ATTACHMENT 1 – 1
RESOLUTION NO. _______
A RESOLUTION OF THE COUNCIL OF THE CITY OF
BURBANK UPDATING THE PROJECTS TO BE
SUBMITTED TO THE ARROYO VERDUGO
COMMUNITIES JOINT POWERS AUTHORITY FOR
FUNDING THROUGH THE L OS A NGELES COUNTY
METROPOLITAN TRANSPORTATION AUTHORITY
MEASURE M MULTI -YEAR SUBREGIONAL PLAN TO
INCLUDE THE BURBANKBUS ZERO EMISSION
ELECTRIC VEHICLE REPLACEMENT PROJECT PHASE
2, AND APPROVING A SAMPLE FUNDING AGREEMENT.
THE COUNCIL OF THE CITY OF BURBANK FINDS:
A. In 2016, Los Angeles County voters approved Measure M, a ½-cent sales tax levied by Los Angeles County voters to fund transportation improvements.
B. Measure M includes a Multi-Year Subregional Program (MSP), which provides fu nding for transportat ion capital projects in the various subregions of Los Angeles County. The Arroyo Verdugo Communities Joint Powers Authority (AVCJPA) receives MSP funding programmed fo r the Arroyo Verdugo Subregion from the Los Angeles County Metropolitan Transportation Authority (Metro) on behalf of its members, which includes the City of Burbank. Metro has currently allocated $72.4 million in MSP funds for Transit Programs and Modal Connectivity and Complete Streets Projects. The AVCJPA Board approves a Funding Program for Measure M MSP funds that identifies each project funded by the MSP funds.
C. In 20 22, t he Burbank City Council updated its project list and funding amounts for submission to the AVCJPA Board and directed Burbank’s representative on the Board to advocat e for these projects. The projects were : 1) the Victory Blv d.
Connectivity Gap Closure Project for $3,000,000; 2) BurbankBus State of Good Repair Bus Replac ement for $1,800,000 ; and 3) BurbankBus Zero Emission Transit Vehicle Replacement Project. These projects were funded by the AVCJPA Board and were approved by Metro in 2023.
D. Now, the Ci ty Council desires to include the BurbankBus Zero Emission Transit Vehicle Replacement Project (Phase 2) within its list of projects to be submitted to the AVCJPA Board as i t considers updating it s Measure M MSP Funding Program to allocate new funding to projects, including those for the City. The list of Burbank’s Measure M MSP projects is included with this Resolution as Exhibit A, and includes projects already approved by the City, AVCJPA, and Metro, as well as a new project to purchase additional zero emission buses.
E. The Council further exercises its i ndependent j udgment and f inds that approval of this resolution does not con stitute a "project" pursuant to CEQA Guidelines ATTACHMENT 1 – 2
section 15378 (b)(4), which excludes items involving the general creation of governmental funding mechanisms or fiscal acti vities. Further, under Public Resources Code section 21080.25, public projects to increase bus service are exempt from CEQA. This resolution requests AVCJPA to fund the City’s purchase of new zero-emission clean buses. As a result, no further environmental review is necessary.
THE COUNCIL OF THE CITY OF BURBANK RESOLVES:
1. The list of projects to be submitted to the Arroyo Verdugo Communities Joint Powers Authority Board to be funded unde r the Metro Measure M MSP Program included in Exhibit A is hereby approved. The Cit y Council directs the City Manager to work with staff from the Arroyo Verdugo Communities Joint Powers Authority and Metro to program these projects as part of the Measure M MSP funding program.
2. The terms and provisions of the sample “Measure M Funding Agreement Multi-Year S ubregional Programs between the Cit y of Burbank and the Los Angeles County Metropolitan Transportation Authority (LACMTA)”, included with this Resolutio n as Exhibit B (“Agreement”), to be executed for each project, are hereby approved.
3. The City Manager, or his designee, is authorized to make minor modifications to the Agreement, subject to review by the City Attorney’s Office, and execute the final Measure M Funding Agreement for each project on behalf of the City.
4. The City Manager, or his designee, is authorized to make amendments to existing Measure M Funding Agreements for the purpose of adding additional Measure M Funding for projects listed in Exhibit A.
5. The City Manager, or his designee, is authorized to make and approve other amendments to executed project Agreements, subject to City Attorney approval as to form, that do not materially affect the terms of each final Measure M Funding Agreement, such as redistributing Funds among existing budget line items or non- material schedule changes.
ATTACHMENT 1 – 3
6. The Financial Services Director is authorized to make such other revisions, changes in summaries, fund totals, grand totals, and other portions of the budget document as necessary to reflect and implement the appropriations specified in this resolution.
PASSED and ADOPTED this ______ day of May, 2024.
__________________________
Nick Schultz
Mayor
Approved as to Form:
Attest: Office of the City Attorney
___________________________ By: _______________________ Kimberley Clark, City Clerk Lisa Kurihara
Senior Assistant City Attorney
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF BURBANK )
I, Kimberley Clark, City Clerk of the City of Burbank, do hereby cer tify that the foregoing Resolution was duly and regularly passed and adopted by a majority vote of the Council of the City of Burbank at its regular meeting held on the ____ d ay of May, 2024, by the following vote:
AYES:
NOES:
ABSENT:
____________________________
Kimberley Clark, City Clerk
ATTACHMENT 1 – 4
EXHIBIT A
Measure M Arroyo Verdugo Subregion Measure M Multi-Year Subregional Program City of Burbank Project List
Project Measure M
Funding
Project Status
Victory Blvd Connectivity Gap Closure
(Burbank Channel Bikeway Project) $3,000,000 Complete
BurbankBus State of Good Repair – Bus
Replacement $1,800,000 Vehicles
Delivered
BurbankBus Zero Emission Transit
Vehicle Replacement Project $4,396,987 Planned
BurbankBus Zero Emission Transit
Vehicle Replacement Project (Phase 2) $5,656,095 New Proposed Project
TOTAL $14,853,082
ATTACHMENT 1 – 5
EXHIBIT B
Measure M Funding Agreement Multi-Year Subregional Programs between the City of Burbank and the Los Angeles County Metropolitan Transportation Authority (LACMTA)
MEASURE M FUNDING AGREEMENT
MULTI-YEAR SUBREGIONAL PROGRAMS
This Funding Agreement (“FA”) is made and entered into effective as of [INSERT FA PROCESSING DATE] (“Effective Date”), and is by and between the Los Angeles County Metropolitan Transportation Authority ("LACMTA") and _______ ("GRANTEE") for [Insert Project Title], LACMTA Project ID# MM [Insert Project #] and FTIP# [Insert #], (the "Project").
This Project is eligible for funding under Line __of the Measure M Expenditure Plan.
WHEREAS, LACMTA adopted Ordinance #16-01, the Los Angeles County Traffic Improvement Plan, on June 23, 2016 (the “Ordinance”), which Ordinance was approved by the voters of Los Angeles County on November 8, 2016 as “Measure M” and became effective on July 1, 2017.
WHEREAS, the funding set forth herein is intended to fund [Environmental, Design, Plans, Specifications and Estimates (PS&E), Right-of-Way, and Construction of the Project]. [Delete phases not applicable]
WHEREAS, the LACMTA Board, at its [Insert Board Meeting Date, not P&P Date] meeting, programmed $_______, in Measure M Funds to GRANTEE for [Insert Project Phases], subject to the terms and conditions contained in this FA; and
WHEREAS, the Funds are currently programmed as follows: $_______ in Measure M Funds in Fiscal Years (change to singular if applicable) (FY) FY 20__-__; FY 20__-__; and FY 20__-__ [Delete FYs not applicable]. The total designated for [Insert Project Phases] of the [Insert Project Title] is $_________.
NOW, THEREFORE, the parties hereby agree as follows:
The terms and conditions of this FA consist of the following and each is incorporated by reference herein as if fully set forth herein:
1. Part I – Specific Terms of the FA
2. Part II – General Terms of the FA
3. Attachment A – Project Funding
4. Attachment B – Expenditure Plan- Cost & Cash Flow Budget
5. Attachment C – Scope of Work
6. Attachment D – Project Reporting and Expenditure Guidelines
7. Attachment D-1 – Monthly Progress Report
8. Attachment D-2 – Quarterly Expenditure Report OR Quarterly Progress/Expenditure Report
9. Attachment E – Federal Transportation Improvement Program (FTIP) Sheet
10. Attachment F – Bond Requirements
11. Attachment G – Special Grant Conditions [remove if none]
12. Any other attachments or documents referenced in the above documents
EXHIBIT B
ATTACHMENT 1 - 6
In the event of a conflict, the Special Grant Conditions, if any, shall prevail over the Specific Terms of the FA and any attachments and the Specific Terms of the FA shall prevail over the General Terms of the FA.
ATTACHMENT 1 - 7
IN WITNESS WHEREOF, the parties have caused this FA to be executed by their duly authorized representatives as of the dates indicated below:
LACMTA:
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY
By: ________________________________________ Date: ____________________ Phillip A. Washington
Chief Executive Officer
APPROVED AS TO FORM:
MARY C. WICKHAM
County Counsel
By: ________________________________________ Date: ____________________ Deputy
GRANTEE:
___________________
By: _______________________________________ Date: ____________________ [INSERT NAME]
[INSERT TITLE]
APPROVED AS TO FORM:
By: _______________________________________ Date: ____________________ [INSERT NAME]
[INSERT TITLE]
ATTACHMENT 1 - 8
PART I
SPECIFIC TERMS OF THE FA
1. Title of the Project (the "Project"): [Insert title of project] – Environmental, Design, Plans, Specifications and Estimates (PS&E), Right-of-Way, and Construction. [Delete phases not applicable]. LACMTA Project ID# MM_______, FTIP# ______.
2. Grant Funds:
2.1 Programmed Funds for this Project consist of Measure M Funds.
2.2 To the extent the Measure M Funds are available; LACMTA shall make to GRANTEE a grant of the Measure M funds in the amount of $________ (the “Fund”) for the Project. LACMTA Board of Directors’ action of [Insert board meeting date, NOT P&P date] granted the Measure M Funds for the Project. The Funds are programmed over (Insert # of years) years for Fiscal Years (Change to singular if applicable) (FY) FY 20__-__, FY 20__-__, and FY 20__-__ . [Delete “only” if multiple years; delete FYs not applicable].
3. This grant shall be paid on a reimbursement basis. GRANTEE must provide the appropriate supporting documentation with the Monthly Progress Report and/or the Quarterly Expenditure Report. GRANTEE Funding Commitment, if applicable, must be spent in the appropriate proportion to the Funds with each quarter’s expenditures. LACMTA will withhold ten percent (10%) of eligible expenditures per invoice as retention pending an audit of expenditures and completion of scope of work.
4. Attachment A the “Project Funding” documents all sources of funds programmed for the Project as approved by LACMTA. The Project Funding includes the total programmed funds for the Project, including the Funds programmed by LACMTA and, if any, the GRANTEE Funding Commitment of other sources of funding. The Project Funding also includes the fiscal years in which all the funds for the Project are programmed. The Funds are subject to adjustment by subsequent LACMTA Board Action.
5. Attachment B is the Expenditure Plan- Cost & Cash Flow Budget (the "Expenditure Plan"). It is the entire proposed cash flow, the Budget and financial plan for the Project, which includes the total sources of all funds programmed to the Project, including GRANTEE and other entity funding commitments, if any, for this Project as well as the fiscal year and quarters the Project funds are anticipated to be expended. GRANTEE shall update the Expenditure Plan annually, no later than December 31, and such update shall be submitted to LACMTA’s Senior Executive Officer managing the Measure M Multi-Year Subregional Program in writing. If the LACMTA’s Senior Executive Officer managing the Measure M Multi-Year Subregional Program concurs with such updated Expenditure Plan in writing, Attachment B
shall be replaced with the new Attachment B setting forth the latest approved Expenditure Plan. Payments under this FA shall be consistent with Attachment B as revised from time to time. In no event can the final milestone date be changed or amended by written concurrence ATTACHMENT 1 - 9
by the LACMTA Senior Executive Officer managing the Measure M Multi-Year Subregional Program. Any change to the final milestone date must be made by a fully executed amendment to this FA.
6. Attachment C is the “Scope of Work”. The GRANTEE shall complete the Project as described in the Scope of Work. This Scope of Work shall include a detailed description of the Project and the work to be completed, including anticipated Project milestones and a schedule consistent with the lapsing policy in Part II, Section 9, and a description of the Project limits, if the Project is a capital project. No later than December 31 of each year, GRANTEE shall notify LACMTA if there are any changes to the final milestone date set forth in the schedule or any changes to the Scope of Work. If LACMTA agrees to such changes, the parties shall memorialize such changes in an amendment to this FA. Work shall be delivered in accordance with the schedule and scope identified in this FA unless otherwise agreed to by the parties in writing in an amendment to this FA. If GRANTEE fails to meet milestones or in deliver of the Project, LACMTA will have the option to suspend or terminate the FA for default as described in Part II, Sections 2, 9, 10 and 11 herein below. To the extent interim milestone dates are not met but GRANTEE believes and can show documentation acceptable to LACMTA supporting GRANTEE’s ability to make up the time so as to not impact the final milestone date, GRANTEE shall notify LACMTA of such changes in its Monthly Progress Reports and such interim milestone dates will automatically be amended to the latest interim milestone dates provided in the Monthly Progress Reports
Attachment D-1. In no event can the final milestone date be amended by a Monthly Progress Report.
7. No changes to this FA, including but not limited to the Funds, and any other source of funds from LACMTA in the Project Funding, Expenditure Plan or the Scope of Work shall be allowed without an amendment to the original FA, approved and signed by both parties.
8. Attachment D is the “Project Reporting & Expenditure Guidelines”. GRANTEE shall complete the “Monthly Progress Report” and/or the “Quarterly Expenditure Report”. The Monthly Progress and Quarterly Expenditure Reports are attached to this FA as Attachments D-1 and D-2 in accordance with Attachment D – Project Reporting and Expenditure Guidelines.
9. Attachment E, the "FTIP PROJECT SHEET (PDF)", is required to ensure that the Project is programmed correctly in the most up-to-date FTIP document. The FTIP PROJECT SHEET (PDF) can be found in ProgramMetro FTIP database under the reports section at http://program.metro.net. All projects that receive funding through Measure M must be programmed into the FTIP, which includes locally funded regionally significant projects for information and air quality modeling purposes. GRANTEE shall review the Project in ProgramMetro each year and update or correct the Project information as necessary during a scheduled FTIP amendment or adoption. GRANTEE will be notified of amendments and adoptions to the FTIP via e-mail. Changes to the FTIP through ProgramMetro should be made as soon as possible after GRANTEE is aware of any changes to the Project, but no later than October 1 of the year the change or update is effective. Should GRANTEE fail to meet this date, ATTACHMENT 1 - 10
it may affect GRANTEE's ability to access funding, delay the Project and may ultimately result in the Funds being lapsed.
10. LACMTA anticipates it may need to avail itself of lower cost bonds or other debt, the interest on which is tax exempt for federal tax purposes (collectively, the “Bonds") to provide at least a portion of its funding commitments under this Agreement to GRANTEE.
GRANTEE shall ensure that the expenditure of the Funds disbursed to GRANTEE does not jeopardize the tax-exemption of the interest, as specified in the Bond Requirements attached as
Attachment F to this Agreement. GRANTEE agrees to provide LACMTA with progress reports, expenditure documentation, and any other documentation as reasonably requested by LACMTA and necessary for LACMTA to fulfill its responsibilities as the grantee or administrator or bond issuer of the Funds. With regard to LACMTA debt financing to provide any portion of the Funds, GRANTEE shall take all reasonable actions as may be requested of it by LACMTA's Project Manager for the Project, to assist LACMTA in demonstrating and maintaining over time, compliance with the relevant sections of the Federal Tax Code to maintain such Bonds’ tax status.
11. GRANTEE shall comply with the “Special Grant Conditions” attached as Attachment G, if any.
12. No changes to the (i) Grant amount, (ii) Project Funding, (iii) the Scope of Work (except as provided herein), (iv) Final milestone date or (v) Special Grant Conditions, shall be allowed without a written amendment to this FA, approved and signed by the LACMTA Chief Executive Officer or his/her designee and GRANTEE. Modifications that do not materially affect the terms of this FA, such as redistributing Funds among existing budget line items or non-material schedule changes must be formally requested by GRANTEE and approved by LACMTA in writing. Non-material changes are those changes which do not affect the grant amount or its schedule, Project Funding, Financial Plan, or the Scope of Work, including the Work schedule.
13. LACMTA's Address:
Los Angeles County Metropolitan Transportation Authority One Gateway Plaza
Los Angeles, CA 90012
Attention: [Insert project manager name]
LACMTA Project Manager
Mail Stop: _________
Phone: (213) ___-______
Email: [email protected]
14. GRANTEE's Address:
Grantee Name (Agency)
Address
ATTACHMENT 1 - 11
Grantee’s Responsible Staff Person
Phone:
Email:
ATTACHMENT 1 - 12
PART II
GENERAL TERMS OF THE FA
1. TERM
The term of this FA shall commence on the Effective Date of this FA, and shall terminate upon the occurrence of all of the following, unless terminated earlier as provided herein: (i) the agreed upon Scope of Work has been completed; (ii) all LACMTA audit and reporting requirements have been satisfied; and (iii) the final disbursement of the Funds has been made to GRANTEE. All eligible Project expenses as defined in the Reporting and Expenditure Guidelines (Attachment D), incurred after the FA Effective Date shall be reimbursed in accordance with the terms and conditions of this FA unless otherwise agreed to by the parties in writing.
2. SUSPENSION OR TERMINATION
Should LACMTA determine there are insufficient Measure M Funds available for the Project, LACMTA may suspend or terminate this FA by giving written notice to GRANTEE at least thirty (30) days in advance of the effective date of such suspension or termination. If a Project is suspended or terminated pursuant to this section, LACMTA will not reimburse GRANTEE any costs incurred after that suspension or termination date, except those costs necessary to: (i) return any facilities modified by the Project construction to a safe and operable state; and (ii) suspend or terminate the construction contractor’s control over the Project. LACMTA’s share of these costs will be consistent with the established funding percentages outlined in this FA.
3. INVOICE BY GRANTEE
Unless otherwise stated in this FA, the Monthly Progress Report or the Quarterly Expenditure Report, with supporting documentation of expenses, Project progress and other documents as required, which has been pre-approved by LACMTA, all as described in Part II, Section 6.1 of this FA, shall satisfy LACMTA invoicing requirements. Grantee shall only submit for payment the LACMTA pre-approved Monthly Progress Report or Quarterly Expenditure Report Packets to the LACMTA Project Manager at the email address shown in Part I and to LACMTA Accounts Payable Department as shown below.
Submit invoice with supporting documentation to:
[email protected] (preferable)
or
mail to:
Los Angeles County Metropolitan Transportation Authority Accounts Payable
P. O. Box 512296
Los Angeles, CA 90051-0296
All invoice material must contain the following information:
ATTACHMENT 1 - 13
Re: LACMTA Project ID# [Insert #] and FA# FA9200000000M[Insert #] [ Insert LACMTA Project Manager Name; Mail Stop 99-__-__]
4. USE OF FUNDS
4 .1 GRANTEE shall utilize the Funds to complete the Project as described in the Scope of Work and in accordance with the Reporting and Expenditure Guidelines, the specifications for use for the transportation purposes described in the Ordinance, the Guidelines and the Multi-Year Subregional Programs Administrative Procedures.
4 .2 Attachment C shall constitute the agreed upon Scope of Work between LACMTA and GRANTEE for the Project. The Funds, as granted under this FA, can only be used towards the completion of the Scope of Work detailed in Attachment C.
4 .3 GRANTEE shall not use the Funds to substitute for any other funds or projects not specified in this FA. Further, GRANTEE shall not use the Funds for any expenses or activities above and beyond the approved Scope of Work (Attachment C) without an amendment to the FA approved and signed by the LACMTA Chief Executive Officer or his Designee. To the extent LACMTA provides GRANTEE with bond or commercial paper proceeds, such Funds may not be used to reimburse for any costs that jeopardize the tax exempt nature of such financings as reasonably determined by LACMTA and its bond counsel.
4.4 GRANTEE must use the Funds in the most cost-effective manner. If GRANTEE intends to use a consultant or contractor to implement all or part of the Project, LACMTA requires that such activities be procured in accordance with GRANTEE’s contracting procedures and consistent with State law as appropriate. GRANTEE will also use the Funds in the most cost-effective manner when the Funds are used to pay “in-house” staff time. This effective use of funds provision will be verified by LACMTA through on- going Project monitoring and through any LACMTA interim and final audits.
4.5 GRANTEE’S employee, officers, councilmembers, board member, agents, or consultants (a “GRANTEE Party”) are prohibited from participating in the selection, award, or administration of a third-party contract or sub-agreement supported by the Funds if a real or apparent conflict of interest would be involved. A conflict of interest would include, without limitation, an organizational conflict of interest or when any of the following parties has a financial or other interest in any entity selected for award: (a) a GRANTEE Party (b) any member of a GRANTEE Party’s immediate family, (c) a partner of a GRANTEE Party; (d) any organization that employs or intends to employ any of the above. This conflict of interest provision will be verified by LACMTA through on-going Project monitoring and through
any LACMTA interim and final audits.
4.6 If a facility, equipment (such as computer hardware or software), vehicle or property, purchased or leased using the Funds, ceases to be used for the proper use as originally stated in the Scope of Work, or the Project is discontinued, any Funds expended for that purpose must be returned to LACMTA as follows: GRANTEE shall be required to ATTACHMENT 1 - 14
repay the Funds in proportion to the useful life remaining and in an equal proportion of the grant to GRANTEE Funding Commitment ratio.
4.7 Implementation of any ITS project shall be consistent with the Regional ITS Architecture. ITS projects must comply with the LACMTA Countywide ITS Policy and Procedures adopted by the LACMTA Board of Directors including the submittal of a completed, signed self-certification form.
For the ITS policy and form, see
www.metro.net/projects_studies/call_projects/other_resources.htm.
4.8 If any parking facilities are designed and/or constructed using the Funds, GRANTEE shall coordinate with LACMTA parking program staff (see www.metro.net for staff listing) in the planning, design and management of the facility and shall ensure that its implementation is consistent with the LACMTA adopted parking policy.
For the parking policy, see
www.metro.net/projects_studies/call_projects/other_resources.htm .
5. REIMBURSEMENT OF FUNDS
Funds will be released on a reimbursement basis in accordance with invoices submitted in support of the Quarterly Expenditure Reports. LACMTA will make all disbursements electronically unless an exception is requested in writing. Reimbursements via Automated Clearing House (ACH) will be made at no cost to GRANTEE. GRANTEE must complete the ACH form and submit such form to LACMTA before grant payments can be made. ACH Request Forms can be found at
www.metro.net/projects/call_projects/call_projects-
reference-documents/. GRANTEE must provide detailed supporting documentation with its Monthly Progress and Quarterly Expenditure Reports. GRANTEE Funding Commitment, if any, must be spent in direct proportion to the Funds with each quarter’s payment.
6. REPORTING AND AUDIT REQUIREMENTS/PAYMENT ADJUSTMENTS
6 .1 GRANTEE shall submit the draft of Monthly Progress Report (Attachment D-1) within seven (7) days from the last day of each month, if required, and submit the draft of Quarterly Expenditure Report (Attachment D-2) within sixty (60) days after the close of each quarter on the last day of the months November, February, May and August to the LACMTA Project Manager for review and pre-approval of the applicable report.
LACMTA Project Manager shall review and respond in writing to the draft Monthly Progress within five (5) business days from receipt and Quarterly Expenditure Report within thirty (30) calendar days from receipt. Grantee shall submit the LACMTA pre-approved Monthly Progress Report and Quarterly Expenditure Report no later than five (5) days after receipt of LACMTA’s written approval. Should GRANTEE fail to submit either the draft or pre-approved reports within five (5) days of the due date and/or submit incomplete reports, LACMTA will not reimburse GRANTEE until the completed required reports are received, reviewed, and approved. The Monthly Progress and the Quarterly Expenditure Reports shall include all appropriate documentation (such as contractor invoices, timesheets, receipts, etc.), and any changes to interim milestone dates that do not impact the final milestone date. All supporting ATTACHMENT 1 - 15
documents must include a clear justification and explanation of their relevance to the Project.
If no activity has occurred during a particular quarter, GRANTEE will still be required to submit the Monthly Progress and Quarterly Expenditure Reports indicating no dollars were expended that quarter. If a request for reimbursement exceeds $500,000 in a single month, then GRANTEE can submit such an invoice once per month with supporting documentation.
Expenses that are not invoiced to LACMTA Accounts Payable within ninety (90) days after the lapsing date specified in Part II, Section 9.1 below are not eligible for reimbursement.
6.2 GRANTEE shall submit the Project expenditure estimates for the subsequent fiscal year by February of each year. LACMTA will use the estimates to determine the Project budget for the upcoming fiscal year.
6. 3 LACMTA, and/or its designee, shall have the right to conduct audits of the Project as deemed appropriate, such as financial and compliance audits, interim audits, pre-award audits, performance audits and final audits. LACMTA will commence a final audit within six months of receipt of acceptable final invoice, provided the Project is ready for final audit (meaning all costs and charges have been paid by GRANTEE and invoiced to LACMTA, and such costs, charges and invoices are properly documented and summarized in the accounting records to enable an audit without further explanation or summarization including actual indirect rates for the period covered by the FA period under review).
GRANTEE agrees to establish and maintain proper accounting procedures and cash management records and documents in accordance with Generally Accepted Accounting Principles (GAAP). GRANTEE shall reimburse LACMTA for any expenditure not in compliance with the Scope of Work and/or not in compliance with other terms and conditions of this FA.
The allowability of costs for GRANTEE’s own expenditures submitted to LACMTA for this Project shall be in compliance with Office of Management and Budget (OMB) Circular A-87.
The allowability of costs for GRANTEE’s contractors, consultants and suppliers expenditures submitted to LACMTA through GRANTEE’s Monthly Progress Reports and Quarterly Expenditures shall be in compliance with OMB Circular A-87 or Federal Acquisition Regulation (FAR) Subpart 31 and 2 CFR Subtitle A, Chapter II, Part 225 (whichever is applicable). Findings of the LACMTA audit are final. When LACMTA audit findings require GRANTEE to return monies to LACMTA, GRANTEE agrees to return the monies within thirty (30) days after the final audit is sent to GRANTEE.
6 .4 GRANTEE’s records shall include, without limitation, accounting records, written policies and procedures, contract files, original estimates, correspondence, change order files (including documentation covering negotiated settlements), invoices, and any other supporting evidence deemed necessary by LACMTA to substantiate charges related to the Project (all collectively referred to as “records”). Such records shall be open to inspection and subject to audit and reproduction by LACMTA auditors or authorized representatives to the extent deemed necessary by LACMTA to adequately permit evaluation of expended costs. Such records subject to audit shall also include, without limitation, those records deemed necessary by LACMTA to evaluate and verify, direct and indirect costs, (including overhead allocations) as they may apply to costs associated with the Project. These records must be retained by GRANTEE for three years following final ATTACHMENT 1 - 16
payment under this Agreement. Payment of retention amounts shall not occur until after the LACMTA’s final audit is completed.
6.5 GRANTEE shall cause all contractors to comply with the requirements of Part II, Section 5, paragraphs 6.3 and 6.4 above. GRANTEE shall cause all contractors to cooperate fully in furnishing or in making available to LACMTA all records deemed necessary by LACMTA auditors or authorized representatives related to the Project.
6.6 LACMTA or any of its duly authorized representatives, upon reasonable written notice, shall be afforded access to all GRANTEE’s records and its contractors related to the Project, and shall be allowed to interview any employee of GRANTEE and its contractors through final payment to the extent reasonably practicable.
6.7 LACMTA or any of its duly authorized representatives, upon reasonable written notice, shall have access to the offices of GRANTEE and its contractors, shall have access to all necessary records, including reproduction, at no charge to LACMTA, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the terms and conditions of this FA.
6.8 When business travel associated with the Project requires use of a vehicle, the mileage incurred shall be reimbursed at the mileage rates set by the Internal Revenue Service, as indicated in the United States General Services Administration Federal Travel Regulation, Privately Owned Vehicle Reimbursement Rates.
6.9 GRANTEE shall be responsible for ensuring all contractors/ subcontractors for the Project comply with the terms of the Ordinance, the Guidelines and the Multi-Year Subregional Programs Administrative Procedures. GRANTEE shall cooperate with LACMTA Management Audit Services Department such that LACMTA can meet its obligations under the Ordinance, the Guidelines and the Multi-Year Subregional Programs Administrative Procedures.
6.10 GRANTEE shall certify each invoice by reviewing all subcontractor costs and maintaining internal control to ensure that all expenditures are allocable, allowable and reasonable and in accordance with OMB A-87 or FAR subpart 31 and 2 CFR Subtitle A, Chapter II, part 225, (whichever is applicable) and the terms and conditions of this FA.
6.11 GRANTEE shall also certify final costs of the Project to ensure all costs are in compliance with OMB A-87 or FAR subpart 31 and 2 CFR Subtitle A, Chapter II, part 225, (whichever is applicable) and the terms and conditions of this FA.
6.12 In addition to LACMTA’s other remedies as provided in this FA, LACMTA may withhold the Funds if the LACMTA audit has determined that GRANTEE failed to comply with the Scope of Work (such as misusing Funds or failure to return Funds owed to LACMTA in accordance with LACMTA audit findings) and /or is severely out of ATTACHMENT 1 - 17
compliance with other terms and conditions as defined by this FA, including the access to records provisions of Part II, Section 6.
7. GRANT
This is a one-time only grant of the Measure M Funds subject to the terms and conditions agreed to herein. This grant does not imply nor obligate any future funding commitment on the part of LACMTA.
8. SOURCES AND DISPOSITION OF FUNDS
8 .1 The obligation for LACMTA to grant the Funds for the Project is subject to sufficient Funds being made available for the Project by the LACMTA Board of Directors. If such Funds are not made available as anticipated from Measure M Program revenues, LACMTA will have the right to adjust the cash flow accordingly until such funds become available. LACMTA shall have no obligation to provide any other funds for the Project, unless otherwise agreed to in writing by LACMTA.
8 .2 GRANTEE shall fully fund and contribute the GRANTEE Funding Commitment, if any is identified in the Project Funding (Attachment A), towards the cost of the Project. If the Funds identified in Attachment A are insufficient to complete the Project, GRANTEE agrees to secure and provide such additional non-LACMTA programmed funds necessary to complete the Project.
8.3 GRANTEE shall be responsible for any and all cost overruns for the Project pursuant to Section 8.2.
8.4 GRANTEE shall be eligible for the Funds up to the grant amount specified in Part I, Section 2 of this FA subject to the terms and conditions contained herein.
Any Funds expended by GRANTEE prior to the Effective Date of this FA shall not be reimbursed nor shall they be credited toward the GRANTEE Funding Commitment requirement, without the prior written consent of LACMTA. GRANTEE Funding Commitment dollars expended prior to the year the Funds are awarded shall be spent at GRANTEE’s own risk, or as delineated in a Letter of No Prejudice executed by the prospective GRANTEE and LACMTA.
8 .5 If GRANTEE receives outside funding for the Project in addition to the Funds identified in the Project Funding and the Expenditure Plan at the time this grant was awarded, this FA shall be amended to reflect such additional funding. If, at the time of final invoice or voucher, funding for the Project (including the Funds, GRANTEE Funding Commitment, and any additional funding) exceeds the actual Project costs, then the cost savings shall be applied in the same proportion as the sources of funds from each party to this FA as specified in the Project Funding and both the Funds and GRANTEE Funding Commitment required for the Project shall be reduced accordingly. LACMTA shall have the right to use any cost savings associated with the Funds at its sole discretion, including, ATTACHMENT 1 - 18
without limitation, programming the unused Funds to another project or to another grantee within the subregion in accordance with the Ordinance, the Guidelines and the Multi-Year Subregional Programs Administrative Procedures. If, at the time of final voucher, it is determined that GRANTEE has received Funds in excess of what GRANTEE should have received for the Project, GRANTEE shall return such overage to LACMTA within 30 days from final voucher.
9. TIMELY USE OF FUNDS / REPROGRAMMING OF FUNDS
9.1 GRANTEE must demonstrate timely use of the Funds by:
(i) Executing this FA within ninety (90) days of receiving formal transmittal of the FA from LACMTA, or by December 31 of the first Fiscal Year in which the Funds are programmed, whichever date is later; and
[Delete NON-APPLICABLE COMPONENTS (ii-iv)]
(ii) Beginning Project Design, Preliminary Engineering-(PE) within six (6) months from completion of environmental clearance, if appropriate.
(iii) Expending Right-of-Way costs (including by deposit into a condemnation action) by the end of the second (2nd) fiscal year following the year the Funds were first programmed; and (iv) Executing Contracts for Construction or Capital purchase within twelve (12) months from the date of completion of design; and (v) Delivering Work in accordance with schedule; changes to the schedule will require an Amendment to Attachment C to reflect updated milestone dates. Meeting the Project milestone due dates as agreed upon by the LACMTA and GRANTEE in
Attachment C of this FA; and
(vi) Submitting the Monthly Progress and Quarterly Expenditure Reports as described in Part II, Section 6.1 of this FA; and (vii) Expending the Funds granted under this FA for allowable costs within three years or 36 months from July 1 of the Fiscal Year in which the Funds are programmed, unless otherwise stated in this FA. All Funds programmed for FY 20__-__ are subject to lapse by June 30, 20__. All Funds programmed for FY 20__-__are subject to lapse by June 30, 20__. All Funds programmed for FY 20__-__ are subject to lapse by June 30, 20__. [delete FYs not applicable]
9 .2 In the event that the timely use of the Funds is not demonstrated as described in Part II, Section 9.1 of this FA, the Project will be reevaluated by LACMTA as part of its Annual Update process and the Funds may be reprogrammed to another project by the LACMTA Board of Directors in accordance with the Ordinance, the Guidelines and the Multi- ATTACHMENT 1 - 19
Year Subregional Programs Administrative Procedures. In the event that all the Funds are reprogrammed, this FA shall automatically terminate.
10. DEFAULT
A Default under this FA is defined as any one or more of the following: (i) GRANTEE fails to comply with the terms and conditions contained herein; and/or (ii) GRANTEE fails to perform satisfactorily or make material changes, as determined by LACMTA at its sole discretion, to the Expenditure Plan, the Scope of Work, or the Project Funding without LACMTA’s prior written consent or approval as provided herein.
11. REMEDIES
11.1 In the event of a Default by GRANTEE, LACMTA shall provide written notice of such Default to GRANTEE with a 30-day period to cure the Default. In the event GRANTEE fails to cure the Default, or commit to cure the Default and commence the same within such 30-day period to the satisfaction of LACMTA, LACMTA shall have the following remedies: (i) LACMTA may terminate this FA; (ii) LACMTA may make no further disbursements of Funds to GRANTEE; and/or (iii) LACMTA may recover from GRANTEE any Funds disbursed to GRANTEE as allowed by law or in equity.
11.2 Effective upon receipt of written notice of termination from LACMTA, GRANTEE shall not undertake any new work or obligation with respect to this FA unless so directed by LACMTA in writing. Any Funds expended after termination shall be the sole responsibility of GRANTEE.
11.3 The remedies described herein are non-exclusive. LACMTA 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.
12. COMMUNICATIONS
12.1 GRANTEE shall ensure that all Communication Materials contain recognition of LACMTA’s contribution to the Project as more particularly set forth in “Funding Recipient Communications Guidelines” available online at http://metro.net/partners-civic
. The Funding Recipient Communications Guidelines may
be changed from time to time during the course of this Agreement. GRANTEE shall be responsible for complying with the latest Funding Recipient Communications Guidelines during the term of this Agreement, unless otherwise specifically authorized in writing by the LACMTA Chief Communications Officer.
12.2 For purposes of this Agreement, “Communications Materials” include, but are not limited to, press events, public and external newsletters, printed materials, advertising, websites radio and public service announcements, electronic media, ATTACHMENT 1 - 20
and construction site signage. A more detailed definition of “Communications Materials” is found in the Funding Recipient Communications Guidelines.
12.3 The Metro logo is a trademarked item that shall be reproduced and displayed in accordance with specific graphic guidelines. The preferred logo lock-up for Funding Recipients to use is included in the Funding Recipient Communications Guidelines.
12.4 GRANTEE shall ensure that any subcontractor, including, but not limited to, public relations, public affairs, and/or marketing firms hired to produce Project Communications Materials for public and external purposes will comply with the requirements contained in this Section.
12.5 The LACMTA Project Manager shall be responsible for monitoring GRANTEE’s compliance with the terms and conditions of this Section. GRANTEE’s failure to comply with the terms of this Section shall be deemed a default hereunder and LACMTA shall have all rights and remedies set forth herein.
ATTACHMENT 1 - 21
13. OTHER TERMS AND CONDITIONS
13 .1 This FA, along with its Attachments, constitutes the entire understanding between the parties, with respect to the subject matter herein. The FA shall not be amended, nor any provisions or breach hereof waived, except in writing signed by the parties who agreed to the original FA or the same level of authority. Adoption of revisions or supplements to the Guidelines shall cause such revisions or supplements to become incorporated automatically into this Agreement as though fully set forth herein.
13.2 GRANTEE is obligated to continue using the Project dedicated to the public transportation purposes for which the Project was initially approved. The Project right-of-way, the Project facilities constructed or reconstructed on the Project site, and/or Project property purchased, excluding construction easements and excess property (whose proportionate proceeds shall be distributed in an equal proportion of the grant to GRANTEE Funding Commitment ratio), shall remain dedicated to public transportation use in the same proportion and scope and to the same extent as described in this FA. Equipment acquired as part of the Project, including office equipment, vehicles, shall be dedicated to that use for their full economic life cycle, including any extensions of that life cycle achieved by reconstruction, rehabilitation, or enhancements.
13 .3 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 FA, to protect or establish any rights or remedies hereunder, the prevailing party shall be entitled to its costs and expenses, including reasonable attorney’s fees.
13 .4 Neither LACMTA 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 GRANTEE under or in connection with any work performed by and or service provided by GRANTEE, its officers, agents, employees, contractors and subcontractors under this FA. GRANTEE shall fully indemnify, defend and hold LACMTA and its subsidiaries, 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 risk of property, any environmental obligation, any legal fees and any claims for damages of any nature whatsoever arising out of the Project, including without limitation: (i) use of the Funds by GRANTEE, or its officers, agents, employees, contractors or subcontractors; (ii) breach of GRANTEE’s obligations under this FA; or (iii) any act or omission of GRANTEE, or its officers, agents, employees, contractors or subcontractors in the performance of the work or the provision of the services, in connection with the Project including, without limitation, the Scope of Work, described in this FA.
13 .5 Neither party hereto shall be considered in default in the performance of its obligation hereunder to the extent that the performance of any such obligation is ATTACHMENT 1 - 22
prevented or delayed by unforeseen causes including acts of God, acts of a public enemy, and government acts beyond the control and without fault or negligence of the affected party.
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 FA.
13 .6 GRANTEE shall comply with and ensure that work performed under this FA 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 including Federal Acquisition Regulations (FAR), and the applicable requirements and regulations of LACMTA. GRANTEE acknowledges responsibility for obtaining copies of and complying with the terms of the most recent federal, state, or local laws and regulations, and LACMTA requirements including any amendments thereto.
13 .7 GRANTEE agrees that the applicable requirements of this FA shall be included in every contract entered into by GRANTEE or its contractors relating to work performed under this FA and LACMTA shall have the right to review and audit such contracts.
13 .8 GRANTEE shall not assign this FA, or any part thereof, without prior approval of the LACMTA Chief Executive Officer or his designee. Any assignment by GRANTEE without said prior consent by LACMTA shall be void and unenforceable.
13 .9 This FA shall be governed by California law. If any provision of this FA 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.
13.10 The covenants and agreements of this FA shall inure to the benefit of, and shall be binding upon, each of the parties and their respective successors and assigns.
13.11 GRANTEE will advise LACMTA prior to any key Project staffing changes. Notice will be given to the parties at the address specified in Part I, unless otherwise notified in writing of change of address or contact person.
13.12 GRANTEE, in the performance of the work described in this FA, is not a contractor nor an agent or employee of LACMTA. GRANTEE attests to no organizational or personal conflicts of interest and agrees to notify LACMTA immediately in the event that a conflict, or the appearance thereof, arises. GRANTEE shall not represent itself as an agent or employee of LACMTA and shall have no powers to bind LACMTA in contract or otherwise.
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