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CONTRACT 2966 Other 29 6 m GRANT NUMBER CSA-03-0594 AGMT# MCli1.PIELSEG AGREEMENT This Agreement is dated as of November 1, 2001, and is by and between the City of El Segundo(the "Agency") and the Los Angeles County Metropolitan Transportation Authority ("MTA"). RECITALS: A. On October 9, 2000, Congress appropriated $2,079,661.00 in federal funds, Section 5309 of the Transportation Equity Act for the 2150 Century (TEA-21), (the "Federal Funds") for an intermodal transit facility in the City of El Segundo, CA(the"Project")for Fiscal Year 2001. B. As the Agency is currently not able to apply for and receive these federal funds, the MTA will prepare and submit a grant application to the Federal Transit Administration (FTA) on the Agency's behalf, and will enter into a grant agreement with FTA (the "Grant"). Before submitting the grant application, MTA intends to submit a draft grant application to Agency for Agency's prior approval. C. The total cost for the Project described on the Scope of Work attached as Exhibit "A" hereto is estimated to be$2,599,576.00("Estimated Cost"). D. The Agency has agreed to provide the required federal match (the "Match") and any additional funding required to complete the project. E. MTA assumes no responsibility for the funding of any portion of the Project. F. Pursuant to the above, the MTA Board action of October 25, 2001, authorized the Chief Executive Officer or the Chief Executive Officer's Designee to enter into agreements with interested cities and local agencies in Los Angeles County for the MTA to act as the pass-through agency for FTA funds on their behalf. The Agency is located in Los Angeles County and has requested the MTA act as a designated grant recipient for FTA funds on its behalf. G. The Agency understands Federal Funds provided herein are contingent upon the FTA's approval of the grant application and are subject to the federal lapsing policy. Also, the Agency must have obtained the environmental clearance required by federal regulations. H. The parties desire to execute this Agreement to authorize MTA to serve as the pass-through agency, on behalf of the Agency,for the Federal Funds. Page 1 of 11 AGREEMENT 1. PAYMENT OF FITNUS. 1.1 To the extent MTA receives Federal Funds pursuant to the Grant, MTA shall forward such Federal Funds to the Agency pursuant to the Grant and this Agreement. 1.2 Payments to the Agency will be processed by MTA within a reasonable time period, but in no event more than sixty (60) calendar days, after receipt of a Request for Reimbursement meeting the requirements of Section 4. 1.3 The Agency shall be subject to, and shall comply with, all requirements of the Grant and other applicable requirements of the Federal Department of Transportation (USDOT), Federal Department of Labor (DOL), FTA and of the MTA as required by MTA to fulfill its responsibilities as the grantee under the Grant, and as pass-through agency. 2. MTA COSTS 2.1 For services rendered under this Agreement, the Agency agrees to pay the MTA an amount equal to one percent 5% of the Agency's award/earmark, not to exceed $103,983.00 ("the MTA costs"). 2.2 Payment shall be made by the Agency on the basis of work performed by the MTA in accordance with the following schedule: (a)Develop FTA and DOL checklist information 20% (b)Prepare draft grant application 20% (c)Process application to SCAG and State Clearinghouse 20% (d) Submit application to FTA for approval 20% (e) Obtain grant approval 20% 2.3 Upon completion of each payment milestone listed within subsection 2.2 above, the MTA shall submit an invoice to the Agency, specifying those services that have been completed. The Agency shall remit the invoiced amount to the MTA within a reasonable time period of its receipt,not to exceed sixty(60)calendar days. 3. TERM. The term of this Agreement shall commence upon the date first referenced above, and shall terminate upon termination of the Grant, unless terminated earlier as provided herein. Last expenditure date under this Agreement is three years after the FTA grant award date. 4. HEOIJEST FOR HEIMBURSEMENI. 4.1 The Agency agrees to contribute at least the statutorily or other required local contribution of matching funds (other than federal funds), if any is specified within this Agreement or any attachments hereto,toward the actual costs of the Project. Page 2 of 11 C:\windows\TEMP\pass_through_agreement,doe 4.2 Not more frequently than once a month, but at least quarterly, the Agency will prepare and submit to the MTA a certified Request for Reimbursement for actual allowable Project costs incurred and paid for by the Agency consistent with the Scope of Work document. Advance payments by the MTA are not allowed. 4.3 Each Request for Reimbursement will report the total of Project expenditures and will specify the percent and amount of FTA funds to be reimbursed. The Request for Reimbursement shall be accompanied by a report describing the overall work status and progress on Project tasks. 4.4 If applicable, the first Request for Reimbursement shall also be accompanied by a report describing any tasks specified in the Scope of Work document which were accomplished prior to the effective date of this Agreement, which costs could be credited toward the required local contribution described herein provided that MTA has received prior federal approval for such expenditures. 4.5 The MTA will retain 10% of the invoice amount until the MTA has evaluated the Agency's performance and made a determination that all contract requirements under this Agreement have been satisfactorily fulfilled. 4.6 Eligible project costs are described in the Grant and FTA guidelines. 4.7 Request for Reimbursement must be submitted on the Agency's letterhead. 4.8 Agency should consult with MTA staff for questions regarding non- reimbursable expenses 4.9 Total payments shall not exceed the federal funds awarded. 4.10 If any amounts paid to the Agency are disallowed or not reimbursed by the FTA for any reason, the Agency shall remit to MTA the disallowed or non-reimbursed amount(s) within 30 days from receipt of MTA's notice. All payments made by MTA hereunder are subject to the audit provisions contained herein and within the Grant. 5. EFFECTIVE DATE AND START OF REIMBURSABLE ACTIVITIES. Unless written notification is otherwise provided by MTA, the effective date and start date of reimbursable activities is the FTA grant award date. Actual reimbursement of eligible work cannot occur until the MTA and the Agency execute this agreement and the MTA has entered into the grant agreement. 6. EEDERAI.REQUIREMENTS. 6.1 The Agency shall utilize the Federal Funds and Match to complete the Project as described in the Scope of Work and in accordance with the Grant requirements of the Page 3 of 11 C.\windows\TEMMpass_through_agreement doc d � FTA and this Agreement. 6.2 Agency's general and administration direct costs may be invoiced for up to 5% of the actual grant-eligible project costs. 6.3 All FTA requirements and guidelines as summarized in the FTA Master Agreement are incorporated by reference herein as part of this Agreement. These requirements include,but are not limited to: (a) assurances of legal authority. (b) certification of non-debarment, suspension or termination. (c) certification of a drug-free workplace. (d) intergovernmental review. (e) Civil Rights review,including Title VI Program review. (f) Disadvantaged Business Enterprise (DBE) assurances. (g) Disability nondiscrimination(ADA). (h) Office of Management and Budget(OMB) certification. (i) Lobbying certifications. 0) Buy America requirements. (k) Bus testing requirements. (1) NEPA environmental review. (m) Single audit requirements. (n) Circular 9300.1A(Section 5309). (o) Circular 5010.1C(Grants Management). (p) Circular 4220.1D (Third-Party Contracting). 6.4 MTA shall not be responsible to provide any funding to substitute for the Federal Funds in the event the Grant of Federal Funds is withdrawn, recalled or not appropriated for any reason. In the event the Grant is closed, the Agency will reimburse MTA any funds paid that were no longer available in the FTA grant award. 6.5 Should FTA or DOL require amendments, revisions, deletions of, or additions to the provisions contained within this Agreement, Agency agrees to promptly execute all such amendments, revisions, deletions, or additions, as necessary, to comply with FTA's and DOL's requirements. 7. REPORTIN ANWAUDITHEOUIREMENTS. 7.1 The Agency shall be subject to and shall comply with all applicable requirements of the MTA, FTA and DOL regarding Project reporting and audit requirements. The Agency shall use the FTA Grant number CA-03-0.594 on all correspondence. 7.2 The Agency shall submit the following Reports and Certifications to the MTA for the duration of the Project: Page 4 of 11 2 r Quarterly Narrative and Financial Report on Project Progress 7.3 MTA, FTA and/or their respective designee, in order to fulfill their respective responsibilities as grantee of the Grant and as the pass-through agency and as the grantor of the federal grant, shall have the right to conduct audits of the Project, as needed, such as financial and compliance audits and performance audits. The Agency shall establish and maintain proper accounting procedures and cash management records and documents in accordance with Generally Accepted Accounting Principles (GAAP) as applied to governmental agencies. The Agency shall reimburse MTA for any expenditure not in compliance with the Scope of Work or other terms and conditions of this Agreement, other applicable requirements of the MTA or requirements of the Grant, or other applicable requirements of the FTA. MTA shall use the Federal Acquisition Regulations (FAR) standards in determining the reasonableness of costs incurred. MTA shall have the right to conduct a final MTA audit using an outside auditing firm. The findings of that MTA audit will be final. 7.4 The Agency shall retain all original records and documents related to the Project for a period of three years after final payment or in accordance with the Grant, whichever time period is greater. 7.5 The Agency shall obtain the services of an independent auditor to conduct a single audit of the Project each year in conformance with the provisions of OMB Circular A-133. The Agency shall submit a copy of each single audit to the MTA within 30 days of its completion. 8. MIND A V A I A H11,11' . This Agreement is a pass-through Agreement of FTA grant funds. The Grant consists of a 2001 earmark, and is subject to the terms and conditions of this Agreement and the Grant and the applicable requirements of the MTA and FTA. This Agreement does not imply nor obligate any funding commitment by MTA for the Project. 9. EXPEN121111HE AND DISPOSIDON OF FUNDS. 9.1 The expenditure and disposition of the Federal Funds by the Agency shall be subject to and in accordance with the terms and conditions of this Agreement, the Grant and the applicable requirements of the MTA and FTA. The Agency shall not utilize the Federal Funds in any way or on any project other than that specified in this Agreement and the Grant. 9.2 Programmed Budget (the "Programmed Budget") for the sources of funds for the Project is attached to this Agreement as Exhibit`B". 9.3 ONLY FOR CONSTRUCTION PROJECTS At the substantial completion of the Project, the Agency will submit to MTA a Notice of Substantial Completion when (1) the contractor has completed all of the Work, except punch list items, and (2) the Agency has ensured that the Work was performed in accordance with all applicable Project requirements. Within a reasonable time thereafter, the Agency and MTA will inspect the Project Work to ascertain substantial completion and to agree on the punch list. The Agency shall ensure that all punch list items are completed and shall submit a Request for Final Acceptance. Within 30 days thereafter Page 5 of 11 C:lwindows\TEMP\pass_through_agreement doc MTA will inspect the Project Work. If accepted, the Agency shall obtain and submit to MTA releases from its contractors and subcontractors. Upon approval of the releases, MTA will release any retention and make final payment to Agency. If the Work or releases are not accepted or approved by MTA, the Agency shall perform, or have its contractors perform, such acts as are necessary to obtain acceptance of the Work or releases. ONLY FOR NON-CONSTRUCTION PROJECTS At the substantial completion of the Project, the Agency will submit to MTA a Notice of Substantial Completion when(1)the agency has completed all procurement(s) contained within the Scope of Work, and(2) the Agency has ensured that the procurement(s) was/were performed in accordance with all applicable Project requirements. Within a reasonable time thereafter, the Agency and MTA will meet to conduct a site visit to verify that all vehicles/equipment have been received by the Agency; that the vehicles/equipment have been placed in service; that the provider(s) have been paid; and that the Agency's Project and/or Procurement files are in order, and to agree on a punch list. The Agency shall ensure that all punch list items are completed and shall submit a Request for Final Acceptance. Within 30 days thereafter, MTA will meet with the Agency to re-inspect the Project Work. If the Work is not accepted or approved by MTA, the Agency shall perform such acts as are necessary to obtain acceptance of the Work. Once MTA accepts the Work, MTA will release any retention and make final payment to Agency. 9.4 The Agency shall be responsible for any and all cost overruns for the Project as specified in the grant application submitted by MTA. Further, the Agency shall be responsible for covering operating deficits through long-term stable and reliable sources of revenue and to maintain and operate the federally funded Project. 9.5 Upon completion of the Project described in the Scope of Work and disposition of the 10%retention, any unused Federal Funds shall revert back to the FTA. 9.6 The Agency shall address all correspondence to the FTA regarding this Project through the MTA Project Manager. 9.7 No material changes, as determined by the MTA in its reasonable discretion and subject to the final discretion of the FTA, to the Programmed Budget or the Scope of Work shall be funded or allowed without an amendment to this Agreement approved and signed by the MTA Chief Executive Officer or his designee and an amendment to the Grant evidencing the FTA's acceptance of such material change. The Agency shall give advance notice to the MTA of all proposed changes to the Programmed Budget or Scope of Work that the Agency submits to the MTA. 10. YTMFT,V TT.CF OF FUNDS. 10.1 The Agency shall obligate Federal Funds programmed under this Agreement within two (2)years from the first day of the Fiscal Year in which Federal Funds were appropriated, unless otherwise stated in this Agreement. Page 6 of 11 E:\windows\T'EMP\pass_through_agreemen¢doe 2966 ar 10.2 The Agency must execute this Agreement by January 31, 2002, and demonstrate evidence of timely obligation of Federal Funds programmed for the Project within the time period described in Section 10.1 of this Agreement. 10.3 In the event this Agreement is not executed and/or evidence of timely obligation of Federal Funds is not provided as described in Sections 10.1 and 10.2 of this Agreement, the Project will be reevaluated by MTA and the Federal Funds may be deobligated consistent with FTA requirements. In the event the Federal Funds are deobligated, this Agreement shall automatically terminate. 11. DEFAIJIN. A Default under this Agreement is defined as any one or more of the following: (i)the Agency fails to comply with the terms and conditions contained in this Agreement or the Grant; (ii) the Agency fails to perform satisfactorily or to make sufficient progress toward completion, or in breach of Section 9.7 makes a material change to the Scope of Work or the Programmed Budget without MTA's and FTA's prior written consent or approval; or (iii) the Agency is in default of any other applicable requirements of the MTA or the FTA. 12. REMEDIES, 12.1 In the event of a Default by the Agency, MTA shall provide written notice of such Default to the Agency with a 30-day period to cure the Default. In the event the Agency fails to cure the Default, or commit to cure the Default and commence the same within such 30 day period and to the satisfaction of MTA, MTA shall have the following remedies: (i) MTA may terminate this Agreement; (ii)MTA may make a determination to make no further disbursements of funds to the Agency; (iii) MTA may recover from the Agency any funds paid to the Agency prior to and after the Default; and/or(iv)any remedies the FTA may have under the Grant. 12.2 Effective upon receipt of written notice of termination from MTA, the Agency shall not undertake any new work or obligation with respect to this Agreement unless so approved by MTA in writing, in which case the disbursement of funds shall continue in accordance with this Agreement. 12.3 Subject to MTA's agreement to provide prior written notice with a 30-day period to cure the default, the remedies described herein are non-exclusive. MTA shall have the right to enforce any and all rights and remedies herein or which may be now or hereafter available at law or in equity. 13. SECTION 13.1 For purposes of satisfying the requirements of Section 5333(b) of Title 49 of the U.S. Code (commonly known as Section 13c), the Agency shall, by signing this Agreement, certify its acceptance of the terms and conditions of any and all Capital Assistance Protective Arrangements, and any other Section 5333(b) protections certified by the Department of Labor as applicable to any Federal funding received by the Agency. Page 7 of 11 CAwindowATEMMpass_through_agreement doc 6 13.2 The Agency shall indemnify, defend and hold harmless the MTA and its employees, officers and agents for any claims properly brought by mass transportation employees in the Agency's service area pursuant to the Special Warranty, or any other Section 5333(b) agreement, that may be filed against the MTA and that arises from any or all of the Federal Funds awarded to MTA on behalf of the Agency for the Project. 14. TERMINATION 14.1 Notwithstanding the Term specified in Section 3 above, either the Agency or the MTA may terminate its obligations hereunder at any time, without cause, prior to submittal of the grant application to FTA by providing not less than ten (10) calendar days advanced written notice of such intent to terminate to the other Parry. The Agency and the MTA may mutually terminate this Agreement with less than ten (10) days written notice if approved by both Parties. Once the MTA has submitted the grant application to FTA, the Agency shall have no rights to terminate this agreement as provided in this Section. 14.2 In the event of termination of this Agreement, the Agency shall be liable to the MTA for all services actually performed and all costs actually and reasonably incurred by the MTA up to the date that the terminating Party provides written notification of its intent to terminate. In the event of termination of this Agreement, the MTA will immediately stop rendering services under this Agreement and will deliver to the Agency all data,reports,worksheets, and all such other information and materials as the MTA may have accumulated in performing this Agreement. 15. 01HER E 1TIONS. 15.1 This Agreement, along with the applicable requirements of the FTA, DOL, MTA and the Grant, constitutes the entire understanding between the parties, with respect to the subject matter herein. The Agreement shall not be amended, nor any provisions or breach hereof waived, except in writing signed by the parties who agreed to the original Agreement or the same level of authority. 15.2 In the event that there is any legal court (e.g. Superior Court of the State of California, County of Los Angeles, or the U.S. District Court for the Central District of California) proceeding between the parties to enforce or interpret this Agreement or the applicable requirements of the MTA to protect or establish any rights or remedies hereunder, the prevailing parry shall be entitled to its costs and expenses, including reasonable attorneys'fees. 15.3 Neither the MTA nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or committed to be done by the Agency under or in connection with any work performed by, and/or service provided by, the Agency, its officers, agents, employees and subcontractors under this Agreement or the Guidelines. The Agency shall fully indemnify, defend and hold the MTA, and its officers, agents and employees harmless from and against any liability and expenses, including without limitation, defense costs, any costs or liability on account of bodily injury, death or personal injury of any person or for damage to or loss of use of property, any environmental obligation, any legal fees and any claims Page 8 of 11 C'.\wmdows\TEMP\pass_through_agreement doe M � 6 for damages of any nature whatsoever arising out of. (i) misuse of the Funds by the Agency, or its officers, agents, employees or subcontractors; (ii) challenges, claims or litigation filed on behalf of any affected transportation provider and/or employees' union; (iii) breach of the Agency obligations under this Agreement or the Grant; or(iv) any act or omission of the Agency, or its officers, agents, employees or subcontractors in the performance of the work or the provision of the services including,without limitation,the Scope of Work described in this Agreement. 15.4 Neither party hereto shall be considered in default in the performance of its obligations hereunder to the extent that the performance of any such obligation is prevented or delayed by unforeseen causes including acts of God, floods, earthquake, fires, acts of a public enemy, and government acts beyond the control and without fault or negligence of the affected parry. Each party hereto shall give notice promptly to the other of the nature and extent of any such circumstances claimed to delay, hinder, or prevent performance of any obligations under this Agreement. 15.5 The Agency shall comply with and ensure that work performed under this Agreement is done in compliance with Generally Accepted Accounting Principles (GAAP), all applicable provisions of federal, state, and local laws, statutes, ordinances, rules, regulations, and procedural requirements and the applicable requirements and regulations of the MTA. 15.6 The Agency shall not assign this Agreement, or any part thereof, without written consent and prior approval of the MTA Chief Executive Officer or his designee, and any assignment without said consent shall be void and unenforceable. Subject to all requirements of this Agreement, the Grant, and all other applicable requirements of the MTA and FTA, including without limitation the requirement that design and construction services be competitively procured, the Agency may contract with other entities, including its affiliates in a project management role,to implement this Agreement. 15.7 This Agreement shall be governed by California law and applicable federal law. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. 15.8 The terms of this Agreement shall inure to the benefit of, and shall be binding upon, each of the parties and their respective successors and assigns. 15.9 Notice will be given to the parties at the address specified below unless otherwise notified in writing of change of address. 15.10 The Agency in the performance of the work required by this Agreement is not a contractor nor an agent or employee of the MTA and attests to no organizational or personal conflicts of interest and agrees to notify the MTA immediately in the event that a conflict, or the appearance thereof, arises. The Agency shall not represent itself as an agent or employee of the MTA and shall have no powers to bind the MTA in contract or otherwise. Page 9 of 11 CAwindowsUEMMpass_throubh_abreement doc o MTA's Address: Los Angeles County Metropolitan Transportation Authority Capital Development and Programming One Gateway Plaza,Mail Stop 99-23-03 Los Angeles, CA 90012 Attention: Steve A. Henley The Agency Address: City of El Segundo 350 Main Street El Segundo, CA 90245-3895 Attention: Ms. Maryam M. Jonas Page 10 of 11 C:\windows\TENV\pass_through_agreement.doe IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the dates indicated below: MTA: LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY -02 ,Rbger Snoble Date Chief Executive Officer APPROVED AS TO FORM: Lloyd W. Pellman County Counsel Dept q Date W GRANTEE: CITY OF EL SEGUNDO —7 Maa �trenn Date City Manager A� APPROVED AS J` By: .. Mark HetisleyW ate City Attorz�„ ATTEST: DEPUTY CIT CLERK Page 11 of 11 C:\windows\TEMP\pass_through_agreement doc EXHIBIT"A 21 6 � W SCOPE OF WORK 11.33.03 LA996330 EL SEGUNDO, RAILROAD GRADE SEPARATION aft, INTERMODAL FACILITY, The funds provided for under this Agreement will be used for the construction of an intermodal transit facility adjacent to the Douglas Street Green Line light-rail station. The project will be constructed in conjunction with the City's Douglas Street Gap Closure project, and will include such improvements as the construction of an access roadway, installation of traffic signals, development of parking, loading and unloading areas, lighting, landscaping, drainage systems, pedestrian connections to the existing Green Line station, and other related improvements. This project will occur within California Congressional District 36; District Official: Jane Harman. EXHIBIT e'B2 '9 6 6 PROGRAM BUDGET SCOPE 113-00 BUS STATION/STOP/TERMINALS ACTIVITY FTA Amount Local Match 11.33.03 LA996330 EL SEGUNDO CONSTRUCT RAILWAY GRADE SEPARATION AND INTERMODAL FACILITY $2,079,661 $519,915 TOTALS $2,079,661 $519,915 ESTIMATED NET PROJECT COST: $2,599,576 FEDERAL SHARE: $2,079,661 LOCAL SHARE: $519,915 SOURCES OF FEDERAL FINANCIAL ASSISTANCE UZAID Accounting Classification FPC FY SEC 60020 2001.47.03.31.1 00 2001 03 SOURCES OF LOCAL MATCH Value of City-owned land upon which the facility will be constructed will be utilized for the required local match. Any additional match that may be necessary will be funded by the City's Proposition A and C Local Return funds, State TCSP funds, and/or AB 2766 local funds.