AGENDA
CITY OF UNION CITY/
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY MEETING
Tuesday, April 12, 2022
7:00 PM
City Hall- Council Chamber
34009 Alvarado-Niles Road
Union City, CA 94587
Meeting will Also be Held Via Teleconference. To access meeting, please see Teleconference Guidelines.
1. CALL TO ORDER
1.a. Pledge of Allegiance
1.b. Roll Call
Mayor Carol Dutra-Vernaci
Vice Mayor Jaime Patiño
Councilmember Emily Duncan
Councilmember Pat Gacoscos
Councilmember Gary Singh
2. UNFINISHED BUSINESS - None
3. PROCLAMATIONS AND PRESENTATIONS - None
4. ORAL COMMUNICATIONS
An individual speaker shall have three minutes to address the Council on non-agenda items under the Oral Communications section of the agenda. The Mayor may, in their discretion, lower the time limit to less than three minutes based on the number of speakers and/or business to be conducted by the City Council.
Members of the public who wish to speak to the Council under the City Council/RSA Agenda 1 Tuesday, April 12, 2022
first Oral Communications section are requested to complete a speaker card, giving their name and city of residence. If a speaker wants further notification from the City, the speaker may include a mailing address. Neither a speaker card or identification of name, city of residence or mailing address are not required to provide public comment but are requested for record keeping purposes.
4.a. Submitted Public Comment
5. CONSENT CALENDAR
All matters listed on the Consent Calendar are considered routine in nature and will be enacted by one motion. If discussion is required on a specific item, it will be removed from the Consent Calendar and considered separately.
5.a. Waived Further Reading of Proposed Ordinance
(This permits reading the title only in lieu of reciting the entire text of any proposed Ordinance.)
5.b. Approve the Minutes of the City Council Meetings Held on March 22, 2022 and April 5, 2022
5.c. Adopt a Resolution Authorizing the City Manager to Execute a Contractual Services Agreement with Rhythm Engineering, LLC, for the Innovative Deployments to Enhance Arterials (IDEA) Passive Pedestrian Detection Project, City Project No 17-27A, in the Amount of $188,476 and Appropriating $47,119 from the Traffic Signalization Fund
5.d. Adopt a Resolution Authorizing the Fourth Amendment to the Consulting Services Agreement Between the City of Union City and HdL Companies for Cannabis Application Review and
Consultation
5.e. Adopt a Resolution Accepting Work for the Highway Safety Improvement Program (HSIP)Cycle 8 Traffic Signal
Improvements, City Project No. 17-18
5.f. Adopt a Resolution Initiating Proceeding for the Levy and Collection of Assessments for the City-Wide Landscape & Lighting District No. 3 for Fiscal Year 2022/23
5.g. Adopt A Resolution In Support of Locating A Trauma Center In Southern Alameda County at Washington Hospital’s Morris Hyman Critical Care Pavilion.
5.h. Adopt a Resolution Approving an Amendment to the City’s Compensation Plan and Salary Schedule for Unrepresented Police Department Positions in Conformance with California Code of Regulations, Title 2, Section 570.5
5.i. Adopt a Resolution Authorizing the City to Participate in a $4 Million Master Lease Purchase Program Offered by Bank of America and Approving the City Manager to Execute the
Related Documents after Approval as to Form by the City City Council/RSA Agenda 2 Tuesday, April 12, 2022
Attorney
6. PUBLIC HEARINGS - None
7. CITY MANAGER REPORTS
7.a. Adopt a Resolution Opposing Initiative 21-0042A1, the Taxpayer Protection and Government Accountability Act
7.b. Informational Report on the Solid Waste and Recycling Collection Service Rates for Fiscal Year 2022-2023 and
Related Impact of SB 1383 Compliance
7.c. Informational Report on the Fiscal Year 2020-2021 Preliminary Year-End Financial Results of the General Fund; and Adoption of a Resolution Authorizing the Use of Fifty Percent (50%) of the General Fund's Fiscal Year 2020-2021 Unanticipated
Savings to Fund Unfunded Liabilities and Authorizing the Use of the Remaining Fifty Percent (50%) for Reinvestment in
Currently Unfunded, One-Time, Capital Projects
8. SUCCESSOR AGENCY TO REDEVELOPMENT AGENCY -
None
9. AUTHORITIES AND AGENCIES - None
10. CITY COMMISSION / COMMITTEE REPORTS - None
11. SCHEDULED ORAL COMMUNICATION - None
12. ITEMS REFERRED BY COUNCIL
13. GOOD OF THE ORDER
14. CLOSED SESSION - None
15. ADJOURNMENT
A complete agenda packet is available for review at City Hall or on our website www.unioncity.org
Any writings or documents provided to a majority of City Council members regarding any item on this agenda will be made available for public inspection at the City Clerk's Counter at City Hall, located at 34009 Alvarado-Niles Road, Union City, California, during normal business hours.
Assistance will be provided to those requiring accommodations for disabilities in compliance with the Americans with Disabilities Act of 1990.
Interested person must request the accommodation at least two working days in advance of the meeting by contacting the City Clerk at (510) 675- 5348.
TELECONFERENCING GUIDELINES FOR THE CITY OF UNION CITY REGULAR COUNCIL
MEETING
City Council/RSA Agenda 3 Tuesday, April 12, 2022
COVID-19 Notice: Consistent with State of California Executive Order No. 29-20 dated March 17, 2020, the City Council will be participating in public meetings via phone/video conferencing. The City Council Chambers will not be open to the public. Members of the public can observe and address the Council using the below technological processes.
How to watch the meeting remotely:
1. Comcast TV Channel 15 (UCTV 15)
2. Live stream https: https://www.unioncity.org/199/City-Meetings-Video How to Address Council:
Written Comment: To provide written comment on an item on the agenda or to address the Council about an issue during Public Comment, you may send an email to [email protected]. Please include the phrase "public comment" in the subject line and note the agenda item number that you want to address. Written comments received before 3:00 p.m. will be e-mailed to the City Council and made publicly available. Comments received after 3:00 p.m. will be read into the record for up to the first 300 words (approximately 3 minutes consistent with the time limit provided for public speakers) and added to the official record.
Public Comment via Teleconference: Members of the public may address the Council on a matter on the agenda or during the Public Input portion of the meeting. Raise your virtual hand to notify the host that you would like to speak during that portion.
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Or Telephone:
Dial (for higher quality, dial a number based on your current location):
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ADA Accessibility: If you require a reasonable modification or accommodation for a disability, please City Council/RSA Agenda 4 Tuesday, April 12, 2022
email the
City Clerk at [email protected] a minimum of two (2) business days prior to the Council meeting. 3511412.1
City Council/RSA Agenda 5 Tuesday, April 12, 2022
Agenda Item
ATTACHMENTS:
Description Type
Written Public Comment - Overton Attachment
City Council/RSA Agenda 6 Tuesday, April 12, 2022
4/6/22, 1:09 PM Mail - Anna M. Brown - Outlook
https://outlook.office365.com/mail/id/AAMkAGQ5M2I3MmQyLTlmNzctNGM0ZS1iMmNkLTI1YzRhYjg0ZTQ2MgBGAAAAAACM05ubLbLATamVpjYkTD… 1/1 Please enter to Record for the April 12, 2022 City Meeting.
Revo
Mon 4/4/2022 6:13 PM
To: Anna M. Brown <[email protected]>;UCMayor <[email protected]> WARNING: External email. Please verify sender before opening attachments or clicking on links.
Attn: Anna Brown and Carol Dutra-Vernaci (Mayor)
We wish this request for information be put to the record and covered during the upcoming City Hall Meeting for April 12, 2022.
Good evening, my name is Shane Overton. The city council knows how long we have lived here and our address is already on file for validation. As I may be unavailable to make this presentation in person I am sending it via email at this time. Should I not be able to make the meeting I know I can trust this will be read on open address.
We as long time residents on behalf of ourselves and other affected residents who live along and use Union City Boulevard between Whipple and Lowry are asking one last time where the Union City Boulevard Project is as to pre-allocated budget and scheduling for completion that has yet to be met.
To our knowledge the opportunity to complete this project has been ignored. Why? We would like this question presented, addressed, and answered “When will the project commence and when will it be completed? What additional changes are affecting things as this is now past due for completion and we are being told the money is there.
We request the project be finished and no more delays occur.
Thank You for your time.
--
Shane Overton
CONFIDENTIALITY and DISCLOSURE NOTICE: This e-mail message, including any specific business or personal information, or attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is strictly prohibited under local, state, and federal law. Be forewarned misuse of this message will result in legal and financial recourse being sought and enforced. If you are not the intended recipient, please contact the sender by phone and reply email and destroy all copies of the original message.
City Council/RSA Agenda 7 Tuesday, April 12, 2022
Agenda Item
ATTACHMENTS:
Description Type
Draft 03222022sp Attachment
Draft 03222022reg Attachment
Draft 04052022sp1 Attachment
Draft 04052022sp2 Attachment
City Council/RSA Agenda 8 Tuesday, April 12, 2022
MINUTES
CITY OF UNION CITY
CITY COUNCIL SPECIAL MEETING
Tuesday, March 22, 2022
5:30 PM
Held Via Teleconference.
1. CALL TO ORDER
Mayor Dutra-Vernaci called the meeting to order at 5:30 p.m.
Roll Call Present: Councilmember Duncan, Gacoscos, Singh, Vice Mayor Patiño, Mayor Dutra-Vernaci
Absent: None
2. ORAL COMMUNICATIONS - None
3. CLOSED SESSION
3.a. PUBLIC EMPLOYEE APPOINTMENT
Gov. Code § 54957
Title: Information Technology Director
3.b. PUBLIC EMPLOYEE APPOINTMENT
Gov. Code § 54957
Title: Human Resources Director
3.c. CONFERENCE WITH LABOR NEGOTIATORS
Gov. Code Section 54957.6
Agency designated representative for Employee Organizations:
Lilybell Nakamura, Chief Human Resources Officer
City Council/RSA Agenda 9 Tuesday, April 12, 2022
Jeff Bailey, IEDA Representative
For Unrepresented Employees: Joan Malloy, City Manager
Employee organization:
Management Employees Group (MEG)
Professional Employees Group (PEG)
Service Employees International Union, Local 1021 (SEIU) Unrepresented employees:
Employees subject to the Compensation and Benefit Plan for Unrepresented Employees
Employees not subject to the Compensation and Benefit Plan for Unrepresented Employees
Report out of closed session:
It was moved by Mayor Dutra-Vernaci and seconded by Councilmember Duncan to appoint Mario Vallejo as Information Technology Director. The motion was carried by a unanimous roll call vote.
It was moved by Mayor Dutra-Vernaci and seconded by Vice Mayor Patiño to appoint Lilybell Nakamura as Human Resources Director. The motion was carried by a unanimous roll call vote.
4. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 6:39 p.m.
Respectfully submitted,
Anna M. Brown, CMC
City Clerk
City Council/RSA Agenda 10 Tuesday, April 12, 2022
AGENDA
CITY OF UNION CITY/
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY MEETING
Tuesday, March 22, 2022
7:00 PM
Held Via Teleconference
1. CALL TO ORDER
1.a. Pledge of Allegiance
1.b. Roll Call
2. UNFINISHED BUSINESS - None
3. PROCLAMATIONS AND PRESENTATIONS
3.a. Proclaiming March 2022 as the 20th Annual March for Meals Month Proclamation accepted by Tammy Duran, Meals on Wheels Program Manager
3.b. Proclaiming March 2022 as American Red Cross Month Proclamation accepted by Michael Gregory, Volunteer American Red Cross Northern California Coastal Region.
3.c. Bay Adapt: Regional Strategy for a Rising Bay Presentation; Jessica Fain, San Francisco Bay Conservation and Development Commission Presentation given by Jessica Fain of the San Francisco Bay Conservation and Development Commission.
4. ORAL COMMUNICATIONS
Written communication submitted by Kendahyl Wallace (Attachment A).
Public comment was made by Denisse Anzoategui and Saad Muhammad.
5. CONSENT CALENDAR
City Council/RSA Agenda 11 Tuesday, April 12, 2022
It was moved by Councilmember Singh and seconded by Councilmember Duncan to approve consent calendar items 5.a. though 5.h. The motion was carried by a unanimous roll call vote.
5.a. Waived Further Reading of Proposed Ordinance
(This permits reading the title only in lieu of reciting the entire text of any proposed Ordinance.)
5.b. Approved the Minutes of the City Council Meetings Held on March 8, 2022
5.c. Second Reading and Adoption Ordinance No. 897-22 Approving the Development Agreement (DA-22-001) for the Windflower Block 2 Project for the Purpose of Extending the Project Approvals
5.d. Adopted Resolution No. 5906-22 Authorizing the City Manager or their Designee to Submit the Required Funding Application and to Execute the Certifications and Assurances and Authorized Agent Forms for the LowCarbon Transit Operations Program (LCTOP) Project, Electric Vehicle Charging Infrastructure for Union City Transit Fleet, in the Amount of $215,572 and to Place the Award in the Transit Fund (5110), City Project No. 20-04
5.e. Adopted Resolution No. 5907-22 Accepting Work for the 2020-21 Sidewalk and Curb and Gutter Repair Project, City Project No. 20-03
5.f. Adopted Resolution No. 5908-22 Authorizing an Amendment to the Authorized Position List of the Fiscal Year 2021-22 and 2022-23 Operating Budget to add a Finance Specialist III Position, a Human Resources Manager Position, a Human Resource Director Position, and an Information Technology Director Position; and Remove From the Authorized Position List the Human Resources Analyst II Position, the Chief Human Resource Officer Position, and the Chief Information Officer Position
5.g. Adopted Resolution No. 5909-22 Approving the City Manager to Authorize the Advance Purchase of Park Improvement Equipment Prior to Award of Construction Contract for the Old Alvarado/Cesar Chavez Parks Improvement Project, City Project No. 21-13
5.h. Adopted Resolution No. 5910-22 Appointing Individuals to Serve on the Arts and Culture Commission
6. PUBLIC HEARINGS
6.a. Adopt a Resolution Approving Site Development Review (SD-21-003), Use Permit (UP-21-005) and Variance (V-21-002) for a Proposed Addition to an Existing Veterinary Clinic at 33663 Mission Blvd (APN 486-6-33) in the Community Commercial Zoning District
Brandon DeLucas, Associate Planner, presented the staff report and responded to questions from Council.
Mayor Dutra-Vernaci opened the public hearing. There was no public comment. Mayor Dutra-Vernaci closed the public hearing.
City Council/RSA Agenda 12 Tuesday, April 12, 2022
Councilmembers provided additional comment. It was moved by Councilmember Gacoscos and seconded by Vice Mayor Patiño to approve Resolution No. 5911-22 Approving Site Development Review (SD-21-003), Use Permit (UP-21-005) and Variance (V-21-002) for a Proposed Addition to an Existing Veterinary Clinic at 33663 Mission Blvd (APN 486-6-33) in the Community Commercial Zoning District. The motion was carried by a unanimous roll call vote.
7. CITY MANAGER REPORTS
7.a. Receive Informational Report on 2021 Fireworks Season and Education Plans for 2022 Fireworks Season
Deputy City Manager Mark Evanoff presented the staff report and responded to questions from Council. City Councilmembers provided comment.
Public comment was given by Jesse Garrett.
The item was informational only and required no formal action from the Council.
7.b. Adopt a Resolution Approving an Amendment to the Compensation and Benefit Plan for Unrepresented Employees and Approving an Amendment to the City’s Salary Schedule in Conformance with California code of Regulations, Title 2, Section 570.5
City Manager Joan Malloy presented the staff report. There were no questions of comments from Council.
It was moved by Councilmember Singh and seconded by Councilmember Duncan to adopt Resolution No. 5912-22 Approving an Amendment to the Compensation and Benefit Plan for Unrepresented Employees and Approving an Amendment to the City’s Salary Schedule in Conformance with California code of Regulations, Title 2, Section 570.5. The motion was carried by a unanimous roll call vote.
8. SUCCESSOR AGENCY TO REDEVELOPMENT AGENCY - None
9. AUTHORITIES AND AGENCIES - None
10. CITY COMMISSION / COMMITTEE REPORTS
10.a. Annual Report to the City Council from the Sales Tax &Utility Users' Tax Oversight Committee
Finance Director Jackie Acosta presented the staff report, stating the Sales Tax & Utility Users’ Tax Oversight Committee found that the Measure AA sales tax and the Measure WW utility users’ tax revenues received in FY 2020-2021 were accounted for in the City’s General Fund as intended to maintain service levels as determined by the City Council’s adopted budget.
Staff responded to questions from Council. Councilmembers provided comment.
It was moved by Councilmember Duncan and seconded by
Councilmember Gacoscos to accept the finding of the Sales Tax & Utility City Council/RSA Agenda 13 Tuesday, April 12, 2022
Users’ Tax Oversight Committee that the Measure AA sales tax and the Measure WW utility users’ tax revenues received in FY 2020-2021 were accounted for in the City’s General Fund as intended to maintain service levels as determined by the City Council’s adopted budget. The motion was carried by a unanimous roll call vote.
11. SCHEDULED ORAL COMMUNICATION - None
12. ITEMS REFERRED BY COUNCIL
Councilmember Gacoscos reported on her attendance of the Housing Authority meeting and stated she will attend the Human Relations Commission meeting on March 23.
Vice Mayor Patiño reported on his attendance of the National League of Cities Congressional Cities Conference held in Washington, DC.
Councilmember Duncan stated the East Bay Division League of California Cities meeting will be held at the end of the month, and that Vice Mayor Patiño will attend on her behalf.
Mayor Dutra-Vernaci reported on her attendance of meetings of the Alameda County Transportation Commission and Metropolitan Transportation Commission.
13. GOOD OF THE ORDER
Councilmember Singh reported a feral cat issue at the U.S. Post Office on Alvarado-Niles Road in addition to an unhoused person sleeping in the bushes of the same site.
Vice Mayor Patiño stated, given the current gas prices, now was a good time to stay local and spend your money with Union City businesses.
Councilmember Gacoscos stated the Sister City Festival will be held on August 7, 2022, at the Mark Green Sports Center. Tickets will be offered for $20.00 each.
Councilmember Gacoscos reported on the special event held at Kennedy Center, when the City hosted United States Secretary of Health and Human Services, Javier Becerra.
14. CLOSED SESSION - None
15. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 9:21 p.m.
Respectfully submitted,
Anna M. Brown, CMC
City Clerk
City Council/RSA Agenda 14 Tuesday, April 12, 2022
MINUTES
CITY OF UNION CITY
CITY COUNCIL
SPECIAL MEETING
Tuesday, April 5, 2022
4:55 PM
Held Via Teleconference
1. CALL TO ORDER
Mayor Dutra-Vernaci called the meeting to order at 5:05 p.m.
1.a. Roll Call - Present: Councilmembers Duncan, Gacoscos, Singh, Vice Mayor Patiño, Mayor Dutra-Vernaci
Absent: None
2. ORAL COMMUNICATIONS - None
3. CONSENT CALENDAR
3.a. Adopt a Resolution Finding That There Is a Proclaimed State of Emergency; Finding That Meeting in Person Would Present Imminent Risks to the Health or Safety of Attendees as a Result of the State of Emergency; and Authorizing Remote Teleconferenced Meetings of the Legislative Bodies of the City of Union City for the 30-Day Period Beginning April 5 Pursuant to AB 361
It was moved by Vice Mayor Patiño and seconded by Councilmember Gacoscos to adopt Resolution No. 5913-22 Finding That There Is a Proclaimed State of Emergency; Finding That Meeting in Person Would Present Imminent Risks to the Health or Safety of Attendees as a Result of the State of Emergency; and Authorizing Remote Teleconferenced Meetings of the Legislative Bodies of the City of Union City for the 30-Day Period Beginning April 5 Pursuant to AB 361. The motion was carried by unanimous roll call vote.
4. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 5:07 p.m.
Respectfully submitted,
City Council/RSA Agenda 15 Tuesday, April 12, 2022
Anna M. Brown, CMC
City Clerk
City Council/RSA Agenda 16 Tuesday, April 12, 2022
MINUTES
CITY OF UNION CITY
CITY COUNCIL SPECIAL MEETING
Tuesday, April 5, 2022
5:00 PM
Held Via Teleconference
1. CALL TO ORDER
Mayor Dutra-Vernaci called the meeting to order at 5:09 p.m.
Roll Call Present: Councilmembers Duncan, Gacoscos, Singh, Vice Mayor Patiño, Mayor Dutra-Vernaci
Absent: None
2. ORAL COMMUNICATIONS - None
3. CLOSED SESSION
3.a. CONFERENCE WITH LABOR NEGOTIATORS
Gov. Code Section 54957.6
Agency designated representative for Employee Organizations:
Lilybell Nakamura, Chief Human Resources Officer
Jeff Bailey, IEDA Representative
For Unrepresented Employees:
Lilybell Nakamura, Chief Human Resources Officer
Employee organization:
Management Employees Group (MEG)
Professional Employees Group (PEG)
Service Employees International Union, Local 1021 (SEIU) City Council/RSA Agenda 17 Tuesday, April 12, 2022
Unrepresented employees:
Following Classifications not subject to the Compensation and Benefit Plan for Unrepresented Employees:
· Police Cadet
· Police Officer Trainee
· Police Reserve
4. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 6:01 p.m. with no reportable action.
Respectfully submitted,
Anna M. Brown, CMC
City Clerk
City Council/RSA Agenda 18 Tuesday, April 12, 2022
Agenda Item
DATE: 4/12/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: MARILOU AYUPAN, PUBLIC WORKS DIRECTOR
SUBJECT: ADOPT A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A CONTRACTUAL SERVICES AGREEMENT WITH RHYTHM
ENGINEERING, LLC, FOR THE INNOVATIVE DEPLOYMENTS TO
ENHANCE ARTERIALS (IDEA) PASSIVE PEDESTRIAN DETECTION
PROJECT, CITY PROJECT NO. 17-27A, IN THE AMOUNT OF $188,476, AND APPROPRIATING $47,119 FROM THE TRAFFIC SIGNALIZATION FUND
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute a Contractual Services Agreement with Rhythm Engineering, LLC, for the Innovative Deployments to Enhance Arterials (IDEA) Passive Pedestrian Detection Project, City Project No. 17-27A, in the amount of $188,476, and appropriating $47,119 from the Traffic Signalization Fund.
STRATEGIC PLAN ALIGNMENT
This agenda item is in alignment with the following:
Goal D, Strategy 2: Environmental Sustainability and Infrastructure – Implement the City’s capital improvement plan.
BACKGROUND
In 2017, Public Works staff applied for grant funding under the Metropolitan Transportation Commission’s (MTC) Innovative Deployments to Enhance Arterials (IDEA) Grant program. The IDEA Grant program was designed by MTC to help cities, counties and transit agencies deploy advanced technologies to enhance mobility, sustainability and safety along major arterials. The City’s IDEA Grant application was subsequently selected for approval by MTC staff and, at its regular meeting on September 25, 2018, the City Council passed Resolution No. 5391-18, approving the project funding agreements with MTC.
City Council/RSA Agenda 19 Tuesday, April 12, 2022
The IDEA Grant objectives in City Project No. 17-27 Traffic Signal Control Upgrades primarily include implementation of Automated Traffic Signal Performance Measures (ATSPM), Adaptive Signal Control Technology (ASCT) and a new Central Traffic Signal Control System. At its regular meeting on August 11, 2020, the City Council passed Resolution No. 5636-20, awarding a contract to begin construction of some the components of the project. Staff now recommends awarding a contract to Rhythm Engineering, LLC, for construction of the remaining components, collectively called passive pedestrian detection (IDEA Passive Pedestrian Detection Project), which includes both bicycle detection at intersections with bicycle lanes and an advanced pedestrian detection system at four (4) signalized intersections.
The implementation of passive pedestrian detection will improve arterial operations and safety at the following four (4) locations that have been selected by the City and MTC based on heavy crosswalk usage near schools and shopping centers:
1. Alvarado Boulevard and Dyer Street
2. Alvarado-Niles Road and Hop Ranch Road
3. Alvarado-Niles Road and RoyalAnn Drive
4. Decoto Road and Meyers Drive
The IDEA Passive Pedestrian Detection Project consists of dynamic call placement and a phase extension system that will automate pedestrian and bicycle detection. This is primarily achieved via sensor technology in cameras capable of classifying objects and pedestrians in real time. The system also improves the level of service by optimizing traffic signal operations for automobiles and transit. It automatically extends walk phases to ensure pedestrians are cleared of the intersection, which will improve safety for both pedestrians and bicyclists. Passive pedestrian detection is also able to respond to a sudden influx of pedestrian traffic during office hours, school hours, and specialevents.
DISCUSSION
The system requirements for this project were prepared through a joint effort between Union City staff, MTC staff and an MTC consultant, DKS Associates. A request for proposal (RFP) including these system requirements was released on December 16, 2021. Four (4) proposals were received and opened on January 24, 2022. After scoring the proposals, the two (2) highest scoring firms were invited to participate in demonstrating their proposed systems for further consideration during the week of March 7-10, 2022. After thorough review, staff recommends awarding the contract to Rhythm Engineering, LLC, for their Cyclops product (see Attachment A for Consultant Services Agreement, including vendor proposal).
Rhythm Engineering, LLC, is the sole provider of the Cyclops artificial intelligence system, which is based upon the same technology used in autonomous vehicles to recognize, track, and count pedestrians and bicycles. The accuracy of this technology is proven to surpass 95% and is not impacted by climate harshness, sun glare, fog, or other weather-related challenges. The object recognition algorithm detects and tracks pedestrians in the crosswalk over pre-defined detection zones until the pedestrian has reached the sidewalk in the desired direction.
City staff also found the following factors favoring Rhythm Engineering, LLC, over the competition:
1. A superior user interface compared to the competition.
2. Use of Convolution Neural Networks developed by Google, Nvidia and Intel.
3. Installation by Bear Electrical Solutions, which has verified good references.
The Cyclops is a relatively new product entry in this market and references from previous installations in other cities expressed overall satisfaction with their systems. City staff believes Rhythm Engineering, LLC’s City Council/RSA Agenda 20 Tuesday, April 12, 2022
Cyclops product is best suited to achieve the project objectives.
FISCAL IMPACT
There is no impact to the General Fund. The project is funded through the MTC IDEA Grant and Traffic Signalization funds (Fund 2610).
The total contract amount is $188,476, for which the MTC’s 75% share will be $141,357 and the City 25% share will be $47,119. The use of Traffic Signalization funds, Account No. 2610-3199-91727-54111, will require a supplemental budget appropriation because staff originally intended to use Gas Tax Funds for the City match, however, to better comply with AB 1600, the City should use developer impact fees in the Traffic Signalization Fund for the City’s match.
RECOMMENDATION
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute a Consultant Services Agreement with Rhythm Engineering, LLC, in the amount of $188,476, for the Innovative Deployments to Enhance Arterials (IDEA) Passive Pedestrian Detection Project, City Project No. 17-27A, and appropriating $47,119 from the unassigned balance of the Traffic Signalization Fund to Account Number 2610-3199-91727-54111 to fund the City’s required 25% match.
Prepared by:
Murray Chang, Civil Engineer III
Submitted by:
Marilou Ayupan, Public Works Director
ATTACHMENTS:
Description Type
Attachment A - Contractual Services Agreement with Rhythm Engineering, LLC
Attachment
Attachment B- MTCMaster Funding Agreement Attachment
Resolution Resolution
City Council/RSA Agenda 21 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 1 of 53
CONTRACTUAL SERVICES AGREEMENT BETWEEN
THE CITY OF UNION CITY
AND
RHYTHM ENGINEERING, LLC
FOR
IDEA PASSIVE PEDESTRIAN DETECTION PROGRAM
CITY PROJECT NO. 17-27A
This Agreement for consulting services is made by and between the City of Union City, a municipal corporation, (“City”) and Rhythm Engineering, LLC a Kansas limited liability company, with offices located at 14019 W. 95th St., Lenexa, KS 66215, (“Consultant”), (together referred to as the “Parties”) as of April 1, 2022 (the “Effective Date”).
Section 1. Services. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A and incorporated herein, at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on December 31, 2022 and Consultant shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time is of the Essence. Time is of the essence. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to timely finish the Scope of Work, to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant’s obligations hereunder.
1.5 Public Works Requirements. Because the services described in Exhibit A include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the services constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, Consultant is required to comply with the provisions of the Labor Code applicable to public works, to the extent set forth in Exhibit
C. Consultant shall waive, indemnify, hold harmless, and defend City concerning any liability arising out of Labor Code Section 1720 et seq.
City Council/RSA Agenda 22 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 2 of 53 Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed One Hundred Eighty-Eight Thousand Four Hundred Seventy-Six Dollars, ($188,476) notwithstanding any contrary indications that may be contained in Consultant’s proposal for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant’s proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
• Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; • Project name & number if applicable;
• Purchase Order number to expedite payment;
• Contract termination date;
• The beginning and ending dates of the billing period; • A task summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; • At City’s option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; • The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder; • The Consultant’s signature;
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
City Council/RSA Agenda 23 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 3 of 53
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within 60 days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.
2.5 Hourly Rate/Fees. Unless the services provided are for a lump sum or flat fee, fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation cost proposal attached hereto as Exhibit B. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit B, the Agreement shall prevail.
2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B, attached hereto and incorporated herein. Reimbursable expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses shall not include a mark-up and are billed as a direct costs. In no event shall expenses be advanced by the City to the Consultant. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
2.10. Business License. The Consultant is not authorized to perform services or incur costs whatsoever under the terms of this Agreement until Consultant applies for and has been issued a business license from the City pursuant to Title 5 of the Union City Municipal Code.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records City Council/RSA Agenda 24 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 4 of 53 and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, longdistance telephone or other communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence that such insurance is in effect to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Required Coverage. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
COVERAGE TYPE OF INSURANCE MINIMUM LIMITS
A Commercial General Liability
Premises Liability; Products and
Completed Operations;
Contractual Liability; Personal
Injury and Advertising Liability
$1,000,000 per occurrence;
Bodily Injury and Property
Damage
$2,000,00 in the aggregate;
Commercial general coverage
shall be at least as broad as
Insurance Services Office
Commercial General Liability
occurrence form CG 0001
(most recent edition) covering
comprehensive General
Liability on an “occurrence”
basis
B Commercial or Business
Automobile Liability
All owned vehicles, hired or
leased vehicles, non-owned,
borrowed and permissive uses.
Personal Automobile Liability is
acceptable for individual
contractors with no transportation
or hauling related activities
$1,000,000 per occurrence;
Any Auto; Bodily Injury and
Property Damage.
Automobile coverage shall be
at least as broad as Insurance
Services Office Automobile
Liability form CA 0001 (most
recent edition), Code 1 (any
auto). No endorsement shall
City Council/RSA Agenda 25 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering, LLC Page 5 of 53 be attached limiting the
coverage.
C Workers’ Compensation (WC)
and Employers Liability (EL)
Required for all contractors with
employees
WC: Statutory Limits
EL: $100,000 per accident for
bodily injury or disease.
Consultant may rely on a selfinsurance program to meet those requirements, but only if
the program of self-insurance
complies fully with the
provisions of the California
Labor Code. The insurer shall
waive all rights of subrogation
against the City and its
officers, officials, employees,
and volunteers for loss arising
from work performed under
this Agreement
D Professional Liability/Errors &
Omissions
Includes endorsements of
contractual liability
$1,000,000 per occurrence
$2,000,000 policy aggregate;
Any deductible or self-insured
retention shall not exceed
$150,000 per claim
4.2 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. All required insurance shall be maintained during the entire term of the Agreement with the following exception: Insurance policies and coverage(s) written on a claims-made basis shall be maintained during the entire term of the Agreement and until three (3) years following termination and acceptance of all work provided under the Agreement, with the retroactive date of said insurance (as may be applicable) concurrent with the commencement of activities pursuant to this Agreement b. All insurance required above with the exception of Professional Liability, Personal Automobile Liability, Workers’ Compensation and Employers Liability, shall be endorsed to name as additional insured: City of Union City, its City Council, and all City officers, agents, employees, volunteers and representatives.
c. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance covered shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. d. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City.
City Council/RSA Agenda 26 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 6 of 53 e. Certificates of Insurance: Before commencing operations under this Agreement, Consultant shall provide Certificate(s) of Insurance and applicable insurance endorsements, in form and satisfactory to City, evidencing that all required insurance coverage is in effect. The City reserves the rights to require the Consultant to provide complete, certified copies of all required insurance policies.
f. Subcontractors: Consultant shall include all subcontractors as an insured (covered party) under its policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements stated herein. g. Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
i. The retroactive date of the policy must be shown and must be before the date of the Agreement.
ii. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates.
iii. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must purchase an extended period coverage for a minimum of three (3) years after completion of work under this Agreement.
iv. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement.
4.3 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. Insurance shall be maintained through an insurer with a minimum A.M. Best Rating of A- or better, with deductible amounts acceptable to the City. Acceptance of Consultant’s insurance by City shall not relieve or decrease the liability of Consultant hereunder. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the Consultant. b. Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
c. Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
City Council/RSA Agenda 27 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 7 of 53 d. Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss.
Consultant agrees to obtain any endorsements that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the consultant, its employees, agents, and subcontractors.
4.4 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
• Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
• Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or • Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES.
Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City.
The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days, to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any type to express or implied indemnity against the Indemnitees.
Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, City Council/RSA Agenda 28 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering, LLC Page 8 of 53 Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent.
Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant City Council/RSA Agenda 29 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 9 of 53 for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all work product, including, but not limited to documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; City Council/RSA Agenda 30 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 10 of 53
8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.
9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged City Council/RSA Agenda 31 Tuesday, April 12, 2022
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10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement.
Consultant understands that, if this Agreement is made in violation of Government Code § 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by the City Manager, or his designee, identified as Murray Chang, Civil Engineer III ("Contract Administrator").
All correspondence, meeting documation, invoices and project deliverables shall be directed to or through the Contract Administrator.
Murray Chang, P.E.
Civil Engineer III
City of Union City
34009 Alvarado-Niles Road
Union City, CA 94587
[email protected]
10.10 Notices. Any written notice to Consultant shall be sent to:
City Council/RSA Agenda 32 Tuesday, April 12, 2022
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10.10 Notices. Any written notice to Consultant shall be sent to:
Reggie Chandra, PE, PhD
President and CEO
Rhythm Engineering, LLC
14019 W. 95th Street
Lenexa, KS 66215
[email protected]
All other written notices to City shall be sent to:
Joan M. Malloy Kristopher J. Kokotaylo,
City Manager City Attorney
City of Union City City of Union City
34009 Alvarado Niles Rd. with a copy to 34009 Alvarado Niles Rd.
Union City, CA 94587 Union City, CA 94587
10.12 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. _______________________________
__________
Seal and Signature of Registered
Professional with report/design
responsibility.
10.13 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, and C represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
Exhibit A Scope of Services & Schedule
Exhibit B Compensation Schedule
Exhibit C Public Works Requirements
Exhibit D Federally Required Clauses
10.14 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PAGE
City Council/RSA Agenda 33 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 13 of 53 The Parties have executed this Agreement as of the Effective Date.
CITY OF UNION CITY RHYTHM ENGINEERING, LLC
____________________________ ______________________________
JOAN MALLOY, CITY MANAGER REGGIE CHANDRA, PRESIDENT AND CEO ATTEST:
___________________________
ANNA M. BROWN, CITY CLERK
APPROVED AS TO FORM:
____________________________
KRISTOPHER J. KOKOTAYLO
CITY ATTORNEY
3695229.2
Version 3.2.21
City Council/RSA Agenda 34 Tuesday, April 12, 2022
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EXHIBIT A
SCOPE OF SERVICES & SCHEDULE
City Council/RSA Agenda 35 Tuesday, April 12, 2022
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UNDERSTANDING AND APPROACH
Project Approach & Methodology
Rhythm Engineering will work with the City of Union City and the selected installation subcontractor to provide a turnkey solution to meet the specifications of this RFP for the use of Passive Pedestrian Detections System at four intersections as depicted on the map below.
1. Alvarado Boulevard and Dyer Street
2. Alvarado-Niles Road and Hop Ranch Road
3. Alvarado-Niles Road and Royal Ann Drive
4. Decoto Road and Meyers Drive
Fig. 1 Map of Installation Locations
Rhythm Engineering will perform its own site visits of the four critical intersections. This will help Rhythm propose to the City of Union City, CA the best bespoke solution that contributes to the overall, higher-level project objectives:
5. Improve travel time and travel time reliability along arterials for autos and transit vehicles
6. Improve safety of motorists, transit riders, bicyclists, and pedestrians
7. Decrease motor vehicle emissions and fuel consumption
8. Improve knowledge of and proficiency in the use of advanced technologies for arterial operations.
During the site visits, Rhythm experts will assess intersection and road geometry, the best detection units mounting locations, angle of and distance to crosswalks, timing plans and phasing sequences to accommodate the pedestrian innovations, existing hardware and network architecture and other City Council/RSA Agenda 36 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 16 of 53 specific geographical aspects. A detailed project plan, with an implementation schedule, connection diagrams and project milestones will be made available to the project team by Rhythm Engineering. To ensure the success of the deployment, the Rhythm team will need access to the agency’s network through a VPN tunnel with dedicated IP addresses for the newly installed detectors and detection processing units.
Hardware & Software
Hardware and Network Communications
A standard Cyclops:Pedestrian and Bike detection equipment will consist of three to four cameras per intersection, where one unit is overseeing each corner of the intersection, a GPU processor and Cat6 and Y-cabling for network and detection inputs transfer. The camera detectors need to be mounted 25-
30 feet high. The optimal distance to the detection area is 150 feet.
Cabinet equipment consists of the Cyclops GPU Processor, Equipment Panel for power and network connectivity, and integration cables. All these will be provided to work with the existing 2070-style cabinets and the existing traffic controllers. The Processor utilizes a Windows 10 operating system. A laptop needs to be configured to access the detection cameras for live view streaming and performance monitoring. The hardware is standard and easy to install within any existing infrastructure.
Rhythm Engineering intends to utilize the networks and any data storage facilities already in place and in operation by the City of Union City. Cyclops:Pedestrian and Bike equipment will have IP addresses assigned to match the current subnet and gateway being utilized for communication to the system hardware and software.
In summary, each intersection will be outfitted with the following equipment:
1. 1 Optical detection cameras per approach (used for detection analysis)
2. Cyclops Processor (to manage detection inputs and configurations)
3. Equipment Panel (for power and network connectivity)
4. Cabinet integration components (Ped Intercept module, Y cables for optimal system integration with 2070 environment)
Mounting Locations
The Cyclops Pedestrian detection solution when utilized as a passive pedestrian solution requires a camera to be located at each corner of the intersection. This allows for optimal detection accuracy when detecting pedestrians at the entry/truncated dome sections of the sidewalk. In addition, each cross walk will have ample coverage to provide unique phase extension operations for safer pedestrian clearance.
City Council/RSA Agenda 37 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 17 of 53 The four images below show the best-case mounting locations for each of the cameras at all 4 intersections. The cameras are shown as a red circle and, in general, are designed to mount on the vertical upright of the mast arm at 25-30ft from ground. Each camera will be easily mounted with the supplied mounting hardware and powered over Ethernet. Pulling the Cat6 cable will be dependent on the conduit availability and condition and is assumed passable for this submittal.
Fig. 2 - Alvarado Blvd & Dyer St Camera Placement
City Council/RSA Agenda 38 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 18 of 53 Fig. 3 - Alvarado-Niles Rd & Hop Ranch Rd Camera Placement* *Due to there not being a North-East mast arm pole at Hop Ranch Rd, the initial design will be to utilize 3 cameras with the 4
th being included as a spare unit. If needed, it can be added, as shown in yellow in the above image.
City Council/RSA Agenda 39 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering, LLC Page 19 of 53 Fig. 4 - Alvarado-Niles Rd & Royal Ann Dr/H St Camera Placement Fig. 5 - Decoto Rd & Meyers Dr Camera Placement
City Council/RSA Agenda 40 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 20 of 53 The solution is locally distributed; therefore, all detection operation of the system occurs in the field on each intersection’s respective processor. One processor will collect and process inputs flowing from each camera detector. There will be no hardware installed at the traffic management centers. Server space or dedicated workstation is needed for data retention and housing of the configuration software.
If the agency so prefers, Rhythm can provide an additional server processor of the type AMS300 – for data and software storage.
Software
Software Technology
Rhythm uses the same technology (Convolution Neural Networks) used by autonomous vehicles to detect and classify objects. Developed by tech giants such as Google, Nvidia and Intel, this technology runs at a high rate of speed on inexpensive hardware called Graphical Processing Units (GPU). CNN can train to passively recognize and count specific objects such as pedestrians and bicyclists and utilize controller inputs to manage pedestrian safety.
The object recognition algorithm detects the pedestrians from the moment they approach the crosswalk along the sidewalk. The detection tracking continues into the crosswalk, over pre-defined detection zones, until the pedestrian has reached the sidewalk in the headed direction. The algorithm provides up to 98% accuracy of detection outputs in any lightning conditions, and is not subject to climate harshness, sun glare, fog, or any weather-related challenges. The algorithm assigns a unique ID to each pedestrian or bike, thus excluding the chance of duplicating the calls into the controller.
Fig. 6 Ped and bike detection on crosswalk Fig. 7 Ped detection on the sidewalk In instances when the City would like to monitor Pedestrian counts, data visualization is available in the WebUI as well - from anywhere with network access. The following reports and charts are available:
City Council/RSA Agenda 41 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 21 of 53 - TMC + Ped/Bike Count
- Ped/Bike Count Overview
- Total Ped Count/Approach
- Total Bike Count/Approach
- Total Ped Count/Direction
- Total Bike Count/Direction
Fig. 8 Dashboard of all ped and bike statistics
Fig. 9 – Dashboard of ped and bike count charts
Cyclops:Pedestrian and Bike module is accessible via a web access. The WebUI allows for monitoring and manual control. The agency staff will need to create individual user accounts which are username and password protected. There is no site license for the software so requirements will be met.
City Council/RSA Agenda 42 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 22 of 53 Configurator Software
The configuration software is included with the system and can be utilized on as many devices as desired. It will be used to manually draw and configure ped detection zones. The detection area may be covered by one detection zone plotted over the whole crosswalk or the detection area may be split into several detection zones to follow the shape of the crosswalk. Cyclops is also capable of providing ped movement counts for which direction vectors with count bars need to be applied over each crosswalk.
Fig. 10 Pedestrian Detection Zone Fig. 11 Movement vectors and counting lines The configuration software also provides the ability to define communications with the controller, Ped Walk Phase selection, minimum and maximum ped clearance intervals, channel mapping and other settings. Setting up of Pedestrian Phases is done in accordance with Vehicle Phases – to avoid conflict.
As with the WebUI, the configuration software is also accessible over the web.
Fig. 12 Phase and Input Mappings
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City of Union City and Rhythm Engineering, LLC Page 23 of 53
MANAGEMENT PLAN
Project Milestones
The City may find a summary of Rhythm Engineering’s project milestones, that will provide a smooth and seamless deployment. To maintain a clear schedule Rhythm Engineering uses the below items to track goals and deadlines:
1. Project Design – Rhythm Engineering staff will work with Union City to provide design guidance for the deployment plans. Rhythm Engineering will provide detection placement guidance, cable specification and other requirements for optimal system performance.
2. External Kickoff (EKO) – A meeting between the Rhythm Engineering team, the installation subcontractor, and Union City to establish a project timeline, goals and objectives, and set responsibilities. Dates will be established, and IP addresses and network information will be requested of the City - to ensure all equipment is configured prior to shipment for a quicker installation and setup.
3. Installation – The selected low-bid installation sub-contractor will provide the services necessary to install all relevant detection and cabinet equipment prior to Rhythm Engineering’s coming onsite for the equipment integration. This will consist of mounting detection, pulling necessary power and data cable, and installing and wiring necessary cabinet equipment. In addition, the equipment will be connected to the agency’s network and remote access will need to be provided into the system for remote installation support.
4. Detector Mode – Upon completion of install and connectivity verification, a Rhythm Engineering Technician will come onsite for equipment integration with the existing cabinet/controller architecture. At this time, the traffic controller will still be managing traffic with the existing detection and the existing fully actuated free operation.
5. Technician Training – During the onsite technician’s visit, there will be a formal classroom training for the staff of Union City. This training will consist of equipment installation, integration and configuration, maintenance, and troubleshooting exercises. Training will continue during the equipment integration in the field at each traffic cabinet.
6. Remote Monitoring/Configuration – Following the go-live week, Rhythm will continue to monitor the intersections via the VPN provided for 24/7/365 remote access. Final modifications and tweaks will be done to reach optimal system performance.
7. Verification Plan and Validation – Rhythm Engineering staff will develop a verification plan to be approved by Union City. The testing and verification will occur during the Rhythm Technician and sub-contractor staff onsite visits.
8. Continued Training – Additional training may be scheduled post deployment, in 6 to 12 months, as required.
9. Support Mode – Upon acceptance of the system, the project will be moved into Support. While in Support, the project team will no longer be actively monitoring the system. For any assistance needed, Rhythm’s support staff will have to be contacted. It is available remotely, 24/7/365 by City Council/RSA Agenda 44 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 24 of 53 phone at 913-6-RHYTHM or at [email protected]. All cases are logged and updated in a formal problem reporting, tracking, and resolution ticketing system.
During this process, Rhythm Engineering will host a project status meeting every other week to inform all parties of the status and any challenges that may present themselves.
PROPOSED PERSONNEL
Rhythm Engineering Key Staff Experience and Project Role Reggie Chandra, President and CEO, P.E., Ph.D. - Reggie comes from a former background of a Senior Traffic Engineer. He is the inventor of all Rhythm’s products and has intricate product knowledge. Reggie will be involved with this project as an extension of the Project Engineer. He will assist and oversee implementation of the Passive Ped Detection solution to ensure that the project meets the scope of work and goals set forth by this RFP.
Sawyer Breslow, E.I.T., Sales Operations Manager, Rhythm Engineering - Sawyer is the National Sales Operations Manager with 8 years of experience in traffic engineering and sales operations. Sawyer will serve as the client solution engineer and primary contact for any technical questions. He will evaluate the listed intersections to ensure proper equipment integration during construction plan design.
Richard Cole, General Manager, Rhythm Engineering - Richard is the General Manager at Rhythm Engineering and leads the Operations Team of engineers, technicians, project management and the support stuff. He has 10+ years in IT, traffic management and automotive industries. Richard will oversee the project management aspect and team performance.
James Bley, Product Development Manager, Rhythm Engineering – James is the primary product expert on Rhythm systems. He manages the R&D department that is responsible for developing and training the deep-learning, image recognition algorithm. James has more than a decade of expertise in software development, hardware integration, traffic profiling, landscape analysis, configuration design and adjustments and troubleshooting at each level of the product lifecycle. He will assess the system requirements against the streetscaping, will suggest the best mounting locations, configuration settings and communications with the controller.
Ashley Reynolds, Project Coordinator, Rhythm Engineering – Ashley is the Project Operations Manager and has been involved in 20+ deployment projects. Ashley will assist with delivering project scope and meeting delivery dates, and will create a clear plan.
Alec Watson, Lead Installation Technician, Rhythm Engineering - Alec will serve as the Installation Technician for primary setup and configuration of the Cyclops:Ped&Bike Solution hardware. Alec has been deploying Rhythm products around the country for three years. His primary role is to support equipment installations and integrations. In addition to that, Alec will lead training sessions focused on system install, troubleshooting, maintenance, and support.
City Council/RSA Agenda 45 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 25 of 53 Fig. 13 Rhythm Engineering Project Team
City Council/RSA Agenda 46 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering, LLC Page 19 of 53 Quality Controls
The Rhythm team will maintain a Quality Control Plan and perform quality assessment checks at every step of the project.
- Installation Checklist: An installation checklist will be utilized to track the mounting, installation and adjustments of software and hardware components, with dates and time of completion. - Functional Testing: A number of design and functionality tests will be performed in conjunction with City staff after the detectors have been mounted at the determined locations, and the detection area has been configured. Findings will be validated against the Live Views from the detectors.
- Stress Testing: A burn-in test of the detectors and the overall installation will be performed for 48 hours, or as deemed necessary by the City to ensure seamless performance.
Prime and Sub-Contractor Partnership
In order to meet the deployment and support requirements of this RFP, Rhythm Engineering will be acting as prime and will partner with Bear Electrical Solutions, Inc. who will be acting in the capacity of a sub-contractor.
Bear Electrical Solutions, Inc. (Bear) provides traffic signal and streetlight maintenance and construction services throughout California. The firm is particularly focused on meeting the needs of each of their customer’s traffic signal and streetlight maintenance program requirements by “Driving a Higher Standard.”
Bear take a holistic approach to traffic signal and streetlight maintenance realizing innovative solutions collaboratively and not strictly following the standards of the past. They will operate like an “extension of staff” for Rhythm Engineering with the goal of having a direct liaison with the customer and a successful, safe installation and maintenance experience.
Bear’s team of electricians, laborers, traffic engineer, and project management staff specialize in:
• 24/7/365 Dispatch and Emergency Response
• Traffic Signal Maintenance
• Streetlight Maintenance
• ITS/ATMS hardware/software implementation, enhancements, and troubleshooting • Fiber Optic Installation, Maintenance, and Emergency Repair • USA (Underground Service Alert) Locating, Marking, and Documentation • SMART City Implementation including but not limited Small Cell and EV Charging • On-Call Traffic Engineering.
City Council/RSA Agenda 47 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 20 of 53 Firm History
Bear Electrical Solutions, Inc. was established in 2013 by Robert Asuncion, Andrew Bader, and Michael Peters. As a licensed traffic engineer working in the public sector, Robert realized that no contractor or firm was delivering the level of service that customers needed or deserved. With Andrew’s financial background and Michael’s business operation acumen, Bear was established. Driven by this notion, the ownership team assembled an all-star team of industry veterans with the mission of providing excellent customer service with the right mindset that customers have not experienced in the past.
Bear was recognized as one of the fastest growing private companies by the Silicon Valley Business Journal in 2016. The company attributes their growth to getting the right people on their team, developing smart systems and processes, and continually striving to improve on a daily basis.
Bear is a premier union electrical contractor headquartered in San Jose, California (Alviso). Bear currently provides maintenance services similar to this RFP to over 60 public agencies statewide with branch offices in Sacramento and Southern California. Moreover, Bear provides construction services to many public works, private developers, Small Cell telecom, and EV charging companies.
Experience
Bear team’s experience includes providing 24/7/365 Dispatch for Emergency Traffic Signal and Streetlight Response, PM Routine for both Traffic Signal and Streetlight, USA locating and documentation, fiber optic and copper repair and maintenance, and ad-hoc electrical construction work. They self-perform all their work relating to traffic signal and streetlight maintenance.
A list of public agencies that Bear Electrical has worked with statewide is available in the appendix.
Firm License and Certifications
The company carries all the necessary licenses and credentials to ensure the public that Bear staff is competent, responsible, and above all, safety experts in their craft. Bear Electrical meets and exceeds all the licensing requirements set forth in this RFP. Other pertinent certifications and memberships that the company has are:
• Signatory to the International Brotherhood of Electrical Workers (IBEW), Laborers, Sound and Communication, and Operators Union(s),
• Department of Industrial Relations (DIR) Certified & Registered (#1000002158) • Gold Shovel Certified by Pacific Gas & Electric
• National Electrical Contractors Association (NECA) Certified • United Contractors Association Member
• Prospect Silicon Valley Sponsor
• Maintenance Superintendent Association (MSA) Sponsor
City Council/RSA Agenda 48 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering. LLC Page 21 of 53 Fig. 15 Copy of Business License
References
Below are several references along with their contact information for fiber related maintenance.
1. City of Monterey – Installation of Traffic Adaptive System / Detection system including installation of fiber, fiber patch panels, fiber cable, and commissioning. Amount: $145k. Completed October 2021.
Contact Information: Andrew Renny, City Traffic Engineer. 580 Pacific Street, Monterey, CA 93940. (831)646-3705 [email protected]
2. City of San Jose – Various Task Orders ranging from $1k- $150k ranging from video detection, cabinet upgrades, etc. Contract Amount: 2019- 2021. Various Task Orders completed. Contact Information: Ho Nguyen, Sr. Transportation Manager. 200 E. Santa Clara Street, San Jose, CA 95113. (408)975-3279 [email protected]
3. City of Hollister – 24/7/365 Traffic Signal Maintenance Emergency Response / Fiber – Contact Information: Paul Da Silva, Information Systems & Technology Director. 375 5 th Street, Hollister, CA 95023
– (831)636-4312 x 1027; [email protected]
4. City of Salinas – 24/7/365 Traffic Signal Maintenance Emergency Response / Fiber – Contact Information:
Jose Saucedo, Traffic Engineer. 200 Lincoln Avenue, Salinas, CA 93901– (831) 758-7197; [email protected]
City Council/RSA Agenda 49 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering. LLC Page 22 of 53 Bear Electrical Key Staff
The Bear Electrical Solutions’ San Jose Branch/Company Headquarters will be the principal office servicing the City of Union City project with 70 field and 15 office staff that work full-time at this location.
Project Manager – Brent Paulson - Brent will be the main point of contact for this project. Brent has been in the electrical maintenance industry for over 17 years starting as an apprentice to currently being VP of Operations for the company. Not only has Brent been a hands-on electrician; Brent is a subject matter expert who providestraining and education to some of Bear’s customers. Brent will be the project manager contact forthis project. IMSA Level III Field, NECA Project Manager Certified, OSHA 30 Certified Proposed Field Staff for this project
Field Foreman– Marcus Mougeot – Marcus has been in the industry for over 16 years. Marcus has extensive experience performing maintenance and emergency response on traffic signals and streetlights as well as special projects such as detection installation, new signal construction, and ITS deployments.
Marcus is certified in Q-Free, Econolite, Trafficware, Siemens and other Controller system. IMSA Level III Field, OSHA 30, NEC #E159970-G
Field Electrician – Mario Deras – Mario has been an electrician for over 10 years working specifically on traffic signal and streetlights. He is well proficient in 2070 D4 software as well as Econolite, Trafficware, and Siemens. IMSA Level III Field, Certified Electrician Trainee Field Electrician Foreman (Construction) - Jeff Grimes – Jeff has over 25 years’ experience in the traffic signal and streetlight construction industry. He has self-performed as well as managed crews on various new builds and modifications projects involving traffic signals, streetlighting, building electrical, low, high, and industrial electrical. IMSA Level III Field, OSHA Certified, Contractor C-10 Field Laborer Foreman (Construction) – Moises Romero – Moises has over 20 years’ experience in the traffic signal and streetlight construction industry. He is an expert on concrete masonry, conduit installation and repair, as well as other laborer activities. Moises manages and supervises various laborer crews for foundation installation and repair, undergrounding, and various traffic signal and streetlighting work. OSHA Certified
City Council/RSA Agenda 50 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering. LLC Page 23 of 53
SYSTEM REQUIREMENTS
The Pedestrian Detection Solution, proposed by Rhythm Engineering, meets and even slightly exceeds the System Requirements as stipulated in this RFP. Compliance is indicated below to each item:
● The system needs to detect pedestrians on the sidewalk and in the crosswalk (up to 150 feet from unit) without a physical input – Met: Rhythm’s Cyclops solution recognizes pedestrians on the sidewalk and follows them as they step over the crosswalk. The system can cover a 150-feet distance per the requirement over both sidewalk and crosswalk. It assigns each pedestrian a unique ID which makes the detection and counting accurate and impossible to duplicate. To provide detection at the sidewalk, a camera for each corner is needed. ● The system needs to detect pedestrians in at least four different crosswalks independently – Met: Rhythm’s Cyclops solution uses high-resolution, large field-of-view detection cameras that allow capturing detection inputs starting from the curbside and into the crosswalk. The number of crosswalks can be as required. To provide detection at the sidewalk, at the required distance, a camera for each corner will be needed.
● When pedestrian is detected in crosswalk, the system needs to send a call to traffic signal controller to extend the phase time – Met: Yes, a detection call is placed in the controller. A hold request may be placed on a Phase too. This is done using an external Ped Intercept Module.
The pre-requisite is to configure and map the Ped phases to the traffic signal controller settings, through the Cyclops Configurator console.
● The system needs to allow user-defined time periods for passive detection – Partially Met:
Minimum ped walk, Min Call and Max Call times to extend the phase or place the initial call can be configured in Cyclops configurator. If we need to have times where passive detection is used and times where it is not, this implies to be able to have a schedule where passive detection is put on hold. Currently Cyclops doesn't have this feature. ● The system needs to operate in daylight and darkness with up to 75% accuracy – Exceeds:
Yes, the accuracy of the Cyclops detection results is 96% to 98% in both day and night lightning. ● The user needs to know when the system fails – Met: Alerts and error messages are generated and displayed in the User Interface and in the Configurator console when data is not collected properly, detector is malfunctioning, or the system is down for any other reason. ● The user needs vendor support for training and maintenance – Met: Functional training will be provided after the installation and hands-on training will be provided during the installation to 5 City staff members, per section 5.3 of this RFP. A refresh training session can be provided in 6-12 months post-deployment. Rhythm will provide a Training plan, as required. ● The user needs user manuals for system set-up, configuration, operations and maintenance – Met: Rhythm will provide a hardware installation guide, software and communications configuration guide, user manuals, connection diagrams, etc. per section 5.4 of this RFP. ● The user needs on-call support for maintenance and troubleshooting issues – Met: Rhythm provides unlimited 24/7/365 remote support by phone and email. On certain occasions, Rhythm can perform a site visit against reimbursable expenses.
City Council/RSA Agenda 51 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 24 of 53 ● The user needs to be notified of software revisions when they become available – Met:
Software updates, patches etc. will be pushed automatically to the agency’s installation server, two-three times a year. Rhythm will test that all functionality is available after each upgrade. ● The system needs to be compatible with Model 2070 controllers operating Q-FREE Maxtime firmware – Met: Rhythm’s Ped Detection solution is controller agnostic and compatible with any make and model of traffic controllers. It does comply with 2070 controller architecture and the Q-FREE Maxtime firmware.
● If the system fails, the existing local controller pedestrian timings shall not be negatively impacted – Met: In the event of failure, the Rhythm’s system will not generate detection output and no calls/extensions for ped phases will be placed. The controller will use its pre-set pedestrian interval, walk time, phase duration and inherent controller settings without negative impact.
Training and Documentation
Rhythm will comply with section 5.3 Training and Documentation of this RFP by delivering the proposed training and documentation packages below:
Rhythm Training Summary
Activity Day Time
Rhythm Technician-led Training
Classroom training on product purpose,
software modules: webUI, Configurator etc.
Day 1 8:00 AM – 5:00 PM
Classroom Training – detection setup
Onsite training at intersection traffic cabinet
Day 2 8:00 – 5:00 PM
Additional onsite training and overseeing of
equipment installation
Day 3 8:00 AM – 5:00 PM
Final validation and adjustments of
detection zones, equipment installation etc.
Day 4 8:00 – 12:00 PM
Refresher Training Session led by Rhythm Engineering
Remote webinar or onsite visit - TBC 6-12 months post deployment As needed by the agency Table 1: Proposed Training Schedule
City Council/RSA Agenda 52 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 25 of 53 Documentation
City staff will receive as many copies as required in electronic and/or printed form of all system manuals, procedures, user guides and training documentation as specified in sections 5.3 and 5.4 of this RFP.
These installation, configuration and WebUI user guides are written in an easy-to-read format with photos, screenshots, and other graphics to help communicate instructions. In addition, City staff can get access to Rhythm University where support materials are also available.
SCHEDULE
The following table depicts Rhythm Engineering’s typical process from taking a project from kick-off through activation and finally into support mode. Key milestones must be met to maintain project timelines and stay on task for a timely and efficient project completion. 1 1
7 8
City Council/RSA Agenda 53 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering. LLC Page 26 of 53 City Council/RSA Agenda 54 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 36 of 53 Hardware Specifications
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City of Union City and Rhythm Engineering. LLC Page 37 of 53 City Council/RSA Agenda 56 Tuesday, April 12, 2022
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Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 40 of 53 Software Specifications
The Configurator manages the camera devices, and hosts the specific project setup, IP addresses, controller interface type settings, network server gateway, mask, IP and other settings for the installed equipment. City staff may use the backup feature to both create a backup of an existing configuration or to upload an offline version into the configurator. The Cyclops Configurator allows defining of Pedestrian detection zones and associating them with the respective pedestrian phases, crosswalks and detectors through the intersection schema. In cases when Pedestrian counts are required, the user will need to define movement vectors and counting lines. The detection zones will have a direction of movement, associated with a dedicated pedestrian phase, location of crosswalk and a detector ID tracking this leg of the intersection
Detection Live View and TMC Data Visualization
The webUI allows for the live views from all cameras to be arranged in a panel or monitored individually.
City Council/RSA Agenda 59 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 41 of 53 Warranty
The City of Union City may find below a copy the standard warranty terms and conditions that Rhythm Engineering operates. Any specific needs or modifications suggested, will be provided in accordance with this RFP.
City Council/RSA Agenda 60 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering. LLC Page 42 of 53 City Council/RSA Agenda 61 Tuesday, April 12, 2022 Consulting Services Agreement between
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City of Union City and Rhythm Engineering. LLC Page 48 of 53 Ongoing maintenance, Troubleshooting, Urgent Issues and Operational Support
Three years of software and technical support will be provided as requested in this RFP. Rhythm Engineering’s skilled technicians and engineers are available 24 hours a day, 7 days a week, 365 days a year. During the warranty period, our team is available to assist with any remote support needs that may arise. Rhythm Engineering staff can be contacted by these methods:
● Office Phone: (913) 227-0603
● 24/7 Support Phone: (913) 674-9846
● Support Email: [email protected]
Most issues or concerns that may arise can be handled over the phone with minimal onsite support. Rhythm Support operates the following service levels:
- All calls are answered live and case details are put in writing. - If a call is missed – a call back is due within 15 minutes by a Rhythm technician. - If an issue cannot be resolved, an Engineer is being consulted. - Onsite support can be provided through a separate support contract.
In addition to our standard, excellent 24/7/365 technical and engineering support, Rhythm Engineering also has a video library of Software Operations and Management resources that the agency can utilize
for any quick assistance or self-help.
City Council/RSA Agenda 67 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering. LLC Page 49 of 53
EXHIBIT B
COMPENSATION SCHEDULE
City Council/RSA Agenda 68 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 50 of 53 Product Price QTY Subtotal
Cyclops Pedestrian Detection
4 large field of view cameras, mounting
hardware, GPU processor and cabinet
equipment, user interface/data visualization
software and shipping of the equipment.
$25,062.50 4 $100,250.00
On-Site Deployment Services (Rhythm
Engineering) and Installation Services (Bear
Electrical)
Consists of mounting of traffic control, mounting
of cameras, pulling Cat6A cable through existing
conduit and installation of cabinet hardware. Also
includes initial tune-up/configuration and training
on the system.
*This is assuming no permits are required, and
conduit is in passable condition for new cable
pulls.
$65,000.00 1 $65,000.00
Comprehensive Warranty
3-year comprehensive coverage of all hardware
components, software updates and remote
24/7/365 technical support.
$8,000.00 1 $8,000.00
Training: Included with system $0.00 1 $0.00
Data controller kit assembly: only necessary if
server is not available
$3240.00 1 $3240.00
*On-Site system maintenance can be worked out
through a separate contract with Bear Electrical.
Subtotal
$176,490.00
Tax(10.75%) $11,985.18
Total $188,475.18
City Council/RSA Agenda 69 Tuesday, April 12, 2022
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City of Union City and Rhythm Engineering. LLC Page 51 of 53
EXHIBIT C
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the services described in Exhibit A shall constitute a legal day’s work under this contract.
B. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the services described in Exhibit A is limited to eight hours during any one calendar day, and forty hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of eight hours during any one calendar day and forty hours during any one calendar week is permitted upon compensation for all hours worked in excess of eight hours during any one calendar day and forty hours during any one calendar week at not less than one-and-one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the City $25 for each worker employed in the performance of the services described in Exhibit A for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day, or more than 40 hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City Public Works Office and shall be made available on request. The Consultant and subcontractors engaged in the performance of the services described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A.
B. In accordance with Labor Code Section 1775, the Consultant and any subcontractors engaged in performance of the services described in Exhibit A shall comply Labor Code Section 1775, which establishes a penalty of up to $50 per day for each worker engaged in the performance of the services described in Exhibit A that the Consultant or any subcontractor pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subcontractor in meeting applicable prevailing wage obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their obligations under the California Labor Code. The Consultant or subcontractor shall pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage City Council/RSA Agenda 70 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 52 of 53 rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements:
1. The contract executed between the Consultant and the subcontractor for the performance of part of the services described in Exhibit A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor’s certified payroll records.
3. Upon becoming aware of a subcontractor’s failure to pay the specified prevailing rate of wages, the Consultant shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for performance of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor, the Consultant shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages for employees engaged in the performance of the services described in Exhibit A and any amounts due pursuant to California Labor Code Section 1813.
C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project.
The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be available for inspection by the Owner and its authorized representatives, the Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776.
D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the Consultant and any subcontractors engaged in performance of the services described in Exhibit A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts.
City Council/RSA Agenda 71 Tuesday, April 12, 2022
Consulting Services Agreement between
City of Union City and Rhythm Engineering. LLC Page 53 of 53 E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance of the services described in Exhibit A to employ for the services described in Exhibit A any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Contractor shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to services described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment.
DIR REGISTRATION
Consultant shall be currently registered with the Department of Industrial Relations and qualified to perform public work consistent with Labor Code section 1725.5, except in limited circumstances as set forth in Labor Code section 1771.1. No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code Section 1725.5. Consultant agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
City Council/RSA Agenda 72 Tuesday, April 12, 2022
EXHIBIT D
FEDERALLY-REQUIRED CLAUSES
City Council/RSA Agenda 73 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-2
ADDITIONAL TERMS AND CONDITIONS
FEDERALLY REQUIRED CLAUSES
1. EQUAL EMPLOYMENT OPPORTUNITY
In accordance with Title VI of the Civil Rights Act, as amended (42 U.S.C. § 2000d); Section VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e); Section 303 of the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6102); Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12132); and, for FTA-funded projects, 49 U.S.C. § 5332 and any implementing requirements that FTA may issue. AGENCY agrees that it will not, on the grounds of race, religious creed, color, national origin, age, physical disability or sex, discriminate or permit discrimination against any employee or applicant for employment.
2. DISADVANTAGED BUSINESS ENTERPRISE (DBE) POLICY
It is the policy of MTC and the U.S. Department of Transportation to ensure nondiscrimination in the award and administration of DOT-assisted contracts and to create a level playing field on which disadvantaged business enterprises, as defined in 49 Code of Federal Regulations Part 26, can compete fairly for contracts and subcontracts relating to MTC's procurement and professional services activities.
AGENCY shall not discriminate on the basis of race, color, national origin or sex in the performance of the applicable Supplement. AGENCY shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by AGENCY to carry out these requirements is a material breach of contract, which may result in the termination of the applicable Supplement or this Agreement, or such other remedy as MTC deems appropriate.
3. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
AGENCY agrees to comply with all the requirements imposed by Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000(d)) and the regulations of the Department of Transportation issued thereunder (49 CFR Part 21). For FTA-funded projects, AGENCY further agrees to comply with the current FTA Circular 4702.1A, "Nondiscrimination Guidelines for FTA Recipients," the U.S. DOT Order to Address Environmental Justice in Minority Populations and Low-Income Populations, and the U.S. DOT Policy Guidance Concerning Recipients' Responsibilities to Limited English Proficient (LEP) Persons.
City Council/RSA Agenda 74 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
4. ACCESS REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES AGENCY agrees to comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; Section 16 of the Federal Transit Act, as amended, 49 U.S.C. § 5310(f); and their implementing regulations.
5. STATE ENERGY CONSERVATION PLAN
AGENCY shall comply with all mandatory standards and policies relating to energy efficiency that are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. § 6321).
6. ALLOWABILITY OF COSTS
AGENCY shall comply with the cost principles (as applicable) in Office of Management and Budget (OMB) Circulars A-87, or A-122, or 48 Code of Federal Regulations Chapter 1 Part 31, or 49 Code of Federal Regulations Part 18, or in 2 Code of Federal Regulations Parts 200 and 1201, as applicable. In addition, all subcontracts must be in accordance with 2 Code of Federal Regulations Part 200, as applicable, MTC's funding agreement with DOT and any regulations, guidelines and circulars of DOT, applicable as a result of such funding agreement. Further, all subconsultants shall agree to comply with 48 Code of Federal Regulations, Chapter 1, Part 31.
7. LICENSE FOR FEDERAL GOVERNMENT PURPOSES
FTA/FHWA reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for federal government purposes: (a) the copyright in any work developed under the applicable Supplement; and (b) any rights of copyright to which MTC or AGENCY purchases ownership under the applicable Supplement.
8. IDENTIFICATION OF DOCUMENTS
All reports and other documents completed as part of the applicable Supplement shall carry the following notation on the front cover or title page:
"The preparation of this report has been financed in part by grants from the: [select appropriate agency] Federal Transit Administration/Federal Highway Administration, U.S.
Department of Transportation. The contents of this report do not necessarily reflect the official views or policy of the U.S. Department of Transportation." City Council/RSA Agenda 75 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
9. AUDITS
AGENCY agrees to grant MTC, the U.S. DOT, FTA or FHWA, as applicable, the Comptroller General of the United States, the State of California, and their authorized representatives access to AGENCY's books, records, accounts, and any and all work products, materials, and other data relevant to the applicable Supplement, for the purpose of making an audit, examination, excerpt and transcription during the term of the applicable Supplement and for the period specified in Article 14. AGENCY shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, work products, materials and data for that period of time.
If, as a result of any audit, it is determined by the auditor that reimbursement of any costs including profit or fee under the applicable Supplement was in excess of that represented and relied upon during price negotiations or represented as a basis for payment, AGENCY agrees to reimburse MTC for those costs within sixty (60) days of written notification by MTC.
AGENCY further agrees to include in all its subcontracts hereunder exceeding $25,000 a provision to the effect that the subrecipient agrees that MTC the U.S. DOT, FTA or FHWA, as applicable, the Comptroller General of the United States, the State of California, and their authorized representatives shall have access to and the right to examine any directly pertinent books, documents, papers, and records of such subrecipient for the term specified above.
10. FLY AMERICA REQUIREMENTS.
AGENCY agrees to comply with 49 U.S.C. 40118 (the "Fly America Act") in accordance with the General Services Administration's regulations at 41 CFR Part 301 - 10, which provide that recipients and subrecipients of Federal funds and their consultants are required to use U.S. flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property to the extent such service is available, unless travel by foreign air carrier is a matter of necessity as defined by the Fly America Act. AGENCY shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements, if used. AGENCY agrees to include the requirements of this Section in all subcontracts that may involve international air transportation.
11. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS.
A. AGENCY acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, City Council/RSA Agenda 76 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
"Program Fraud Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, AGENCY certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Supplement or the FTA assisted project for which work is being performed under the applicable Supplement.
In addition to other penalties that may be applicable, AGENCY further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on AGENCY to the extent the Federal Government deems appropriate.
B. AGENCY also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on AGENCY, to the extent the Federal Government deems appropriate.
C. AGENCY agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subconsultant who will be subject to the provisions.
12. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES
MTC and AGENCY acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the applicable Supplement or this Agreement, absent the express written consent by the Federal Government, the Federal Government is not a party to this Agreement and shall not be subject to any obligations or liabilities to MTC, AGENCY or any other party (whether or not a party to this Agreement) pertaining to any matter resulting from this Agreement.
13. DEBARMENT
This Article is only applicable lithe applicable Supplement exceeds $25,000. AGENCY certifies that neither it, nor any of its participants, principals or subrecipients is or has been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions, as they are defined in 2 CFR Parts 180 and 1200, by any Federal agency or department.
City Council/RSA Agenda 77 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
14. CLEAN AIR AND WATER POLLUTION ACTS
This Article is only applicable if the applicable Supplement exceeds $100,000.
AGENCY agrees to comply with the applicable requirements of all standards, orders, or requirements issued under the Clean Air Act (42 U.S.C. § 7501 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15).
15. LOBBYING
This Article is only applicable if the applicable Supplement exceeds $100,000.
AGENCY agrees to comply with the restrictions on the use of federal funds for lobbying activities set forth in 31 United States Code §1352 and 49 C.F.R. Part 20.
Attachments:
Attachment A — Federally Required Certifications (AGENCY shall either provide these certifications to MTC or shall provide copies of such certifications AGENCY has independently made to the Federal Government.)
City Council/RSA Agenda 78 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-2
Attachment A
Federally Required Certifications
CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER
RESPONSIBILITY MATTERS
Instructions for Certification:
1. By signing and submitting this bid or proposal, the prospective lower tier participant is providing the signed certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, MTC may pursue available remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to MTC if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "persons," "lower tier covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29]. You may contact MTC for assistance in obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized in writing by MTC.
6. The prospective lower tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — Lower Tier Covered Transaction", without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by U.S. General Service Administration.
City Council/RSA Agenda 79 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
8. Nothing contained in the foregoing shall be construed to require establishment of system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to all remedies available to the Federal Government, MTC may pursue available remedies including suspension and/or debarment.
City Council/RSA Agenda 80 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
LOWER TIER COVERED TRANSACTION
(1) The prospective lower tier participant certifies, by submission of this bid or proposal, that neither it nor its "principals" [as defined at 49 C.F.R. Section 29.105(p)] is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. (2) When the prospective lower tier participant is unable to certify to the statements in this certification, such prospective participant shall attach an explanation to this proposal.
Date (signature of authorized official)
(type/print name and title)
Reggie Chandra, CEO
4/5/2022
City Council/RSA Agenda 81 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
CERTIFICATION OF RESTRICTIONS ON LOBBYING
I, hereby certify on behalf of that:
(name and title of grantee (name of grantee)
official)
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all sub awards at all tiers (including subcontracts, sub grants, and contracts under grants, loans, and cooperative agreements) and that all sub recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance is placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
day of , 20
By:
(signature of authorized official)
Executed this
(title of authorized official)
CEO
5 April 22
Reggie Chandra, CEO Rhythm Engineering
City Council/RSA Agenda 82 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-3
ADDITIONAL TERMS AND CONDITIONS
STATE REQUIRED CLAUSES
1) Attachment A — Fair Employment Practices Addendum
2) Attachment B — Nondiscrimination Assurances
a. Appendix A — Clauses to be inserted in every agreement subject to the ACT, as defined in Attachment B of this Exhibit and REGULATIONS, also as defined in Attachment B.
b. Appendix B — To be included as covenant running with the land, in any deed affecting a transfer of real property, structures, or improvements thereon, or interest therein
c. Appendix C — To be included for subsequent transfer of real property acquired or improved under federal-aid Program
d. Appendix D — To be included for the construction or use of or access to space on, over, or under real property acquired or improved under the federal-aid Program 3) Attachment C — State Department of Transportation Requirements City Council/RSA Agenda 83 Tuesday, April 12, 2022
EXHIBIT B-3
ATTACHMENT A
FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of the applicable Supplement, AGENCY shall not discriminate against any employee for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g. cancer), age (over 40), marital status, and denial of family care leave. AGENCY shall take affirmative action to ensure that employees are treated during employment without regard to their race, sex, sexual orientation, color, religion, ancestry, or national origin, physical disability, medical condition, marital status, political affiliation, family and medical care leave, pregnancy leave, or disability leave. Such action shall include, but not be limited to, the following: employment; upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
AGENCY shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section.
2. AGENCY, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12900 et seq.), and the applicable regulations promulgated thereunder (California code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900(a-0, set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into the applicable Supplement by reference and made a part hereof as if set forth in full. Each of the AGENCY'S contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements as appropriate.
3. AGENCY shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under the applicable Supplement.
4. AGENCY shall permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment section of the applicable Supplement.
5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that AGENCY has violated the Fair Employment Practices Act and had issued an order under Labor Code Section 1426 which has become final or has obtained an injunction under Labor Code Section 1429.
City Council/RSA Agenda 84 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
(b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate the funding for the applicable Supplement either in whole or in part, and any loss or damage sustained by STATE in securing the goods or services thereunder shall be borne and paid for by AGENCY and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or thereafter may become due to AGENCY, the difference between the price named in the Agreement and the actual cost thereof to STATE to cure AGENCY's breach of the applicable Supplement.
City Council/RSA Agenda 85 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-3
ATTACHMENT B
NONDISCRIMINATION ASSURANCES
AGENCY HEREBY AGREES THAT, as a condition to receiving any federal financial assistance from the STATE, acting for the U.S. Department of Transportation, it will comply with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-42 U.S.C. 2000d-4 (hereinafter referred to as the ACT), and all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, "Nondiscrimination in Federally-Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964" (hereinafter referred to as the REGULATIONS), the Federal-aid Highway Act of 1973, and other pertinent directives, to the end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person in the United States shall, on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which AGENCY receives federal financial assistance from the Federal Department of Transportation. AGENCY HEREBY GIVES ASSURANCE THAT AGENCY shall promptly take any measures necessary to effectuate the applicable Supplement. This assurance is required by subsection 21.7(a) (1) of the REGULATIONS.
More specifically, and without limiting the above general assurance, AGENCY hereby gives the following specific assurances with respect to its federal-aid Program:
1. That AGENCY agrees that each "program" and each "facility" as defined in subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a "program") conducted, or will be (with regard to a "facility") operated in compliance with all requirements imposed by, or pursuant to, the REGULATIONS.
2. That AGENCY shall insert the following notification in all solicitations for bids for work or material subject to the REGULATIONS made in connection with the federal-aid Program and, in adapted form, in all proposals for negotiated agreements: AGENCY hereby notifies all bidders that it will affirmatively insure that in any agreement entered into pursuant to this advertisement, minority business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex, national origin, religion, age, or disability in consideration for an award.
3. That AGENCY shall insert the clauses of Appendix A of this assurance in every agreement subject to the ACT and the REGULATIONS.
4. That the clauses of Appendix B of this Assurance shall be included as a covenant running with the land, in any deed affecting a transfer of real property, structures, or improvements thereon, or interest therein.
City Council/RSA Agenda 86 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
5. That where AGENCY receives federal financial assistance to construct a facility, or part of a facility, the Assurance shall extend to the entire facility and facilities operated in connection therewith.
6. That where AGENCY receives federal financial assistance in the form, or for the acquisition, of real property or an interest in real property, the Assurance shall extend to rights to space on, over, or under such property.
7. That AGENCY shall include the appropriate clauses set forth in Appendix C and D of this Assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the AGENCY with other parties:
Appendix C;
(a) for the subsequent transfer of real property acquired or improved under the federal-aid Program; and
Appendix D;
(b) for the construction or use of or access to space on, over, or under real property acquired, or improved under the federal-aid Program.
8. That this assurance obligates AGENCY for the period during which federal financial assistance is extended to the program, except where the federal financial assistance is to provide, or is in the form of, personal property or real property or interest therein, or structures, or improvements thereon, in which case the assurance obligates AGENCY or any transferee for the longer of the following periods:
(a) the period during which the property is used for a purpose for which the federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or
(b) the period during which AGENCY retains ownership or possession of the property.
9. That AGENCY shall provide for such methods of administration for the program as are found by the U.S. Secretary of Transportation, or the official to whom he delegates specific authority, to give reasonable guarantee that AGENCY, other recipients, sub-grantees, applicants, subapplicants, transferees, successors in interest, and other participants of federal financial assistance under such program will comply with all requirements imposed by, or pursuant to, the ACT, the REGULATIONS, this Assurance and the Agreement.
10. That AGENCY agrees that the United States and the State of California have a right to seek judicial enforcement with regard to any matter arising under the ACT, the REGULATIONS, and this Assurance.
City Council/RSA Agenda 87 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
11. AGENCY shall not discriminate on the basis of race, religion, age, disability, color, national origin or sex in the award and performance of any STATE assisted contract or in the administration on its DBE Program or the requirements of 49 CFR Part 26. AGENCY shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of STATE assisted contracts. The California Department of Transportation Disadvantaged Business Enterprise Program Implementation Agreement for Local Agencies is incorporated by reference in the applicable Supplement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of the applicable Supplement. Upon notification to the recipient of its failure to carry out the Implementation Agreement, STATE may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 USC 1001 and/or the Program Fraud Civil Remedies Act of 1985 (31 USC 3801 et seq.)
THESE ASSURANCES are given in consideration of and for the purpose of obtaining any and all federal grants, loans, agreements, property, discounts or other federal financial assistance extended after the date hereof to AGENCY by STATE, acting for the U.S. Department of Transportation, and is binding on AGENCY, other recipients, subgrantees, applicants, sub-applicants, transferees, successors in interest and other participants in the federal-aid Highway Program.
City Council/RSA Agenda 88 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
APPENDIX A TO ATTACHMENT B (Clauses to be inserted in every agreement subject to ACT and REGULATIONS)
During the performance of the applicable Supplement, AGENCY, for itself, its assignees and successors in interest (hereinafter collectively referred to as AGENCY) agrees as follows:
(1) Compliance with Regulations: AGENCY shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of the applicable Supplement.
(2) Nondiscrimination: AGENCY, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. AGENCY shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment practices when the agreement covers a program set forth in Appendix B of the REGULATIONS. (3) Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by AGENCY for work to be performed under a Sub-agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by AGENCY of the AGENCY's obligations under the applicable Supplement and the REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and Reports: AGENCY shall provide all information and reports required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access to AGENCY's books, records, accounts, other sources of information, and its facilities as may be determined by STATE or FHWA to be pertinent to ascertain compliance with such REGULATIONS or directives. Where any information required of AGENCY is in the exclusive possession of another who fails or refuses to furnish this information, AGENCY shall so certify to STATE or the FHWA as appropriate, and shall set forth what efforts AGENCY has made to obtain the information. (5) Sanctions for Noncompliance: In the event of AGENCY's noncompliance with the nondiscrimination provisions of the applicable Supplement, STATE shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
(a) withholding of payments to AGENCY under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part. (6) Incorporation of Provisions: AGENCY shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto.
AGENCY shall take such action with respect to any sub-agreement or procurement as STATE or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, City Council/RSA Agenda 89 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
provided, however, that, in the event AGENCY becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, AGENCY may request STATE enter into such litigation to protect the interests of STATE, and, in addition, AGENCY may request the United States to enter into such litigation to protect the interests of the United States.
City Council/RSA Agenda 90 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
APPENDIX B TO ATTACHMENT B
To be included as covenant running with the land, in any deed affecting a transfer of real property, structures, or improvements thereon, or interest therein) The following clauses shall be included in any and all deeds effecting or recording the transfer of PROJECT real property, structures or improvements thereon, or interest therein from the United States.
(GRANTING CLAUSE)
NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon the condition that AGENCY shall accept title to the lands and maintain the project constructed thereon, in accordance with Title 23, United States Code, the Regulations for the Administration of federalaid for Highways and the policies and procedures prescribed by the Federal Highway Administration of the Department of Transportation and, also in accordance with and in compliance with the Regulations pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto AGENCY all the right, title, and interest of the U.S. Department of Transportation in, and to, said lands described in Exhibit "A" attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto AGENCY and its successors forever, subject, however, to the covenant, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and shall be binding on AGENCY, its successors arid assigns.
AGENCY, in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, (1) that no person shall on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed (;) (and) *
(2) that AGENCY shall use the lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in federallyassisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended (;) and City Council/RSA Agenda 91 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
(3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, the U.S. Department of Transportation shall have a right to re-enter said lands and facilities on said land, and the above-described land and facilities shall thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this deed.*
*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
City Council/RSA Agenda 92 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
APPENDIX C TO ATTACHMENT B
To be included for subsequent transfer of real property acquired or improved under federal-aid Program)
The following clauses shall be included in any and all deeds, licenses, leases, permits, or similar instruments entered into by AGENCY, pursuant to the provisions of Assurance 7(a) of Attachment 1-2.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add 'as covenant running with the land") that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally-assisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to terminate the (license, lease, permit etc.) and to re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to re-enter said land and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of AGENCY and its assigns. *Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
City Council/RSA Agenda 93 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
APPENDIX D TO ATTACHMENT B
Appendix D — (To be included for the construction or use of or access to space on, over, or under real property acquired or improved under the federal-aid Program) The following shall be included in all deeds, licenses, leases, permits, or similar agreements entered into by AGENCY, pursuant to the provisions of Assurance 7 (b) of Attachment 1-2.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal representatives, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds, and leases add "as a covenant running with the land") that:
(1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in the use of said facilities;
(2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the ground of race, color, sex, national origin, religion, age or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and
(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with the Regulations.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to terminate the (license, lease, permit, etc.) and to re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to re-enter said land and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of AGENCY, and its assigns.
*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
City Council/RSA Agenda 94 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-3, ATTACHMENT C
STATE DEPARTMENT OF TRANSPORTATION REQUIREMENTS
Caltrans Non — Discrimination
A. In the performance of work undertaken pursuant to the applicable Supplement, AGENCY shall not, and shall affirmatively require that its contractors shall not, unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g. cancer), age (over 40), marital status, and denial of family care leave.
B. AGENCY shall ensure, and shall require that its contractors and all subcontractors and/or subrecipients shall ensure, that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. AGENCY shall comply, and ensure that its contractors and subcontractors and/or subrecipients shall comply, with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12990 (af), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into the applicable Supplement by reference and made a part hereof as if set forth in full.
C. Each of AGENCY's contractors, subcontractors, and/or subrecipients shall give written notice of their obligations under this clause to labor organizations with which they have collective bargaining or other labor agreements. AGENCY shall include the non-discrimination and compliance provisions hereof in all contracts and subcontracts to perform work under the applicable Supplement.
D. AGENCY shall comply with the nondiscrimination program requirements of Title VI of the Civil Rights Act of 1964. Accordingly, 49 CFR Part 21, and 23 CFR Part 200 are made applicable to the applicable Supplement by this reference. Wherever the term "Contractor" appears therein, it shall mean AGENCY.
E. AGENCY shall permit, and shall require that its contractors, subcontractors, and subrecipients will permit, access to all records of employment, employment advertisements, application forms, and other pertinent data and records by the State Fair Employment Practices and Housing Commission or any other agency of the State of California designated by STATE to investigate compliance with these non-discrimination provisions.
City Council/RSA Agenda 95 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-4
ADDITIONAL TERMS AND CONDITIONS
PREVAILING WAGE RATES, APPRENTICESHIPS, AND PAYROLL RECORDS
NON FEDERALLY FUNDED AGREEMENTS
AGENCY's contractor(s) and all subcontractors shall comply with applicable sections of the California Labor Code and regulations promulgated thereunder (including without limitation, Sections 1720 et seq. and Title 8 of the California Code of Regulations Sections 16000 et seq.) governing the payment of prevailing wages, as determined by the Director of the California Department of Industrial Relations, in regards to work performed and/or funded under this Agreement. In particular, AGENCY's attention is drawn to Labor Code Sections 1771 (payment of prevailing wage rate), 1775 (penalty for non-payment), 1776 (payroll records), and 1777.5 (use of apprentices). AGENCY's contractor(s) and all subcontractors, to the extent the work of such contractor(s) and subcontractors under this Agreement are subject to California Labor Code Section 1720 et seq., shall be registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 and shall furnish electronic certified payroll records directly to the Labor Commissioner through the internet portal of the Division of Labor Standards Enforcement. Per Master Funding Agreement Article 12.0, Recordsand 13.0 Audits,MTC reserves the right to request copies of the certified payroll records.
City Council/RSA Agenda 96 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-5
ADDITIONAL TERMS AND CONDITIONS
PREVAILING WAGE RATES, APPRENTICESHIPS, AND PAYROLL RECORDS
FEDERALLY FUNDED AGREEMENTS
The Additional Federal Clauses Applicable to Public Works included in Attachment A, attached hereto and incorporated herein by this reference, and the Davis-Bacon prevailing wages apply to work performed and/or funded under the applicable Supplement. AGENCY agrees that AGENCY will require its contractor(s) and all subcontractors will pay the higher of (i) the applicable wage set forth in Federal Wage Determinations, and (ii) the applicable California prevailing rate. Certified payroll records in the form set forth in the Public Works Payroll Reporting Form, as found at https://www.dol.gov/whd/forms/wh347.pdf,shall be prepared or collected from its contractor(s) and all subconsultant(s) on a weekly basis by the AGENCY. Per Master Funding Agreement Article 12.0, Recordsand 13.0 Audits,MTC reserves the right to request copies of the certified payroll records. MTC may withhold payment if the certified payrolls to be submitted by AGENCY pursuant to this Exhibit B-5, Prevailing Wage Rates, Apprenticeships, and Payroll Records, are not current.
City Council/RSA Agenda 97 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-5
ADDITIONAL FEDERAL CLAUSES APPLICABLE TO PUBLIC WORKS
1. Buy America
2. Davis-Bacon Act
3. Contract Work Hours and Safety Standards Act
4. Copeland Anti-Kickback Act
5. Prompt Payment of Funds Withheld to Subcontractors
City Council/RSA Agenda 98 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
1. Buy America Requirements
Buy America — Attention is directed to the "Buy America" requirements of the surface Transportation Assistance Act of 1982 (Section 165) and the Inter-nodal Surface Transportation Efficiency Act of 1991 (ISTEA) Sections 1041(a) and 1048(a), and the regulations adopted pursuant thereto. In conformance with the law and regulations, all manufacturing processes for steel and iron materials furnished for incorporation into the work on this project shall occur in the United States; with the exception that pig iron and processed, pelletized and reduced iron ore manufactured outside of the United States may be used in the domestic manufacturing process for such steel and iron materials. The application of coatings, such as epoxy coating, galvanizing, painting, and other coating that protects or enhances the value of steel or iron materials shall be considered a manufacturing process subject to the "Buy America" requirements. A Certificate of Compliance shall be furnished for steel and iron materials. The certificates shall specifically certify that all manufacturing processes for the materials occurred in the United States, except for the above exceptions.
The requirements imposed on AGENCY by the law and regulations do not prevent a minimal use of foreign steel and iron materials if the total combined cost of the materials used does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater. The AGENCY or its contractor(s) shall furnish the Engineer acceptable documentation of the quantity and value of the foreign steel and iron prior to incorporation the materials into the work.
Certification requirement for procurement of steel, iron, or manufactured products.
The AGENCY hereby certifies that all manufacturing process for steel and iron materials occurred in the United States, except for the above exceptions.
Signature:
Name and Title:
Company Name:
Date:
Reggie Chandra, CEO
Rhythm Engineering, LLC
4/5/22
City Council/RSA Agenda 99 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
2. DAVIS-BACON ACT
For all prime construction, alteration or repair contracts in excess of $2,000 awarded by FTA, the Contractor shall comply with the Davis-Bacon Act and the Copeland "Anti-Kickback" Act. Under 49 U.S.C. § 5333(a), prevailing wage protections apply to laborers and mechanics employed on FTA assisted construction, alteration, or repair projects. The Contractor will comply with the Davis-Bacon Act, 40 U.S.C. §§ 3141-3144, and 3146-3148 as supplemented by DOL regulations at 29 C.F.R. part 5, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction." In accordance with the statute, the Contractor shall pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, the Contractor agrees to pay wages not less than once a week. The Contractor shall also comply with the Copeland "Anti-Kickback" Act (40 U.S.C. § 3145), as supplemented by DOL regulations at 29 C.F.R. part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans or Grants from the United States." The Contractor is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled.
3. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Contract Work Hours and Safety Standards Act - (i) The AGENCY's contractor agrees to comply with section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. section 333, and applicable DOL regulations, "Safety and Health Regulations for Construction" 29 C.F.R. Part 1926. Among other things, the AGENCY's contractor agrees that it will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings or working conditions.
(ii) Subcontracts - The AGENCY's contractor also agrees to include the requirements of this section in each subcontract. The term "subcontract" under this section is considered to refer to a person who agrees to perform any part of the labor or material requirements of a contract for construction, alteration or repair. A person who undertakes to perform a portion of a contract involving the furnishing of supplies or materials will be considered a "subcontractor" under this section if the work in question involves the performance of construction work and is to be performed: (1) directly on or near the construction site, or (2) by the employer for the specific project on a customized basis. Thus, a supplier of materials which will become an integral part of the construction is a "subcontractor" if the supplier fabricates or assembles the goods or materials in question specifically for the construction project and the work involved may be said to be construction activity. If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "subcontractor." The requirements of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market.
4. COPELAND ANTI-KICKBACK ACT
City Council/RSA Agenda 100 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
Compliance with Copeland Act requirements - The AGENCY's contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract.
5. PROMPT PAYMENT OF FUNDS WITHHELD TO SUBCONTRACTORS
The AGENCY shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the agency of the contract work and pay retainage to the prime contractor based on these acceptances. The AGENCY's prime contractor or subcontractor shall return all monies withheld in retention from a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Federal regulation (49 CFR 26.29) requires that any delay or postponement of payment over 30 days may take place only for good cause and with the agency's prior written approval. Any violation of this provision shall subject the violating AGENCY's prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise, available to the prime contractor or subcontractor in the event of a dispute involving late payment, or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both DBE and non-DBE prime contractors and subcontractors.
City Council/RSA Agenda 101 Tuesday, April 12, 2022
MASTER FUNDING AGREEMENT
BETWEEN THE METROPOLITAN TRANSPORTATION COMMISSION
AND
THE CITY OF UNION CITY
PLANNING, PROGRAMMING,
TRANSPORTATION, TRANSIT, LAND USE OR OTHER PROJECTS
FOR
FISCAL YEAR 2018-19 through FISCAL YEAR 2027-28
City Council/RSA Agenda 102 Tuesday, April 12, 2022
TABLE OF CONTENTS
ARTICLE PAGE
1.0 GENERAL 2
2.0 INTERAGENCY AGREEMENT ADMINISTRATION 2
3.0 FUNDING 2
4.0 TERM 3
5.0 PAYMENT 3
6.0 DELAYS AND FAILURE TO PERFORM 3
7.0 AMENDMENTS 4
8.0 TERMINATION 4
9.0 USE OF THIRD PARTY CONTRACTS 4
10.0 INDEMNIFICATION 4
11.0 LAWS AND REGULATIONS 5
12.0 RECORDS 5
13.0 AUDITS 5
14.0 SUBCONTRACTS 6
15.0 PROHIBITED INTERESTS 6
16.0 ORGANIZATIONAL CONFLICTS OF INTEREST 7
17.0 CHOICE OF LAW 8
18.0 PARTIAL INVALIDITY 8
19.0 NO THIRD PARTY BENEFICIARIES 8
20.0 ORDER OF PRECEDENCE 8
EXHIBIT A, FORM OF SUPPLEMENT 9
EXHIBIT B-1 ADDITIONAL TERMS AND CONDITIONS (GENERAL) 11 CERTIFICATION OF RESTRICTIONS ON LOBBYING 20
EXHIBIT B-3, ADDITIONAL TERMS AND CONDITIONS (STATE REQUIRED CLAUSES) 21
EXHIBIT B-4, ADDITIONAL TERMS AND CONDITIONS (PREVAILING WAGE
RATES, APPRENTICESHIPS, AND PAYROLL RECORDS, NON FEDERALLY FUNDED AGREEMENTS) 34
EXHIBIT B-5, ADDITIONAL TERMS AND CONDITIONS (PREVAILING WAGE
RATES, APPRENTICESHIPS, AND PAYROLL RECORDS, FEDERALLY FUNDED AGREEMENTS) 35
EXHIBIT B-6, ADDITIONAL TERMS AND CONDITIONS (RM1, RM2, AB 1171) 39 EXHIBIT B-7, ADDITIONAL TERMS AND CONDITIONS (STP) 45
EXHIBIT C, FORM 10-C 49
City Council/RSA Agenda 103 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
1.0 GENERAL
This Master Funding Agreement shall have no force and effect with respect to a Project or any portion thereof unless and until a Supplement has been fully executed by both MTC and AGENCY governing the relevant Project. Exhibit A, Form of Supplement,is attached hereto and incorporated herein. Each Supplement shall include the following information:
a. A description of the applicable Project scope of work; b. A maximum payment amount for the applicable Project scope of work; c. An indication of whether the various clauses attached hereto as Exhibits B-1 through B-7 shall apply to AGENCY's implementation of the applicable Project scope of work; d. Any additional covenants, conditions, restrictions or reporting requirements that apply to the applicable Project scope of work or funding source MTC is providing to AGENCY; e. Identification of the MTC and AGENCY project managers for the applicable Project scope of work;
f. The estimated budget and payment milestones for the applicable Project scope of work; and
g. Any MTC or AGENCY resolutions, authorizations or approvals, or any other key documents, relevant to the applicable Project scope of work or funding source MTC is providing to AGENCY.
Upon execution by MTC and AGENCY of such a Supplement, AGENCY shall assume the responsibility for implementing the applicable Project scope of work, and MTC will administer funding to AGENCY in accordance with this Agreement, the applicable Supplement, and any other documents incorporated by reference into such Supplement.
2.0 INTERAGENCY AGREEMENT ADMINISTRATION
The administration of this Agreement will be conducted by MTC staff. Day-to-day management of individual projects required under this Agreement is assigned to the appropriate Project Manager at AGENCY and Project Manager at MTC, as set forth in the applicable Supplement.
3.0 FUNDING
A. The total compensation to be paid to AGENCY under this Agreement shall be the sum of the amounts of compensation payable to AGENCY as set forth in each Supplement.
City Council/RSA Agenda 104 Tuesday, April 12, 2022
MASTER FUNDING AGREEMENT
Between METROPOLITAN TRANSPORTATION COMMISSION
And THE CITY OF UNION CITY
For PLANNING, PROGRAMMING,
TRANSPORTATION, TRANSIT, LAND USE OR OTHER PROJECTS
This Master Funding Agreement, effective as of July 1, 2018 (this "Master Funding Agreement" or "Agreement"), is entered into by and between the Metropolitan Transportation Commission (hereafter "MTC"), a regional transportation planning agency established pursuant to California Government Code § 66500 et seq., and the City of Union City (hereafter "AGENCY"). MTC and AGENCY are collectively referred to herein as "the Parties."
WITNESSETH
WHEREAS, MTC has been designated as the Metropolitan Planning Organization (MPO - federal) and the Regional Transportation Planning Agency ("RTPA" - state) for the San Francisco Bay Region; and
WHEREAS, MTC from time to time expects to provide funds available to it as MPO, RTPA or otherwise to AGENCY; and
WHEREAS, it is expected that these funds will be used for planning, programming, transportation, transit, land use or other projects relevant to MTC or its statutory purposes (the "Project" or "Projects"); and
WHEREAS, the Parties wish to set forth the terms and conditions under which MTC may from time to time provide funding to AGENCY for the period from July 1, 2018 to June 30, 2028; and
WHEREAS, before MTC will make funds available hereunder, MTC and AGENCY will enter into at least one Supplement to this Master Funding Agreement, which must be in substantially the form attached hereto as Exhibit A (each, a "Supplement") to establish the terms and conditions applicable to AGENCY when receiving funds for the Project; NOW, THEREFORE, the Parties hereto agree as follows:
City Council/RSA Agenda 105 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
B. AGENCY and MTC jointly agree to exert their best efforts to manage each component of the Project in such a way that prevents costs from exceeding the estimated budget set forth in the applicable Supplement.
C. Reimbursement of AGENCY travel expenses and per diem rates are not to exceed the rate specified by the State of California Department of Personnel Administration for similar employees (i.e. non-representative employees)
4.0 TERM
This Agreement is in effect from July 1, 2018 to June 30, 2028. This Agreement term may be extended by mutual written agreement.
5.0 PAYMENT
Contingent upon AGENCY's satisfactory completion of work products or milestones, as applicable, required under the applicable Supplement, AGENCY shall submit invoices to MTC for that portion of the funds available to AGENCY that have been expended. This invoice will be in the format and provided no more frequently than prescribed by MTC in the applicable Supplement. In addition, all supporting documentation must accompany expenditures included on AGENCY invoices. Payment shall be made by MTC within thirty (30) days of receipt of an acceptable invoice, which shall be subject to the review and approval of MTC's Project Manager or a designated representative. Approval of an invoice shall not be unreasonably withheld.
AGENCY should submit invoices electronically via email to MTC at [email protected] deliver or mail invoices to MTC, as follows:
Attention: Accounting Section
Metropolitan Transportation Commission
Bay Area Metro Center
375 Beale Street, Suite 800
San Francisco, CA, 94105
6.0 DELAYS AND FAILURE TO PERFORM
Whenever AGENCY encounters any difficulty that will delay timely performance of work, AGENCY shall notify MTC in writing. The parties agree to cooperate to work out a mutually satisfactory course of action.
If MTC determines that (a) AGENCY's failure to complete a product on a timely basis is due to causes solely within AGENCY's control; and/or (b) AGENCY has failed to consider MTC recommendations aimed at facilitating progress toward that product, MTC may impose City Council/RSA Agenda 106 Tuesday, April 12, 2022
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such sanctions as it may determine appropriate. Sanctions may include withholding of commensurate payment due under this Agreement until compliance is achieved.
7.0 AMENDMENTS
This Agreement or any Supplement hereto may be amended by mutual agreement of MTC and AGENCY at any time during the term of the Agreement. All such changes shall be incorporated in written amendments, which shall specify the changes in work performed and any adjustments in compensation and schedule. All amendments shall be executed by the authorized Executive or a designated representative of MTC and AGENCY and specifically identified as amendments to the Agreement. The MTC Project Manager is not a designated representative, for purposes of executing an amendment.
8.0 TERMINATION
Either party may terminate this Agreement, in whole or in part, at any time upon ninety (90) days' written notice. In this event, AGENCY shall submit a requisition to MTC for an amount representing the actual cost of services performed up to the effective date of termination for which AGENCY has not been previously reimbursed. In no event shall the maximum expenditure allowed under this Agreement, as it may be adjusted by a written amendment signed by both parties, be exceeded. Upon payment of the amount found due, MTC shall be under no further obligation to AGENCY, monetarily or otherwise.
9.0 USE OF THIRD PARTY CONTRACTS
AGENCY may subcontract or subvene funds to local agencies, consultants or contractors for performance of portions of the work required under this Agreement, without the prior written consent of MTC, provided AGENCY complies with any other applicable requirements of this Agreement and the applicable Supplement hereto, and applicable federal and state requirements.
10.0 INDEMNIFICATION
AGENCY shall indemnify, defend, and hold harmless MTC, its Commissioners, representatives, agents and employees from and against all claims, injury, suits, demands, liability, losses, damages and expenses, whether direct or indirect (including any and all costs and expenses in connection therewith), incurred by reason of any act or failure to act of AGENCY, its officers, employees or agents, or subconsultants or any of them in connection with this Agreement.
City Council/RSA Agenda 107 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
11.0 LAWS AND REGULATIONS
AGENCY shall comply with any and all laws, statutes, ordinances, rules, regulations or requirements of the federal, state and/or a local government, and of any agency thereof, including but not limited to the California Department of Transportation (Caltrans) Local Assistance Procedures Manual, as they exist at the time of execution of the Agreement and as they may be amended in the future, which relate to or in any manner affect the performance of this Agreement and any Supplements.
12.0 RECORDS
AGENCY agrees to establish and maintain an accounting system conforming to generally accepted accounting principles (GAAP) that is adequate to accumulate and segregate reasonable, allowable, and allocable project costs. AGENCY further agrees to keep all records pertaining to the Project(s) being funded for audit purposes for a minimum of: (a) three (3) years following final payment to AGENCY, (b) four (4) years following the fiscal year of last expenditure under the Agreement; or (c) until completion of any litigation, claim or audit, whichever is longest.
13.0 AUDITS
AGENCY shall permit MTC and MTC's authorized representatives to have access to AGENCY's books, records, accounts, and any and all work products, materials, and other data relevant to this Agreement, for the purpose of making an audit, examination, excerpt and transcription during the term of this Agreement and for the period specified in Article 12.
AGENCY shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, work products, materials and data for that period of time. Such permission shall extend to books, records, accounts, and any and all work products, materials, and other data relevant to this Agreement of the AGENCY's contractors and subcontractors, if any. If applicable, should MTC request access to the construction site and related field operations, MTC shall provide reasonable notice to AGENCY, and AGENCY shall provide access as it deems reasonable and safe, subject to the rights of the property owner if such owner is not AGENCY.
AGENCY further agrees to include in all its subcontracts hereunder exceeding $25,000 a provision to the effect that the subconsultant agrees that MTC or any of MTC's duly authorized representatives shall have access to and the right to examine any directly pertinent books, documents, papers, and records of such subconsultant for the term specified above. "Subconsultant" is defined in Article 14.0 Subcontracts, below.
City Council/RSA Agenda 108 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
14.0 SUBCONTRACTS
A. For purposes of this Agreement, "subconsultant" shall mean any consultant or contractor under contract with the AGENCY to perform Project work. Any subconsultants must be engaged under written contract with AGENCY with provisions allowing AGENCY to comply with all requirements of this Agreement. Failure of a subconsultant to provide any insurance required under this Agreement shall be at the risk of AGENCY. MTC's Project Manager shall be notified in writing of any substitution or addition of subconsultants.
For any Project funded by Federal Transit Administration (FTA), Federal Highway Administration (FHWA) or Caltrans, AGENCY shall complete Form 10-C, as may be revised by Caltrans from time to time, the current version of which is attached hereto as Exhibit C, Form 10-C, within thirty (30) days of executing an agreement with a subconsultant and submit it to MTC's Project Manager. MTC shall not process payment of any invoice under the applicable Supplement relating to work by a subconsultant unless AGENCY shall have submitted to MTC a Form 10-C with respect to its contract with such subconsultant.
B. Nothing contained in this Agreement or otherwise, shall create any contractual relation between MTC and any subconsultants, and no subcontract shall relieve AGENCY of his/her responsibilities and obligations hereunder. AGENCY agrees to be as fully responsible to MTC for the acts and omissions of its subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by AGENCY. AGENCY's obligation to pay its subconsultants is an independent obligation from MTC's obligation to make payments to AGENCY.
C. Applicable provisions of this Agreement shall be included in any subcontract or subconsultant agreement in excess of $25,000 entered into under of this Agreement.
15.0 PROHIBITED INTERESTS
No member, officer, employee or agent of MTC, during his/her tenure shall have any prohibited interest as defined by California Government Code Sections 1090, et seq., direct or indirect, in the Agreement or the proceeds thereof. Prohibited interests include interests of immediate family members, domestic partners, and their employers or prospective employers.
Accordingly, AGENCY further covenants that it has made a complete disclosure to MTC of all facts of which AGENCY is aware upon due inquiry bearing upon any possible interest, direct or indirect, that it believes any member, officer, agent or employee of MTC (or an immediate family member, domestic partner or employer or prospective employer of such member, officer, City Council/RSA Agenda 109 Tuesday, April 12, 2022
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agent or employee) presently has, or will have in the Agreement, or in the performance thereof, or in any portion of the profits thereunder. Willful failure to make such disclosure, if any, shall constitute grounds for cancellation and termination hereof by MTC.
16.0 ORGANIZATIONAL CONFLICTS OF INTEREST
AGENCY shall take all reasonable measures to preclude the existence or development of an organizational conflict of interest in connection with work performed by subconsultants or subcontractors under this Agreement. An organizational conflict of interest occurs when, due to other activities, relationships, or contracts, a firm or person is unable, or potentially unable, to render impartial assistance or advice to MTC or AGENCY; a firm or person's objectivity in performing the contract work is or might be impaired; or a firm or person has an unfair competitive advantage in proposing for award of a contract as a result of information gained in performance of this or some other Agreement.
AGENCY shall not engage the services of any subconsultant or subcontractor on any work related to this Agreement if the subconsultant or subcontractor, or any employee of the subconsultant or subcontractor, has an actual or apparent organizational conflict of interest related to work or services contemplated under this Agreement.
If at any time during the term of this Agreement AGENCY becomes aware of an organizational conflict of interest in connection with the work performed by a subconsultant or subcontractor hereunder, AGENCY shall immediately provide MTC with written notice of the facts and circumstances giving rise to this organizational conflict of interest. AGENCY's written notice will also describe alternatives for addressing or eliminating the organizational conflict of interest. If at any time during the period of performance of this Agreement, MTC becomes aware of an organizational conflict of interest in connection with performance of any work hereunder by a subconsultant or subcontractor, MTC shall similarly notify AGENCY. In the event a conflict is presented, whether disclosed by AGENCY or its subconsultant or subcontractor, or discovered by MTC, MTC will consider the conflict presented and any alternatives proposed and meet with AGENCY to determine an appropriate course of action.
MTC's determination as to the manner in which to address the conflict shall be final.
Failure to comply with this section may subject AGENCY or its subconsultant or subcontractor to damages incurred by MTC in addressing organizational conflicts that arise out of work performed by such subconsultant or subcontractor, or to termination of this Agreement for breach.
City Council/RSA Agenda 110 Tuesday, April 12, 2022
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Master Funding Agreement for FY 2017-18 to FY 2026-27
17.0 CHOICE OF LAW
All questions pertaining to the validity and interpretation of the Agreement shall be determined in accordance with the laws of the State of California applicable to agreements made and to be performed within the State.
18.0 PARTIAL INVALIDITY
If any term or condition of this Agreement is found to be illegal or unenforceable, such term or condition shall be deemed stricken and the remaining terms and conditions shall remain valid and in full force and effect.
19.0 NO THIRD PARTY BENEFICIARIES
This Agreement is not for the benefit of any person or entity other than the parties.
20.0 ORDER OF PRECEDENCE
In the event of a conflict in the provisions of this Agreement, any Supplement hereto, or the Exhibits hereto incorporated by reference into such Supplement, the following order of priority shall be used in resolving such conflict: the applicable Supplement shall have first priority, then the Exhibits incorporated into such Supplement, then this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the day and year first written above.
METROPOLITAN TRANSPORTATION CITY OF UNION CITY
COMMISSION
Steve Heminger, Executive Director Ton osta, City Manager (1— JACONTRACT\Contracts-New\Master Funding Agreements\Union City\Union City (Master Funding Agreement) final.docx City Council/RSA Agenda 111 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT A
FORM OF SUPPLEMENT
SUPPLEMENT 1 TO MASTER FUNDING AGREEMENT
This Supplement No. to Master Funding Agreement ("Supplement or "Agreement") is entered into this day of , 2017, by and between the Metropolitan Transportation Commission (hereafter "MTC") and [AGENCY] (hereafter "AGENCY") and supplements the Master Funding Agreement, dated ,2017, by and between MTC and AGENCY.
Pursuant to this Supplement, MTC agrees to provide an amount not to exceed dollars ($ ) in [describe funding source] to AGENCY to fund the [brief description of Project] (as more fully described in Annex I hereto, the "Supplement Project"). The estimated budget and payment milestones for the Supplement Project scope of work is attached as Annex II hereto.
MTC will reimburse AGENCY for its actual eligible costs incurred for completed Supplement Project milestones or deliverables described in Annex II hereto.
The Supplement Project work will commence [date], and be completed no later than ,20 .
The clauses selected below and attached as exhibits to the Master Funding Agreement shall apply to AGENCY's performance of the applicable Supplement Project scope of work hereunder:
• Exhibit B-1, Additional Terms and Conditions (General), Paragraph A o Exhibit B-1, Additional Terms and Conditions (General), Paragraph B El Exhibit B-2, Additional Terms and Conditions (Federally Required Clauses) O Exhibit B-3, Additional Terms and Conditions (State Required Clauses) o Exhibit B-4, Additional Terms and Conditions (Prevailing Wage Rates, Apprenticeships, and Payroll Records, Non-Federally-Funded Agreements)
O Exhibit B-5, Additional Terms and Conditions (Prevailing Wage Rates, Apprenticeships, and Payroll Records, Federally-Funded Agreements)
El Exhibit B-6, Additional Terms and Conditions (Regional Toll Funds including RM1, RM2, and AB1171)
O Exhibit B-7, Additional Terms and Conditions (Regional Discretionary Federal Funds including STP and CMAQ)
[Insert any additional covenants, conditions, restrictions or reporting requirements that apply to the Supplement Project scope of work or funding source MTC is providing to AGENCY.]
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[Describe/attach any MTC or AGENCY resolutions, authorizations or approvals, or any other key documents, relevant to the applicable Project scope of work or funding source MTC is providing to AGENCY.]
The MTC Project Manager for the Supplement Project is [name, telephone, email]. The AGENCY Project Manager for the Supplement Project is [name, telephone, email].
This Supplement is supplemental to the Master Funding Agreement; all terms and conditions of the Master Funding Agreement, as may be amended, remain unchanged hereby.
Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Master Funding Agreement.
METROPOLITAN TRANSPORTATION [AGENCY]
COMMISSION
Steve Heminger, Executive Director [Name/Title]
City Council/RSA Agenda 113 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-1
ADDITIONAL TERMS AND CONDITIONS (GENERAL)
A. INSURANCE REQUIREMENTS
AGENCY shall, at its own expense, obtain and maintain (and/or cause its subconsultant(s) to obtain and maintain, as applicable) the types of insurance and financial security listed (if any) in the applicable attachment or exhibit to the relevant Supplement against claims, damages and losses due to injuries to persons or damage to property or other losses that may arise in connection with the performance of work under such Supplement, and in effect at all times for the duration of such Supplement. All policies will be issued by insurers acceptable to MTC, generally with a Best's Rating of A- or better with a Financial Size Category of VIII or better, or as otherwise specified in the applicable Supplement. Notwithstanding anything to the contrary, AGENCY may satisfy the insurance requirements herein utilizing self-insurance providing equivalent coverage.
B. CLAIMS OR DISPUTES
Unless otherwise directed in writing by MTC, AGENCY shall continue performance under this Agreement while any matters in dispute are being resolved. Further, MTC shall pay AGENCY for any undisputed work performed by AGENCY prior to or during the resolution of the matters in dispute. In the event there is a dispute concerning the interpretation of this Agreement or any aspect of the Project that the project managers identified by MTC and AGENCY are unable to resolve, the project manager for either MTC or AGENCY may request that an ad hoc Dispute Resolution Committee ("DRC") be convened to resolve the dispute. The DRC shall consist of two members, one appointed by the MTC Executive Director and the other appointed by the Chief Executive Officer of AGENCY. The responsibility of chairing each ad hoc DRC shall alternate between the agencies, beginning with MTC. Further, disputes between MTC and AGENCY that cannot be resolved by the DRC may be submitted to alternative dispute resolution, as agreed to by the parties. Fees and expenses of the mediator will be borne equally.
City Council/RSA Agenda 114 Tuesday, April 12, 2022
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Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-2
ADDITIONAL TERMS AND CONDITIONS
FEDERALLY REQUIRED CLAUSES
1. EQUAL EMPLOYMENT OPPORTUNITY
In accordance with Title VI of the Civil Rights Act, as amended (42 U.S.C. § 2000d); Section VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e); Section 303 of the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6102); Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12132); and, for FTA-funded projects, 49 U.S.C. § 5332 and any implementing requirements that FTA may issue. AGENCY agrees that it will not, on the grounds of race, religious creed, color, national origin, age, physical disability or sex, discriminate or permit discrimination against any employee or applicant for employment.
2. DISADVANTAGED BUSINESS ENTERPRISE (DBE) POLICY
It is the policy of MTC and the U.S. Department of Transportation to ensure nondiscrimination in the award and administration of DOT-assisted contracts and to create a level playing field on which disadvantaged business enterprises, as defined in 49 Code of Federal Regulations Part 26, can compete fairly for contracts and subcontracts relating to MTC's procurement and professional services activities.
AGENCY shall not discriminate on the basis of race, color, national origin or sex in the performance of the applicable Supplement. AGENCY shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by AGENCY to carry out these requirements is a material breach of contract, which may result in the termination of the applicable Supplement or this Agreement, or such other remedy as MTC deems appropriate.
3. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
AGENCY agrees to comply with all the requirements imposed by Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000(d)) and the regulations of the Department of Transportation issued thereunder (49 CFR Part 21). For FTA-funded projects, AGENCY further agrees to comply with the current FTA Circular 4702.1A, "Nondiscrimination Guidelines for FTA Recipients," the U.S. DOT Order to Address Environmental Justice in Minority Populations and Low-Income Populations, and the U.S. DOT Policy Guidance Concerning Recipients' Responsibilities to Limited English Proficient (LEP) Persons.
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4. ACCESS REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES AGENCY agrees to comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; Section 16 of the Federal Transit Act, as amended, 49 U.S.C. § 5310(f); and their implementing regulations.
5. STATE ENERGY CONSERVATION PLAN
AGENCY shall comply with all mandatory standards and policies relating to energy efficiency that are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. § 6321).
6. ALLOWABILITY OF COSTS
AGENCY shall comply with the cost principles (as applicable) in Office of Management and Budget (OMB) Circulars A-87, or A-122, or 48 Code of Federal Regulations Chapter 1 Part 31, or 49 Code of Federal Regulations Part 18, or in 2 Code of Federal Regulations Parts 200 and 1201, as applicable. In addition, all subcontracts must be in accordance with 2 Code of Federal Regulations Part 200, as applicable, MTC's funding agreement with DOT and any regulations, guidelines and circulars of DOT, applicable as a result of such funding agreement. Further, all subconsultants shall agree to comply with 48 Code of Federal Regulations, Chapter 1, Part 31.
7. LICENSE FOR FEDERAL GOVERNMENT PURPOSES
FTA/FHWA reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for federal government purposes: (a) the copyright in any work developed under the applicable Supplement; and (b) any rights of copyright to which MTC or AGENCY purchases ownership under the applicable Supplement.
8. IDENTIFICATION OF DOCUMENTS
All reports and other documents completed as part of the applicable Supplement shall carry the following notation on the front cover or title page:
"The preparation of this report has been financed in part by grants from the: [select appropriate agency] Federal Transit Administration/Federal Highway Administration, U.S.
Department of Transportation. The contents of this report do not necessarily reflect the official views or policy of the U.S. Department of Transportation." City Council/RSA Agenda 116 Tuesday, April 12, 2022
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9. AUDITS
AGENCY agrees to grant MTC, the U.S. DOT, FTA or FHWA, as applicable, the Comptroller General of the United States, the State of California, and their authorized representatives access to AGENCY's books, records, accounts, and any and all work products, materials, and other data relevant to the applicable Supplement, for the purpose of making an audit, examination, excerpt and transcription during the term of the applicable Supplement and for the period specified in Article 14. AGENCY shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, work products, materials and data for that period of time.
If, as a result of any audit, it is determined by the auditor that reimbursement of any costs including profit or fee under the applicable Supplement was in excess of that represented and relied upon during price negotiations or represented as a basis for payment, AGENCY agrees to reimburse MTC for those costs within sixty (60) days of written notification by MTC.
AGENCY further agrees to include in all its subcontracts hereunder exceeding $25,000 a provision to the effect that the subrecipient agrees that MTC the U.S. DOT, FTA or FHWA, as applicable, the Comptroller General of the United States, the State of California, and their authorized representatives shall have access to and the right to examine any directly pertinent books, documents, papers, and records of such subrecipient for the term specified above.
10. FLY AMERICA REQUIREMENTS.
AGENCY agrees to comply with 49 U.S.C. 40118 (the "Fly America Act") in accordance with the General Services Administration's regulations at 41 CFR Part 301 - 10, which provide that recipients and subrecipients of Federal funds and their consultants are required to use U.S. flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property to the extent such service is available, unless travel by foreign air carrier is a matter of necessity as defined by the Fly America Act. AGENCY shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements, if used. AGENCY agrees to include the requirements of this Section in all subcontracts that may involve international air transportation.
11. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS.
A. AGENCY acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, City Council/RSA Agenda 117 Tuesday, April 12, 2022
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"Program Fraud Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, AGENCY certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Supplement or the FTA assisted project for which work is being performed under the applicable Supplement.
In addition to other penalties that may be applicable, AGENCY further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on AGENCY to the extent the Federal Government deems appropriate.
B. AGENCY also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on AGENCY, to the extent the Federal Government deems appropriate.
C. AGENCY agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subconsultant who will be subject to the provisions.
12. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES
MTC and AGENCY acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the applicable Supplement or this Agreement, absent the express written consent by the Federal Government, the Federal Government is not a party to this Agreement and shall not be subject to any obligations or liabilities to MTC, AGENCY or any other party (whether or not a party to this Agreement) pertaining to any matter resulting from this Agreement.
13. DEBARMENT
This Article is only applicable lithe applicable Supplement exceeds $25,000. AGENCY certifies that neither it, nor any of its participants, principals or subrecipients is or has been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions, as they are defined in 2 CFR Parts 180 and 1200, by any Federal agency or department.
City Council/RSA Agenda 118 Tuesday, April 12, 2022
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Master Funding Agreement for FY 2017-18 to FY 2026-27
14. CLEAN AIR AND WATER POLLUTION ACTS
This Article is only applicable if the applicable Supplement exceeds $100,000.
AGENCY agrees to comply with the applicable requirements of all standards, orders, or requirements issued under the Clean Air Act (42 U.S.C. § 7501 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15).
15. LOBBYING
This Article is only applicable if the applicable Supplement exceeds $100,000.
AGENCY agrees to comply with the restrictions on the use of federal funds for lobbying activities set forth in 31 United States Code §1352 and 49 C.F.R. Part 20.
Attachments:
Attachment A — Federally Required Certifications (AGENCY shall either provide these certifications to MTC or shall provide copies of such certifications AGENCY has independently made to the Federal Government.)
City Council/RSA Agenda 119 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-2
Attachment A
Federally Required Certifications
CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER
RESPONSIBILITY MATTERS
Instructions for Certification:
1. By signing and submitting this bid or proposal, the prospective lower tier participant is providing the signed certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, MTC may pursue available remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to MTC if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "persons," "lower tier covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29]. You may contact MTC for assistance in obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized in writing by MTC.
6. The prospective lower tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — Lower Tier Covered Transaction", without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by U.S. General Service Administration.
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Master Funding Agreement for FY 2017-18 to FY 2026-27
8. Nothing contained in the foregoing shall be construed to require establishment of system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to all remedies available to the Federal Government, MTC may pursue available remedies including suspension and/or debarment.
City Council/RSA Agenda 121 Tuesday, April 12, 2022
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Master Funding Agreement for FY 2017-18 to FY 2026-27
CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
LOWER TIER COVERED TRANSACTION
(1) The prospective lower tier participant certifies, by submission of this bid or proposal, that neither it nor its "principals" [as defined at 49 C.F.R. Section 29.105(p)] is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. (2) When the prospective lower tier participant is unable to certify to the statements in this certification, such prospective participant shall attach an explanation to this proposal.
Date (signature of authorized official)
(type/print name and title)
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Master Funding Agreement for FY 2017-18 to FY 2026-27
CERTIFICATION OF RESTRICTIONS ON LOBBYING
I, hereby certify on behalf of that:
(name and title of grantee (name of grantee)
official)
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all sub awards at all tiers (including subcontracts, sub grants, and contracts under grants, loans, and cooperative agreements) and that all sub recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance is placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
day of , 20
By:
(signature of authorized official)
Executed this
(title of authorized official)
City Council/RSA Agenda 123 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-3
ADDITIONAL TERMS AND CONDITIONS
STATE REQUIRED CLAUSES
1) Attachment A — Fair Employment Practices Addendum
2) Attachment B — Nondiscrimination Assurances
a. Appendix A — Clauses to be inserted in every agreement subject to the ACT, as defined in Attachment B of this Exhibit and REGULATIONS, also as defined in Attachment B.
b. Appendix B — To be included as covenant running with the land, in any deed affecting a transfer of real property, structures, or improvements thereon, or interest therein
c. Appendix C — To be included for subsequent transfer of real property acquired or improved under federal-aid Program
d. Appendix D — To be included for the construction or use of or access to space on, over, or under real property acquired or improved under the federal-aid Program 3) Attachment C — State Department of Transportation Requirements City Council/RSA Agenda 124 Tuesday, April 12, 2022
EXHIBIT B-3
ATTACHMENT A
FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of the applicable Supplement, AGENCY shall not discriminate against any employee for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g. cancer), age (over 40), marital status, and denial of family care leave. AGENCY shall take affirmative action to ensure that employees are treated during employment without regard to their race, sex, sexual orientation, color, religion, ancestry, or national origin, physical disability, medical condition, marital status, political affiliation, family and medical care leave, pregnancy leave, or disability leave. Such action shall include, but not be limited to, the following: employment; upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
AGENCY shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section.
2. AGENCY, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12900 et seq.), and the applicable regulations promulgated thereunder (California code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900(a-0, set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into the applicable Supplement by reference and made a part hereof as if set forth in full. Each of the AGENCY'S contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements as appropriate.
3. AGENCY shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under the applicable Supplement.
4. AGENCY shall permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment section of the applicable Supplement.
5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that AGENCY has violated the Fair Employment Practices Act and had issued an order under Labor Code Section 1426 which has become final or has obtained an injunction under Labor Code Section 1429.
City Council/RSA Agenda 125 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
(b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate the funding for the applicable Supplement either in whole or in part, and any loss or damage sustained by STATE in securing the goods or services thereunder shall be borne and paid for by AGENCY and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or thereafter may become due to AGENCY, the difference between the price named in the Agreement and the actual cost thereof to STATE to cure AGENCY's breach of the applicable Supplement.
City Council/RSA Agenda 126 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-3
ATTACHMENT B
NONDISCRIMINATION ASSURANCES
AGENCY HEREBY AGREES THAT, as a condition to receiving any federal financial assistance from the STATE, acting for the U.S. Department of Transportation, it will comply with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-42 U.S.C. 2000d-4 (hereinafter referred to as the ACT), and all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, "Nondiscrimination in Federally-Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964" (hereinafter referred to as the REGULATIONS), the Federal-aid Highway Act of 1973, and other pertinent directives, to the end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person in the United States shall, on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which AGENCY receives federal financial assistance from the Federal Department of Transportation. AGENCY HEREBY GIVES ASSURANCE THAT AGENCY shall promptly take any measures necessary to effectuate the applicable Supplement. This assurance is required by subsection 21.7(a) (1) of the REGULATIONS.
More specifically, and without limiting the above general assurance, AGENCY hereby gives the following specific assurances with respect to its federal-aid Program:
1. That AGENCY agrees that each "program" and each "facility" as defined in subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a "program") conducted, or will be (with regard to a "facility") operated in compliance with all requirements imposed by, or pursuant to, the REGULATIONS.
2. That AGENCY shall insert the following notification in all solicitations for bids for work or material subject to the REGULATIONS made in connection with the federal-aid Program and, in adapted form, in all proposals for negotiated agreements: AGENCY hereby notifies all bidders that it will affirmatively insure that in any agreement entered into pursuant to this advertisement, minority business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex, national origin, religion, age, or disability in consideration for an award.
3. That AGENCY shall insert the clauses of Appendix A of this assurance in every agreement subject to the ACT and the REGULATIONS.
4. That the clauses of Appendix B of this Assurance shall be included as a covenant running with the land, in any deed affecting a transfer of real property, structures, or improvements thereon, or interest therein.
City Council/RSA Agenda 127 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
5. That where AGENCY receives federal financial assistance to construct a facility, or part of a facility, the Assurance shall extend to the entire facility and facilities operated in connection therewith.
6. That where AGENCY receives federal financial assistance in the form, or for the acquisition, of real property or an interest in real property, the Assurance shall extend to rights to space on, over, or under such property.
7. That AGENCY shall include the appropriate clauses set forth in Appendix C and D of this Assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the AGENCY with other parties:
Appendix C;
(a) for the subsequent transfer of real property acquired or improved under the federal-aid Program; and
Appendix D;
(b) for the construction or use of or access to space on, over, or under real property acquired, or improved under the federal-aid Program.
8. That this assurance obligates AGENCY for the period during which federal financial assistance is extended to the program, except where the federal financial assistance is to provide, or is in the form of, personal property or real property or interest therein, or structures, or improvements thereon, in which case the assurance obligates AGENCY or any transferee for the longer of the following periods:
(a) the period during which the property is used for a purpose for which the federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or
(b) the period during which AGENCY retains ownership or possession of the property.
9. That AGENCY shall provide for such methods of administration for the program as are found by the U.S. Secretary of Transportation, or the official to whom he delegates specific authority, to give reasonable guarantee that AGENCY, other recipients, sub-grantees, applicants, subapplicants, transferees, successors in interest, and other participants of federal financial assistance under such program will comply with all requirements imposed by, or pursuant to, the ACT, the REGULATIONS, this Assurance and the Agreement.
10. That AGENCY agrees that the United States and the State of California have a right to seek judicial enforcement with regard to any matter arising under the ACT, the REGULATIONS, and this Assurance.
City Council/RSA Agenda 128 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
11. AGENCY shall not discriminate on the basis of race, religion, age, disability, color, national origin or sex in the award and performance of any STATE assisted contract or in the administration on its DBE Program or the requirements of 49 CFR Part 26. AGENCY shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of STATE assisted contracts. The California Department of Transportation Disadvantaged Business Enterprise Program Implementation Agreement for Local Agencies is incorporated by reference in the applicable Supplement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of the applicable Supplement. Upon notification to the recipient of its failure to carry out the Implementation Agreement, STATE may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 USC 1001 and/or the Program Fraud Civil Remedies Act of 1985 (31 USC 3801 et seq.)
THESE ASSURANCES are given in consideration of and for the purpose of obtaining any and all federal grants, loans, agreements, property, discounts or other federal financial assistance extended after the date hereof to AGENCY by STATE, acting for the U.S. Department of Transportation, and is binding on AGENCY, other recipients, subgrantees, applicants, sub-applicants, transferees, successors in interest and other participants in the federal-aid Highway Program.
City Council/RSA Agenda 129 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
APPENDIX A TO ATTACHMENT B (Clauses to be inserted in every agreement subject to ACT and REGULATIONS)
During the performance of the applicable Supplement, AGENCY, for itself, its assignees and successors in interest (hereinafter collectively referred to as AGENCY) agrees as follows:
(1) Compliance with Regulations: AGENCY shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of the applicable Supplement.
(2) Nondiscrimination: AGENCY, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. AGENCY shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment practices when the agreement covers a program set forth in Appendix B of the REGULATIONS. (3) Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by AGENCY for work to be performed under a Sub-agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by AGENCY of the AGENCY's obligations under the applicable Supplement and the REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and Reports: AGENCY shall provide all information and reports required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access to AGENCY's books, records, accounts, other sources of information, and its facilities as may be determined by STATE or FHWA to be pertinent to ascertain compliance with such REGULATIONS or directives. Where any information required of AGENCY is in the exclusive possession of another who fails or refuses to furnish this information, AGENCY shall so certify to STATE or the FHWA as appropriate, and shall set forth what efforts AGENCY has made to obtain the information. (5) Sanctions for Noncompliance: In the event of AGENCY's noncompliance with the nondiscrimination provisions of the applicable Supplement, STATE shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
(a) withholding of payments to AGENCY under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part. (6) Incorporation of Provisions: AGENCY shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto.
AGENCY shall take such action with respect to any sub-agreement or procurement as STATE or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, City Council/RSA Agenda 130 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
provided, however, that, in the event AGENCY becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, AGENCY may request STATE enter into such litigation to protect the interests of STATE, and, in addition, AGENCY may request the United States to enter into such litigation to protect the interests of the United States.
City Council/RSA Agenda 131 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
APPENDIX B TO ATTACHMENT B
To be included as covenant running with the land, in any deed affecting a transfer of real property, structures, or improvements thereon, or interest therein) The following clauses shall be included in any and all deeds effecting or recording the transfer of PROJECT real property, structures or improvements thereon, or interest therein from the United States.
(GRANTING CLAUSE)
NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon the condition that AGENCY shall accept title to the lands and maintain the project constructed thereon, in accordance with Title 23, United States Code, the Regulations for the Administration of federalaid for Highways and the policies and procedures prescribed by the Federal Highway Administration of the Department of Transportation and, also in accordance with and in compliance with the Regulations pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto AGENCY all the right, title, and interest of the U.S. Department of Transportation in, and to, said lands described in Exhibit "A" attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto AGENCY and its successors forever, subject, however, to the covenant, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and shall be binding on AGENCY, its successors arid assigns.
AGENCY, in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, (1) that no person shall on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed (;) (and) *
(2) that AGENCY shall use the lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in federallyassisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended (;) and City Council/RSA Agenda 132 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
(3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, the U.S. Department of Transportation shall have a right to re-enter said lands and facilities on said land, and the above-described land and facilities shall thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this deed.*
*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
City Council/RSA Agenda 133 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
APPENDIX C TO ATTACHMENT B
To be included for subsequent transfer of real property acquired or improved under federal-aid Program)
The following clauses shall be included in any and all deeds, licenses, leases, permits, or similar instruments entered into by AGENCY, pursuant to the provisions of Assurance 7(a) of Attachment 1-2.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add 'as covenant running with the land") that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally-assisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to terminate the (license, lease, permit etc.) and to re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to re-enter said land and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of AGENCY and its assigns. *Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
City Council/RSA Agenda 134 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
APPENDIX D TO ATTACHMENT B
Appendix D — (To be included for the construction or use of or access to space on, over, or under real property acquired or improved under the federal-aid Program) The following shall be included in all deeds, licenses, leases, permits, or similar agreements entered into by AGENCY, pursuant to the provisions of Assurance 7 (b) of Attachment 1-2.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal representatives, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds, and leases add "as a covenant running with the land") that:
(1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in the use of said facilities;
(2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the ground of race, color, sex, national origin, religion, age or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and
(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with the Regulations.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to terminate the (license, lease, permit, etc.) and to re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to re-enter said land and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of AGENCY, and its assigns.
*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
City Council/RSA Agenda 135 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-3, ATTACHMENT C
STATE DEPARTMENT OF TRANSPORTATION REQUIREMENTS
Caltrans Non — Discrimination
A. In the performance of work undertaken pursuant to the applicable Supplement, AGENCY shall not, and shall affirmatively require that its contractors shall not, unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g. cancer), age (over 40), marital status, and denial of family care leave.
B. AGENCY shall ensure, and shall require that its contractors and all subcontractors and/or subrecipients shall ensure, that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. AGENCY shall comply, and ensure that its contractors and subcontractors and/or subrecipients shall comply, with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12990 (af), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into the applicable Supplement by reference and made a part hereof as if set forth in full.
C. Each of AGENCY's contractors, subcontractors, and/or subrecipients shall give written notice of their obligations under this clause to labor organizations with which they have collective bargaining or other labor agreements. AGENCY shall include the non-discrimination and compliance provisions hereof in all contracts and subcontracts to perform work under the applicable Supplement.
D. AGENCY shall comply with the nondiscrimination program requirements of Title VI of the Civil Rights Act of 1964. Accordingly, 49 CFR Part 21, and 23 CFR Part 200 are made applicable to the applicable Supplement by this reference. Wherever the term "Contractor" appears therein, it shall mean AGENCY.
E. AGENCY shall permit, and shall require that its contractors, subcontractors, and subrecipients will permit, access to all records of employment, employment advertisements, application forms, and other pertinent data and records by the State Fair Employment Practices and Housing Commission or any other agency of the State of California designated by STATE to investigate compliance with these non-discrimination provisions.
City Council/RSA Agenda 136 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-4
ADDITIONAL TERMS AND CONDITIONS
PREVAILING WAGE RATES, APPRENTICESHIPS, AND PAYROLL RECORDS
NON FEDERALLY FUNDED AGREEMENTS
AGENCY's contractor(s) and all subcontractors shall comply with applicable sections of the California Labor Code and regulations promulgated thereunder (including without limitation, Sections 1720 et seq. and Title 8 of the California Code of Regulations Sections 16000 et seq.) governing the payment of prevailing wages, as determined by the Director of the California Department of Industrial Relations, in regards to work performed and/or funded under this Agreement. In particular, AGENCY's attention is drawn to Labor Code Sections 1771 (payment of prevailing wage rate), 1775 (penalty for non-payment), 1776 (payroll records), and 1777.5 (use of apprentices). AGENCY's contractor(s) and all subcontractors, to the extent the work of such contractor(s) and subcontractors under this Agreement are subject to California Labor Code Section 1720 et seq., shall be registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 and shall furnish electronic certified payroll records directly to the Labor Commissioner through the internet portal of the Division of Labor Standards Enforcement. Per Master Funding Agreement Article 12.0, Recordsand 13.0 Audits,MTC reserves the right to request copies of the certified payroll records.
City Council/RSA Agenda 137 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-5
ADDITIONAL TERMS AND CONDITIONS
PREVAILING WAGE RATES, APPRENTICESHIPS, AND PAYROLL RECORDS
FEDERALLY FUNDED AGREEMENTS
The Additional Federal Clauses Applicable to Public Works included in Attachment A, attached hereto and incorporated herein by this reference, and the Davis-Bacon prevailing wages apply to work performed and/or funded under the applicable Supplement. AGENCY agrees that AGENCY will require its contractor(s) and all subcontractors will pay the higher of (i) the applicable wage set forth in Federal Wage Determinations, and (ii) the applicable California prevailing rate. Certified payroll records in the form set forth in the Public Works Payroll Reporting Form, as found at https://www.dol.gov/whd/forms/wh347.pdf,shall be prepared or collected from its contractor(s) and all subconsultant(s) on a weekly basis by the AGENCY. Per Master Funding Agreement Article 12.0, Recordsand 13.0 Audits,MTC reserves the right to request copies of the certified payroll records. MTC may withhold payment if the certified payrolls to be submitted by AGENCY pursuant to this Exhibit B-5, Prevailing Wage Rates, Apprenticeships, and Payroll Records, are not current.
City Council/RSA Agenda 138 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-5
ADDITIONAL FEDERAL CLAUSES APPLICABLE TO PUBLIC WORKS
1. Buy America
2. Davis-Bacon Act
3. Contract Work Hours and Safety Standards Act
4. Copeland Anti-Kickback Act
5. Prompt Payment of Funds Withheld to Subcontractors
City Council/RSA Agenda 139 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
1. Buy America Requirements
Buy America — Attention is directed to the "Buy America" requirements of the surface Transportation Assistance Act of 1982 (Section 165) and the Inter-nodal Surface Transportation Efficiency Act of 1991 (ISTEA) Sections 1041(a) and 1048(a), and the regulations adopted pursuant thereto. In conformance with the law and regulations, all manufacturing processes for steel and iron materials furnished for incorporation into the work on this project shall occur in the United States; with the exception that pig iron and processed, pelletized and reduced iron ore manufactured outside of the United States may be used in the domestic manufacturing process for such steel and iron materials. The application of coatings, such as epoxy coating, galvanizing, painting, and other coating that protects or enhances the value of steel or iron materials shall be considered a manufacturing process subject to the "Buy America" requirements. A Certificate of Compliance shall be furnished for steel and iron materials. The certificates shall specifically certify that all manufacturing processes for the materials occurred in the United States, except for the above exceptions.
The requirements imposed on AGENCY by the law and regulations do not prevent a minimal use of foreign steel and iron materials if the total combined cost of the materials used does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater. The AGENCY or its contractor(s) shall furnish the Engineer acceptable documentation of the quantity and value of the foreign steel and iron prior to incorporation the materials into the work.
Certification requirement for procurement of steel, iron, or manufactured products.
The AGENCY hereby certifies that all manufacturing process for steel and iron materials occurred in the United States, except for the above exceptions.
Signature:
Name and Title:
Company Name:
Date:
City Council/RSA Agenda 140 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
2. DAVIS-BACON ACT
For all prime construction, alteration or repair contracts in excess of $2,000 awarded by FTA, the Contractor shall comply with the Davis-Bacon Act and the Copeland "Anti-Kickback" Act. Under 49 U.S.C. § 5333(a), prevailing wage protections apply to laborers and mechanics employed on FTA assisted construction, alteration, or repair projects. The Contractor will comply with the Davis-Bacon Act, 40 U.S.C. §§ 3141-3144, and 3146-3148 as supplemented by DOL regulations at 29 C.F.R. part 5, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction." In accordance with the statute, the Contractor shall pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, the Contractor agrees to pay wages not less than once a week. The Contractor shall also comply with the Copeland "Anti-Kickback" Act (40 U.S.C. § 3145), as supplemented by DOL regulations at 29 C.F.R. part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans or Grants from the United States." The Contractor is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled.
3. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Contract Work Hours and Safety Standards Act - (i) The AGENCY's contractor agrees to comply with section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. section 333, and applicable DOL regulations, "Safety and Health Regulations for Construction" 29 C.F.R. Part 1926. Among other things, the AGENCY's contractor agrees that it will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings or working conditions.
(ii) Subcontracts - The AGENCY's contractor also agrees to include the requirements of this section in each subcontract. The term "subcontract" under this section is considered to refer to a person who agrees to perform any part of the labor or material requirements of a contract for construction, alteration or repair. A person who undertakes to perform a portion of a contract involving the furnishing of supplies or materials will be considered a "subcontractor" under this section if the work in question involves the performance of construction work and is to be performed: (1) directly on or near the construction site, or (2) by the employer for the specific project on a customized basis. Thus, a supplier of materials which will become an integral part of the construction is a "subcontractor" if the supplier fabricates or assembles the goods or materials in question specifically for the construction project and the work involved may be said to be construction activity. If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "subcontractor." The requirements of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market.
4. COPELAND ANTI-KICKBACK ACT
City Council/RSA Agenda 141 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
Compliance with Copeland Act requirements - The AGENCY's contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract.
5. PROMPT PAYMENT OF FUNDS WITHHELD TO SUBCONTRACTORS
The AGENCY shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the agency of the contract work and pay retainage to the prime contractor based on these acceptances. The AGENCY's prime contractor or subcontractor shall return all monies withheld in retention from a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Federal regulation (49 CFR 26.29) requires that any delay or postponement of payment over 30 days may take place only for good cause and with the agency's prior written approval. Any violation of this provision shall subject the violating AGENCY's prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise, available to the prime contractor or subcontractor in the event of a dispute involving late payment, or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both DBE and non-DBE prime contractors and subcontractors.
City Council/RSA Agenda 142 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-6
ADDITIONAL TERMS AND CONDITIONS (REGIONAL TOLL FUNDS INCLUDING RM1, RM2, AND AB 1171)
Recitals
WHEREAS, Streets and Highways Code (SHC) Sections 30950 et seq. created the Bay Area Toll Authority ("BATA") which is a public instrumentality governed by the same board as that governing MTC; and
WHEREAS, pursuant to SHC Section 31010(b), funds generated in excess of those needed to meet the toll commitments as specified by paragraph (4) of subdivision (b) of Section 188.5 of the SHC shall be available to BATA for funding projects consistent with SHC Sections 30913 and 30914; and
WHEREAS, MTC adopted Resolution No. 3434, Revised, which establishes commitments of bridge toll funds, including such AB 1171 funds, to specific projects and corridors; and WHEREAS, on November 8, 1988, voters approved Regional Measure 1 ("RM1"), which authorized a standard auto toll of $1 on the seven state-owned toll bridges in the San Francisco Bay Area to fund various transportation projects within the region; and WHEREAS, on March 2, 2004, voters approved Regional Measure 2 ("RM2"), increasing the toll for all vehicles on the seven state-owned toll bridges in the San Francisco Bay Area by $1.00 to fund various transportation projects within the region that have been determined to reduce congestion or to improve travel in the toll bridge corridors; and WHEREAS, RM2 established the Regional Traffic Relief Plan and listed specific capital projects and programs and transit operating assistance as eligible to receive RM2 funding as identified in SHC Section 30914(c) and (d). The funding amounts assigned to certain of the programs and projects were subsequently revised by MTC Resolution No. 3801; and WHEREAS, to the extent the Project is receiving RM2 funding hereunder, SHC Section 30914(c) lists the Project to which this Exhibit B-6 and the applicable Supplement apply as one such eligible transportation project and designates AGENCY as project sponsor; and WHEREAS, pursuant to MTC Resolution No. 3636, MTC established procedures whereby eligible transportation project sponsors may submit allocation requests for Regional Measure 2 Bridge Toll funding. A copy of MTC Resolution No. 3636 is attached hereto and incorporated herein as Attachment D, MTC Resolution No. 3636; and
WHEREAS, AGENCY submitted one or more allocation requests for RM2, AB 1171, and/or RM1 funding for the Project to which this Exhibit B-6 applies. A copy of the applicable allocation request(s) as well as AGENCY's resolution(s) approving the allocation request(s) are attached to the applicable Supplement and incorporated herein as Attachment A, Updated Initial Project Report, and Attachment B, AGENCY Resolution(s), respectively; and City Council/RSA Agenda 143 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
WHEREAS, by the resolution(s) attached to the applicable Supplement and incorporated herein as Attachment A as Attachment C, MTC Resolution(s) Approving Project Request,MTC approved AGENCY's request(s) for the applicable funds for the applicable Project.
I. AGENCY AGREES
A. AGENCY agrees to perform or caused to be performed the activities described in Attachment A, Updated Initial Project Report. AGENCY will provide all necessary staffing and support resources to complete the Project as described in Attachment A, AGENCY agrees to meet all conditions listed in Attachment C, MTC Resolution(s) Approving Project Request.
B. AGENCY shall provide MTC with annual progress reports on or before each July 31 throughout the term of this Agreement in accordance with the monitoring and reporting requirements specified in MTC Resolution No. 3636.
C. AGENCY shall submit invoices to MTC no less than annually, but may submit invoices as frequently as monthly. In either case, AGENCY shall submit an invoice to MTC within thirty (30) days after the end of each period for which payment is sought covering costs for the Project activities accomplished through the end of such period, not covered by previously submitted invoices. Each invoice shall be supported by the following information: (i.) A brief narrative progress report of the activities accomplished during the invoice period, including the percentage of the contract complete and the percentage of funding expended; (ii.) the costs requested for reimbursement with RM1, RM2 and/or AB 1171 funds, as applicable; (iii.) the total costs expended for the invoice period broken down by type and source of funding; (iv.) the total RM1, RM2 and/or AB 1171 funds, as applicable received as reimbursement to date; (v.) the total costs expended for project name to date broken down by type and source of funding; and (vi.) any additional supporting data in a form and detail required by MTC.
D. AGENCY agrees to spend RM1, RM2 and/or AB 1171 funds, as applicable, at a rate not exceeding the schedule attached to the applicable Supplement and incorporated herein as Attachment E, Reimbursement Schedule.
E. AGENCY shall comply with and shall assure that any AGENCY contractor performing Project work with RM1, RM2 and/or AB 1171 funds, as applicable, received under this Agreement complies with MTC Resolution No. 3636, Revised, as well as the provisions of MTC's RM2 Policy Guidance contained in Attachment D, MTC Resolution No. 3636,relative to constructing, operating, and maintaining the Project. MTC may update Resolution No. 3636 from time to time.
The AGENCY agrees to comply with the most current Resolution that is approved at any given time.
F. AGENCY is responsible for completing the Project within cost, scope and schedule as described in Attachment A, Updated Initial Project Report,as it may be updated from time to time.
Any updates must be approved by AGENCY and MTC in writing before being incorporated into this Agreement.
City Council/RSA Agenda 144 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
G. AGENCY certifies that:
• The Project is consistent with the Regional Transportation Plan ("RTP"). • All environmental permits or clearances necessary for the Project have been or will be obtained, and the year of Project funding for the construction phase of the Project has taken into consideration the time necessary to obtain permitting approval for the Project as an operable and useable segment.
• The Project or portion thereof to be funded under this Agreement will be fully funded upon the execution of the applicable Supplement.
• AGENCY has reviewed the Project needs and has adequate internal staffing and support resources to deliver and complete the Project within the cost, scope, and schedule set forth in the Initial Project Report, as updated, attached to the applicable Supplement as Attachment A.
• If applicable to the Project, AGENCY is an eligible sponsor of projects in MTC Resolution No. 3434, Revised.
• If applicable, AGENCY is authorized to submit an application for RM2 funds for the Project in accordance with SHC Section 30914(c).
• If applicable, AGENCY is authorized to submit an application for AB 1171 funds for the Project in accordance with SHC Section 31010(b).
• The Project is in compliance with the requirements of the California Environmental Quality Act (Public Resources Code Section 21000 et seq.), and with the State Environmental Impact Report Guidelines (14 California Code of Regulations Sections 15000 et seq.), and if relevant, the National Environmental Policy Act (NEPA) (42 USC 4321 et seq.) and the applicable regulations thereunder.
• There is no legal impediment to AGENCY making allocation requests for RM1, RM2 and/or AB 1171 funds, as applicable.
• There is no pending or threatened litigation which might in any way adversely affect the Project or the ability of AGENCY to deliver such Project.
H. In addition to AGENCY's commitment under Article 10, INDEMNIFICATION,of the Master Funding Agreement, AGENCY agrees at its own cost, expense, and risk to defend any and all claims, actions, suits, or other legal proceedings brought or instituted against MTC, its Commissioners, representatives, agents, and employees, or any of them, arising out of such act or omission, and to pay and satisfy any resulting judgments. In addition to any other remedy authorized by law, so much of the funding due under this allocation of RM1, RM2 and/or AB 1171 funds, as applicable, as shall reasonably be considered necessary by MTC may be retained until disposition has been made of any claim for damages.
I. If any revenues or profits from any non-governmental use of the Project are collected by AGENCY, those revenues or profits shall be used exclusively for the public transportation services for which the Project was initially approved, either for capital improvements or maintenance and operational costs, otherwise MTC is entitled to a proportionate share equal to MTC's percentage participation in the Project. MTC's percentage participation shall equal the amount of funds allocated to Project, divided by the total Project budget as shown in Attachment E, Reimbursement Schedule,as updated from time to time, as such amount may be adjusted to reflect total project costs.
City Council/RSA Agenda 145 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
J. Project assets purchased by AGENCY with RM1, RM2 and/or AB 1171 funds, as applicable, including facilities and equipment, shall be used for the intended public transportation uses and should said facilities and equipment cease to be operated or maintained for their intended public transportation purposes for their useful life, MTC shall be entitled to a present day value refund or credit (at MTC's option) based on MTC's share of the fair market value of the facilities and equipment at the time the public transportation uses ceased, which sum shall be paid back to MTC in the same proportion that RM1, RM2 and/or AB 1171 funds, as applicable, were originally used.
K. AGENCY shall post on both ends of the Project construction site(s), unless prohibited by the site owner if such owner is not the AGENCY, at least two signs visible to the public stating that the Project is funded with RM1, RM2 and/or AB 1171 funds, as applicable.
L. AGENCY's City Manager, General Manager, Executive Director, Chief Executive Officer, or equivalent officer, or designee, is delegated the authority to make non-substantive changes or minor amendments to the initial project report as he/she deems appropriate; otherwise, Article 7, AMENDMENTS, of this Agreement applies.
M. AGENCY agrees to comply with the provisions of MTC Resolution No. 3636, Revised, and the MTC Resolutions set forth in Attachment C, MTC Resolution(s) Approving Project Request.
II. MTC AGREES
A. MTC agrees to provide AGENCY with RM1, RM2 and/or AB 1171 funds, as applicable, within the allocation amounts in Attachment C, MTC Resolution(s) Approving Project Request and as restated in the relevant Supplement for the purpose of funding the Project as described in Attachment A.
The entire funding amount is available for reimbursement based on the schedule included in Attachment E, Reimbursement Schedule, to the applicable Supplement. In addition, if applicable, MTC agrees to support AGENCY's allocation request from the State according to the Allocation Request Schedule provided in Attachment F to the applicable Supplement.
In the event AGENCY does not use all RM1, RM2 and/or AB 1171 funds, as applicable, made available in a given fiscal year, those unused amounts will be available for reimbursement in subsequent year(s) for the duration of this Agreement.
III. IT IS MUTUALLY AGREED
City Council/RSA Agenda 146 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
A. MTC may terminate the applicable Supplement, in its sole discretion, for any force majeure event, including but not limited to any earthquake, flood or other natural disaster, any epidemic, blockade, rebellion, war, act of sabotage or civil commotion, fire, explosion or strike, or prolonged economic conditions affecting the ability of the Bay Area Toll Authority to make payments to bond holders who shall in all circumstances have priority to payment of funds, if such event (i) irrecoverably disrupts or renders impossible AGENCY's performance hereunder; or (ii) disrupts MTC's ability to make payments hereunder. If MTC so terminates the applicable Supplement, AGENCY will be entitled to payment for non-recoverable Project costs incurred prior to the date of such termination, including but not limited to any amounts AGENCY owes to the owner of the Project construction sites, if such owner is not AGENCY, up to the maximum amount payable under this Agreement.
B. If AGENCY fails to perform as specified in this Agreement and the applicable Supplement, MTC may terminate the applicable Supplement or this Agreement for cause. Termination shall be effected by serving a sixty (60) day advance written notice of termination on AGENCY, setting forth the manner in which AGENCY is in default. If AGENCY does not cure the breach or describe to MTC's satisfaction a plan for curing the breach within the sixty (60) day period, MTC may terminate this Agreement or the applicable Supplement for cause. In the event of such termination for cause, AGENCY will be entitled only to those costs incurred for already completed Project work, not to exceed the maximum amount payable under this Agreement for such Project work, however, in no event shall MTC be required to reimburse AGENCY for any costs incurred for work causing or contributing to the default.
C. If the Project is cancelled, suspended indefinitely, or otherwise not completed for any reason, AGENCY shall repay MTC any RM1, RM2 and/or AB 1171 funds, as applicable, expended that exceed MTC's proportionate share of eligible costs for the Project.
D. Upon completion of the Project, AGENCY will properly account for all Project costs incurred.
E. The applicable Supplement shall terminate upon closeout of the PROJECT in accordance with Policies and Procedures in MTC Resolution No. 3636, Revised, or on the termination date, if any, set forth in the Supplement, whichever is sooner.
F. The terms and conditions of this Agreement include the following and each is incorporated by reference herein as if fully set forth herein.
Attachment A — Updated Initial Project Report (Allocation Request) Attachment B — AGENCY Resolution(s) (and opinion of counsel, if applicable) Attachment C — MTC Resolution(s) Approving Project Request(s) Attachment D — MTC Resolution No. 3636, Revised
Attachment E — Reimbursement Schedule
Attachment F — Allocation Request Schedule
City Council/RSA Agenda 147 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT B-7
ADDITIONAL TERMS AND CONDITIONS (REGIONAL DISCRETIONARY FEDERAL
FUNDS INCLUDING STP AND CMAQ)
1. TERMINATION
Notwithstanding Article 8.0, TERMINATION in the Master Funding Agreement, MTC may terminate this Agreement without cause upon ten (10) days prior written notice. If MTC terminates this Agreement without cause, AGENCY shall be entitled to payment for costs incurred for incomplete deliverables, up to the maximum amount payable for each deliverable.
If AGENCY fails to perform as specified in this Agreement, MTC may terminate this Agreement for cause by written notice and AGENCY shall be entitled only to costs incurred for work product acceptable to MTC, not to exceed the maximum amount payable under this Agreement for such work product.
2. RETENTION OF RECORDS
AGENCY agrees to establish and maintain an accounting system confirming to GAAP that is adequate to accumulate and segregate reasonable, allowable, and allocable project costs.
AGENCY further agrees to keep all records pertaining to the project being funded for audit purposes for a minimum of three (3) years following final payment to AGENCY or four (4) years following the fiscal year of the last expenditure under this Agreement, whichever is longer, in accordance with generally accepted accounting principles. Copies of AGENCY audits, if any, performed during the course of Project development and at Project completion shall be forwarded to MTC no later than one hundred eighty (180) days after fiscal year end close.
3. AUDITS
Notwithstanding Article 13.0, AUDITS in the Master Funding Agreement, AGENCY agrees to grant MTC, or any agency that provides MTC with funds for the Project, including but not limited to, the U.S. Department of Transportation, FHWA, the Comptroller General of the United States, the State, and their authorized representatives access to AGENCY's books and records for the purpose of verifying that funds are properly accounted for and proceeds are expended in accordance with the terms of this Agreement. All documents shall be available for inspection during normal business hours at any time while the Project is underway and for the retention period specified in Article 4.
AGENCY further agrees to include in all its third-party contracts hereunder a provision to the effect that the contractor agrees that MTC, the U.S. Department of Transportation, FHWA, the Comptroller General of the United States, the State, or any of their duly authorized representatives shall have access to and the right to examine any directly pertinent books, documents, papers, and records of such subcontractor, during normal business hours, for the term specified above. The term "contract" as used in this clause excludes agreements not exceeding $25,000.
City Council/RSA Agenda 148 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
4. LICENSE TO WORK PRODUCTS
AGENCY hereby grants to MTC an irrevocable, non-exclusive, royalty-free license to use without restriction and share with any person or entity all drawings, designs, specifications, manuals, reports, studies, surveys, models, software, source code and source code documentation, documentation or system architecture, and any other documents, materials, data, and products ("Work Products") developed, prepared, or assembled by AGENCY or AGENCY's consultant(s) or its subconsultants pursuant to this Agreement. MTC may exercise their licenses to Work Products through sublicenses to a third party, without the approval of AGENCY or AGENCY's consultant(s) or subconsultants. FHWA reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for federal government purposes: (a) the copyright in any work developed under this Agreement; and (b) any rights of copyright to which AGENCY or AGENCY's consultant(s) or subconsultants purchase ownership under this Agreement.
5. EQUAL EMPLOYMENT OPPORTUNITY
In accordance with Title VI of the Civil Rights Act, as amended (42 U.S.C. § 2000d); Section 303 of the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6102); Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12132); and 49 U.S.C. § 5332 for FTA-funded projects, AGENCY agrees that it shall not, on the grounds of race, religious creed, color, national origin, age, physical disability or sex, discriminate or permit discrimination against any employee or applicant for employment.
6. DISADVANTAGED BUSINESS ENTERPRISES (DBE)
It is the policy of MTC and the U.S. Department of Transportation to ensure nondiscrimination in the award and administration of DOT-assisted contracts and to create a level playing field on which disadvantaged business enterprises, as defined in 49 Code of Federal Regulations Part 26, can compete fairly for contracts and subcontracts relating to MTC's procurement and professional services activities.
AGENCY shall not discriminate on the basis of race, color, national origin or sex in the performance of this Agreement. AGENCY shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by AGENCY to carry out these requirements is a material breach of contract, which may result in the termination of this agreement or such other remedy as MTC deems appropriate.
7. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
AGENCY agrees to comply with all the requirements imposed by Title VI of the Civil Rights Act of 1964 (47 U.S.C. § 2000(d)) and the regulations of the Department of Transportation issued thereunder (49 CFR Part 21).
8. ACCESS REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES AGENCY agrees to comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; Section 16 of the Federal Transit Act, as amended, 49 U.S.C. § 5310(f); and their implementing regulations.
City Council/RSA Agenda 149 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
9. STATE ENERGY CONSERVATION PLAN
AGENCY shall comply with all mandatory standards and policies relating to energy efficiency that are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. § 6321).
10. DEBARMENT
AGENCY certifies that neither it, nor any of its participants, principals or subcontractors is or has been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions, as they are defined in 49 CFR Part 29, by any Federal agency or department.
11. CLEAN AIR AND WATER POLLUTION ACTS
AGENCY agrees to comply with the applicable requirements of all standards, orders, or requirements issued under the Clean Air Act (42 U.S.C. § 7501 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15).
12. LOBBYING
AGENCY agrees to comply with the restrictions on the use of federal funds for lobbying activities set forth in 31 United States Code §1352 and 49 C.F.R. Part 20.
13. INDEMNIFICATION
Notwithstanding Article 10.0, INDEMNIFICATION, in the Master Funding Agreement AGENCY shall indemnify and hold harmless MTC, Caltrans, their Commissioners, Directors, officers, agents and employees from any and all claims, demands, suits, loss, damages, injury and/or liability (including any and all costs and expenses in connection therewith), incurred by reason of any act or failure to act of AGENCY, its officers, directors, employees, agents and contractors, or any of them, under or in connection with this Agreement; and AGENCY agrees at its own cost, expense and risk to defend any and all claims, actions, suits, or other legal proceedings brought or instituted against MTC, Caltrans, their Commissioners, Directors, officers, agents, and employees, or any of them, arising out of such act or omission, and to pay and satisfy any resulting judgments.
14. COMPLIANCE WITH LAWS
AGENCY shall comply with any and all laws, statutes, ordinances, rules, regulations or requirements of the federal, state, or local government, and any agency thereof, including, but not limited to MTC, the U.S. DOT, FHWA, the State, and Caltrans, which relate to or in any manner affect the performance of this Agreement. Those laws, statutes, ordinances, rules, regulations, and procedural requirements that are imposed on MTC as an AGENCY of federal or state funds are hereby in turn imposed on AGENCY (including, but not limited to, 49 CFR Part 18, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments"), and are herein incorporated by this reference and made a part hereof.
AGENCY contractors shall agree to comply with all 48 CFR, Chapter 1, Part 31, Contract Cost Principles and Procedures. In addition, AGENCY certifies that the AGENCY and its contractors shall comply with the requirements of the California Environmental Quality Act City Council/RSA Agenda 150 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
(CEQA), California Public Resources Code Section 21,000 et seq. and with the State Environmental Impact Report Guidelines (14 California Code of Regulators Section 15000 et seq.) and the National Environmental Policy Act (NEPA), 42 U.S.C. Section 4321 et seq. and the applicable regulations thereunder.
15. IDENTIFICATION OF DOCUMENTS
AGENCY shall ensure that all reports and other documents completed as part of this Agreement shall carry the following notation on the front cover or title page:
"The preparation of this report has been financed in part by grants from the U.S.
Department of Transportation. The contents of this report do not necessarily reflect the official views or policy of the U.S. Department of Transportation." City Council/RSA Agenda 151 Tuesday, April 12, 2022
MTC/City of Union City
Master Funding Agreement for FY 2017-18 to FY 2026-27
EXHIBIT C
FORM 10-C
City Council/RSA Agenda 152 Tuesday, April 12, 2022
Local Assistance Procedures Manual EXHIBIT 10-C
Consultant Contract Reviewers Checkist
EXHIBIT 10-C A&E CONSULTANT CONTRACT REVIEWERS CHECKLIST Date: Amendment: 0 District: --selec
Agency Name:
Federal or State Project Number:
Local Agency Contract Number/Solicitation Number:
Consultant Name:
Original Contract Period: Begin:
Original Contract Dollar Amount:
End:
Funding: --Select--
No. DESCRIPTION
A.
1 2
3 4
B.
1 2
3 4
S
6 7
8 PROCUREMENT PLANNING
Description of need for consultant:
Local agency contract administrator information
a Name:
b Phone: Email:
Do you have a scope of work?
a Does the scope of work include a consultant in a management support role? b Is the schedule specified in the scope of work?
Independent cost estimates (23 CFR 172.7(a)(1)(v)(b))
a What is the total value of independent cost estimate? --select--
--select--
--select--
b What cost estimating technique was used? --select--
SOLICITATION DOCUMENTS AND ADVERTISEMENT
Consultant selection committee and conflict of interest a What is the number of panel members?
b Was Conflict of Interest form (EXHIBIT 10-T) signed by all? c Was Conflict of Interest form (EXHIBIT 10-T) dated by all? Does the solicitation contain a procurement schedule?
Type of contract? --select--
--select--
--select--
--select--
Method of payment? --select--
Evaluation criteria and weights (EXHIBIT 10-B)
Were weight values assigned to criteria?
Procurement type? --select--
--select--
Length of contract (in years):
DBE utilization goal setting (Federal-funded only)
a Was Exhibit 9-D submitted?
b Was Exhibit 10-I included in solicitation?
c What is the DBE Utilization Goal (%)?
--select--
--select--
d If No goal (not Zero goal), explain:
e Was a Good Faith Effort (Exhibit 15-H) approved by LPA? Records of publication for RFP or RFQ
.
Was widespread publication used to advertise the RFP/RFQ (EG newspaper, web posting, Planetbids,etc.)?
Specify:
--select--
--select--
January 2018
City Council/RSA Agenda 153 Tuesday, April 12, 2022
No. DESCRIPTION
b How long was the advertisement period (in days)?
9 Records of response to solicitation
a How many consultants responded to this solicitation?
b Does your agency have a proposal responsiveness checklist? --select-- Were records of response documented (e.g. log sheet, copies of time-stamped envelops, other)? Specify:
C. EVALUATION AND SELECTION
1 Documentation of consultant selection
a How many consultants were evaluated?
b Were evaluation criteria the same as in solicitation? --select-- c Original score sheets and final rankings
1. How many score sheets were signed by all?
2. How many score sheets were dated?
d Was Exhibit 10-01 included in proposal (Federal funded only)? --select-- e Was Exhibit 10-U submitted if there is a consultant in a management role (if applicable)? --select-- 2 Develop top ranked consultants and notify all interviewees a Did you notify all candidates of their ranking? --select-- b Did you conduct oral interviews? --select--
3 Cost proposal
a
Is cost proposal in Exhibit 10-H format or equivalent complete and in the correct form based on the method of payment? --select--
b Payment Method: --select--
c Is direct labor cost proposal broken down by job classifications and types of costs and/or rates? --select-- d Is the ICR for current fiscal year? --select--
e Are key personnel identified? --select--
Are "other direct cost" itemized by items of work quantity, unit price and total for each item (EXHIBIT 10-H)? --select--
g Is fixed fee over 15%? --select--
4 Audit and review documents before contract execution
a Was proposed ICR submittal sent to A&I for acceptance (EXHIBIT 10-K)? --select-- b What is A&I's ICR decision? --select--
c Does the final cost proposal reflect the adjusted or accepted ICR? --select-- 5 Record of cost/profit negotiations
a Did you verify elements of the cost proposal from the top-ranked consultant? --select-- b Did you return remaining concealed cost proposals after successful cost negotiation or dispose of in accordance with written policies and procedures approved by Caltrans? --select-- c Did you perform a cost analysis (wage rates, fixed fee, other direct costs, indirect costs and profits)? --select-- d Did you document your profit negotiations? --select-- 6 Mandatory fiscal and federal provisions (EXHIBIT 10-R) (Federal-funded only) a Are all mandatory fiscal and federal provisions included in contract? (Article IV to XVII) --select-- b What mandatory provisions are not verbatim?
c Was Exhibit 10-02 completed and included in the contract? --select-- 7 Specify if sole source:
Was a public interest finding (EXHIBIT 12-F) prepared by local agency and approved by DLAE? --select-- --select--
Local Assistance Procedures Manual EXHIBIT 10-C
Consultant Contract Reviewers Checkist
January 2018
City Council/RSA Agenda 154 Tuesday, April 12, 2022
Local Assistance Procedures Manual EXHIBIT 10-C
Consultant Contract Reviewers Checkist
No. DESCRIPTION
8 9
10 11
Was price used as an evaluation factor? _
What Policies and Procedures have been adopted? --select-- --select--
a Date adopted Caltrans procedure (CPM or LAPM Ch.10) (mm/yyyy):
b Has Caltrans approved local agency's policies and procedures? Method of payment in contract? --select--
--select--
Does contract awarded match that of solicitation? --select-- D.
1 2
3 4
5 6
7 8
9 10
FOR CONSULTANT CONTRACT AMENDMENT ONLY
Amendment number:
Start date: End date:
Type of original contract: --select--
Was small purchase used for original procurement?
What is A&I's ICR decision? --select--
--select--
Total amended contract amount:
Description of need for amendment:
Has the scope of work changed?
Does the revised scope of work include a consultant in management support role? Was Exhibit 10-U submitted if there is a consultant in management support role? --select--
--select--
--select--
Note: Please submit EXHIBIT 10-C using finable PDF along with a signed copy via email.
I certify the information I provided on and in connection with this form is true, accurate and complete and supporting documents are filed in our office filing system. I also understand that any false statements or omissions on this document may be grounds for disqualification from federal and/or State funding.
Local Agency Contract Administrator Date
I have reviewed the Exhibit 10-C Consultant Contract Reviewers Checklist but I have not reviewed the supporting documentation in detail. The Exhibit 10-C checklist appears to have been prepared in accordance with Chapter 10 "Consultant Selection" of the Local Assistance Procedures Manual. I have not conducted a comprehensive review of the supporting documentation and cannot, therefore, attest that there are no errors, ambiguities, or omissions in the Exhibit 10- C checklist. Caltrans assumes no liability for any defect in the Exhibit 10-C by virtue of its review of this checklist.
Caltrans DLA Acceptance Date
January 2018
City Council/RSA Agenda 155 Tuesday, April 12, 2022
Local Assistance Procedures Manual EXHIBIT 10-C
Consultant Contract Reviewers Checklist
INSTRUCTIONS FOR A&E CONSULTANT CONTRACT REVIEWERS CHECKLIST Submittal of Exhibit 10-C for new or amended consultant contracts is required for all A&E consultant contracts (State and Federal) for Caltrans review and acceptance prior to contract award. Sections A, B, and C on Exhibit 10-C will be skipped for contract amendments (Section D applies to amendments only). A designated contract administrator must prepare and sign EXHIBIT 10-C (HQ review is not required for Non A&E Contracts).
EXHIBIT 10-C must be submitted using finable PDF along with a signed copy via email to aeoversightAdot.ca.govin the following format FederalProjeetNumber-District-Agency-New (or Revised).
The following are considered procedural deficiencies and may jeopardize federal and/or state funding on completed or ongoing projects.
• Did not advertise as required.
• Did not re-advertise for required period.
• Did not identify all evaluation factors in Request for Qualifications/Request for Proposals (RFQ/RFP).
• Did not identify the weights or values of each evaluation factor in RFQ/RFP. • Method of payment in RFP not consistent with contract cost proposal. • No supporting documentation that all proposals were received within the required time frames (example: proposals not date-stamped).
• No conflict of interest signed by panel members or evidence an appropriate Code of Ethics was followed in accordance with federal requirements.
• Profit not negotiated.
• No support that cost analysis was performed.
• Cost elements not negotiated/evidence of negotiations not maintained. • No prior authorization given for sole source contracts. • Title VI requirements [per 23 CFR 172 (c) (vi)] revisions needed in contracts (federal funded only).
• DBE requirements [per 23 CFR 172 (c) (vii)] revisions needed in contracts (federal funded only).
The following are considered unrecoverable deficiencies and shall result in the withdrawal of all or a portion of the federal and/or state funds from the project:
• No records or documentation to support consultant procurement. • No support for scoring and/or ranking of consultants.
Two or more of the following are considered unrecoverable deficiencies and shall result in the withdrawal of all or a portion of the federal and/or state funds from the project:
• No justification for sole-sourcing.
• Could not support contract was advertised at all.
• No independent cost estimate performed.
• Local preference used.
• Price used as an evaluation factor.
• Scoring evaluation factors or weights do not match those identified in the RFQ/RFP. • Did not include any evaluation factors in the RFQ/RFP.
January 2018
City Council/RSA Agenda 156 Tuesday, April 12, 2022
Local Assistance Procedures Manual EXHIBIT 10-C
Consultant Contract Reviewers Checklist
• Cost proposal does not break down job classifications and types of costs by amount and/or rates. • Missing Title VI requirements [per 23 CFR 172 (c) (vi)] from contracts (Federal Funded Only). • Missing DBE requirements [per 23 CFR 172 (c) (vii)] from contracts (Federal Funded Only).
A. PROCUREMENT PLANNING
1. DESCRIPTION OF NEED FOR CONSULTANT
Describe need for consultant: How was the need for a consultant justified? Compare the project schedule and objectives with local agency capabilities, staff expertise and availability, and funding resources.
2. LOCAL AGENCY CONTRACT ADMINISTRATOR (NAME & CONTACT INFO) The Local Agency Contract Administrator must be a qualified local agency employee, or have staff that is qualified to ensure the consultant's work is complete, accurate, and consistent with the terms and conditions of the consultant contract.
a. Include contact information: name of contract administrator. b. Phone and email of contract administrator.
3. SCOPE OF WORK
Indicate if scope of work (SOW) is included in solicitation and contract. SOW means all services, work activities, and actions required of the consultant by the obligations of the contract. a. Indicate if the contract includes a consultant in a management role (EXHIBIT 10-U). The use of a consultant in a management role should be limited to unique or unusual situations. These situations require a thorough justification and approval by FHWA before contract execution. b. Schedule of work from work breakdown structure (WBS) helps to determine the schedule of contract delivery and must be included in the scope of work to increase accountability and efficiency of a contract.
4. INDEPENDENT COST ESTIMATES (ICE)
a. Enter the amount of an independent cost estimate (ICE). An ICE is needed for cost analysis and contract negotiation (23 CFR 172.7(a)(1)(v)(B)) to ensure that consultant services are obtained at a fair and reasonable cost. In order to properly identify the maximum amount of the contract and to assess the validity of a consultant's cost proposal, the contracting agency shall prepare a detailed independent estimate with an appropriate breakdown of the work or labor hours, types or classifications of labor required, other direct costs, and consultant's fixed fee for the defined scope of work.
b. Agencies are required to maintain documentation to show how the ICE was calculated. Several methods can be used. Refer to Module 4 for examples on how to calculate the ICE at:
http://www.dot.ca.gov/hq/LocalPrograms/AE/2016/M4-slides.pdfor http://vvww.dot.ca.gov/hq/LocalPrograms/AE/2016/M4-2016-11-14.mp4.