Agreement Number 9200000000HIP2108
1 EXCHANGE AGREEMENT AND ASSIGNMENT OF FEDERAL SURFACE
TRANSPORTATION PROGRAM-LOCAL AND HIGHWAY INFRASTRUCTURE
PROGRAMS FUNDS
This Exchange Agreement and Assignment of Federal Surface Transportation Program-Local and Highway Infrastructure Programs Funds ("AGREEMENT"), is made and entered into as of July 1, 2022, by and between the City of Commerce ("CITY") and the Los Angeles County Metropolitan Transportation Authority ("LACMTA").
RECITALS:
CITY is eligible for and has available Federal Surface Transportation Program-Local ("STP-L Funds") and Highway Infrastructure Programs funds ("HIP Funds").
A. CITY desires to exchange $193,526 of CITY's STP-L Funds ("STP-L Funds Balance") and its total allocation of $60,414 of CITY's HIP Funds ("HIP Funds Balance") that LACMTA approved on April 22, 2021 for a like total amount of $253,940 of LACMTA Local Transportation Funds ("LACMTA Funds").
B. LACMTA is willing to exchange $253,940 in LACMTA Funds for a like total amount of CITY's STP-L Funds and CITY's HIP Funds subject to the terms and conditions contained herein.
C. An exchange of CITY's STP-L Funds and CITY's HIP Funds with LACMTA Funds is beneficial to and in the general interest of CITY and LACMTA.
NOW THEREFORE, in consideration of the mutual benefits to be derived by CITY and LACMTA, and of the promises contained herein, it is hereby agreed as follows:
AGREEMENT:
1. CITY hereby assigns to LACMTA $193,526 of CITY's STP-L Funds and $60,414 of CITY's HIP Funds. LACMTA shall be authorized to deduct such amounts from CITY's STPL Funds Balance and CITY's HIP Funds Balance, respectively. This assignment shall be automatically effective upon full execution of this AGREEMENT without the necessity of the execution, delivery or recording of any further instrument whatsoever. Notwithstanding the foregoing, at LACMTA's request, CITY shall execute and deliver such documents and instruments as may be required to evidence such assignment of STP-L Funds and HIP Funds.
2. LACMTA hereby accepts CITY's assignment of CITY's STP-L Funds and CITY's HIP Funds for use on federal-aid eligible project(s), to be determined by LACMTA in its sole and absolute discretion.
Agreement Number 9200000000HIP2108
2 3. Upon receipt of (i) a fully executed AGREEMENT, (ii) CITY's written certification of the amounts of CITY's STP-L Funds Balance and CITY's HIP Funds Balance, as defined herein, which CITY's STP-L Funds Balance and CITY’s HIP Funds Balance show that CITY has sufficient STP-L Funds and HIP Funds to meet its obligations hereunder, and (iii) LACMTA's deduction of CITY's STP-L Funds and CITY's HIP Funds as provided in paragraph 1 above, LACMTA shall pay CITY $248,861 of LACMTA Funds which includes the deduction for the processing fee described in paragraph 5 below. For purposes of this AGREEMENT, CITY's "STP-L Funds Balance" and CITY's "HIP Funds Balance" shall mean the amounts of funds contained in CITY's STP-L Funds and CITY's HIP Funds accounts as of the date that this AGREEMENT is fully executed, which include CITY's apportionment share of FY22 STP-L Funds and share of HIP Funds from the federal Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA) that was enacted on December 27, 2020. If the STP-L Funds Balance and HIP Funds Balance become insufficient to satisfy CITY's exchange obligations hereunder, CITY hereby authorizes LACMTA to deduct from CITY's future balance of STP-L funds until LACMTA has in the aggregate received the amount of CITY's STP-L Funds and CITY's HIP Funds specified in paragraph 1 above.
4. CITY must complete and submit an Automated Clearing House (ACH) form (Exhibit A) through LACMTA's website to allow LACMTA to make disbursements electronically.
Disbursements via ACH will be made at no cost to CITY. If electronic disbursements are not the preferred method of disbursement, CITY may request an exception in writing.
5. CITY shall pay LACMTA a two-percent (2%) processing and administrative fee (the "Processing Fee") in connection with the exchange contemplated by this AGREEMENT. The Processing Fee shall be assessed against the total amount of LACMTA Funds payable to CITY. CITY hereby authorizes LACMTA to deduct the Processing Fee from the amount LACMTA is to pay CITY hereunder.
6. CITY shall expend the LACMTA Funds on an STP-L and HIP Eligible Project and by the Lapsing Date, consistent with the Statement of Work, Schedule and Budget provided in Exhibit B. For the purposes of this AGREEMENT, the "Lapsing Date" shall mean the date that is three (3) years from the date that this AGREEMENT is fully executed. Any LACMTA Funds not expended by the Lapsing Date shall lapse and be returned to LACMTA within thirty (30) days of the Lapsing Date for further programming to third parties as LACMTA determines in its sole discretion.
A. For the purposes of this AGREEMENT, the term "Eligible Project" shall mean the transportation activities described in Exhibit B that: i) would normally qualify under Section 133(b) of Title 23, U.S.C: or ii) are for costs related to preventive maintenance, routine maintenance, debt service payments, availability payments, operations, personnel (including salaries of employees and those employees who have been placed on administrative leave, or contractors), and coverage for other revenue losses due to the coronavirus pandemic. Any other applicable federal regulations and standards related to procurement and project delivery issues may be substituted with applicable state and local regulations, standards, and policies.
B. The term "expend" as used in Section 6 shall mean "encumbered by an awarded Agreement Number 9200000000HIP2108
3 contract or paid for an eligible transportation activity".
C. If the LACMTA Funds have lapsed and CITY has not returned all or a portion of the lapsed LACMTA Funds to LACMTA, then CITY shall be considered to be in default and agrees that such outstanding payments shall be paid from CITY funds in the following priority: first, from any of CITY's unobligated HIP Funds Balance, then from CITY's STP-L Funds Balance, then from CITY's Proposition A local return funds, then from CITY's Proposition C local return funds, then from CITY's Measure R local return funds, and then from CITY's Measure M local return funds. If CITY is in default hereunder, in addition to all rights and remedies available to LACMTA at law or in equity and without further notice or ability to cure by CITY, CITY hereby authorizes LACMTA to withhold the applicable HIP, STP-L or local return funds in the amount needed to satisfy the outstanding amount of lapsed LACMTA Funds due and owing to LACMTA prior to LACMTA transferring the balance of such funds to the CITY in accordance with the applicable state laws or ordinances.
7. CITY must use the LACMTA Funds in the most cost-effective manner. If CITY intends to use a consultant or contractor to implement all or part of the STP-L and HIP Eligible Project, LACMTA requires that such activities be procured in accordance with CITY's contracting procedures and be consistent with State law as appropriate. CITY will also use the LACMTA Funds in the most cost-effective manner when the LACMTA Funds are used to pay "in-house" staff time. CITY staff or consultants with project oversight roles may not award work to companies in which they have a financial or personal interest. This effective use of funds provision will be verified by LACMTA through on-going project monitoring and through any LACMTA interim and final audits.
8. LACMTA, and/or its designee, shall have the right to conduct audits of CITY's use of the LACMTA Funds, as deemed appropriate, such as financial and compliance audits; interim audits; pre-award audits, performance audits, and final audits. CITY agrees to establish and maintain proper accounting procedures and cash management records and documents in accordance with Generally Accepted Accounting Principles (GAAP). CITY's records shall include, without limitation, any supporting evidence deemed necessary by LACMTA to substantiate CITY's use of LACMTA Funds. These records must be retained by CITY for five years following CITY's last use of the LACMTA Funds. CITY 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 AGREEMENT. The eligibility of costs for CITY's own expenditures submitted to LACMTA for the Eligible Project shall be in compliance with Office of Management and Budget (OMB) Circular A-87 (relocated to Title 2 in the Code of Federal Regulations, Subtitle A, Chapter II, part 225). The eligibility of costs for CITY's contractors, consultants, and suppliers expenditures submitted to LACMTA through CITY's Monthly Progress Reports and Quarterly Expenditures shall be in compliance with OMB Circular A-87 (as relocated) or Federal Acquisition Regulation (FAR) Subpart 31 (whichever is applicable). Findings of the LACMTA audit are final. When LACMTA audit findings require CITY to return monies to LACMTA, CITY agrees to return the monies within thirty (30) days after the final audit is sent to CITY.
Agreement Number 9200000000HIP2108
4 9. The terms of this AGREEMENT shall commence on the date that this AGREEMENT is fully executed and shall terminate once CITY has expended all the LACMTA Funds and all LACMTA audit and reporting requirements have been satisfied.
10. CITY shall fully indemnify, defend and hold LACMTA and its officers, agents, and employees harmless from and against any liability and expenses, including, without limitation, defend costs, any costs or liability on account of bodily injury, death or personal injury of any person, or for damages of any nature whatsoever arising out of (i) a breach of CITY's obligations under this AGREEMENT; or (ii) any act or omission of CITY or its officers, agents, employees, contractors, or subcontractors in the use of the LACMTA Funds.
11. LACMTA shall fully indemnify, defend and hold CITY and its officers, agents, and employees harmless from and against any liability and expenses, including, without limitation, defend costs, any costs or liability on account of bodily injury, death or personal injury of any person, or for damages to or loss of risk of property, any environmental obligations, any legal fees and any claims for damages of any nature whatsoever arising out of (i) a breach of LACMTA's obligations under this AGREEMENT; or (ii) any act or omission of LACMTA or its officers, agents, employees, contractors, or subcontractors in the use of CITY's STP-L Funds and CITY's HIP Funds.
12. This AGREEMENT may be amended or modified only by mutual written consent of LACMTA and CITY.
13. Any correspondence, communication, or contact concerning this AGREEMENT shall be directed to the following:
CITY OF COMMERCE
Gina Nila, Director of Public Works
City of Commerce
5555 Jillson Street
Commerce, CA 90040
[email protected]
LACMTA
Michael Richmai
Senior Manager, Countywide Planning and Development
One Gateway Plaza (Mail Stop: 99-23-3)
Los Angeles, California 90012-2952
[email protected]
14. This AGREEMENT shall be interpreted and governed by the laws of the State of California.
15. This AGREEMENT constitutes the entire understanding between the parties with respect to the subject matter herein.
Agreement Number 9200000000HIP2108
5 IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed by their respective officers as of the date stated below.
LOS ANGELES COUNTY CITY OF COMMERCE
METROPOLITAN TRANSPORTATION
AUTHORITY
By: By:
Stephanie N. Wiggins Oralia Y. Rebollo
Chief Executive Officer Mayor
APPROVED AS TO FORM: APPROVED AS TO FORM:
Dawyn R. Harrison Noel Tapia
Interim County Counsel City Attorney
By: By:
Deputy City Attorney
Agreement Number 9200000000HIP2108
Exhibit A
AUTOMATED CLEARING HOUSE (ACH) PAYMENT AUTHORIZATION
Agreement Number 9200000000HIP2108
Exhibit A
AUTOMATED CLEARING HOUSE (ACH) PAYMENT AUTHORIZATION
Agreement Number 9200000000HIP2108
Exhibit A
AUTOMATED CLEARING HOUSE (ACH) PAYMENT AUTHORIZATION
Agreement No. 9200000000HIP2108
Exhibit B
STATEMENT OF WORK
Project Title: 2022/2023 City of Commerce Pavement Rehabilitation Project.
Project Description: Pavement maintenance and rehabilitation improvements at various streets as identified on City’s Pavement Management Program. The improvements include slurry seal, asphalt concrete coldmill and overlay, localized asphalt pothole repairs, construction of curb ramps, signage and striping.
Project Schedule:
Advertise March 2023
Award Contract April 2023
Start Construction May 2023
Complete Construction December 2023
Project Funding:
Measure AA $4,000,000
LACMTA Funds* $248,861
Total Funding $4,248,861
*Net of 2% processing and administrative fee.