENT match, (if any) or as eligible PROJECT expenditures for reimbursement. E. Travel Reimbursement Payments to RECIPIENT for PROJECT related travel and subsistence expenses of RECIPIENT forces and its subcontractors claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid rank and file State employees under current Revised 11/2/10 C2-16 ATTACHMENT 3 Recipient Name etaswr Apreemem No.64AOXXX Paye 7 of-4 State Department of Personnel Administration(DPA) rules. If the rates invoiced by RECIPIENT are in excess of those authorized DPA rates, then RECIPIENT is responsible for the cost difference, and any overpayments inadvertently paid by STATE shall be reimbursed to STATE by RECIPIENT on demand. F. Final Invoice The PROGRAM SUPPLEMENT Termination Date refers to the last date for RECIPIENT to incur valid PROJECT costs or credits and is the date that the PROGRAM SUPPLEMENT expires. RECIPIENT has one hundred and eighty(180) days after that Termination Date to make already incurred final allowable payments to PROJECT contractors or vendors,prepare the PROJECT Closeout Report, and submit the final invoice to STATE for reimbursement of allowable PROJECT costs before those remaining State funds are unencumbered and those funds are reverted as no longer available to pay any PROJECT costs. RECIPIENT expressly waives any right to allowable reimbursements from STATE pursuant to this AGREEMENT for costs incurred after that termination date and for costs invoiced to RECIPIENT for payment after that one hundred and eightieth(180`h) day following the PROJECT Termination Date. ARTICLE II—GENERAL PROVISIONS Section 1. Funding A. Local Match Funds Subparagraphs"(1) and(2)" within this Section LA. apply only to those PROJECTS where the PROJECT funding is programmed to require a local match. (See individual Program Guidelines for specific funding requirements). (1) Except where specifically allowed by the applicable PROGRAM SUPPLEMENT, reimbursement of and credits for local matching funds will be made or allowed only for work performed after the Effective Date of a PROGRAM SUPPLEMENT and prior to the Termination Date unless permitted as local match PROJECT expenditures made prior to the effective date of the PROGRAM SUPPLEMENT pursuant to Government Code section 14529.17 or by an executed SB 2800 Agreement for Local Match Fund Credit. (2) RECIPIENT agrees to contribute at least the statutorily or other required local contribution of matching funds (other than State or federal funds), if any is specified within the PROGRAM SUPPLEMENT or any attachment thereto, toward the actual cost of the PROJECT or the amount, if any, specified in any executed SB 2800(Streets and Highways Code Section 164.53) Agreement for local match fund credit,whichever is greater. RECIPIENT shall contribute not less than its required match amount toward the PROJECT cost in accordance with a schedule of payments as shown in the Project Financial Plan prepared by RECIPIENT and approved by STATE as part of a PROGRAM SUPPLEMENT. Revised I U2/10 C2-17 ATTACHMENT Rccipient Name _Mast r.-agreement No.64At)XXX i'a��e 8 of 24 B. Funding Contingencies Delivery by STATE of all funds encumbered to reimburse allowable PROJECT costs pursuant to this AGREEMENT is contingent upon prior budget action by the Legislature, fund allocation by the CTC or the United States Department of Transportation, and submittal by RECIPIENT and approval by STATE of all PROJECT documentation,including, without limitation,that required by Government Code section 14085. In the event of the imposition of additional conditions, delays, or a cancellation or reduction in funding, as approved by the Legislature, the CTC or the United States Department of Transportation, RECIPIENT shall be excused from meeting the time and expenditure constraints set forth in the Project Financial Plan and the Project Schedule to the extent of such delay, cancellation or reduction and the PROGRAM SUPPLEMENT will be amended to reflect the resultant necessary changes in PROJECT funding, scope,or scheduling. C. Funds Movement RECIPIENT shall not make any proposed changes in any of the four PROJECT expenditure Components(Environmental and Permits, PS&E, Right-of-Way and Construction (including major equipment acquisitions) without prior written STATE approval. STATE will also determine whether those proposed changes are significant enough to warrant CTC review. Specific rules and guidelines regarding this process may be detailed in the applicable CTC Resolutions, including, but not limited to, numbers G-06-04 and G-06-20 or their successors. Section 2. Audits and Reports A. Cost Principles (1) RECIPIENT agrees to comply with Title 2 Code of Federal Regulations 225 (2 CFR 225) Cost Principles for State and Local Government, and 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. (2) RECIPIENT agrees, and will assure that its contractors and subcontractors will be obligated to agree, that(a) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual Project cost items and(b)those parties shall comply with Federal administrative procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. Every sub-recipient receiving PROJECT funds as a contractor or sub-contractor under this AGREEMENT shall comply with Federal administrative procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. (3) Any PROJECT costs for which RECIPIENT has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR 225, Chapter 1, Part 31 or 49 CFR, Part 18, are subject to repayment by RECIPIENT to STATE. Should Revised 11/2/10 C2-18 ATTACHMENT 3 Recipient Name Faster \,;reeme:t[No.64Ai)XXX Page 9 of_4 RECIPIENT fail to reimburse moneys due STATE within thirty(30) days of demand, or within such other period as may be agreed in writing between the Parties hereto, STATE is authorized to intercept and withhold future payments due RECIPIENT from STATE or any third-party source, including but not limited to, the State Treasurer, the State Controller and the CTC. B. Record Retention (1) RECIPIENT agrees, and will assure that its contractors and subcontractors shall establish and maintain an accounting system and records that properly accumulate and segregate incurred PROJECT costs and matching funds by line item for the PROJECT. The accounting system of RECIPIENT, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles(GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. All accounting records and other supporting papers of RECIPIENT, its contractors and subcontractors connected with PROJECT performance under this AGREEMENT and each PROGRAM SUPPLEMENT shall be maintained for a minimum of three(3)years from the date of final payment to RECIPIENT under a PROGRAM SUPPLEMENT and shall be held open to inspection, copying, and audit by representatives of STATE, the California State Auditor, and auditors representing the federal government. Copies thereof will be furnished by RECIPIENT, its contractors, and subcontractors upon receipt of any request made by STATE or its agents. In conducting an audit of the costs and match credits claimed under this AGREEMENT, STATE will rely to the maximum extent possible on any prior audit of RECIPIENT pursuant to the provisions of federal and State law. In the absence of such an audit, any acceptable audit work performed by RECIPIENT's external and internal auditors may be relied upon and used by STATE when planning and conducting additional audits. (2) For the purpose of determining compliance with Title 21, California Code of Regulations, Section 2500 et seq.,when applicable, and other matters connected with the performance of RECIPIENT's contracts with third parties pursuant to Government Code section 8546.7, RECIPIENT, RECIPIENT's contractors and subcontractors and STATE shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such AGREEMENT and PROGRAM SUPPLEMENT materials available at their respective offices at all reasonable times during the entire PROJECT period and for three(3)years from the date of final payment to RECIPIENT under any PROGRAM SUPPLEMENT. STATE, the California State Auditor, or any duly authorized representative of STATE or the United States Department of Transportation, shall each have access to any books, records, and documents that are pertinent to a PROJECT for audits, examinations, excerpts, and transactions, and RECIPIENT shall furnish copies thereof if requested. Revised 1112/10 C2-19 ATTACHMENT 3 Recipient Name Hast r A eeme!aC:No.64AOXXX Page 10 of 24 (3) RECIPIENT, its contractors and subcontractors will permit access to all records of employment, employment advertisements; employment 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, for the purpose of any investigation to ascertain compliance with this AGREEMENT. C. Quarterly Review (1) Subject to the discretion of STATE, RECIPIENT and STATE agree to conduct, on a quarterly basis, on-site reviews of all aspects of the progress of each PROJECT. RECIPIENT agrees,during each quarterly progress review, to inform STATE regarding: a. Whether the PROJECT is proceeding on schedule and within budget; b. Any requested changes to the Project Description, Scope of Work, Project Schedule,Overall Funding Plan, or Project Financial Plan contained in a PROGRAM SUPPLEMENT; c. Major construction accomplishments during the quarter; d. Any actual or anticipated problems which could lead to delays in schedule, increased costs or other difficulties; e. The status of the PROJECT budget; and f. The status of critical elements of PROJECT. (2) Quarterly reviews of RECIPIENT progress will include consideration of whether reported implementation activities are within the scope of the PROJECT PROGRAM SUPPLEMENT and in compliance with State laws, regulations, and administrative requirements. Section 3. Special Requirements A. California Transportation Commission (CTC)Resolutions (1) RECIPIENT shall adhere to applicable CTC policies on"Timely Use of Funds" as stated in Resolution G-06-04, adopted April 26, 2006, addressing the expenditure and reimbursement of TCR funds; and Resolution G-06-20, adopted December 13, 2006, to provide guidance for the use of Proposition 116 and STIP funds. These resolutions, and/or successor resolutions in place at the time a PROGRAM SUPPLEMENT is executed, shall be applicable to all Prop 116, STIP and TCR funds, respectively. (2) RECIPIENT shall be bound to the terms and conditions of this AGREEMENT; the PROJECT application contained in the PROGRAM SUPPLEMENT(as applicable); and CTC Resolutions G-06-04, G-06-20 and/or their respective successors in place at the time the PROGRAM SUPPLEMENT is signed(as applicable) and all restrictions, rights, duties and obligations established therein on behalf of STATE and CTC shall accrue to the benefit of the CTC and shall thereafter be subject to any necessary Revised 1112110 C2-20 ATTACHMENT 3 �: — Ri.c4)ient Name Vlasm—Agrven)e;;E No.64AOXXX Nge I I o;1_4 enforcement action by CTC or STATE. All terms and conditions stated in the aforesaid CTC Resolutions and CTC-approved Guidelines in place at the time the PROGRAM SUPPLEMENT is signed(if applicable) shall also be considered to be binding provisions of this AGREEMENT. (3) RECIPIENT shall conform to any and all permit and mitigation duties associated with PROJECT as well as all environmental obligations established in CTC Resolution G- 91-2 and/or its successors in place at the time a PROGRAM SUPPLEMENT is signed, as applicable, at the expense of RECIPIENT and/or the responsible party and without any further financial contributions or obligations on the part of STATE unless a separate PROGRAM SUPPLEMENT expressly provides funding_ for the specific purpose of hazardous materials remediation. B. RECIPIENT Resolution (1) RECIPIENT has executed this AGREEMENT pursuant to the authorizing RECIPIENT resolution, attached as Attachment II to this AGREEMENT, which empowers RECIPIENT to enter into this AGREEMENT and which may also empower RECIPIENT to enter into all subsequent PROGRAM SUPPLEMENTS adopting the provisions of this AGREEMENT. (2) If RECIPIENT or STATE determines that a separate Resolution is needed for each PROGRAM SUPPLEMENT, RECIPIENT will provide information as to who the authorized designee is to act on behalf of the RECIPIENT to bind RECIPIENT with regard to the terms and conditions of any said PROGRAM SUPPLEMENT or amendment and will provide a copy of that additional Resolution to STATE with the PROGRAM SUPPLEMENT or any amendment to that document. C. Termination (1) STATE reserves the right to terminate funding for any PROGRAM SUPPLEMENT upon written notice to RECIPIENT in the event that RECIPIENT fails to proceed with PROJECT work in accordance with the PROGRAM SUPPLEMENT,the bonding requirements, if applicable, or otherwise violates the conditions of this AGREEMENT and/or the PROGRAM SUPPLEMENT or the funding allocation such that substantial performance is significantly endangered. (2) No such termination shall become effective if, within thirty(30)days after receipt of a Notice of Termination, RECIPIENT either cures the default involved or, if not reasonably susceptible of cure within said thirty(30)-day period, RECIPIENT proceeds thereafter to complete the cure in a manner and time line acceptable to STATE. Any such termination shall be accomplished by delivery to RECIPIENT of a Notice of Termination, which notice shall become effective not less than thirty (30) days after receipt, specifying the reason for the termination, the extent to which funding of work under this AGREEMENT is terminated and the date upon which such termination becomes effective, if beyond thirty(30) days after receipt.. During the Revised!1/1/10 C2-21 1 ATTACHMENT Recipient Name Nbsler Aoreen?ent No,04AOXXX Nge 12 of-14 period before the effective termination date, RECIPIENT and STATE shall meet to attempt to resolve any dispute. (3) Following a fund encumbrance made pursuant to a PROGRAM SUPPLEMENT, if RECIPIENT fails to expend TCR/GENERAL FUND monies by June 30 of any applicable Fiscal Year that those funds would revert, those funds will be deemed withdrawn and will no longer be available to reimburse PROJECT work unless those funds are specifically made available beyond the end of that Fiscal Year through re- appropriation or other equivalent action of the Legislature and written notice of that action is provided to RECIPIENT by STATE. (4) In the event STATE terminates a PROGRAM SUPPLEMENT for convenience and not for a default on the part of RECIPIENT as is contemplated in C (1) and(2) above of this Section 3, RECIPIENT shall be reimbursed its authorized costs up to STATE's proportionate and maximum share of allowable PROJECT costs incurred to the date of RECIPIENT's receipt of that notice of termination, including any unavoidable costs reasonably and necessarily incurred up to and following that termination date by RECIPIENT to effect such termination following receipt of that termination notice. D. Third Party Contracting (1) RECIPIENT shall not award a construction contract over$10,000 or other contracts over$25,000 [excluding professional service contracts of the type which are required to be procured in accordance with Government Code Sections 4525 (d), (e) and (f)] on the basis of a noncompetitive negotiation for work to be performed under this AGREEMENT without the prior written approval of STATE. Contracts awarded by RECIPIENT, if intended as local match credit, must meet the requirements set forth in this AGREEMENT regarding local match funds. (2) Any subcontract entered into by RECIPIENT as a result of this AGREEMENT shall contain the provisions of ARTICLE II—GENERAL PROVISIONS, Section 2. Audits and Reports and shall mandate that travel and per diem reimbursements and third-party contract reimbursements to subcontractors will be allowable as PROJECT costs only after those costs are incurred and paid for by the subcontractors. (3) To be eligible for local match credit; RECIPIENT must ensure that local match funds used for the PROJECT meet the General Provisions requirements outlined in this ARTICLE II in the same manner as required of all other PROJECT expenditures. (4) In addition to the above, the preaward requirements of third party contractor/consultants with local transit agencies should be consistent with Local Program Procedures(LPP-00-05). Revised 11/2/10 C2-22 ATTACHMENT 3 Recipient Name Ma�Aer Agreement No.64AOXXX Page 13 of-14 E. Change in Funds and Terms/Amendments This AGREEMENT and the resultant PROGRAM SUPPLEMENTS may be modified, altered, or revised only with the joint written consent of RECIPIENT and STATE. F. Project Ownership (1) Unless expressly provided to the contrary in a PROGRAM SUPPLEMENT, subject to the terms and provisions of this AGREEMENT,RECIPIENT, or a designated subrecipient acceptable to STATE, as applicable, shall be the sole owner of all improvements and property included in the PROJECT constructed, installed or acquired by RECIPIENT or subrecipient with funding provided to RECIPIENT under this AGREEMENT. RECIPIENT, or subrecipient, as applicable, is obligated to continue operation and maintenance of the physical aspects of the PROJECT dedicated to the public transportation purposes for which PROJECT was initially approved unless RECIPIENT, or subrecipient, as applicable, ceases ownership of such PROJECT property; ceases to utilize the PROJECT property for the intended public transportation purposes; or sells or transfers title to or control over PROJECT and STATE is refunded the Credits due STATE as provided in paragraph(4)herein below. (2) Should State bond funds be encumbered to fund any part of a PROJECT under this AGREEMENT,then, at STATE's option, before RECIPIENT will be permitted to make any proposed change in use, RECIPIENT shall be required to first obtain a determination by Bond Counsel acceptable to the State Treasurer's Office and STATE that a change in the operation,proportion, or scope of PROJECT as originally proposed by RECIPIENT will not adversely affect the tax exempt status of those bonds. (3) PROJECT right-of-way, PROJECT facilities constructed or reconstructed on a PROJECT site and/or PROJECT property (including vehicles and vessels)purchased by RECIPIENT(excluding temporary construction easements and excess property whose proportionate resale proceeds are distributed pursuant to this AGREEMENT) shall remain permanently dedicated to the described public transit use in the same proportion and scope, and to the same extent as mandated in the PROGRAM SUPPLEMENT and related Bond Fund Certification documents, if applicable, unless STATE agrees otherwise in writing. Vehicles acquired as part of PROJECT, including,but not limited to,buses,vans, rail passenger equipment and ferry vessels, shall be dedicated to that public transportation use for their full economic life cycle, which, for the purpose of this AGREEMENT, will be determined in accordance with standard national transit practices and applicable rules and guidelines, including any extensions of that life cycle achievable by reconstruction, rehabilitation or enhancements. (4) (a) Except as otherwise set forth.in this Section 4, STATE, or any other STATE- assignee public body acting on behalf of the CTC, shall be entitled to a refund or credit(collectively the Credit), at STATE's sole option, equivalent to the proportionate PROJECT funding participation received by RECIPIENT from Revised/IP-no C2-23 I. ATTACHMENT 3 Recipient Minae Page 14 of 24 STATE if RECIPIENT, or a sub-recipient, as applicable, (i)ceases to utilize PROJECT for the original intended public transportation purposes or(ii) sells or transfers title to or control over PROJECT. If federal funds(meaning only those federal funds received directly by RECIPIENT and not federal funds derived through or from the State) have contributed to the PROJECT, RECIPIENT shall notify both STATE and the original federal source of those funds of the disposition of the PROJECT assets or the intended use of those sale or transfer receipts. (b) STATE shall also be entitled to an acquisition Credit for any future purchase or condemnation of all or portions of PROJECT by STATE or a designated representative or agent of STATE. (c) The Credit due STATE will be determined by the ratio of STATE's funding when measured against the RECIPIENT's funding participation(the Ratio). For purposes of this Section 4, the State's funding participation includes federal funds derived through or from STATE. That Ratio is to be applied to the then present fair market value of PROJECT property acquired or constructed as provided in (d) and (e) below. (d) For Mass Transit vehicles,this Credit [to be deducted from the then remaining equipment value] shall be equivalent to the percentage of the full extendable vehicle economic life cycle remaining, multiplied by the Ratio of funds provided for that equipment acquisition. For real property, this same funding Ratio shall be applied to the then present fair market value, as determined by STATE, of the PROJECT property acquired or improved under this AGREEMENT. (e) Such Credit due STATE as a refund shall not be required if RECIPIENT dedicates the proceeds of such sale or transfer exclusively to a new or replacement STATE approved public transit purpose, which replacement facility or vehicles will then also be subject to the identical use restrictions for that new public purpose and the Credit ratio due STATE should that replacement project or those replacement vehicles cease to be used for that intended described pre-approved public transit purpose. (1) In determining the present fair market value of property for purposes of calculating STATE's Credit under this AGREEMENT, any real property portions of a PROJECT site contributed by RECIPIENT shall not be included. In determining STATE's proportionate funding participation, STATE's contributions to third parties (other than RECIPIENT) shall be included if those contributions are incorporated into the PROJECT. (2) Once STATE has received the Credit as provided for above because RECIPIENT, or a sub-recipient, as applicable,has (a)ceased to utilize the PROJECT for the described intended public transportation purpose(s) for which STATE funding was provided and STATE has not consented to that cessation of services or(b) sold or transferred title to or control over PROJECT to another Revised 11/2/10 C2-24 i ATTACHMENT 3 Recipient Menne Masrer Agreen;e a ilio,04AOXXX ?I-ii4e 1 i of 1-4 party(absent STATE approval for the continued transit operation of the PROJECT by that successor party under an assignment of RECIPIENT's duties and obligations),neither RECIPIENT, subrecipient,nor any party to whom RECIPIENT or subrecipient, as applicable,has transferred said title or control shall have any further obligation under this AGREEMENT to continue operation of PROJECT and/or PROJECT facilities for those described public transportation purposes,but may then use PROJECT and/or any of its facilities for any lawful purpose. (3) To the extent that RECIPIENT operates and maintains Intermodal Transfer Stations as any integral part of PROJECT, RECIPIENT shall maintain each station and all its appurtenances, including, but not limited to,restroom facilities, in good condition and repair in accordance with high standards of cleanliness (Public Utilities Code section 99317.8). Upon request of STATE, RECIPIENT shall also authorize State-funded bus services to use those stations and appurtenances without any charge to STATE or the bus operator. This permitted use will include the placement of signs and informational material designed to alert the public to the availability of the State-funded bus service(for the purpose of this paragraph, "State-funded bus service" means any bus service funded pursuant to Public Utilities Code section 99316). (4) Special conditions apply to any proposed sale or transfer or change of use as respects PROJECT property, facilities or equipment acquired with tax free State bond funds and RECIPIENT shall conform to those restrictions as set forth herein and in said bonds. G. Disputes STATE and RECIPIENT shall deal in good faith and attempt to resolve potential disputes informally. If the dispute persists, RECIPIENT shall submit to the STATE's District Contract Manager or designee a written demand for a decision regarding the disposition of any dispute arising under this agreement. The District Contract Manager shall make a written decision regarding the dispute and will provide it to the fund RECIPIENT. The fund RECEPIENT shall have an opportunity to challenge the District Contract Manager's determination but must make that challenge in writing within ten(10) working days to the Mass Transportation Program Manager or his/her designee. [If the fund RECIPIENT challenge is not made within the ten(10) day period, the District Contract Manager's decision shall become the final decision of the STATE.] STATE and RECIPEINT shall submit written, factual information and supporting data in support their respective positions. The decision of the Mass Transportation Program Manager or his/her designee shall be final, conclusive and binding regarding the dispute, unless RECIPIENT commences an action in court of competent jurisdiction to contest the decision in accordance with Division 3.6 of the California Government Code. H. Hold Harmless and Indemnification Revised 11/2110 C2-25 i ATTACHMENT 3 - R.cipient N, Master Noreen?enc No.b-tAOXXX Page 16 of 1-4 (1) Neither STATE nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by RECIPIENT, its agents and contractors under or in connection with any work, authority, or jurisdiction delegated to RECIPIENT under this AGREEMENT or any PROGRAM SUPPLEMENT or as respects environmental clean up obligations or duties of RECIPIENT relative to PROJECT. It is also understood and agreed that, RECIPIENT shall fully defend, indemnify and hold the CTC and STATE and their officers and employees harmless from any liability imposed for injury and damages or environmental obligations or duties arising or created by reason of anything done or imposed by operation of law or assumed by, or omitted to be done by RECIPIENT under or in connection with any work, authority, or jurisdiction delegated to RECIPIENT under this AGREEMENT and all PROGRAM SUPPLEMENTS. (2) RECIPIENT shall indemnify, defend and hold harmless STATE, the CTC and the State Treasurer relative to any misuse by RECIPIENT of State funds, PROJECT property, PROJECT generated income or other fiscal acts or omissions of RECIPIENT. I. Labor Code Compliance RECIPIENT shall include in all subcontracts awarded using PROJECT funds, when applicable, a clause that requires each subcontractor to comply with California Labor Code requirements that all workers employed on public works aspects of any project(as defined in California Labor Code §§ 1720-1815)be paid not less than the general prevailing wage rates predetermined by the Department of Industrial Relations as effective the date of Contract award by the RECIPIENT. J. Non-Discrimination (1) In the performance of work under this AGREEMENT, RECIPIENT,its contractor(s) and all subcontractors, 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(cancer), age, marital status, family and medical care leave,pregnancy leave, and disability leave. RECIPIENT, its contractor(s) and all subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. RECIPIENT, 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 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full. Each of RECIPIENT'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. Revised 11/1/10 C2-26 I ATTACHMENT Recipient Nati^ 'tas e3 Agreement No'(14AOXXX Page:t?o['?4 (2) Should federal funds be constituted as part of PROJECT funding or compensation received by RECIPIENT under a separate Contract during the performance of this AGREEMENT, RECIPIENT shall comply with this AGREEMENT and with all federal mandated contract provisions as set forth in that applicable federal funding agreement. (3) RECIPIENT shall include the non-discrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under this AGREEMENT. K. State Fire Marshal Building Standards Code The State Fire Marshall adopts building standards for fire safety and panic prevention. Such regulations pertain to fire protection design and construction, means of egress and adequacy of exits, installation of fire alarms, and fire extinguishment systems for any State-owned or State- occupied buildings per section 13108 of the Health and Safety Code. When applicable, RECIPIENT shall request that the State Fire Marshal review PROJECT PS&E to ensure PROJECT consistency with State fire protection standards. L. Americans with Disabilities Act By signing this Master Agreement,RECIPIENT assures STATE that RECIPIENT shall comply with the Americans with Disabilities Act(ADA)of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA (42 U.S.C. 12101 et seq.). M. Access for Persons with Disabilities Disabled access review by the Department of General Services(Division of the State Architect) is required for all publicly funded construction of buildings, structures, sidewalks, curbs and related facilities. RECIPIENT will award no construction contract unless RECIPIENT's plans and specifications for such facilities conform to the provisions of sections 4450 and 4454 of the California Government Code, if applicable. Further requirements and.guidance are provided in Title 24 of the California Code of Regulations. N. Disabled Veterans Program Requirements (1) Should Military and Veterans Code sections 999 et seq. be applicable to RECIPIENT, RECIPIENT will meet, or make.good faith efforts to meet,the 3% Disabled Veterans Business Enterprises goals (or RECIPIENT's applicable higher goals) in the award of every contract for PROJECT work to be performed under these this AGREEMENT. (2) RECIPIENT shall have the sole duty and authority under this AGREEMENT and each PROGRAM SUPPLEMENT to determine whether these referenced code sections are applicable to RECIPIENT and, if so, whether good faith efforts asserted by those contractors of RECIPIENT were sufficient as outlined in Military and Veterans Code sections 999 et seq. Revised 11/2/10 /-r C2-2 1y ATTACHMENT 3 - — Recipient Name luster Agreement No.64AOXXk Page 18 of?d O. Environmental Process Completion of the PROJECT environmental process ("clearance')by RECIPIENT (and/or STATE if it affects a State facility within the meaning of the applicable statutes) is required prior to requesting PROJECT funds for right-of-way purchase or construction. No State agency may request funds nor shall any State agency, board or commission authorize expenditures of funds for any PROJECT effort, except for feasibility or planning studies, which may have a significant effect on the environment unless such a request is accompanied with all appropriate documentation of compliance with or exemption from the California Environmental Quality Act (CEQA) (including, if as appropriate, an environmental impact report, negative declaration, or notice of exemption)under California Public Resources Code section 21080(b)(10), (11), and (12)provides an exemption for a passenger rail project that institutes or increases passenger or commuter services on rail or highway rights-of-way already in use. ARTICLE III—SPECIAL PROVISIONS Section 1. Bond Provisions (Applicable only to State Bond Funding encumbered against a specific Program Supplement). A. General Bond Provisions (1) If RECIPIENT enters into a management contract with a private party (including AMTRAK) for operation of rail, ferry or other transportation services in connection with PROJECT, RECIPIENT will obtain prior approval from Bond Counsel acceptable to STATE that the terms of that management contract meet the requirements of Internal Revenue Service Revenue Procedure 97-13 (as supplemented or amended)or any successor thereto(dealing generally with guidelines for when management contracts may be deemed not to create a "private use" of bond-financed property)or are otherwise acceptable.. RECIPIENT must also be prepared to certify, upon request of STATE, that the revenues which RECIPIENT (or its manager) will receive directly from the operation of transportation services in connection with PROJECT(but not including any subsidy of the transportation operation from taxes or other outside fund sources) are, for any fiscal year, less than the ordinary and necessary expenses directly attributable to the operation and maintenance of the transportation system(excluding any overhead or administrative costs of RECIPIENT). (2) Except as provided in this Article III, A (1), STATE and RECIPIENT agree that any costs of PROJECT acquired or constructed by RECIPIENT allocable to portions of PROJECT which are subject to any property interests held by a non-governmental person(s) in connection with business activities, such as easements, leases, or fee interests, not generally enjoyed by the public (hereinafter referred to as"Non- Governmentally Used Property" or"NUP") shall require the prior approval of STATE and the State Treasurer, as applicable. If RECIPIENT receives any revenues or profits Revised 1112110 C2-28 ATTACHMENT 3 Recipient Name Master Agreement No.64AOXX.X�t Page 19 of 1-Y from any NUP activities allowed pursuant to this Article(whether approved at this time or hereafter approved by STATE), RECIPIENT agrees that such revenues or profits shall be used exclusively for the public transportation services for which PROJECT was initially approved, either for capital improvements or operating costs. If RECIPIENT does not so dedicate those revenues or profits, a proportionate share shall (unless disapproved by Bond Counsel)be paid to STATE equivalent to the Ratio of STATE's percentage of participation in PROJECT. (3) Notwithstanding the foregoing, RECIPIENT may be authorized to receive an allocation of bond proceeds for NUP activity, in an amount not to exceed the amount specified in the PROGRAM SUPPLEMENT, if RECIPIENT submits a certified bond certification questionnaire to the STATE, and both the STATE and the State Treasurer approve the private activities contained therein. (4) RECIPIENT shall not loan any portion of bond proceeds funding PROJECT to any private(including nonprofit)person or business. For this purpose, a"loan" includes any arrangement that is the economic equivalent of a loan, regardless of how it is named. (5) Delivery by STATE of any bond funds is contingent on the sale of bonds by the State Treasurer. STATE shall not be held liable for any resulting damage or penalty to RECIPIENT in the event bond sales are delayed, canceled, or downsized or other AGREEMENT funds are restricted, limited or otherwise conditioned by acts of Congress, the Internal Revenue Service, the United States Department of Transportation, the Legislature, or the CTC. (6) RECIPIENT shall, for the purposes of any State bond funded right of way acquisition which will become a permanent part of PROJECT(such acquisitions exclude temporary construction easements,property allocated to matching funds, and excess property purchased with State funds whose resale proceeds are returned or credited to STATE),maintain ownership of such PROJECT property for a minimum of twenty years or until the bonds have matured, whichever occurs fust, before transferring or selling such property (subject to all refunds or Credits due STATE as provided hereinabove. (7) Where RECIPIENT's PROJECT includes a commuter rail PROJECT within the meaning of Proposition 116, RECIPIENT shall coordinate and.share with other public transit operators any rail rights-of=way, common maintenance services and station facilities used for intercity and commuter rail. Intercity and commuter rail services shall be coordinated with each other-, with other providers and with freight traffic to provide integrated rail passenger and freight services with minimal conflict. (8) RECIPIENT agrees that all passenger vehicles, rail, and water borne ferry equipment, and all facilities acquired or constructed with Proposition 116 bond funds shall be accessible to persons with physical disabilities, including wheelchair users, at all stops, stations and terminals, whether or not staffed. Revised 11/2/10 C2-29 ATTACHMENT 3 Recipient Name ;bP a _er.4greemeut No.64AOXXX N ige 20 of°d (9) NUP shall, for accounting and bookkeeping purposes, fust be allocated to funding sources other than the State bond funds. For purposes of making such allocations, the costs attributable to NUP involving a sale, easement, lease or similar arrangement shall be determined on the basis of a fair allocation of value, which may include determinations based upon square meters/feet of the area encumbered by the NUP lease or easement relative to the total area acquired or constructed if all such area is of approximately equal value. (10)NUP will include,but is not limited to, property which is sold (including sales of air and subsurface rights), and property subject to easements, leases or similar rights. A rail right of way will not be treated as NUP solely as a result of a Freight Use Easement retained by the seller of the right of way to RECIPIENT,provided that the sales agreement appropriately excludes the Freight Use Easement from the property or rights being acquired. Further, notwithstanding anything in this Article III to the contrary, RECIPIENT may allocate grant funds to the cost of any NUP if(a) neither RECIPIENT nor any other governmental entity will receive, directly or indirectly, any payments from or on behalf of the non-governmental user of the NUP, or(b)the payment from such.user does not exceed the operation and maintenance costs fairly attributable or alldcable to the non-governmental use of the NUP. (11)RECIPIENT shall request, in writing, STATE's advance approval if PROJECT funds are to be allocated to any NUP except "incidental use" property described below. If property, the costs of which have previously been allocated to PROJECT funds, is to become NUP before the State bond funds are fully paid or redeemed, then RECIPIENT may allocate the costs of such property to another funding source as provided or obtain STATE's approval that the allocation of the costs of such property to the bond funds may remain. It is anticipated that STATE's approval will be granted if,taking into account the existing and expected uses of the proceeds of the State bonds, STATE determines that the continued tax-exempt status of the State bonds will not be adversely affected and that the use of the property is consistent with PROJECT and its described purpose. (12) For purposes of these fund source allocations, RECIPIENT does not have to consider NUP as including those"incidental uses" of PROJECT(for example, advertising billboards, vending machines, telephones, etc.)which meet the applicable requirements of federal tax regulations(IRS Notice 87-69 or any successor thereto). In general, such Notice requires that the incidental use not be physically separated from the rest of PROJECT and not comprise, in the aggregate, more than 2-1/2% of the total costs of PROJECT. Section 2. TCRP PROJECTS The TRAFFIC CONGESTION RELIEF (TCR)ACT OF 2000 (the"ACT'), was added(in Chapter 4.5, commencing with section 14556) to part 5.3 of Division 3 of Title 2 of the Government Code by AB 2928 and SB 406, as amended by SB 1662 and AB 1705. As directed Revised 11/2/10 C2-30 ATTACHMENT 3 Recipient Name taste Agr ementNo.64AOX,l' Page 21 of-14 by the ACT and the CTC established Guidelines(as set out in CTC Resolution G-06-04), and as those Guidelines may be amended prior to the execution of a future PROGRAM SUPPLEMENT, said Guidelines shall apply to each TCRP funded PROJECT. By this reference, those Guidelines are made an express part of this AGREEMENT and shall apply to each TCRP funded PROJECT. RECIPIENT will cause its specific TCRP mandated Resolution to be attached as part of any TCRP funded PROGRAM SUPPLEMENT as a condition precedent to the acceptance of TCR ACT funds for that PROJECT. Section 3. PROJECT MANAGEMENT (1) STATE's PROJECT administrator for this AGREEMENT shall be the chief of the State Transit Grants Branch of the Division of Mass Transportation. RECIPIENT's General Manager, Executive Director or a Designee as named in writing to STATE following execution of this AGREEMENT shall be the administrator acting for RECIPIENT. (2) PROGRAM SUPPLEMENT administrators for STATE shall be the applicable District Division Chief for Planning and for RECIPIENT, the designee named in the applicable PROGRAM SUPPLEMENT. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT by their duly authorized officers. STATE OF CALIFORNIA RECIPIENT NAME DEPARTMENT OF TRANSPORTATION DIVISION OF MASS TRANSPORTATION BY: BY: BRIAN TRAVIS, Chief EXECUTIVE NAME State Transit Grants Branch Title APPROVED AS TO FORM AND PROCEDURE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION BY: DANIEL A. NEAR Attorney Revised 1112110 C2-31 i ATTACHMENT Recipient Name 2lastc Agreement No.64At)XXX Page 22 of 1-4 ATTACHMENT CTC RESOLUTION G-91-2 Passed by the CTC on February 21, 1991 CALIFORNIA TRANSPORTATION COMMISSION RESOLUTION G-91-2 Commission Policy Resolution for Hazardous Waste Identification and Cleanup for Rail Right-of-Way WHEREAS, the Commission has programmed funding for rail right-of-way acquisition in the 1990 State Transportation Improvement Program and may allocate funds for rail right-of-way acquisition from the Clean Air and Transportation Improvement Act;and WHEREAS, hazardous wastes, based upon federal and state statutes and regulations, include but are not limited to such categories as heavy metals, (e.g., lead), inorganic (e.g., excessive mineral levels) and organic compounds (e.g.,petroleum products)„and can occur on a property's surface and subsurface;and WHEREAS, rail properties often have hazardous wastes exceeding State of California and federal hazardous waste standards;and WHEREAS, such properties contaminated with hazardous wastes require mitigation prior to using,them for rail purposes; and WHEREAS, hazardous wastes discovered on rail property may significantly impact property value, project scheduling and future liability for the grant applicant; and WHEREAS, the Commission must be assured that acquisition of rail properties have been fully reviewed by the grant applicant,and if warranted,the grant applicant has tested'for hazardous wastes; and WHEREAS, if hazardous wastes exist, the Commission must be assured that the hazardous wastes identified has either been cleaned up,or financial responsibility for the cleanup has been determined prior to title transfer to the grant applicant,or easement has been secured in lieu of purchasing the property, and the subsurface rights and liability for hazardous wastes remain with the property seller; and WHEREAS, hazardous wastes identified subsequent to title transfer to the grant applicant will be cleaned up by the seller or a mechanism to recover clean-up-costs is established and executed as a condition prior to title transfer, and WHEREAS, full due diligence is necessary in discovering hazardous waste and is an essential element in acquiring rail right-of-way properties by the grant applicant; and NOW THEREFORE BE IT RESOLVED, that acquisition of all rail right-of-way properties will be fully investigated by the grant applicant to determine the absence/presence of hazardous wastes. Investigations shall be conducted in accordance to the standards and practices of the local,state and/or federal regulatory agencies having jurisdiction and by personnel adequately trained in hazardous waste investigation-, and Revised 11/2110 C2-32 ATTACHMENT 3 —' Recipient Name �1astei ,Agreement tio.64AOYXX Page 23 of 24 -2- BE IT FURTHER RESOLVED, that all properties, discovered with hazardous wastes; which exceed the federal/state standards, will be cleaned up to the satisfaction of the responsible local, state and/or federal regulatory agency. The appropriate regulatory agency shall certify to grant applicant that the cleanup has been completed; and BE IT FURTHER RESOLVED, that the grant applicant will certify by formal resolution to the Commission that all reasonable steps have been completed to assure full due diligence in the discovery of hazardous waste has been achieved during the acquisition of rail right-of-way and the state is held harmless from cleanup liability or damages,both present and future; and BE IT FURTHER RESOLVED, that the grant applicant will certify by formal resolution that it will not seek further state funding, for cleanup, damages, or liability cost associated with hazardous wastes on or below acquired property's surface; and BE IT FURTHER RESOLVED,that the grant applicant will certify to the Commission: • that all rail right-of-way acquisition properties have been investigated and have been found clean; • or that the cleanup of discovered hazardous waste has been completed prior to acquisition of the property; • or that the grant applicant has obtained permanent easement and the subsurface rights and liability and full responsibility to pay for and remove such hazardous waste remains with the seller in conformance with applicable State and Federal law; • or if hazardous wastes are known to exist prior to acquisition and if the applicant determines that time is of the essence for acquisition, then and in that event, an enforceable agreement will be entered into requiring the responsible party(ies) to clean all hazardous wastes by a date certain, with the option of funds sufficient for the clean-up costs deposited in escrow by the seller. In the event of failure to clean up by the date determined, the recipient of the grant will make full restitution to the STATE for its participation. This resolve does not preclude the recipient from requesting re-allocation not to exceed the refunded amount after the hazardous waste(s)have been fully removed from the subject site; and BE IT FURTHER RESOLVED, that the grant applicant will certify to the Commission that the seller from whom properties have been acquired retain liability for any hazardous waste investigation and/or cleanup, and damages discovered subsequent to the transfer of title;and BE IT FURTHER RESOLVED, the Commission declares all future liability resulting from hazardous wastes remain with the seller or the grant applicant, not the state, and the grant applicant has been indemnified by the seller for any costs resulting from failure to eliminate hazardous wastes; and BE IT FURTHER RESOLVED, no state funds will be made available for any future costs associated with cleanup; damages, or liability costs associated with hazardous wastes on or below the acquired property's surface. Revised 11/2/10 C2-33 ATTACHMENT 3 � Recipient N nine Nlas.er Anreement No.64AOXXk ATTACHMENT II (I SSERT AGWEN Y BOARD RESOLUTION) See Sample at. htti)://www.dot.ca.gov/hci/MassTrans/state grants.html under Transit Forms Revised 1112110 C2-34