HomeMy WebLinkAboutPW Grant Funding for Traffic Control____________________________________________________________________________________
FOR CITY CLERK ONLY
File No.: 4-3-699
Council Meeting: 5/21/2018
Disposition: Resolution No. 14506
Agenda Item No: 5.d
Meeting Date: May 21, 2018
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Public Works
Prepared by: Bill Guerin,
Public Works Director
City Manager Approval: ______________
TOPIC: GRANT FUNDING FOR TRAFFIC CONTROL
SUBJECT: RESOLUTION OF THE SAN RAFAEL CITY COUNCIL ACCEPTING A GRANT FROM
THE METROPOLITAN TRANSPORTATION COMMISSION AND AUTHORIZING THE
CITY MANAGER TO EXECUTE GRANT FUNDING AGREEMENTS, THEREBY
AUTHORIZING THE ALLOCATION OF $239,171 AS A LOCAL MATCH FROM THE
LOCAL GAS TAX FUND AND UP TO $912,535 IN COSTS THAT WILL BE
REIMBURSED TO THE CITY
RECOMMENDATION: Adopt the resolution.
BACKGROUND: On July 17, 2017, the Metropolitan Transportation Commission (MTC) issued a Call
for Projects for the Innovative Deployments to Enhance Arterials (IDEA) Grant Program . The City
applied on September 29, 2017 for funding to develop and deploy an Adaptive Traffic Control System
(ATCS) in Central San Rafael. An ATCS dynamically adjusts signal timing at traffic signals along a
corridor in real-time to accommodate changing traffic conditions. These systems can improve travel
time reliability, ease traffic congestion, and reduce fuel consumption. This would be particularly
beneficial for the interruptions caused by the SMART train grade crossings.
On February 14, 2018, MTC’s Programming and Allocations Committee (PAC) accepted MTC staff
recommendation for a grant award to implement an Automated Traffic Signal Performance Measures
(ATSPM) system. This system would provide the City with the tools needed to actively monitor signal
performance and proactively identify and correct deficiencies before they negatively impact arterial
operations. ATSPMs are a cost-effective way to improve traditional retiming processes by providing
continuous performance monitoring capability using high-resolution data and real-time performance
measures.
ANALYSIS: There are two funding agreements that are necessary as part of the Program Guidelines.
The first requires the City to provide a local match of $239,171 to MTC before the start of the project.
There are sufficient funds in the Local Gas Tax Fund to allocate to this project.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
The second agreement provides for reimbursement from MTC for costs incurred by the City for the
project, up to $912,535. Of the $830,000 award by MTC, the City will receive $704,691 as well as
$207,844 of the City’s $239,171 match. The remainder of the funds will be used by MTC as per the
agreement. The funding breakdown is shown below in Table 1. There are sufficient funds in the Local
Gas Tax Fund to cover these costs prior to reimbursement from MTC.
As part of the grant application the City has also agreed to make an in-kind match of equipment that
was previously purchased and intended to be used at the Central San Rafael intersections. This in-kind
match of $126,685 is reflected in the total project cost of $1,195,856.
MTC-led
Work
San Rafael-led
Work
Total
Project Cost
MTC Share $125,309 $704,691 $830,000
RECIPIENT Share (cash match) $31,327 $207,844 $239,171
SUBTOTAL $156,636 $912,535 $1,069,171
RECIPIENT Share (in-kind match) n/a $126,685 $126,685
TOTAL $156,636 $1,039,220 $1,195,856
Table 1 Total Project Cost Share
It is the intent of staff to deploy ATSPM and ATCS simultaneously. To better accomplish this, staff may
use a consultant procured through a competitive Request for Proposals process to provide project
management and coordination of the two projects. The cost for consultant procurement is reimbursable
from MTC.
FISCAL IMPACT: The total project cost is estimated to be $1,195,856. The City is required to provide a
local match of $239,171 with sufficient funds available in the Local Gas Tax Fund (Fund 206).
OPTIONS: The City Council has the following options:
1. Adopt the resolutions as proposed;
2. Reject the resolution, resulting in the City declining to accept the grant award.
RECOMMENDED ACTION: Adopt the resolution.
ATTACHMENTS:
1. Resolution
RESOLUTION NO. 14506
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL
ACCEPTING A GRANT FROM THE METROPOLITAN TRANSPORTATION COMMISSION
AND AUTHORIZING THE CITY MANAGER TO EXECUTE GRANT FUNDING AGREEMENTS,
THEREBY AUTHORIZING THE ALLOCATION OF $239,171 AS A LOCAL MATCH FROM
THE LOCAL GAS TAX FUND AND UP TO $912,535 IN COSTS THAT WILL BE
REIMBURSED TO THE CITY
WHEREAS, on July 17, 2017, the Metropolitan Transportation Commission (MTC)
issued a Call for Projects for the Innovative Deployments to Enhance Arterials (IDEA) Grant
Program; and
WHEREAS, on September 29, 2017 the City applied for the IDEA Grant in hopes of
acquiring an award to fund improvements to traffic flow and signal timing in Central San Rafael;
and
WHEREAS, the City received a grant award from MTC with a City match of $239,171 to
develop and deploy Automated Traffic Signal Performance Measures which would assist the
City in collecting real-time data to more accurately retime Central San Rafael signal lights; and
WHEREAS, as a condition of the grant the City must provide the local match of
$239,171 to MTC upon the start of the project; and
WHEREAS, MTC will reimburse the City up to $912,535 for actual costs incurred for the
project as outlined in the grant’s Scope of Work; and
WHEREAS, there are sufficient funds in the Local Gas Tax Fund, 206 to support this
project;
WHEREAS, funds totaling $1,195,856 will be appropriated from Gas Tax Fund 206;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Rafael
hereby accepts the IDEA grant and authorizes the City Manager to execute the funding
agreements with the Metropolitan Transportation Commission attached hereto as Exhibits A
and B and incorporated herein, subject to final approval as to form by the City Attorney.
I, LINDSAY LARA, City Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting
of the Council of said City held on the 21st day of May 2018, by the following vote, to wit:
AYES: COUNCIL MEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
____________________________
LINDSAY LARA, City Clerk
May 1, 2018
Lauren Davini
Traffic Engineer
City of San Rafael
111 Morphew St.
San Rafael, CA 94901
RE: Funding Agreement for Innovative Deployments to Enhance Arterials (IDEA)
Category 1 Project – Local Match Contribution
Dear Ms. Davini:
This letter, effective as of May 1, 2018 (“Effective Date”), is the agreement between
the City of San Rafael (“SAN RAFAEL”) and the Metropolitan Transportation
Commission (“MTC”) to cover SAN RAFAEL’s local match contribution for the
deployment of the Innovative Deployments to Enhance Arterials (IDEA) Category 1
project (“the PROJECT”).
It is agreed that MTC and SAN RAFAEL shall lead the procurement of all
necessary equipment, systems, and/or services required to successfully deploy
all elements of the PROJECT, as described in Attachment A, Scope of Work,
attached hereto and incorporated by this reference and in SAN RAFAEL’s
project application dated September 29, 2017, also incorporated herein by this
reference.
It is agreed that SAN RAFAEL shall forward to MTC the agreed-upon amount of two
hundred thirty nine thousand, one hundred seventy one dollars ($239,171), as set
forth in Attachment B, Project Budget, to meet its local match requirement under the
IDEA Program.
MTC shall invoice SAN RAFAEL in the amount of two hundred thirty nine
thousand, one hundred seventy one dollars ($239,171), billable in lump sum upon the
start of the project. SAN RAFAEL shall pay MTC fully upon receipt of an invoice in
the amount stated above within thirty (30) days of receipt. MTC’s invoice shall be
mailed to:
Lauren Davini
Traffic Engineer
City of San Rafael
111 Morphew St.
San Rafael, CA 94901
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 2
All notices and communications regarding interpretation of the terms of this Agreement and
changes thereto shall be given to the other Party in writing and shall be deemed given when
made in writing, and hand-delivered, mailed, or emailed, to such party at their respective
addresses as follows:
If to SAN RAFAEL: Attention: Lauren Davini
Traffic Engineer
City of San Rafael
111 Morphew St.
San Rafael, CA 94901
Email: lauren.davini@cityofsanrafael.org
If to MTC: Attention: Robert Rich
Metropolitan Transportation Commission
Bay Area Metro Center
375 Beale Street, Suite 800
San Francisco, CA 94105
Email: rrich@bayareametro.gov
MTC’s Project Manager shall be Robert Rich. SAN RAFAEL’s Project Manager shall be Lauren
Davini. The Project Managers will be responsible for all day-to-day communications between
the Parties at any time. Either Party may designate another individual to serve as Project
Manager, and shall give the other Party due notice.
SAN RAFAEL agrees to retain all documents, working papers, records, accounts and other
materials relating to its performance under this Agreement for four years following the fiscal
year of the last expenditure under this Agreement, and MTC may inspect and audit such records
during that period of time.
Performance will begin on or after May 1, 2018 and be completed by June 30, 2021, unless this
Agreement is terminated or extended by either SAN RAFAEL or MTC as provided below. SAN
RAFAEL and MTC may by mutual written agreement extend the term of or make other changes
to this Agreement.
This Agreement constitutes the entire agreement between the parties and supersedes any prior
written or oral communication. Any amendment of the Agreement must be in writing,
specifically identified as an amendment to the Agreement, and signed by both the City Manager
of SAN RAFAEL and the Executive Director of MTC, or their designated representatives.
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 3
If you agree, please sign and date both copies of this letter in the space provided below and
return to us. The other copy is for your files.
Very truly yours,
Steve Heminger
Executive Director
[Signature for SAN RAFAEL is on the following page]
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 4
Accepted and Agreed to this ______ day
of __________________, 2018.
CITY OF SAN RAFAEL
Jim Schutz, City Manager
SH: rr
J:\CONTRACT\Contracts-New\CON 17-18\Funding Agreements\IDEA Program\Cat 1\San Rafael Funding Agreement - IDEA Cat 1-match-
v2.docx
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 5
ATTACHMENT A
SCOPE OF WORK
SAN RAFAEL received a grant under MTC’s Innovative Deployments to Enhance Arterials
(IDEA) Program – an initiative that is designed to support cities, counties and transit agencies in
the implementation of either mature, commercially-available technologies (Category 1) or new,
higher-risk connected and automated vehicle technologies (Category 2). The IDEA Program
aims to:
1. Improve travel time and travel time reliability along arterials for autos and transit vehicles;
2. Improve safety of motorists, transit riders, bicyclists, and pedestrians;
3. Decreasing motor vehicle emissions and fuel consumption; and
4. Improve knowledge of and proficiency in the use of advanced technologies for arterial
operations.
Specifically, SAN RAFAEL received a grant for a Category 1 project (Figure 1) to deploy
Automated Traffic Signal Performance Measures (ATSPM) along various corridors throughout
the City to improve arterial operations.
Where appropriate and applicable, SAN RAFAEL shall lead the procurement to engage
vendor(s), contractor(s), and/or consultant(s) to perform the work necessary to successfully
complete the project. Such procurements could include, but are not be limited to, the following:
- Capital (e.g., systems, software/hardware/firmware, equipment, etc.)
- Design services
- System integration services
- Project construction services
- Construction management/support services
Some of the procurements for technical assistance services could be led and managed by MTC.
During the course of the project, MTC Project Manager and SAN RAFAEL Project Manager
shall work collectively to determine which agency will lead which procurement, based on what
would be the most efficient and expeditious approach to meeting the project delivery schedule.
SAN RAFAEL shall participate in regularly-scheduled calls to ensure project delivery goals are
met. SAN RAFAEL shall provide an appropriate level of staff support and administration
required for the successful completion of the project. SAN RAFAEL shall agree to share data
collected as part of the project, if requested by MTC. MTC and SAN RAFAEL shall mutually
agree upon what specific data can be shared.
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 6
Figure 1 Project Area
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MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 7
ATTACHMENT B
PROJECT BUDGET
The following table provides the total estimated project budget, broken down by MTC’s share
and SAN RAFAEL’s share (cash and in-kind match) of the total project cost. Under a separate
funding agreement, MTC shall reimburse SAN RAFAEL the agreed-upon amount of $912,535
to cover services led by SAN RAFAEL to deliver the PROJECT.
MTC-led
Work
SAN RAFAEL-led
Work
Total
Project Cost
MTC Share $125,309 $704,691 $830,000
SAN RAFAEL Share (cash match) $31,327 $207,844 $239,171
SUBTOTAL $156,636 $912,535 $1,069,171
SAN RAFAEL Share (in-kind match) n/a $126,685 $126,685
TOTAL $156,636 $1,039,220 $1,195,856
May 1, 2018
Lauren Davini
Traffic Engineer
City of San Rafael
111 Morphew St.
San Rafael, CA 94901
RE: Funding Agreement for Innovative Deployments to Enhance Arterials (IDEA) Category
1 Project
Dear Ms. Davini:
This letter, effective as of May 1, 2018 (“Effective Date”), is the Funding Agreement (the
“AGREEMENT”) between City of San Rafael (“RECIPIENT”) and the Metropolitan
Transportation Commission (“MTC”) to reimburse the RECIPIENT for services performed
to deliver the Innovative Deployments to Enhance Arterials (IDEA) Category 1 project (the
“PROJECT”), as described in Attachment A.
It is agreed that MTC and RECIPIENT shall lead the procurement of all necessary
equipment, systems, and/or services required to successfully deploy all elements of
the PROJECT, as described in Attachment A, Scope of Work, attached hereto and
incorporated by this reference and in RECIPIENT’s project application, dated
September 29, 2017, also incorporated herein by this reference.
Robert Rich (herein “MTC Project Manager”) shall be responsible for the overall
administration of the AGREEMENT, including approving invoices and progress reports.
MTC will reimburse RECIPIENT for its actual costs incurred for RECIPIENT-led work
described in Attachment A, Scope of Work. Compensation to RECIPIENT shall not exceed
nine hundred twelve thousand, five hundred thirty five dollars ($912,535) without an
amendment to this AGREEMENT. Reimbursement costs shall be based on the actual
contract bid price. MTC and RECIPIENT jointly agree to exert their best efforts to manage
the PROJECT in such a way that costs do not exceed the estimated budget in Attachment B,
Project Budget. Should the Project costs exceed the limit set forth in Attachment B due to
scope changes not initiated or approved by MTC, RECIPIENT shall be solely responsible for
the excess amount. Should Project costs exceed the limit set forth in Attachment B due to
scope changes initiated or approved by MTC, Attachment B will be amended to reflect the
scope change, and MTC will be responsible for payment of the excess amount to
RECIPIENT.
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 2
The AGREEMENT is funded in whole, or in part, by Congestion Mitigation/Air Quality
(CMAQ) Funds allocated to MTC by the Federal Highway Administration (FHWA), funds from
which have been awarded to RECIPIENT by MTC.
RECIPIENT shall comply with any and all applicable laws, statutes, ordinances, rules,
regulations, and procedural requirements of any national, state, or local government, and of any
agency of any such government, including but not limited to MTC that relate to or in any manner
affect the performance of the AGREEMENT. Those laws, statutes, ordinances, rules,
regulations and procedural requirements that are imposed on MTC as a recipient of federal or
state funds are hereby in turn imposed on RECIPIENT. The Provisions in Attachment C, Terms
and Conditions, Attachment D, Fair Employment Practices Addendum, Attachment E, Non-
discrimination Assurances, and Attachment F, State Department of Transportation Requirements,
are attached hereto and incorporated by this reference. To the extent that they conflict with any
of the provisions of this AGREEMENT, they supersede such provisions.
RECIPIENT agrees to provide MTC with documentation establishing compliance with the
material terms of this AGREEMENT. RECIPIENT agrees to submit invoices to MTC.
RECIPIENT shall only be permitted to invoice or receive reimbursement for actual Project costs
incurred, based on the actual contract bid price. The invoice for these payments shall be
supported by the required supporting reporting data as indicated in this AGREEMENT.
RECIPIENT shall provide a brief progress report with each invoice. MTC reserves the right to
request further information to the extent necessary or required to obtain reimbursement from
Caltrans.
Payment shall be made within ninety (90) days after receipt by MTC of an acceptable invoice,
which shall be subject to the review and approval of MTC’s Project Manager. RECIPIENT shall
deliver, mail or email invoices to MTC, as follows:
Accounting Department
Metropolitan Transportation Commission
Bay Area Metro Center
375 Beale Street, Suite 800
San Francisco, CA 94105
If RECIPIENT elects to email rather than mail invoices, the delivery address is
acctpay@bayareametro.gov.
RECIPIENT’s Project Manager shall be Lauren Davini. MTC Project Manager and
RECIPIENT’s Project Manager will be responsible for all day-to-day communications between
the Parties at any time. Either Party may designate another individual to serve as Project
Manager, and shall give the other Party due notice.
All notices and communications regarding interpretation of the terms of this AGREEMENT and
changes thereto shall be given to the other Party in writing and shall be deemed given when
made in writing, and hand-delivered, mailed, or emailed, to such party at their respective
addresses as follows:
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 3
If to RECIPIENT: Attention: Lauren Davini
Traffic Engineer
City of San Rafael
111 Morphew St.
San Rafael, CA 94901
Email: lauren.davini@cityofsanrafael.org
If to MTC: Attention: Robert Rich
Metropolitan Transportation Commission
Bay Area Metro Center
375 Beale Street, Suite 800
San Francisco, CA 94105
Email: rrich@bayareametro.gov
Recipient agrees to retain all documents, working papers, records, accounts and other materials
relating to its performance under this AGREEMENT for four years following the fiscal year of
the last expenditure under this AGREEMENT, and MTC may inspect and audit such records
during that period of time.
Performance will begin on or after May 1, 2018 and be completed by June 30, 2021, unless this
AGREEMENT is terminated or extended by either RECIPIENT or MTC as provided below.
RECIPIENT and MTC may by mutual written agreement extend the term of or make other
changes to this AGREEMENT.
This AGREEMENT constitutes the entire agreement between the parties and supersedes any
prior written or oral communication. Any amendment of the AGREEMENT must be in writing,
specifically identified as an amendment to the AGREEMENT, and signed by both the City
Manager of RECIPIENT and the Executive Director of MTC, or their designated representatives.
If you agree, please sign and date both copies of this letter in the space provided below and
return to us. The other copy is for your files.
Very truly yours,
Steve Heminger
Executive Director
[Signature for Recipient is on the following page.]
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 4
Accepted and Agreed to this ______ day
of __________________, 2018.
CITY OF SAN RAFAEL
Jim Schutz, City Manager
SH: rr
J:\CONTRACT\Contracts-New\CON 17-18\Funding Agreements\IDEA Program\Cat 1\San Rafael Funding Agreement - IDEA Cat 1-fund
transfer-v3.docx
Attachment A: Scope of Work
Attachment B: Project Budget
Attachment C: Terms and Conditions
Attachment C-1: Additional Federal Clauses
Attachment D: Federal Employment Practices Addendum
Attachment E: Nondiscrimination Assurances
Attachment F: State Department of Transportation Requirements
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 5
ATTACHMENT A
SCOPE OF WORK
RECIPIENT received a grant under MTC’s Innovative Deployments to Enhance Arterials
(IDEA) Program – an initiative that is designed to support cities, counties and transit agencies in
the implementation of either mature, commercially-available technologies (Category 1) or new,
higher-risk connected and automated vehicle technologies (Category 2). The IDEA Program
aims to:
1. Improve travel time and travel time reliability along arterials for autos and transit vehicles;
2. Improve safety of motorists, transit riders, bicyclists, and pedestrians;
3. Decreasing motor vehicle emissions and fuel consumption; and
4. Improve knowledge of and proficiency in the use of advanced technologies for arterial
operations.
Specifically, RECIPIENT received a grant for a Category 1 project (Figure 1) to deploy
Automated Traffic Signal Performance Measures (ATSPM) along various corridors throughout
the City to improve arterial operations.
Where appropriate and applicable, RECIPIENT shall lead the procurement to engage vendor(s),
contractor(s), and/or consultant(s) to perform the work necessary to successfully complete the
project. Such procurements could include, but are not be limited to, the following:
- Capital (e.g., systems, software/hardware/firmware, equipment, etc.)
- Design services
- System integration services
- Project construction services
- Construction management/support services
Some of the procurements for technical assistance services could be led and managed by MTC.
During the course of the project, MTC Project Manager and RECIPIENT Project Manager shall
work collectively to determine which agency will lead which procurement, based on what would
be the most efficient and expeditious approach to meeting the project delivery schedule.
RECIPIENT shall participate in regularly-scheduled calls to ensure project delivery goals are
met. RECIPIENT shall provide an appropriate level of staff support and administration required
for the successful completion of the project. RECIPIENT shall agree to share data collected as
part of the project, if requested by MTC. MTC and RECIPIENT shall mutually agree upon what
specific data can be shared.
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 6
Figure 1 Project Area
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 7
ATTACHMENT B
PROJECT BUDGET
The following table provides the total estimated project budget, broken down by MTC’s share
and RECIPIENT’s share (cash and in-kind match) of the total project cost. Under a separate
funding agreement and upon receipt of a lump-sum invoice from MTC, RECIPIENT shall
forward to MTC the agreed-upon amount of $239,171 to cover RECIPIENT’s cash match.
MTC-led
Work
RECIPIENT-led
Work
Total
Project Cost
MTC Share $125,309 $704,691 $830,000
RECIPIENT Share (cash match) $31,327 $207,844 $239,171
SUBTOTAL $156,636 $912,535 $1,069,171
RECIPIENT Share (in-kind match) n/a $126,685 $126,685
TOTAL $156,636 $1,039,220 $1,195,856
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 8
ATTACHMENT C
TERMS AND CONDITIONS
1. AMENDMENTS
Any changes in the activities to be performed under this Agreement shall be incorporated
in written amendments, which shall specify the changes in work performed and any adjustments
in compensation and schedule. All amendments shall be executed by the MTC Executive
Director or a designated representative and Recipient. No claim for additional compensation or
extension of time shall be recognized unless contained in a duly executed amendment.
2. TERMINATION
MTC may terminate this Agreement without cause upon ten (10) days prior written
notice. If MTC terminates this Agreement without cause, Recipient will be entitled to payment
for costs incurred for incomplete deliverables, up to the maximum amount payable for each
deliverable. If Recipient fails to perform as specified in this Agreement, MTC may terminate
this Agreement for cause by written notice and Recipient will be entitled only to costs incurred
for work product acceptable to MTC, not to exceed the maximum amount payable under this
Agreement for such work product.
3. RETENTION OF RECORDS
Recipient agrees to keep, in accordance with generally accepted accounting principles, all
records pertaining to the project being funded for audit purposes for a minimum of three (3)
years following final payment to Recipient or four (4) years following the fiscal year of the last
expenditure under this Agreement, whichever is longer. Copies of Recipient 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.
4. AUDITS
Recipient 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 Recipient’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 3.
Recipient 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.
5. LICENSE TO WORK PRODUCTS
Recipient 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
MTC/City of San Rafael
Innovative Deployments to Enhance Arterials (IDEA) Category 1
Page 9
documentation, documentation or system architecture, and any other documents, materials, data,
and products (“Work Products”) developed, prepared, or assembled by Recipient or Recipient’s
consultant(s) or its subconsultants pursuant to this Agreement. MTC may exercise their licenses
to Work Products through sublicenses to a third party, without the approval of Recipient or
Recipient’s consultant(s) or subconsultants. FHWA reserves a royalty-free, non-exclusive and
irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for
federal government purposes: (a) the copyright in any work developed under this Agreement;
and (b) any rights of copyright to which Recipient or Recipient’s consultant(s) or subconsultants
purchase ownership under this Agreement.
6. EQUAL EMPLOYMENT OPPORTUNITY
Recipient agrees to comply, and assures the compliance of each third party contractor and
each subrecipient at any tier of the Project, with all equal employment opportunity (EEO)
requirements of Title VI of the Civil Rights Act, as amended (42 U.S.C. Section 2000d); Title
VII of the Civil Rights Act of 1964, as amended (42 U.S.C. Section 2000e); Section 303 of the
Age Discrimination Act of 1975, as amended (42 U.S.C. Section 6102); Section 202 of the
Americans with Disabilities Act of 1990 (42 U.S.C. Section 12132); and 49 U.S.C. 5332 and any
implementing requirements FHWA may issue. Recipient agrees, and assures that any third party
contractor or subrecipient at any tier of this Project will agree, 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.
7. 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.
Recipient shall not discriminate on the basis of race, color, national origin or sex in the
performance of this Agreement. Recipient shall carry out applicable requirements of 49 CFR
Part 26 in the award and administration of DOT-assisted contracts. Failure by Recipient 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.
8. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Recipient agrees to comply, and assures the compliance of each third party contractor and
each subrecipient at any tier of the Project, with all the requirements imposed by Title VI of the
Civil Rights Act of 1964, as amended, (47 U.S.C. § 2000d et seq.) and the regulations of the
Department of Transportation issued thereunder, “Nondiscrimination in Federally-Assisted
Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights
Act,” (49 CFR Part 21).
9. ACCESS REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES
Recipient agrees to comply with all applicable requirements of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of
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1973, as amended, 29 U.S.C. § 794; Section 16 of the Federal Transit Act, as amended, 49 U.S.C. §
5310(f); and their implementing regulations.
10. STATE ENERGY CONSERVATION PLAN
Recipient 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).
11. DEBARMENT
Recipient 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.
12. CLEAN AIR AND WATER POLLUTION ACTS
Recipient agrees to comply with the applicable requirements of all standards, orders, or
requirements issued under the Clean Air Act (42 U.S.C. § 7501 et seq.), the Clean Water Act (33
U.S.C. § 1251 et seq.), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR Part 15).
13. LOBBYING
Recipient 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.
14. INDEMNIFICATION
Recipient shall indemnify and hold harmless MTC, its 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 negligent or otherwise wrongful act or omission of Recipient, its officers,
directors, employees, agents and contractors, or any of them, under or in connection with this
Agreement; and Recipient 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,
Directors, officers, agents, and employees, or any of them, arising out of such act or omission,
and to pay and satisfy any resulting judgments. Recipient shall require private contractors and
other individuals or entities that perform work under this Agreement to indemnify, hold
harmless, and defend MTC, its Commissioners, Directors, officers, agents and employees under
the same conditions and to the same extent as set forth herein.
15. MEETINGS
Recipient agrees to invite MTC to participate in all meetings held in connection with this
project, including public meetings and project team meetings.
16. COMPLIANCE WITH LAWS
Recipient 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
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limited to MTC, the U.S. DOT, FHWA, 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 a recipient of federal or state funds are hereby in t urn
imposed on Recipient (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.
17. IDENTIFICATION OF DOCUMENTS
Recipient will ensure that all documents related to the project including meeting notices
and reports state that the project is funded through the Metropolitan Transportation Commission.
In addition, Recipient will 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.” In addition, Recipient certifies that the
Recipient and its contractors shall comply with the requirements of the California Envir onmental
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 4-1 et seq. and the applicable
regulations thereunder.
18. SUBCONTRACTS
Recipient must include provisions of this Agreement, as applicable, modified only to show the
particular contractual relationship, in any third-party contracts funded by this Agreement.
19. INSURANCE REQUIREMENTS
A. Minimum Coverages. The insurance requirements specified in this section shall
cover Recipient’s own liability and the liability arising out of work or services performed under
this Agreement by any subconsultants, subcontractors, suppliers, temporary workers,
independent contractors, leased employees, or any other persons, firms or corporations that
Recipient authorizes to work under this Agreement (hereinafter referred to as “Agents.”)
Recipient shall, at its own expense, obtain and maintain in effect at all times during the life of
this Agreement the following types of insurance 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 this Agreement.
Recipient is also required to assess the risks associated with work to be performed by
Agents under subcontract and to include in every subcontract the requirement that the Agent
maintain adequate insurance coverage with appropriate limits and endorsements to cover such
risks, and to name MTC as an additional insured. To the extent that an Agent does not procure
and maintain such insurance coverage, Recipient shall be responsible for said coverage and
assume any and all costs and expenses that may be incurred in securing said coverage or in
fulfilling Recipient indemnity obligation as to itself or any of its Agents in the absence of
coverage.
In the event Recipient or its Agents procure excess or umbrella coverage to maintain
certain requirements outlined below, these policies shall also satisfy all specified endorsements
and stipulations, including provisions that Recipient’s insurance be primary without right of
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contribution from MTC. Prior to beginning work under this contract, Recipient shall provide
MTC with satisfactory evidence of compliance with the insurance requirements of this section.
1. Workers' Compensation Insurance with Statutory limits, and Employer’s
Liability Insurance with a limit of not less than $1,000,000 per accident and $1,000,000 per
occurrence, and any and all other coverage of Recipient’s employees as may be required by
applicable law. Such policy shall contain a Waiver of Subrogation in favor of MTC. Such
Workers Compensation & Employers Liability may be waived, if and only for as long as
Recipient is a sole proprietor or a corporation with stock 100% owned by officers with no
employees.
2. Commercial General Liability Insurance for Bodily Injury and Property
Damage liability, covering the premises and operations, and products and completed operations
of Recipient and Recipient’s officers, agents, and employees and with limits of liability which
shall not be less than $1,000,000 combined single limit per occurrence with a general aggregate
liability of not less than $2,000,000, a products/completed operations aggregate liability limit of
not less than $2,000,000, and Personal & Advertising Injury liability with a limit of not less than
$1,000,000. Such policy shall contain a Waiver of Subrogation in favor of MTC.
Products and completed operations insurance shall be maintained for three (3) years
following termination of this Agreement.
MTC and those entities listed in Part 3 of this Attachment E (if any), and their
commissioners, directors, officers, representatives, agents and employees are to be named as
additional insureds for ongoing and completed operations.. Such insurance shall be primary and
non-contributory, and contain a Separation of Insureds Clause as respects any claims, losses or
liability arising directly or indirectly from Recipient’s operations.
3. Business Automobile Insurance for all automobiles owned, (if any), used or
maintained by Recipient and Recipient’s officers, agents and employees, including but not
limited to owned, (if any), leased, (if any), non-owned and hired automobiles, with limits of
liability which shall not be less than $1,000,000 combined single limit per accident.
4. Umbrella Insurance in the amount of $5,000,000 providing excess limits over
Employer’s Liability, Automobile Liability, and Commercial General Liability Insurance. Such
umbrella coverage shall be following form to underlying coverage including all endorsements
and additional insured requirements.
5. Property Insurance. Property Insurance covering Recipient's own business
personal property and equipment to be used in performance of this Agreement, materials or
property to be purchased and/or installed on behalf of MTC (if any), and builders risk for
property in the course of construction (if applicable). Coverage shall be written on a "Special
Form" policy that includes theft, but excludes earthquake, with limits at least equal to the
replacement cost of the property. Such policy shall contain a Waiver of Subrogation in favor of
MTC.
6. Contractors’ Pollution Liability Insurance. Contractors’ Pollution Liability
insurance for bodily injury and property damage coverage with a combined single limit for
bodily injury and property damage of at least $1,000,000 per occurrence or claim and a general
aggregate limit of at least $1,000,000. This insurance shall include coverage for, but not be
limited to sudden and accidental discharges; gradual discharges, clean-up of pollutants and
disposal thereof; and, mold, asbestos or lead, if an abatement contract. If Recipient disposes of
Hazardous Materials under this Agreement, Recipient shall designate the disposal site and
provide a certificate of insurance from the disposal facility to MTC.
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Recipient’s Business Automobile Liability coverage shall also be extended to cover
pollution liability during loading; unloading and while in transit including, but not limited to, the
perils of collision and upset. Coverage may be provided by endorsement to the general liability
and automobile policies or by a separate policy.
Such policy shall contain a Waiver of Subrogation in favor of MTC.
MTC (and those entities listed in Part 3, ADDITIONAL INSUREDS, of this Attachment
E (if any)), and their commissioners, directors, officers, representatives, agents and employees
are to be named as additional insureds. Such insurance shall be primary and contain a Separation
of Insureds Clause as respects any claims, losses or liability arising directly or indirectly from
Recipient ‘s operations.
B. Acceptable Insurers. 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.
C. Self-Insurance. CONSULTANT’s obligation hereunder may be satisfied in whole or
in part by adequately funded self-insurance, upon evidence of financial capacity satisfactory to
MTC.
D. Deductibles and Retentions. CONSULTANT shall be responsible for payment of any
deductible or retention on CONSULTANT’s policies without right of contribution from MTC.
Deductible and retention provisions shall not contain any restrictions as to how or by whom the
deductible or retention is paid. Any deductible or retention provision limiting payment to the
Named Insured is unacceptable.
In the event that MTC seeks coverage as an additional insured under any
CONSULTANT insurance policy that contains a deductible or self-insured retention,
CONSULTANT shall satisfy such deductible or self-insured retention to the extent of loss
covered by such policy, for any lawsuit arising from or connected with any alleged act of
CONSULTANT, subconsultant, subcontractor, or any of their employees, officers or directors,
even if CONSULTANT or subconsultant is not a named defendant in the lawsuit.
E. Claims Made Coverage. If any insurance specified above is written on a “Claims-
Made” (rather than an “occurrence”) basis, then in addition to the coverage requirements above,
CONSULTANT shall:
(1) Ensure that the Retroactive Date is shown on the policy, and such date must be
before the date of this Agreement or the beginning of any work under this
Agreement;
(2) Maintain and provide evidence of similar insurance for at least three (3) years
following project completion, including the requirement of adding all additional
insureds; and
(3) If insurance is cancelled or non-renewed, and not replaced with another claims-
made policy form with a Retroactive Date prior to the Agreement effective date,
Recipient shall purchase “extended reporting” coverage for a minimum of three
(3) years after completion of the work.
F. Failure to Maintain Insurance. All insurance specified above shall remain in force
until all work or services to be performed are satisfactorily completed, all of CONSULTANT’s
personnel, subconsultants, subcontractors, and equipment have been removed from MTC’s
property, and the work or services have been formally accepted. CONSULTANT must notify
MTC if any of the above required coverages are non-renewed or cancelled. The failure to
procure or maintain required insurance and/or an adequately funded self-insurance program will
constitute a material breach of this Agreement.
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G. Certificates of Insurance. Prior to commencement of any work hereunder, Recipient
shall deliver to Ebix, MTC’s authorized insurance consultant, insurance documentation
(including Certificates of Liability Insurance, Evidences of Property Insurance, endorsements,
etc.) verifying the aforementioned coverages. Such evidence of insurance shall make reference
to all provisions and endorsements referred to above and shall be signed by the authorized
representative of the Insurance Company shown on the insurance documentation. The Project
name shall be clearly stated on the face of each Certificate of Liability Insurance and/or
Evidence of Property Insurance.
Recipient shall submit certificates of insurance to:
Ebix BPO
P.O. Box 100085-1H
Duluth, GA 30096-9302
or
Email to mtc@prod.certificatesnow.com
or
Fax to 1-888-617-2309
H. FINANCIAL SECURITY (BONDS) – Not used
I. ADDITIONAL INSUREDS
The following entities are to be named as Additional Insureds under applicable sections
of this Agreement.
Metropolitan Transportation Commission
20. PREVAILING WAGE RATES, APPRENTICESHIP AND PAYROLL RECORDS
As applicable, Recipient agrees to comply and assures the compliance of each third party contractor
at any tier of the Project with all the requirements imposed by California Labor Code Sections 1720
et seq. and Title 8 of the California Code of Regulations Sections 16000 et seq. governing the
payment of prevailing wages, as determined by the Director of the California Department of
Industrial Relations and the Federal Davis-Bacon Act. In particular, Recipient’s attention is drawn to
Labor Code Sections 1770 (payment of prevailing wage rate), 1775 (penalty for non -payment), 1776
(payroll records), and 1777.5 (use of apprentices). Should the Federal Davis-Bacon Act governing
the payment of prevailing wages apply to contract work, the higher wage rate between the federal
rate and the California prevailing rate shall apply.
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ATTACHMENT C-1
ADDITIONAL FEDERAL CLAUSES
The Recipient shall include the following in all procurements that include funding from this
Agreement.
A. Equipment Purchases
1. Buy America
2. Cargo Preference
B. Bonding Requirements
C. Construction
1. Davis-Bacon Act
2. Contract Work Hours and Safety Standards Act
3. Copeland Anti-Kickback Act
4. Prompt Payment of Funds Withheld to Subcontractors
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1. Buy America Requirements
Buy America – Attention is directed to the “Buy America” requirements of the surface
Transportation Assistance Act of 1982 (Section 165) and the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA) Sections 1041(a) and 1048(a), and the regulations adopted
pursuant thereto. In conformance with the law and regulations, all manufacturing processes for
steel and iron materials furnished for incorporation into the work on this project shall occur in
the United States; with the exception that pig iron and processed, pelletized and reduced iron ore
manufactured outside of the United States may be used in the domestic manufacturing process
for such steel and iron materials. The application of coatings, such as epoxy coating,
galvanizing, painting, and other coating that protects or enhances the value of steel or iron
materials shall be considered a manufacturing process subject to the “Buy America”
requirements. A Certificate of Compliance shall be furnished for steel and iron materials. The
certificates shall specifically certify that all manufacturing processes for the materials occurred in
the United States, except for the above exceptions.
The requirements imposed 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
Contractor 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 bidder or offer or 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:
1. Cargo Preference
Cargo Preference - Use of United States-Flag Vessels - The contractor agrees: a. to use
privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross
tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved,
whenever shipping any equipment, material, or commodities pursuant to the underlying contract
to the extent such vessels are available at fair and reasonable rates for United States-Flag
commercial vessels; b. to furnish within 20 working days following the date of loading for
shipments originating within the United States or within 30 working days following the date of
leading for shipments originating outside the United States, a legible copy of a rated, "on-board"
commercial ocean bill-of -lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime
Administration, Washington, DC 20590 and to the FHWA recipient (through the contractor in
the case of a subcontractor's bill-of-lading.) c. to include these requirements in all subcontracts
issued pursuant to this contract when the subcontract may involve the transport of equipment,
material, or commodities by ocean vessel.
B. Bonding Requirements
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Bonding Requirements (Model provision): The Contractor may be required to obtain
performance and payment bonds when necessary to protect the operator’s interest.
The following situations may warrant a performance bond:
a. Operator property or funds are to be provided to the contractor for use in performing the
contract or as partial compensation (as in retention of salvaged material).
b. A contractor sells assets to or merges with another concern, and the operator, after
recognizing the latter concern as the successor in interest, desires assurance that it is
financially capable.
c. Substantial progress payments are made before delivery of end items starts.
d. Contracts are for dismantling, demolition, or removal of improvements.
2. Davis-Bacon Act
(a) The Agency head shall cause or require the 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 particular needs of the agency, Provided, That
such modifications are first approved by the Department of Labor):
(1) Minimum wages. (i) All 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 than
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 hereto 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
1(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)(1)(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 determination (including any additional
classification and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis-
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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 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 determination. The contracting officer
shall approve an additional classification and wage rate and fringe benefits therefore only when
the following criteria have been met:
( 1 ) 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 contractor and the laborers and mechanics to be employed in the classification (if
known), or their representatives, and the contracting officer agree on the classification and wage
rate (including the amount designated for fringe benefits where appropriate), a report of the
action taken 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 Administrator, or an authorized representative, will approve, modify, or disapprove
every additional classification action 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.
(C) In the event the 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
contracting officer shall refer the questions, including the views of all interested parties and the
recommendation of the contracting officer, to the 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)(1)(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 contractor does not make payments to a trustee or other third person, the 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.
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(2) Withholding. MTC 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 the 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, MTC 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 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 1(b)(2)(B) of the Davis-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)(1)(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 1(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. 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 contractor shall submit weekly for each week in which any contract work is
performed a copy of all payrolls to the Federal Highway Administration (FHWA) 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 FHWA.
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.g. , 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 http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor
site. The prime contractor is responsible for the submission of copies of payrolls by all
subcontractors. Contractors and subcontractors shall maintain the full social security number and
current address of each covered worker, and shall provide them upon request to the FHWA if the
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agency is a party to the contract, but if the agency is not such a party, the contractor will submit
them to the applicant, sponsor, or owner, as the case may be, for transmission to the FHWA, the
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 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
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:
( 1 ) 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 forth 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.
(C) The weekly submission of a properly executed certification set forth on the reverse side of
Optional Form 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 1001 of title 18 and section 231 of
title 31 of the United States Code.
(iii) The 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 FHWA or the Department of Labor, and shall permit such representatives to interview
employees during working hours on the job. If the 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
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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
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
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. If the 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.
(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 determines 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.
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(iii) Equal employment opportunity. The utilization 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 requirements. The contractor shall comply with the
requirements of 29 CFR part 3, which are incorporated by reference in this contract.
(6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses
contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the FHWA may by
appropriate instructions require, and also a clause requiring the subcontractors to include these
clauses in any lower tier subcontracts. The 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 1, 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 parts 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.
(10) Certification of eligibility. (i) By entering into this contract, the contractor certifies that
neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm 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 5.12(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 Head shall cause or require the
contracting officer to insert the following clauses set forth in paragraphs (b)(1), (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 §5.5(a) or4.6 of part 4 of this title. As used in
this paragraph, the terms laborers and mechanics include watchmen and guards.
(1) Overtime requirements. No 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 forty hours in such workweek unless such laborer or mechanic
receives compensation at a rate not less than one and one-half times 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 contractor and
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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)(1)
of this section, in the sum of $10 for each calendar day on which such individual was required or
permitted 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)(1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The MTC SAFE 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 contractor or subcontractor under any such 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 determined 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 contractor or subcontractor shall insert in any subcontracts the clauses set
forth in paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors
to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible
for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in
paragraphs (b)(1) 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 Head shall cause or require the contracting officer to insert a clause requiring that the
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 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 Head shall cause or require the
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 contractor or subcontractor for
inspection, copying, or transcription by authorized representatives of the (write the name of
agency) and the Department 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 OMB Control Number
(a)(1)(ii)(B) 1215–0140
(a)(1)(ii)(C) 1215–0140
(a)(1)(iv) 1215–0140
(a)(3)(i) 1215–0140,
1215–0017
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(a)(3)(ii)(A) 1215–0149
(c) 1215–0140,
1215–0017
[48 FR 19540, Apr. 29, 1983, as amended at 51 FR 12265, Apr. 9, 1986; 55 FR 50150, Dec. 4,
1990; 57 FR 28776, June 26, 1992; 58 FR 58955, Nov. 5, 1993; 61 FR 40716, Aug. 5, 1996; 65
FR 69693, Nov. 20, 2000; 73 FR 77511, Dec. 19, 2008]
Effective Date Note: At 58 FR 58955, Nov. 5, 1993, §5.5 was amended by suspending
paragraph (a)(1)(ii) indefinitely.
3. Contract Work Hours and Safety Standards Act
Contract Work Hours and Safety Standards Act - (i) The 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 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 Contractor also agrees to include the requirements of this section in each
subcontract. The term "subcontract" under this section is considered to refer to a person who
agrees to perform any part of the labor or material requirements of a contract for construction,
alteration or repair. A person who undertakes to perform a portion of a contract involving the
furnishing of supplies or materials will be considered a "subcontractor" under this section if the
work in question involves the performance of construction work and is to be performed: (1)
directly on or near the construction site, or (2) by the employer for the specific project on a
customized basis. Thus, a supplier of materials which will become an integral part of the
construction is a "subcontractor" if the supplier fabricates or assembles the goods or materials in
question specifically for the construction project and the work involved may be said to be
construction activity. If the goods or materials in question are ordinarily sold to other customers
from regular inventory, the supplier is not a "subcontractor." The requirements of this section do
not apply to contracts or subcontracts for the purchase of supplies or materials or articles
normally available on the open market.
4. Copeland Anti-kickback Act
Compliance with Copeland Act requirements - The 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 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 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
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performance, or noncompliance by a subcontractor. This provision applies to both DBE and
non-DBE prime contractors and subcontractors.
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ATTACHMENT D
FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of this Agreement, Recipient 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. Recipient 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. Recipient 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. Recipient, its contractor(s) and all subcontractors shall comply with the provisions of the F air
Employment and Housing Act (Government Code Section 12900 et seq.), and the applicable
regulations promulgated thereunder (California code of Regulations, Title 2, Section 7285.0 et
seq.). The applicable regulations of the Fair Employment and Housing Commission implementing
Government Code, Section 12900(a-f), set forth in Chapter 5 of Division 4 of Title 2 of the
California Code of Regulations are incorporated into this Agreement by reference and made a part
hereof as if set forth in full. Each of the Recipient’S contractors and all subcontractors shall give
written notice of their obligations under this clause to labor organizations with which they have a
collective bargaining or other agreements as appropriate.
3. Recipient shall include the nondiscrimination and compliance provisions of this clause in all
contracts and subcontracts to perform work under this Agreement.
4. Recipient shall permit access to the records of employment, employment advertisements,
application forms, and other pertinent data and records by STATE, the State Fair Employment and
Housing Commission, or any other agency of the State of California designated by STATE, for
the purposes of investigation to ascertain compliance with the Fair Employment section of this
Agreement.
5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occurred
upon receipt of a final judgment to that effect from a court in an action to which Recipient was a
party, or upon receipt of a written notice from the Fair Employment and Housing Commission that
it has investigated and determined that Recipient 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.
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(b) For willful violation of this Fair Employment Provision, STATE shall have the right to
terminate this Agreement either in whole or in part, and any loss or damage sustained by STATE
in securing the goods or services thereunder shall be borne and paid for by Recipient and by the
surety under the performance bond, if any, and STATE may deduct from any moneys due or
thereafter may become due to Recipient, the difference between the price named in the Agreement
and the actual cost thereof to STATE to cure Recipient’s breach of this Agreement.
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ATTACHMENT E
NONDISCRIMINATION ASSURANCES
Recipient HEREBY AGREES THAT, as a condition to receiving any federal financial assistance
from the STATE, acting for the U.S. Department of Transportation, it will comply with Title VI
of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-42 U.S.C. 2000d-4 (hereinafter
referred to as the ACT), and all requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21,
“Nondiscrimination in Federally-Assisted Programs of the Department of Transportation -
Effectuation of Title VI of the Civil Rights Act of 1964” (hereinafter referred to as the
REGULATIONS), the Federal-aid Highway Act of 1973, and other pertinent directives, to the end
that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person in
the United States shall, on the grounds of race, color, sex, national origin, religion, age or disability,
be excluded from participation in, be denied the benefits of, or be otherwise subjected to
discrimination under any program or activity for which Recipient receives federal financial
assistance from the Federal Department of Transportation. Recipient HEREBY GIVES
ASSURANCE THAT Recipient shall promptly take any measures necessary to effectuate this
agreement. This assurance is required by subsection 21.7(a) (1) of the REGULATIONS.
More specifically, and without limiting the above general assurance, Recipient hereby gives the
following specific assurances with respect to its federal-aid Program:
1. That Recipient 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 Recipient 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: Recipient 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 Recipient 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 Recipient 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.
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6. That where Recipient 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 Recipient 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 Recipient 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 Recipient for the period during which federal financial assistance
is extended to the program, except where the federal financial assistance is to provide, or is in the
form of, personal property or real property or interest therein, or structures, or improvements
thereon, in which case the assurance obligates Recipient 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 finan cial
assistance is extended, or for another purpose involving the provision of similar services or
benefits; or
(b) the period during which Recipient retains ownership or possession of the property.
9. That Recipient shall provide for such methods of administration for the program as are found
by the U.S. Secretary of Transportation, or the official to whom he delegates specific authority, to
give reasonable guarantee that Recipient, 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 Recipient 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. Recipient shall not discriminate on the basis of race, religion, age, disability, color, national
origin or sex in the award and performance of any STATE assisted contract or in the administration
on its DBE Program or the requirements of 49 CFR Part 26. Recipient shall take all necessary and
reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and
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administration of STATE assisted contracts. The California Department of Transportation
Disadvantaged Business Enterprise Program Implementation Agreement for Local Agencies is
incorporated by reference in this Agreement. Implementation of this program is a legal obligation
and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification
to the recipient of its failure to carry out the Implementation Agreement, STATE may impose
sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for
enforcement under 18 USC 1001 and/or the Program Fraud Civil Remedies Act of 1985 (31 USC
3801 et seq.)
THESE ASSURANCES are given in consideration of and for the purpose of obtaining any and all
federal grants, loans, agreements, property, discounts or other federal financial assistance extended
after the date hereof to Recipient by STATE, acting for the U.S. Department of Transportation,
and is binding on Recipient, other recipients, subgrantees, applicants, sub-applicants, transferees,
successors in interest and other participants in the federal-aid Highway Program.
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APPENDIX A TO ATTACHMENT E
During the performance of this Agreement, Recipient, for itself, its assignees and successors in
interest (hereinafter collectively referred to as Recipient) agrees as follows:
(1) Compliance with Regulations: Recipient 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 this agreement.
(2) Nondiscrimination: Recipient, with regard to the work performed by it during the Agreement,
shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability
in the selection and retention of sub-applicants, including procurements of materials and leases of
equipment. Recipient 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 Recipient 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 Recipient of the Recipient’s
obligations under this Agreement and the REGULATIONS relative to nondiscrimination on the
grounds of race, color, or national origin.
(4) Information and Reports: Recipient shall provide all information and reports required by the
REGULATIONS, or directives issued pursuant thereto, and shall permit access to Recipient’s
books, records, accounts, other sources of information, and its facilities as may be determined by
STATE or FHWA to be pertinent to ascertain compliance with such REGULATIONS or
directives. Where any information required of Recipient is in the exclusive possession of another
who fails or refuses to furnish this information, Recipient shall so certify to STATE or the FHWA
as appropriate, and shall set forth what efforts Recipient has made to obtain the information.
(5) Sanctions for Noncompliance: In the event of Recipient’s noncompliance with the
nondiscrimination provisions of this agreement, STATE shall impose such agreement sanctions as
it or the FHWA may determine to be appropriate, including, but not limited to:
(a) withholding of payments to Recipient 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: Recipient shall include the provisions of paragraphs (1) through
(6) in every sub-agreement, including procurements of materials and leases of equipment, unless
exempt by the REGULATIONS, or directives issued pursuant thereto.
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Recipient shall take such action with respect to any sub-agreement or procurement as STATE or
FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance,
provided, however, that, in the event Recipient becomes involved in, or is threatened with,
litigation with a sub-applicant or supplier as a result of such direction, Recipient may request
STATE enter into such litigation to protect the interests of STATE, and, in addition, Recipient
may request the United States to enter into such litigation to protect the interests of the United
States.
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APPENDIX B TO ATTACHMENT E
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 Recipient 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 Recipient all the right, title, and interest of the U.S. Department of
Transportation in, and to, said lands described in Ex hibit “A” attached hereto and made a part
hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto Recipient 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 Recipient,
its successors arid assigns.
Recipient, in consideration of the conveyance of said lands and interests in lands, does hereby
covenant and agree as a covenant running with the land for itself, its successors and assigns,
(1) that no person shall on the grounds of race, color, sex, national origin, religion, age or disability,
be excluded from participation in, be denied the benefits of, or be otherwise subjected to
discrimination with regard to any facility located wholl y or in part on, over, or under such lands
hereby conveyed (;) (and) *
(2) that Recipient 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
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absolute property of the U.S. Department of Transportation and its assigns as such interest existed
prior to this deed.*
*Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
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APPENDIX C TO ATTACHMENT E
The following clauses shall be included in any and all deeds, licenses, leases, permits, or similar
instruments entered into by Recipient, pursuant to the provisions of Assurance 7(a) of Attachment
E.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal
representatives, successors in interest, and assigns, as a part of the consideration hereof, does
hereby covenant and agree (in the case of deeds and leases add ‘as covenant running with the
land”) that in the event facilities are constructed, maintained, or otherwise operated on the said
property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation program or activity is extended or for another purpose involving the
provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall
maintain and operate such facilities and services in compliance with all other requirements
imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation,
Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally-assisted programs of the
Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as
said Regulations may be amended.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, Recipient 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, Recipient 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 Recipient 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.
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APPENDIX D TO ATTACHMENT E
The following shall be included in all deeds, licenses, leases, permits, or similar agreements
entered into by Recipient, pursuant to the provisions of Assurance 7 (b) of Attachment E.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal
representatives, successors in interest and assigns, as a part of the consideration hereof, does
hereby covenant and agree (in the case of deeds, and leases add “as a covenant running with the
land”) that:
(1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall be
excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in
the use of said facilities;
(2) that in the construction of any improvements on, over, or under such land and the furnishing
of services thereon, no person on the ground of race, color, sex, national origin, religion, age or
disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected
to discrimination; and
(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with
the Regulations.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, Recipient 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, Recipient 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 Recipient, 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.
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ATTACHMENT F
STATE DEPARTMENT OF TRANSPORTATION REQUIREMENTS
Caltrans Non – Discrimination
A. In the performance of work undertaken pursuant to this Agreement, Recipient shall not, and
shall affirmatively require that its contractors shall not, unlawfully discriminate, harass or allow
harassment, against any employee or applicant for employment because of sex, race,
color, ancestry, religious creed, national origin, physical disability (including HIV and
AIDS), medical condition (cancer), age, marital status, denial of family and medical care
leave, and denial of pregnancy disability leave.
B. Recipient 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. Recipient 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 this Agreement by reference and made a part hereof as if set forth in full.
C. Each of Recipient’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. Recipient shall include the non-discrimination and
compliance provisions hereof in all contracts and subcontracts to perform work under this
Agreement.
D. Recipient shall comply with the nondiscrimination program requirements of Title VI of the
Civil Rights Act of 1964. Accordingly, 49 CFR Part 21, and 23 CFR Part 200 are made
applicable to this Agreement by this reference. Wherever the term “Contractor” appears therein,
it shall mean Recipient.
E. Recipient 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 S TATE to investigate
compliance with these non-discrimination provisions.