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HomeMy WebLinkAboutResolutions 2011-137 N.C.S. 09/19/2011 Resolution No. 2011 -137 N.C.S of the City of Petaluma, California APPROVING AGREEMENT BETWEEN SONOMA -MARIN AREA RAIL TRANSIT DISTRICT (SMART) AND CITY OF PETALUMA TO ALLOW CITY OF PETALUMA TO ACT AS 'A PASS THROUGH AGENCY FOR A $427,500 FEDERAL EARMARK FOR SMART RAIL PROJECTS WHEREAS, grant funds are available to the Sonoma -Marin Area Rail Transit District (SMART) from the Federal Transit Administration ( "FTA ") to implement rail projects; and/ WHEREAS, under applicable FTA grant requirements, only an eligible recipient may serve as the direct recipient of these federal funds and enter into a formal grant contract with FTA; and, WHEREAS, SMART, as a subgrantee, is not an eligible direct recipient of FTA grant funds and has requested that City of Petaluma act as the primary grantee pass- through agent for FTA funds for the subgrantee; and, WHEREAS, applicable FTA regulations permit a grantee to pass FTA funds through to another agency to carry out the purposes of the grant agreement, provided that the recipient enters into a written agreement with the subrecipient, passing through the grant requirements to the subrecipient; and, WHEREAS, City of Petaluma and subgrantee desire to enter into a formal contract pursuant to which, the aforementioned FTA and related local match grant funds for implementation of the projects will be passed through the City to the subgrantee. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby authorizes the City Manager to execute the FTA Pass - Through Agreement By and Between Sonoma -Marin Area Rail Transit District and City of Petaluma, attached as Exhibit A to the Resolution. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the as as to Council of the City of Petaluma at a Regular meeting on the 19 day of September, J fo'm: 2011, by the following vote: CitAttorney AYES: Albertson, Barrett, Mayor Glass. Harris. Vice Mayor Healy, Kearney, Renee NOES: None ABSENT: None ABSTAIN: None W ujciej A P ATTEST: _ • I L/ _ /1 City Clerk • or Resolution No. 2011 -137 N.C.S. Page 1 • EXHIBIT A TO RESOLUTION 2011 -137 N.C.S. FTA PASS- THROUGH AGREEMENT By and Between Sonoma -Marin Area Rail Transit District and City of Petaluma This Agreement ( "Agreement ") has been entered into by and between the CITY OF PETALUMA (hereinafter "City ") and the SONOMA -MARIN AREA RAIL TRANSIT DISTRICT (hereinafter "Subgrantee "), as of September 21, 2011, for the undertaking of: SMART Planning Studies ( "Project "). City and Subgrantee are hereinafter referred to collectively as the "Parties." WHEREAS, grant funds are available from the Federal Transit Administration ( "FTA ") to implement the Project; and WHEREAS, under applicable FTA grant requirements, only an eligible recipient may serve as the direct recipient of the federal funds and enter into a formal grant contract with FTA; and WHEREAS, Subgrantee is not an eligible direct recipient of FTA grant funds and has requested that City act as the primary grantee pass- through agent for FTA funds for Subgrantee; and WHEREAS, applicable FTA regulations permit a grantee to pass FTA funds through to another agency to carry out the purposes of the grant agreement provided that the recipient enters into a written agreement with the subrecipient passing through the grant requirements to the subrecipient; and WHEREAS, City and Subgrantee desire to enter into a formal contract pursuant to which the aforementioned FTA and related local match grant funds for implementation of the Project will be passed through City to Subgrantee. NOW, THEREFORE, IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS: AGREEMENT 1. TERMS AND CONDITIONS. The Project shall be undertaken and accomplished in accordance with the terms and . conditions specified herein or contained in the Appendices named below, which are attached hereto and by reference incorporated herein. City has applied for the Grant pursuant to a 2009 Earmark. A copy of the Grant and the City of Petaluma /FTA Grant Agreement executed on August 4, 2011, for that Grant is attached as Appendix A. Appendix B contains general provisions applicable to this Agreement. Appendix C contains (1) the referenced Certifications and Assurances and (2) Department of Labor referral letter and conditions of the respective protective arrangements applicable to the Project. Appendix D contains the Project Budget, by line item, and identifies the funding sources. 2. EFFECTIVE DATE. The effective date of this Agreement shall be September 21, 2011. The Project shall be completed on or before June 30, 2013. Resolution No. 201 1 -137 N.C.S. Page 2 3. FTA FUNDING AND EXPENSES. The total of all federal funds available through this grant for expenses incurred in performance of Project shall not exceed the sum of Four Hundred and Twenty Seven Thousand and Five Hundred Dollars ($427,500). These federal funds (the "Grant ") will be immediately available, upon award of the Grant, for reimbursing expenditures under this Agreement. No local match funds are required for this Grant. If the Project costs exceed the sum available in this Grant, those Project costs are the responsibility of the Subgrantee. 4. REIMBURSEMENT OF CITY EXPENSES. In consideration of the work provided by City of Petaluma staff, Subgrantee will reimburse the cost of staff time and legal counsel incurred to administer the Grant and implement the pass through of funds as described in this Agreement ( "City Costs "), including without limitation costs of applying for the Grant, negotiating this Agreement, and undertaking related activities prior to the Effective Date and /or execution date of this Agreement and /or the Grant award. The Parties acknowledge that City Costs may not be payable from Grant funds, and in that event City Costs will be paid by Subgrantee from other funds, which Subgrantee hereby acknowledges have been or will be made available for such purpose. Expenses will be invoiced by the City of Petaluma directly to Subgrantee and payment will be made within forty -five (45) days of the invoice date(s). 5. SUBGRANTEE MANAGEMENT; PROJECT DESCRIPTION. The Project Manager will be the Subgrantee's Chief Engineer. The Project shall be conducted and administered by Subgrantee under the direction of its Executive Director /General Manager, who will be responsible for the day to day administration of the Project: Farhad Mansourian Executive Director Sonoma -Marin Area Rail Transit District 750 Lindaro Street, Suite 200 San Rafael, California 94901 (415) 226 -0886 Any notices required or permitted to be sent to Subgrantee by City shall be addressed to the person and at the address specified above, unless changed in writing by Subgrantee. The Scope of Work will be pursuant to the Project description contained in Appendix A (Grant Application /Executed Agreement). 6. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the benefit of the respective successors and assignees of the Parties; provided, however, that no assignment of Subgrantee's rights and responsibilities hereunder shall be permitted without the prior written consent of City. 7. ENTIRE AGREEMENT. This Agreement, including Appendices A through D, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the Parties with respect to the subject matter thereto. 8. SEVERABILITY. If any term, provision or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless the rights and obligations of the Parties shall be materially altered or abridged thereby. 9. PARTIES NOT CO- VENTURERS. Nothing in this Agreement is intended to or shall establish the Parties as partners, co- venturers or principal and agent with one another. IN WITNESS WHEREOF, this Agreement has been executed by the Parties hereto as of the date first set forth above: Resolution No. 2011 -137 N.C.S. Page 3 CITY OF PETALUMA: By: John Brown, City Manager ATTEST: Claire Cooper, City Clerk APPROVED AS TO FORM FOR CITY: Eric W. Danly, City Attorney APPROVED: Department Director APPROVED: Ron Blanquie, Risk Manager APPROVED: Bill Mushallo, Finance Director SONOMA -MARIN AREA RAIL TRANSIT DISTRICT: By: Farhad Mansourian, Executive Director APPROVED AS TO FORM FOR SUBGRANTEE: Sheryl Bratton, Assistant County Counsel Resolution No. 2011-137 N.C.S. Page 4 APPENDIX B GENERAL PROVISIONS 1. General: Subgrantee shall comply with any and all laws, statutes, ordinances, rules, regulations or requirements of the federal, state or local government, and any agency thereof, which relate to or in any manner affect the performance of this Agreement. 49 CFR Part 18, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments," Circular 4220.1F of the Federal Transit Administration (FTA), and the PETALUMA /FTA Grant Agreement executed August 4, 2010, with referenced Certifications and Assurances and Department of Labor referral letter and the terms and conditions of respective protective arrangements, attached hereto as Appendix C (collectively, "Grant Terms and Conditions "), are each incorporated herein by reference as though set forth in full, and shall govern this Agreement except as otherwise provided herein. Those requirements imposed upon PETALUMA as "grantee" or "recipient" are hereby imposed upon Subgrantee, and those rights reserved by DOT, FTA or other agencies of the Federal Government are hereby reserved by PETALUMA. 2. Accomplishment of the Project: Subgrantee shall accomplish this Project in a timely and satisfactory manner, in conformance with the work program and Project Budget contained in Appendix A hereto, and in compliance with the terms and conditions contained herein. Subgrantee may accomplish all or any portion of the Project by procurement through Subcontractors in accordance with 49 CFR Part 18 and FTA Circular 4220.1 F. Subgrantee shall furnish PETALUMA with copies of any subcontract to this Agreement, or amendments thereto, in amounts exceeding One Hundred Thousand Dollars ($100,000). 3. Financial Management a. Accounts: In conducting accounting activities, Subgrantee shall comply with provisions contained in 49 CFR Part 18. b. Funds: Should the Project budget exceed the Grant amount of Four Hundred Twenty Seven Thousand and Five Hundred Dollars, Subgrantee agrees to cover all the excess costs of the Project. c. Allowable Costs: Subject to the Grant Terms and Conditions, PETALUMA shall reimburse Subgrantee for those services and expenses required to perform the work in accordance with the Project budget as described in Appendix A. Reimbursement shall be in accordance with the cost principles set forth in Office of Management and Budget ( "OMB ") Circular A -87, Revised, "Cost Principles Applicable to Grants and Contracts with State and Local Governments." d. Record Retention: Subgrantee shall retain intact and accessible all data, documents, reports, records, contracts and supporting materials relating to the Project ( "Records ") during the course of the Project and for three years after the date of final payment by FTA to PETALUMA under the PETALUMA /FTA Grant Agreement or the date of final completion of the Project, whichever occurs later. If any litigation, claim, negotiation, audit or other action related to the Project is started before the end of said three -year period, Subgrantee shall retain Records for three years after completion and resolution of the action and all issues related to it. e. Access to Records: Upon request, Subgrantee agrees to permit authorized representatives of the Federal Transportation Agency, the Comptroller General of the United States, and the City of Petaluma to inspect all Project work, materials, payrolls, and other data, or other books, records, and accounts of Subgrantee pertaining to the Project, beginning with execution of this Agreement and extending to three years from Resolution No. 2011 -137 N.C.S. Page 6 final payment by FTA to PETALUMA under the PETALUMA /FTA Grant Agreement. In addition, Subgrantee shall provide copies of all source documents required to verify compliance with the requirements of this Agreement, including but not limited to, approved cost allocation plans, written progress reports, job cost ledgers, and time records. Subgrantee shall maintain all records related to the Project and its costs for three years from the date of final payment by the FT A to PETALUMA under the PETALUMA /FTA Grant Agreement or the date of final completion of the Project, whichever is later. Furthermore, Subgrantee shall require each of its contractors and subcontractors to allow representatives of the FTA, the State, and PETALUMA to have access to all books, records, and documents relative to all costs and performance under the Agreement for the purpose of auditing, inspecting, and copying such books, records, and documents beginning with the execution of the contract or subcontract and extending for three years after final payment under the Agreement. The contractors and subcontractors shall be required to maintain all records related to contract or subcontract costs and performance for three years following final payment to them under the contract or subcontract. f. Audit: Subgrantee will provide thorough and complete accounting for all funds expended in the performance of this work, to the extent that such funds are provided by PETALUMA, consistent with 49 Code of Federal Regulations, Part 18.37(b). Subgrantee shall be responsible for meeting audit requirements of the Single Audit Act Amendments of 1996, 31 U.S.C. §§ 7501 et. seq., in accordance with OMB Circular A -133, "Audits of States, Local Governments, and Non - Profit Organizations," and any revision or supplement thereto. Subgrantee shall annually submit to PETALUMA one copy of its audit completed in accordance with the above - described single audit requirements within thirty (30) days after completion of the audit, but not later than one (1) year after the end of the audit period. 4. Project Reporting a. Timing of Reports: The quarterly reporting periods shall end December 31, March 31, June 30 and September 30. Subgrantee reports, including Narrative Progress Reports and Financial Reports, are due to PETALUMA fifteen (15) days after the end of the quarterly reporting period to allow PETALUMA sufficient processing time. Milestone /progress reports are due to FTA within thirty (30) days after the end of each calendar quarter (i.e., by January 30, April 30, July 30, and October 30). Subgrantee agrees to comply with the project management principles in the PETALUMA /FTA Grant Agreement, amendments thereto, and any other regulations and circulars that may be applicable. b. Administration. Subgrantee shall appoint a Project Manager who shall see that Project accounts are maintained subject to FTA regulations and PETALUMA approval, prepare progress reports as required by the FTA, and administer the Project. c. Content of Reports: (1) Narrative Progress Report: Subgrantee shall prepare a narrative progress report covering accomplishments during the quarterly reporting period. These periodic reports shall contain a narrative description of the following information: specification preparation: bid solicitation; resolution of any protests; any contract awards; work completed during the period; tasks expected to be performed during the next period; and explanations of problems or delays encountered or anticipated. (2) Financial Report: Subgrantee shall prepare a financial report covering the same reporting periods specified above. These reports shall include, but not be limited to, a balance sheet and a Project expenditure statement by line item code. Resolution No. 2011 -137 N.C.S. Page 7 5. Requisitions: Subgrantee shall prepare requisitions for reimbursement for services performed and /or expenses incurred under this Agreement, and shall segregate costs by activity pursuant to the Project Budget contained in the Grant Application /Agreement (Appendix A). In addition, each invoice shall have sufficient documentation to show grant, local match, and in -kind amounts, as applicable. Such requisitions shall be signed by Subgrantee's Chief Financial Officer, or equivalent, or a designated representative thereof. Subgrantee shall maintain records of payroll distribution, receipted bills, and such other documentation as may be reasonably required by PETALUMA. Requisitions shall be accompanied by supporting documentation. If a requisition includes payment for work performed under subcontract, copies of the Subgrantee invoices and proof of payment shall be enclosed. The number of requisitions submitted by Subgrantee to PETALUMA shall be limited to the least number of requisitions possible, and in no event shall be submitted more frequently than quarterly. 6. Payment: PETALUMA shall make payments to Subgrantee as expeditiously as possible, following the approval of requisitions and the subsequent receipt of funds from FTA. (a) Subgrantee acknowledges that if any portion of any grant under the PETALUMA /FTA Grant Agreement is not funded by FTA, or if the Grant is deobligated or terminated by FTA, PETALUMA is not obligated to provide such funds to Subgrantee and is not liable to Subgrantee in any way for such funding. Subgrantee acknowledges that PETALUMA will seek reimbursement from FTA after making payments to Subgrantee under this Agreement. Subgrantee further agrees promptly to fully refund to PETALUMA any payments under this Agreement that are subsequently disallowed by FT A or determined by any audit to be unallowable, whether or not the Grant has been deobligated or terminated. (b) Subgrantee agrees that only actual, allowable, necessary and reasonable costs are reimbursable and that all Project costs invoiced to PETALUMA shall comply with the PETALUMA /FTA Grant Agreement scope, terms and conditions. Subgrantee agrees to comply with Title 2 Code of Federal Regulations Part 225 (formerly Office of Management and Budget (OMB) Circular A -87), Cost Principles for State and Local Government, and 49 CFR Part 18 Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and to require all of its commercial third party contractors to comply with the cost principles of Title 48 Code of Federal Regulations Part 31. 7. Project Property: Subgrantee agrees to comply with the property management standards of 49 CFR Sections 18.31 -18.34 and any requirements contained in the form of FTA Master Agreement, located at http: / /www.fta. dot .gov /documents /12- Master.doc, relating to property management. 8. Changes: From time to time, circumstances or conditions may require changes to this Agreement. Changes which are mutually agreed upon between Subgrantee and PETALUMA shall be incorporated in written amendments to this Agreement. 9. Termination: Subgrantee agrees that PETALUMA may terminate this Agreement for cause if Subgrantee is in default of any provision. Termination shall be effected by serving a thirty (30) day written notice of termination on Subgrantee setting forth the manner in which Subgrantee is in default. In the event that PETALUMA determines, in its sole discretion, that the alleged default is susceptible to and appropriate for cure, said notice shall specify the manner in which the alleged default may be cured. If Subgrantee does not cure a default deemed by PETALUMA to be curable as evidenced in the termination notice, within thirty (30) days of the receipt of the notice, or commence to cure within the thirty (30) day period and thereafter diligently prosecute the cure to completion to the satisfaction of PETALUMA, PETALUMA may in its sole discretion terminate this Agreement. If the Agreement is terminated, Subgrantee will be reimbursed for work performed in accordance with the Resolution No. 2011-137 N.C.S. Page 8 Agreement prior to termination, provided that PETALUMA has received Grant funds therefor and Subgrantee has not previously been reimbursed for such costs, and PETALUMA shall have no further obligation to Subgrantee under this Agreement. 10. Indemnification: To the maximum extent permitted by law, Subgrantee shall, at its own expense, indemnify, defend with counsel acceptable to PETALUMA (which acceptance will not be unreasonably withheld), and hold harmless PETALUMA and its officers, officials, employees, agents and volunteers ( "Indemnitees ") from and against any and all liability, loss, damage, claims, suits, actions, arbitration proceedings, regulatory proceedings, civil penalties and fines, expenses and costs (including, without limitation, claims expenses, attorneys' fees and costs and fees of litigation) (collectively, "Liability ") of every nature, whether actual, alleged or threatened, arising out of or in any connection with the FTA Pass - Through Agreement or Subgrantee's failure to comply with any of the terms of the Agreement, regardless of any fault or alleged fault of the Indemnitees. Subgrantee's obligation to indemnify, defend and hold harmless under this provision shall not be excused because of Subgrantee's inability to evaluate Liability, or because Subgrantee evaluates Liability and determines that Subgrantee is not or may not be liable. Subgrantee must respond within thirty (30) calendar days to any tender for defense and indemnity by PETALUMA, unless the time for responding has been extended by an authorized representative of PETALUMA in writing. If Subgrantee fails to accept tender of defense and indemnity within thirty (30) calendar days, in addition to any other remedies authorized by law, so much of the money due or that may become due to Subgrantee under this Agreement as shall reasonably be considered necessary by PETALUMA, may be retained by PETALUMA until disposition has been made of the matter subject to tender, or until Subgrantee accepts the tender, whichever occurs first. In the event that PETALUMA must file responsive documents in a matter tendered to Subgrantee prior to Subgrantee's acceptance of tender, Subgrantee agrees to fully reimburse all costs, including but not limited to attorneys' fees and costs and fees of litigation, incurred by PETALUMA in filing such responsive documents. Subgrantee waives any and all rights to express or implied indemnity against the Indemnitees concerning any Liability of the Subgrantee arising out of or in connection with the FTA Pass - Through Agreement or Subgrantee's failure to comply with any of the terms of the Agreement. Notwithstanding the foregoing, to the extent this Agreement is a "construction contract" as defined by California Civil Code Section 2783, as may be amended from time to time, Subgrantee's duty to indemnify under this provision shall not apply when to do so would be prohibited by California Civil code Section 2782, as may be amended from time to time. Notwithstanding the foregoing, to the extent that Subgrantee renders design professional services subject to California Civil Code Section 2782.8, as may be amended from time to time, Subgrantee's duty to indemnify shall only be to the maximum extent permitted by California Civil Code Section 2782.8. Resolution No. 2011 -137 N.C.S. Page 9 APPENDIX D PROPOSED BUDGET PROJECT BUDGET Source of Funds Federal Grant $427,500 Local Match* 0 Total $427,500 *No local match is required by the Federal Transit Administration, If Project costs exceed $427,500, all costs exceeding that amount are the responsibility of the Subgrantee." Uses of Funds SMART Planning and Technical Studies $427,500 for Larkspur to San Rafael Transit Corridor Resolution No. 2011 -137 N.C.S. Page 13