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HomeMy WebLinkAbout8.7 ACTIA #9 IronHorseBike CI'TY CLERK FILE # 600-40 & 1060-90 AGENDA STATEMENT yO CTTY COUNCIL MEETING DATE: September :L7, 2002 SIJBJECT: Approval of Master Project Funding Agreement with Alameda County Transportation Improvement Authority for ACTIA Project No. 9 - Iron Horse Bicycle, Pedestrian and Transit Route Project Report Prepared by: Lee S. Thompson, Public V~orks Director ATTACHMENTS: 1) Resolution Approving Master Project Funding Agreement 2) Master Agreement RECOMMENDATION: Adopt Resolution approving Master Project Funding Agreement  ]~with Alameda County Transportation Improvement Authority * (ACTIA) for ACTIA Project No. 9 Iron Horse Bicycle, Pedestrian and Transit Route Project' FINANCIAL STATEMENT: This Master Project Funding Agreement covers general requirements for ACTIA's funding of Tier 1 projects in Alameda County's 20- Year Transportation Expenditure Plan. One of the Tier 1 projects included in the Plan is the Iron Horse Bicycle, Pedestrian and Transit Route project, which is being sponsored by the City of Dublin. The City will receive approximately $5.7 million (Fiscal Year 2002-2003 dollars) from ACTIA for the design and construction of the project starting in Fiscal Year 2003-2004. Prior to preliminary engineering of the Iron Horse Bicycle, Pedestrian and Transit Route Project, a project funding agreement will be entered into with ACTIA to cover the specific requirements of this City-sponsored project. DESCRIPTION: The reauthorization of Measure B, also called Measure B 2000, was approved by the voters of Alameda County at the General Election held on November 7, 2000. This Measure authorizes ACTIA to administer the proceeds from the continued one-half cent sales tax. The original Measure B program expired on March 31, 2002, and the new program began immediately thereafter on April 1, 2002. This extended the Program for a period of 20 years, to terminate on March 31, 2022. The proceeds of the one-half cent sales tax are being used to pay for the programs and projects outlined in Alameda County's 20-Year Transportation Expenditure Plan. COPIES TO: Christine Monsen, ACTIA ITEM NO. G:L~GENMISC\agst ACTIA Master Project Funding Agmt.doc There are 24 Tier 1 projects included in the Plan and one of these projects is the Iron Horse Bicycle, Pedestrian and Transit Route project being sponsored by the City of Dublin. This project will enhance a bicycle/pedestrian trail and provide the extension of Scarlett Drive to accommodate transit buses within the existing Alameda County/Union Pacific right-of-way between the BART station and Dougherty Road. In order for Dublin to proceed with the project, a Master Project Funding Agreement between ACTIA and the City of Dublin must be approved by both agencies. The agreement covers the general requirements for ACTIA funding of Tier 1 projects included in the Alameda County's 20-Year Transportation Expenditure Plan. The agreement describes ACTIA's policies and procedures in selecting consultants for various phases of a project, including design and construction. Staff recommends adopting the resolution approving the Master Project Funding Agreement with the Alameda County Transportation Improvement Authority for ACTIA Project No. 9 - Iron Horse Bicycle, Pedestrian and Transit Route Project. Page 2 ~-~ ,,4.-- ..... RESOLUTION NO. - 02 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVAL OF MASTER PROJECT FUNDING AGREEMENT WITH ALAMEDA COUNTY TRANSPORTATION IMPROVEMENT AUTHORITY FOR ACTIA PROJECT NO. 9 - IRON HORSE BICYCLE, PEDESTRIAN AND TRANSIT ROUTE PROJECT WHEREAS, the voters of Alameda County approved the reauthorization of Measure B at the General Election held on November 7, 2000, thereby authorizing that the Alameda County Transportation Improvement Authority (ACTIA) be given the responsibility to administer proceeds from the continued one-half cent transaction and use tax; and WHEREAS, the duration of the tax will be 20 years from the initial year of collection, which will begin April 1, 2002, with said tax to terminate/expire on March 31, 2022; and WHEREAS, the one-half cent transaction and use tax proceeds will be used to pay for programs and projects outlined in Alameda County's 20-Year Transportation Expenditure Plan (Plan); and WHEREAS, one of the projects included in the Plan is the Iron Horse Bicycle, Pedestrian and Transit route project sponsored by the City of Dublin; and WHEREAS, in order for the City of Dublin to receive funds for this project, a Master Project Funding Agreement with ACTIA must be executed; NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin that the City of Dublin, by adopting this resolution, hereby approves the Master Project Funding Agreement with ACTIA for the Iron Horse Bicycle, Pedestrian and Transit Route Project. BE IT FURTHER RESOLVED that the Council authorizes the Mayor to execute the Master Program Funding Agreement. PASSED, APPROVED AND ADOPTED this 17th day of September, 2002. AYE S: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk ~:a~endmiscXreso Apcroval ACTIA Master A~reement.doc ACTIA 2002-21 MASTER PROJECT FUNDING AGREEMENT BETWEEN ALAMEDA COUNTY TRANSPORTATION IMPROVEMENT AUTHORITY and the CITY OF DUBLIN for the 'FUNDING OF ENVIRONMENTAL ANALYSIS, DESIGN, RIGHT-OF-WAY ACQUISITION, UTILITY RELOCATION AND CONSTRUCTION for ALAMEDA COUNTY TRANSPORTATION IMPROVEMENT AUTHORITY FUNDED PROJECTS in ALAMEDA COUNTY ACTIA 2002-21 MASTER PROJECT FUNDING AGREEMENT BETWEEN ALAMEDA COUNTY TRANSPORTATION IMPROVEMENT' AUTHORITY AND CITY OF DUBLIN This MASTER PROJECT FUNDING AGREEMENT (AGREEMENT), entered into on , is.between the CITY OF DUBLIN, a local public agency, referred to herein as "SPONSOR", 'and the ALAMEDA COUNTY TRANSPORTATION IMPROVEMENT AUTHORITY, a public entity, referred to herein as "ACTIA", covers the general requirements for ACTIA funding of Tier 1 projects in the Alameda County's 20-Year Transportation Expenditure Plan (PLAN) which was adopted in July 2000. A project specific funding agreement (SPECIFIC AGREEMENT) will be entered into to cover the specific requirements of each project. RECITALS (1) The voters of Alameda County, pursuant to the provisions of the Local Transportation Authority and Improvement Act, California Public Utilities Code Section 180000 et seq., approved the reauthorization of Measure B at the General Election held on November 7, 2000, thereby authorizing that ACTIA be given the responsibility to administer the proceeds from the continued one-half cent transaction and use tax. The duration of the tax will be 20 years from the initial year of collection that will begin April 1, 2002, with said tax to terminate/expire on March 31, 2022. (2) The PLAN, administered by ACTIA, includes environmental analysis, design, right-of- way acquisition, utility relocation and construct/on of the projects located in the City of Dublin, and referred to herein as "PROJECT". The PROJECT covered by this AGREEMENT is described in .EXHIBIT "A", "Project'Description", attached hereto and incorporated herein by reference. Final 5/16/02 Page 2 ACTIA 2002-21 (3)' Sales tax funding shown for PROJECT in thePLAN is based on 1997/1998 (97/98) fiscal year dollars. (4) The PLAN was adopted in July 2000, and includes PROJECT for which SPONSOR is named as the sponsor. (5) This AGREEMENT is made in furtherance and in compliance with the Local Transportation Authority and Improvement Act, California Public Utilities Code Section 180000 et seq. Measure B Sales Tax Funds spent pursuant to this AGREEMENT will not replace funds previously provided by property tax revenues for public transportation services. (6) For the purposes of this AGREEMENT, PHASE shall be any of the following elements of the PROJECT: · Scope · Preliminary Engineering · Environmental Studies · Final Design (PS&E) · Right, of-Way- Support · Right-of-Way- Capital · Utility Relocation/Protection · Construction Contracts · Construction Engineering · Equipment Purchase (7) To the extent that there is a difference between future SPECIFIC AGREEMENTS and this AGREEMENT, including the EXHIBITS, the SPECIFIC AGREEMENT shall prevail. It is agreed by and between the parties as follows: Final 5/16/02 Page 3 ACTIA 2002-21 SECTION I SPONSOR AGREES: (1) Environmental, engineering, utility, right-of-way and construction work eligible under the ACTIA "Policy on Eligible Costs" as shown in EXHIBIT "D" (attached hereto and incorporated herein by reference), Appendix A, will be invoiced on a reimbursable basis for PROJECT. (2) .That all costs related to PROJECT in excess of the amount of ACTIA's contribution indicated in .the PLAN, as escalated to the year of expenditure based on the California Highway Construction Cost Index (CHCCI), will be the responsibility of the SPONSOR for PROJECT. (3) That ACTIA funds programmed for PROJECT are subject to annual modification in the ACTIA Strategic Plan and these funds are subject to availability. (4) That funds expended for PROJECT work prior to this AGREEMENT will not be reimbursed unless prior agreement has been reached with ACTIA regarding the use and monitoring of these funds. In all cases, reimbursable costs will be limited to those costs included in EXHIBIT "D", Appendix A, "Policy on Eligible Costs". In no case shall funds expended prior to November 7, 2000 be reimbursed. (5) To meet with ACTIA prior to ACTIA -funding any portion of the PROJECT and to assist in the preparation of the SPECIFIC AGREEMENT, SPECIFIC AGREEMENT shall include but not be limited to the following, information developed by SPONSOR: · Detailed PROJECT description including a map. · Detailed PROJECT schedule · PROJECT cost estimate · PROJECT PHASE cost breakdown Preliminary Engineering Environmental Studies Final Design (PS&E) Right of Way- Support Right of Way - Capital Utility Relocation/Protection Final 5/16/02 Page 4 ACTIA 2002-21 Construction Contracts Construction Engineering Equipment Purchase · PROJECT PHASE timing · PHASE cash flow requirements · Outside funding sources · Outside funding timing · Permits required · Agreements required · COordinating agencies · SPONSOR's role Work performed by SPONSOR Work performed by Consultants · ACTIA's role · Role of Others (6) That SPONSOR will be given five years from the first year of revenue collection (which begins in April 2002) to receive environmental approvals and to'have PROJECT fully funded. If SPONSOR cannot meet this April 2007 requirement, SPONSOR may appeal to ACTIA for one or more one-year extensions limited by the policy regarding time extensions as shown in EXHIBIT "D", Appendix D, "Policy Regarding the Time Limitation on Environmental Approval". Once time has expired, the SPONSOR will be deemed to have approved deletion of that project, and the funds will be reallocated as Unused Funds as described in EXHIBIT "D", -Appendix B, "Policy Regarding the Definition and Use of Excess Revenues and Unused Funds". (7) SPONSOR will be responsible for obtaining the Environmental Document Certification from the appropriate agency or agencies as may be required. (8) To advertise, award and administer any professional services contract for PROJECT work not performed by SPONSOR's own forces. (9) To invite ACTIA staff to participate as. a voting member in the selection of professional consultants and to furnish copies of the professional services contracts to ACTIA prior to approval by the SPONSOR on contracts utilizing ACTIA funds. Final 5/16/02 Page 5 ACTIA 2002-21 (10) That in selecting all professional consultants on PHASES of PROJECT funded by ' ACTIA where no federal or state funds are used, SPONSOR will comply with the ACTIA Local Business Enterprise (LBE) and Small Local Business Enterprise (SLBE) Program, attached hereto and incorporated herein by reference. (11) To advertise, award and administer the construction and utility relocation contracts for PROJECT in accordance with the applicable requirements of the Local Agency Public Construction Act and the California Labor Code, including its prevailing wage provisions. SPONSOR shall obtain applicable wage rates from the State Department of Industrial Relations and shall adhere to the applicable provisions of the State Labor Code. Violations shall be reported to the State Department of Industrial RelatiOns. (12) That in selecting all construction and utility relocation vendors on PHASES of PROJECT where no federal or state funds are used, SPONSOR will meet the ACTIA Goals of 60% LBE and 20% SLBE. In the event that LBE or SLBE goals are not met, SPONSOR will make a good faith effort and require contractors and vendors to ,use good faith efforts using the criteria as set forth in EXHIBIT "E". (13) Local Business Enterprises (LBE) and Small Local Business Enterprises (SLBE) shall be certified by ACTIA in accordance with the Local Business and Small Local Business Enterprise Program included as EXHIBIT "E". (14) That if federal or state federalized funds are used on any PHASE of the PROJECT, SPONSOR of PROJECT will., utilize, SPONSOR's DBE goal, plan and policies. (15) That in the event that SPONSOR is bound by other mandated contract participation requirements, SPONSOR will work with ACTIA to achieve ACTIA objectives and clarify the required participation goals in the SPECIFIC AGREEMENT. Final 5/16/02 Page 6 ACTIA 2002-21 (16) To require that the construction contractor furnish both a payment and performance bond, with both bonds complying with the requirements set forth in Section 3-1.02 of Caltrans' July 1999 Standard Specifications (or more current version). (17) To require that professional services consultants, construction contractors and any other contractor or subcontractors name ACTIA, its officers, employees and consultants(and Caltrans, BART and/or others if involved) as additional insured on all appropriate insurance required by SPONSOR for ACTIA funded PHASES of PROJECT. (18) To cooperate with Caltrans, BART or other agencies, when required, to manage construction of PROJECT. SPONSOR may manage the construction of PROJECT with its own staff, may elect to contract for professional services, or perform the work in cooperation with Caltrans or other agency, or any combination thereof. (19) To arrange for right-of-way engineering, appraisal, acquisition, clearance, and certification. If right-of-way work is performed by others, a copy of the Agreement for right-Of- way work will be submitted to ACTIA prior to approval by SPONSOR. On Caltrans facilities, fight-of-way serv/ces will be performed under the direction of an agency or agent certified by Caltrans. (20) To develop a detailed schedule for all PHASES of the PROJECT as outlined in EXHIBIT "B", "Project Schedule", attached hereto and incorporated herein by reference. Schedule shall be reviewed and approved by ACTIA and shall be incorporated into a SPECIFIC AGREEMENT prior to any reimbursement of costs. (21) Except as provided in Section 1.22 or a SPECIFIC AGREEMENT, that on PROJECT where SPONSOR hires a consultant to administer a PHASE of the work funded by ACTIA, 'SPONSOR will provide ACTIA with monthly Progress Reports by PHASE, by the last day of each calendar month following the month in which the work was performed. These reports shall describe the current status of the PROJECT, actions and eligible costs 'expended or incurred during the prev/ous month, actions expected to be taken during the next month, an updated schedule with estimated completion, scope changes, project-related issues, any unexpected legal, Final 5/16/02 Pagl 7 ACTIA 2002-21 environmental, engineering or construction difficulties, notices of potential claim, DBE, SLBE and LBE participation, where such participation is required, from prime and first tier subconsultants/subcontractors, and any additional relevant information requested by ACTIA. "ACTIA Expenditure Reporting Requirements for Capital Projects" are shown in EXHIBIT ,C", attached hereto and incorporated herein by reference, and shall be included with the report. (22) That on the PHASES of PROJECT administered by SPONSOR staff, to provide the Progress Report described in Section 1.21 on a quarterly basis. 'Said Progress Report shall be fi,u-nished on the last day of the month following each quarter. .(23) To Obtain all state, local and federal permits and approvals for work. SPONSOR will comply with all applicable state and federal laws and regulations. (24) To arrange for maintenance of PROJECT as constructed and to make no claim against ACTIA for any portion of maintenance or operation costs. (25) To provide signage fifteen (15) days prior to beginning of construction (i.e., SPONSOR and ACTIA logos with "Your Measure B Sales Tax Dollars at Work") on PROJECT funded by Measure B. Include a description of such signage, the number of signs and the actual or typical locations thereof in a Progress Report submitted to ACTIA for the PROJECT at least three months prior to construction. (26) To participate, upon the request of ACTIA, in a Public Awareness Program, in partnership with ACTIA, the Citizens Advisory Committee (CAC)and/or the Citizens Watchdog Committee (CWC), as a means of informing the public of the benefits being derived from the use of the Measure B funds. (27) To provide updated and accurate Progress Report information on the SPONSOR's website, or create one if none exists, and to provide a link to ACTIA's website, in order to inform the public on how the Measure B funds are being used in the County. Final 5/16/02 Page 8 ACTIA 2002-21 (28) To publish, at least annually, an article either in the SPONSOR's newsletter or in ACTIA's quarterly newsletter, highlighting PROJECT in which funds received by SPONSOR from ACTIA are being used. (29) That upon request from ACTIA through SPONSOR's administrative officer or designated staff, to render a report or answer any and all inquiries in regard to its receipt, compliance audit findings, and usage of its funds before ACTIA's Governing Board, the Citizens Watchdog Committee (CWC) and/or Citizens Advisory Committee (CAC). (30) That in the event PROJECT is not completed, to repay ACTIA any funds expended by ACTIA above its proportionate share of eligible costs for the PROJECT as in 'EXHIBIT "D", Appendix C, "PoliCy Regarding ACTIA Funds Spent or Allocated to Projects that are Later Removed from the Plan". Payment to ACTIA shall be made'with interest based'~ on the current County Investment Pool rate, and shall be made within five (5) years of the time a project is deleted from the PLAN. In' the event that such payments are not made, ACTIA will withhold all other funds due SPONSOR from ACTIA until such 'debt has been eliminated. In the event that a project is not completed due solely to a shortfall in the ACTIA revenues proposed for that project, this article (30) will not apply. SECTION II ACTIA AGREES: (1) That increased costs in individual PHASES of PROJECT will be eligible for reimbursement if the SPONSOR provides a funding plan indicating that funds from other PHASES or other sources are available to assure that the delivery of the PROJECT will not be jeopardized due to the increase in .that PHASE. (2) Allocated ACTIA funds may be expended in total prior to expenditure of SPONSOR funds subject to the conditions included in this AGREEMENT. (3) To program funds for reimbursement to SPONSOR in the ACTIA Annual Strategic Plan as close as possible to the years detailed in the SPECIFIC AGREEMENT2 Final 5/1.6/02 Page 9 ACTIA 2002-21 (4) To provide an independent annual audit of ACTIA's program-wide revenues and. expenditures including the allocation formula for distributing Measure B sales tax revenues to SPONSOR and render an annual report to ACTIA's Governing Board and to the Citizens Watchdog Committee (CWC) within 180 days following the close of the fiscal year. (5) To provide notice to the SPONSOR of any and all expenditures made by SPONSOR, which are not in compliance with the AGREEMENT, the PLAN or the Measure B ballot measure, promptly after ACTIA becomes aware of any such expenditures. (6) To assist SPONSOR in preparing a detailed schedule for PROJECT for inclusion in the SPECIFIC AGREEMENT. (7) To prepare contract language regarding Progress Reports suitable for inclusion in SPONSOR's contracts for professional services. (8) To prepare a contract specification/provision to be included in SPONSOR's construction contracts to clarify ACTIA LBE/SLBE requirements, where such participation is required, and monthly reporting requirements. SECTION Ill IT IS MUTUALLY AGREED AS FOLLOWS: (1) It is the intent of ACTIA to commit Measure B Funds to fully funded PROJECT. It is the .responsibility of SPONSOR to secure all other funds required to complete PROJECT. If in the opinion of the ACTIA Executive Director, a project has lost required funding or has not progressed according to the detailed schedule as either shown in EXHIBIT "B" or as later modified in the SPECIFIC AGREEMENT, funds may be withheld and may require reimbursement from the SPONSOR to ACTIA. (2) All correspondence and communications will contain the ACTIA number and name for PROJECT in a clearly identifiable location. Final 5/16/02 Page 10 ACTIA 2002-21 (3) Should the SPONSOR fail to refund all moneys due ACTIA as provided herein or should SPONSOR breach this AGREEMENT by failing to complete a project, then, within 30 days of demand, or within such other period as may be agreed to in writing between the parties hereto, ACTIA may withhold or demand a transfer of an amount equal to the amount owed to ACTIA from future apportionment, or any other funds due SPONSOR from Measure B funds and/or may withhold approval of future Measure B sponsored projects. (4) ACTIA participation shall be limited to the sales tax funding amount indicated in the PLAN, as escalated based on the California Highway Construction Cost Index (CHCCI) from 97/98 to the fiscal year funds are expended on PROJECT (ACTIA participation). Where more than ACTIA funds are required to complete the PROJECT, SPONSOR shall secure additional funding. In the event that SPONSOR cannot secure additional funding, and/or the scope of the PROJECT cannot be reduced to meet the available funds and still conform to the PLAN requirements, or where the SPONSOR does not meet the delivery schedule and a project is removed from the PLAN, SPONSOR and ACTIA agree to share expenditures of eligible costs to date as shown in EXHIBIT "D", Appendix C, "Policy Regarding ACTIA Funds Spent or Allocated to Projects that are Later Removed from the Plan". (5) That if a Scope PHASE is necessary, a Letter Agreement detailing the tasks necessary to determine the scope and funding requirements of the PROJECT will be executed bY ACTIA and SPONSOR. Eligible Costs expended on the Scope PHASE of the PROJECT shall be considered reimbursable costs and may be paid for in total by ACTIA funds. Reimbursement of such funds is generally limited to no more than 10% of the ACTIA participation. (6) The'SPONSOR may invoice ACTIA monthly as eligible work proceeds. Invoices shall include only eligible costs as described in EXHIBIT "D", Appendix A, "Policy on Eligible Costs". Environmental, engineering, construction and right-of-way work will be invoiced on a reimbursable basis for PROJECT. All funds advanced by SPONSOR shall be accounted for by invoices detailing services performed and payments made, which shall conform to the invoice format shown in EXHIBIT "C", Appendix A, "Request for Reimbursement". Approval of invoices will be contingent on the submittal of Progress Reports herein detailed and shown in EXHIBIT "C", Appendix B, "Project Progress Reports". In the event that said Proj ect'Progress Final 5/16/02 Page 11 ACTIA 2002-21 Reports are not 'complete and current, approval of invoices shall be withheld until an acceptable remedy has been implemented. In the event that SPONSOR invoices ACTIA prior to the year a project receives ACTIA funding, invoice shall be held by ACTIA .until the year funding is programmed. ACTIA agrees to escalate the payment of the invoice using the CHCCI from the date of invoice approval to the date of payment, or from the invoice date to the date of payment, whichever is less. (7) Unanticipated reimbursable PROJECT costs up to 15% of the ACTIA participation will be the first pr/ority use of Excess Revenues. (8) There is no provision in the PLAN for PROJECT cost overruns beyond 15% and escalation. If PROJECT costs exceed the available Measure B funds, ACTIA and the SPONSOR will work _together to identify additional outside fund sources or to revise the scope of a project to meet the available funds. Should a project become infeasible due to a funding shortfall, then these funds will be considered "Unused Funds" as defined in EXHIBIT "D", Appendix B, "Policy Regarding the Definition and Use of Excess Revenues and Unused Funds". (9) If additional funding is obtained beyond the non-ACTIA funds identified in the PLAN to partially offset the ACTIA funds planned for the PROJECT, ACTIA funds will not be totally transferred out of a project until after it is ensured that that project can .be delivered if there are cost increases. If ACTIA funds are available after the PROJECT completion, they will be declared Unused Funds and reprogrammed as described.in EXHIBIT "D", Appendix B, "Policy Regarding the Definition and Use of E~cess Revenues and Unused Funds". (10) In the event that new outside fund sources, such as federal or state funds, are leveraged with Measure B funds' beyond the amounts identified in the PLAN and this causes Measure B funds to be available at the completion ora project, the funds will be declared Unused Funds and reallocated in accordance with ACTIA Policy as shown in EXHIBIT "D", Appendix B, "Policy Regarding the Definition and Use of Excess Revenues and Unused Funds". (11) In the event that ACTIA funds are displaced by Other funds obtained by SPONSOR, the savings shall be declared Unused Funds and be distributed in accordance with ACTIA policy as Final 5/16/02 Page 12 ACTIA 2002.21 shown in EXHIBIT "D", Appendix B, "Policy Regarding the De£mition and Use of Excess Revenues and Unused Funds". (12) Should any portion of the PROJECT be financed with federal or state funds, all applicable laws, rules and policies relating to the use of such funds shall apply notwithstanding other provisions of this AGREEMENT. (13) The laws of the State of California will. govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it. (14) If SPONSOR materially breaches this AGREEMENT, including but not limited to failing to meet schedule without compelling reason, failing to file required Progress Reports in the time specified by this AGREEMENT, or failing to comply with applicable regulations, ACTIA may either terminate this AGREEMENT or suspend payments to SPONSOR until such time as SPONSOR makes reasonable efforts to comply with this AGREEMENT. (15) Neither ACTIA nor any officer, consultant, or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by SPONSOR in connection with the PROJECT. It is also understood and agreed, pursuant to Government Code Section 895.4, SPONSOR shall fully defenct, indemnify and hold harmless ACTIA, and all its officers and employees from any liability imposed on ACTIA for injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by SPONSOR in connection With PROJECT. (16) Neither SPONSOR nor any officer, consultant, or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by ACTIA under or in connection with any work, authority or juhsdiction delegated to ACTIA under this AGREEMENT. It is also understood and agreed, pursuant to Government Code Section 895.4, ACTIA shall fully defend, indemnify and hold harmless SPONSOR, and all its officers and employees from any liability imposed on SPONSOR for injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by Final 5/16/02 Page 13 ACTIA 2002-21 ACTIA under or in connection with any work, authority or jurisdiction delegated to ACTIA under this AGREEMENT. (17) Nothing in the provisions of this AGREEMENT is intended to create duties or obligations to or rights in third-parties not party,to this AGREEMENT or affect the legal liability of either party to. the AGREEMENT by imposing any standard of care with respect to the maintenance of State highways different from the standard of care imposed by law. This AGREEMENT gives no rights or benefits to anyone other than ACTIA and SPONSOR and has no third-party beneficiaries. (18) All legal actions by either party against the other arising from this AGREEMENT, or for the failure to perform in accordance with the applicable standard of care, or for any other cause of action, will be subject to the statutes of limitations of the State of Califomia. (19) Should it become necessary to enforce the terms of this AGREEMENT, the prevailing party shall be entitled to recover reasonable expenses and attorney's fees from the other party. (20) This AGREEMENT shall terminate upon completion and acceptance of PROJECT by SPONSOR or ten years from the date of this- AGREEMENT, whichever is earlier in time. This termination date may be modified through, the SPECIFIC AGREEMENT. Should AGREEMENT terminate due to time, any eligible costs incurred or paid by ACTIA over and above its proportionate share shall be due from SPONSOR to ACTIA. Payment of these eligible costs is covered in Section 1.30. (21) This AGREEMENT, including its RECITALS, EXHIBITS, and Appendices, constitutes the entire AGREEMENT, supersedes all prior written or oral understandings, and may be changed only by a written amendment executed by both parties. Final 5/16/02 Page 14 (22) ACTIA will make a good faith effort to provide all funds set forth in this AGREEMENT. CITY OF DUBLIN ALAMEDA COUNTY TRANSPORTATION IMPROVEMENT AUTHORITY (ACTIA) By: By: Shelia Young, Chairperson, ACTIA Recommended for Approval: Recommended: ~ By: By: Christine Monsen, Executive Director By: Approved as to Legal Form: Approved as to L.egal Form: By: By:~~~''~ Wendel, Rosen, Black & Dean, LLP ACTIA Counsel Attest: Attest: Trudye Johnson, Clerk of ACTIA Final 5/16/02 Page 15 ACTIA 2002-21 EXHIBIT "A" PROJECT DESCRIPTION Project Description: ACTIA PROJECT No. 9 - Iron Horse Bicycle, Pedestrian and Transit Route project will provide bicycle/pedestrian trail and the extension of Scarlett Drive that will accommodate transit within the existing Alameda County/Union Pacific right-of-way between the BART station and Dougherty Road. This PROJECT will also widen Dougherty Road fi.om Scarlett Drive to the northern City limit to accommodate transit. ACTIA funds are eligible for preliminary engineering, environmental studies, final design, ' right-of-way acquisition, advertisement, award and administration of construction contract, construction, and design services during construction. Final 5/16/02 Page A-1 ACTIA 2002-21 EXHIBIT "B" PROJECT SCHEDULE ACTIA PROJECT No. 9 - IRON HORSE BICYCLE, PEDESTRIAN, AND TRANSIT ROUTE Task 00/01 01/02 02/03 03/04 04/05 05/06 06/07 07/08 Equipment Purchase Note: List, advertise and award timeframes for construction are included in the Final Design schedule. Final 5/16/02 Page B-1 EXHIBIT "C" ACTIA EXPENDITURE REPORTING REQUIREMENTS FOR CAPITAL PROJECTS With the extension of Measure B passed by the voters in November 2000, a higher level of reporting and accountability by ACTIA is mandated in the voter approved Expenditure Plan. ACTIA will track the expenditures of Measure B dollars to vendors, whether they are prime consultants or contractors or subcontractors and whether expenditures are for professional services, construction or construction management/inspection. Measure B expenditures are provided through a funding agreement between ACTIA and a SPONSOR which in turn enters into agreements with vendors. ACTIA-will maintain a database of vendors that receive Measure B funds whether through an agreement with ACTIA or with a SPONSOR. ACTIA will require that the same information be provided for all contracts to be funded with Measure B dollars and tiffs requirement is incorporated into the funding agreement between ACTIA and the SPONSOR. Request' for reimbursement requirements are shown in Appendix A and reporting requirements are shown in Appendix B of this EXHIBIT. Requests for reimbursement from SPONSORS or invoices from vendors will not be considered for payment without the required information. Deficient submittals will be returned to the SPONSOR for re-submittal. Attachments: Appendix A ACTIA Expenditure Reporting Requirements - Requests for Reimbursement from Project Sponsors Appendix B ACTIA Expenditure Reporting Requirements Project Progress Report Final 5/1.6/02 Page C-I ACTIA 2002-21 APPENDIX A REQUEST FOR REIMBURSEMENT Contract Summary by Vendor Original Contract Amount: TOTAL CONTRACT AMOUNT: Sponsor: ACTIA Project No: Amount Billed Prior: PHASE: Amount of this Invoice: Report Mo/Yr.: Remaining Budget: Date Submitted: Vendor Level of Contract Percent of Previous Current Total ACTIA'Total %to-Date°f Invoiced-vs. No., Vendor Subcontract** Certification Award Contract invoices Invoice Invoiced~to' Paid.to. Contract Amount ($) Amount Date Date Amount Prime . Record of Payment to Subs Amount ' Vendor Date Last Summary of Goal Participation*** No.* Paid Paid to Date DBE LBE SLBE Vendor No.* Tier Goal (1) To Date (2) Goal (1) To Date (2) Goal (1) To Date (2) TOTALS *Furnished by ACTIA Proiect Manager's Assurance: **Breakdown to Tier 1 subcontractors unless a lower tier is used in goal achievement I hereby certify that the information included in this *** When applicable Request for Reimbursement is true and accurate. Note I - Goals based on Current Contract Amount Note 2 - Based upon payment to date Signature Date ACTIA USE ONLY - Supporting documents review and approved for payment Signature Date Final 5/16/02 Page C-2 ACTIA 2002-21 Sponsor: APPENDIX B ' PROJECT NAME Project Progress Report (Date) STATUS ACTIONS ANTICIPATED ACTIONS SCHEDULE CHANGES [~] The project remains on its published schedule. [] The revised project schedule is attached for review and confmnation. SCOPE CHANGES ['-] The project scope is unchanged. ['"] The scope of the project has been modified and is attached for review and confirmation (include CCO's over $20,000 on construction and professional service contracts). POTENTIAL CLAIMS [] There are no Notices of Potential Claim on file. [] We anticipate a claim regarding the following: [~ There are presently Notice(s) of Potential Claim on file. Those not previously forwarded are attached for ~eview and comment. GENERAL [] At this time we anticipate no problems on the project. [] We anticipate problems in the followhag area and would appreciate any assistance you could offer: [] We anticipate problems in the following area but do not feel we need your assistance at this time: Final 5/16/02 Page C-3 ~ ~. ~-.~---~ ACTIA 2002-21 EXHIBIT "D" ACTIA POLICIES Appendix A Policy on Eligible Costs Appendix B Policy Regarding the Definition and Use of Excess Revenues and Unused Funds Appendix C Policy Regarding ACTIA Funds Spent or Allocated to Projects that are Later Removed from the Plan Appendix D Policy Regarding the Timing Limitation for Environmental Approval Appendix E Policy Regarding Program Financing Costs Final 5/16/02 Page D-i ~5 ~b/Y~-- ACTIA 2002-21 APPENDIX A POLICY ON ELIGIBLE COSTS 'Environmental Studies ACTIA funds are eligible to reimburse expenses incurred by SPONSOR staff and consultant staff for environmental study costs, including determination of the appropriate environmental document, preparation of all preliminary engineering for each alternative, including geometric layouts, determination of right-of-way needs, environmental technical studies (such as air, noise, energy, cultural resources and hazardous w.aste), and all other studies or activities necessary to prepare and to finalize the appropriate environmental document for approval. Allocations for environmental studies are noted in SPECIFIC AGREEMENT. (Note: This is generally the amount estimated in the original PLAN cost estimates or if no'estimate was included then 9% of the construction cost to cover Environmental Analysis, Environmental Document Preparation and the associated Preliminary Engineering.) Design Costs ACTIA funds are eligible for expenses incurred by SPONSOR staff and consultant staff for design activities related to the PROJECT scope identified in the PLAN. These activities include preparation of alternative design studies; materials and foundation reports; drainage, hydrology and hydraulic reports; management oversight; surveying and mapping; preparation of the plans, specifications and estimate; preparation of bid documents and files for PROJECT; preparation of permit applications and maintenance agreements; coordination of agency reviews and any other activities necessary to prepare final PS&E for bid advertisement and award. If the SPONSOR wishes to include items of Work not covered under the description of PROJECT, the cost for including the additional work shall be segregated.and the cost borne by the SPONSOR from non-ACTIA fund source. Items of work that would fall into this area would be the correction or betterment of pre-existing non-transportation related items such as drainage, landscaping (beyond Caltrans standards) or pedestrian facilities, unless these were approved as part of the original PROJECT. Annual expenses incurred for maintenance shall likewise be borne by the SPONSOR from non-ACTIA fund sources~ Allocations for design are noted in SPECIFIC AGREEMENT. (Note: This is generally the amount estimated in the original PLAN cost estimates or if no estimate was included then 10% oft he construction cost). Right-of-Way Acquisition ACTIA funds are el.igible for expenses incurred by SPONSOR staff and consultant staff for all activities related to right-of-way, advanced right-of-way, and hardship acquisitions, including determination of right-of-way needs; title searches; parcel appraisals; hazardous materials disposition; preparation of right-of-way acquisition documents; negotiation with property owners; activities involved with acquiring rights-of-way including condemnation proceedings, right-of-way capital costs, and cost-to-cure impacts related to the acquisition. Final 5/16/02 Page D-2 ACTIA 2002-21 Services provided for right-of-way activities involved with property not necessary for the Measure B PROJECT as defined in the scope of work shall be'at the expense of the SPONSOR where these costs can be determined. If any excess fight-of-way is sold, or Otherwise .disposed of, the value of such property shall be returned to ACTIA based on the prorated percentage of funds ACTIA contributed to the purchase of the property. Allocations for right-of-way shall be limited in SPECIFIC AGREEMENT. Construction Contract Item Work ACTIA funds are available'to cover all construction expenditures for the PROJECT (construction capital, management and inspection; surveys, public outreach, and others as appropriate) that are part of the scope of work agreed to by ACTIA. ACTIA funds are eligible for reimbursement of SPONSOR's management .oversight expenses associated with the construction of the PROJECT. This would include activities such as construction management, inspection, expenses associated with reviewing proposed change orders, and activities involved with submitting final costs to the appropriate agencies to secure Other leveraged funds. SPONSOR may include additi0na] work beyond the scope of work for the Measure B PROJECT at their expense. These costs will be segregated from the other item work expenses and paid for with non-ACTIA funds. Items of work could include correction or betterment of pre-existing non-transportation facilities such as drainage, landscaping or pedestrian facilities, unless these items were approved as part of the original PROJECT. Items of work within the scope, but covering more expensive treatment for the facility such as specialized lighting standards and signs, more elaborate landscaping or specialized, treatment on the face of soundwalls and retaining walls, and specialized sidewalk/hardscape treatments will also be segregated from other PROJECT work and paid with non-ACTIA funds Proposed contract change orders that may arise once the contract has been awarded will be reviewed on a case-by-case basis by ACTIA for approval to be reimbursed with ACTIA funds. ACTIA will require written approval of such change orders over $25,000 (unless the ACTIA Board approves otherwise through the SPECIFIC AGREEMENT). Allocations for construction are noted in SPECIFIC AGREEMENT. The amount for which SPONSOR staffcan be reimbursed will be limite& Costs for SPONSOR staff dedicated to the management of PROJECT or development' work of the Me~/sure B PROJECT will be eligible for reimbursement. Costs for SPONSOR management and oversight staff, such as City Managers, City Engineers, Public Works Directors, City Attorneys, and senior management staff, will be Considered as part of the SPONSOR's overhead cost and will not be eligible. Eligible costs for SPONSOR project managers, in an oversight role, will be limited to 0.5% of the estimated PROJECT cost. Costs for consultant or SPONSOR staff designers (as well as right-of-way agents and construction administration staff) are eligible. Hourly wages and fringe benefits for SPONSOR staff should not exceed a maximum mark-up rate of 50% of the hourly wage (1.5 times hourly salary). If the rate and/or dollar limitations herein do not allow Final 5/16/02 Page D-3 ACTIA 2002-21 the SPONSOR to recoup direct costs dedicated to PROJECT, the SPONSOR may submit documentation to ACTIA to substantiate requested changes and ACTIA may agree to other rates and/or dollar limitations to be set forth in the SPECIFIC AGREEMENT. ACTIA PROJECT Support Costs requested by SPONSOR If requested by SPONSOR, ACTIA will provide support staff and/or consultant support to coordinate PROJECT. Costs for these services will be considered as ACTIA eligible costs and reimbursed to ACTIA from funds for PROJECT. These services shall be included in the SPECIFIC AGREEMENT. Miscellaneous Costs The costs of fees from other agencies, including permit fees, or reimbursement for review or oversight costs needed for the PROJECT are eligible costs. However, the cost of permits or fees from the SPONSOR will not be eligible. Utility relocation costs are eligible for reimbursement according to previous agreements establishing rights for those utilities. The costs for specialized equipment for testing, analysis or production of documents for project-related work are also eligible. Final 5/16/02 Page D-4 ACTIA 2002-21 APPENDIX B POLICY REGARDING THE DEFINITION AND USE OF EXCESS REVENUES AND UNUSED FUNDS Excess Revenues Excess Revenues are those funds that exceed the funding shown in Alameda County's 20-year Transportation Expenditure Plan (PLAN). Excess revenues can come from higher than expected receipts'or lower than expected project costs. Excess revenues are programmed annually in the ACTIA Strategic Plan based on geographic equity and the following priorities: 1. Meet the unanticipated needs of Tier 1 projects over the PLAN amount. 2. Ad&ess gaps in Special Transportation Service For Seniors And People With Disabilities. 3. Fund Tier 2 projects. Unused Funds Unused Funds are those funds that become available should a planned project become infeasible, unfundable or funded by others due to circumstances unforeseen at the time of the PLAN preparation. Unused Funds will be programmed to another project in the same planning area with the approval of a majority of the cities (and County for unincorporated areas) representing a majority of the population in the planning area. Any project eligible for funding must be in the PLAN. The PLAN may be amended by a two- thirds vote of the ACTIA Board. All jurisdictions within the County will be given a minimum of 45 days to comment on the proposed PLAN amendment. Final 5/16/02 Page D-5 ACTIA 2002-21 APPENDIX C POLICY REGARDING ACTIA FUNDS SPENT OR ALLOCATED TO PROJECTS THAT ARE LATER REMOVED FROM THE PLAN. INTENT It is the inter~t of ACTIA to fund projects shown in Alameda County's 20-year Transportation Expenditure Plan (PLAN) in accordance with the limitations set forth in the PLAN. In the event that PLAN projects cannot be delivered for any reason, the equitable close out of the project is contained in this Policy. POLICY Where more than ACTIA funds are.required to complete a project, SPONSOR shall secure additional funding. In the event that SPONSOR cannot secure additional funding, and/or the scope of a project cannot be reduced to meet the available funds and still conform to the PLAN requirements, or where SPONSOR does not meet the delivery schedule and a project is removed from the PLAN, SPONSOR and ACTIA ag-ree to,share expenditures on eligible costs to date on the following basis: 1. Costs expended to Scope a project shall be cOnsidered reimbursable costs and shall be paid,for in total by ACTIA. a. The amount of these costs shall be limited by agreement prior to the expenditure of such funds, and. are generally limited to no more than 10% of the ACTIA participation. b. Tasks under this PHASE shall be limited by agreement to those tasks necessary to determine the scope and funding requirements of a project. 2. Costs expended for any PHASE beyond the Scope PHASE shall be shared on a proportionate share basis. Each proportionate share shall be based on the proposed PLAN capital expenditures. The ACTIA proportionate share of eligible costs shall be calculated based on the percentage anticipated in the PLAN or that developed in the Scope PHASE as discussed above. The formula shall be as follows: ACTIA Funds in PLAN Sales Tax Funding (97/98 dollars) ACTIA Proportionate Share = X Eligible Costs Total ProjectCost in PLAN (97/98 dollars) The remainder of the eligible costs shall be the SPONSOR's Proportionate Share. In the case where "Other Funding Sources" amounts are shown in the PLAN as "tbd" (to be determined) then the formula shall be altered in the SPECIFIC AGREEMENT with the SPONSOR to reflect proportionate risk and the proposed size of the particular project. Final 5/16/02 Page D-6 ACTIA 2002-21 In the event that funds have been expended prior to the removal of a project from.the PLAN, the proportionate shares shall be calculated as indicated above. I£the ACTIA proportionate share is less than the mount of ACTIA funds paid to SPONSOR, SPONSOR shall reimburse ACTIA the mount paid to SPONSOR in excess of the ACTIA proportionate share. If the ACTIA proportionate share is more than the amount of ACTIA funds paid to SPONSOR,.ACTIA shall reimburse SPONSOR subject to the following limitations: · In no case, shall the ACTIA proportionate share exceed the amount specified in the PLAN as escalated by the terms o£the Master Project Funding Agreement. · In no case, shall ACTIA reimburse SPONSOR,for more than SPONSOR's actual out of pocket eligible costs. Final 5/1.6/02 Page D-7 ACTIA 2002-21 APPENDIX D POLICY REGARDING THE TIMING ~LIMITATION FOR ENVIRONMENTAL APPROVAL INTENT The ACTIA adopted "Alameda County's 20-year Transportation Expenditure Plan" (PLAN) contains provisions for geographic equity,. Projects ~vhich cannot clear the Environmental Approval process or cannot do so in a timely manner are subject to deletion under the PLAN by declaring the unencumbered funds as "unused funds". Unused funds are returned to the geographic area thereby maintaining the geographic equity included in the PLAN. The PLAN establishes a deadline for environmental approval for each PROJECT that receives Measure B funding. Approval is defmed as the issuance of a Categorical Exclusion (CE), a Finding of No Significant Impact (FONSI) or the filing of the Record.of Decision (ROD) for NEPA documents and the Notice of Determination (NOD) or Notice of Exemption for CEQA documents. That deadline is April 1, 2007, however the PLAN includes provisions for one-year extensions to the deadline, if approved by the ACTIA Board. The intent is to assure continued "due diligence" by the SPONSOR to secure environmental clearance. POLICY This policy is to clarify the requirements for one-year extensions. 1. In the event that the Administrative Draft Environmental Document has not been submitted for public review by April 2007, no time extension will be recommended, and staffwill recommend that the project be deleted from the PLAN. 2. A time extension of one year may be recommended for projects where the SPONSOR has started the environmental process, and has worked diligently on critical items in an ACTIA-approved project schedule showing initial completion before April 2007. 3. Projects meeting the criteria of requirement No. 2 needing additional extensions shall be required to make application to the ACTIA Board to justify any additional extensions. 4. Projects with an original ACTIA-approved schedule starting the Environmental Document prior to April 2003 and showing environmental approval after April 2007 shall automatically be recommended for extensions to the year of scheduled approval. ACTIA will not approve any schedule under this cond/tion unless the environmental document is started prior to April 2003. Final 5/16/02 Page D-8 ACTIA 2002-21. APPENDIX E POLICY REGARDING PROGRAM FINANCING COSTS INTENT ACTIA wishes to implement all of the PLAN projects as soon as possible. In order to do this, demands for funds may temporarily exceed income during the duration o£the Program., In order to meet these demands, ACTIA may borrow against future income. Should'this become necessary, the cost for such financing shall be attributed to Capital Projects included in the PLAN and any PLAN programmatic expenditures requiring advanced funding. POLICY It is difficult if not impossible to determine which projects are using borrowed funds and which projects are~using accumulated income. In order to simplify and provide equity to ail SPONSORS, the following policy shall be used. If the ACTIA Board determines that it is in the best interest of the PLAN to sell bonds, or otherwise incur financing costs to develop projects, the cost o£bonding and financing, InclUding interest payments, shall be considered a PLAN cost and shall be identified in the ACTIA Strategic Plan as the first priority repayment. The financing costs w/ll reduce the overall funding level available to be distributed to all projects. It' Programmatic Expenditures in the PLAN require the advancement of funds, funds shall be repaid to ACTIA with interest. Interest shall cover the specific Programmatic Expenditure share of financing costs and interest. Final 5/16/02 Page D~9 ACTIA 2002-21 EXHIBIT "E" Alameda County TransportatiOn Improvement Authority Local Business Enterprise and Small Local Business Enterprise Program Alameda County Transportation lmprovement Authority .Page E-J Local Business Enterprise and Small Local Business Enterprise Program ~ ~ 5-~-'~ ACTIA 2002-21 ALAMEDA COUNTY TRANSPORTATION IMPROVEMENT AUTHORITY LOCAL BUSINESS ENTERPRISE AND SMALL LOCAL BUSINESS ENTERPRISE PROGRAM I. STATEMENT OF LBE AND SLBE POLICY It is the policy of the Alameda County Transportation Improvement Authority to encourage businesses to locate and remain in Alameda County, to employ residents of Alameda County and to spend Authority funds for goods and services within the County. The tax collected by the Authority was imposed by Alameda County voters on themselves for retail sales made within the County. The revenues are exclusively directed toward improving the transit and transportation systems within the County. As a result, the Authority has established this Local Business Enterprise and Small Local Business Enterprise Program ("LBE/SLBE Program") which shall be applied to Contracts funded solely with local dollars. The LBE/SLBE Program shall not be applied to Contracts funded with federal or State funds. Pursuant to State and federal law, the Authority'.s separate Disadvantaged Business Enterprise (DBE) Program shall be applied to any Construction Contract or Professional Services Contract administered by the Authority, if such Contract is funded in full or in part with federal dollars. The participation of local and small local businesses in the Authority's Contracts is consistent with the voter mandate, and generates other economic benefits for the residents of Alameda County and adds to the sales tax revenues for the Authority. To qualify for inclusion in the Authority's LBE/SLBE Program, an applicant must be a Local Business Enterprise or Small Local Business Enterprise (as such terms are defined below) located within Alameda County. This LBE/SLBE Program is neutral as to race, ethnicity, national origin, age, sex, religion and sexual orientation. II. DEFINITIONS The terms used throughout this LBE/SLBE Program are defined in the list below or in 49 CFR 26.5. The terms are arranged in alphabetical order. A. Authority: the Alameda County Transportation Improvement Authority. B. Bid: a quotation, proposal, solicitation, or offer by a bidder of contractor to perform or provide labor, materials or equipment to the Authority or a Sponsoring Agency for a price.- C. Cattrans: the State of California Department of Transportation. D. Commercially Useful Function: shall mean that a business is directly responsible for providing the materials, equipment, supplies or services to the Authority as required by the bid solicitation. To perform a Commercially Useful Function, the LBE or SLBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, ~4lameda Coun.tv Transportation Improvement Authority Page E-2 Local Business Enterprise and Small Local Business Enterprise Program ,~f ,~ ACTIA 2002-21 determining quality and quantity, ordering and installing the materials. To determine whether an LBE or SLBE is performing a CommerciallY Useful Function, the Authority.will evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing and the LBE or SLBE credit claimed for its performance of the work, and other relevant factors. An LBE or SLBE does not perform a Commercially Useful Function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of LBE or SLBE participation. In determining whether an LBE or SLBE is such an extra participant, the Authority will examine similar transactions, particularly those in which LBE or SLBEs do not participate. If an LBE or SLBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own work force, or the LBE or SLBE subcontracts a greater portion of the work of a contract.than would be expected on the basis of normal industry practice, it will be assumed that it is not performing a Commercially Useful Function. When an LBE or SLBE is presumed not to be performing a Commercially Useful Function as provided above, the LBE or SLBE may present evidence to rebut this presumption. The Authority will determine whether the firm is performing a Commercially Useful Function given the type of work involved and normal industry practices. E. Construction Contract: any Contract between the Authority or a Sponsoring Agency and a person or firm to provide labor, materials, of equipment for Construction Work. F. Contract: a legally binding relationship obligating a seller to furnish supplies or services (including, but not limited to, Construction and professional services) and the buyer to pay for them. G. Construction Work: all work to be performed by a person or firm to build or construct structures, roadways, or roadway appurtenances for the Authority or the Sponsoring Agency. H. Goals: see LBE Goals and/or SLBE Goals. I. Good Faith Effort: the steps, set forth in Section XI of this LBE/SLBE Program, undertaken to comply with the goals and requirements imposed by the Authority for participation of LBEs and SLBEs as Subcontractors. J. Joint Venture: an association of two or more businesses to carry out a single business enterprise for profit for which purpose they combine their property, capital, efforts, skills, and knowledge. Such a Joint Venture may be in the form of a partnership or other multi- entity relationship. K. LBE Goals: the targeted level of Participation for LBEs established by the Authority for Contracts awarded by the Authority and Sponsoring Agencies funded solely by local dollars. L. LBE/SLBE Program: the Authority's Local Business Enterprise and Small Local BuSiness Enterprise Program. Alameda County Transportation Improvement/luthority Page E-3 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 M. Local Business Enterprise'or LBE: aneconomically independent and continuing business performing a Commercially Useful Function (as defined above in paragraph (as defined abOve in paragraph D).for profit, which is located within Alameda County and which can establish each of the following criteria: 1. The business must be located at a fixed commercial or residential address which constitutes a business location and where administrative, clerical, professional or productive work is being performed, relative to its contracts, and not a temporary or movable office, a post office box or a telephone answering service; 2. I£ the business has an office Outside of Alameda County as well as an (3£fice within Alameda County, the office within Alameda County must be staffed on a fifll time, permanent basis with someone in the employ o£the business; 3. The location of the business must have been within Alameda County for at least one (1) year prior to the award date; The business must have a valid business license or tax certificate from its respective city or Alameda COunty dated at least one (1) year prior to the award date; 5. The business must have proof of one or more past contracts citing the business address; 6. The businesS shill be considered bonafide i£the business' ownership interests are real and continuing and not created merely for the purpose of meeting the objectives of the Authority's LBE/SLBE Program; and 7. The business may not act as a passive conduit without Contributing an added value or actual portion of the work awarded. N. Measure B: the local initiative approved by the voters of Alameda County in 2000 to levy a one-half (1/2) cent sales and use tax on purchases within the County to finance certain capital transportation and transit projects as set forth in the. Expenditure Plan attached and incorporated by reference into Measure B. This measure authorized the creation of the Authority to administer the implementation of Measure B. A Copy of'Measure B, including the Expenditure Plan, is available at the Authority's office. O. Participation: where a Prime Contractor utilizes one or more LBEs or SLBEs to meet the Authority's LBE and SLBE subcontracting requirements, the Prime Contractor may only count towards its subcontracting goals those expenditures to LBEs and SLBEs firms that perform a Commercially Useful Function. P. Prime Contractor: any person(s), firm, partnership, corporation, or Joint Venture who submits a Bid to perform and/or enters into a Contract with a Sponsoring Agency or the Authority to perform Construction Work or professional services. Prime Contractors shall perform at least thirty percent (30%) of the Construction Work or professional services under the Contract. Alameda County Transportation lmprove~nent Authority Page E-4 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 Q. Professional Services Contract: any Contract between the Authority and a person or firm to provide labor, materials, or equipment For pro£essional services. R. SLBE Goat: the targeted level of Participation for SLBEs established by the · Authority £or Contracts awarded by the Authority and Sponsoring Agencies funded solely by local dollars. There may be some Contracts where it is not possible to include SLBEs because o£ the nature of the Contract. The Authority staff shall determine £or each Contract whether it is practical to apply the SLBE Goal. S. Small Business: a business with less than a stated amount of average gross annual revenue over the past three (3) years. For any business to qualify as a Small Business, it must have an average annual gross revenue within the State small businesses standards, as they may be adopted from time to time. (Cali£Ornia Code o£Regulations, Title 2, Division 2, Chapter 3, Subchapter 8.) A copy o£ such standards currently in effect is attached hereto as Appendix A. T. 'Small Local Business Enterprise or SLBE: an economically independent and continuing Small Business (as defined above in paragraph S) performing a Commercially Useful Function (as defined above in paragraph D) for profit, and which also qualifies as a Local Business Enterprise (LBE) as shown by the criteria above in paragraph M. U. Sponsoring Agency: any public entity receiving funds ~rom Measure B designated £or capital highway and transit projects in the Authoritv's 2000 Alameda County 20- year Transportation Expenditure Plan. The Expenditure Plan is available for review at the Authority's office. This LBE/SLBE Program shall only be applied to Contracts awarded by the Sponsoring Agency which are completely or partially funded, by the Authority. V. Subcontractor: any individual, partnership, corporation, or other legal entity entering into a contract with a Prime Contractor to perform a portion o£ the Construction Work or pro£essional services under a Contract with. the Authority or a Sponsoring Agency, including but not limited to truckers, manufacturers, suppliers and owner-operators of equipment. IlL DEPUTY DIRECTOR The Authority's Deputy Director is primarily responsible £or implementing all aspects of the LBE/SLBE Program. The Deputy Director has direct, independent access to the Executive Director of the Authority concerning LBE/SLBE Program matters. The Deputy Director may be assisted by outside consulting firms in acting as Deputy Director. A list o£the Deputy Director's responsibilities with respect to this Program can be £ound in Appendix B. The contact information £or the Deputy Director is as £oll0ws: Alameda County TranspOrtation Improvement Authority Deputy Director 1401 Lakeside Drive, Suite 600 Oakland, CA 94612-4395 510-893-3347 x104 ADao~acta2002.com Alameda County Transportation Improvement Authority Page E-5 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 IV. POWERS AND DUTIES OF THE AUTHORITY In addition to the powers and duties enumerated elsewhere in this Program, the Authority will do the following: A. The Authority may mediate disputes relating to payment between Prime Contractors and Subcontractors. When such a dispute arises, any party to the dispute may contact the Authority and request assistance. The Authority will investigate each party's contentions and work with both to resolve the dispute. B. When the Authority determhnes that it has reason to believe that an organization has committed fraudulent acts in representing that it is an LBE or SLBE the Authority may debar the organization from participating in Measure B funded Contracts, enforce any of the penalties set out in Section XVII below, and/or report such fraudulent organizations to the appropriate government authorities. V. RESPONSIBILITIES OF SPONSORING AGENCIES Sponsoring Agencies are public entities receiving funds from the Authority for use on Alameda Coun.vd projects designated in Measure B. A Sponsoring Agency may administer some or all of the design and construction of a Measure B project under the oversight and fiscal control of the Authority. It shall be the responsibility of the Sponsoring Agency to ensure that Bids received by the Agency adhere to the procedures and provisions set forth in this LBE/SLBE Program. On a case-by-case basis, the Authority may decide that a given Contract awarded by a Sponsoring Agency shall be subject to the Sponsoring Agency's own local preference program rather than this LBE/SLBE Program. VI. ESTABLISHMENT OF GOALS A. LBE Goals. It is the Authority's policy to encourage businesses to locate and remain in.Alameda County, to employ residents of Alameda County and to spend Measure B revenues within the County since Measure B funds are generated from Alameda County sales tax receipts. To implement this policy, the Authority is establishing Program Goals for Participation by LBEs. The LBE Goals are to award sixty percent (60%) of all Construction Contract dollars, and seventy percent (70%) of all Professional Services Contract dollars, on an annual basis, to firms who qualify as LBEs. The LBE Goal for Construction Contracts shall be met by the Prime Contractor on each Construction Contract awarded by the Authority or Sponsoring Agency where such Contract is solely funded with local funds. The LBE Goal for Professional Services Contracts shall be met by the Prime Contractor on each Professional Services Contract in excess of Fifty Thousand Dollars ($50,000) awarded by the Authority~or Sponsoring Agency, where such Contract is solely funded with local funds. No Contract will be awarded to a Prime Contractor who has failed to meet the applicable LBE Goal in its Bid or other required submittal unless the Prime Contractor first proves it made a Good Faith Effort to meet the LBE Goal but was not able to do so. .4lameda County Transportation Improvement Authority Page E-6 'Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 B. SLBE Goals. The Authority recognizes the di£ficu]fies facing small businesses when competing in the marketplace. Moreover, it is the policy of the Authority to encourage businesses to locate and remain in Alameda County, to employ residents of Alameda County and to spend Authority fiands £or goods and services within the County. Therefore,.the Authority will implement a Small Local Business Enterprise (SLBE) program to assist in the utilization o£ small local businesses. The SLBE Goals are to award twenty percent (20%) o£ all Construction Contract dollars, and.thirty percent (30%) of all Pro£essiOnal Services Contracts, on an annual basis to firms who qualify as SLBEs. Subcontracts which are counted as part of meeting the applicable SLBE Goal also count toward meeting the applicable LBE Goal. There may be some Contracts where it is not possible to include SLBEs because of the nature of the Contract. The Authority staff shall determine for each Contract whether it is practical to apply the SLBE Goal. VII. COUNTING LBE AND SLBE PARTICIPATION Only the value of the work actually performed by LBEs and SLBEs will be counted towards the applicable Goal. The Authority will count expenditures to LBEs and SLBEs when the firm is performing a Commercially Useful Function on that Contract. The entire amount of that portion of a Contract that is performed by the LBE's or SLBE's own work 'force will be counted. This includes the cost of equipment, supplies and materials obtained by the LBE and SLBE for work on the Contract. LBE and SLBE Prime Contractors should perform at least 30% of the total cost of its Contract with its own work force. If a Joint Venture, the Authority will count a portion of the total dollar value of the LBE and SLBE Contract equal to the distinct, clearly defined portion of the work of the Contract that the LBE and SLBE performs toward the LBE or SLBE Goal. When a LBE and SLBE subcontracts part of the work on its Contract to another firm, the value of the subcontracted work may be counted toward the LBE or SLBE goal if the Subcontractor is itself a LBE or SLBE. Subcontracts to non-LBE and SLBE firms do not count toward the LBE and SLBE Goals. The Authority will not count the dollar value of work performed under a Contract with a firm after it has ceased to be certified toward the overall Goal. In addition, the Authority will not count the participation of a LBE or SLBE Subcontractor toward the applicable LBE or SLBE Goal until the LBE or SLBE has been paid. VIII. MEANS TO INCREASE LBE AND SLBE PARTICIPATION The Authority will use the following means to increase LBE and SLBE participation: ·Scheduling times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate LBE and SLBE and other small business participation. ·To the extent practicable, unbundling large contracts to make them more accessible to small businesses. · Encouraging Prime Contractors to subcontract portions of work that they might otherwise perform with their own forces. · Providing assistance in overcoming limitations such as inability to obtain bonding or financing by such means as simplifying the bonding process, reducing bonding Alameda County Transportation Improvement Authority Page E-7 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 requirements, and providing services to help LBEs and SLBEs, and other small businesses, 'obtain bonding and financing. · Establishing formal processes for informing and notifying Prime Contractors and Subcontractors of Program requirements and of all contracting opportunities. · Notifying all Subcontractors of change orders to ensure that the LBE and SLBE Goals are met in amendments and change orders. · Providing the following technical assistance: · Access to a public plans room to review plans and specification prior to bid opening. · Hands on assistance in identifying items of work for subcontracting opportunities. · Assist in helping the Subcontractor put together a bid package. · Conduct construction site walk-through to help the Subcontractor determine his/her capacity before submitting a bid. · Provide a list to Subcontractors of all plan holders. · Assist in preparing bond and loan documents. · Maintain a listing of bonding and financial institutions that have demonstrated a willingness to work with LBEs and SLBEs, and provide a copy of this list to any individual, firm or organization upon request. · Maintain a list of insurance companies who have represented that they will provide competitive pricing to small business enterprises for workers' compensation, liability and other business insurance, and provide copies of this list to any person, firm or organization upon request. · Mobilize support, provide the Subcontractor with logistic information regarding storing their equipment and supplies on the job site. · Help the Subcontractor on the procedures and provide assistance in completing the paperwork for submitting change orders. · Hold periodic workshops providing informationon topics such as bonding and underwriting standards and procedures for Subcontractors; business planning; record keeping; capital formation; financial counseling; equipment utilization; technical assistance on operating highway construction, material supply, engineering or other transportation related businesses; plan interpretation; estimating; bidding; cost accounting methods; understanding and preparing project/contract documentation (i.e. required forms, work schedules, and productions schedules); safety regulations; and networking and marketing. · Monitoring the Subcontractor process by requiring proof of Subcontractor consent, allowing sufficient time for contacting Subcontractors'and "demonstrations" of Good Faith Efforts by Prime Contractors. · Providing information and communications programs on contracting procedures and specific contract opportunities (e.g., ensuring the inclusion of LBEs and SLBEs and other small businesses on recipient mailing lists for bidders; ensuring the dissemination to bidders on prime contracts of lists of potential Subcontractors; provision of information in languages other than English, where appropriate). Alameda County Transportation lmprovement ,quthority Page E-8 Local Business Enterprise and S~nall Local Business Enterprise Program ACTIA 2002-21 · Providing services to help LBEs and SLBEs and other small businesses improve long- term development, increase opportunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve eventual self-sufficiency. IX. CERTIFICATION OF LBE AND SLBE FIRMS A. Certification. LBEs and SLBEs must be certified prior to Bid opening, except as otherwise approved by the Authority on a case by case basis, to determine whether the Prime Contractor has met the applicable LBE and SLBE Goals. A business seeking to be certified as an LBE or an 'SLBE must submit an application to the Authority. Each business seeking certification under this Program shall complete an application. The application shall be signed by the authorized representative of the business entity. If deemed appropriate, the Authority may conduct a site visit before certifying the firm. B. Recertification. Authority certification of an LBE or SLBE is valid for one (1) year from the month of certification and must be renewed annually. A certified LBE or SLBE shall initiate a streamlined annual recertification by submitting a written request to the Authority and stating, under penalty 'of perjury, that there has been no change in the ownership of the firm. A certified LBE or SLBE need'not submit a new application for certification unless the firm does not make such a request for the streamlined annual recertification or if the annual recertification is den/ed. C. Investigations and Challenges of LBE or SLBE Status. The Authority may initiate an investigation of any firm's certification, if it has reason to believe there is some question regarding the firm's eligibility as an LBE or an SLBE. While investigating a firm's certification, the Authority will follow the guidelines and procedures used by Caltrans for investigations and challenges of Disadvantaged Business Enterprises (DBEs). The Authority will investigate any protest or complaint made by a person, another fn-m, or an organization regarding the certification of an LBE or SLBE. Any protest shall be in writing to the Authority, must clearly delineate the character of the protest, and must state the reasons, including any evidence, on which the protester questions the validity of a LBE or SLBE certification. D. Decertification. Firms intentionally falsifying their status as an LBE or SLBE may be debarred from bidding on future Authority work for a period of up to three years. A list of firms decertified within the last three years by the Authority or Sponsoring Agencies is available upon request and will be sent to persons or businesses when the lists of certified LBE or SLBE firms are mailed. The Sponsoring Agency shall inform the Authority within five (5) working days of making a determination that it has reason to believe an organization has committed fraud in representing that it is an LBE or SLBE. The Sponsoring Agency shall report such organizations to the appropriate government authorities. X. JOINT VENTURES Whenever a Joint Venture involves LBEs or SLBEs, the Prime Consultant shall provide the Authority with a full account of the nature of the LBE or SLBE, the basis for creation of the Alameda County Transportation lmprovetnent Authority Page E-9 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 Joint Venture, and the responsibilities of the interested parties. Such Joint venture shall ensure that the participating LBEs or SLBEs have a commensurate share of the profit or loss to be realized from the Joint Venture. The .agreement establishing the Joint Venture shall be in writing. The Authority shall have the right to review same and determine if such arrangement is proper within the requirements and intent of this LBE/SLBE Program. The dollar amount of the Joint Venture, which is to apply towards the goals for' LBE and SLBE participation, is calculated by the following formula: Joint Percent LBE or SLBE Percent of Joint Venture Venture X Joint Venture = Contract Applicable Contract Financial Participation to LBE or SLBE Goal XI. GOOD FAITH EFFORT TO ATTAIN GOALS It is the Authority's intent and policy to fulfill its goals for LBE and SLBE Participation. If a bidder has failed to meet the LBE or SLBE Goals, the Authority must determine whether the bidder actively and aggressively sought to meet the LBE and SLBE Goals. Efforts that are merely pro forma shall not be deemed a Good Faith Effort by the Prime Contractor. Even if they are sincerely motivated, efforts that could not reasonably be expected to produce a level of LBE and SLBE Participation sufficient to meet the LBE and SLBE Goals are not Good Faith Efforts as required by this Program. i. Good Faith Effort Criteria. A Prime Contractor shall provide evidence'that it took the following actions in order ro establish that it made a reasonable Good Faith Effort to meet the Authority's LBE and SLBE Goals: a. Attending pre-bid meetings scheduled by the Authority to inform all bidders of the LBE/SLBE Program requirements for the project for which the Contract will be awarded. b. Identifying specific items of work to be performed by LBEs and SLBEs in order to increase the likelihood of meeting the LBE and SLBE Goals, including breaking down contracts into constructible units. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate LBE and SLBE participation. c. Providing written notice of interest in soliciting bids on the Contract to LBEs and SLBEs. Written notice shall specify which items of work the Prime Contractor has identified pursuant to paragraph 2. This notice shall be provided to LBEs and SLBEs not less than 10 calendar days prior to the opening of Bids, or pursuant to the notice period set forth in the specifications for a given Contract. These solicitations shall include a description of the ' specific items of work to be performed by the LBEs and SLBEs and all related conditions of the work. ~llameda County Transportation [mprovement.4uthority t~age E-] 0 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 4. Following up the written initial solicitations of interest by contacting the owner or other manager of the LBEs and SLBEs to determine with certainty whether the enterprises were interested in performing specific items of the project. Making the project plans, specifications, and requirements for the selected subcontracting or material supply work available for review by interested LBEs and SLBEs. 6. Where needed, advising and making efforts to assist interested LBEs and SLBEs in obtaining lines of credit, or required insurance. 7. Negotiating in good faith with LBEs and SLBEs and, as determined by the Authority, not unjustifiably rejecting as unsatisfactory bids prepared by any LBE or SLBE. 8. Not rejecting LBEs and SLBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. A potential Subcontractor's standing within its industry, membership in specific .groups, organizations or associations, and political or social affiliations (for example, union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the Prime Contractor's efforts to meet the LBE and SLBE Goals. 9. Contacting the Authority, identifying the LBEs and SLBEs contacted and explaining any problems securing LBE and SLBE bidders at least five (5) working days before Bid opening. 10. Advertising, not less than ten (10) calendar days before the date the Bids are opened, in one or more daily or weekly newspapers, trade association publications, trade oriented publications, trade journals, or other media, that may be specified by the Authority to solicit LBEs and SLBEs that are interested in participating in the project. This paragraph applies only if the Authority gives public notice of the project not less than 15 calendar days prior to the date the Bids are opened. 11. Requesting assistance from contractors' groups, or other organizations that provide assistance in the recruitment and placement of LBEs and SLBEs, if any are available. 12. Making any other efforts to obtain LBE and SLBE Participation that the Authority could reasonably expect would produce a level of participation sufficient to meet the Authority's Goals and requirements. Prime Contractors who have not met the LBE and SLBE Goals for participation will demonstrate in their Bid documents that they have used Good Faith Efforts to utilize LBE and SLBE subcontractors, suppliers, manufacturers, brokers, truckers or owner/operators of equipment. Before noon of the first working day following the date the Bid was submitted, contractors who have not met the goal will submit a Good Faith Effort Report. The Prime Contractor will list on the report the names of all LBEs or SLBEs contacted by the Prime Contractor to solicit their Bids; the name and title of the person contacted; the date contact was made; and the dates of all follow-up contacts. The Prime Contractors will also identify specifically the selected items of work that Bids from LBEs and SLBEs were requested for; the dates plans and specifications were made available to the LBEs and SLBEs; what technical Alameda County Transportation Improvement Authority Page E-11 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 assistance was offered the LBEs-and SLBEs; and the reason that the bid was rejected. Prime Contractors will attach all letters and other documents relating to their efforts to comply with the Good Fa/th Effort requirements to solicit LBE and SLBE Participation. The Authority recogaizes that a bidder using good business judgment would consider a number of factors in negotiating with Subcontractors, including LBEs and SLBEs, and would take a firm's price and capabilities as well as the Contract Goal into consideration. However, the fact that there may be some ad.dit/onal costs involved in finding and using LBEs and SLBEs is not in itself sufficient reason for a bidder's failure to meet the LBE and SLBE Goals, as long as. such costs are reasonable. Also, the ability or desire of a Prime Contractor to perform the work of a Contract with its own orgamzation does not relieve the bidder of the responsibility to make Good Faith Efforts. Prime Contractors are not, however, required to accept higher quotes from LBEs and SLBEs if the price difference is excessive or unreasonable. B. Good Faith Effort Review. Ifa bidder has not met the goals for LBE and SLBE Participation, the Sponsoring Agency shall investigate whether the Prime Contractor made a Good Faith Effort to meet the LBE and SLBE Goals and shall recommend to the Authority's Board whether the Bid should be accepted or rejected. In its investigation, the Sponsoring Agency may c0ntact the LBEs and SLBEs listed on the Good Faith Effort Report to verify the information provided by the bidder. The bidder will also provide further documentation regarding its efforts to attain LBE and SLBE'Participation as requested by the Authority or Sponsoring Agency. Whenever the Authority or Sponsoring Agency recommends rejection of a Bid that has not met the LBE or SLBE Goals, the Prime Contractor may appeal the rejection of its Bid to the Good Faith Effort Review Committee ("Committee") assembled for this purpose by the Authority. The Prime Contractor must notify the Authority of its intent to appeal within three (3) days of the Authority's decision to reject the Prime Contractor's Bid. The Committee will review the Authority or Sponsoring Agency's decision to award a Contract based on GOod Faith Effort when the LBE and/or SLBE Goals are not met. The Committee shall consist of three (3) members appointed by the Authority and shall include an Authority staff member, an Authority Board representative, and a representative of the respective Sponsoring Agencyl if any. The Committee shall hold a hearing in Alameda County. All Subcontractors listed on the Good Faith Report will be given notice of the hearing at least ten (10) days before it takes place. The Committee will review evidence at the hearing to determine whether the Prime Contractor made a Good Faith Effort to meet the LBE and SLBE Goals. The Committee shall review and keep confidential any information revealing a Prime Contractor's proprietary interests and shall exclude the public from the hearing for that limited purpose. The Committee shall give the bidders and Subcontractors participating in bids on the project an opportunity to present evidence relating to the Prime Contractor's Good Faith Effort to meet the LBE and SLBE Goals. The Committee's decision on the Prime Contractor's Good Faith Effort shall'be final. The Authority or Sponsoring Agency will rely on the decision of the Committee, and the Authority will hold the Sponsoring Agency harmless for implementing the decision of the Committee. Alameda County Transportation Improvement .4uthority Page E- ]2 Local Business Enterpris~ and Small Local Business Enterprise Program ACTIA 2002-21 xl]. BIDDING PROCESS FOR CONSTRUCTION CONTRACTS A. Distribution of Certified Lists. The Authority will maintain a directory or list of certified LBE and SLBE Prime Contractors and subcontractors conducting business in Alameda County who are capable of performing types of subcontract work and providing materials generally required during construction. Current copies of the list will be distributed by the Authority or Sponsoring Agency at the same time requests for Bids are distributed. Additionally, the list shall be provided to any individual, firm or organization upon request. B. Pre-bid Conference. Not tess than'fifteen (15) days before Bids are due on each Contract subject to this LBE/SLBE Program, the Authority shall hold a pre-bid conference in Alameda County that invites all prospective Prime Contractors and Subcontractors including LBEs and SLBEs. During the conference, the Authority will explain the Contract.to be performed, the provisions of this LBE/SLBE Program, and the process for bidding. Available data on the LBEs and SLBEs interested and/or capable of engaging in the prospective Contract shall be made available to prospective bidders, Prime Contractors and Subcontractors at the conference. C. Solicitation of LBE and SLBE Bids. Prime Contractors shall notify local contractor associations and business development centers of their intention to solicit LBE and SLBE Participation in a Contract at least ten (10) days, but preferably twenty (20) days, prior to the Bid opening. Such notification shall be by registered or certified mail or other suitable means such as facsimile copy. D. Bid Opening. Prime Contractors must submit a LBE/SLBE Utilization Form as applicable with their Bids. This form will identify the particular LBEs and SLBEs to be utilized in performing the Construction Contract, specifying for each the dollar value of the Participation, the type of work to be performed and such information as may reasonably be required to determine the responsiveness of the Bid. This Form will be available for public review immediately upon submission. Prime Contractors must submit with their Bid an Affidavit of Non-Disciplinary or Investigatory Action attesting that no adverse action has been taken against them by the Equal Opportunity Commission, State of California Department of Fair Employment and Housing or the U.S. Department of Labor Contract Compliance Program or provide an explanation for any such actions, except where legal action is pending. Prime Contractors shall submit with their Bids a letter of intent signed by the Subcontractor or an executed contract for each Subcontractor who is included in the Bid. Prime Contractors must submit a proposed draft copy of their contract with each Subcontractor that will be working on a project to the Authority or Sponsoring Agency within ten (10) days of being notified that they have been awarded the Construction Contract and a copy of the executed contract with the Subcontractor prior to the commencement of Construction Work. .41ameda County Transportation Improvement,4uthority ?age E-J'3 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 XII1. SUBMITTAL OF QUALIFICATION STATEMENTS AND PROPOSALS FOR PROFESSIONAL SERVICES CONTRACTS Consultants interested in Professional Services Contracts shall submit project specific qualification statements and proposals as prescribed by the Authority's "Policy on Selection Procedures for Procurement of Engineering and Related Professional Services" or as prescribed by the Authority or the Sponsoring Agency, with the Authority's approval, for the particular service required. Project Specific Qualification Statements shall include the manner in which a firm or team plans to meet the requirements of this LBE/SLBE Program. Therefore, although assignment of tasks is not required at this stage, firms wishing to be Considered further must clearly establish that they will comply with this LBE/SLBE Program. Firms invited to propose (Prime Contractors) shall complete the Project's Consultant Team Form (see Appendix C). A Professional Services Questionnaire must also be completed by the Prime Contractors and each Subcontractor (see Appendix D). The Project Consultant Team Form, the Professional Services Questionnaire, and the Good Faith Effort information, if applicable, must be submitted at the time the Prime Contractor submits the project proposal to the Authority or the Sponsoring Agency. XIV. MONITORING COMPLIANCE Prime Contractors shall make their best efforts to maintain the LBE and SLBE Goal level achieved at the time the Contract is awarded throughout the term o£the Contract. Such best efforts shall include any increase in the amount or scope of the Contract implemented by change order. No change order or substitution o£ a listed LBE or SLBE Subcontractor can be made without the prior approval of the Sponsoring Agency and the concurrence o£the Authority. I£an LBE or SLBE subcontractor is unable to perform successfully and will be replaced, the Sponsoring Agency or the Prime Contractor shall notify the Authority, who shall have the right to im, estigate the circumstances surrounding the request £or the substitution. The Prime Contractor shall make its best efforts to replace the original LBE or SLBE with another LBE Or SLBE. In the event there is an increase in the Contract size or scope, Prime Contractors shall make their best efforts to maintain the LBE and SLBE goals established at the time the Contract was originally awarded. The Authority shall monitor compliance with the requirements of this Program during the term of the Contract. If the Authority determines that there is cause to believe that a Prime Contractor or Subcontractor has failed to comply with any of the requirements of this Program or the Contract provisions pertaining to LBE or SLBE utilization, the Authority shall so notify the Contractor and the Sponsoring Agency, it' any. The Authority may require such reports, information, and documentation from Prime Contractors, Subcontractors, bidders, and the Sponsoring Agency, as are reasonably necessary to determine compliance with this Program. The Authority's Board may hold a hearing to evaluate the Prime Contractor's progress~toward meeting the applicable Goals o£ any Contract subject to this Program. .4lameda County Transportation Improvement Authority Page E-J4 Local Business Enterprise and Small Local Business Enterprise Program 'ACTIA 2002-21 Firms found to be in violation of these provisions will be subject to penalties described in Section X¥II below. xv. RECORDS The Authority or Sponsoring Agency, if any, shall maintain accurate records for each Contract awarded, including dollar value, the nature of the goods or services to be provided, the name of the Prime Contractor awarded the Contract, the efforts the Prime Contractor employed to solicit bids from LBEs and SLBEs, and all subcontracts awarded by the Prime Contractor, identifying for each its dollar-value, the nature of the goods or services provided, and the name of the Subcontractor. Prime Contractors are required to maintain certain records and documents for three years following the performance of a Contract. Such records shall include the following: · The name and address of each first-tier Subcontractor. · The name and business address, regardless of tier, of every LBE and SLBE Subcontractor. · The date of payment and the total dollar figure paid to each Subcontractor. · A LBE or SLBE Prime Contractor shall also show the date of work performed by their own forces along with the corresponding dollar value of the work claimed toward the applicable Goal. These records will be made available for inspection upon request by any authorized representative of the' Authority. XVI.. PROMPT PAYMENT Prime Contractors shall be paid within thirty (30) days of submitting a verified invoice. Along with a request for payment, a Prime Contractor will submit a Progress Payment Form for SubcOntractors. When it pays the Prime Contractor, the Authority will include a Progress Payment Form that reflects all approved items. Prime Contractors will enclose a photocopy of this Progress Payment Form with their payments to Subcontractors. The Authority shall ensure that the following clauses or equivalent will be included in each Contract subject to this Program: The Prime Contractor agrees to pay each Subcontractor under this prime contract for satisfactory performance of its contract no later than 10.days from the receipt of each payment the Prime Contractor receives from Authority. Any delay or postponement of payment from the above referenced time frame may,occur only for good cause following written approval of the Authority. This clause applies to both LBE/SLBE and non-LBE/SLBE Subcontractors. The Prime Contractor agrees further to release retainage payments to each Subcontractor within 30 days after the Subcontractor's work is satisfactorily' completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Alameda County Transportation Improvement Authority t~age E-J5 Local Business Enterprise and Small LoCal Business Enterprise Program ACTIA 2002-21 Authority. This clause applies to both LBE/SLBE and non-LBE/SLBE Subcontractors. XVII. PENALTIES AND SANCTIONS When the Authority or a Sponsoring Agency awards a Contract subject to this LBE/SLBE Program and the AUthority and/or Sponsoring Agency has cause to believe that any bidder, Prime Contractor or Subcontractor has willfully failed to comply with any of the provisions of this LBE/SLBE Program, either may conduct an investigation. If, based on this investigation the Authority or the Sponsoring Agency (with the advice and consent of the Authority) finds non-compliance, the investigating entity will provide the Prime Contractor or Subcontractor with notice and an opportunity to be heard, and the Authority and Sponsoring Agency may impose the sanctions described below for each violation of this LBE/SLBE Program. In order to complete its investigation, the Authority may require such reports, information and documentation from bidders, Prime Contractors, Subcontractors, and the. Sponsoring Agency as are reasonably necessary to determine compliance with the requirements of this LBE/SLBE Program. If the Authority investigates and finds willful non-compliance, the Authority shall send a written notice to the Sponsoring Agency, if any, that a determination of a bad faith non- compliance has been made. The sanctions that may be imposed for each violation of this LBE/SLBE Program are as follows: 1. imposing a fine; 2. suspending the Contract; 3. rescinding the Contract based upon a material breach of contract pertaining to LBE and SLBE utilization; 4. disqualifying a bidder, Contractor, or other business from eligibility for providing goods or services to the Authority for a period not to exceed two years. X¥III. REPORTING REQUIREMENTS Each Sponsoring Agency will provide a report on a quarterly basis to the Authority which indicates (i) all Contracts and subcontracts awarded to LBEs and SLBEs, and (ii) all payments made to LBE, SLBE and other firms, during the reporting period for all Measure B funded projects. Prior to awarding any Construction Contract or any Professional Services Contract with a. fee of $50,000 or more, the Sponsoring Agency shall provide the Authority with a report of the extent to which the proposed recipient has met the applicable Goals for LBE and SLBE participation and/or documentation of Good Faith Efforts in accordance with Section XI of this program. ~41ameda County Transpo~;tation Improvement Authority Page E-] 6 Local Business Enteu~rise and Small Local Business Enterprise Program ACTIA 2002-21. X1X. PROGRAM REVIEW This LBE/SLBE Program will be reviewed annually.by the Authority. The Authority may make such changes in the Program which are required to implement its goals and objectives. The Executive 'Director will prepare a quarterly report on all Contracts awarded for the period to be reviewed by the Authority. xx. SEVERABILITY The provisions of this LBE/SLBE Program are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this program, or the invalidity of the application thereof to any person or circumstances shall not affect the validity of the remainder of this Program, or the validity of its application to other persons or circumstances. xxI. CONFIDENTIALITY The Authority will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with federal, state, and local law. Alameda County Transportation Improvement Authority Page E-I 7 Local Business Entet7~rise and Small Local Business Enterprise Program ACTIA 2002-21 APPENDIX A California Code of Regulations' Definition of Small Businesses (j) "Average Annual Gross Receipts" means all pecuniary.gross receipts (less returns, allowances and interaffiliate transactions), the assignment of such receipts notwithstanding, of a business concern from whatever source derived, as entered or to have been entered on its regular books of account for its most recently completed fiscal year (whether on a cash, accrual, completed contracts, percentage of completion or other commonly recognized and accepted accounting method). Proof of average annual gross receipts must be provided in the form of either: (1) A copy of completed tax returns (with all schedules), as filed with the United States Department of the Treasury, Internal Revenue Service, for Federal income tax purposes; or (2) Audited financial statemems coverin, g the applicant business concern and all affiliates; or (3) If. the documents required under I or 2 above are unavailable, an unaudited financial statement covering the applicant business concern and all affiliates; and (4) A duly sworn and notarized statement which attests to the truthfulness and accuracy of the unaudited financial statement as well as the authority of the signatory to make such representation regarding the applicant business concern and a promise to provide the information required under 1 or 2 above within 90 days of the effective date of certification. Average annual gross receipts will be determined by adding the gross receipts for the applicant concern and any affiliates during the previous three tax years and dividing by three. Should a sole proprietorship or partnership be in business for less than three tax years, additional prior year(s) personal and affiliate gross receipts will be considered to complete the aggregate gross receipts for the previous three years to be averaged. Should a corporation be in business for less than three tax years, the average annual gross receipts will be determined by dividing the total gross receipts by If a concern which has been in business more than 12 months changes its tax year (fiscal year), its annual receipts will be determined from its most recently completed 36 months period in business. Once the new fiscal year has been completed, the Office of Small and Minority Business, also known as the Office of Small Business Certification and Resources, may require a new application which sets forth the applicant's annual receipts under the new fiscal year cycle. If a concern has acquired an affiliate during the applicable tax year, it is necessary in computing the applicant's annual receipts, to include the affiliate's receipts during the entire applicable tax year, rather than only its receipts during the period in which it has been an affiliate during a portion of the applicable tax year. Alameda County Transportation Authority Page E-J8 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 (k) "Familial Relationship" means relationships between the folloWing family members: Husband, wife, child, stepchild, mother, father, grandparent, brother, sister, grandchild, stepbrother, stepsister, stepmother, stepfather, mother-in-law, father-in-law, brother-in-law, Sister-in-law, daughter-in-law, son-in-law, and if related by blood, uncle, aunt, niece, nephew, (1) "Small Business" as used with regard to a public works contract as deftned in Division 2, Part t, Chapter 1, Section 1101 of the California Public Contract Code, means a business concern which has been issued a currently valid Contractor's license by the State of California andmeets the followin'g requirements. (1) Has requested the status ora small business and has been approved as such by the Office of Small and Minority Business, also known as the Office of Small Business Certification and Resources. (2) Is not, together with any affiliate(s), dominant in its field of operation(s). (3) Is independently owned and operated, the principal office of which is located in California, and the officers, in the case of a corporation, or owners in all Other Cases, of such business domiciled in California. (4) Together with any affiliates, has 100 or fewer employees, and average annual gross receipts · of ten million dollars ($10,000,000) or less over the previous three tax years. The firm shall also set forth on the bid form the name and nature of any business which has assisted it in obtaining bonding for submission of the bid with respect to which the firm seeks a Small Business Preference, and if the finr~ which rendered bonding assistance is listed as a subcontractor on such bid there shall be set forth on the bid form the percentage of the contract price called for by the prime bid which will be performed by subcontractor. Alameda County Transportation ,4uthority Page E-J9 Local Business Enterprise and Small Local Business E~nterprise Program ACTIA 2002-21 APPENDIX B DEPUTY DIRECTOR RESPONSIBILITIES The specific duties and responsibilities of the Deputy Director under this LBE/SLBE Program shall include, but not be limited to, the following: A. Analyzing and assessing the available resources and evidence for the establishment and achievement of overall annual Goals each year; B. Developing, monitoring and evaluating the Program, and preparing supplemental written procedures and guidelines to implement the Program; C. Maintaining and updating the Bidders List; D. Conducting measures to facilitate the participation of local and small business concerns through outreach and other community programs, training and business development programs, restructuring contracting opportUnities, simplifying bonding, surety' and insurance requirements; E. Participating in the Contract bid and award process, reviewing Contract specifications, attending pre-bid conferences and participating in the process of evaluating bids for contractor responsiveness, responsibility and Good Faith Efforts; F. Ensuring that bid notices and requests for proposals are available to LBEs and SLBEs in a timely manner; G. Monitoring specific Contract performance and actual participation and Contract payments; H. Monitoring overall participation, adjusting the overall Goals and means of achievement, assessing areas of over-concentration of participation, identifying ways to improve progress and reporting to the Authority as needed; I. Providing LBEs and SLBEs with information and assistance in preparing bids, obtaining bonding and insurance; J. Planning and participating in LBE and SLBE training seminars; K. Providing outreach to LBEs and SLBEs and community organizations to advise them of opportUnities; and L. Maintaining all appropriate records and documentation of the Program, including gathering and reporting statistical data and other information as required. Alameda County Transportation Authority Page E-20 Local Business Enterprise and Small Local Business Enterprise Program ACTIA 2002-21 APPENDIX C PROJECT CONSULTANT TEAM Names of all Firms Participating on the Project (incl. Prime Check if Firm is: Nature of Percent of Project and Subconsultants) LBE SLBE Participation Work Name - Authorized'Officer of Prime Consultant Firm (Print or Type) SignatUre - Authorized Officer of Prime Consultant Firm (Submit with Proposal) Alameda County Transportation Authority Page E-2J Local Business Enterprise and StnaH Local Business Enterprise Program ACTIA 2002-21 APPENDIX D PROFESSIONAL SERVICES QUESTIONNAIRE Date Phone Firm Name Street Address City State Zip TYPE OF ORGANIZATION (PRIME CONSULTANT SUBCONSULTANT Individual Name of Owner Corporation State of Incorporation Partnership Indicate General or Limited Name of Parmers Joint Venture Joint Venture Participants BUSINESS LICENSE II OWNERSHIP INTERESTS American Asian or lndian or Pacific Alaskan Black Hispanic Islander Native White Wamen Number % Assets Owned JOINT VENTURE OWNERSHIP INTERESTS Minority Non-Minor/W Worram Number Percentage I certify that I am not an employee of the Alameda County Transportation Authority and that no member/partmr of this firm is employed by the Alameda County Transportation Authority Signature Firm Address Alameda County Transportation Authority ?agt E-22 Local Business Enterprise and Small Local Business Enterprise Program