October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2
FUNDING AGREEMENT
SAN MATEO COUNTY TRANSPORTATION AUTHORITY
MEASURE A AND MEASURE W FUNDS
US 101/UNIVERSITY AVENUE INTERCHANGE IMPROVEMENTS AND
BICYCLE/PEDESTRIAN OVERCROSSING
This Funding Agreement (Agreement) is made this ___ day of February, 2023 (Execution Date) by and between the San Mateo County Transportation Authority (TA) and the City of East Palo Alto (Sponsor), each of which is referred to herein individually as "Party" and jointly as "Parties."
RECITALS
WHEREAS, on June 7, 1988, the voters of San Mateo County approved a ballot measure to allow the collection and distribution by the TA of a half-cent transactions and use tax in San Mateo County for 20 years with the tax revenues to be used for highway and transit improvements pursuant to the Transportation Expenditure Plan presented to the voters (Original Measure A); and
WHEREAS, on November 2, 2004, the voters of San Mateo County approved the continuation of the collection and distribution by the TA of the Measure A half cent transaction and use tax for an additional 25 years to implement the 2004 Transportation Expenditure Plan, beginning January 1, 2009 (New Measure A); and
WHEREAS, on November 6, 2018, the voters of San Mateo County authorized a new one-half percent sales tax in San Mateo County for transportation purposes, and tasked the TA with administering four of the five transportation program categories described in the Congestion Relief Plan presented to the voters (Measure W); and
WHEREAS, the Measure W Congestion Relief Plan designates twenty two and one-half percent of Measure W funds to fund highway projects throughout the County; and WHEREAS, Measure W Funds, unlike Original Measure A and New Measure A Funds, may be used for bicycle/pedestrian components of highway projects; and WHEREAS, on October 4, 2012, the TA’s Board of Directors programmed and allocated up to $5,000,000 from Measure A Highway Program Category including $4,892,500 for the Construction phase of the US 101/University Avenue Interchange Improvements through Resolution 2012-17 (Measure A Funds); and
WHEREAS, on August 6, 2021, the TA issued the most recent call for projects for the Highway Program; and
WHEREAS, in response to the call for projects, Sponsor requested that the TA provide an additional $4,183,665 in funds for project construction including a Bicycle/Pedestrian Overcrossing; and
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 WHEREAS, the US 101/University Avenue Interchange Improvements and Bicycle/Pedestrian Overcrossing (Project) meets the intent of the 2004 Transportation Expenditure Plan, 2018 Congestion Relief Plan and the TA’s Strategic Plan 2020-2024; and WHEREAS, on December 2, 2021, the TA’s Board of Directors increased the requested amount to meet deficiency in Project funding and programmed and allocated up to $5,700,000 from the Measure W Highway Program Category for the Construction Phase (Scope of Work) of the Project through Resolution 2021-33, and the Parties intend that the Measure W Funds be prioritized for the Bicycle/Pedestrian Overcrossing components of the Project; and WHEREAS, the Sponsor will contribute $4,073,200 in local, state, federal, or other grant matching funds for a total Project Scope of Work cost of $14,665,700. The $4,073,200 Sponsor contribution consists of $2,302,200 in discretionary funds, $1,000,000 Stanford Recreation Mitigation Grant funds, and $771,000 federal earmark funds; and WHEREAS, the TA and Sponsor desire to enter into this Agreement to establish the process, terms and conditions governing the allocation and expenditure of Measures A and W Funds on the Project.
Now therefore, the Parties agree as follows:
SECTION 1: Scope of Work Oversight and Reporting
1.1 Sponsor Oversight; Work Plan. Sponsor is responsible for the completion of the Scope of Work as described in Exhibit A, "Scope of Work Information," which is attached to this Agreement and incorporated herein by this reference. Sponsor is responsible for procuring and administering any professional service and/or other contracts entered into in connection with the Scope of Work. Sponsor will oversee completion of the Scope of Work. Sponsor may appoint a designee or engage contractor(s) to perform work necessary for Scope of Work completion, but Sponsor remains responsible to the TA for the completion of the Scope of Work.
1.2 Required Approvals. Prior to commencement of the Scope of Work, Sponsor or its designee (e.g., a consultant) will obtain all applicable local, state and federal approvals and permits for the Scope of Work. In addition, Sponsor must comply with all applicable federal, state and local laws and regulations applicable to the Project. All real property appraisals must comply with Uniform Standards of Professional Appraisal Practice (USPAP). Any right-of-way activities involving property on the Caltrans right-of-way must be conducted in accordance with the current version of the Caltrans Right-of-Way manual.
1.3 Contract Award and Change Orders. Sponsor must comply with state and local agency requirements for the award of any contract(s) for the performance of the Scope of Work and any change orders. As the Scope of Work proceeds, Sponsor must advise the TA of any contracts awarded and change orders as part of the regular progress reporting requirements (Section 1.4). Notice of any contracts and change orders provided to the TA will not constitute approval by the TA of the contracts and change orders nor obligate October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 the TA to provide funds in excess of its maximum contribution stated in Section 2.1 of this Agreement.
1.4 Progress Reports. Sponsor will prepare and submit to the TA monthly progress reports during the entire term of the Scope of Work and covering all Scope of Work activities for work completed during the previous month using the template in Exhibit B.
The reports must describe:
a) The current status of, and any changes in, scope, schedule, budget, and funding plans of the Scope of Work and the Project;
b) Any risk factors;
c) The work performed during the previous quarter and projected for the next three months;
d) Scope of Work Costs (as defined in Section 2.1, below) projected to be expended during the next three months; and
e) Any other information requested by the TA.
1.5 Final Report. Within ninety (90) days of Sponsor’s final acceptance of the Scope of Work and all incidental work, Sponsor must prepare and submit to the TA a final report detailing the following and all other relevant information:
a) A description of the Project, including a statement detailing the overall progress and success of the Scope of Work and the Project, a compilation of any data collected during the active phase(s) of the Project, and changes/additions to the scope of the Project.
b) Total costs for the Scope of Work, including an accounting of all Measures A/W Funds expended in connection with the Scope of Work, and reflecting any unexpended Measures A/W Funds.
c) An explanation and the status of any outstanding obligations or potential obligations related to the Scope of Work.
d) A discussion of any pertinent issues or problems that arose during the implementation of the Scope of Work.
e) Any copies of press articles, press releases, newsletter articles and any other publicity materials regarding the Project.
f) A Project Close-out form that no further reimbursements associated with the Scope of Work are anticipated and that all draw-down requests have been made. g) Photographs for all construction projects that satisfactorily demonstrate: 1) site conditions before the project was implemented; 2) work in progress; and 3) completed improvements.
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2
1.6 Access to Records and Record Retention. At all reasonable times, Sponsor will permit the TA access to all reports, designs, drawings, plans, specifications, schedules and other materials prepared, or in the process of being prepared, for the Scope of Work by Sponsor or any contractor or consultant of Sponsor. Sponsor will also make available to the TA upon request any professional service agreements, change orders and any other agreements that are related to the Scope of Work. Sponsor will provide copies of any documents described in this Section to the TA upon request. Sponsor will permanently retain all records pertaining to the Scope of Work including agreements, maps, plans, photos, survey reports and permits.
1.7 Audits.
a) The TA, or its authorized agents, may, at any reasonable time during business hours, conduct an audit of Sponsor’s performance under this Agreement. Sponsor will permit the TA, or its authorized agents, to examine, inspect, make excerpts from, transcribe or photocopy books, documents, papers and other records of Sponsor which the TA reasonably determines to be relevant to this Agreement. b) Sponsor will transmit to the TA the Independent Auditor’s Report prepared for Sponsor’s Comprehensive Annual Financial Report within thirty (30) days of receipt by Sponsor and highlight the section that pertains to the Measures A/W Funds.
SECTION 2: Funding and Payment
2.1 Funding Commitment. The TA allocates to Sponsor up to $4,892,500 in Measure A Funds and $5,700,000 in Measure W Funds for reimbursement of expenditures related to the Scope of Work (Scope of Work Costs) as provided in this Section 2. Sponsor will contribute, or provide for the contribution of $4,073,200 in matching funds on a 28% pro rata basis for each expenditure, as well as the entire amount in excess of $14,665,700.
The TA’s funding commitment under this Agreement in no way establishes a right for Sponsor to receive additional funding from the TA. All funding obligations of the TA under this Agreement are subject to downward adjustment based on actual sales tax receipts for the fiscal years indicated.
Sponsor will assess and confirm its ability to complete the Scope of Work within budget as part of the monthly reporting requirements established in Section 1.4, above. Sponsor must further notify the TA between reporting cycles if Sponsor determines that the budget will not be sufficient to complete the Scope of Work. The TA reserves the right to suspend its funding obligation as set forth in Section 3.4 of this Agreement upon such notice, and until Sponsor develops a credible funding plan acceptable to the TA to fund and complete the Scope of Work.
2.2 Use of Funds.
a) Measures A and W Funds shall be used only for direct eligible costs to complete the Scope of Work. The Sponsor is responsible for demonstrating to the TA that the expenses incurred were necessary to deliver the Scope of Work.
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 Reimbursement for the following costs will require detailed documentation in accordance with generally-accepted accounting principles:
i. Scope of Work phases or components such as stakeholder/public outreach; development of planning studies, project initiation documents (PID), project study reports (PSR), environmental clearance, project approval and environmental document (PA&ED), project design, and plans specifications and estimates (PS&E); regulatory agency review; acquisition of right-of-way; construction, and construction management; ii. Costs directly tied to the implementation of the Scope of Work as more specifically defined in Exhibit C, “Definitions of Eligible Costs for Reimbursement,” which is attached to this Agreement and incorporated herein by this reference;
i. Sponsor staff time for Scope of Work implementation; ii. Project administration costs for the Scope of Work under this Agreement. b) The following costs are not eligible for Original Measure A, New Measure A, and Measure W Highway Funds reimbursement:
i. Sponsor’s costs which are unrelated to the Scope of Work; ii. Costs for entering into this Agreement;
iii. Maintenance, rehabilitation, routine operations of the Project or other facilities or programs; and
iv. Development of proposals, applications or agreements for Measure A, Measure W, or other funding programs.
c) Eligible costs are defined in greater detail in Exhibit C, “Definitions of Eligible Costs for Reimbursement.” If Sponsor wishes to undertake items of work not covered under the Scope of Work concurrent with performing the Scope of Work, the cost for including and undertaking the additional work shall be segregated, and the costs borne exclusively by the Sponsor from a non-Measure A and Measure W Highway Program funding source(s). In the event that an activity is not listed in Exhibit C, but Sponsor believes that it is an eligible cost, Sponsor may request that the TA consider reimbursing the Sponsor for the activity. The TA will have sole discretion to grant or deny Sponsor's requests. d) Sponsor agrees that it shall use funds provided pursuant to this Agreement to supplement existing revenue. Sponsor will not use Measures A/W Funds to replace other local taxes or revenues already programmed and available for use for the same purpose. Sponsor will use funds provided pursuant to this Agreement only for the Scope of Work.
If the TA determines that Sponsor has used Measures A/W Funds other than for the approved Scope of Work, the TA will notify Sponsor of its determination. Within thirty (30) days of notification Sponsor will either (a) repay such funds to the TA, or (b) explain in writing how the funds in question October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 were spent for the approved Scope of Work. The TA will respond to Sponsor's written explanation within thirty (30) days of receipt. Unless otherwise stated in the response, the TA's response will be final, and Sponsor will repay any funds used other than for the approved Scope of Work within thirty (30) days. e) The Parties agree that Original Measure A and New Measure A Funds will not be used for the Bicycle/Pedestrian Overcrossing components of the Project.
2.3 Reimbursement Basis. Sponsor may seek pro rata reimbursement for Scope of Work Costs incurred on or after the Execution Date. Scope of Work Costs must be incurred and paid by Sponsor prior to requesting pro rata reimbursement from the TA. Sufficient documentation must accompany all requests for pro rata reimbursement, including the submittal of all due monthly progress reports.
2.4 Accounting and Request for Reimbursement Procedures. Sponsor, in coordination with and to the satisfaction of the TA, will establish procedures for Scope of Work accounting and requests for reimbursement. These procedures will track and reflect the accumulation of the TA’s pro rata share of Scope of Work Costs. Sponsor will detail the TA’s pro rata share of Scope of Work costs for all work funded under this Agreement with each “Reimbursement Claim Form,” which is attached to this Agreement as Exhibit D and incorporated herein. Sponsor will maintain all necessary books and records in accordance with generally accepted accounting principles.
2.5 Invoices; Payments.
a) Sponsor must prepare and submit billing statements consistent with the Reimbursement Claim Form with all required supporting documentation.
Sponsor must differentiate between Measure A and Measure W expenditures with bicycle and pedestrian components of the Project (the Bicycle/Pedestrian Overcrossing) to be funded by Measure W. Supporting documentation may include, but is not limited to, copies of vendor invoices, timesheets, backup documentation, checks, and payment advice, and must include an accounting of the TA’s share of costs for the Scope of Work as contemplated by this Agreement.
b) For any property acquisitions for which Sponsor seeks reimbursement from the TA, Sponsor must provide the following supporting documentation for each property:
i. Copies of the final real estate appraisal and any appraisal review conducted on behalf of Sponsor;
ii. For any right-of-way activities involving property on the Caltrans right-ofway, written confirmation that the acquisition process was conducted in accordance with the then-current version of the Caltrans Right-of-Way manual;
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 iii. A Phase One Environmental Assessment and any recommended additional testing (unless waived by the TA);
iv. Copy of the offer package provided to the property owner(s); v. Copy of the Notice of Exemption or other required document for environmental clearance under CEQA/NEPA for the purchase of the property, and evidence of the date of filing such Notice; and vi. Written justification acceptable to the TA of any settlement at an amount higher than the offer.
c) For each voluntary real property transaction, Sponsor must also provide:
i. Copy of the fully executed purchase and sale agreement; ii. Copy of an executed and recorded deed, in a form consistent with the requirements set forth in the then-current Caltrans Right-of-Way manual; iii. Copy of the Policy of Title insurance; and
iv. Copy of the final closing statement from the escrow. d) For each real property acquisition undertaken through condemnation, Sponsor must also provide:
i. Copy of the recorded Final Order of Condemnation; and ii. Copy of the litigation guarantee issued by a title insurer. e) Sponsor must detail the tasks performed, associated costs, pro rata share of Scope of Work Costs to be borne by the TA with each reimbursement request, and whether each expenditure was used for Interchange Improvements or for the Bicycle/Pedestrian Overcrossing.
f) The TA will endeavor to disburse reimbursements for approved Scope of Work Costs within thirty (30) days after the TA's approval of each claim, subject to the limits on the TA's maximum contribution as established in Section 2.1. The TA's obligation to reimburse Scope of Work Costs to Sponsor as provided in this section is conditioned upon the TA’s prompt receipt of monthly progress reports from Sponsor pursuant to Section 1.4 above.
g) Invoices may be submitted, no more frequently than once a month, by mail to:
Accounts Payable
San Mateo County Transportation Authority
1250 San Carlos Avenue
San Carlos, CA 94070
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 Or by e-mail to: [email protected] and the designated TA Project Manager at [email protected]
SECTION 3: Term
3.1 Term. The term of this Agreement will commence on Execution Date and conclude upon the earliest of: (a) the TA’s final reimbursement to Sponsor for work performed hereunder, (b) termination by Sponsor or the TA pursuant to this Section 3, or (c) December 31, 2025.
3.2 Sponsor's Right to Terminate; Repayment upon Termination. Sponsor may at any time terminate the Scope of Work by giving ten (10) days’ written notice to the TA of its election to do so. Upon such termination, Sponsor will not be reimbursed for any further Scope of Work Costs and will reimburse the TA for all monies paid by the TA and costs incurred by the TA in connection with the Scope of Work as well as all reasonable costs and expenses incurred to effect such termination within ninety (90) days of the TA’s submission to Sponsor of a detailed statement of such payments and costs.
3.3 Termination by the TA. The TA may terminate this Agreement, with or without cause, by giving ten (10) days’ written notice of such termination. If the TA terminates the Agreement for Sponsor’s default, Sponsor will reimburse the TA for all funds paid to Sponsor in connection with the Scope of Work, and for all costs incurred by the TA in connection with the Scope of Work as well as all reasonable costs and expenses incurred to effect such termination, within ninety (90) days of the TA’s submission to Sponsor of a detailed statement of such payments and costs. If the TA terminates the Agreement for convenience, the TA is obligated to pay to Sponsor all costs and expenses incurred by Sponsor up to the date of notice of termination, as well as all reasonable costs and expenses incurred to effect such termination.
3.4 Expiration/Suspension of TA's Financial Obligations. Any and all financial obligations of the TA pursuant to this Agreement expire upon the expenditure of TA’s maximum contribution to the Scope of Work as established in Section 2.1 above or the conclusion of the Term as defined in Section 3.1, whichever occurs first. The TA reserves the right to suspend its financial obligation, with ten (10) days’ advance notice, if Sponsor identifies a risk of not being able to complete the Scope of Work within budget.
If Sponsor cannot provide a credible funding plan acceptable to the TA to fund and complete Scope of Work, the Sponsor will be in default and the TA may terminate this agreement. If Sponsor identifies a risk of not being able to complete the Scope of Work within budget, failure to report such risk to the TA constitutes default and is cause for termination under Section 3.3.
3.5 Time of Performance. The Scope of Work must be completed no later than June 30, 2025.
3.6 Time Extension. If the Scope of Work cannot be completed within the Time of Performance as defined in Section 3.5, Sponsor must submit a request in writing to the TA no later than six (6) months before the Time of Performance for an extension for the October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 Time of Performance. The TA will review the request, and grant the extension if it is justified in TA’s sole and complete discretion. Costs incurred for the Scope of Work after the Time of Performance are at risk of denial for reimbursement by the TA. The unreimbursed portion of the Original Measure A, New Measure A, and Measure W allocation will be retained by the TA for the Original Measure A, New Measure A, and Measure W Highway Program.
SECTION 4: Indemnification and Insurance
4.1 Indemnity by Sponsor.
Sponsor shall indemnify, keep and save harmless the TA and its directors, officers, agents and employees against any and all suits, claims or actions related to the performance of the Scope of Work or the Project including, but not limited to, those arising out of any of the following:
a) Any injury to persons or property that may occur, or that may be alleged to have occurred, arising from the performance of the Project or implementation of this Agreement; or
b) Any allegation that materials or services developed, provided or used for the Project infringe or violate any copyright, trademark, patent, trade secret, or any other intellectual-property or proprietary right of any third party.
Sponsor further agrees to defend any and all such actions, suits or claims and pay all charges of attorneys and all other costs and expenses of defenses as they are incurred. If any judgment is rendered, or settlement reached, against the TA or any of the individuals enumerated above in any such action, Sponsor shall, at its expense, satisfy and discharge the same.
This indemnification shall survive termination or expiration of the Agreement.
4.2 Insurance. For the purposes of this Insurance section, "Entity" is defined as any entity designing, approving designs and/or performing the Scope of Work funded by this Agreement. Entities may include Sponsor, a contractor of Sponsor, another body on behalf of which Sponsor submitted its funding application, and/or a contractor of such other body.
All Entities will provide the appropriate insurance covering the work being performed.
The insurance requirements specified in this section will cover each Entity’s own liability and any liability arising out of work or services of Entity subcontractors, subconsultants, suppliers, temporary workers, independent contractors, leased employees, or any other persons, firms or corporations (hereinafter collectively referred to as “Agents”) working on the Project. If Sponsor itself is an Entity, Sponsor must also provide its own insurance meeting the requirements of this Section.
a) Minimum Types and Scope of Insurance. Each Entity is required to procure and maintain at its sole cost and expense insurance subject to the requirements set October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 forth below. Such insurance will remain in full force and effect throughout performance of the Scope of Work. All policies will be issued by insurers acceptable to the TA (generally with a Best’s Rating of A-10 or better). Each Entity is also required to assess the risks associated with work to be performed by Agents and to require that Agents maintain adequate insurance coverages with appropriate limits and endorsements to cover such risks. To the extent that its Agent does not procure and maintain such insurance coverage, an Entity is responsible for and assumes any and all costs and expenses that may be incurred in securing said coverage or in fulfilling Entity’s indemnity obligations as to itself or any of its Agents in the absence of coverage. Entities may self-insure against the risks associated with the Scope of Work, but in such case, waive subrogation in favor of the TA respecting any and all claims that may arise. i. Workers’ Compensation and Employer’s Liability Insurance. Worker's Compensation coverage must meet statutory limits and Employer’s Liability Insurance must have minimum limits of $1 (one) million.
Insurance must include a Waiver of Subrogation in favor of the TA. ii. Commercial General Liability Insurance. The limit for Commercial General Liability Insurance in each contract and subcontract cannot be less than $5 (five) million. Commercial General Liability Insurance must be primary to any other insurance, name the TA as an Additional Insured, include a Separation of Interests endorsement and include a Waiver of Subrogation in favor of the TA.
iii. Business Automobile Liability Insurance. The limit for Business Automobile Liability Insurance in each contract and subcontract cannot be less than $5 (five) million. Insurance must cover all owned, non-owned and hired autos, and include a Waiver of Subrogation in favor of the TA. iv. Property Insurance. Property Insurance must cover an Entity’s and/or Agent’s own equipment as well as any materials to be installed. Property Insurance must include a Waiver of Subrogation in favor of the TA. v. Professional Liability Insurance. If deemed appropriate by Sponsor or an Entity in consideration of the work required for the Project, insurance should cover each Entity's and any Agent’s professional work on the Project. The limit for Professional Liability Insurance in each appropriate contract and subcontract should not be less than $1 (one) million. vi. Contractors’ Pollution Liability Insurance and/or Environmental Liability Insurance. If deemed appropriate by Sponsor or an Entity in consideration of the work required for the Project, insurance should cover potential pollution or environmental contamination or accidents. The limit for Pollution and/or Environmental Liability Insurance in each appropriate contract and subcontract should not be less than $1 (one) million. Such insurance must name the TA as an Additional Insured and include a October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 Waiver of Subrogation in favor of the TA.
vii. Railroad Protective Liability Insurance. Insurance is required if the Project will include any construction or demolition work within 50 feet of railroad tracks. The limit for Railroad Protective Liability Insurance in each appropriate contract and subcontract cannot be less than $2 (two) million per occurrence and $6 (six) million annual aggregate.
b) Excess or Umbrella Coverage. Sponsor and/or any other Entity may opt to procure excess or umbrella coverage to meet the above requirements, but in such case, these policies must also satisfy all specified endorsements and stipulations for the underlying coverages and include provisions that the policy holder's insurance is to be primary without any right of contribution from the TA. c) Deductibles and Retentions. Sponsor must ensure that deductibles or retentions on any of the above insurance policies are paid without right of contribution from the TA. Deductible and retention provisions cannot contain any restrictions as to how or by whom the deductible or retention is paid. Any deductible or retention provision limiting payment to the named insured is unacceptable.
In the event that any policy contains a deductible or self-insured retention, and in the event that the TA seeks coverage under such policy as an additional insured, Sponsor will ensure that the policy holder satisfies such deductible to the extent of loss covered by such policy for a lawsuit arising from or connected with any alleged act or omission of the Entity or Agents, even if neither the Entity nor Agents are named defendants in the lawsuit.
d) Claims Made Coverage. If any insurance specified above is provided on a claimmade basis, then in addition to coverage requirements above, such policy must provide that:
i. Policy retroactive date coincides with or precedes the Entity's start of work (including subsequent policies purchased as renewals or replacements).
ii. Entity will make every effort to maintain similar insurance for at least three (3) years following Project completion, including the requirement of adding all additional insureds.
iii. If insurance is terminated for any reason, each Entity agrees to purchase an extended reporting provision of at least three (3) years to report claims arising from work performed in connection with this Agreement. iv. Policy allows for reporting of circumstances or incidents that might give rise to future claims.
e) Failure to Procure Adequate Insurance. Failure by any Entity to procure sufficient insurance to financially support Section 4.1, Indemnity by Sponsor, of this Agreement does not excuse Sponsor from meeting all obligations of Section
4.1 and the remainder of this Agreement, generally.
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 Prior to beginning work under this Agreement, Sponsor must obtain, and produce upon request of the TA, satisfactory evidence of compliance with the insurance requirements of this section.
SECTION 5: Miscellaneous
5.1 Notices. All notices required or permitted to be given under this Agreement, excluding progress reports, the final report, and invoices, must be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by personal delivery or overnight courier, to the appropriate address indicated below or at such other place(s) that either Party may designate in written notice to the other. Notices are deemed received upon delivery if personally served, one (1) day after mailing if delivered via overnight courier, or two (2) days after mailing if mailed as provided above.
To TA: San Mateo County Transportation Authority
1250 San Carlos Avenue
P.O. Box 3006
San Carlos, CA 94070-1306
Attn: Dora Seamans
District/TA Secretary
To Sponsor: City of East Palo Alto
1960 Tate Street
East Palo Alto, CA 94303
Attn: Humza Javed, Public Works Director
5.2 No Waiver. No waiver of any default or breach of any covenant of this Agreement by either Party will be implied from any omission by either Party to take action on account of such default if such default persists or is repeated. Express waivers are limited in scope and duration to their express provisions. Consent to one action does not imply consent to any future action.
5.3 Assignment. Parties are prohibited from assigning, transferring or otherwise substituting their interests or obligations under this Agreement without the written consent of all other Parties.
5.4 Governing Law. This Agreement is governed by the laws of the State of California as applied to contracts that are made and performed entirely in California.
5.5 Compliance with Laws. In performance of this Agreement, the Parties must comply with all applicable Federal, State and local laws, regulations and ordinances.
5.6 Modifications. This Agreement may only be modified in a writing executed by both Parties.
5.7 Attorneys' Fees. In the event legal proceedings are instituted to enforce any provision of this Agreement, the prevailing Party in said proceedings is entitled to its costs, including reasonable attorneys' fees.
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2
5.8 Relationship of the Parties. It is understood that this is an Agreement by and between Independent Contractors and does not create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship other than that of Independent Contractor.
5.9 Ownership of Work. All reports, designs, drawings, plans, specifications, schedules, studies, memoranda, and other documents assembled for or prepared by or for, in the process of being assembled or prepared by or for, or furnished to Sponsor under this Agreement, are the joint property of the TA and Sponsor, and will not be destroyed without the prior written consent of the TA. The TA is entitled to copies and access to these materials during the progress of the Project and upon completion or termination of the Project or this Agreement. Sponsor may retain a copy of all material produced under this Agreement for its use in its general activities. This Section does not preclude additional shared ownership of work with other entities under contract with Sponsor for funding of the Project.
5.10 Non-discrimination. Sponsor and any contractors performing services on behalf of Sponsor will not discriminate or permit discrimination against any person or group of persons on the basis of race, color, religion, national origin or ancestry, age, sex, sexual orientation, marital status, pregnancy, childbirth or related conditions, medical condition, mental or physical disability or veteran’s status, or in any manner prohibited by federal, state or local laws.
5.11 Warranty of Authority to Execute Agreement. Each Party to this Agreement represents and warrants that each person whose signature appears hereon is authorized and has the full authority to execute this Agreement on behalf of the entity that is a Party to this Agreement.
5.12 Severability. If any portion of this Agreement, or the application thereof, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining portions of this Agreement, or the application thereof, will remain in full force and effect.
5.13 Counterparts. This Agreement may be executed in counterparts.
5.14 Attribution to the TA. Sponsor must include attribution that indicates work was funded with Measures A/W Funds from the TA. This provision applies to any project, or publication, that was funded in part or in whole by Measures A/W Funds. Acceptable forms of attribution include TA branding on Project-related documents, construction signs, public information materials, and any other applicable documents.
5.15 Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to its subject matter and supersedes any prior or contemporaneous written or oral agreement between the Parties on the same subject.
5.16 Digital and Electronic Signatures. Using a TA-approved method, this Agreement may be executed by the use of digital or electronic signatures in accordance with Government Code Section 16.5. The presence of a digital or electronic signature on this October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 Agreement will have the same force and effect as the use of a manual signature and constitutes a valid, binding commitment upon the Parties.
IN WITNESS WHEREOF, the Parties have hereunder subscribed their names the day and year indicated below.
CITY OF EAST PALO ALTO
By:
Name: Melvin Gaines
Its: City Manager
Approved as to Form:
Legal Counsel for the City of East Palo Alto
SAN MATEO COUNTY TRANSPORTATION
AUTHORITY
By:
Name: April Chan
Its: General Manager/CEO
Approved as to Form:
Legal Counsel for the TA
Exhibit A: Scope of Work Information
Exhibit B: Progress Reporting Template
Exhibit C: Permissible Costs for Reimbursement
Exhibit D: Reimbursement Claim Form
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 EXHIBIT A: SCOPE OF WORK INFORMATION
US 101/University Avenue Interchange Improvements and Bicycle/Pedestrian Overcrossing Project - Construction Phase
Sponsoring Agency: City of East Palo Alto
Contact: Humza Javed, Public Works Director, (650) 853-3130, [email protected], 1960 Tate Street, East Palo Alto, CA 94303 Implementing Agency: City of East Palo Alto
Contact: Humza Javed, Public Works Director, (650) 853-3130, [email protected], 1960 Tate Street, East Palo Alto, CA 94303 Overall Project Description:
The project will construct a dedicated Class I bicycle and pedestrian facility that includes a new bicycle/pedestrian overcrossing of US 101 along the north side of the existing US 101/University Avenue vehicular overpass. The bicycle/pedestrian overcrossing will be a 4-foot span structure approximately 560 feet long. On the east side of the freeway, a 12-foot Class I facility will be constructed from the south side of the northbound US 101/University Avenue loop off-ramp to the new structure. The facility will be constructed over a new embankment with side slopes of 4 to 1 or flatter. On the west side of the interchange, a 12-foot-wide Class I facility will be constructed from the structure to the northeast corner of the intersection of University Avenue and Woodland Avenue. The existing sidewalk will be converted to a landscaped buffer between the Class I facility and University Avenue. In order to minimize right-of-way impacts, the Project proposes to narrow the southbound University Avenue left and right turn lanes at Woodland Avenue from 12 feet to 11 feet wide and reduce the minimum median width from 6 feet to 4 feet.
The Project will also widen the existing southbound US 101 to University Avenue loop off-ramp from three lanes to four lanes to include two left-turn and two right-turn lanes. The northbound US 101 to southbound University Avenue loop off-ramp will be realigned to square-up with University Avenue with a tighter-radius-curve for pedestrian and bicyclist safety enhancement.
A Project Study Report (PSR) was approved for the US 101/University Avenue Interchange Improvements in December 1990. Due to the economy, the Project did not progress until 1998 when it was reactivated as part of a Master Redevelopment Project. Since then, the Project scope was expanded to include the bicycle and pedestrian facilities and has been through several review processes and approvals by Caltrans. The Project was environmentally cleared in November 2017.
The Project approval was obtained from Caltrans in January 2020. The Project recently completed the Final Project Specifications & Estimate (PS&E) and Right-of-Way approval.
Measure A and Measure W Funded Scope of Work:
The US 101/University Avenue Interchange Improvements and Bicycle/Pedestrian Overcrossing October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 Project proposes to improve the connectivity for pedestrians and bicyclists as well as relieve traffic congestion for the motorists at the US 101/University Avenue interchange. Improvements include the following:
- Improvement at the intersection of University Avenue/US 101 southbound off-ramp which includes widening of the off-ramp to accommodate dual left-turn lanes and dual right-turn lanes. This change is expected to result in improving traffic operations in the study area and reducing the queue lengths on the US 101 southbound off-ramp during both the AM and PM peak periods under existing and future traffic conditions; - Reconstruct a portion of University Avenue between US 101 and Woodland Avenue; - Reconstruct the northbound US 101 off-ramp to University Avenue. The improvements expected to reduce queuing on the US 101 northbound loop off-ramp, and enhance bicycle and pedestrian safety through the installation of Rectangular Rapid Flashing Beacons (RRFB) and improved crossing;
- Modifying existing traffic signals and enhancing efficiency at the interchange will potentially reduce vehicle idling and reduce Greenhouse Gas Emissions (GHG) emissions; - Construct a bicycle/pedestrian overcrossing of US 101 to the north of the existing US 101/University Avenue vehicular overpass. The separated bicycle/pedestrian facility will eliminate bicycle and auto weaving and reduce conflict with pedestrians; - Construct a Class I bikeway connecting the bicycle/pedestrian overcrossing to Woodland Avenue to the west, and Donohoe Street to the east and improve the University Avenue intersections at Woodland Avenue and Donohoe Street. The dedicated bicycle and pedestrian facilities are expected to enhance the sense of safety and increase walking and cycling which in turn will reduce Vehicle Miles Traveled (VMT) and GHG emissions; - Install new streetlights to accommodate the improved and new multi-modal facilities; and, - The Project’s landscaping element will establish drought tolerant and disease-resistant trees, shrubs and ground cover. Automated irrigation will be provided to supply water to new planting and maintain water to existing landscape. Smart controllers and low water use irrigation will be used to conserve water.
Scope of Work Schedule:
Begin End
Construction 03/2023 06/2025
Scope of Work Budget/ Source of Funding:
Funding plan for the Scope of Work including use of TA staff and/or consultant support is provided in the table below.
PHASE
MEASURE A
FUNDING
MEASURE W
FUNDING
OTHER SOURCES*
LIST FUND SOURCE AMOUNT TOTAL
Construction $2,666,800 $5,700,000
Federal: SB-1 Local
Partnership Program (LPP) $2,302,200
City: HPP $771,000 $12,440,000
Stanford Recreation
Mitigation Grant $1,000,000
Construction
Support $2,225,700 $0 None $0 $2,225,700
Total: $4,892,500 $5,700,000 $4,073,200 $14,665,700
* The other fund sources are provided for information purposes.
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 Cash Flow Projection for Measures A and W Funds
The cash flow projection is provided for informational purposes only.
Operating Responsibility: Caltrans
Maintenance Responsibility: Caltrans
Scope of Work Implementation Responsibility: City of East Palo Alto Scope of Work Oversight Responsibility: City of East Palo Alto October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 EXHIBIT B: PROGRESS REPORTING TEMPLATE
REPORTING PERIOD: FROM mm/dd/yyyy TO mm/dd/yyyy
SMCTA Project # 00XXX – [Project Title/Phases]
[Carryover to additional pages as necessary]
Contact: [Name, Title, Phone, email, address]
1) Scope:
[Describe Scope of Work here, specify Project limits, phases of Project. Identify the Measure A and/or Measure W funded components separately]
Status Summary: [Provide Status]
Issues: [List any issues, i.e. potential scope changes] ________________________________________________________________________________________________________ 2) Schedule: Original Baseline Current Baseline Current Forecast Major Milestones: Start Finish Start Finish Start Finish [Activity] MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY [Activity] MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY [Activity] MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY [Activity] MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY Progress This Reporting Period:
[Describe progress and activities]
Identify Separately Measure A and/or Measure W Funds Expended This Reporting Period: $ Future Activities, Next Reporting Period:
[Describe planned future activities]
Projected [Original Measure A and/or New Measure A and/or Measure W] Funds Expenditure Next Reporting Period: $ Issues: [List any issues, such as impacts to schedule]
________________________________________________________________________________________________________ October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 3) Scope of Work Total Budget:
4) Identify Scope of Work Under Measure A and/or Measure W Budget:
Phase/Activity
A B C D E F
Original
allocation
(per Funding
Agreement)
Current
allocation
(Per
Amendments)
Change in
allocation from
Approved/Funding
Agmt (B-A)
Total
Measure
[A/W]
Expended to
date
% of current
allocation
expended
(D/B)
% of Work
Completed
#DIV/0!
#DIV/0!
#DIV/0!
Total Scope of Work $0 $0 $0 $0 #DIV/0!
Issues: [List any issues, i.e. potential cost increases] _________________________________________________________________________________________________________ 5) Funding: [List additional sources as needed, Fill out the following matrix for each phase for the Scope of Work. i.e. environmental, design, etc.]
Issues: [List any issues such as changes in non-Measure [A/W] funding] Submit Progress Reports To: [email protected] or
SMCTA
Planning & Development
1250 San Carlos Avenue
San Carlos, CA 94070
A B C D E F
Phase/Activity
Original Budget
(per Funding
Agreement)
Updated Cost
Estimate
Total Change
from Approved
(B-A)
Total Expended
to Date
% of Revised
Budget
Expended
(D/B)
% of Work
Completed
- 0.00% 0.00%
- 0.00% 0.00%
- 0.00% 0.00%
Total Project - - - #DIV/0! -
Original Original % Current Current %
Estimated at
Completion EAC %
SMCTA #DIV/0! #DIV/0! #DIV/0!
Others:
Federal (specify) #DIV/0! #DIV/0! #DIV/0!
State (specify) #DIV/0!
Other (specify)
Total #DIV/0! - #DIV/0! - #DIV/0! -
Contribution Contribution Contribution
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 EXHIBIT C: DEFINITIONS OF ELIGIBLE COSTS FOR REIMBURSEMENT Project Initiation Documents (PID) - activities necessary to complete PIDs covered under the Scope of Work.
Environmental Studies – environmental studies costs, including determination of the appropriate environmental document, preparation of all preliminary engineering for each alternative, including geomantic layouts, determination of right-of-way needs, environmental technical studies (such as air, noise, energy, cultural resources and hazardous waste), and all other studies or activities necessary to prepare and finalize the appropriate documents for Project and environmental approval. An Environmental Impact Report (EIR) is required under the California Environmental Quality Act (CEQA), while the Environmental Assessment (EA) meets requirements of the National Environmental Policy Act (NEPA).
Design – design activities such as preparation of design studies; materials and foundation reports; drainage, hydrology and hydraulic reports; surveying and mapping; preparation of the plans, specifications and estimate; preparation of bid documents and Project files; preparation of permit applications and maintenance agreements; coordination of agency reviews and any other activities necessary to prepare final plans specifications and estimate (PS&E) for bid advertisement and award; and management oversight of these tasks except as limited in Section
2.2 (b) of the Agreement.
Right-of-Way Acquisition – all activities related to right-of-way including determination of right-of-way needs; title searches; preparation of appraisal maps, legal descriptions and plat maps; parcel appraisals and appraisal reviews; hazardous materials testing and analysis; preparation of right-of-way acquisition documents; activities involved with acquiring rights-ofway including negotiation with property owners and cost associated with condemnation proceedings (including legal costs, expert witness costs, etc., but not including costs related to claims for inverse condemnation), right-of-way capital costs and cost-to-cure impacts related to the acquisition. To the extent allowed by law, Sponsor shall undertake all best efforts so that cleanup of existing hazardous materials shall remain the liability of the property owner.
Services provided for right-of-way activities involved with property not necessary for the Measure A or Measure W Highway Program-funded Project as defined in the Scope of Work, and the associated costs for all such property, shall be at the sole expense of the Sponsor.
Any property not used for construction of the Project, or used for any purpose other than construction of the Project as defined in the Scope of Work, should be identified and the funding agencies should be informed. Any excess right-of-way shall be identified as early as possible in the Project design process and sold. The proceeds from the sale of such property shall be returned to the funding agencies, prorated based on the percentage of funds each agency contributed to the purchase of the property.
Construction – construction expenditures for the Project (construction capital, management and inspection, surveys, public outreach, and related activities) that are part of the Scope of Work agreed to by the TA. Sponsor must submit all change orders over $50,000 to the TA for review October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 and written approval before the TA will reimburse the Sponsor with Measure A Funds or Measure W Funds.
In addition, Measures A and W Funds are eligible for reimbursement of Sponsor’s Project management oversight expenses associated with the construction of the Project. This would include activities such as construction management inspection, expenses associated with reviewing proposed change orders, and activities involved with submitting final costs to the appropriate agencies to secure other leveraged funds. Expenditure of Measure A and Measure W Funds remains subject to the limits set forth in Section 2.2 (b) of the Agreement.
The Sponsor may include additional work beyond the Scope of Work for the Project at its own expense. The TA will require these costs to be segregated from the other item work expenses and paid for with non-Measure A or Measure W Highway Program funds.
Miscellaneous – fees from other agencies, including permit fees or reimbursement for review or oversight costs needed for the Project are eligible costs. However, the cost of permits or fees from the Project Sponsor will not be eligible. Utility relocation costs are eligible for reimbursement according to previous agreements establishing rights for those utilities. The costs for specialized equipment for testing, analysis or production of documents for Project-related work are also eligible.
October 2022 HIGHWAY PROGRAM 2021 CALL FOR PROJECTS
San Mateo County Transportation Authority/City of East Palo Alto 19181626.2 EXHIBIT D: REIMBURSEMENT CLAIM FORM
SMCTA Project ID:
SMCTA Project Allocation:
Claim Date:
Claim Number:
Claim Period:
Claim Amount:
Measure A Measure W
Consultant/Contractor/ Invoice % of % of % of Prior Total Life to Date Budget Prior Total Life to Date Budget Vendor Invoice # Total Fund Source1 Ttl Fund Source2 Ttl Measure A/W Ttl Measure A $ Measure A $ Balance Measure W $ Measure W $ Balance #### #### ####
#### #### ####
#### #### ####
#### #### ####
Total - - #### - #### - #### $ - - - $ - - -
Quarterly Progress Report included? Y/N
Please issue check payable to: Agency
Contact person
Address
$0.00
Funding Source
REIMBURSEMENT CLAIM
San Mateo County Measures A & W Funds