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CD Master Funding AgreementMASTER FUNDING AGREEMENT BETWEEN THE METROPOLITAN TRANSPORTATION COMMISSION AND CITY OF SAN RAFAEL PLANNING, PROGRAMMING, TRANSPORTATION, TRANSIT, LAND USE OR OTHER PROJECTS FOR FISCAL YEAR 2018-19 through FISCAL YEAR 2027-28 11-(-7-32 TABLE OF CONTENTS ARTICLE MTC/City of San Rafael Master Funding Agreement Page ii 1.0 GENERAL ..................................................................................................................................... 3 2.0 INTERAGENCY AGREEMENT ADMINISTRATION .......................................................... 4 3.0 FUNDING ...................................................................................................................................... 4 4.0 TERM ............................................................................................................................................. 5 5.0 PAYMENT .................................................................................................................................... 5 6.0 DELAYS AND FAILURE TO PERFORM ................................................................................ 5 7 .0 AMENDMENTS ........................................................................................................................... 5 8.0 TERMINATION ........................................................................................................................... 6 9.0 USE OF THIRD PARTY CONTRACTS ................................................................................... 6 10.0 INDEMNIFICATION .................................................................................................................. 6 11.0 LAWS AND REGULA TIO NS ..................................................................................................... 6 12.0 RECORDS ..................................................................................................................................... 7 13.0 AUDITS ......................................................................................................................................... 7 14.0 SUBCONTRACTS ........................................................................................................................ 7 15.0 PROHIBITED INTERESTS ....................................................................................................... 8 16.0 ORGANIZATIONAL CONFLICTS OF INTEREST ............................................................... 8 17.0 CHOICEOFLAW ....................................................................................................................... 9 18.0 PARTIAL INVALIDITY ............................................................................................................. 9 19.0 NO THIRD PARTY BENEFICIARIES ..................................................................................... 9 20.0 ORDER OF PRECEDENCE ....................................................................................................... 9 EXHIBIT A FORM OF SUPPLEMENT ............................................................................................. 11 EXHIBIT B-1 ADDITIONAL TERMS AND CONDITIONS (GENERAL) .................................... 13 EXHIBIT B-2 ADDITIONAL TERMS AND CONDITIONS (FEDERALLY REQUIRED CLAUSES) ............................................................................................................................................... 14 EXHIBIT B-3 ADDITIONAL TERMS AND CONDITIONS (STA TE-REQUIRED CLAUSES) 23 EXHIBIT B-4 ADDITIONAL TERMS AND CONDITIONS (PREVAILING WAGE RA TES, APPRENTICESHIPS, AND PAYROLL RECORDS NON FEDERALLY FUNDED AGREEMENTS) ..................................................................................................................................... 36 EXHIBIT B-5 ADDITIONAL TERMS AND CONDITIONS (PREVAILING WAGE RA TES, APPRENTICESHIPS, AND PAYROLL RECORDS FEDERALLY FUNDED AGREEMENTS)37 EXHIBIT B-6 ADDITIONAL TERMS AND CONDITIONS (REGIONAL TOLL FUNDS INCLUDING RMl, RM2, AND AB 1171) ........................................................................................... 48 EXHIBIT B-7 ADDITIONAL TERMS AND CONDITIONS (REGIONAL DISCRETIONARY FEDERAL FUNDS INCLUDING STP AND CMAQ) ........................................................................ 53 MASTER FUNDING AGREEMEN~ MTC /City of San Rafael Master Funding Agreement Page 3 Between METROPOLITAN TRANSPORTATION COMMISSION And CITY OF SAN RAFAEL For PLANNING, PROGRAMMING, TRANSPORTATION, TRANSIT, LAND USE OR OTHER PROJECTS This Master Funding Agreement, effective as of July I, 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 City of San Rafael (hereafter "AGENCY"). MTC and AGENCY are collectively referred to herein as "the Parties." WITNESS ETH 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; 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 Patties hereto agree as follows: 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; MTC/City of San Rafael Master Funding Agreement Page4 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 8-7 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. 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 MTC/City of San Rafael Master Funding Agreement Page 5 This Agreement is in effect for the ten years following the Effective Date. 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 acctpay([i\hayarcametro.gov or 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 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 perfotmed and any adjustments in compensation and schedule. All amendments shall be executed by the authorized Executive or a MTC/City of San Rafael Master Funding Agreement Page6 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 stafe 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 AG ENCY, its officers, employees or agents, or subconsultants or any of them in connection with this Agreement. 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 MTC/City of San Rafael Master Funding Agreement Page 7 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. 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 the Federal Transit Authority (FTA), Federal Highway Administration (FHW A) or Cal trans, AG ENCY shall complete Form I 0-C, as may be revised by Cal trans from time to MTC/City of San Rafael Master Funding Agreement Page 8 time, within thirty (30) days of executing an agreement with a subconsultant and submit it to MTC's Project Manager. MTC shal 1 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 I 0-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 Cali fomia Government Code Sections I 090, 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, 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. MTC/City of San Rafael Master Funding Agreement Page 9 AGENCY shall not engage the services of any subconsultant or subcontractor on any work related to this Agre~ment 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. 17.0 CHOICE OF LAW All questions pertaining to the validity and interpretation of the Agreement shall be detennined 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 re,ferenc~ into such Supplement, the following order of priority shall be MTC/City of San Rafael Master Funding Agreement Page 10 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 SAN RAFAEL co~ Steve Heminger, Executive Director J ICONTRACT\Contracts-New\Maslcr Funding Agreemcnts\San Rafae l\San Rafael (Master Funding Agreement) final docx EXHIBIT A FORM OF SUPPLEMENT MTC/City of San Rafael Master Funding Agreement Page 11 SUPPLEMENT [insert number] TO MASTER FUNDING AGREEMENT This Supplement No._ to Master Funding Agreement ("Supplement or "Agreement") is entered into this ___ day of ___ , 20 I 7, 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 l hereto, the "Supplement Project"). The estimated budget and payment milestones for the Supplement Project scope of work is attached as Annex ll 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 □ Exhibit B-1, Additional Terms and Conditions (General), Paragraph B □ Exhibit B-2, Additional Terms and Conditions (Federally Required Clauses) □ Exhibit B-3, Additional Terms and Conditions (State Required Clauses) □ Exhibit B-4, Additional Terms and Conditions (Prevailing Wage Rates, Apprenticeships, and Payroll Records, Non-Federally-Funded Agreements) · □ Exhibit B-5, Additional Terms and Conditions (Prevailing Wage Rates, Apprenticeships, and Payroll Records, Federally-Funded Agreements) □ Exhibit B-6, Additional Terms and Conditions (Regional Toll Funds including RM I, RM2, and ABI 171) □ 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.] [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.] MTC/City of San Rafael Master Funding Agreement Page 12 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 COMMISSION Steve Heminger, Executive Director [AGENCY) [Name/Title] EXHIBIT B-1 MTC/City of San Rafael Master Funding Agreement Page 13 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 perfonnance 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. Fu1ther, 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. EXHIBIT B-2 ADDITIONAL TERMS AND CONDITIONS (FEDERALLY REQUIRED CLAUSES) I. EQUAL EMPLOYMENT OPPORTUNITY MTC/City of San Rafael Master Funding Agreement Page 14 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 FT A-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 Transpo,tation 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 or 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 FT A-funded projects, AGENCY further agrees to comply with the current FTA Circular 4702.1 A, "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. 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. § 1210 I 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. § 531 O(f); and their implementing regulations. 5. STATE ENERGY CONSERVATION PLAN MTC/City of San Rafael Master Funding Agreement Page 15 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. ALLOW ABILITY OF COSTS AGENCY shall comply with the cost principles (as applicable) in Office of Management and Budget (0MB) Circulars A-87, or A-122, or 48 Code of Federal Regulations Chapter I Part 31, or 49 Code of Federal Regulations Part 18, or in 2 Code of Federal Regulations Parts 200 and 120 I, 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 I, Part 31. 7. LICENSE FOR FEDERAL GOVERNMENT PURPOSES FTA/FHW A 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." 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 MTC/City of San Rafael Master Funding Agreement Page 16 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 fu11her 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. rLY 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 30 I -I 0, 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. nag 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, "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 ifit 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. MTC/City of San Rafael Master Funding Agreement Page 17 B. AG ENCY 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. § IOOI and 49 U.S.C. § 5307(n)(l) 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 FT A. 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 if the 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. 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 theCleanAirAct(42 U.S.C . § 7501 et seq.), the Clean WaterAct(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: MTC/City of San Rafael Master Funding Agreement Page 18 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.) EXHIBIT B-2 ATTACHMENT A MTC /City of San Rafael Master Funding Agreement Page 19 FEDERALLY REQUIRED CERTIFICATIONS CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS Instructions for Certification: I. 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 debannent. 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 pa11icipant 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 detennines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by U.S. General Service Administration. MTC/City of San Rafael Master Funding Agreement Page 20 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. MTC/City of San Rafael Master Funding Agreement Page 21 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) MTC/City of San Rafael Master Funding Agreement Page 22 CERTIFICATION OF RESTRICTIONS ON LOBBYING I. (name and title of grantee official) hereby certify on behalf of (name of grantee) I. No Federal appropriated funds have been paid or will be paid, by or on behalf of the that: 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 Fonn-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 trarisaction 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 civi I penalty of not less than $ I 0,000 and not more than $100,000 for each such failure. Executed this day of ----,20_ --------- By: (signature of authorized official) (title of authorized official) EXHIBIT B-3 ADDITIONAL TERMS AND CONDITIONS (ST A TE-REQUIRED CLAUSES) I) 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 EXHIBIT B-3 ATTACHMENT A FAIR EMPLOYMENT PRACTICES ADDENDUM MTC/City of San Rafael Master Funding Agreement Page 24 I . In the performance of the applicable Supplement, AGENCY shall not discriminate against any employee for employment because of race, color, sex, sexual orientation, religion, ancestry or national origin, physical disability, medical condition, marital status, political affiliation, family and medical care leave, pregnancy leave, or disability 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 I 2900(a-f), set forth in Chapter 5 of Div ision 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 organi-;,ations 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 STA TE, the State Fair Employment and Housing Commission, or any other agency of the State ~f 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) ST A TE may detennine 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. MTC/City of San Rafael Master Funding Agreement Page 25 (b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate the applicable Supplement either in whole or in part, and any loss or damage sustained by STA TE 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 ST A TE 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. EXHIBIT B-3 ATTACHMENT B NONDISCRIMINATION ASSURANCES MTC/City of San Rafael Master Funding Agreement Page 26 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 pe11inent 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) (I) 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: I. 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. 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. MTC/City of San Rafael Master Funding Agreement Page 27 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 ot: 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 prope11y. 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 speci fie authority, to give reasonable guarantee that AGENCY, other recipients, sub-grantees, applicants, sub-applicants, 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. 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 STA TE 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 ST A TE 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, ST A TE may impose sanctions as provided for under 49 CFR Part 26 and MTC/City of San Rafael Master Funding Agreement Page 28 may, in appropriate cases, refer the matter for enforcement under 18 USC I 00 I 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. APPENDIX A TO ATTACHMENT B MTC/City of San Rafael Master Funding Agreement Page 29 (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: (I) 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 perfonned 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 STA TE or FHW A 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 FHW A as appropriate, and shall set fo1th 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 FHW A 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 (I) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. MTC/City of San Rafael Master Funding Agreement Page 30 AGENCY shall take such action with respect to any sub-agreement or procurement as ST A TE or FHW A may direct as a means of enforcing such provisions including sanctions for noncompliance, 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 STA TE, and, in addition, AGENCY may request the United States to enter into such litigation to protect the interests of the United States. APPENDIX B TO ATTACHMENT B MTC/City of San Rafael Master Funding Agreement Page 31 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 federal-aid 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 HA VE 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, (I) 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 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 (;) and (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.* MTC/City of San Rafael Master Funding Agreement Page 32 *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. MTC/City of San Rafael Master Funding Agreement Page 33 APPENDIX C TO ATTACHMENT BTo 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, Nondiscrim'ination 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, perniits, etc.)* That in the event of breach of any of the above nondiscrimination covenants, AGENCY shall have the right to terminate the (license, lease, perniit etc.) and to re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, pern,it, 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. APPENDIX D TO ATTACHMENT B MTC/City of San Rafael Master Funding Agreement Page 34 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: (I) no person on the ground of race, color, sex, national origin, religion, ag~ 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 AG ENCY, 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. EXHIBIT B-3 ATTACHMENT C MTC/City of San Rafael Master Funding Agreement Page 35 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 1-1 IV and AIDS), medical condition (cancer), age, marital status, denial of family and medical care leave, and denial of pregnancy disability 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 YI 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. EXHIBIT B-4 ADDITIONAL TERMS AND CONDITIONS MTC/City of San Rafael Master Funding Agreement Page 36 (PREVAILING WAGE RA TES, 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 I 720 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, Records and 13.0 Audits, MTC reserves the right to request copies of the certi tied payroll records. EXHIBIT B-5 ADDITIONAL TERMS AND CONDITIONS MTC/City of San Rafael Master Funding Agreement Page 37 (PREVAILING WAGE RA TES, 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 hllps://ww\v.dol.L!ov /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, Records and 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 8- 5, Prevailing Wage Rates, Apprenticeships, and Payroll Records, are not current. EXHIBITB-5 ATTACHMENT A MTC/City of San Rafael Master Funding Agreement Page 38 ADDITIONAL FEDERAL CLAUSES APPLICABLE TO PUBLIC WORKS I. Buy America 2. Davis-Bacon Act 3. Contract Work Hours and Safoty Standards Act 4. Copeland Anti-Kickback Act 5. Prompt Payment of Funds Withheld to Subcontractors 1. Buy America Reuuirements MTC/City of San Rafael Master Funding Agreement Page 39 Buy America -Attention is directed to the "Buy America" requirements of the surface Transportation Assistance Act of 1982 (Section 165) and the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) Sections I 041 (a) and I 048(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: 2. DA VIS-BACON ACT MTC/City of San Rafael Master Funding Agreement Page 40 (a) The AGENCY head shall cause or require its contracting officer to insert in full in any contract in excess of $2,000 which is entered into for the actual construction, alteration and/or repair, including painting and decorating, of a public building or public work, or building or work financed in whole or in part from Federal funds or in accordance with guarantees of a Federal agency or financed from funds obtained by pledge of any contract of a Federal agency to make a loan, grant or annual contribution (except where a different meaning is expressly indicated), and which is subject to the labor standards provisions of any of the acts listed in §5.1, the following clauses (or any modifications thereof to meet the patticular needs of the agency, Provided, That such modifications are first approved by the Department of Labor): (I) Minimum wages. (i) Al I laborers and mechanics employed or working upon the site of the work ( or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often Lhan once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached herelo and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section I (b )(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)( I )(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in §5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage detennination (including any additional classification and wage rates conformed under paragraph (a)( I )(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii)(A) The AGENCY's contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage detennination. The AGENCY's contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: ( I ) The work to be performed by the classification requested is not performed by a classification in the wage determination; and ( 2) The classification is utilized in the area by the construction industry; and ( 3 ) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the AGENCY's contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classilication and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken MTC/City of San Rafael Master Funding Agreement Page 41 shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The AGENCY's Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days ofreceipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the AGENCY's contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the AGENCY's contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the AGENCY's Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)( I )(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the AGENCY's contractor does not make payments to a trustee or other third person, the AGENCY's contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (2) Withholding. AGENCY shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from its contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract, the AGENCY may, after written notice to its contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and basic records. (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section I (b )(2)(B) of the Davis- MTC/City of San Rafael Master Funding Agreement Page 42 Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)( I )(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section I (b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. AGENCY's contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The AGENCY's contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Highway Administration (FHW A and/or FTA) if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant, sponsor, or owner, as the case may be, for transmission to the FHW A and/or FTA. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.f?. , the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at hllp:/lwww.dol.gov/esa/whd(forms/wh347inslr.htm or its successor site. The AGENCY's prime contractor is responsible for the submission of copies of payrolls by all subcontractors. AGENCY's contractors and subcontractors shall maintain the ti.ill social security number and current address of each covered worker, and shall provide them upon request to the PHW A and/or FTA if the agency is a party to the contract, but if the agency is not such a party, the AGENCY's contractor will submit them to the applicant, sponsor, or owner, as the case may be, for transmission to the FHW A and/or f<TA, the AG ENCY's contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a AGENCY's prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, sponsor, or owner). (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the AGENCY's contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: ( I ) That the payroll for the payroll period contains the information required to be provided under §5.5 (a)(3 )(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; ( 2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set fo11h in Regulations, 29 CFR part 3; ( 3 ) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. MTC/City of San Rafael Master Funding Agreement Page 43 (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Forni WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section I 00 I of title 18 and section 231 of title 3 I of the United States Code. (iii) The AGENCY's contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the FHW A and/or the FTA or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the AGENCY's contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (4) Apprentices and trainees -(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the AGENCY's contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a AGENCY's contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. lfthe AGENCY's Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. MTC/City of San Rafael Master Funding Agreement Page 44 (ii) Trainees. Except as provided in 29 CFR 5. 16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division detennines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved . (iii) Equal employment opportunity. The utili z ation of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. (5) Compliance with Copeland Act retJuirements . The AGENCY's contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. (6) Subcontracts. The AGENCY's contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)( I) through ( I 0) and such other clauses as the FHW A may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The AGENCY's prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5 . (7) Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (8) Compliance with Davis-Bacon and Related Act requirements . All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts I, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR paits 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. ( I 0) Certification of eligibility. (i) By entering into this contract, the AGENCY's contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the AGENCY's contractor's firm MTC/City of San Rafae l Master Funding Agreement Page 45 is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis- Bacon Act or 29 CFR 5.12(a)( 1 ). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5. l2(a)( 1 ). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. (b) Contract Work Hours and Safety Standards Act. The AGENCY shall cause or require its contracting officer to insert the following clauses set forth in paragraphs (b)(l), (2), (3), and (4) of this section in full in any contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by §5.S(a) or4.6 of part 4 of this title. As used in this paragraph, the terms laborers and mechanics include watchmen and guards. (I) Overtime requirements. No AGENCY contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of fo11y hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-halftimes the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation,· liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b )( 1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such AGENCY's contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b )(I) of this section, in the sum of$ IO for each calendar day on which such individual was required or pe1mitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b )(I) of this section. (3) Withholding for unpaid wages and liquidated damages. The AGENCY shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the AGENCY's contractor or subcontractor under any such AGENCY contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be detennined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b )(2) of this section. (4) Subcontracts. The AGENCY's contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(l) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The AGENCY's prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(I) through (4) of this section. ( c) In addition to the clauses contained in paragraph (b ), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other statutes cited in §5.1, the AGENCY shall cause or require the contracting officer to insert a clause requiring that the AGENCY's contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen; working on the contract. Such records shall contain the MTC/C'ity of San Rafael Master Funding Agreement Page 46 name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. Further, the AGENCY shall cause or require the AGENCY's contracting officer to insert in any such contract a clause providing that the records to be maintained under this paragraph shall be made available by the AGENCY's contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the (write the name of agency) and the Depa11ment of Labor, and the contractor or subcontractor will permit such representatives to interview employees during working hours on the job. (The information collection, recordkeeping, and reporting requirements contained in the following paragraphs of this section were approved by the Office of Management and Budget: Paragraph (a)( I )(ii)(B) (a)( l )(ii)(C) (a)( I )(iv) (a)(J )( i) (a)(J)(ii)(A) (c) 0MB Control Number 1215 -0140 1215-0140 1215 -0140 1215-0140, 1215-0017 1215-0149 1215-0140, 1215-0017 [48 FR 19540, Apr. 29, 1983, as amended at 51 FR 12265, Apr. 9, 1986; 55 foR 50150, Dec. 4, 1990; 57 FR 28776, June 26, 1992; 58 foR 58955, Nov. 5, 1993; 61 FR 40716, Aug. 5, 1996; 65 FR 69693, Nov. 20, 2000; 73 FR 77511, Dec. 19, 20081 Effective Date Note: At 58 FR 58955, Nov . 5, 1993, §5.5 was amended by suspending paragraph (a)( I )(ii) indefinitely. 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 lo include the requirements oflhis section in each subcontract. The term "subcontract" under this section is considered to refer to a person who agrees to perform any pa11 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 constmction work and is to be performed: ( l) 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 MTC/City of San Rafael Master Funding Agreement Page 47 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 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. Recitals EXHIBIT 8-6 MTC/City of San Rafael Master Funding Agreement Page 48 ADDITIONAL TERMS AND CONDITIONS (REGIONAL TOLL FUNDS INCLUDING RMI, RM2, AND AB 1171) WHEREAS, Streets and Highways Code (SHC) Sections 30950 et seq . created the Bay Area Toll Authority ("BAT A") which is a public instrumentality governed by the same board as that governing MTC; and WHEREAS, pursuant to SHC Section 310 I 0(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 BAT A 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 I ("RM I"), which authorized a standard auto toll of$ I on the seven state-owned toll bridges in the San Francisco Bay Area lo fund various transpo11ation 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 slate-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 309l4(c) and (d). The funding amounts assigned to certain of the programs and projects were subsequently revised by MTC Resolution No. 380 I; and WHEREAS, to the extent the Project is receiving RM2 funding hereunder, SHC Section 30914(c) lists the Project to which this Exhibit 8-6 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 RM I funding for the Project to which this Exhibit 8-6 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, Up<lutc<l Initial Project Report, and Attachment B, AGENCY Resolution(s), respectively; and MTC/City of San Rafael Master Funding Agreement Page 49 WHEREAS, by the resolution(s) attached to the applicable Supplement and incorporated herein as Attachment A as Attachment C, MTC Rcsolution(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 Projed Request. B. AGENCY shall provide MTC with annual progress reports on or before each July 3 I 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 RM I, 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 RM I, 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 suppm1ing data in a form and detail required by MTC. D. AG ENCY agrees to spend RM I, RM2 and/or AB I 171 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 RM 1, 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 Guidanc~ 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 AG ENCY and MTC in writing before being incorporated into this Agreement. G. AGENCY certifies that: • The Project is consistent with the Regional Transportation Plan ("RTP"). MTC/City of San Rafael Master Funding Agreement Page 50 • 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 appli_cation for RM2 funds for the Project in accordance with SI-IC Section 309l4(c). • If applicable, AGENCY is authorized to submit an application for AB 1171 funds for the Project in accordance with SHC Section 3 IO I O(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 el seq.) and the applicable regulations thereunder. • There is no legal impediment to AGENCY making allocation requests for RM I, 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 sw.:h Project. I l. In addition to AGENCY's commitment under Article 10, INDEMNIFICA rtON, 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 RM l, 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 patticipation 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. J. Project assets purchased by AGENCY with RM I, 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 MTC/City of San Rafael Master Funding Agreement Page 51 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 RMI, 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 RM I, 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 RM I, 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, Rdmbursemcnt 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 AG ENCY does not use all RM I, 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 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 MTC/City of San Rafael Master Funding Agreement Page 52 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 RM I, 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 Rcquest(s) Attachment D -MTC Resolution No. 3636, Revised Attachment E -Reimbursement Schedule Attachment F -Allocation Request Schedule EXHIBIT B-7 ADDITIONAL TERMS AND CONDITIONS MTC/City of San Rafael Master Funding Agreement Page 53 (REGIONAL DISCRETIONARY FEDERAL FUNDS INCLUDING STP AND CMAQ) I. TERMINATION Notwithstanding Article 8.0, TERMINATION in the Master Funding Agreement, MTC may terminate this Agreement without cause upon ten ( I 0) 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 incu1Ted 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. 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 MTC/City of San Rafael Master Funding Agreement Page 54 third party, without the approval of AGENCY or AGENCY's consultant(s) or subconsultants. FHWA reserves a royalty-free, non-exclusive and i1Tevocable 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 FT A-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 perfonnance of this Agreement. AG ENCY 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. § 1210 I 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. § 531 O(f); and their implementing regulations. 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 MTC/City of San Rafael Master Funding Agreement Page 55 AGENCY agrees to comply with the applicable requirements of all standards, orders, or requirements issued under the Clean Air Act (42 U.S.C. § 750 I 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, Cal trans, 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. AOENCY contractors shall agree to comply with all 48 CFR, Chapter I, 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 (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 432 l 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." CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Community Development Project Manager: Barry Miller/Paul Jensen Extension: 3423 Contractor Name: Metropolitan Transportation Commission (MTC) Contractor's Contact: Bobby Lu Contact's Email: blu ,s,bayareametro.gov D FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION DEPARTMENT 1 Project Manager a. Email PINS Introductory Notice to Contractor b . Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to contractor for their signature 4 Project Manager When necessary, * contractor-signed agreement agendized for Council approval *PSA > $20,000 ; or Purchase> $35,000; or Public Works Contract> $125,000 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed agreement 7 City Attorney Review and approve insurance in PINS, at bonds (for Public Works Contracts) /J ~ 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager 1-/-132 COMPLETED DATE CI ck here ) Lnte1 adc1tc 8/13/2018 8/16/2018 8/16/2018 Cl ck here to ente a date □ N/A Or C ck here to enter a date 9/5/18 er /7 /,~ 1 /7 I fr ;✓If ✓tt 91\91 Us I REVIEWER Check/Initial □ ~ ~ LG ~ LG (N/A) □ □ ~ ~ (i ( Y1~J