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Home My WebLink AboutReso - CC - 069-2013RESOLUTION NO. 69-2013 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME CALIFORNIA. AUTHORIZING THE MAYOR TO EXECUTE A COOPERATIVE AGREEMENT BETWEEN THE CITY OF BURLINGAME, CALTRANS AND THE SAN MATEO COUNTY TRANSPORTATION AUTHORITY FOR THE CONSTRUCTION PHASE OF THE U.S. HIGHWAY 101/BROADWAY INTERCHANGE PROJECT The City Council (the "Council") of the City of Burlingame (the "City") does resolve as follows: WHEREAS, the U.S. Highway 101/Broadway Interchange is the oldest interchange along the San Mateo County peninsula region, originally built in 1947; WHEREAS, the construction of a new U.S. Highway 101/Broadway interchange would improve the Level of Service at the interchange and adjacent local streets; WHEREAS, a new U.S. Highway 101/Broadway interchange would increase traffic capacity to address current and future demands; WHEREAS, a new U.S. Highway 101/13roadway interchange would meet current seismic and structural standards; WHEREAS, the City has been working with Caltrans and the San Mateo County Transportation Authority on the design, environmental requirements, and construction details of a new interchange; WHEREAS, a Cooperative Agreement between the City, Caltrans, and the San Mateo County Transportation Authority is needed to establish each agency's responsibilities for the interchange construction work; and WHEREAS, the Cooperative Agreement identifies the responsibilities for construction support, project management duties, construction capital, and cost sharing which include billing, invoice and payment summaries. NOW, THEREFORE BE IT RESOLVED, DETERMINED, AND ORDERED BY THE COUNCIL, AS FOLLOWS: 1. That the Council hereby enters into a cooperative agreement between the City, Caltrans, and the San Mateo County Transportation Authority attached hereto as Exhibit A, and made part of this Resolution, and that said exhibit is hereby approved. 2. That the Council hereby orders City staff to proceed with the next steps in the project implementation l Ann Keighran, Mayor I, Mary Ellen Kearney, City Clerk of the City of Burlingame, do hereby certify that the foregoing Resolution was introduced at a regular meeting of the City Council held on the 19th day of August, 2013 and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: BAYLOCK, B OWNRIGG, DEAL, KEIGHRAN, NAGEL NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE Mary Ellen Kearne , City Clerk 04 -SM -101-16,3/17.06 EA: 23584 Agreement 04-2493 COOPERATIVE AGREEMENT This Agreement, effective on , is between the State of California, acting through its Department of Transportation, referred to as CALTRANS, and: San Mateo County Transportation Authority, apolitical subdivision of the State of California, referred to hereinafter as SMCTA, and City of Burlingame, a body politic and a municipal corporation of the State of California, referred to herein as CITY. RECITALS CALTRANS, SMCTA and CITY are herein after collectively referred to as PARTNERS. PARTNERS are authorized to enter into a cooperative agreement for improvements to the state highway system (SHS) per the California Streets and Highways Code sections 114 and 130. 2. San Mateo County voters, on June 7, 1988, adopted'Measure A,' authorizing the creation of SMCTA, empowering the SMCTA to impose a one half (1/2) percent retail transaction and use tax ordinance (sales tax) for a period of twenty (20) years, commencing on January 1, 1989, and approving a Transportation Expenditure Plan for the financing of transportation improvements in San Mateo County. County voters in 2004 reauthorized the SMCTA and the sales tax, and approved an updated, publicly developed expenditure plan for an additional twenty-five (25) years. Accordingly, the SMCTA will continue to fund vital transportation improvements, such as this PROJECT, until 2033. For the purpose of this Agreement, reconstruction of the US Highway 10I/Broadway Interchange, in the City of Burlingame will be referred to hereinafter as PROJECT. 4. All responsibilities assigned in this Agreement to complete the following PROJECT COMPONENTS will be referred to hereinafter as OBLIGATIONS: • CONSTRUCTION SUPPORT • CONSTRUCTION CAPITAL 5. This Agreement is separate from and does not modify or replace any other cooperative agreement or memorandum of understanding between PARTNERS regarding the PROJECT. 6. Prior to this Agreement: • SMCTA developed the Project Initiation Document. • SMCTA developed the Project Report. PACT Version 2012_06_11 Page 1 of 22 Agreement 04-2493 Project Number: 0400000684 • SMCTA developed the Plans, Specifications and Estimate (Cooperative Agreement No. 04-2331 between CALTRANS and SMCTA). • SMCTA developed the Right of Way Certification (Cooperative Agreement No. 04-2331 between CALTRANS and SMCTA). SMCTA prepared the environmental documentation for the PROJECT. 8. CALTRANS signed and approved the Initial Study on March 18, 2011 pursuant to CEQA and the Environmental Assessment on March 18, 2011 pursuant to NEPA. 9. In this Agreement capitalized words represent defined terms and acronyms. 10. PARTNERS hereby set forth the terms, covenants, and conditions of this Agreement, under which they will accomplish OBLIGATIONS. RESPONSIBILITIES 11. SMCTA is SPONSOR for 100% of PROJECT. 12. The FUNDING PARTNER(S) and the details of the funding commitments are documented in the latest FUNDING SUMMARY. 13. CALTRANS is IMPLEMENTING AGENCY for CONSTRUCTION. 14. CALTRANS is the CEQA lead agency for PROJECT. 15. CALTRANS is the NEPA lead agency for PROJECT. SCOPE Scope: General 16. PARTNERS will perform all OBLIGATIONS in accordance with federal and California laws, regulations, and standards; FHWA STANDARDS; and CALTRANS STANDARDS. 17. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will provide a Quality Management Plan (QMP) for that component as part of the PROJECT MANAGEMENT PLAN. 18. Any PARTNER may, at its own expense, have representatives observe any OBLIGATIONS performed by another PARTNER. Observation does not constitute authority over those OBLIGATIONS. 19. Each PARTNER will ensure that personnel participating in OBLIGATIONS are appropriately qualified or licensed to perform the tasks assigned to them. PACT Version 2012 06 11 2 of 22 Agreement 04-2493 Project Number: 0400000684 20. PARTNERS will invite each other to participate in the selection of any consultants who participate in OBLIGATIONS. 21. If WORK is done under contract (not completed by a PARTNER's own employees) and is governed by the California Labor Code's definition of "public works" (section 1720(a)), that PARTNER will conform to sections 1720 —1815 of the California Labor Code and all applicable regulations and coverage determinations issued by the Director of Industrial Relations. 22. IMPLEMENTING AGENCY for each PROJECT COMPONENT included in this Agreement will be available to help resolve WORK related problems generated by that component for the entire duration of PROJECT. 23. CALTRANS will issue, upon proper application, the encroachment permits required for WORK within SHS right of way. Contractors and/or agents, and utility owners will not perform activities within the SHS right of way without an encroachment permit issued in their name. 24. If any PARTNER discovers unanticipated cultural, archaeological, paleontological, or other protected resources during WORK, all WORK in that area will stop and that PARTNER will notify all PARTNERS within 24 hours of discovery. WORK may only resume after a qualified professional has evaluated the nature and significance of the discovery and a plan is approved for its removal or protection. 25. PARTNERS will hold all administrative drafts and administrative final reports, studies, materials, and documentation relied upon, produced, created, or utilized for PROJECT in confidence to the extent permitted by law and where applicable, the provisions of California Government Code section 6254.5(e) shall protect the confidentiality of such documents in the event that said documents are shared between PARTNERS. PARTNERS will not distribute, release, or share said documents with anyone other than employees, agents, and consultants who require access to complete PROJECT without the written consent of the PARTNER authorized to release them, unless required or authorized to do so by law. 26. If a PARTNER receives a public records request pertaining to OBLIGATIONS, that PARTNER will notify PARTNERS within five (5) working days of receipt and make PARTNERS aware of any disclosed public documents. PARTNERS will consult with each other prior to the release of any public documents related to the PROJECT. 27. If HM -1 or HM -2 is found during a PROJECT COMPONENT, IMPLEMENTING AGENCY for that PROJECT COMPONENT will immediately notify PARTNERS. 28. CALTRANS, independent of PROJECT, is responsible for any HM -1 found within the existing SHS right of way. CALTRANS will undertake HM MANAGEMENT ACTIVITIES related to H1\4-1 with minimum impact to PROJECT schedule. PACT Version 2012 06 11 3 of 22 Agreement 04-2493 Project Number: 0400000684 29. CITY, independent of PROJECT, is responsible for any HM -1 found within PROJECT limits and outside the existing SHS right of way. CITY will undertake or cause to be undertaken HM MANAGEMENT ACTIVITIES related to HM -1 with minimum impact to PROJECT schedule. 30. If HM -2 is found within PROJECT limits, the public agency responsible for the advertisement, award, and administration (AAA) of the PROJECT construction contract will be responsible for HM MANAGEMENT ACTIVITIES related to HM -2. 31. CALTRANS' acquisition or acceptance of title to any property on which any HM -1 or HM -2 is found will proceed in accordance with CALTRANS' policy on such acquisition. 32. PARTNERS will comply with all of the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements as those commitments and conditions apply to each PARTNER's responsibilities in this Agreement. 33. IMPLEMENTING AGENCY for each PROJECT COMPONENT will furnish PARTNERS with written monthly progress reports during the implementation of OBLIGATIONS in that component. 34. Upon OBLIGATION COMPLETION, ownership or title to all materials and equipment constructed or installed for the operations and/or maintenance of the SHS within SHS right of way as part of WORK become the property of CALTRANS. CALTRANS will not accept ownership or title to any materials or equipment constructed or installed outside SHS right of way. 35. IMPLEMENTING AGENCY for a PROJECT COMPONENT will accept, reject, compromise, settle, or litigate claims of any non -Agreement parties hired to do WORK in that component. 36. PARTNERS will confer on any claim that may affect OBLIGATIONS or PARTNERS' liability or responsibility under this Agreement in order to retain resolution possibilities for potential future claims. No PARTNER will prejudice the rights of another PARTNER until after PARTNERS confer on claim. 37. PARTNERS will maintain, and will ensure that any party hired by PARTNERS to participate in OBLIGATIONS will maintain, a financial management system that conforms to Generally Accepted Accounting Principles (GAAP), and that can properly accumulate and segregate incurred PROJECT costs and billings. 38. If FUNDING PARTNERS fund any part of OBLIGATIONS with state or federal funds, each PARTNER will comply, and will ensure that any party hired to participate in OBLIGATIONS will comply with the federal cost principles of 2 CFR, Part 225, and administrative requirements outlined in 49 CRF, Part 18. These principles and requirements apply to all funding types included in this Agreement. PACT Version 2012 0611 4 of 22 Agreement 04-2493 Project Number: 0400000684 39. PARTNERS will maintain and make available to each other all OBLIGATIONS -related documents, including financial data, during the term of this Agreement. 40. PARTNERS will retain all OBLIGATIONS -related records for three (3) years after the final voucher. 41. PARTNERS have the right to audit each other in accordance with generally accepted governmental audit standards. CALTRANS, the state auditor, FHWA (if PROJECT utilizes federal funds), SMCTA and CITY will have access to all OBLIGATIONS -related records of each PARTNER, and any party hired by a PARTNER to participate in OBLIGATIONS, for audit, examination, excerpt, or transcription. The examination of any records will take place in the offices and locations where said records are generated and/or stored and will be accomplished during reasonable hours of operation. The auditing PARTNER will be permitted to make copies of any OBLIGATIONS -related records needed for the audit. The audited PARTNER will review the draft audit, findings, and recommendations, and provide written comments within thirty (30) calendar days of receipt. Upon completion of the final audit, PARTNERS have thirty (30) calendar days to refund or invoice as necessary in order to satisfy the obligation of the audit. Any audit dispute not resolved by PARTNERS is subject to mediation. Mediation will follow the process described in the General Conditions section of this Agreement. 42. If FUNDING PARTNERS fund any part of PROJECT with state or federal funds, each FUNDING PARTNER will undergo an annual audit in accordance with the Single Audit Act of OMB Circular A-133. 43. If FUNDING PARTNERS fund any part of PROJECT with federal funds, any PARTNER that hires another party to participate in OBLIGATIONS will conduct a pre -award audit of that party in accordance with the Local Assistance Procedures Manual. 44. PARTNERS will not incur costs beyond the funding commitments in this Agreement. If IMPLEMENTING AGENCY anticipates that funding for WORK will be insufficient to complete WORK, IMPLEMENTING AGENCY will promptly notify SPONSOR. 45. If WORK stops for any reason, IMPLEMENTING AGENCY will place PROJECT right of way in a safe and operable condition acceptable to CALTRANS. 46. If WORK stops for any reason, each PARTNER will continue to implement all of its applicable commitments and conditions included in the PROJECT environmental documentation, permits, agreements, or approvals that are in effect at the time that WORK PACT Version 2012 06 11 5 of 22 Agreement 04-2493 Project Number: 0400000684 stops, as they apply to each PARTNER's responsibilities in this Agreement, in order to keep PROJECT in environmental compliance until WORK resumes. 47. Each PARTNER accepts responsibility to complete the activities that it selected on the SCOPE SUMMARY. Activities marked with `N/A" on the SCOPE SUMMARY are not included in the scope of this Agreement. Scope: Environmental Permits, Approvals and Agreements 48. Each PARTNER identified in the Environmental Permits table below accepts the responsibility to complete the assigned activities. If PARTNERS later determine that an environmental permit, approval or agreement is necessary PARTNERS will amend this Agreement to ensure completion and implementation of all environmental permits, approvals, and agreements. ENVIRONMENTAL PERNHTS Permit Coordinate Prepare Obtain Implement Renew Amend 404USACOE CALTRANS SMCTA CALTRANS CALTRANS CALTRANS CALTRANS 401RWQCB CALTRANS SMCTA CALTRANS CALTRANS CALTRANS CALTRANS NPDESSWRCB CALTRANS CALTRANS CALTRANS CALTRANS CALTRANS CALTRANS State Waste Discharge Requirements (Porter Cologne) RWQCB CALTRANS CALTRANS CALTRANS CALTRANS CALTRANS CALTRANS FESASection 7 USFWS CALTRANS SMCTA CALTRANS CALTRANS CALTRANS CALTRANS FESASection 7 NOAA/NMFS CALTRANS SMCTA CALTRANS CALTRANS CALTRANS CALTRANS EFH-NO"2NMFS CALTRANSSMCTA CALTRANS CALTRANS CALTRANS CALTRANS BCDCPermit CALTRANS SMCTA CALTRANS I CALTRANS I CALTRANS I CALTRANS 1602DFG CALTRANS ISMCTA ICALTRANS I CALTRANS I CALTRANS CALTRANS Scope: Construction 49. CALTRANS will not employ any firm to perform PROJECT construction management that prepared PROJECT plans, specifications, and estimate and CALTRANS will ensure that any such firm will not be employed by or under contract to the PROJECT construction contractor. However, PARTNERS may retain such a firm to check shop drawings, do soil foundation tests, test construction materials, and perform construction surveys. 50. CALTRANS will advertise, open bids, award, and approve the construction contract in accordance with the California Public Contract Code and the California Labor Code. By accepting responsibility to advertise and award the construction contract, CALTRANS also accepts responsibility to administer the construction contract. 51. CALTRANS will provide a RESIDENT ENGINEER and CONSTRUCTION SUPPORT staff that are independent of the design engineering company and construction contractor. PACT Version 2012_06_11 6 of 22 Agreement 04-2493 Project Number: 0400000684 52. CALTRANS will provide a landscape architect who will be responsible for all landscaping activities within the SHS. 53. CALTRANS will implement changes to the construction contract through contract change orders (CCOs). PARTNERS will review and concur on all CCOs over $50,000. 54. If FUNDING PARTNERS fund any part of OBLIGATIONS with state or federal funds CALTRANS will use a CALTRANS-approved construction contract claims process, will administer all claims through said process, and will be available to provide advice and technical input in any claims process. 55. If the lowest responsible construction contract bid is greater than the funding commitment to CONSTRUCTION CAPITAL, PARTNERS must be involved in determining how to proceed. If PARTNERS do not agree in writing on a course of action within fifteen (15) working days, the IMPLEMENTING AGENCY shall not award the construction contract. 56. CALTRANS will require the construction contractor to furnish payment and performance bonds naming CALTRANS as obligee and to carry liability insurance in accordance with CALTRANS specifications. 57. CALTRANS and the CITY will develop and execute a new or amended maintenance agreement prior to OBLIGATION COMPLETION. COST Cost: General 58. PARTNERS will document specific funding, billing, and payment details in a FUNDING SUMMARY. The FUNDING SUMMARY is incorporated and made an express part of this agreement. A valid FUNDING SUMMARY must be in place at all times until OBLIGATION COMPLETION. PARTNERS will create a new FUNDING SUMMARY each time the funding, billing and payment details of PROJECT change. The FUNDING SUMMARY is only valid after each FUNDING PARTNER signs and dates the FUNDING SUMMARY. The most current fully executed FUNDING SUMMARY supersedes any previous FUNDING SUMMARY created for this Agreement. Replacement of the FUNDING SUMMARY will not require an amendment to the body of this Agreement unless the rules of the new funds require it. Each PARTNER will designate a legally authorized representative to sign the FUNDING SUMMARY on its behalf. PACT Version 2012 0611 7 of 22 Agreement 04-2493 Project Number: 0400000684 59. PARTNERS may invoice the appropriate FUNDING PARTNER according to the terms documented in the FUNDING SUMMARY. 60. If SMCTA or CITY has received Electronic Funds Transfer (EFT) certification from CALTRANS then SMCTA and CITY will use the EFT mechanism and follow all EFT procedures to pay all invoices issued from CALTRANS. 61. Unless otherwise documented in the FUNDING SUMMARY, all fund types contributed to a PROJECT COMPONENT will be spent proportionately within that PROJECT COMPONENT. 62. Unless otherwise documented in the FUNDING SUMMARY, any savings recognized within a PROJECT COMPONENT will be credited or reimbursed, when allowed by policy or law, in proportion to the amount contributed to that PROJECT COMPONENT by each fund type. 63. After PARTNERS agree that all WORK is complete for a PROJECT COMPONENT, PARTNER(S) will submit a final accounting for all OBLIGATIONS costs. Based on the final accounting, PARTNERS will refund or invoice as necessary in order to satisfy the financial commitments of this Agreement. 64. If FUNDING PARTNERS fund OBLIGATIONS with American Recovery and Reinvestment Act (ARRA) funds, PARTNERS will adopt the terms, conditions, requirements, and constraints of the American Recovery and Reinvestment Act of 2009. 65. If FUNDING PARTNERS fund OBLIGATIONS with Proposition 1B Bond funds, PARTNERS will meet the requirements of Government Code Section 8879.20 et al. (Proposition 1 legislation), the governor's Executive Order 2007-S-02-07, and the California Transportation Commission (CTC) program guidelines for the applicable account. Right of way purchased using Proposition 1B Bond funds will become the property of CALTRANS, and any revenue from the sale of excess lands originally purchased with bond funds will revert to CALTRANS. 66. The cost of any awards, judgments, or settlements generated by OBLIGATIONS is an OBLIGATIONS cost. 67. CALTRANS, independent of PROJECT, will pay, or cause to be paid, all costs for HM MANAGEMENT ACTIVITIES related to HM -1 found within the existing SHS right of way. 68. CITY, independent of PROJECT, will pay or cause to be paid all costs for HM MANAGEMENT ACTIVITIES related to HM -1 found within PROJECT limits and outside the existing SHS right of way. 69. HM MANAGEMENT ACTIVITIES costs related to HM -2 are CONSTRUCTION SUPPORT and CONSTRUCTION CAPITAL costs. PACT Version 2012 06 11 8 of 22 Agreement 04-2493 Project Number: 0400000684 70. The cost to comply with and implement the commitments set forth in the environmental documentation is an OBLIGATIONS cost. 71. The cost of any legal challenges to the CEQA or NEPA environmental process or documentation is an OBLIGATIONS cost. 72. , CALTRANS will provide encroachment permits to PARTNERS, their contractors, consultants and agents, at no cost. 73. Fines, interest, or penalties levied against a PARTNER will be paid, independent of OBLIGATIONS cost, by the PARTNER whose actions or lack of action caused the levy. That PARTNER will indemnify and defend each other PARTNER. 74. If federal funds are used on PROJECT while this Agreement is active CALTRANS will administer all federal subvention funds documented on the FUNDING SUMMARY. 75. Travel, per diem, and third -party contract reimbursements are an OBLIGATIONS cost only after those hired by PARTNERS to participate in OBLIGATIONS incur and pay those costs. Payments for travel and per diem will not exceed the rates paid rank and file state employees under current California Department of Personnel Administration (DPA) rules current at the effective date of this Agreement. If SMCTA or CITY invoices for rates in excess of DPA rates, SMCTA or CITY will fund the cost difference and reimburse CALTRANS for any overpayment. 76. The cost of any engineering support performed by CALTRANS includes all direct and applicable indirect costs. CALTRANS calculates indirect costs based solely on the type of funds used to pay support costs. State and federal funds are subject to the current Program Functional Rate. Local funds are subject to the current Program Functional Rate and the current Administration Rate. The Program Functional Rate and Administration Rate are adjusted periodically. 77. If CALTRANS reimburses SMCTA or CITY for any costs later determined to be unallowable, SMCTA or CITY will reimburse those funds. 78. The cost to place PROJECT right of way in a safe and operable condition and meet all environmental commitments is an OBLIGATIONS cost. 79. Because EMPLEMENTING AGENCY is responsible for managing the scope, cost, and schedule of a project component, if there are insufficient funds available in this Agreement to place PROJECT right of way in a safe and operable condition, the appropriate IMPLEMENTING AGENCY accepts responsibility to fund these activities until such time as PARTNERS amend this Agreement. That IMPLEMENTING AGENCY may request reimbursement for these costs during the amendment process. PACT Version 2012 06 11 - 9 of 22 Agreement 04-2493 Project Number: 0400000684 80. If there are insufficient funds in this Agreement to implement applicable commitments and conditions included in the PROJECT environmental documentation, permits, agreements, and/or approvals that are in effect at a time that WORK stops, each PARTNER implementing commitments or conditions accepts responsibility to fund these activities, as they apply to each PARTNER's responsibilities, until such time as PARTNERS amend this Agreement. Each PARTNER may request reimbursement for these costs during the amendment process. 81. Except as otherwise provided in this Agreement, PARTNERS will pay invoices within thirty (3 0) calendar days of receipt of invoice. Cost: Environmental Permits, Approvals and Agreements 82. The cost of coordinating, obtaining, complying with, implementing, including renewing and amending resource agency permits, agreements, and approvals is an OBLIGATIONS cost. Cost: Construction Support 83. The cost of source inspection is an OBLIGATIONS cost. 84. The cost to maintain the SHS within PROJECT limits is an OBLIGATIONS cost until PARTNERS execute a separate maintenance agreement. Cost: Construction Capital 85. The cost of all SFM is a CONSTRUCTION CAPITAL cost. SCHEDULE 86. PARTNERS will manage the schedule for OBLIGATIONS through the work plan included in the PROJECT MANAGEMENT PLAN. GENERAL CONDITIONS 87. PARTNERS understand that this Agreement is in accordance with and governed by the Constitution and laws of the State of California. This Agreement will be enforceable in the State of California. Any PARTNER initiating legal action arising from this Agreement will file and maintain that legal action in the Superior Court of the county in which the CALTRANS district office that is signatory to this Agreement resides, or in the Superior Court of the county in which PROJECT is physically located. PACT Version 2012_06_11 . 10 of 22 Agreement 04-2493 Project Number: 0400000664 88. All OBLIGATIONS of CALTRANS under the terms of this Agreement are subject to the appropriation of resources by the Legislature, the State Budget Act authority, and the allocation of funds by the California Transportation Commission. 89. Neither SMCTA, CITY, nor any officer/ employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by CALTRANS and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CALTRANS under this Agreement. It is understood and agreed that CALTRANS, to the extent permitted by law, will defend, indemnify, and save harmless SMCTA, CITY and all of their officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CALTRANS and/or its agents under this Agreement. 90. Neither CALTRANS, CITY nor any officer/ employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by SMCTA and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon SMCTA under this Agreement. It is understood and agreed that SMCTA, to the extent permitted by law, will defend, indemnify, and save harmless CALTRANS, CITY and all of their officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation,, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by SMCTA and/or its agents under this Agreement. 91. Neither CALTRANS, SMCTA nor any officer/ employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that CITY, to the extent permitted by law, will defend, indemnify, and save harmless CALTRANS, SMCTA and all of their •officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY and/or its agents under this Agreement. 92. PARTNERS do not intend this Agreement to create a third party beneficiary or define duties, obligations, or rights in parties not signatory to this Agreement. PARTNERS do not intend this Agreement to affect their legal liability by imposing any standard of care for fulfilling OBLIGATIONS different from the standards imposed by law. 93. PARTNERS will not assign or attempt to assign OBLIGATIONS to parties not signatory to this Agreement. 94. PARTNERS will not interpret any ambiguity contained in this Agreement against each other. PARTNERS waive the provisions of California Civil Code section 1654. PACT Version 2012 06 11 11 of 22 Agreement 04-2493 Project Number: 0400000684 95. A waiver of a PARTNER's performance under this Agreement will not constitute a continuous waiver of any other provision. An amendment made to any article or section of this Agreement does not constitute an amendment to or negate all other articles or sections of this Agreement. 96. A delay or omission to exercise a right or power due to a default does not negate the use of that right or power in the future when deemed necessary. 97. If any PARTNER defaults in its OBLIGATIONS, a non -defaulting PARTNER will request in writing that the default be remedied within thirty (30) calendar days. If the defaulting PARTNER fails to do so, the non -defaulting PARTNER may initiate dispute resolution. 98. PARTNERS will first attempt to resolve Agreement disputes at the PROJECT team level. If they cannot resolve the dispute themselves, the CALTRANS district director and the executive officer of SMCTA and CITY will attempt to negotiate a resolution. If PARTNERS do not reach a resolution, PARTNERS' legal counsel will initiate mediation. PARTNERS agree to participate in mediation in good faith and will share equally in its costs. Neither the. dispute nor the mediation process relieves PARTNERS from full and timely performance of OBLIGATIONS in accordance with the terms of this Agreement. However, if any PARTNER stops fulfilling OBLIGATIONS, any other PARTNER may seek equitable relief to ensure that OBLIGATIONS continue. Except for equitable relief, no PARTNER may file a civil complaint until after mediation, or forty-five (45) calendar days after filing the written mediation request, whichever occurs first. PARTNERS will file any civil complaints in the Superior Court of the county in which the CALTRANS district office signatory to this Agreement resides or in the Superior Court of the county in which PROJECT is physically located. The prevailing PARTNER will be entitled to an award of all costs, fees, and expenses, including reasonable attorney fees as a result of litigating a dispute under this Agreement or to enforce the provisions of this article including equitable relief. 99. PARTNERS maintain the ability to pursue alternative or additional dispute remedies if a previously selected remedy does not achieve resolution. 100. If any provisions in this Agreement are found by a. court of competent jurisdiction to be, or are in fact, illegal, inoperative, or unenforceable, those provisions do not render any or all other Agreement provisions invalid, inoperative, or unenforceable, and those provisions will be automatically severed from this Agreement. 101. PARTNERS intend this Agreement to be their final expression and supersedes any oral understanding or writings pertaining to OBLIGATIONS. PACT Version 2012_06_11 12 of 22 Agreement 04-2493 Project Number: 0400000684 102. If during performance of WORK additional activities or environmental documentation is necessary to keep PROJECT in environmental compliance, PARTNERS will amend this Agreement to include completion of those additional tasks. 103. Except as otherwise provided in the Agreement, PARTNERS will execute a formal written amendment if there are any changes to OBLIGATIONS. 104. Partners agree to sign a COOPERATIVE AGREEMENT CLOSURE STATEMENT to terminate this Agreement. However, all indemnification, document retention, audit, claims, environmental commitment, legal challenge, maintenance and ownership articles will remain in effect until terminated or modified in writing by mutual agreement. 105. The following documents are attached to, and made an express part of this Agreement: SCOPE SUMMARY. DEFINITIONS ARRA — American Recovery and Reinvestment Act of 2009 CALTRANS STANDARDS — CALTRANS policies and procedures, including, but not limited to, the guidance provided in the Guide to Capital Project Delivery Workplan Standards (previously known as WBS Guide) available at http://www.dot.ca.gov/hq/projmgmt/guidance.htm. CEQA (California Environmental Quality Act) — The act (California Public Resources Code, sections 21000 et seq.) that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those significant impacts, if feasible. CFR (Code of Federal Regulations) — The general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government CONSTRUCTION CAPITAL — See PROJECT COMPONENT. CONSTRUCTION SUPPORT — See PROJECT COMPONENT. COOPERATIVE AGREEMENT CLOSURE STATEMENT — A document signed by PARTNERS that verifies the completion of all OBLIGATIONS included in this Agreement and in all amendments to this Agreement. FHWA — Federal Highway Administration FHWA STANDARDS — FHWA regulations, policies and procedures, including, but not limited to, the guidance provided at www.fhwa.dot.gov/tonics.htm. PACT Version 2012_06_11 13 of 22 Agreement 04-2493 Project Number: 0400000684 FUNDING PARTNER — A PARTNER, designated in the FUNDING SUMMARY, that commits a defined dollar amount to fulfill OBLIGATIONS. Each FUNDING PARTNER accepts responsibility to provide the funds it commits in this Agreement. FUNDING SUMMARY — An executed document that lists the funding, billing, and payment commitments. Commitments include, but are not limited to, FUNDING PARTNER(S), fund source, fund type, payment method, invoice frequency, deposit amounts, and PROJECT COMPONENT(S) in which funds are to be spent. Funds listed on the FUNDING SUMMARY are "not -to -exceed" amounts for each FUNDING PARTNER. GAAP (Generally Accepted Accounting Principles) — Uniform minimum standards and guidelines for financial accounting and reporting issued by the Federal Accounting Standards Advisory Board that serve to achieve some level of standardization. See http://www.fasab.gov/accepted.htmI. HM -1— Hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law whether it is disturbed by PROJECT or not. HM -2 — Hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by PROJECT. HM MANAGEMENT ACTIVITIES - Management activities related to either HM -1 or HM -2 including, without limitation, any necessary manifest requirements and disposal facility designations. INIPLEMENTING AGENCY — The PARTNER is responsible for managing the scope, cost, and schedule of a PROJECT COMPONENT to ensure the completion of that component. NEPA (National Environmental Policy Act of 1969) — This federal act establishes a national policy for the environment and a process to disclose the adverse impacts of projects with a federal nexus. OBLIGATION COMPLETION — PARTNERS have fulfilled all OBLIGATIONS included in this Agreement, and all amendments to this Agreement, and have signed a COOPERATIVE AGREEMENT CLOSURE STATEMENT. OBLIGATIONS — All responsibilities included in this Agreement. OMB (Office of Management and Budget) — This federal office oversees the preparation of the federal budget and supervises its administration in Executive Branch agencies. PARTNER — Any individual signatory party to this Agreement. PARTNERS — The term that collectively references all of the signatory agencies to this Agreement. This term only describes the relationship between these agencies to work PACT Version 2012_06_11 14 of 22 Agreement 04-2493 Project Number: 0400000684 together to achieve a mutually beneficial goal. It is not used in the traditional legal sense in which one PARTNER's individual actions legally bind the other PARTNER. PROJECT COMPONENT — A distinct portion of the planning and project development process of a capital project as outlined in California Government Code, section 14529(b). • PID (Project Initiation Document) — The activities required to deliver the project initiation document for PROJECT. • PA&ED (Project Approval and Environmental Document) — The activities required to deliver the project approval and environmental documentation for PROJECT. • PS&E (Plans, Specifications, and Estimate) — The activities required to deliver the plans, specifications, and estimate for PROJECT. • R/W (Right of Way) SUPPORT —The activities required to obtain all property interests for PROJECT. • R/W (Right of Way) CAPITAL — The funds for acquisition of property rights for PROJECT. ' • CONSTRUCTION SUPPORT — The activities required for the administration, acceptance, and final documentation of the construction contract for PROJECT. • CONSTRUCTION CAPITAL — The funds for the construction contract. PROJECT MANAGEMENT PLAN —A group of documents used to guide a project's execution and control throughout that project's lifecycle. QMP (Quality Management Plan) — An integral part of the PROJECT MANAGEMENT PLAN that describes IMPLEMENTING AGENCY'S quality policy and how it will be used. QC/QAP (QUALITY CONTROL/QUALITY ASSURANCE PROGRAM) - Caltrans quality control and quality assurance procedures for all environmental documents as described in the Jay Norvell Memos dated July 2, 2007 (available at http://wv,rw.dot.ca.gov/ser/memos.htn#LinkTarget This also includes the independent judgment analysis and determination under CEQA that the environmental documentation meets CEQA Guideline requirements. RESIDENT ENGINEER — A civil engineer licensed in the State of California who is responsible for construction contract administration activities. Said engineer must be independent of the design engineering company and the construction contractor. SCOPE SUMMARY — The attachment in which each PARTNER designates its commitment to specific scope activities within each PROJECT COMPONENT as outlined by the Workplan StandardsGuide for the Delivery of Capital Projects available at http://www.dot.ca.gov/hq/projmgtnt/guidance.htm. SFM (STATE FURNISHED MATERIAL) — Any materials or equipment supplied by CALTRANS. SHS (State Highway System) — All highways, right of way, and related facilities acquired, laid out, constructed, improved, or maintained as a state highway pursuant to constitutional or legislative authorization. PACT Version 2012 O6 11 15 of 22 Agreement 04-2493 Project Number: 0400000684 SPONSOR — Any PARTNER that accepts the responsibility to establish scope of PROJECT and the obligation to secure financial resources to fund PROJECT. SPONSOR is responsible for adjusting the PROJECT scope to match committed funds or securing additional funds to fully fund the PROJECT scope. If a PROJECT has more than one SPONSOR, funding adjustments will be made by percentage (as outlined in Responsibilities). Scope adjustments must be developed through the project development process and must be approved by CALTRANS as the owner/operator of the SHS. WORK — All scope activities included in this Agreement. CONTACT INFORMATION The information provided below indicates the primary contact information for each PARTNER to this Agreement. PARTNERS will notify each other in writing of any personnel or location changes. Contact information changes do not require an amendment to this Agreement. The primary Agreement contact person for CALTRANS is: Al B Lee, Project Manager 111 Grand Avenue . Oakland, California 94612 Office Phone: (510) 286-7211 Mobile Phone: (510) 715-8663 Email: A1.B.Lee@dot.ca.gov The primary Agreement contact person for SMCTA is: Jim McKim, Project Manager 1250 San Carlos Avenue San Carlos, CA 94070 Office Phone: (650) 508-7944 Email: mckimj@samtrans.com The primary Agreement contact person for CITY is: Augustine Chou 501 Primrose Rd Burlingame, CA 94010 Office Phone: (650) 558-7236 Email: AChou@burlingame.org PACT Version 2012_06_11 16 of 22 Agreement 04-2493 Project Number: 0400000684 SIGNATURES PARTNERS declare that: 1. Each PARTNER is an authorized legal entity under California state law. 2. Each PARTNER has the authority to enter into this Agreement. 3. The people signing this Agreement have the authority to do soon behalf of their public agencies. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION Helena (Lenka) Culik-Caro Deputy District Director - Design CERTIFIED AS TO FUNDS: 0 Kevin M. Strough District Budget Manager PACT Version 2012 06 11 17 of 22 SAN MATEO COUNTY TRANSPORTATION AUTHORITY M. J. Scanlon Executive Director ATTEST: 0 Martha Martinez Authority Secretary APPROVED AS TO FORM AND PROCEDURE: al David Miller Attorney Agreement 04-2493 Project Number: 0400000684 PACT Version 2012_06_11 18 of 22 CITY OF BURLINGAME By: Ann Keighran Mayor ATTEST: Ra Mary Ellen Kearney City Clerk Kathleen Kane City Attorney Agreement 04-2493 Project Number. 0400000684 PACT Version 2012 06 11 19 of 22 Agreement 04-2493 Project Number: 0400000684 SCOPE SUNEV ARY WBS Level Description N Q Q U F U N } U Q Z 4 5 6 7 8 5 270 Construction Engineering and General Contract Administration X 10 Construction Staking Package and Control X Constriction Staking Package X Project Control for Construction X Construction Stakes X Slope Stakes X Rough Grade Stakes X Final Grade Stakes X Drainage and Minor Structure Stakes X Miscellaneous Stakes X Photogrammetric Product for Construction X Ground Stakes for Major Structure X ro Superstructure Stakes for Major Structure X Construction Engineering Work X 05 Resident Engineer's File Review X 10 Project Plans, Special Provisions, and Estimate Review X 15 Contract Pay Quantities X 20 Lines and Grades Control X 25 Contractors' Falsework Submittals Review X 30 Contractors' Trenching and Shoring Submittals Review X 35 Shop Plans Review X 40 Cost Reduction Incentive Proposals Review X 45 Contractors' Water Pollution Control Program Review X 50 Technical Support X 99 Other Construction Engineering Products X 25 Construction Contract Administration Work X 05 Secured Lease for Resident Engineer Office Space or Trailer X 10 Set Up Construction Project Files X 15 Pre -Construction Meeting X 20 Progress Pay Estimates X 25 Weekly Statement of Working Days X 30 Construction Project Files and General Field Office Clerical Work X 35 Labor Compliance Activities I X 40 Approved Subcontractor Substitutions X 45 Coordination X PACT Version 2012_06_11 20 of 22 Agreement 04-2493 Project Number: 0400000684 PACT Version 2012 06 11 21 of 22 50 Civil Rights Contract Compliance X 99 Other Construction Contract Administration Products X 30 Contract Item Work Inspection X 05 Photographed Jobsite and Contractors' Operations X 10 Inspection of Contractors' Work for Compliance X 15 Contractors' Operations Relative to Safety Requirements Documentation X 20 Daily Diary of Contract Operations X 25 Punch List X 35 Construction Material Sampling and Testing X 05 Materials Sampling and Testing for Quality Assurance X 10 Plant Inspection for Quality Assurance X 15 Independent Assurance Sampling and Testing X 20 Source Inspection X 40 Safety and Maintenance Reviews X 45 Relief From Maintenance Process X 55 Final Inspection and Acceptance Recommendation X 60 Plant Establishment Administration X 65 Transportation Management Plan Implementation During Construction X 75 NOTE: This WBS element is address in the text of this cooperative agreement. Resource Agency Permit Renewal and Extension Requests X 80 Long -Term Environmental Mitigation/Mitigation MonitoringDuringConstruction Contract X 99 Other Construction Engineering and General Contract Administration x 5 275 Construction Engineering and General Contract Administration of Structures Work X 10 Office Administration Work for Structures X 20 Field Administration Work for Structures X 30 Contract Change Order Inspection for Structures Work X 40 Safety Tasks for Structures Work X 5 285 Contract Change Order Administration X 05 Contract Change Order Process X 05 Need for Contract Change Order Determination X 10 Draft Contract Change Order X 15 Contract Change Order Approval X 20 Payments for Contract Change Order Work X 10 Functional Support X 05 Field Surveys for Contract Change Order X 10 Staking for Contract Change Order X 15 Other Functional Support X 5 290 Resolve Contract Claims X O5 Analysis of Notices of Potential Claims X 10 Supporting Documentation and Responses to Notices of Potential Claims X PACT Version 2012 06 11 21 of 22 Agreement 04-2493 Project Number: 0400000684 PACT Version 2012_06_11 22 of 22 15 Reviewed and Approved Claim Report X 20 District Claim Meeting or Board of Review X 25 Arbitration Hearing X 30 Negotiated Claim Settlement X 35 Technical Support X 5 295 Accept Contract, Prepare Final Construction Estimate, and Final Report X 05 Processed Estimate After Acceptance X 10 Proposed Final Contract Estimate X 15 As -Built Plans X 20 Project History File X 25 Final Report X 30 Processed Final Estimate X 35 Certificate of Environmental Compliance X 40 Long Term Environmental Mitigation/Mitigation Monitorin After Construction Contract Acceptance X 45 Post -Construction Traffic Operations Activities X 05 speed Survey Records X 05 Speed Survey X 10 Signed Speed Survey X Commission TMS Elements X 99 H Other Accept Contract( Prepare Final Construction Estimate and Final Report X 4 3D0 I I I FINAL RIGHT OF WAY ENGINEERING X 05 Right of Way Monumentation X 05 Right of Way Monumentation Survey X 10 Filed Monumentation Record of Survey X 10 Trial Exhibits and Testimony X 25 Relinquishment and Vacation Maps X 30 Deed Package for Excess Land Transactions X 35 Right of Way Record Map X PACT Version 2012_06_11 22 of 22 FUNDING SUMMARY Number 1 Project Number: 0400000684 Agreement: 04-2493 Part I — FUNDING SUMMARY table Funding Source Funding Partner Fund Type - CON Capital CON Support Totals by Fund Type IMPLEMENTING AGENCY- > CALTRANS STATE SMCTA- STIP/RIP $11,000,000 $8,000,000 $19,ODO,000 LOCAL CITY City $5,000,000 $0 $5,000,000 LOCAL SMCTA Local $32,387,000 $0 $32,387,000 FEDERAL SMCTA *CMAQ $3,613,000 0 $3,613,000 Totals by Component $52,000,000 $8,000,000 $60,000,000 * To be subvented to CALTRANS This table represents fall funding of each PROJECT COMPONENT m Agreement 04-2493. Billing and payment details follow. Part H — Billing and Payment Details Cost: CONSTRUCTION SUPPORT 1. Each PARTNER listed below will do work for CONSTRUCTION SUPPORT as described in the SCOPE SUMMARY of this Agreement: • CALTRANS Therefore, based on the funding types displayed in the FUNDING SUMMARY table for this PROJECT COMPONENT: • No invoicing will occur for this PROJECT COMPONENT. PACT 10.1E 2012_D6_11 1 of 6 FUNDING SUMMARY Number 1 Project Number. 0400000684 Agreement: 04-2493 Cost: CONSTRUCTION CAPITAL 2. CALTRANS will invoice SMCTA for the actual cost of any SFM as a CONSTRUCTION CAPITAL cost. After PARTNERS agree that all WORK is complete, CALTRANS will submit a final accounting for all SFM costs. Based on the final accounting, PARTNERS will refund or invoice as necessary in order to satisfy the financial commitments of this Agreement. CALTRANS is the IMPLEMENTING AGENCY for CONSTRUCTION CAPITAL. Therefore, based on the funding types displayed in the FUNDING SUMMARY table for this PROJECT COMPONENT: • CALTRANS may invoice SMCTA • CALTRANS may invoice CITY • CALTRANS will draw from the state and/or federal funds shown in the FUNDING SUMMARY table for this PROJECT COMPONENT. PARTNERS will exchange funds for actual costs. • CALTRANS will invoice SMCTA for a $900,000 initial deposit after execution of this Agreement and thirty (30) working days prior to the construction contract bid advertisement date. This deposit represents one (1) months' estimated capital costs. Thereafter, CALTRANS will submit to SMCTA monthly invoices for estimated monthly costs based on the prior month's actual expenditures. Detailed supporting information will be provided within seven O working days of invoice. SMCTA will electronically transfer (wire) funds to CALTRANS within five (5) working days of receipt of invoice. SMCTA's transfer of funds will not be construed as acceptance of said charges. If SMCTA does not transfer the money within five (5) working days, CALTRANS may require SMCTA to make all subsequent payments as deposits in advance of WORK. SMCTA will notify CALTRANS of a disputed invoice in writing no later than 30 days of receipt of the detailed supporting information. PACT 10.1 E 2012 06 11 2 of 6 FUNDING SUMMARY Number 1 Project Number: 0400000684 Agreement: 04-2493 Upon receipt of a claim, CALTRANS has seven (7) working days to contest said claim. Upon resolution, CALTRANS will make the appropriate credit or debit to SMCTA, reflected on the next invoice. After PARTNERS agree that all WORK is complete, CALTRANS will submit a final accounting for all OBLIGATIONS costs. Based on the final accounting, PARTNERS will refund or invoice as necessary in order to satisfy the financial . commitments of this agreement. • CALTRANS will invoice CITY for a $125,000 initial deposit after execution of this Agreement and thirty (3 0) working days prior to the construction contract bid advertisement date. This deposit represents one (1) months' estimated capital costs. Thereafter, CALTRANS will submit to CITY monthly invoices for estimated monthly costs based on the prior month's expenditures. After PARTNERS agree that all WORK is complete, CALTRANS will submit a final accounting for all OBLIGATIONS costs. Based on the final accounting, PARTNERS will refund or invoice as necessary in order to satisfy the financial commitments of this agreement. PACT 10.1 E 2012 06 11 3 of 6 FUNDING SUMMARY Number 1 Project Number: 0400000684 Agreement: 04-2493 Part III — Signature Page STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION " weism G� Date: Al B. Lee Project Manager District Budget Manager HQ Accounting PACT 10.1 E 2012 06 11 - 4 of 6 FUNDING SUMMARY Number 1 Project Number: 0400000684 Agreement: 04-2493 SAN MATEO COUNTY TRANSPORTATION AUTHORITY 10 Jim McKim Project Manager Date: PACT 10.1E 2012 06 11 5 of 6 FUNDING SUMMARY Number 1 Project Number: 0400000684 Agreement: 04-2493 CITY OF BURLINGAME M Syed Murtaza Director Of Public Works Date: PACT 10.1 E 2012_06_11 6 of 6