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PW TAM Funding Agr. 2015-017; Measure A; Puerto Suello Hill Multi-Use PathTAM AGREEMENT #2015-017 FUNDING AGREEMENT BETWEEN TRANSPORTATION AUTHORITY OF MARIN AND CITY OF SAN RAFAEL This AGREEMENT is made this y_/(, day of J,, (,.� , 201L, by and between the Transportation Authority of Marin, hereinafter referred to as "TAM", a local public agency, and the City of San Rafael, hereinafter referred to as "RECIPIENT", a local public agency. SECTION 1. RECITALS 1. The voters of Marin County approved the authorization of Measures A and B, thereby authorizing that TAM be given the responsibility to administer the proceeds from a one-half cent transportation sales tax (TST) and a $10 increase in the vehicle registration fee (VRF), respectively, to fund transportation - related projects and programs in Marin County. 2. The proceeds will be used to pay for the programs and projects outlined in the TST (Measure A) and VRF (Measure B) Expenditure Plans and further guided by the TST and VRF Strategic Plans. 3. According to the TST Strategic Plan, TST interest earnings will be allocated to projects and programs as determined by the TAM Board that are above and beyond the four established strategies but consistent with the intent of the TST Expenditure Plan. 4. The TAM Board in 2006 established a policy to fund up to 50% of the cost with TST interest funds to perform routine maintenance of newly created pathways on the North/South Greenway. 5. According to the VRF Strategic Plan, five percent (5%) of VRF funds will be allocated to sponsors, under Element 1.1, to perform routine maintenance on Class I bicycle and pedestrian pathways opened for public use after January 1, 2008. 6. Routine maintenance tasks include trash collection, sweeping, weeding, trimming brushes and shrubs, clearing debris and leaves, removing graffiti, performing visual inspections, filling minor potholes and surface crack, conducting minor repairs, repairing lights and landscape irrigation, and paying electricity, water, and security costs. 7. For VRF funds, the annual allocation will be retroactive to the date of opening of the facility and will remain effective until another eligible Class I bike path is opened for public use. 8. When a new Class I pathway is deemed eligible to receive TST or VRF funds for routine maintenance, the amount of annual TST and/or VRF allocations to existing funded pathways will be reassessed and an amendment to this AGREEMENT will be issued. 9. RECIPIENT is the responsible agency for all operations and maintenance work on the Puerto Suello Hill Pathway along southbound State Route 101. Page 1 of 6 SECTION 2. PURPOSE OF FUNDING AGREEMENT This AGREEMENT is entered into by and between TAM and RECIPIENT to document the funding conditions necessary for the RECIPIENT to comply with applicable law and TAM policies. This Agreement is further entered to supersede TAM CONTACT A -FY -10/11-010 (dated August 2, 2010) that was previously entered to fund routine maintenance of the Puerto Suello Hill Pathway. TAM CONTACT A -FY -10/11-010 is hereby null and void. SECTION 3. PROJECT DEFINITION AND SCOPE This AGREEMENT, approved by the TAM Board on November 29, 2012, in accordance with the requirements of TAM's TST and VRF Expenditure Plans and Strategic Plans, is made for the purpose of performing routine maintenance of the Puerto Suello Hill Pathway. Additional information on project scope is included in the attached Project Information Sheet (EXHIBIT A). SECTION 4. GRANT TAM hereby grants to the RECIPIENT an annual sum in TST and VRF funds as shown in EXHIBIT A, as approved by the TAM Board on November 29, 2012. This AGREEMENT remains in effect until one of the following incidents occurs: 1) a new Class I pathway is eligible to receive TST and/or VRF funds for maintenance and the amount of annual TST and/or VRF funds to each eligible project is reassessed, 2) TST interest funds becomes insufficient to support routine maintenance projects, or 3) any incident that triggers Section 16 below. SECTION 5. COST ELIGIBILITY Routine maintenance tasks and costs, as defined in EXHIBIT A, are eligible for reimbursement under this AGREEMENT. Cost eligibility shall be determined by TAM's Expenditure Plan and Strategic Plan policies. While the tasks and costs of the routine maintenance shall be eligible for reimbursement in accordance with the terms of this AGREEMENT, the timing and amount of reimbursement will be subject to a TAM allocation, based on available revenues, other anticipated project requests, and project category and subcategory limits established in the TST and VRF Strategic Plans and Expenditure Plans. SECTION 6. PROJECT OVERSIGHT RECIPIENT shall cooperate with TAM's project management team and shall provide any requested project information. SECTION 7. COMPLIANCE WITH LAW In the performance of its obligations pursuant to this AGREEMENT, RECIPIENT shall keep itself fully informed of the federal, state and local laws, ordinances and regulations in any manner affecting the performance of this Agreement, and must at all times comply with such laws, ordinances, and regulations as they may be amended from time to time. Page 2 of 6 SECTIONS. FINANCES All costs charged to the project shall be supported by properly prepared and documented time records, invoices, or vouchers evidencing in detail the nature and propriety of the charges and the basis for the percentage charged to TAM. SECTION 9. RECORDS All checks, payrolls, invoices, contracts, vouchers, journal entries, work orders, or other accounting documents pertaining in whole or in part to the project shall be maintained by RECIPIENT for a period of five (5) years after the later of project closeout or termination of grant. Such project documents shall be clearly identified, readily accessible, and, to the extent feasible, kept separate and apart from all other similar documents not pertaining to the project. SECTION 10. REIMBURSEMENTS Payment shall be made by TAM for costs reimbursable under the terms of this AGREEMENT and incurred prior to the termination date of this AGREEMENT. Payment to RECIPIENT of the grant shall be upon written approval by TAM, upon submittal by RECIPIENT of appropriate support documentation and identification of expenses incurred. Reimbursement requests, with appropriate documentation, may be submitted annually after the first full year pathway is in service. Each reimbursement request shall include RECIPIENT's certification that the amounts sought are only for tasks and costs included in EXHIBIT A, and that RECIPIENT is in compliance with TAM's requirements mentioned in this AGREEMENT. SECTION 11. ELIGIBLE EXPENSES RECIPIENT shall expend funds only on eligible expenses as follows: operating costs, direct staff time (salary and benefits), contractors, and competitively bid construction contracts. Indirect costs (as defined by OMB Circular A-87) will not be considered an eligible expense. Funds shall also be expended according to the applicable provisions of the TST and VRF Expenditure Plans and of the Public Utilities Code Section 180000 et seq. SECTION 12. AUDITS TAM reserves the right at any time to conduct or require a financial or performance audit of the RECIPIENT'S compliance with this AGREEMENT. TAM will give advance notice of the requirement. RECIPIENT shall permit TAM, or any of its duly authorized representatives, to inspect all work, materials, payrolls, and other data and records with regard to the project, and to audit the books, records, and accounts of the RECIPIENT and its contractors with regard to the project. SECTION 13. THIRD PARTY CONTRACT AUDITS TAM reserves the right to request an audit of other third party contracts for any reason. If RECIPIENT is subject to third party financial audit requirements imposed by another funding source, copies of audits performed in fulfillment of such requirements shall be provided to the TAM. Page 3 of 6 SECTION 14. REPAYMENT OF INELIGIBLE COSTS TAM reserves the right to offset RECIPIENT payback of ineligible costs against future grant approvals for this project or other projects in the TST and VRF Expenditure Plans for which RECIPIENT is the sponsoring agency. SECTION 15. RIGHT TO WITHHOLD If the above items are not provided to TAM by the annual due date and/or such items are found not to be in compliance with this AGREEMENT, Public Utilities Code Section 180000 et seq., the TST or VRF ballot measures or the TST or VRF Strategic Plans, TAM may withhold funds for future allocations from RECIPIENT until RECIPIENT has corrected any noted deficiencies to TAM's satisfaction. While funds are being withheld, all interest on withheld funds shall be retained by TAM as an administrative fee. SECTION 16. TERMINATION FOR CAUSE RECIPIENT agrees that, upon ten (10) working days written notice, TAM may suspend or terminate all or part of the financial assistance provided herein for failure to correct a breach of this AGREEMENT. Any failure to make reasonable progress, inconsistency with the TST or VRF Expenditure Plans or EXHIBIT A, unauthorized use of grant funds as specified in this AGREEMENT, or other violation of the AGREEMENT that significantly endangers substantial performance of the project shall be deemed to be a breach of this AGREEMENT and cause for termination. SECTION 17. CORRECTION OF BREACH With respect to any breach, which is reasonably capable of being cured, RECIPIENT shall have thirty (30) days from the date of notice of breach to initiate steps to cure. If RECIPIENT diligently pursues cure, such RECIPIENT shall be allowed a reasonable time to cure or by a time established in writing by TAM. SECTION 18. LIABILITY Neither TAM nor any officer or employee thereof, shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by RECIPIENT under in connection with any work, authority, or jurisdiction delegated to RECIPIENT under this AGREEMENT. It is also understood and agreed that pursuant to Government Code Section 895.4, RECIPIENT shall fully defend, indemnify and hold TAM harmless from any liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted to be done by RECIPIENT under or in connection with any work, or jurisdiction delegated to RECIPIENT under this AGREEMENT. Neither RECIPIENT nor any officer or employee thereof, shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by TAM under in connection with any work, authority, or jurisdiction delegated to TAM under this AGREEMENT. It is also understood and agreed that pursuant to Government Code Section 895.4, TAM shall fully defend, indemnify and hold RECIPIENT harmless from any liability imposed for injury (as defined by Government Code Section 810.8) occur in by reason of anything done or omitted to be done by TAM under or in connection with any work, or jurisdiction delegated to TAM under this AGREEMENT. In the event of concurrent negligence of RECIPIENT and TAM, the liability for any and all claims for injuries or damages to persons and/or property shall be apportioned under the California theory of comparative negligence as presently established or as may hereafter modified. Page 4 of 6 SECTION 19. OBLIGATIONS In general, termination of financial assistance under this AGREEMENT will not invalidate obligations properly incurred by RECIPIENT before the termination date; to the extent those obligations cannot be canceled. SECTION 20. INTEGRATION This AGREEMENT represents the entire AGREEMENT of the parties with respect to the subject matter thereof. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in other contemporaneous written agreements. SECTION 21. AMENDMENT Except as otherwise provided herein, this AGREEMENT may not be changed, modified or rescinded except in writing, signed by all parties hereto, and any attempt at oral modification of this AGREEMENT shall be void and of no effect. It is expected that EXHIBIT A will be amended as new pathways are determined to be eligible for TST or VRF funds. SECTION 22. INDEPENDENT AGENCY RECIPIENT performs the terms and conditions of this AGREEMENT as an entity independent of TAM. None of RECIPIENT'S agents or employees shall be agents or employees of TAM. SECTION 23. ASSIGNMENT The AGREEMENT may not be assigned, transferred, hypothecated, or pledged by any party without the express written consent of the other party. SECTION 24. BINDING ON SUCCESSORS, ASSIGNEES OR TRANSFEREES This AGREEMENT shall be binding upon the successor(s), assignee(s) or transferee(s) of TAM or RECIPIENT as may be the case. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this AGREEMENT other than as provided above. SECTION 25. EXPENSES Each party shall be solely responsible for and shall bear all of its own respective legal expenses in connection with any dispute arising out of this AGREEMENT and the transactions hereby contemplated. RECIPIENT may not use GRANT funds, or other TAM programmed funds, for the aforementioned purpose. SECTION 26. SEVERABILITY Should any part of this AGREEMENT be declared unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decisions shall not affect the validity of the remainder of this AGREEMENT, which shall continue in full force and effect; provided that the remainder of this AGREEMENT can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the parties. Page 5 of 6 SECTION 27. EXHIBIT The following Exhibit is hereby made part of this AGREEMENT: EXHIBIT A: Project Information Sheet SECTION 28. ACCEPTANCE OF GRANT RECIPIENT does hereby declare that all written statements, representations, covenants, and materials submitted as a condition of this AGREEMENT are true and correct and does hereby accept TAM's grant and agrees to all of the terms and conditions of this AGREEMENT. The parties have executed this AGREEMENT as of the date first written above. City of San Rafael: By: Jim Schutz Print Name Citv Manaa_er Print Title Approved as to form (optional): By: _L, -. 4 &&d'i- City of San Rafael, Attey Transp on Authority of Ma ' (TAM): By: Di ne Stdinhauser, xecutive Director J -L -:W X /_w� '� er1I Ass�-. City y Print Name Page 6 of 6 EXHIBIT A PROJECT INFORMATION SHEET PROJECT SCOPE Perform routine maintenance on the following Class I Pathway: • Puerto Suello Hill Routine maintenance costs and tasks eligible for reimbursement under this AGREEMENT include the following items: • trash collection, • sweeping, • weeding, • trimming brushes and shrubs, • clearing debris and leaves, • removing graffiti, • performing visual inspections, • filling minor potholes and surface cracks, • conducting minor repairs, • repairing lights and landscape irrigation, • keeping drainage inlets and connecting pipes free of debris, • maintaining skylight, • electricity and water costs, and • security costs that include services for opening and closing facility and CCTV operations. The following items are not considered routine maintenance and will not be eligible for reimbursement under this AGREEMENT: • asphalt concrete resurfacing, • shoulder repair, • damaged sign repair or replacement, • re -striping, • structure inspection, and • structure repair and repainting. Any item not listed above will be evaluated on a case-by-case basis by TAM. Pathway Puerto Suello Hill One -Time Retroactive Payment TST Funds VRF Funds $0 $132,013 Annual Payment TST Funds VRF Funds Up to 50% of $29,426 the Difference Page 1 of 3 REIMBURSEMENT POLICIES FY 10/11 to FY 13/14 According to TAM CONTACT A -FY -10/11-010, entered into by TAM and the RECIPIENT on August 2, 2010, $40,000 in Transportation Sales Tax (TST) funds was disbursed annually to the RECIPIENT from FY 10/11 to FY 13/14, totaling $160,000 over the four-year period. As permitted by policy adopted by the TAM Board on February 28, 2008, disbursements of the $160,000 in TST funds were intended to represent 50% of the anticipated $80,436 annual path maintenance cost estimated at the time the agreement was executed. However, RECIPIENT was able to maintain path at an annual cost much lower than the original estimate. Final annual costs, including detailed non -labor related cost items, and estimated labor costs, are illustrated in the table below. Labor Cost Non -Labor Cost FY2010/11 $ 12,650 $ FY2011/12 $ 15,747 $ FY2012/13 $ 14,222 $ FY2013/14 $ 37,732 $ Total $ 80,350 $ Labor Cost Total 20,280 $ 32,930 20,280 $ 36,027 20,280 $ 34,502 20,280 $ 58,012 81,120 $ 161,470 Back in 2010, Marin Voters approved the Measure B Vehicle Registration Fee (VRF) and set aside 5% of the annual revenue for routine path maintenance on Class 1 path facilities. The Puerto Suello Multi -use Pathway is one of the pathways that are eligible for the funding. Upon the final execution of the funding agreement that the City and TAM have been working on over the last few months, which will supersede the current funding agreement A -FY -10/11-010, the City of San Rafael is expected to receive a total of $132,013 in Measure B VRF funds for FY 10/11, FY 11/12, FY 12/13 and FY 13/14 from TAM with no matching requirement. TAM staff recommends allowing the City to use 100% of the Measure B funds to cover the maintenance cost between FY 10/11 and FY 13/14. The remaining cost would be eligible under the Measure A interest funding category, subject to the 50% contribution level. Line Item Amount Eligible Expenditures (FY2010-11 to FY2013-14) $ 161,470 Available Measure B Funding $ 132,013 Remaining Balance - Item A $ 29.457 Cost Eligible for Measure A Funding (50% of Item A) $ 14,728 Total Measure A Reimbursement (FY2010-11 to FY2013-14) $ 160,000 Measure A Excess Disbursement Rescinded $ 145.272 Measure A and Measure B Swap $ 132,013 Reduction Against Future Payment $ 13,259 -Total Recovered Excess Pavment from the RECIPIENT $ 145.2721 Under this new agreement, the City will receive the full amount of the one-time retroactive Measure B payment covering that portion of the $161,471 maintenance cost, and $14,728 in Measure A funds from TAM to cover 50% of the remaining balance of $29,457. TAM will rescind $145,272 Measure A Sales Tax funds disbursed. However, instead of requesting a payment for the rescinded Measure A funds Page 2 of 3 disbursed to the City already, TAM will not make any additional payment to the City but transfer the funds from Measure B VRF fund into the Measure A interest fund. The remaining balance in the amount of $13,259 will be taken out of the future path maintenance payment(s) to the City to ensure all rescinded Measure A funds are fully returned. FY 14/15 and thereafter Starting with reimbursement request for FY 14/15 and thereafter, RECIPIENT is required to submit supporting documentation of actual routine maintenance costs. RECIPENT should submit a reimbursement request with supporting documentation to TAM 90 days after the end of each fiscal year. The amounts shown in the table on Page 1 of the Exhibit A are the current maximum amounts assigned to each pathway. Excess funds from one pathway cannot be used defray the deficit from another pathway. When a new Class I pathway is deemed eligible to receive TST or VRF funds for routine maintenance, the amount of annual TST and/or VRF allocations to existing funded pathways will be reassessed and an amendment will be issued. Page 3 of 3