Resolution — Alameda City Council, September 5, 2023

CITY OF ALAMEDA RESOLUTION NO.__________

APPROVING PASS THROUGH AGREEMENTS WITH THE ALAMEDA

TRANSPORTATION MANAGEMENT ASSOCIATION

WHEREAS, the Alameda Transportation Management Association (ATMA) has been providing transportation services to the property owners and tenants of City-owned property at Alameda Point since 2018; and

WHEREAS, the ATMA provides transportation services to tenants and owners of property at Alameda Point with funding provided by the City of Alameda; and

WHEREAS, the City of Alameda provides funding to the ATMA from fees collected from Alameda Point tenants and Community Facilities Fee assessments collected annually from Alameda Point property owners; and

WHEREAS, the City of Alameda has been passing those funds through to the ATMA pursuant to pass through agreements approved by the City Council in 2018; and

WHERAS, the City of Alameda and the ATMA wish to update and improve the pass-through process to improve efficiencies and improve the cost effectiveness of the pass-through process; and

WHEREAS, th e draft revised pass through agreements ensure that the City of Alameda is exercising prudent judgment in its fiduciary responsibility as guardian of the public tax dollars.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Alameda hereby approves the draft funding agreements between the City of Alameda and the ATMA allowing pass through of fees from existing tenants and from existing property owners, attached as Exhibit A and Exhibit B to this Resolution

Exhibit A. Funding Agreement between City of Alameda and the Alameda Transportation Management Association (Alameda TMA) allowing pass through of transportation demand management fees from existing tenants to the Alameda TMA for TDM Program Implementation.

Exhibit B. Funding Agreement between City of Alameda and the Alameda Transportation Management Association (Alameda TMA) allowing pass through of transportation demand management fees from special taxes generated for transportation purposes from property owners within community facilities district CFD 17-1 at Alameda Point to the Alameda TMA for TDM Program Implementation.

Exhibits A & B

AMENDED AND RESTATED FUNDING AGREEMENT BETWEEN THE

CITY OF ALAMEDA AND THE ALAMEDA TRANSPORTATION

MANAGEMENT ASSOCIATION (ALAMEDA TMA) ALLOWING PASS

THROUGH OF TRANSPORTATION DEMAND MANAGEMENT FEES

FROM SPECIAL TAXES GENERATED FOR TRANSPORTATION

PURPOSES FROM PROPERTY OWNERS WITHIN COMMUNITY
FACILITIES DISTRICT 1 7-1(CFD 1 7-1 ) AT ALAMEDA POINT TO THE

ALAMEDA TMA FOR TDM PROGRAM IMPLEMENTATION
This Funding Agreement (“Agreement”) is entered into as of this day of ________, 2023 (“Effective Date”), by and between the City of Alameda, a municipal corporation (“the City”), and the Alameda Transpor tation Management Association, a California non-profit public benefit corporation, whose address is _______ (“ATMA” or “Provider”), with reference to the following facts:

RECITALS
A. By Resolution No. 14891, the City Council of the City of Alameda certified the Fina l Al
ameda Point Environmental Impact Report (“FEIR”) (State Clearinghouse No . 201
312043) under the California Environm ental Quality Act (“CEQA”), Ca lifornia Pub
lic Resources Code Section 21000 et seq. and adopted written findings and a Mitigation Monitoring and Reporting Program (“MMRP”) on February 4, 2014 for the Alameda Point Project; an
d
B. The FEIR required preparation and implementation of a Transportation Dema nd Ma
nagement Plan to reduce automobile congestion and associated emissions from single occupancy vehicle use to mitigate the transportation impacts identified in the FEIR; and C. The City Council approved the Transportation Demand Management Plan for Alameda Poi
nt on May 20, 2014 (“Alameda Point TDM Plan”), a crucial component of the City’s a
pproach to addressing the City’s transportation issues associated with the reuse and redevelopment of Alameda Point; and
D. The intent of the Alameda Point TDM Plan is to provide strategies, measures an d serv
ices that are combined into a comprehensive program to create the envision ed t
ransit-oriented development at Alameda Point, to achieve the City of Alameda’s General Plan goals to reduce automobile trips, and in particular, targets the reduction of solo
driving trips, and to mitigate potenti al traffic impacts from existing and new development; and
E. The ATMA was established in 2017 as an independent California non-profit public be
nefit corporation that oversees the ongoing implementation of the Alameda Point TDM Plan and the Northern Waterfront transportation mitigation area requirements with potential for expansion citywide; and
F.

On March 17, 201 7, the City Council approved the establishment of CFD 1 7-1 for services requiring a special tax on private property at Alamed a Point to fund transportation services and programs (among other public services) consistent with the Alameda Point TDM Plan; and

Exhibit A

G. On June 5, 2018, the City Council approved a pass through agreement to pass through the special taxes generated from CFD 1 7-1 from the property owners at Alameda Point to the ATMA to fund implementation of the Alameda Point TDM Plan; and H. Since 2018, the City has been passing funds to the ATMA, and the ATMA has been providing services to Alameda Point as documented in the 2022 ATMA Annual Report; and
I.

While the pass through agreement is still valid, the City and ATMA have identified changes that should be made to the existing agreement in order to improve the efficiency and cost effectiveness of the pass through process for both the City and ATMA .

AGREEMENT

NOW, THEREFORE , in consideration of the foregoing, which are incorporated herein by reference, and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the City and the ATMA agree as follows:

1. TERM:

The term of this Agreement shall co mmence on the ___ day of _____ 2023, and shall terminate on September 30, 2033, unless terminated earlier as set forth herein. The parties may agree to extend the term of this Agreement for up to ten (10) additional years, subject to approval of both the City Manager and the ATMA Boar d of Directors, based, at a minimum, upon satisfactory performance of all aspects of this Agreement. Any extension shall be documented in an amendment signed by both parties.

2. CITY OBLIGATIONS:

a) By the first day of April of each year, the City shall provide the ATMA with an estimate of the biannual pass through of fees that will be collected from CFD 17-1 (“CFD Pass Through Funds”) and passed through to the ATMA (the “April CFD Estimate”) for the following two fiscal years. The April CFD Estimate shall equal 40% of the total estimate of fees to be collected by the City from CFD 17-1. The April CFD Estimate shall include a list of all property owners expected to pay the CFD fee in the upcoming Fiscal Years.

b) City shall transmit 50% of the
CFD Pass Through Funds detailed in the April CFD Estimate to the ATMA on a biannual basis and within thirty (30) days of receiving an invoice from the ATMA.

3. ATMA OBLIGATIONS:

a) ATMA shall submit to the City an invoice on a biannual basis for 50% of the estimated CFD Pass Through Funds by the fifteenth day of January and by the first day of May of each fiscal year.

b) ATMA shall use the CFD Pass Through Funds to provide transportation services to the

businesses, employees, property owners, and residents of Alameda Point. Such services shall be consistent with, and implement, the Tran sportation Management objectives established by the Alameda Point Transportation Management Plan. The Alameda TMA Board of Directors shall have discretion to decide whic h services to provide with the funds provided by the City through this Agreement, provided that the services provided shall include each of the following, at a minimum:
x Provision of AC Transit Easy Passes or an equivalent transit pass to employees of businesses at Alameda Point;
x Maintenance of a Website describing all services provided; x A Transportation Manager that is available to assist tenants with transportation questions and problems; and
x Conduct a survey of Alameda Point tenants and property owners at least once every two (2) years to better understand transportation needs and preferred modes of transportation.

c) ATMA shall submit to the City by April 1 of each year, an Annual Report for the preceding calendar year, which includes a financial and operations report, the outcome of the surveys, traffic counts and programs.

4. TIME IS OF THE ESSENCE:

Provider and the City agree that time is of the essence regarding the performance of this Agreement.

5. STANDARD OF CARE:

Provider agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals or service providers, as applicable, in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City.

6. INDEPENDENT PARTIES:

Provider hereby declares that Provider is engaged as an independent business and Provider agrees to perform the services as an independent contractor. The manner and means of conducting the services and tasks are under the control of Provider except to the extent they are limited by statute, rule or regulation and the expres s terms of this Agreement. No civil service status or other right of employment will be acqui red by virtue of Provider’s services. None of the benefits provided by the City to its employees, including but not limited to unemployment insurance, workers’ compensation plans, vacation and sick leave, are available from the City to Provider, its employees or agents. Deductions sha ll not be made for any state or federal taxes, FICA payments, PERS payments, or other purpo ses normally associated with an employer- employee relationship from any compensation due to Provider. Payments of the above items, if required, are the responsibility of Provider.

7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):

Provider assumes any and all responsibility fo r verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA

or other federal or state rule s and regulations. Provider sha ll indemnify, defend, and hold the City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Provider.

8. NON-DISCRIMINATION:

Consistent with the City’s policy and state and federal law that harassment and discrimination are unacceptable conduct, Provider and its employ ees, contractors, and agents shall not harass or discriminate against any job applicant, City employee, or any other person on the basis of statutorily (federal, state or local) protected class, including but not limited to: race, religious creed, color, national origin, ancestry, disability (both mental and physical) including HIV and AIDS, medical condition (e.g. cancer), genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, pregnancy, political affiliation, military and veteran status or legitimate union activities. Provider agrees that any violation of this provision shall constitute a material breach of this Agreement.

9. HOLD HARMLESS:
a. To the fullest extent permitted by law, Provider shall indemnify, defend (with counsel acceptable to the City) and hold har mless the City, its City Council, boards, commissions, officials, employees, agents and volunteers (“Indemnitees”) from and against any and all loss, damages, liability, obligations, claims, suits, judgments, costs and expenses whatsoever, including reasonable attorney’s fees and costs of litigation (“Claims”), arising from or in any manner connected to Provider’s negligent performance of its obligations under this Agreement or out of the operations conducted by Provider. If the Claims filed against Indemnitees allege negligence, recklessness or willful misconduct on th e part of Provider, Provider shall have no right of reimbursement against Indemnitees for the costs of defense even if negligence, recklessness or willful misconduct is not found on th e part of Provider. Provider shall not have any obligations to indemnify Inde mnitees if the loss or da mage is found to have resulted solely from the negligence or the willful misconduct of the City or Indemnitees. The defense and indemnification oblig ations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement. b. As to Claims for professional liability only, Provider’s obligation to defend Indemnitees (as set forth above) is limited as provided in California Civil Code Section 2782.8. c. Provider’s obligation to indemnify, defend and hold harmless Indemnities shall expressly survive the expiration or early termination of this Agreement.

“Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days’ advance written notice to the City of Alameda. Attention: Risk Manager.”
Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company licensed to offer insurance in the State of California with a current A.M. Best’s rating of no less than A:VII or Standard & Poor’s Rating (if rated) of at least BBB unless otherwise acceptable to the City. Provider shall deliver updated insurance certificates to the City at the address described in Section 17.f. prior to the expiration of the existing insurance certificate for the duration of the term of Agreement. Endorsements naming th e City, its City Council, boards, commissions, officials, employees, agents, and volunteers as additional insured shall be submitted with the insurance certificates.
_____________
Provider Initials
b. COVERAGE REQUIREMENTS:

Provider shall maintain insurance coverage and limits at least as broad as:
(1) Workers’ Compensation:

Statutory coverage as required by the State of California, as well as a Waiver of Subrogation (Rights of Recovery) endorsement. (2) Liability:

Commercial general liability coverage in the following minimum limits:

Bodily Injury: $1,000,000 each occurrence
$2,000,000 aggregate - all other
Property Damage: $1,000,000 each occurrence
$2,000,000 aggregate
If submitted, combined single limit policy with per occurrence limits in the amounts of $2,000,000 and aggregate limits in the amounts of $4,000,000 will be considered equivalent to the required minimum limits shown above. Provider shall also submit declarations and policy endorsements pages. Additional Insured Endorsement naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers is required. The Additional Insured Endorsement shall include primary and non-contributory coverage at least as broad as the CG 2010.

(3) Automotive:

Comprehensive automobile liability coverage (any auto) in the following minimum limits:

Bodily injury: $1,000,000 each occurrence
Property Damage: $1,000,000 each occurrence
or
Combined Single Limit: $2,000,000 each occurrence
Additional Insured Endorsement na ming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers is required.

As to commercial general liability and automobile liability insurance, such insurance will provide that it constitutes primary insurance with respect to claims insured by such policy, and, except with respect to limits, that insurance appl ies separately to each insured against whom claim is made or suit is brought. Such insuranc e is not additional to or contributing with any other insurance carried by or for the benefit of the City. c. SUBROGATION WAIVER:

Provider hereby agrees to waive rights of subrogation that any insurer of Provider may acquire from Provider by virtue of the paymen t of any loss. Provider agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiv er of subrogation in favor of the City for all work performed by Provider, its employees, agents and subcontractors. d. FAILURE TO SECURE:

If Provider at any time during the term here of should fail to secure or maintain the foregoing insurance, the City shall be permitted to obtain such insurance in Provider’s name or as an agent of Provider and shall be compensa ted by Provider for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid.
e. ADDITIONAL INSUREDS:

The City, its City Council, boards, commi ssions, officials, employees, agents, and volunteers shall be named as additional insured(s) under all insurance coverages, except workers’ compensation and professional liability insurance. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named he rein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.

Additional Insured coverage under Provider’s policy shall be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance. Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the additional insured(s).

f. SUFFICIENCY OF INSURANCE:

The insurance limits required by the City are not represented as being sufficient to protect Provider. Provider is advised to consult Provider’s insurance broker to determine adequate coverage for Provider. The coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of the coverage carried by or available to Provider; whichever is greater. g. EXCESS OR UMBRELLA LIABILITY:

If any Excess or Umbrella Liability policies are used to meet the limits of liability required by this Agreement, then said policies sh all be true “following form” of the underlying policy coverage, terms, conditions, and provisi ons and shall meet all of the insurance requirements stated in this Agreement, including but not limited to, the additional insured, SIR, and primary insurance requirements stated therein. No insurance policies maintained by the indemnified parties or Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until all the primary and excess liability policies carried by or available to the Provider are exhausted.

11. CONFLICT OF INTEREST:

Provider warrants that it is not a conflict of interest for Provider to perform the services required by this Agreement. Provider may be required to fill out a conflict of interest form if the services provided under this Agreement require Provider to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations.

12. PROHIBITION AGAINST TRANSFERS:
a. Provider shall not assign, s ublease, hypothecate, or tran sfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of the City Manager. Provider shall submit a written request for consent to transfer to the City Manager at least thirty (30) days in advance of the desired transfer. The City Manager or their designee may consent or reject such re quest in their sole and absolute discretion. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or tran sfer. However, claims for money against the City under this Agreement may be assigned by Provider to a ban k, trust company or other financial institution without prior written consent.
b. The sale, assignment, transfer or othe r disposition of any of the issued and outstanding capital stock, membership interest, partnership interest, or the equivalent, which shall result in changing the control of Provider, shall be construed as an assignment of this Agreement. Control means fifty percent or more of the voting power of Provider.

of this Agreement, Provider wishes to use sub-providers, at no additional costs to the City, then Provider shall submit a written request for consent to add sub-providers including the names of the sub-providers and the reasons for the request to the City Manager at least five (5) days in advance. The City Manager may consent or rej ect such requests in their sole and absolute discretion.
b. Each sub-provider shall be required to furnish proof of workers’ compensation insurance and shall also be required to carry general, automobile and professional liability insurance (as applicable) in reasonable conformity to the insurance carried by Provider. c. In addition, any tasks or services performed by sub-providers shall be subject to each provision of this Agreement. Provider shall include the following language in their agreement with any sub-provider: “Sub-provi ders hired by Provider agree to be bound to Provider and the City in the sa me manner and to the same exte nt as Provider is bound to the City.”
d. The requirements in this Section 13 sha ll not apply to persons who are merely providing materials, supplies, da ta or information that Provider then analyzes and incorporates into its work product.

14. PERMITS AND LICENSES:

Provider, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City business license that may be required in connection with the performance of the services and tasks hereunder.

15. REPORTS:
a. Each and every report, draft, work product, map, record and other document produced, prepared or caused to be prepared by Provider pursuant to or in connection with this Agreement shall be the exclusive property of the City.
b. No report, information or other data gi ven to or prepared or assembled by Provider pursuant to this Agreement shall be made available to any individual or organization by Provider without prior approval of the City Manager or their designee. c. Provider shall, at such time and in such form as City Manager or their designee may require, furnish reports concerning the stat us of services and ta sks required under this Agreement.

b. All Records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Provider shall provide free access to the Records to the representatives of the City or its designees during regular business hours upon reasonable prior notice. The Ci ty has the right to examine and audit the Records, and to make copies or transcripts therefrom as necessary, and to allow inspection of all proceedings and activities related to this Agreement. Such Records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained by Provider for a period of three (3) years after receipt of final payment. c. If supplemental examination or audit of the Records is necessary due to concerns raised by the City’s preliminary examination or audit of records, and the City’s supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of this Agreement or failure to act in good faith, then Provider shall reimburse the City for all reasonable costs an d expenses associated with the supplemental examination or audit.

17. NOTICES:
a. All notices shall be in writing and delivered: (i) by hand; or (ii) sent by registered, express, or certified mail, with return receipt requested or with delivery confirmation requested from the U.S. postal service; or (iii) sent by overnight or same day courier service at the party’s respective address listed in this Section.
b. Each notice shall be deemed to have been received on the earlier to occur of: (x) actual delivery or the date on which delivery is re fused; or (y) three (3) days after notice is deposited in the U.S. mail or with a courier service in the manner described above (Sundays and City holidays excepted).
c. Either party may, at any time, change its notice address (other than to a post office box address) by giving the other party three (3) days prior written notice of the new address. d. All notices, demands, requests, or approvals from Provider to the City shall be addressed to the City at:

City of Alameda
Planning, Building and Transportation
2263 Santa Clara Avenue, Room 190
Alameda, CA 94501
ATTENTION: Planning, Building, and Transportation Director Ph: (510) 747-6800
e. All notices, demands, requests, or approvals from the City to Provider shall be addressed to Provider at:

Alameda Transportation Management Association

Alameda Transportation Management Association
Lucy Gigli, ATMA TDM Manager

950 West Mall Square, Suite 239
Alameda, CA94501
Phone: 510-505-8470
Email: [email protected]

f. All updated insurance certificates from Provider to the City shall be addressed to the City at:

City of Alameda
Planning, Building and Transportation
2263 Santa Clara Avenue, Room 190
Alameda, CA 94501
ATTENTION: Erin Garcia/Administrative Services Coordinator Ph: (510) 747-6816 / [email protected]

18. SAFETY:
a. Provider will be solely and completely re sponsible for conditions of all vehicles owned or operated by Provider, including th e safety of all pers ons and property during performance of the services and tasks under th is Agreement. This requirement will apply continuously and not be limited to normal working hours. In addition, Provider will comply with all safety provisions in confor mance with U.S. Department of Labor Occupational Safety and Health Act, any equivalent state law, and all ot her applicable federal, state, county and local laws, ordinances, codes, and any regulations that may be detailed in other parts of the Agreement.

Where any of these are in conflict, the more stringent requirements will be followed. Provider’s failure to thoroughly familiarize itself with the aforementioned safety provisions will not relieve it from compliance with the obligations and penalties set forth herein. b. Provider will immediately notify the City within twenty-four (24) hours of any incident of death, serious personal injury or substantial property damage that occurs in connection with the performance of this Agreemen t. Provider will promptly submit to the City a written report of all incidents that occur in connection with this Agreement. This report must include the following information: (i) name and address of injured or deceased person(s); (ii) name and address of Provider’s employee(s) involved in the incident; (iii) name and address of Provider’s liability insurance carrier; (iv) a detailed description of the incident; and (v) a police report.

b. The foregoing notwithstanding, either the City or Provider shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days’ prior written notice to the other party as provided herein. c. Upon termination of this Agreement eith er for cause or for convenience, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. The obligation of the parties under this Section 19.c. shall survive the expiration or early termination of this Agreement.

20. ATTORNEYS’ FEES:

In the event of any litigation, including administrative proceedings, relating to this Agreement, including but not limited to any action or suit by any party, assignee or beneficiary against any other party, beneficiary or assignee, to enforce, interpret or seek relief from any provision or obligation arising out of this Agreement, the parties and litigants shall bear their own attorney’s fees and costs. No party or litigant shall be entitled to recover any attorneys’ fees or costs from any other party or litigant, regardless of which party or litigant might prevail.

21. HEALTH AND SAFETY REQUIREMENTS.

Provider acknowledges that the Ci ty shall have the right to impose, at the City’s sole discretion, requirements that it deems are necessary to protect the health and safety of the City employees, residents, and visito rs. Provider agrees to comply with all such requirements, including, but not limited to, mandatory vaccinations, the use of personal protective equipment (e.g. masks), physical distancing, and health screenings. Provider also agrees to make available to the City, at the City’s request, records to demonstrate Provider’s compliance with this Section.

22. COMPLIANCE WITH ALL APPLICABLE LAWS:

During the term of this Agreement, Provider shall keep fully informed of all existing and future state and federal laws and all municipal ordinances and regulations of the City of Alameda which affect the manner in which the services or tasks are to be performed by Provider, as well as all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Provider shall comply with all applicable laws, state and federal and all ordinances, rules and regulations enacted or issued by the City.

23. CONFLICT OF LAW:

This Agreement shall be interpreted under, an d enforced by the laws of the State of California without regard to any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Alameda, State of California.

24. WAIVER:

A waiver by the City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subs equent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.

25. INTEGRATED CONTRACT:

Subject to the language of Section 30, the Recitals and Exhibits are a material part of this Agreement and are expressly incorporated here in. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied cove nant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both the City and Provider.

26. CAPTIONS:

The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.

27. COUNTERPARTS:

This Agreement may be executed in any number of counterparts (including by fax, PDF, DocuSign, or other electronic means), each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

28. SIGNATORY:

By signing this Agreement, signatory warrants and represents that they executed this Agreement in their authorized capacity and that by their signature on this Agreement, they or the entity upon behalf of which they acted, executed this Agreement.

29. CONTROLLING AGREEMENT:

In the event of a conflict between the terms and conditions of this Agreement (as amended, supplemented, restated or otherwise modified from time to time) and any other terms and conditions wherever contained, including, without limitation, terms and conditions included within exhibits, the terms and conditions of this Agreement shall control and be primary.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the parties have each caused this Agreement to be duly executed on its behalf as of the Effective Date.

ALAMEDA TRANSPORTATION CITY OF ALAMEDA
MANAGEMENT ASSOCIATION a municipal corporation
a
California non-profit public
benefit corporation

Michael S. O’Hara Jennifer Ott
Board President City Manager
Alameda Transportation Management
A s s o c i a t i o n

RECOMMENDED FOR APPROVAL

Andrew Thomas
Planning, Building, and Transportation
Director

APPROVED AS TO FORM:

City Attorney

C e l e n a H . C h e n
Chief Planning Counsel

FUNDING AGREEMENT BETWEEN THE CITY OF ALAMEDA AND THE

ALAMEDA TRANSPORTATION MANAGEMENT ASSOCIATION
(ALAMEDA TMA) ALLOWING PASS THROUGH OF TRANSPORTATION

DEMAND MANAGEMENT FEES FROM EXISTING TENANTS TO THE

ALAMEDA TMA FOR TDM PROGRAM IMPLEMENTATION
This Funding Agreement (“Agreement”) is entered into as of this day of ________, 2023 (“Effective Date”), by and between the City of Alameda, a municipal corporation (“the City”), and the Alameda Transpo rtation Management Association, a California non-profit public benefit corporation, whose address is _______ (“ATMA” or “Provider”), with reference to the following facts:

RECITALS
A. By Resolution No. 14891, the City Council of the City of Alameda certified the Fina l A
lameda Point Environmental Impact Report (“FEIR”) (State Clearinghouse No. 201312043) under the California Environm ental Quality Act (“CEQA”), Ca lifornia Pub
lic Resources Code Section 21000 et seq. and adopted written findings and a Mitigation Monitoring and Reporting Program (“MMRP”) on February 4, 2014 for the Alameda Point Project; and
B. The FEIR required preparation and implementation of a Transportation Dema nd Ma
nagement Plan to reduce automobile congestion and associated emissions from single occupancy vehicle use to mitigate the transportation impacts identified in the FEIR; and C. The City Council approved the Transportation Demand Management Plan for Alameda Poi
nt on May 20, 2014 (“Alameda Point TDM Plan”), a crucial component of the City’s ap
proach to addressing the City’s transportation issues associated with the reuse an d r
edevelopment of Alameda Point; and
D. The intent of the Alameda Point TDM Plan is to provide strategies, measures an d serv
ices that are combined into a compre hensive program to create the envisioned transit-oriented development at Alameda Point, to achieve the City of Alameda’s General Plan goals to reduce automobile trips, and in particular, targets the reduction of solo
driving trips, and to mitigate potenti al traffic impacts from existing and new development; and
E. The ATMA was established in 2017 as an independent California non-profit public be
nefit corporation that oversees the ongoing implementation of the Alameda Point TDM Plan and the Northern Waterfront transportation mitigation area requirements with potential for expansion citywide; and
F. On June 5, 20
18, the City Council ratified the TDM tenant fee amount and approved a pass through agreement to pass through th e TDM fees from the existing tenants in Alameda Point to the ATMA; and
G. Since 2018, the City has been passing funds to the ATMA, and the ATMA has been pr
oviding services to Alameda Point as documented in the 2022 ATMA Annual Report; and

Exhibit B

H. The City and the ATMA have identified changes to the existing agreements that improve clarity, streamline processes, and improve efficiency for both ATMA and City staff.

AGREEMENT

1. TERM:

2. CITY OBLIGATIONS:

a) By the first day of April of each year, the City shall provide the ATMA with an estimate of the biannual pass through of Tena nt TDM fees (“Tenant Pass Through Funds”) that will be collected from existing tenants in Alameda Point (the “April Tenant Fee Estimate”) in the next two fiscal years. The April Tenant Fee Estimate shall include a list of all businesses/tenants expected to pay the tena nt fee and the amount the City anticipates collecting from the businesses/tenants in the upcoming Fiscal Years.

b) The City shall transmit 50% of the Tenant Pa ss Through Funds detailed in the April Tenant Fee Estimate to the ATMA on a bi annual basis and within thirty (30) days of receiving an invoice from the ATMA.

3. ATMA OBLIGATIONS:

a) ATMA shall submit to the City an invoice on a biannual basis for 50% of the estimated Tenant Pass Through Funds by the first day of December and by the first day of May of each fiscal year.

b) ATMA shall use the Tenant Pass through Funds to provide transportation services to the businesses, employees, property owners, and residents of Alameda Point. Such services shall be consistent with, and implement, the Tran sportation Management objectives established by the Alameda Point Transportation Management Plan. The Alameda TMA Board of Directors shall have discretion to decide whic h services to provide with the funds provided by the City through this Agreement, provided that the services provided shall include each of the following, at a minimum:
x Provision of AC Transit Easy Passes or an equivalent transit pass to employees of businesses at Alameda Point;

x Maintenance of a Website describing all services provided; x A Transportation Manager that is available to assist tenants with transportation questions and problems; and
x Conduct a survey of Alameda Point tenants and property owners at least once every two (2) years to better understand transportation needs and preferred modes of transportation.

4. TIME IS OF THE ESSENCE:

Provider and the City agree that time is of the essence regarding the performance of this Agreement.

5. STANDARD OF CARE:

6. INDEPENDENT PARTIES:

Provider hereby declares that Provider is engaged as an independent business and Provider agrees to perform the services as an independent contractor. The manner and means of conducting the services and tasks are under the control of Provider except to the extent they are limited by statute, rule or regulation and the expre ss terms of this Agreement. No civil service status or other right of employment will be acqui red by virtue of Provider’s services. None of the benefits provided by the City to its employees, including but not limited to unemployment insurance, workers’ compensation plans, vacation and sick leave, are available from the City to Provider, its employees or agents. Deductions sha ll not be made for any state or federal taxes, FICA payments, PERS payments, or other purpo ses normally associated with an employer- employee relationship from any compensation due to Provider. Payments of the above items, if required, are the responsibility of Provider.

7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):

Provider assumes any and all responsibility fo r verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal or state rule s and regulations. Provider sha ll indemnify, defend, and hold the City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Provider.

8. NON-DISCRIMINATION:

the basis of any statutorily (federal, state or local) protected class, including but not limited to:
race, religious creed, color, national origin, an cestry, disability (both mental and physical) including HIV and AIDS, medical condition (e.g. cancer), genetic inform ation, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, pregnancy, political affiliation, military and veteran status or leg itimate union activities. Provider agrees that any violation of this provision shall constitute a material breach of this Agreement.

If the Claims filed against Indemnitees allege negligence, recklessness or willful misconduct on the part of Provider, Provider shall have no ri ght of reimbursement against Indemnitees for the costs of defense even if negligence, recklessn ess or willful misconduct is not found on the part of Provider. Provider shall not have any obligations to indemnify Indemnitees if the loss or damage is found to have resulted solely from the negligence or the willful misconduct of the City or Indemnitees. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.
b. As to Claims for professional liability only, Provider’s obligation to defend Indemnitees (as set forth above) is limited as provided in California Civil Code Section 2782.8. c. Provider’s obligation to indemnify, defend and hold harmless Indemnities shall expressly survive the expiration or early termination of this Agreement.

10. INSURANCE:
a. On or before the commencement of the terms of this Agreement, Provider shall furnish the City’s Risk Manager with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with Sections 10.b. (1) through (3). The Certificat e Holder should be The City of Alameda, 2263 Santa Clara, Ave., Alameda, CA 94501. Such certificates, which do not limit Provider’s indemnification, shall also contain substantially the following statement:
“Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days’ advance written notice to the City of Alameda. Attention: Risk Manager.”
Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company

licensed to offer insurance in the State of California with a current A.M. Best’s rating of no less than A:VII or Standard & Poor’s Rating (if rated) of at least BBB unless otherwise acceptable to the City. Provider shall deliver updated insurance certificates to the City at the address described in Section 17.f. prior to the expiration of the existing insurance certificate for the duration of the term of Agreement. Endorsements naming th e City, its City Council, boards, commissions, officials, employees, agents, and volunteers as additional insured shall be submitted with the insurance certificates.
_____________
Provider Initials
b. COVERAGE REQUIREMENTS:

Provider shall maintain insurance coverage and limits at least as broad as:
(1) Workers’ Compensation:

Statutory coverage as required by the State of California, as well as a Waiver of Subrogation (Rights of Recovery) endorsement. (2) Liability:

Commercial general liability coverage in the following minimum limits:

Bodily Injury: $1,000,000 each occurrence
$2,000,000 aggregate - all other
Property Damage: $1,000,000 each occurrence
$2,000,000 aggregate
If submitted, combined single limit policy with per occurrence limits in the amounts of $2,000,000 and aggregate limits in the amounts of $4,000,000 will be considered equivalent to the required minimum limits shown above. Provider shall also submit declarations and policy endorsements pages. Additional Insured Endorsement naming the City , its City Council, boards, commissions, officials, employees, agents, and volunteers is required. The Additional Insured Endorsement shall include primary and non-contributory coverage at least as broad as the CG 2010.
(3) Automotive:

Comprehensive automobile liability coverage (any auto) in the following minimum limits:

As to commercial general liability and autom obile liability insurance, such insurance will provide that it constitutes primary insurance with respect to claims insured by such policy, and, except with respect to limits, that insurance appl ies separately to each insured against whom claim is made or suit is brought. Such insuranc e is not additional to or contributing with any other insurance carried by or for the benefit of the City. c. SUBROGATION WAIVER:

The City, its City Council, boards, commissions, officials, employees, agents, and volunteers shall be named as additional insured(s) under all insurance coverages, except workers’ compensation and professional liability insurance. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named here in shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.

and primary insurance requirements stated therein. No insurance policies maintained by the indemnified parties or Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until all the primary and excess liability policies carried by or available to the Provider are exhausted.

11. CONFLICT OF INTEREST:

12. PROHIBITION AGAINST TRANSFERS:
a. Provider shall not assign, sublease, hypothe cate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of the City Manager. Provider shall submit a written request for consent to transfer to the City Manager at least thirty (30) days in advance of the desired transfer. The City Manager or their designee may consent or reject such re quest in their sole and absolute discretion. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or tran sfer. However, claims for money against the City under this Agreement may be assigned by Provider to a bank, trust company or other financial institution without prior written consent.
b. The sale, assignment, transfer or othe r disposition of any of the issued and outstanding capital stock, membership interest, partnership interest, or the equivalent, which shall result in changing the control of Provider, shall be construed as an assignment of this Agreement. Control means fifty percent or more of the voting power of Provider.

13. APPROVAL OF SUB-PROVIDERS:
a. Only those persons and/or businesses w hose names and resumés are attached to this Agreement shall be used in the performance of this Agreement. However, if after the start of this Agreement, Provider wishes to use sub-providers, at no additional costs to the City, then Provider shall submit a written request for consent to add sub-providers including the names of the sub-providers and the reasons for the request to the City Manager at least five (5) days in advance. The City Manager may consent or rej ect such requests in their sole and absolute discretion.
b. Each sub-provider shall be required to furnish proof of workers’ compensation insurance and shall also be required to carry general, automobile and professional liability insurance (as applicable) in reasonable conformity to the insurance carried by Provider. c. In addition, any tasks or services performed by sub-providers shall be subject to each provision of this Agreement. Provider shall include the following language in their agreement with any sub-provider: “Sub-provi ders hired by Provider agree to be bound to

Provider and the City in the sa me manner and to the same exte nt as Provider is bound to the City.”
d. The requirements in this Section 13 sha ll not apply to persons who are merely providing materials, supplies, da ta or information that Provider then analyzes and incorporates into its work product.

14. PERMITS AND LICENSES:

16. RECORDS:
a. Provider shall maintain complete and accurate records with respect to the services, tasks, work, document s and data in sufficient detail to permit an evaluation of Provider’s performance under the Agreement, as well as maintain books a nd records related to sales, costs, expenses, receipts and other such information required by the City that relate to the performance of the services and tasks under this Agreement (collectively the “Records”). b. All Records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Provider shall provide free access to the Records to the representatives of the City or its designees during regular business hours upon reasonable prior notice. The Ci ty has the right to examine and audit the Records, and to make copies or transcripts therefrom as necessary, and to allow inspection of all proceedings and activities related to this Agreement. Such Records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained by Provider for a period of three (3) years after receipt of final payment. c. If supplemental examination or audit of the Records is necessary due to concerns raised by the City’s preliminary examination or audit of records, and the City’s supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of this Agreement or failure to act in good faith, then Provider shall

reimburse the City for all reasonable costs an d expenses associated with the supplemental examination or audit.

Alameda Transportation Management Association

Alameda Transportation Management Association
Lucy Gigli, ATMA TDM Manager
950 West Mall Square, Suite 239
Alameda, CA94501
Phone: 510-505-8470
Email: [email protected]

f. All updated insurance certificates from Provider to the City shall be addressed to the City at:

18. SAFETY:
a. Provider will be solely and completely re sponsible for conditions of all vehicles owned or operated by Provider, including th e safety of all pers ons and property during performance of the services and tasks under th is Agreement. This requirement will apply continuously and not be limited to normal working hours. In addition, Provider will comply with all safety provisions in confor mance with U.S. Department of Labor Occupational Safety and Health Act, any equivalent stat e law, and all other applicable federal, state, county and local laws, ordinances, codes, and any regulations that may be detailed in other parts of the Agreement.

19. TERMINATION:
a. In the event Provider fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Pr ovider shall be deemed in default in the performance of this Agreement. If such default is not cured, within five (5) business days after receipt by Provider from the City of written noti ce of default, specifying the nature of such default and the steps necessary to cure such default, the City may thereafter immediately terminate the Agreement forthwith by giving to Provider written notice thereof. b. The foregoing notwithstanding, either the City or Provider shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days’ prior written notice to the other party as provided herein. c. Upon termination of this Agreement either for cause or for convenience, each party shall pay to the other party that portion of compensation specified in this Agreement that

is earned and unpaid prior to the effective date of termination. The obligation of the parties under this Section 19.c. shall survive the expiration or early termination of this Agreement.

20. ATTORNEYS’ FEES:

21. HEALTH AND SAFETY REQUIREMENTS.

22. COMPLIANCE WITH ALL APPLICABLE LAWS:

23. CONFLICT OF LAW:

24. WAIVER:

25. INTEGRATED CONTRACT:

preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied cove nant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both the City and Provider.

26. CAPTIONS:

The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.

27. COUNTERPARTS:

28. SIGNATORY:

29. CONTROLLING AGREEMENT:

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the parties have each caused this Agreement to be duly executed on its behalf as of the Effective Date.

ALAMEDA TRANSPORTATION CITY OF ALAMEDA
MANAGEMENT ASSOCIATION a municipal corporation
a
California non-profit public
benefit corporation

Michael S. O’Hara Jennifer Ott
Board President City Manager
Alameda Transportation Management
A s s o c i a t i o n

RECOMMENDED FOR APPROVAL

Andrew Thomas
Planning, Building, and Transportation
Director

APPROVED AS TO FORM:

City Attorney

C e l e n a H . C h e n
Chief Planning Counsel

* * * * *

I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the 5th day of September 2023, by the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the seal of said City this 6th day of September 2023.

___________________
Lara Weisiger, City Clerk
City of Alameda

APPROVED AS TO FORM:

___________________
Yibin Shen, City Attorney
City of Alameda

Alameda City CouncilSeptember 5, 2023

Alameda City Council
September 5, 2023