HomeMy WebLinkAbout06/05/2001, C10 - EXECUTION OF A MASTER AGREEMENT AND PROGRAM SUPPLEMENTS FOR STATE FUNDED TRANSIT PROJECTS i
council M.6"Da.
6-5-01
Agenda jzepojzt It..Numb, /y�O
CITY OF SAN LUIS OBISPO
FROM: Mike McCluskey,Director of Public Workslg� �
Prepared By: Austin O'Dell,Transit Manager
SUBJECT: EXECUTION OF A MASTER AGREEMENT AND PROGRAM
SUPPLEMENTS FOR STATE FUNDED TRANSIT PROJECTS
CAO RECOMMENDATION
1. Adopt, by resolution, the execution of a master agreement and program
supplements for state funded transit projects.
2. Authorize the City Administrative Officer the authority to execute this
agreement and any amendments thereto.
3. 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
Staff identified four older vehicles (Orions) with wheelchair lifts that continuously failed to
operate and cause major disruptions to our service levels. They are unreliable simply because
they are difficult to maintain due to the unavailability of parts and their use of outdated
equipment. Furthermore, as mandated by the Americans with Disabilities Act of 1990, transit
operators are required to provide accessible buses by providing a lift and two stations for
mobility devices (49 CFR 37.163) in each vehicle. If wheelchair lifts are inoperable, the vehicle
cannot be placed in revenue service and the City may be subject to civil litigation. The Orion
buses are integral to our system because they are the City's only thirty-foot vehicles. They are
valuable to maintain for non-peak service during weekdays and weekends. With these problems
in mind, staff began a search for funding to resolve the issue.
On October 4, 2000, SLOCOG granted the City a preliminary award of discretionary regional
funds from the State Transportation Improvement Program for the purchase and installation of
wheelchair lifts on four buses. Then, on February 23, 2001, the California Transportation
Commission approved the allocation request for this project — basically funding the SLOCOG
recommendation. The next step in this process involves transferring the funds to the Federal Transit
Administration (FTA) to administer to the City. The FTA, has a long and cumbersome process
which entails another battery of requirements prior to receiving the funds. If no other process were
available, staff would stick to the FTA process and the wheelchair lifts would most likely be
installed by October 2002.
I
Council Agenda Report—Master Agreement-State Funded Transit Agreement
Pae 2
However, another funding opportunity became available and staff quickly decided to apply. The
City now has the opportunity to request the distribution of excess 1998 State Cash STIP Funds.
Using these funds would allow the City to avoid the Federal process and expedite the distribution of
funds. In addition to avoiding the federal grant process, the City would be able to expedite the
completion of this project in a timely manner, ahead of schedule, and immediately pursue the
purchase and installation of the equipment.
In order to utilize the 1998 State Cash STIP Funds, the City is required to adopt by resolution
(Attachment 1)a Master Agreement(Attachment 2)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
authority to execute amendments to Director of Public Works, the same authority he has for other
state funding programs.
FISCAL IMPACTS
The total project cost is $133,350. 1998 STIP State Cash share for this project is $118,015, and the
local share (funded from Transportation Development Act), is $15,335. There will be no impact
to the General Fund by approving the CAO Recommendation.
ALTERNATIVES
Alternative 1. The Council may decide not to adopt the Master Agreement, and pursue these
project funds through the Federal Transit Administration. The impact of this alternative would
be a delay in this project's completion, due to mainly to the administrative and federal grant
C lU ~2
Council Agenda Report—Master Agreement-State Funded Transit Agreement
Page 3
application process. In addition, the City would be subject to further scrutiny from the Federal
Transit Administration and may be additionally vulnerable to legal action for not providing
accessible vehicles in accordance to the Americans with Disabilities Act
ATTACHMENTS
1. Resolution
2. Master Agreement
LCAR/STIP State Cash Fund Agreement v2
Cfo 3
attachment 1
RESOLUTION NO. (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
Trak Congestion Relief Program (TCRP); 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
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 by the City Council of San Luis Obispo, that:
1. 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;
2. 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;
3. that the City Administrative Officer be authorized to execute this agreement and
amendments thereto and that the City Public Works Director be authorized to execute all
Program Supplements for State Funded Transit Projects and any amendments thereto
with the California Department of Transportation.
ClD-�
T
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 , 2001.
Allen Settle, Mayor
ATTEST:
City Clerk
-Ivornel
C/ o -�
ATTACHMENT 2
Master Agreement --
State Funded Transit Projects
n �
�ltr
California Department Of Transportation
MASS TRANSPORTATION PROGRAM
1120 N STREET, ROOM 3300
P. O. BOX 942874, MS-39
SACRAMENTO, CA 94274-0001
PHONE (916) 654-8811
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MaJer' Agreement No.: 64AO055
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STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
MASS TRANSPORTATION PROGRAM
TABLE OF CONTENTS
FUNDING SOURCES COVERED BY THIS AGREEMENT I
ARTICLE I-PROJECT ADMINISTRATION I
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 6
ARTICLE II—GENERAL PROVISIONS 7
Section 1.Funding 7
A. Local Match Funds 7
B. Funding Contingencies 7
C. Funds Movement 7
Section 2. Audits and Reports 8
A. Cost Principles 8
B. Record Retention 8
C. Quarterly Review 9
Section 3. Special Requirements 10
A. California Transportation Commission (CTC) Resolutions 10
B. Recipient Resolution 11
C. Termination 11
D. Third Party Contracting 12
E, Change in Terms/Amendments 12
F. Project Ownership 12
G. Disputes 14
H. Hold Harmless and Indemnification 14
I. Labor Code Compliance 14
J. Non-Discrimination 15
K. State Fire Marshal Building Standards 15
L. Americans with Disabilities Act 15
M. Access for Persons with Disabilities 15
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N. Disabled Veterans Program Requirements 16
O. Environmental Process 16
ARTICLE III—SPECIAL PROVISIONS 16
Section 1. Bond Provisions 16
A. General Bond Provisions 16
Section 2. TCRP Projects 19
A. California Transportation Commission (CTC) Resolutions 19
Section 3. Project Management 19
Attachment I--Recipient Agency Board Resolution 21
Attachment II-- CTC Resolution G-91-2 23
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STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
MASS TRANSPORTATION PROGRAM
MASTER AGREEMENT
STATE FUNDED TRANSIT PROJECTS
EFFECTIVE DATE OF THIS AGREEMENT: March 1,2001
TERMINATION DATE OF THIS AGREEMENT: March 1, 2011
RECIPIENT: City of San Luis Obispo
FUNDING SOURCES COVERED BY THIS AGREEMENT AS IDENTIFIED IN EACH
PROGRAM SUPPLEMENT
♦ PASSENGER RAIL AND CLEAN AIR BOND ACT OF 1990(PROP. 108),
♦ CLEAN ADR AND TRANSPORTATION IMPROVEMENT ACT OF 1990(PROP. 116)BOND FUNDS
♦ PUBLIC TRANSPORTATION ACCOUNT FUNDS
O STATE HIGHWAY ACCOUNT
♦ TRAFFIC CONGESTION RELIEF FUND(TCR), GC 14556.40
♦ GENERAL FUND
o OTHER STATE FUNDING SOURCES
This AGREEMENT, entered into effective as of the date set forth above, is between the public
entity identified above, 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 the terms and conditions of this AGREEMENT, has
been fully executed by both STATE and the RECIPIENT.
(2) _ RECIPIENT agrees to complete each defined PROJECT, or the identified PROJECT
Phase/Component thereof, as described in the PROGRAM SUPPLEMENT, adopting
all of the terms and conditions of this AGREEMENT.
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(3) A financial commitment of STATE funds will occur only following the execution of
this AGREEMENT together with the subsequent execution of a detailed and separate
PROGRAM SUPPLEMENT applicable to that described PROJECT..
(4) RECIPIENT further agrees; as a condition to the release and payment of STATE
funds encumbered for the PROJECT described in the 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 apart of, the PROGRAM
SUPPLEMENT, identifying and defining the nature of that specific PROJECT.
(5) The PROGRAM SUPPLEMENT shall generally include: a detailed Scope of Work;
including Project Description, Project Schedule, Overall Funding Plan and Project
Financial Plan as required by the applicable program guidelines.
a. The Scope of Work shall include a detailed description of the PROJECT and
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
STATE funding program(s) or source(s), the matching funds to be provided by
RECIPIENT and/or other funding sources, if any. (Project 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 provide estimated expenditures for each 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 fully set forth therein, shall be sufficient to bind the
RECIPIENT to these terms and conditions when performing the PROJECT. Unless
otherwise expressly delegated in a resolution by the RECIPIENT'S governing body,
which delegation is expressly assented to and concurred in by STATE, the PROGRAM
SUPPLEMENT shall be managed by the RECIPIENT'S governing body.
(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 the amounts actually encumbered by STATE as evidenced in the
PROGRAM SUPPLEMENT. A contract awarded by RECIPIENT for PROJECT
work in an amount in excess of said approved estimate may exceed any said
PROGRAM SUPPLEMENT cost estimate and the limits of STATE participation
provided:
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a. RECIPIENT provides the necessary additional funding, or
b. A PROJECT cost increase in STATE funding is first requested by RECIPIENT and
that increase is approved by STATE in the form of an Allocation Letter comprising
the fund encumbrance document.
(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 Time Extension
Letter as stated in the executed amended PROGRAM SUPPLEMENT.
(9) When additional funds are not available, the RECIPIENT agrees that the payment of
STATE funds will be limited to, and shall not exceed, the amounts already approved in
the PROGRAM SUPPLEMENT containing STATE approved encumbrance documents
and that any increases in PROJECT costs must be defrayed with non-STATE funds.
(10) For each approved PROGRAM SUPPLEMENT, RECIPIENT agrees to contribute at
least the statutorily or other required local contribution of 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 of this AGREEMENT, any PROGRAM SUPPLEMENTS
executed under this AGREEMENT for PROJECTS with work yet to be completed shall
be deemed to extend the term of this Agreement only to the specific Project termination
or completion date contemplated by the applicable PROGRAM SUPPLEMENT in
force at the time the PROGRAM SUPPLEMENT was first executed to allow that
uncompleted PROJECT to be administered under the 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
potential cost savings or other measures which will bring the Project Budget into
balance;
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b. Schedule the projected overrun for discussion at the next Quarterly Review meeting;
and
c. Identify the source of additional RECIPIENT or other funds which 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 STATE 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, and repair and
maintenance for the benefit of the public. RECIPIENT shall be solely responsible for
complying with the funding and use restrictions established by statutes from which
these funds are derived, the California Transportation Commission (CTC), the STATE
Treasurer, the Internal Revenue Service, the applicable PROGRAM SUPPLEMENT,
and this AGREEMENT.
D. Program Supplement Amendments
PROGRAM SUPPLEMENT amendments will be required when there.are CTC-approved
changes to the cost, scope of work, or delivery schedule of a PROJECT from that specified in the
original PROJECT Application. Any changes to a Scope of Work, Project Description, Project
Schedule, Overall Funding Plan, or a Project Financial Plan 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. 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.
(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 STATE funds for PROJECT in excess
of the amounts indicated in the Project Financial Plan, cumulatively by fiscal year, may
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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 or phase
(environmental and permits, PS&E, right of way,construction, rolling stock, or--if
bond funded--private activity usage) and 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, and which costs are to be credited
toward any required local contribution described in Article II, Section 1 of this
Agreement pursuant to any applicable prior executed agreement for Local Match Fund
Credit between RECIPIENT and STATE.
B. Advance Payments(TCR Projects Only)
(1) Advance reimbursement or payments by STATE are not allowed except in the case of
TCR funded Projects when expressly authorized by CTC.
(2) For TCR Projects approved for advanced payment allocation by CTC, said advance
payment shall be deposited in a prevailing interest rate bearing trust account held by a
STATE approved FICA insured financial institution. No interest earned shall 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 together with accrued interest to
STATE. Interest earned shall be reported to the STATE Project Coordinator on an
annual basis and upon final PROJECT payment. All interest earned and all
unexpended advanced TCR funds shall be returned to STATE within 30 days of
PROJECT completion.
(3) Advanced payment 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 PROJECT costs incurred and paid.
(4) Payments of non-TCR funds and TCR project funds not authorized for advance
payment must be based upon reimbursement for actual allowable PROJECT costs
already incurred and paid for by RECIPIENT. 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
the District Project Administrator.
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C. Expedited Payments(Excludes TCR Projects)
(1) Should RECIPIENT have a valid Memorandum of Understanding (MOU) for
"Expedited Payment" on file with STATE'S Accounting Service Center, the
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 and the applicable PROGRAM SUPPLEMENT. Expedited Payments
are subject to policies established in the Caltrans Accounting Manual (Expedited
Payment is not available for TCR funding). One time payments and final payments
eligible for expedited pay pursuant to this Section will have ten percent (10%) of each
invoice amount withheld pending approval from STATE until 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 CTC approval,
to then seek reimbursement for those expenditures following execution of a PROGRAM
SUPPLEMENT. STATE acknowledges and accepts these 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 STATE employees under current 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 a PROGRAM SUPPLEMENT expires.
RECIPIENT has 180 days after that Termination Date to make final payment to PROJECT
contractors or vendors, prepare the PROJECT Closeout Report, and submit the final invoice to
STATE for reimbursement for allowable PROJECT costs.
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ARTICLE II—GENERAL PROVISIONS
SECTION 1. FUNDING
A. Local Match Funds
Paragraphs "A(1) and A(2)"within this Section I apply only to those PROJECTS where the
funding is programmed to require a local match. (See individual Program Guidelines for specific
funding requirements.)
(1) Except where allowed by the applicable PROGRAM SUPPLEMENT, reimbursement of
STATE funds 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 as part of a PROGRAM SUPPLEMENT.
B. Funding Contingencies
Delivery by STATE of all funds provided pursuant to this AGREEMENT is contingent upon,
prior budget action by the Legislature, fund allocation by the CTC, 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, cancellation or reduction in STATE funding, as approved by the
CTC, 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
necessary changes in PROJECT funding, scope, or scheduling.
C. Funds Movement
RECIPIENT shall notify STATE of any proposed changes in any of the four PROJECT phase
expenditure components --Environmental and Permits, PS&E, Right-of-Way and Construction
(including major equipment acquisitions). STATE approval shall be obtained in writing and
STATE will determine whether the proposed change is significant enough to also warrant CTC
review. Specific rules and guidelines regarding this process may be detailed in the applicable
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CTC Resolution, including, but not limited to, numbers G-00-20, and G-00-23 or their
successors.
SECTION 2. AUDITS AND REPORTS
A. Cost Principles
(1) RECIPIENT agrees to comply with Office of Management and Budget Circular A-87, .
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'S contractors and subcontractors agree that (a)the 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) they 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 Office of Management and .
Budget Circular A-87, 48 CFR, Chapter 1, Part 31 or 49 CFR, Part 18, are subject to
repayment by RECIPIENT to STATE. Should RECIPIENT fail to reimburse .
moneys due STATE within 30 days of demand, or within such other period as may be
agreed 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.
(4) RECIPIENT agrees to include all PROGRAM SUPPLEMENT(s) adopting the terms
of this AGREEMENT in the schedule of projects to be examined in RECIPIENT'S .
annual audit and in the schedule of projects to be examined under its single audit
prepared in accordance with Office of Management and Budget Circular A-133.
B. Record Retention
(1) RECIPIENT, 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 of 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
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contractors and subcontractors connected with PROJECT performance under this
AGREEMENT and each PROGRAM SUPPLEMENT shall be maintained fora
minimum of three years from the date of final payment to RECIPIENT under a
PROGRAM SUPPLEMENT and shall be held open to inspection and audit by
representatives of STATE, the California State Auditor, and the auditors of 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 will
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 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 a PROJECT
period and for three years from the date of final payment to RECIPIENT under any
PROGRAM SUPPLEMENT. STATE, the California State Auditor, the Federal
Highway Administration, or any duly authorized representative of the Federal
Government, 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.
(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 Section 1 of this
ARTICLE II.
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;
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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
activities are within the scope of the PROJECT and in compliance with State laws,
regulations, administrative requirements, and implementation of the PROJECT under a
PROGRAM SUPPLEMENT.
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 Resolutions G-99-25, adopted August 18, 1999, and G-00-20, adopted July
19, 2000, to provide guidance for the use of Proposition 116 and STIP funds,
respectively; and Resolution G-00-23 to provide direction on "Timely Use of Funds"
addressing the expenditure and reimbursement of TCR funds. These resolutions,
and/or successor resolutions in place at the time a PROGRAM SUPPLEMENT is
executed, are applicable to all fund sources listed on the face sheet except TCR and
General Fund monies.
(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-99-25, G-00-20, G-00-23 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 enforcement action by CTC or STATE. All terms and conditions stated in
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 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 further financial contribution or obligation of STATE
unless a separate PROGRAM SUPPLEMENT expressly provides funding for the
specific purpose of hazardous materials remediation.
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B. RECIPIENT Resolution
(1) RECIPIENT has executed this AGREEMENT pursuant to the authorizing blanket
RECIPIENT resolution, attached as Attachment I to this Master Agreement. This
resolution will empower RECIPIENT to enter into this AGREEMENT and may also
empower RECIPIENT to enter into all subsequent PROGRAM SUPPLEMENTS.
(2) If RECIPIENT determines that a 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.
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 30 days after receipt of a Notice
of Termination, RECIPIENT either cures the default involved or, if not reasonably
susceptible of cure within said 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 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 30 days after receipt. During the period before the effective
termination date, RECIPIENT and STATE shall meet to attempt to resolve any
dispute.
(3) If RECIPIENT fails to expend TCR/GENERAL FUND monies by.June 30 any
applicable Fiscal Year that those funds would revert, those funds will be deemed
withdrawn unless specifically made available beyond the end of the Fiscal Year
through reappropriation or other equivalent action of the Legislature.
(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(1) and (2) above of this
Part C of ARTICLE III, RECIPIENT shall be reimbursed its authorized costs up to
STATE'S share of allowable PROJECT costs incurred prior to the date of termination.
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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 Section 1, A(1)
and A(2) of ARTICLE I regarding local match funds.
(2) Any subcontract entered by RECIPIENT as a result of this AGREEMENT shall
contain all of the provisions of ARTICLE II—GENERAL PROVISIONS.
E. Change in Terms/Amendments
This AGREEMENT 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 the PROGRAM SUPPLEMENT, subject
to the terms and provisions of this AGREEMENT, RECIPIENT shall be the sole
owner of all improvements and property included in the PROJECT constructed,
installed or acquired by RECIPIENT with funding provided to RECIPIENT under
this AGREEMENT. RECIPIENT is obligated to continue operation and maintenance
of PROJECT dedicated to the public transportation purposes for which PROJECT was
initially approved, unless RECIPIENT ceases ownership of such PROJECT property;
or ceases to utilize PROJECT for the intended public transportation purposes; or sells
or transfers title to or control over PROJECT, and STATE is refunded the Credits due
as provided in this paragraph (4) below.
(2) Should STATE bond funds be encumbered to fund PROJECT under this
AGREEMENT, then at STATE'S option, RECIPIENT shall be required to first obtain
a determination by Bond Counsel acceptable to the State Treasurer's Office that a
change in operation, proportion, or scope of PROJECT as proposed by RECIPIENT
will not adversely affect the tax-exempt status of those bonds before RECIPIENT will
be permitted to effect that change.
(3) PROJECT right-of-way, PROJECT facilities constructed or reconstructed on a
PROJECT site and/or PROJECT property 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 public transit use in the same proportion and scope, and to the same extent
as described 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 rail passenger equipment and ferry vessels, shall be
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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 achieved by reconstruction, rehabilitation or enhancements.
(4) Except as otherwise set forth in this Section 3, STATE, or any other assignee public
body acting on behalf of the CTC, shall be entitled to a refund or credit (Credit), at
STATE'S sole option, equivalent to the proportionate PROJECT funding participation
offered RECIPIENT by STATE and third parties in the event that RECIPIENT
ceases to utilize PROJECT for the intended public transportation purposes or sells or
transfers title to or control over PROJECT. STATE shall also be entitled to an
equivalent acquisition credit for any future purchases or condemnation of all or portions
of PROJECT by STATE or a designated agent of STATE. The refund or credit due
STATE will be measured by the funding ratio of STATE and other thud party funding
(unless that 3`d Party is also contractually entitled to a similar refund (credit)) to
RECIPIENT'S funding participation applied to the then fair market value of
PROJECT property acquired or constructed. For vehicles, this refund shall be
equivalent to the proportion of the full economic life cycle remaining, multiplied by the
non-RECIPIENT funds provided for the equipment acquisition. For real property, this
credit shall be measured by the funding ratio of STATE and other thud party funding
(unless that 3`d Party is also contractually entitled to a similar refund (credit)) to
RECIPIENT'S funding participation applied to the present fair market value, as
determined by STATE, of the PROJECT property acquired under this AGREEMENT.
(5) In determining the present fair market value of the property for purposes of calculating
STATE'S Credit under this AGREEMENT, any portions of PROJECT site contributed
by RECIPIENT shall not be included. In determining STATE'S proportionate
funding participation, STATE'S contributions to parties other than RECIPIENT shall
be included, if made a part of PROJECT funding.
(6) Once STATE receives the Credit as provided for above because RECIPIENT has
ceased to utilize PROJECT for the described intended public transportation purpose(s),
or has sold or transferred title to, or control over PROJECT to another party, neither
RECIPIENT,nor any party to whom RECIPIENT has transferred said title or control
to 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.
(7) 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 the station and its appurtenances without any charge to STATE or
the bus operator. This permitted use will include the placement of signs and
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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).
(8) Special conditions apply to any proposed sale or transfer or change of use as respects
PROJECT property, facilities or equipment acquired with State bond funds and
RECIPIENT shall conform to those restrictions as set forth in ARTICLE III, A(7)
herein below.
G. Disputes
The remedy for the resolution of any claims brought by RECIPIENT against STATE under this
AGREEMENT shall be by arbitration. Unless otherwise agreed by:STATE and.RECIPIENT,
arbitration shall be conducted by a single arbitrator selected by the parties from the certified
list created by the Public Works Contract Arbitration Committee per Public Contract Code
Section 10240.
H. Hold Harmless and Indemnification
(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,
pursuant to Government Code Section 895.4, 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 (as defined by Government Code
Section 810.8) 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 SUPPLEMENT. .
(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 agrees RECIPIENT shall include in all subcontracts awarded using PROJECT
funds a clause that requires each subcontractor to comply with California Labor Code requiring
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 at the date of Contract award by the
RECIPIENT.
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J. Non-Discrimination
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, or denial of pregnancy
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 7285.0 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 the
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. During performance of this AGREEMENT, RECIPIENT 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 applicable to this AGREEMENT by
reference. 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
The State Fire Marshal 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, State
Fire Marshal to ensure 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. No construction contract will be awarded by RECIPIENT unless
RECIPIENT'S plans and specifications for such facilities conform to the provisions of Sections
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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 to
determine whether these referenced code sections are applicable to RECIPIENT and, if
so, whether good faith efforts asserted by those contractors were sufficient as outlined in
the Military and Veterans Code Sections 999 et seq.
O. Environmental Process
Completion of the environmental process ("clearance") for PROJECT 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 shall 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 by an
environmental impact report as mandated by the California Environmental Quality Act (CEQA).
California Public Resources Code Section 21080(b)(10), does provide an exemption for a
passenger rail PROJECT which 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
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 approval from Bond Counsel acceptable to
STATE that the terms of that management contract meet the requirements of Internal
Revenue Service Revenue Procedure 82-14 (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 will 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
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attributable to the operation and maintenance of the transportation system (excluding
any overhead or administrative costs of RECIPIENT).
(2) If RECIPIENT receives any revenues or profits from any Non-governmental Used
Property (NUP) 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'S equivalent to STATE'S non-
RECIPIENT percentage participation in PROJECT.
(3) Notwithstanding the foregoing, RECIPIENT may be authorized a private activity
allocation of bond proceeds, not to exceed the amount specified in the PROGRAM
SUPPLEMENT, once RECIPIENT submits to STATE a completed bond certification
questionnaire and the State Treasurer and STATE approve that private activity as
described 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 which 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. 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 CTC, the Legislature, the Internal Revenue Service or the Federal Transit
Administration, STATE shall not be held liable for any resulting damage or penalty to
RECIPIENT.
(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 first,before
transferring or selling such property, subject to the Credits due STATE as provided in
Article III, Section A (2) above.
(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.
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(8) RECIPIENT agrees that all passenger rail and water borne ferry equipment and all
facilities acquired or constructed pursuant to this AGREEMENT shall be accessible to
persons with physical disabilities, including wheelchair users. All passenger vehicles
and vessels acquired pursuant to this AGREEMENT shall be accessible to wheelchair
users at all stops, stations and terminals, whether or not staffed.
(9) RECIPIENT (other than the transit operator identified in Sections 99633 and 99634 of
the Public Utilities Code) shall require that all intercity and commuter rail cars
purchased with PROJECT funding conform to the California Rail car specifications
developed by STATE as specified in the Clean Air and Transportation Improvement
Act.
(10)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, NUP shall, for accounting and
bookkeeping purposes, 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
or cubic footage/acreage of the area encumbered by the lease or easement relative to the
total area acquired or constructed if all such area is of approximately equal value.
(11)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(i) 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(ii) the
payment from such user does not exceed the operation and maintenance costs fairly
attributable or allocable to the non-governmental use of the NUP.
(12) 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,
the STATE determines that the continued tax-exempt status of the State bonds will not
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be adversely affected and that the use of the property is consistent with PROJECT and
its described purpose.
(13)For purposes of these fund source allocations RECIPIENT does not have to take into
account as NUP those "incidental uses" of PROJECT (for example, advertising
billboards, vending machines, telephones, etc.) which meet 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. TORP PROJECTS
A. California Transportation Commission (CTC)Resolutions
The TRAFFIC CONGESTION RELIEF (TCR) ACT OF 2000 (the "ACT"), in Chapter 4.5, was
added (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. As directed by the ACT and the CTC
established Guidelines, RECIPIENT will cause its Resolution to be attached as part of any
TCRP funded PROGRAM SUPPLEMENT as a condition precedent to the acceptance of TCR
ACT funds.
SECTION 3. PROJECT MANAGEMENT
(1) The PROJECT administrators for this AGREEMENT for the STATE shall be the Chief,
Office of State Transit Program Management of the Mass Transportation Program for TCR
projects, and the Chief, Office of State Transit Project Delivery for all other projects, and
for RECIPIENT, its General Manager, Executive Director or a Designee as named in
writing to STATE following execution of this AGREEMENT.
(2) PROGRAM SUPPLEMENT administrators for STATE shall be the District Division
Chief for Planning and for RECIPIENT, the designee named in the applicable
PROGRAM SUPPLEMENT.
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IN WITNESS WHEREOF, the parties hereto have execuied this AGREEMENT by their duly
authorized officers.
STATE OF CALIFORNIA RECIPIENT
DEPARTMENT OF TRANSPORTATION
BY: BY:
ANNETTE GILBERTSON, Chief Ken Hampian
Office of State Transit Project Delivery City Administrative Officer
City of San Luis Obispo
APPROVED AS TO FORM AND PROCEDURE
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
BY:
WILLIAM BASSETT, ATTORNEY
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ATTACHMENT I
AGENCY BOARD RESOLUTION ��A ML
RESOLUTION#
AUTHORIZATION FOR THE EXECUTION OF A MASTER.AGREEMENT AND
PROGRAM SUPPLEMENTS FOR STATE FUNDED.TRANSIT PROJECTS
(The following is sample language that could be included in your Board Resolution, necessary
for execution of a Master Agreement and Program Supplements with Caltrans:)
WHEREAS,the (Agency) 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 Board of Directors of the
(Agency) that the Agency 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
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`- Ma..ci•Agreement No.: 64AO055
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transportation purposes, during the fiscal years that allocations for TCRP Projects are available
for use.
WHEREAS, the (Agency wishes to delegate authorization to execute these agreements and any
amendments thereto to the (Transit Manager, Grants Manager, etc.); and
NOW THEREFORE,BE IT RESOLVED that the (Transit Manager, Grants Manager,
Public Works Director, etc.)be authorized to execute all Program Supplements for State Funded
Transit Projects and any amendments thereto with the California Department of Transportation.
AGENCY BOARD DESIGNEE:
BY:
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Maker Agreement No.: 64AO055
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Attachment 11
CTC RESOLUTION G-91-2
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 g�rrant applicant, or easement has been secured to lieu of
purchasing the pproperty, and the subsurface rights and liability for hazardous wastes remain with
the property seIler; 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
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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;
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
• 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, 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.
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