HomeMy WebLinkAbout2016-060 1 RESOLUTION NO. 2016-60
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING TWO FUNDING AGREEMENTS WITH
3 OMNITRANS FOR 13 BUS STOP LOCATIONS WITHIN THE CITY, FUNDED BY
4 2013 TDA ARTICLE 3 GRANT FUNDING.
5 WHEREAS, Omnitrans has applied for and received grant funds from SANBAG for
6 construction of 13 bus stop locations throughout the City; and,
7 WHEREAS, funding agreements with Omnitrans are necessary in order to complete
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the improvements.
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10 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The City Manager is hereby authorized and directed to execute, on
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13 behalf of the City, the two attached funding agreements with Omnitrans for transit stop access
14 improvements; copies of which are attached hereto and incorporated herein as Exhibit "A"
15 and Exhibit"B".
16 SECTION 2. The above authorization is hereby rescinded if the agreements are not
17 fully executed by both parties within ninety (90) days.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO APPROVING TWO FUNDING AGREEMENTS WITH
OMNITRANS FOR 13 BUS STOP LOCATIONS WITHIN THE CITY, FUNDED BY
3 2013 TDA ARTICLE 3 GRANT FUNDING.
4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor
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6 and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on
7 the 21 St day of March, 2016, by the following vote, to wit:
8 Council Members: AYES NAYS ABSTAIN ABSENT
9 MARQUEZ X
10 BARRIOS X
11 VALDIVIA X-
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13 SHORETT X
14 NICKEL X
15 RICHARD X
16 MULVIHILL X
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18 ��
19 GeorgArm Hanna, C, City Clerk
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The foregoing resolution is hereby approved this .?.S day of March, 16.
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a.�ZL`xi
22 R. CAREY IYAVIS, Mayor
23 City of San ernardino
Approved as to form:
24 GARY D. SAENZ,
City Attorney
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26 By: Z.
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2016-60 A
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t
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CITY OF SAN BERNARDINO TRANSIT STOP ACCESS IMPROVEMENT PROJECTS
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FUNDING AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
300 NORTH "D" STREET
SAN BERNARDINO, CA 92418
AND
OMNITRANS
1700 WEST FIFTH STREET
SAN BERNARDINO, CALIFORNIA 92411
This AGREEMENT, entered into on 3/21/16 is between the CITY OF SAN
BERNARDINO, a body politic and a municipal corporation of the State of California, referred to
herein as "CITY" and OMNITRANS, a joint powers public transit agency, referred to herein as
"OMNITRANS."
RECITALS
1. OMNITRANS and CITY mutually desire to cooperate and participate in the design
and construction of 12 transit stop access improvement projects, referred to herein as
"PROJECTS."
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2. PROJECTS consist of design and construction of ADA accessible boarding areas,
repair of sidewalk and/or construction of new sidewalk connecting to the intersection,
and curb/gutter and upgraded curb ramps at intersection where needed.
3. The following costs for the PROJECTS will be reimbursable under this Agreement:
administration, preliminary engineering and design, plans, specifications, estimates,
construction, mobilization, traffic control and safety, labor, materials, permits, legal
contract review, and contingencies, in accordance with the terms of the grant funding.
4. The PROJECTS must be completed before December 31, 2016, in accordance with
the terms of the TDA Article 3 grant funding from the San Bernardino Associated
Governments (SANBAG), unless an extension of the grant funding should be granted
by SANBAG.
5. This AGREEMENT supersedes any prior oral or written agreement in relation to
these PROJECTS.
6. OMNITRANS and CITY desire to specify herein the terms and conditions under
which the PROJECTS shall be funded, designed, constructed, maintained, and
operated.
Payment Upon Termination
All eligible and approved costs incurred during each phase of the PROJECTS, as required to
complete said phase, shall be reimbursed through the funding identified. In addition, should
some unforeseen circumstance beyond the control of the parties occur, such as a loss in
funding for the PROJECTS during any phase of the PROJECTS, then either party may give
written notice of its intent to terminate the PROJECTS and all eligible costs to date will be
reimbursed through the available funds identified for the PROJECTS. In the event of such
termination OMNITRANS shall authorize full payment to the CITY for all services
performed which have been previously approved and actually incurred by CITY at the time
of termination, which amount shall not exceed the reasonable value of the work completed
according to the schedule established pursuant to Section 1I. In the event that none of the
funding identified in Section I is available due to a complete loss in funding for the
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PROJECTS, OMNITRANS will have no obligation to make payment to CITY for any
services performed.
In ascertaining the services actually rendered hereunder up to the date of termination of this
Agreement, consideration shall be given to both completed work and work in process of
completion.
SECTION I
OMNITRANS AGREES:
1. To attend pertinent meetings set forth by the CITY and/or the CITY's
CONTRACTOR regarding the development process of PROJECTS.
2. To provide funding for the project from Transportation Development Act (TDA)
Article 3 funds awarded to Omnitrans by the San Bernardino Associated
Governments in 2013 (See Exhibit A and table below). Of the total grant amount for
each location, Omnitrans will use 3.27% for administration (per Omnitrans' Cost
Allocation Plan). The remaining amount, $35,316, will be passed through to the City
of San Bernardino for completion of the PROJECTS.
Omnitrans Pass-Through 20%Match
Total Project Article 3 Grant to be
Bus Stop Location Cost Amount Administrative Amount to San provided by
Cost Bernardino City
Kendall at University $1,540 $1,232 $40 $1,192 $308
E Street at 18th $4,312 $3,450 $113 [ $3,337 $862
1 9th at Medical Center I $3,773 I $3,018 I $99 ( $2,919 I $755
E Street at 16th I $3,773 I $3,018 I $99 I $2,919 I $755
I Waterman at 5th I $9,856 I $7,885 I $258 I $7,627 I $1,971
Sierra at 16th SB I $2,464 I $1,971 I $64 I $1,907 I $493
Kendall at H Street I $4,312 I $3,450 I $113 I $3,337 I $862
9th at Western I $3,773 I $3,018 I $99 I $2,919 I $755
Sierra at l6th NB I $2,464 I $1,971 I $64 I $1,907 I $493
Sierra at 30th I $4,312 I $3,450 I $113 I $3,337 I $862
I Kendall at 48th I $2,965 I $2,372 I $78 I $2,294 I $593
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Sierra at 19th $2,094 $1,676 $55 $1,621 $419
Total $45,638 $36,511 $1,195 $35,316 $9,128
3. Within five (5) working days of the receipt of an invoice and accompanying
certification, OMNITRANS shall notify the CITY as to what, if any, additional
supporting documentation and background information will be required. CITY shall
make all required documentation available to OMNITRANS within five (5) working
days, unless stipulated otherwise in writing by OMNITRANS.
4. The first week of the following month after invoice submittal pursuant to Section II
(6) below, OMNITRANS shall: (i) disburse (including through electronic transfer of
funds, if so requested and if CITY provides the necessary information) so much of the
requested funds which it reasonably believes it can disburse without violating the
terms of either the grant or of applicable law; and (ii) notify the CITY as to why it
reasonably believes that it is unable to disburse some or all of the requested funds
without violating the terms of either the grant or of applicable law or regulation.
5. Omnitrans shall have no liability to CITY for any refusal to disburse funds so long as
Omnitrans has a good faith and reasonable belief that such disbursement would
constitute a violation of the terms of the grant or of applicable law.
6. OMNITRANS shall defend with counsel reasonably approved by CITY, indemnify
and hold CITY, its officials, officers, employees and agents free and harmless from
any and all liability from loss, damage, or injury to property or persons, including
wrongful death, in any manner arising out of or incident to any breach of contract,
negligent acts, omissions or willful misconduct of OMNITRANS arising out of or in
connection with OMNITRANS' performance of this Agreement and/or the
PROJECT.
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SECTION II
CITY AGREES:
1. To provide the 20% local match or project amounts over and above the TDA grant
amounts, whichever is higher.
2. To complete a PROJECT schedule (see Exhibit B) upon the start of the PROJECTS,
and to prepare a detailed cost estimate and specifications for the PROJECTS.
3. To award a construction contract in full compliance with TDA funding requirements
and, upon joint approval of the design, to an experienced contractor or group of
contractors (herein referred to as CONTRACTOR) once the specifications have been
completed and the parties agree to move forward with construction of PROJECTS.
4. To provide the right-of-way for construction of PROJECTS, perform all necessary
investigations, and complete and obtain all necessary permits for the use of the
identified right-of-way for PROJECTS.
5. To provide construction management and related administrative support required
during the bid and construction phase of the PROJECTS.
6. To submit one itemized invoice to Omnitrans upon completion of PROJECTS, which
indicates all costs, fees, and other charges that CITY incurred related to PROJECTS.
The statement shall describe the amount of services and supplies provided since the
initial commencement date, or since the start of the subsequent billing period, as
appropriate, through the date of the current statement.
a. The invoice must be itemized for each PROJECT location, consistent with
the PROJECT names listed in Exhibit A and the table in Section 1.2.
7. To certify to OMNITRANS for each disbursement request, that to the best of its
knowledge such disbursement will not constitute any violation of either the
provisions of the grant or of applicable law and that CITY will use the disbursement
as indicated in the disbursement request.
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8. To provide to OMNITRANS all information needed to meet TDA funding reporting
requirements.
9. To insure that all aspects of the PROJECT and any aspect of CITY's participation in
this Agreement and the actions contemplated of it by this Agreement will be in
compliance with the terms of the grant and with all applicable law.
10. CITY shall be responsible for all duties relative to this PROJECT, including
complying with all bidding and contract administration requirements relative to
construction of a public works project, with all due diligence and in a skillful and
competent manner. CITY shall be responsible to OMNITRANS for any errors or
omissions in its execution of this Agreement. CITY represents and warrants to
OMNITRANS that it and/or its CONTRACTORS has or will have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to
perform the work required to complete the PROJECT. CITY further represents and
warrants that it and/or its CONTRACTORS shall keep in effect all such licenses,
permits, and other approvals during the term of this Agreement.
11. CITY shall keep and maintain all books, papers, records, accounting records
including but not limited to all direct and indirect costs allocated to the PROJECT,
files, accounts, reports, cost proposals with backup data, and all other material
relating to the PROJECT. CITY shall, upon request, make all such materials
available to OMNITRANS or its designee at any reasonable time during the term of
the Agreement and for three (3) years from the date of final payment to CITY, for
auditing, inspection, and copying. Any contract entered into as a result of this
Agreement shall contain all of the provisions of this paragraph.
12. CITY shall defend with counsel reasonably approved by OMNITRANS, indemnify
and hold OMNITRANS, its officials, officers, employees and agents free and
harmless from any and all liability from loss, damage, or injury to property or
persons, including wrongful death, in any manner arising out of or incident to any
breach of contract, negligent acts, omissions or willful misconduct of CITY arising
out of or in connection with CITY's performance of this Agreement and/or the
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PROJECT.
13. The CITY shall agree to comply with all conditions and obligations of the TDA
Article 3 grant for the PROJECT, to the extent it is within CITY's authority to do so.
SECTION III
IT IS MUTUALLY AGREED:
1. The term of this Agreement shall be from the date of execution by both parties until
PROJECT completion, including submission of all required reports, unless earlier
terminated herein by either party.
2. Each Party hereby represents and covenants that they are an authorized self-insured
public entity for purposes of general liability, automobile liability, and workers
compensation, and each Party warrants that through their respective program of self-
insurance, it has adequate coverage and/or resources to protect against its potential
liabilities arising out of the performance of this PROJECT.
3. CITY acknowledges that failure to comply with any material provisions of this
Agreement (such failure to comply is hereinafter called a "Default") may, in the sole
but reasonable discretion of OMNITRANS, result in revocation of funding for the
PROJECT by OMNITRANS. In the event OMNITRANS determines that CITY has
committed a Default by failing to comply with a material provision of this Agreement,
OMNITRANS will notify CITY in writing of the Default. CITY shall have thirty (30)
days (unless a shorter time is reasonably determined by OMNITRANS to be required
under the circumstances) from the date of OMNITRANS' letter of notification of
Default to cure the Default. In the event CITY fails to cure the Default or dispute the
Default under the provisions of Section III, item 10 within the time allowed or if the
CITY's dispute is not resolved in the CITY's favor, OMNITRANS may revoke the
funding for the PROJECT and terminate this Agreement by written notice to the CITY.
Any funds which may become available as a result of revocation of such funding
and termination of this Agreement due to CITY's failure to timely cure a Default,
may not be utilized by the CITY in any manner, but will be returned to or remain
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with OMNITRANS to be used in compliance with the requirements of the
available grant funds.
4. No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by the parties hereto, and no oral understanding or agreement not
incorporated herein shall be binding on any of the parties hereto.
5. Nothing in the provisions of this Agreement is intended to create duties or obligations to
or rights in third parties not party to this Agreement or affect the legal liability of any
party to the Agreement by imposing any standard of care with respect to the
maintenance of facilities different from the standard of care imposed by law.
6. All notices and correspondence are to be sent to the following addresses:
OMNITRANS CITY OF SAN BERNARDINO
Attn: Scott Graham Attn: Mark Scott
CEO/General Manager City Manager
1700 W. Fifth Street 300 North"D" Street
San Bernardino, CA 92411-2499 San Bernardino, CA 92418
7. This Contract shall be binding on the successors and assigns of the parties, but may not
be assigned by CITY without approval from OMNITRANS.
8. Prohibited Interests.
CITY OF SAN BERNARDINO:
A. Solicitation. CITY maintains and warrants that it has not employed nor retained
any company or person, other than a bona fide employee working solely for
CITY, to solicit or secure this Agreement. Further, CITY warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide
employee working solely for CITY, any fee, commission, percentage, brokerage
fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty,
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OMNITRANS shall have the right to rescind this Agreement without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of CITY, during the term of his or her service with CITY, shall have
any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising there from. CITY covenants that at present time it has no interest,
and will not have any interest, direct or indirect, which would conflict in any
manner with the performance of the Agreement or the PROJECT required
hereunder.
OMNITRANS:
A. Solicitation. OMNITRANS maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely
for OMNITRANS, to solicit or secure this Agreement. Further, OMNITRANS
warrants that it has not paid nor has it agreed to pay any company or person,
other than a bona fide employee working solely for OMNITRANS, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent
upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, CITY shall have the right to rescind this Agreement
without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of OMNITRANS, during the term of his or her service with
OMNITRANS, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising there from. OMNITRANS
covenants that at present it has no interest, and will not have any interest, direct
or indirect, which would conflict in any manner with the performance of the
Agreement or the PROJECT required hereunder.
9. If any legal action is instituted to enforce or declare any party's rights hereunder, each
party, including the prevailing party, must bear its own costs and attorney's fees. This
paragraph shall not apply to those costs and attorney's fees directly arising from any
third party legal action against a party hereto and payable under Section I, Paragraph 6
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or Section II, Paragraph 12, Indemnification.
10. In the event any dispute arises between the parties hereto under or in connection with
this Agreement, the dispute shall be decided by the CEO/General Manager of
OMNITRANS or his duly authorized representative within thirty (30) calendar days
after notice thereof in writing which notice shall include a detailed statement of the
grounds of the dispute and why the dispute should be resolved in the disputing Party's
favor. If the CEO/General Manager fails to resolve the dispute in a manner acceptable
to CITY, then such appeal shall be decided by a court of competent jurisdiction. During
resolution of the dispute, CITY shall proceed with the performance of this Agreement to
the extent practicable.
11. Whenever review, consent, or approval of either party must be given or where it can be
withheld, that party must not unreasonably review or unreasonably withhold such
consent or approval.
This Agreement constitutes the entire understanding of the parties with respect to the subject
matter hereof, and there are no other representations, promises, warranties, covenants or
undertakings with respect thereto.
In witness thereof, the parties have caused this Agreement to be executed by their respective
officers.
OMNITRANS CITY OF SAN BERNARDINO
By: By:
P. Scott Graham Mark Scott
CEO/General Manager City Manager
Date: Date:
APPROVED AS TO FORM: APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By: B
Omnitrans Legal Counsel
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Exhibit A: Funding Award
San Bernardino Associated Governments
am1170 WeNt 1,J S _'tad F',SA n f#<':mar,s,-t. "('A 924](1-1'1 z
Pllutor. 909'V
San Belriarclwc'counrc ;(ar; r)rtatwn Cwnr,uktia.i "ti D rlerrttrdiri�(Chitty"Tt€tngv,triww-n Arthc my
Bart lira tsrdsnc C:wun",`r t i,at rsttan htwtragerrmii� yznc, ';vtVi�:r Akjth4ll-i:y fin t rcvwav E=rgcnne
COUNTY: County of San Bemardino Allocation k: -1407.14
,AN BAG P.t2,:
MONTH: July
FY: 2013-14
CLAIMANT: Csmnttsarss Attn: %laurice 149ansion
=730 W. 5th Strut Treasury Manager
San Bernardino,Ca 92411
ARTICLE- 3- Ped'Bike
PUC CODE: 99234c
AMOUNT: $ 166,H52
PURPOSE: Kendall at University 1,232 Transit Access
Oel Rasa at Date 3,450;
E St at 14th 2,803
E St at 18th 3,450
9th at Medical Center 3,016
t at 16th 1018
Sultana at Transit 1,470
Campus at Holt ?} 2,094
Waterman at 5th 7.585
Sierra at 16th 1.971
Kendall at H St $ 3,454
48th at 4th WB 3,018
Tippecanoe at Sacs Bernardino
Sacs Bernardino at Live Oak S 6,400
9th at Western 3,018
Sierra at 16th 1,971
Vineyard at Ith S 2,531
Sierra at 30th S 3,450
0 at 9th 2,587
San Bernardino at Hemlock ;x,400
Merrill at Beech WS 12,800
Kendall at 48th 2,372
Sara Bernardino at Indigo 2,587
5th at Benson l 1,487
Sierra at 19th 1,67'8
C at Pennsylvania 1,478
C at Pennsylvania WB 1,478
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Euclid Aire at 4th S 2,464:
Baseline at Met idian ES $ 2,240
6th St at Grove $ 3,018
Euclid at Belmont $ 3,45G
Merrill at B€"h E $ 5,566
Jurupa at Etiwanda $ 7,665
`art a rrrer¢iir c of Syc'A'.'ir $ 3,45G
Inland Empire at Mercedes $ 3,456
San Bernardino at Redwood $ 6,400
Eociid at Riverside $ 1,478
Milliken at Santa terra $ 3,45p
Baseline at Pepper E6 $ 2,560
Milliken at JUTOPa $ 3.450
Sari Bernardino at Eucal ptur, $ 1.232
witdrose at woodpine SR $ 3,600
Riverside at Senior Way SS $ 1.600
Riverside at,tames SB $ 2't496
Milliken at Toyota $ :3 450
C St at 2nd $ 1,232
FUNDS TO BE DISBURSED UPON INSTRUCTION OF SANBA+G
Jurisdictional Split I113 mt.r CODING
°ro Arnount
03rrrnit n 1 $ 163,$52LO 0606.702.7 r7 10004 _. 1 100°aa
1 tyj
r - Appra3edby �{r,-�
Prepared tr}: .
"azressf�,lcr`iii; Anurc:a�.ur�.�7:.+
H nd Mnun .t'r *arrstrin
Approved by:
'vSr r.aca Morale,; Mitche.31 A Al3e rtt
01f TN-WtM1 It',
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Exhibit B: Project Milestones & Schedule
Milestone Completion Date
Complete design and any required environmental clearance for
proj ect.
Complete specifications for construction.
Obtain quotes or bids for construction.
Award construction contract.
Start construction.
Complete construction.
Complete invoicing.
To be completed by the City upon the start of the Project.
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2016-60 B
TIPPECANOE & SAN BERNARDINO TRANSIT STOP ACCESS
IMPROVEMENT PROJECT
FUNDING AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
300 NORTH "D" STREET
SAN BERNARDINO, CA 92418
AND
OMNITRANS
1700 WEST FIFTH STREET
SAN BERNARDINO, CALIFORNIA 92411
This AGREEMENT, entered into on —/21 /j 6 is between the CITY OF SAN
BERNARDINO, a body politic and a municipal corporation of the State of California,
referred to herein as "CITY" and OMNITRANS, a joint powers public transit agency,
referred to herein as "OMNITRANS."
RECITALS
1. OMNITRANS and CITY mutually desire to cooperate and participate in the
design and construction of a Transit Stop Access Improvement project located
on Tippecanoe Avenue north of San Bernardino Avenue, referred to herein as
"PROJECT."
2016-60
2. The PROJECT consists of the following: design and construction of an ADA
accessible boarding area, new sidewalk connecting to the intersection, and
retaining wall on Tippecanoe Avenue (northbound) north of San Bernardino
Avenue (see Exhibit A).
3. The following costs for the PROJECT will be reimbursable under this
Agreement: administration, preliminary engineering and design, plans,
specifications, estimates, construction, mobilization, traffic control and safety,
labor, materials, permits, legal contract review, and contingencies, in
accordance with the terms of the grant funding.
4. The PROJECT must be completed before June 30, 2016, in accordance with
the terms of the TDA Article 3 grant funding from the San Bernardino
Associated Governments (SANBAG), unless an extension of the grant
funding should be granted by SANBAG.
5. This AGREEMENT supersedes any prior oral or written agreement in relation
to this PROJECT.
6. OMNITRANS and CITY desire to specify herein the terms and conditions
under which the PROJECT shall be funded, designed, constructed,
maintained, and operated.
Payment Upon Termination
All eligible and approved costs incurred during each phase of the PROJECT, as
required to complete said phase, shall be reimbursed through the funding identified.
In addition, should some unforeseen circumstance beyond the control of the parties
occur, such as a loss in funding for the PROJECT during any phase of the PROJECT,
then either party may give written notice of its intent to terminate the PROJECT and
all eligible costs to date will be reimbursed through the available funds identified for
the PROJECT. In the event of such termination OMNITRANS shall authorize full
payment to the CITY for all services performed which have been previously approved
and actually incurred by CITY at the time of termination, which amount shall not
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exceed the reasonable value of the work completed according to the schedule
established pursuant to Section II. In the event that none of the funding identified in
Section I is available due to a complete loss in funding for the PROJECT,
OMNITRANS will have no obligation to make payment to CITY for any services
performed.
In ascertaining the services actually rendered hereunder up to the date of termination
of this Agreement, consideration shall be given to both completed work and work in
process of completion.
SECTION I
OMNITRANS AGREES:
1. To attend pertinent meetings set forth by the CITY and/or the CITY's
CONTRACTOR regarding the development process of PROJECT.
2. To provide funding for the project from Transportation Development Act
(TDA) Article 3 funds awarded to Omnitrans by the San Bernardino
Associated Governments in 2013 (See Exhibit B). Of the total grant amount
of $7,885, Omnitrans will use 3.27% or $258 for administration (per
Omnitrans' Cost Allocation Plan). The remaining amount, $7,627, will be
passed through to the City of San Bernardino for completion of PROJECT.
3. Within five (5) working days of the receipt of an invoice and accompanying
certification, OMNITRANS shall notify the CITY as to what, if any,
additional supporting documentation and background information will be
required. CITY shall make all required documentation available to
OMNITRANS within five (5) working days, unless stipulated otherwise in
writing by OMNITRANS.
4. The first week of the following month after invoice submittal pursuant to
Section II (6) below, OMNITRANS shall: (i) disburse (including through
electronic transfer of funds, if so requested and if CITY provides the
necessary information) so much of the requested funds which it reasonably
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believes it can disburse without violating the terms of either the grant or of
applicable law; and (ii) notify the CITY as to why it reasonably believes that it
is unable to disburse some or all of the requested funds without violating the
terms of either the grant or of applicable law or regulation.
5. Omnitrans shall have no liability to CITY for any refusal to disburse funds so
long as Omnitrans has a good faith and reasonable belief that such
disbursement would constitute a violation of the terms of the grant or of
applicable law.
6. OMNITRANS shall defend with counsel reasonably approved by CITY,
indemnify and hold CITY, its officials, officers, employees and agents free
and harmless from any and all liability from loss, damage, or injury to
property or persons, including wrongful death, in any manner arising out of or
incident to any breach of contract, negligent acts, omissions or willful
misconduct of OMNITRANS arising out of or in connection with
OMNITRANS' performance of this Agreement and/or the PROJECT.
SECTION II
CITY AGREES:
1. To provide 20% local match or project amounts over and above the TDA
grant amounts, whichever is higher.
2. To complete a PROJECT schedule (see Exhibit C) upon the start of the
PROJECT, and to prepare a detailed cost estimate and specifications for the
PROJECT.
3. To award a construction contract in full compliance with TDA funding
requirements and, upon joint approval of the design, to an experienced
contractor or group of contractors (herein referred to as CONTRACTOR)
once the specifications have been completed and the parties agree to move
forward with construction of PROJECT.
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4. To provide the right-of-way for construction of PROJECT, perform all
necessary investigations, and complete and obtain all necessary permits for
the use of the identified right-of-way for this PROJECT.
5. To provide construction management and related administrative support
required during the bid and construction phase of the PROJECT.
6. To submit one itemized invoice to Omnitrans on or before the 15th day of the
month that indicates all costs, fees, and other charges that CITY incurred
related to the PROJECT. The statement shall describe the amount of services
and supplies provided since the initial commencement date, or since the start
of the subsequent billing period, as appropriate, through the date of the current
statement.
7. To certify to OMNITRANS for each disbursement request, that to the best of
its knowledge such disbursement will not constitute any violation of either the
provisions of the grant or of applicable law and that CITY will use the
disbursement as indicated in the disbursement request.
8. To provide to Omnitrans all information needed to meet TDA funding
reporting requirements.
9. To insure that all aspects of the PROJECT and any aspect of CITY's
participation in this Agreement and the actions contemplated of it by this
Agreement will be in compliance with the terms of the grant and with all
applicable law.
10. CITY shall be responsible for all duties relative to this PROJECT, including
complying with all bidding and contract administration requirements relative
to construction of a public works project, with all due diligence and in a
skillful and competent manner. CITY shall be responsible to OMNITRANS
for any errors or omissions in its execution of this Agreement. CITY
represents and warrants to OMNITRANS that it and/or its CONTRACTORS
has or will have all licenses, permits, qualifications and approvals of whatever
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nature that are legally required to perform the work required to complete the
PROJECT. CITY further represents and warrants that it and/or its
CONTRACTORS shall keep in effect all such licenses, permits, and other
approvals during the term of this Agreement.
11. CITY shall keep and maintain all books, papers, records, accounting records
including but not limited to all direct and indirect costs allocated to the
PROJECT, files, accounts, reports, cost proposals with backup data, and all
other material relating to the PROJECT. CITY shall, upon request, make all
such materials available to OMNITRANS or its designee at any reasonable
time during the term of the Agreement and for three (3) years from the date of
final payment to CITY, for auditing, inspection, and copying. Any contract,
entered into as a result of this Agreement, shall contain all of the provisions of
this paragraph.
12. CITY shall defend with counsel reasonably approved by OMNITRANS,
indemnify and hold OMNITRANS, its officials, officers, employees and
agents free and harmless from any and all liability from loss, damage, or
injury to property or persons, including wrongful death, in any manner arising
out of or incident to any breach of contract, negligent acts, omissions or
willful misconduct of CITY arising out of or in connection with CITY's
performance of this Agreement and/or the PROJECT.
13. The CITY shall agree to comply with all conditions and obligations of the TDA
Article 3 grant for the PROJECT, to the extent it is within CITY's authority to do
SO.
SECTION III
IT IS MUTUALLY AGREED:
1. The term of this Agreement shall be from the date of execution by both parties
until PROJECT completion, including submission of all required reports, unless
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earlier terminated herein by either party.
2. Each Party hereby represents and covenants that they are an authorized self-
insured public entity for purposes of general liability, automobile liability, and
workers compensation, and each Party warrants that through their respective
program of self-insurance, it has adequate coverage and/or resources to protect
against its potential liabilities arising out of the performance of this PROJECT.
3. CITY acknowledges that failure to comply with any material provisions of this
Agreement (such failure to comply is hereinafter called a "Default") may, in the
sole but reasonable discretion of OMNITRANS, result in revocation of funding
for the PROJECT by OMNITRANS. In the event OMNITRANS determines
that CITY has committed a Default by failing to comply with a material
provision of this Agreement, OMNITRANS will notify CITY in writing of the
Default. CITY shall have thirty (30) days (unless a shorter time is reasonably
determined by OMNITRANS to be required under the circumstances) from the
date of OMNITRANS' letter of notification of Default to cure the Default. In
the event CITY fails to cure the Default or dispute the Default under the
provisions of Section III, item 10 within the time allowed or if the CITY's
dispute is not resolved in the CITY's favor, OMNITRANS may revoke the
funding for the PROJECT and terminate this Agreement by written notice to the
CITY. Any funds which may become available as a result of revocation of
such funding and termination of this Agreement due to CITY's failure to
timely cure a Default, may not be utilized by the CITY in any manner, but
will be returned to or remain with OMNITRANS to be used in compliance
with the requirements of the available grant funds.
4. No alteration or variation of the terms of this Agreement shall be valid unless
made in writing and signed by the parties hereto, and no oral understanding or
agreement not incorporated herein shall be binding on any of the parties hereto.
5. Nothing in the provisions of this Agreement is intended to create duties or
obligations to or rights in third parties not party to this Agreement or affect the
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legal liability of any party to the Agreement by imposing any standard of care
with respect to the maintenance of facilities different from the standard of care
imposed by law.
6. All notices and correspondence are to be sent to the following addresses:
OMNITRANS CITY OF SAN BERNARDINO
Attn: Scott Graham Attn: Mark Scott
CEO/General Manager City Manager
1700 W. Fifth Street 300 North"D" Street
San Bernardino, CA 92411-2499 San Bernardino, CA 92418
7. This Contract shall be binding on the successors and assigns of the parties, but
may not be assigned by CITY without approval from OMNITRANS.
8. Prohibited Interests.
CITY OF SAN BERNARDINO:
A. Solicitation. CITY maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working
solely for CITY, to solicit or secure this Agreement. Further, CITY
warrants that it has not paid nor has it agreed to pay any company or
person, other than a bona fide employee working solely for CITY, any fee,
commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement.
For breach or violation of this warranty, OMNITRANS shall have the
right to rescind this Agreement without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of CITY, during the term of his or her service with CITY, shall
have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising there from. CITY covenants that at
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present time it has no interest, and will not have any interest, direct or
indirect, which would conflict in any manner with the performance of the
Agreement or the PROJECT required hereunder.
OMNITRANS:
A. Solicitation. OMNITRANS maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide
employee working solely for OMNITRANS, to solicit or secure this
Agreement. Further, OMNITRANS warrants that it has not paid nor has
it agreed to pay any company or person, other than a bona fide employee
working solely for OMNITRANS, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. For breach or violation of
this warranty, CITY shall have the right to rescind this Agreement
without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of OMNITRANS, during the term of his or her service with
OMNITRANS, shall have any direct interest in this Agreement, or obtain
any present or anticipated material benefit arising there from.
OMNITRANS covenants that at present it has no interest, and will not
have any interest, direct or indirect, which would conflict in any manner
with the performance of the Agreement or the PROJECT required
hereunder.
9. If any legal action is instituted to enforce or declare any party's rights hereunder,
each party, including the prevailing party, must bear its own costs and attorney's
fees. This paragraph shall not apply to those costs and attorney's fees directly
arising from any third party legal action against a party hereto and payable under
Section I, Paragraph 6 or Section II, Paragraph 12, Indemnification.
10. In the event any dispute arises between the parties hereto under or in connection
with this Agreement, the dispute shall be decided by the CEO/General Manager
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of OMNITRANS or his duly authorized representative within thirty (30)
calendar days after notice thereof in writing which notice shall include a detailed
statement of the grounds of the dispute and why the dispute should be resolved
in the disputing Party's favor. If the CEO/General Manager fails to resolve the
dispute in a manner acceptable to CITY, then such appeal shall be decided by a
court of competent jurisdiction. During resolution of the dispute, CITY shall
proceed with the performance of this Agreement to the extent practicable.
13. Whenever review, consent, or approval of either party must be given or where
it can be withheld, that party must not unreasonably review or unreasonably
withhold such consent or approval.
This Agreement constitutes the entire understanding of the parties with respect to the
subject matter hereof, and there are no other representations, promises, warranties,
covenants or undertakings with respect thereto.
In witness thereof, the parties have caused this Agreement to be executed by their
respective officers.
OMNITRANS CITY OF SAN BERNARDINO
By: By:
P. Scott Graham Mark Scott
CEO/General Manager City Manager
Date: Date:
APPROVED AS TO FORM: APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By. By:
Omnitrans Legal Counsel
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Exhibit A: Photo of Project Location and Existing Conditions
Stole 6908
Tippecanoe Ave at San Bernardino Ave (:North)
San Bernard no. CA
tx-
via
N
�1 T
A. P
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Exhibit B: Funding Award
FA M. San Bernardino Associated Governments
SM CA 9241(1.1?15
884-S,276 l=ax:11909)885-440?Web:v.-w•w_sanba&.cE.gov
%Pn Bet nardhio County TraiI.Rtyx tatil I r t
-San Bernardino Coup'.}Ctingtstion Mar apt.nvni Ager.c.y -Set vj,,e AL11110-1EV fur Ire=way Erncrjtcncie_%
COUNTY. County of San Bernardino Allocation*, S-1407.14
SANSAG P.O.-. 40007214
MONTH: July
FY- 2013-14
CLAIMANT: Cirnnitfd[115 Attn: Maurice Mansion
1700 W 5th Street Treasury Manager
San Bernardino, Ca 92411
ARTICLE: 3 - PG&Bike
PUC CODE 99234c
AMOUNT- $ 168.852
PURPOSE- Kendall at University $ 1,232 Transit Access
Del Rosa at Dale $ 3,450
E St at 14tb $ 2,803
E St at 18th $ 3,450
Sib at Medical Center $ 3,018
F 5t at 16111 S 3,018
Sultana at Transit % 1,478
Campus at Holt $ 2,094
Waterman at 51h $ 7,885
Sierra at 16th $ 1,971
Kendall at H St $ 3,450
48th at 4th WB 3,018
Tippecanoe at San Bernardino 7,885
San Bernardino at Live Oak $ 6,400
9th at Western $ 3,018
Sierra at 16th $ 1,971
Vineyard at 7th $ 2,531
Sierra at 30th $ 3,450
0 at 9th $, 2,587
San Bernardino at Hemlock $ 43,400
Merrill at Beech WS 12,800
Kendall at 48th 2,372
San Bernardino at Indigo $ 2,587
51h at Benson $ 1,487
Sierra at 191h $ 1,676
C at Pennsylvania $ 1,478
C at Pennsylvania WB $ 1,478
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Exhibit C: Project Milestones & Schedule
Milestone Completion Date
Complete design and any required environmental clearance for
project.
Complete specifications for construction.
Obtain quotes or bids for construction.
Award construction contract.
Start construction.
Complete construction.
Complete invoicing.
To be completed by the City upon the start of the Project.
13
2016-60 A
S,
.l
1
R
1
CITY OF SAN BERNARDINO TRANSIT STOP ACCESS IMPROVEMENT PROJECTS
FUNDING AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
300 NORTH "D" STREET
SAN BERNARDINO, CA 92418
AND
OMNITRANS
1700 WEST FIFTH STREET
SAN BERNARDINO, CALIFORNIA 92411
This AGREEMENT, entered into on 3/21/16 is between the CITY OF SAN
BERNARDINO,a body politic and a municipal corporation of the State of California, referred to
herein as "CITY" and OMNITRANS, a joint powers public transit agency, referred to herein as
"OMNITRANS."
RECITALS
1. OMNITRANS and CITY mutually desire to cooperate and participate in the design
and construction of 12 transit stop access improvement projects, referred to herein as
"PROJECTS."
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2. PROJECTS consist of design and construction of ADA accessible boarding areas,
repair of sidewalk and/or construction of new sidewalk connecting to the intersection,
and curb/gutter and upgraded curb ramps at intersection where needed.
3. The following costs for the PROJECTS will be reimbursable under this Agreement:
administration, preliminary engineering and design, plans, specifications, estimates,
construction, mobilization, traffic control and safety, labor, materials, permits, legal
contract review, and contingencies, in accordance with the terms of the grant funding.
4. The PROJECTS must be completed before December 31, 2016, in accordance with
the terms of the TDA Article 3 grant funding from the San Bernardino Associated
Governments (SANBAG), unless an extension of the grant funding should be granted
by SANBAG.
5. This AGREEMENT supersedes any prior oral or written agreement in relation to
these PROJECTS.
6. OMNITRANS and CITY desire to specify herein the terms and conditions under
which the PROJECTS shall be funded, designed, constructed, maintained, and
operated.
Payment Upon Termination
All eligible and approved costs incurred during each phase of the PROJECTS, as required to
complete said phase, shall be reimbursed through the funding identified. In addition, should
some unforeseen circumstance beyond the control of the parties occur, such as a loss in
funding for the PROJECTS during any phase of the PROJECTS, then either party may give
written notice of its intent to terminate the PROJECTS and all eligible costs to date will be
reimbursed through the available funds identified for the PROJECTS. In the event of such
termination OMNITRANS shall authorize full payment to the CITY for all services
performed which have been previously approved and actually incurred by CITY at the time
of termination, which amount shall not exceed the reasonable value of the work completed
according to the schedule established pursuant to Section II. In the event that none of the
funding identified in Section I is available due to a complete loss in funding for the
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PROJECTS, OMNITRANS will have no obligation to make payment to CITY for any
services performed.
In ascertaining the services actually rendered hereunder up to the date of termination of this
Agreement, consideration shall be given to both completed work and work in process of
completion.
SECTION I
OMNITRANS AGREES:
1. To attend pertinent meetings set forth by the CITY and/or the CITY's
CONTRACTOR regarding the development process of PROJECTS.
2. To provide funding for the project from Transportation Development Act (TDA)
Article 3 funds awarded to Omnitrans by the San Bernardino Associated
Governments in 2013 (See Exhibit A and table below). Of the total grant amount for
each location, Omnitrans will use 3.27% for administration (per Omnitrans' Cost
Allocation Plan). The remaining amount, $35,316, will be passed through to the City
of San Bernardino for completion of the PROJECTS.
Omnitrans Pass-Through 20%Match
Total Project Article 3 Grant to be
Bus Stop Location Administrative Amount to San
Cost Amount Cost Bernardino provided by
City
Kendall at University I $1,540 I $1,232 I $40J $1,192 I $308
E Street at 18th I $4,312 I $3,450 I $113 I $3,337 I $862
9th at Medical Center I $3,773 I $3,018 I $99 I $2,919 I $755
I E Street at 16th I $3,773 I $3,018 I $99 I $2,919 I $755
Waterman at 5th I $9,856 I $7,885 $258 I $7,627 I $1,971
I Sierra at 16th SB I $2,464 ( $1,971 I $64 I $1,907 I $493
Kendall at H Street I $4,312 I $3,450 I $113 I $3,337 I $862
9th at Western I $3,773 I $3,018 I $99 I $2,919 I $755
I Sierra at 16th NB I $2,464 I $1,971 I $64 I $1,907 I $493
Sierra at 30th I $4,312 I $3,450 I $113 I $3,337 I $862
Kendall at 48th I $2,965 I $2,372 I $78 I $2,294 I $593
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Sierra at 19th $2,094 $1,676 $55 $1,621 $419
Total $45,638 $36,511 $1,195 $35,316 $9,128
3. Within five (5) working days of the receipt of an invoice and accompanying
certification, OMNITRANS shall notify the CITY as to what, if any, additional
supporting documentation and background information will be required. CITY shall
make all required documentation available to OMNITRANS within five (5) working
days, unless stipulated otherwise in writing by OMNITRANS.
4. The first week of the following month after invoice submittal pursuant to Section I1
(6) below, OMNITRANS shall: (i) disburse (including through electronic transfer of
funds, if so requested and if CITY provides the necessary information) so much of the
requested funds which it reasonably believes it can disburse without violating the
terms of either the grant or of applicable law; and (ii) notify the CITY as to why it
reasonably believes that it is unable to disburse some or all of the requested funds
without violating the terms of either the grant or of applicable law or regulation.
5. Omnitrans shall have no liability to CITY for any refusal to disburse funds so long as
Omnitrans has a good faith and reasonable belief that such disbursement would
constitute a violation of the terms of the grant or of applicable law.
6. OMNITRANS shall defend with counsel reasonably approved by CITY, indemnify
and hold CITY, its officials, officers, employees and agents free and harmless from
any and all liability from loss, damage, or injury to property or persons, including
wrongful death, in any manner arising out of or incident to any breach of contract,
negligent acts, omissions or willful misconduct of OMNITRANS arising out of or in
connection with OMNITRANS' performance of this Agreement and/or the
PROJECT.
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SECTION II
CITY AGREES:
1. To provide the 20% local match or project amounts over and above the TDA grant
amounts, whichever is higher.
2. To complete a PROJECT schedule (see Exhibit B) upon the start of the PROJECTS,
and to prepare a detailed cost estimate and specifications for the PROJECTS.
3. To award a construction contract in full compliance with TDA funding requirements
and, upon joint approval of the design, to an experienced contractor or group of
contractors (herein referred to as CONTRACTOR) once the specifications have been
completed and the parties agree to move forward with construction of PROJECTS.
4. To provide the right-of-way for construction of PROJECTS, perform all necessary
investigations, and complete and obtain all necessary permits for the use of the
identified right-of-way for PROJECTS.
5. To provide construction management and related administrative support required
during the bid and construction phase of the PROJECTS.
6. To submit one itemized invoice to Omnitrans upon completion of PROJECTS, which
indicates all costs, fees, and other charges that CITY incurred related to PROJECTS.
The statement shall describe the amount of services and supplies provided since the
initial commencement date, or since the start of the subsequent billing period, as
appropriate, through the date of the current statement.
a. The invoice must be itemized for each PROJECT location, consistent with
the PROJECT names listed in Exhibit A and the table in Section 1.2.
7. To certify to OMNITRANS for each disbursement request, that to the best of its
knowledge such disbursement will not constitute any violation of either the
provisions of the grant or of applicable law and that CITY will use the disbursement
as indicated in the disbursement request.
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8. To provide to OMNITRANS all information needed to meet TDA funding reporting
requirements.
9. To insure that all aspects of the PROJECT and any aspect of CITY's participation in
this Agreement and the actions contemplated of it by this Agreement will be in
compliance with the terms of the grant and with all applicable law.
10. CITY shall be responsible for all duties relative to this PROJECT, including
complying with all bidding and contract administration requirements relative to
construction of a public works project, with all due diligence and in a skillful and
competent manner. CITY shall be responsible to OMNITRANS for any errors or
omissions in its execution of this Agreement. CITY represents and warrants to
OMNITRANS that it and/or its CONTRACTORS has or will have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to
perform the work required to complete the PROJECT. CITY further represents and
warrants that it and/or its CONTRACTORS shall keep in effect all such licenses,
permits, and other approvals during the term of this Agreement.
11. CITY shall keep and maintain all books, papers, records, accounting records
including but not limited to all direct and indirect costs allocated to the PROJECT,
files, accounts, reports, cost proposals with backup data, and all other material
relating to the PROJECT. CITY shall, upon request, make all such materials
available to OMNITRANS or its designee at any reasonable time during the term of
the Agreement and for three (3) years from the date of final payment to CITY, for
auditing, inspection, and copying. Any contract entered into as a result of this
Agreement shall contain all of the provisions of this paragraph.
12. CITY shall defend with counsel reasonably approved by OMNITRANS, indemnify
and hold OMNITRANS, its officials, officers, employees and agents free and
harmless from any and all liability from loss, damage, or injury to property or
persons, including wrongful death, in any manner arising out of or incident to any
breach of contract, negligent acts, omissions or willful misconduct of CITY arising
out of or in connection with CITY's performance of this Agreement and/or the
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PROJECT.
13. The CITY shall agree to comply with all conditions and obligations of the TDA
Article 3 grant for the PROJECT, to the extent it is within CITY's authority to do so.
SECTION III
IT IS MUTUALLY AGREED:
1. The term of this Agreement shall be from the date of execution by both parties until
PROJECT completion, including submission of all required reports, unless earlier
terminated herein by either party.
2. Each Party hereby represents and covenants that they are an authorized self-insured
public entity for purposes of general liability, automobile liability, and workers
compensation, and each Party warrants that through their respective program of self-
insurance, it has adequate coverage and/or resources to protect against its potential
liabilities arising out of the performance of this PROJECT.
3. CITY acknowledges that failure to comply with any material provisions of this
Agreement (such failure to comply is hereinafter called a "Default") may, in the sole
but reasonable discretion of OMNITRANS, result in revocation of funding for the
PROJECT by OMNITRANS. In the event OMNITRANS determines that CITY has
committed a Default by failing to comply with a material provision of this Agreement,
OMNITRANS will notify CITY in writing of the Default. CITY shall have thirty (30)
days (unless a shorter time is reasonably determined by OMNITRANS to be required
under the circumstances) from the date of OMNITRANS' letter of notification of
Default to cure the Default. In the event CITY fails to cure the Default or dispute the
Default under the provisions of Section III, item 10 within the time allowed or if the
CITY's dispute is not resolved in the CITY's favor, OMNITRANS may revoke the
funding for the PROJECT and terminate this Agreement by written notice to the CITY.
Any funds which may become available as a result of revocation of such funding
and termination of this Agreement due to CITY's failure to timely cure a Default,
may not be utilized by the CITY in any manner, but will be returned to or remain
7
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with OMNITRANS to be used in compliance with the requirements of the
available grant funds.
4. No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by the parties hereto, and no oral understanding or agreement not
incorporated herein shall be binding on any of the parties hereto.
5. Nothing in the provisions of this Agreement is intended to create duties or obligations to
or rights in third parties not party to this Agreement or affect the legal liability of any
party to the Agreement by imposing any standard of care with respect to the
maintenance of facilities different from the standard of care imposed by law.
6. All notices and correspondence are to be sent to the following addresses:
OMNITRANS CITY OF SAN BERNARDINO
Attn: Scott Graham Attn: Mark Scott
CEO/General Manager City Manager
1700 W. Fifth Street 300 North"D" Street
San Bernardino, CA 92411-2499 San Bernardino, CA 92418
7. This Contract shall be binding on the successors and assigns of the parties, but may not
be assigned by CITY without approval from OMNITRANS.
8. Prohibited Interests.
CITY OF SAN BERNARDINO:
A. Solicitation. CITY maintains and warrants that it has not employed nor retained
any company or person, other than a bona fide employee working solely for
CITY, to solicit or secure this Agreement. Further, CITY warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide
employee working solely for CITY, any fee, commission, percentage, brokerage
fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty,
8
2016-60
OMNITRANS shall have the right to rescind this Agreement without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of CITY, during the term of his or her service with CITY, shall have
any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising there from. CITY covenants that at present time it has no interest,
and will not have any interest, direct or indirect, which would conflict in any
manner with the performance of the Agreement or the PROJECT required
hereunder.
OMNITRANS:
A. Solicitation. OMNITRANS maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely
for OMNITRANS, to solicit or secure this Agreement. Further, OMNITRANS
warrants that it has not paid nor has it agreed to pay any company or person,
other than a bona fide employee working solely for OMNITRANS, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent
upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, CITY shall have the right to rescind this Agreement
without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of OMNITRANS, during the term of his or her service with
OMNITRANS, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising there from. OMNITRANS
covenants that at present it has no interest, and will not have any interest, direct
or indirect, which would conflict in any manner with the performance of the
Agreement or the PROJECT required hereunder.
9. If any legal action is instituted to enforce or declare any party's rights hereunder, each
party, including the prevailing party, must bear its own costs and attorney's fees. This
paragraph shall not apply to those costs and attorney's fees directly arising from any
third party legal action against a party hereto and payable under Section I, Paragraph 6
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or Section II, Paragraph 12, Indemnification.
10. In the event any dispute arises between the parties hereto under or in connection with
this Agreement, the dispute shall be decided by the CEO/General Manager of
OMNITRANS or his duly authorized representative within thirty (30) calendar days
after notice thereof in writing which notice shall include a detailed statement of the
grounds of the dispute and why the dispute should be resolved in the disputing Party's
favor. If the CEO/General Manager fails to resolve the dispute in a manner acceptable
to CITY, then such appeal shall be decided by a court of competent jurisdiction. During
resolution of the dispute, CITY shall proceed with the performance of this Agreement to
the extent practicable.
11. Whenever review, consent, or approval of either party must be given or where it can be
withheld, that party must not unreasonably review or unreasonably withhold such
consent or approval.
This Agreement constitutes the entire understanding of the parties with respect to the subject
matter hereof, and there are no other representations, promises, warranties, covenants or
undertakings with respect thereto.
In witness thereof, the parties have caused this Agreement to be executed by their respective
officers.
OMNITRANS CITY OF SAN,BERNARDINO
By. �_e - y:
P. Scott Graham Mark Scott
CEO/Gener M.4 pager City Manager
Date: � Date: 3 l�
APPROVED AS TO FORM: APPROVED AS TO FORM:
Gary D. Saenz,City Attorney
By: % ��?1`7 B
1CSG�-
Omnitrans Legal Counsel
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Exhibit A: Funding Award
San Bernardino Associated Governments
1170 WeA 1..J St..",«J 1s 1.SAB Fl<trlrr:l:c ) CA 9;2414l-1?15
Ptnun,. J14i SS4-k2`61 a,x.tPOf45 SS5,441'i"W°rh "'-inhag c.:gov
4an Aur)sa1'C w)o i,„owir5 Citd l CC3tEi 8 C a @iknwr svm Siin ii rrar(lirro('('unr} Tt.uvq*c.wthtwn Aut#tmty
San Henna' dine coun',r Con1„r%ort Nla tagrnicnt Aymc: 4 FVr :�cit#;+, s:� fc+r T re wat I cncr cnt:,WA.
COUNTY: Gounty of San Bernard r o Allocation#: -1407-14
MONTH: July
FY: 2013-14
CLAIMANT. t7rnmtrans Attn: Maurice Mansion
1700 W. 5th Street Treasury Manager
San Bernardino, Ca 92471
ARTICLE:. 3. Ped!Bike
PUC CODE: 992,34c:
AMOUNT: $ 158,852
PURPOSE: Kendall at University S 1,232 Transit Access
Del Rosa at Oate $ 3,450
E St at 14th Sl 2,503
E St at 181h :3,450
9th at Medical Center :1'()18
r'411 oil r $ 3.318
Sultana at Transit 1,478
Campus at Holt 5 2,094
Waterman at 5th $ 7,885
Sierra at I 61 S 1,971
Kendall at H St 3,450
48th at 4th W1 3,91€1
Tippecan e att Sin Bernardino S 7,885
Ban Bernardino at Live Oak S X3,400
9th at Western $ 3,018
Sierra at 16th $ 1,971
Vineyard at Ith S 2,531
Sierra at 30th S 3,450
0 at 91h 2,587
San Bernardino at Hemlock 0.400
Merrill at Beech WS 12,800
Kendall at 48th S 2,37r
Sari Bernardino at Indigo $ 2.587
5th at Benson $ 1.487
Sierra at I9th S 1,6I
at Perin sylvania S 1,478
C at Pennsylvania '?i1iB S 1,478
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2016-60
Euclid Ave;it 4th 2,464
Baseline at Metidiart EB $ 2,240
6th St at Grove $ 3,018
Euclid at Belmont S 3,450
Met,01 at Meech EB $ 6,560
3urupa at Etiwanch-i $ 7,865
Bann *.' rnordino at:ycArnot e $ 3,450
Inland Empire at Merceoes $ 3,450
San Bernardino at Redwood $ 6 400
Euclid at Riverside $ 1,478
Milliken at Santa Ana $ 3.450
Baseline at Pepper ES $ 2.560
Milliken at Jurupz°t $ 3,450
;gin Bernardino at Eucalyptus, $ 1,232
Wilbrose at Woodpine SB $ '0.600
Riverside at Senior Way Std $ 1,600
Riverside at James SB $ 2,696
Milliken at Toyota $ 3 450
C St at 2fid $ 1 232
FUNDS TO BE DISBURSED UPON INSTRUCTION OF SANBAG
=JuriJurisdictional Split UtI Af_i CODING %Amount
fit?
sdictional$� 1883 85 ,00 0,506,70','"??'? Vg),,4 t J1 ,�
Pmts r d y. Approved bV
''srreasate'ei°.#: '�nurca Cuzr:d�r
'1"nwiportat,rn#"r+' r n m,n .Ansi--z t Fr, °:°t s sttt A,ht im i'm9fararting
P� f
Approved by. � a _sue m . 1P�.n«e<i hr
%4nntca Nloralcs MitdheO A Als3carxran —
Tr«sa. Du 'ts tt:5r sit: #i.9as t.rsarrt
12
2016-60
Exhibit B: Project Milestones & Schedule
Milestone Completion Date
Complete design and any required environmental clearance for
project.
Complete specifications for construction.
Obtain quotes or bids for construction.
Award construction contract.
Start construction.
Complete construction.
Complete invoicing.
To be completed by the City upon the start of the Project.
13
2016-60 B
TIPPECANOE & SAN BERNARDINO TRANSIT STOP ACCESS
IMPROVEMENT PROJECT
FUNDING AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
300 NORTH "D" STREET
SAN BERNARDINO, CA 92418
AND
OMNITRANS
1700 WEST FIFTH STREET
SAN BERNARDINO, CALIFORNIA 92411
This AGREEMENT, entered into on 3/21/16 is between the CITY OF SAN
BERNARDINO, a body politic and a municipal corporation of the State of California,
referred to herein as "CITY" and OMNITRANS, a joint powers public transit agency,
referred to herein as "OMNITRANS."
RECITALS
1. OMNITRANS and CITY mutually desire to cooperate and participate in the
design and construction of a Transit Stop Access Improvement project located
on Tippecanoe Avenue north of San Bernardino Avenue, referred to herein as
"PROJECT."
2016-60
2. The PROJECT consists of the following: design and construction of an ADA
accessible boarding area, new sidewalk connecting to the intersection, and
retaining wall on Tippecanoe Avenue (northbound) north of San Bernardino
Avenue (see Exhibit A).
3. The following costs for the PROJECT will be reimbursable under this
Agreement: administration, preliminary engineering and design, plans,
specifications, estimates, construction, mobilization, traffic control and safety,
labor, materials, permits, legal contract review, and contingencies, in
accordance with the terms of the grant funding.
4. The PROJECT must be completed before June 30, 2016, in accordance with
the terms of the TDA Article 3 grant funding from the San Bernardino
Associated Governments (SANBAG), unless an extension of the grant
funding should be granted by SANBAG.
5. This AGREEMENT supersedes any prior oral or written agreement in relation
to this PROJECT.
6. OMNITRANS and CITY desire to specify herein the terms and conditions
under which the PROJECT shall be funded, designed, constructed,
maintained, and operated.
Payment Upon Termination
All eligible and approved costs incurred during each phase of the PROJECT, as
required to complete said phase, shall be reimbursed through the funding identified.
In addition, should some unforeseen circumstance beyond the control of the parties
occur, such as a loss in funding for the PROJECT during any phase of the PROJECT,
then either party may give written notice of its intent to terminate the PROJECT and
all eligible costs to date will be reimbursed through the available funds identified for
the PROJECT. In the event of such termination OMNITRANS shall authorize full
payment to the CITY for all services performed which have been previously approved
and actually incurred by CITY at the time of termination, which amount shall not
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exceed the reasonable value of the work completed according to the schedule
established pursuant to Section II. In the event that none of the funding identified in
Section I is available due to a complete loss in funding for the PROJECT,
OMNITRANS will have no obligation to make payment to CITY for any services
performed.
In ascertaining the services actually rendered hereunder up to the date of termination
of this Agreement, consideration shall be given to both completed work and work in
process of completion.
SECTION I
OMNITRANS AGREES:
I. To attend pertinent meetings set forth by the CITY and/or the CITY's
CONTRACTOR regarding the development process of PROJECT.
2. To provide funding for the project from Transportation Development Act
(TDA) Article 3 funds awarded to Omnitrans by the San Bernardino
Associated Governments in 2013 (See Exhibit B). Of the total grant amount
of $7,885, Omnitrans will use 3.27% or $258 for administration (per
Omnitrans' Cost Allocation Plan). The remaining amount, $7,627, will be
passed through to the City of San Bernardino for completion of PROJECT.
3. Within five (5) working days of the receipt of an invoice and accompanying
certification, OMNITRANS shall notify the CITY as to what, if any,
additional supporting documentation and background information will be
required. CITY shall make all required documentation available to
OMNITRANS within five (5) working days, unless stipulated otherwise in
writing by OMNITRANS.
4. The first week of the following month after invoice submittal pursuant to
Section II (6) below, OMNITRANS shall: (i) disburse (including through
electronic transfer of funds, if so requested and if CITY provides the
necessary information) so much of the requested funds which it reasonably
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believes it can disburse without violating the terms of either the grant or of
applicable law; and (ii) notify the CITY as to why it reasonably believes that it
is unable to disburse some or all of the requested funds without violating the
terms of either the grant or of applicable law or regulation.
5. Omnitrans shall have no liability to CITY for any refusal to disburse funds so
long as Omnitrans has a good faith and reasonable belief that such
disbursement would constitute a violation of the terms of the grant or of
applicable law.
6. OMNITRANS shall defend with counsel reasonably approved by CITY,
indemnify and hold CITY, its officials, officers, employees and agents free
and harmless from any and all liability from loss, damage, or injury to
property or persons, including wrongful death, in any manner arising out of or
incident to any breach of contract, negligent acts, omissions or willful
misconduct of OMNITRANS arising out of or in connection with
OMNITRANS' performance of this Agreement and/or the PROJECT.
SECTION II
CITY AGREES:
1. To provide 20% local match or project amounts over and above the TDA
grant amounts, whichever is higher.
2. To complete a PROJECT schedule (see Exhibit C) upon the start of the
PROJECT, and to prepare a detailed cost estimate and specifications for the
PROJECT.
3. To award a construction contract in full compliance with TDA funding
requirements and, upon joint approval of the design, to an experienced
contractor or group of contractors (herein referred to as CONTRACTOR)
once the specifications have been completed and the parties agree to move
forward with construction of PROJECT.
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2016-60
4. To provide the right-of-way for construction of PROJECT, perform all
necessary investigations, and complete and obtain all necessary permits for
the use of the identified right-of-way for this PROJECT.
5. To provide construction management and related administrative support
required during the bid and construction phase of the PROJECT.
6. To submit one itemized invoice to Omnitrans on or before the 15th day of the
month that indicates all costs, fees, and other charges that CITY incurred
related to the PROJECT. The statement shall describe the amount of services
and supplies provided since the initial commencement date, or since the start
of the subsequent billing period, as appropriate, through the date of the current
statement.
7. To certify to OMNITRANS for each disbursement request, that to the best of
its knowledge such disbursement will not constitute any violation of either the
provisions of the grant or of applicable law and that CITY will use the
disbursement as indicated in the disbursement request.
8. To provide to Omnitrans all information needed to meet TDA funding
reporting requirements.
9. To insure that all aspects of the PROJECT and any aspect of CITY's
participation in this Agreement and the actions contemplated of it by this
Agreement will be in compliance with the terms of the grant and with all
applicable law.
10. CITY shall be responsible for all duties relative to this PROJECT, including
complying with all bidding and contract administration requirements relative
to construction of a public works project, with all due diligence and in a
skillful and competent manner. CITY shall be responsible to OMNITRANS
for any errors or omissions in its execution of this Agreement. CITY
represents and warrants to OMNITRANS that it and/or its CONTRACTORS
has or will have all licenses, permits, qualifications and approvals of whatever
5
2016-60
nature that are legally required to perform the work required to complete the
PROJECT. CITY further represents and warrants that it and/or its
CONTRACTORS shall keep in effect all such licenses, permits, and other
approvals during the term of this Agreement.
11. CITY shall keep and maintain all books, papers, records, accounting records
including but not limited to all direct and indirect costs allocated to the
PROJECT, files, accounts, reports, cost proposals with backup data, and all
other material relating to the PROJECT. CITY shall, upon request, make all
such materials available to OMNITRANS or its designee at any reasonable
time during the term of the Agreement and for three (3) years from the date of
final payment to CITY, for auditing, inspection, and copying. Any contract,
entered into as a result of this Agreement shall contain all of the provisions of
this paragraph.
12. CITY shall defend with counsel reasonably approved by OMNITRANS,
indemnify and hold OMNITRANS, its officials, officers, employees and
agents free and harmless from any and all liability from loss, damage, or
injury to property or persons, including wrongful death, in any manner arising
out of or incident to any breach of contract, negligent acts, omissions or
willful misconduct of CITY arising out of or in connection with CITY's
performance of this Agreement and/or the PROJECT.
13. The CITY shall agree to comply with all conditions and obligations of the TDA
Article 3 grant for the PROJECT, to the extent it is within CITY's authority to do
SO.
SECTION III
IT IS MUTUALLY AGREED:
1. The term of this Agreement shall be from the date of execution by both parties
until PROJECT completion, including submission of all required reports, unless
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earlier terminated herein by either party.
2. Each Party hereby represents and covenants that they are an authorized self-
insured public entity for purposes of general liability, automobile liability, and
workers compensation, and each Party warrants that through their respective
program of self-insurance, it has adequate coverage and/or resources to protect
against its potential liabilities arising out of the performance of this PROJECT.
3. CITY acknowledges that failure to comply with any material provisions of this
Agreement (such failure to comply is hereinafter called a "Default") may, in the
sole but reasonable discretion of OMNITRANS, result in revocation of funding
for the PROJECT by OMNITRANS. In the event OMNITRANS determines
that CITY has committed a Default by failing to comply with a material
provision of this Agreement, OMNITRANS will notify CITY in writing of the
Default. CITY shall have thirty (30) days (unless a shorter time is reasonably
determined by OMNITRANS to be required under the circumstances) from the
date of OMNITRANS' letter of notification of Default to cure the Default. In
the event CITY fails to cure the Default or dispute the Default under the
provisions of Section 1II, item 10 within the time allowed or if the CITY's
dispute is not resolved in the CITY's favor, OMNITRANS may revoke the
funding for the PROJECT and terminate this Agreement by written notice to the
CITY. Any funds which may become available as a result of revocation of
such funding and termination of this Agreement due to CITY's failure to
timely cure a Default, may not be utilized by the CITY in any manner, but
will be returned to or remain with OMNITRANS to be used in compliance
with the requirements of the available grant funds.
4. No alteration or variation of the terms of this Agreement shall be valid unless
made in writing and signed by the parties hereto, and no oral understanding or
agreement not incorporated herein shall be binding on any of the parties hereto.
5. Nothing in the provisions of this Agreement is intended to create duties or
obligations to or rights in third parties not party to this Agreement or affect the
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2016-60
legal liability of any party to the Agreement by imposing any standard of care
with respect to the maintenance of facilities different from the standard of care
imposed by law.
6. All notices and correspondence are to be sent to the following addresses:
OMNITRANS CITY OF SAN BERNARDINO
Attn: Scott Graham Attn: Mark Scott
CEO/General Manager City Manager
1700 W. Fifth Street 300 North"D" Street
San Bernardino, CA 92411-2499 San Bernardino, CA 92418
7. This Contract shall be binding on the successors and assigns of the parties, but
may not be assigned by CITY without approval from OMNITRANS.
8. Prohibited Interests.
CITY OF SAN BERNARDINO:
A. Solicitation. CITY maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working
solely for CITY, to solicit or secure this Agreement. Further, CITY
warrants that it has not paid nor has it agreed to pay any company or
person, other than a bona fide employee working solely for CITY, any fee,
commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement.
For breach or violation of this warranty, OMNITRANS shall have the
right to rescind this Agreement without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of CITY, during the term of his or her service with CITY, shall
have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising there from. CITY covenants that at
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2016-60
present time it has no interest, and will not have any interest, direct or
indirect, which would conflict in any manner with the performance of the
Agreement or the PROJECT required hereunder.
OMNITRANS:
A. Solicitation. OMNITRANS maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide
employee working solely for OMNITRANS, to solicit or secure this
Agreement. Further, OMNITRANS warrants that it has not paid nor has
it agreed to pay any company or person, other than a bona fide employee
working solely for OMNITRANS, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. For breach or violation of
this warranty, CITY shall have the right to rescind this Agreement
without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of OMNITRANS, during the term of his or her service with
OMNITRANS, shall have any direct interest in this Agreement, or obtain
any present or anticipated material benefit arising there from.
OMNITRANS covenants that at present it has no interest, and will not
have any interest, direct or indirect, which would conflict in any manner
with the performance of the Agreement or the PROJECT required
hereunder.
9. If any legal action is instituted to enforce or declare any party's rights hereunder,
each party, including the prevailing party, must bear its own costs and attorney's
fees. This paragraph shall not apply to those costs and attorney's fees directly
arising from any third party legal action against a party hereto and payable under
Section I, Paragraph 6 or Section II, Paragraph 12, Indemnification.
10. In the event any dispute arises between the parties hereto under or in connection
with this Agreement, the dispute shall be decided by the CEO/General Manager
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of OMNITRANS or his duly authorized representative within thirty (30)
calendar days after notice thereof in writing which notice shall include a detailed
statement of the grounds of the dispute and why the dispute should be resolved
in the disputing Party's favor. If the CEO/General Manager fails to resolve the
dispute in a manner acceptable to CITY, then such appeal shall be decided by a
court of competent jurisdiction. During resolution of the dispute, CITY shall
proceed with the performance of this Agreement to the extent practicable.
13. Whenever review, consent, or approval of either party must be given or where
it can be withheld, that party must not unreasonably review or unreasonably
withhold such consent or approval.
This Agreement constitutes the entire understanding of the parties with respect to the
subject matter hereof, and there are no other representations, promises, warranties,
covenants or undertakings with respect thereto.
In witness thereof, the parties have caused this Agreement to be executed by their
respective officers.
OMNITRANS CITY OF SAN BERNARDINO
P. Scott Graham Mark Scott
CEO/General Manager City Manager
Date: (!i Date:
APPROVED AS TO FORM: APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By: By:
Omnitrans Legal Counsel
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2016-60
Exhibit A: Photo of Project Location and Existing Conditions
Stop 0908
Tippecanoe Ave at San Bernardino (North)
San Beruard no. CA
Al
i�i �j kl
i
Yom..
z x,,
dF' u
1 1
2016-60
Exhibit B: Funding Award
Sate Bernardino e1mociated Governments
1170 We_,t 3rd S...2nd E t.San Hei n wiiao CA 92410-17 15
Phase.;: '(Xj)j 884- 27tr Fax:(909)535-4401 Wch:www-sanbag-ca.gov
-San Bcrnarr inn,couaty Trxltsrnrtanna OXwnis�,k n San 8crrardir<r f°rttaaty Trarsspwarirrn Authority
<San li=t dLnu Coun''y Cungrslion Mazapracnt Age ru -Setvice.r'iirtlwiity fur Freeway Erncrgcrtcics
COUNTY. County of San Bernardino Allocation#z 5-1407-14
BANBAG P.0-:
MONTH. July
FY, 2013-14
CLAIMANT' Ornnitrans Attn: Maurice Mansion
1700 W,5th Street Treasury Manager
San Bernardino, Ca 92411
ARTICLE. 3 - Ped'Bike
PUC CODE. 992:34c
AMOUNT: $ 168,852
PURPOSE: Kendall at University $ 1,232 Transi!access
Gael Rosa at Bate $ 3,450
E St at 14th $ 2,303
E St at 1 8th $ 3,450
91h at Medical Center $ 3,018
E 3t at 1601 $11 3,018
Sultana at Transit $ 1,478
Campus at Holt $ 2,094
Waterman at 5th $ 7,885
Sierra at 16th $ 1,971
Kendall at H St $ 3,450
48th at 4th W $ 3,018
Tippet tnoe at San Bernardino $ 7,885
San Bernardino at Live Oak $ 0,400
9th at Western $ 3,018
Sierra at 16th $ 1,971
Vineyard at Tth $ 2,531
Sierra at 30th $ 3,450
0 at 9th $ 2,587
San Bernardino at Hemlock $ .3,400
Merrill at Bcech WO $ 12,800
Kendall at 48th $ 2,37?
San Bernardino at Indigo $ 2,587
5th at Benson $ 1,4137
Sierra at 19th $ 1,676
C at Pennsylvania $ 1,478
C at Pennsylvania WB $ 1,478
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Exhibit C: Project Milestones & Schedule
Milestone Completion Date
Complete design and any required environmental clearance for
proj ect.
Complete specifications for construction.
Obtain quotes or bids for construction.
Award construction contract.
Start construction.
Complete construction.
Complete invoicing.
To be completed by the City upon the start of the Project.
13