HomeMy WebLinkAbout05.S- Two Funding Agreements with Omnitrans for 13 Bus Stop Locations 5.S
RESOLUTION (ID # 4292) DOC ID: 4292 D
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Agreement
From: Marlene Miyoshi M/CC Meeting Date: 03/21/2016
Prepared by: Fawna Velci, (909) 384-
5140
Dept: Public Works Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Approving
Two Funding Agreements with Omnitrans for 13 Bus Stop Locations Within the City,
Funded by 2013 TDA Article 3 Grant Funding. (#4292)
Current Business Registration Certificate: Not Applicable
Financial Impact:
This Grant requires a minimum 20% match ($11,099); funds are available in account
129-160-7202-5504.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
None.
Background:
In 2013, OmniTrans applied for and received grant funds from San Bernardino
Associated Governments (SANBAG) for construction of 13 high priority bus stop
improvements throughout the City, using TDA Article 3 funding. The locations, cost
estimates and funding breakdown are listed below:
Bus Stop Ward Total Article 3 Omnitran Grant 20% Grant
Location Project Grant s Grant Pass- Local
Cost Amount Admin Thru to Match
Cost City From City
Kendall at 5 $ 1,540 $ 1,232 $ 40 $ 1,192 $ 308
University
E Street at 2 $ 4,312 $ 3,450 $ 113 $ 3,337 $ 862
18th
gth at Medical 1/6 $ 3,773 $ 3,018 $ 99 $ 2,919 $ 755
Center
E Street at 2 $ 3,773 $3,018 $ 99 $ 2,919 $ 755
16th
Waterman at 1 $ 9,856 $ 7,885 $ 258 $ 7,627 $ 1,971
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5.S
4292
Sierra at 16 th 2 $ 2,464 $ 1 ,971 $ 64 $ 1,907 $ 493
SB
Kendall at H 4/5 $ 4,312 $ 3,450 $ 113 $ 3,337 $ 862
Street
9 at Western 6/1 $ 3,773 $ 3,018 $ 99 $ 2,919 $ 755
Sierra at 16th 2 $ 2,464 $ 1,971 $ 64 $ 1,907 $ 493
NB
Sierra at 30th 7 $ 4,312 $ 3,450 $ 113 $ 3,337 $ 862
Kendall at 5 $ 2,965 $ 2,372 $ 78 $ 2,294 $ 593
48th
Sierra at 19th 2 $ 2,094 $ 1,676 $ 55 $ 1 ,621 $ 419
Subtotal $ 45,638 $36,511 $1,195 $35,316 $9,128
Tippecanoe at 3 $ 9,856 $ 7,885 $ 258 $ 7,627 $ 1,971
San
Bernardino
Total $ 55,494 $44,396 $ 1,453 $ 42,943 $ 11,099
The total amount of TDA Article 3 grant funding that the City will receive from
OmniTrans for all locations is $42,943. The City is required to provide a 20% local
match of project cost ($11,099). This funding is currently available in the FY 15/16
budget from a Measure I funded ADA Compliance Project.
OmniTrans has requested the approval and execution of the attached agreements for
the Bus Stop Project. OmniTrans submitted two project agreements: one for 12
locations and one for the Tippecanoe and San Bernardino Avenues location. The
design for Tippecanoe Ave and San Bernardino Ave location is further along and
construction can commence immediately upon approval of agreement and issuance of a
purchase order. The designs of the other locations are expected to be finalized and
advertised for bid before the end of February.
The first agreement attached herein at Exhibit "A" includes improvements to 12 transit
locations Citywide with a total project budget of $45,638. The second agreement
attached herein as Exhibit "B" is for improvements to the Tippecanoe and San
Bernardino Avenues location with a total project budget of$9,856.
City Attorney Review:
Yes
Supporting Documents:
Resolution approving funding agreement with Omnitrans (DOC)
Agrmt 4292A(PDF)
Agrmt 4292B(PDF)
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1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF o
SAN BERNARDINO APPROVING TWO FUNDING AGREEMENTS WITH �
3 OMNITRANS FOR 13 BUS STOP LOCATIONS WITHIN THE CITY, FUNDED BY
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2013 TDA ARTICLE 3 GRANT FUNDING.
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WHEREAS, Omnitrans has applied for and received grant funds from SANBAG for
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6 construction of 13 bus stop locations throughout the City; and,
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7 WHEREAS, funding agreements with Omnitrans are necessary in order to complete
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the improvements. a,
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NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
10 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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behalf of the City, the two attached funding agreements with Omnitrans for transit stop access o
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improvements; copies of which are attached hereto and incorporated herein as Exhibit "A"
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15 and Exhibit`B". v
16 SECTION 2. The above authorization is hereby rescinded if the agreements are not o
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
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2 SAN BERNARDINO APPROVING TWO FUNDING AGREEMENTS WITH o
OMNITRANS FOR 13 BUS STOP LOCATIONS WITHIN THE CITY, FUNDED BY
3 2013 TDA ARTICLE 3 GRANT FUNDING.
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4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor E
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and Common Council of the City of San Bernardino at a meeting 3
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7 thereof, held on the day of , 2016, by the following vote, to wit:
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8 Council Members: AYES NAYS ABSTAIN ABSENT Q
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9 MARQUEZ
10 BARRIOS ``
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11 VALDIVIA
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SHORETT o
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14 NICKEL °'
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15 RICHARD L
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16 MULVIHILL E
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Georgeann Hanna, City Clerk E
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20 The foregoing resolution is hereby approved this day of , 2016.
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22 R. CAREY DAVIS, Mayor
23 City of San Bernardino 0
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Approved as to form: 0.
24 GARY D. SAENZ, o
City Attorney
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26 By.
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CITY OF SAN BERNARDINO TRANSIT STOP ACCESS IMPROVEMENT PROJECTS
FUNDING AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
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300 NORTH "D" STREET o
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SAN BERNARDINO, CA 92418
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OMNITRANS N
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1700 WEST FIFTH STREET
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SAN BERNARDINO, CALIFORNIA 92411
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This AGREEMENT, entered into on is between the CITY OF SAN !
BERNARDINO, a body politic and a municipal corporation of the State of California, referred to N
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herein as "CITY" and OMNITRANS, a joint powers public transit agency, referred to herein as
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"OMNITRANS."
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RECITALS
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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,
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construction, mobilization, traffic control and safety, labor, materials, permits, legal E
contract review, and contingencies, in accordance with the terms of the grant funding. o
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4. The PROJECTS must be completed before December 31, 2016, in accordance with N
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.
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5. This AGREEMENT supersedes any prior oral or written agreement in relation to 0
these PROJECTS.
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6. OMNITRANS and CITY desire to specify herein the terms and conditions under E
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which the PROJECTS shall be funded, designed, constructed, maintained, and Q
operated.
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Payment Upon Termination U.
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All eligible and approved costs incurred during each phase of the PROJECTS, as required to
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complete said phase, shall be reimbursed through the funding identified. In addition, should
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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 Q
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.
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SECTION I
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OMNITRANS AGREES: E
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1. To attend pertinent meetings set forth by the CITY and/or the CITY's CU
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CONTRACTOR regarding the development process of PROJECTS.
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2. To provide funding for the project from Transportation Development Act (TDA)
Article 3 funds awarded to Omnitrans by the San Bernardino Associated p
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 d
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of San Bernardino for completion of the PROJECTS.
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Omnitrans Pass-Through 20%Match ''-
Total Project Article 3 Grant to be N
Bus Stop Location Administrative Amount to San M
Cost Amount Provided by c4
Cost Bernardino City
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Kendall at University $1,540 , $1,232 $40 I $1,192 $308
LE Street at 18th I $4,312 I $3,450 $113 I $3,337 $862
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9th at Medical Center $3,773 $3,018 i $99 $2,919 ( $755 I Q
E Street at 16th i $3,773 $3,018 $99 I $2,919 I $755
Waterman at 5th 1 $9,856 li $7,885 i $258 $7,627 I $1,971
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I Sierra at 16th SB $2,464 $1,971 I $64 $1,907 $493 I Q
Kendall at H Street $4,312 I $3,450 I $113 $3,337 $862
1 9th at Western I $3,773 $3,018 $99 $2,919 ( $755
Sierra at 16th NB 1 $2,464 I $1,971 ! $64 $1,907 $493
1 Sierra at 30th $4,312 $3,450 I $113 I $3,337 I $862
Kendall at 48th ` $2,965 $2,372 $78 $2,294 I $593 I
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Sierra at 19th $2,094 $1,676 $55 $1,621 $419
Total $45,638 $36,511 51,195 $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
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supporting documentation and background information will be required. CITY shall 0
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make all required documentation available to OMNITRANS within five (5) working
days, unless stipulated otherwise in writing by OMNITRANS.
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4. The first week of the following month after invoice submittal pursuant to Section 11 °
(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 E
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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 E
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without violating the terms of either the grant or of applicable law or regulation.
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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 u
constitute a violation of the terms of the grant or of applicable law. c
6. OMNITRANS shall defend with counsel reasonably approved by CITY, indemnify N
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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 E a�
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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 .c
connection with OMNITRANS' performance of this Agreement and/or the Q
PROJECT.
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SECTION 11
CITY AGREES:
1. To provide the 20% local match or project amounts over and above the TDA grant
amounts, whichever is higher.
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2. To complete a PROJECT schedule (see Exhibit B) upon the start of the PROJECTS, E
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and to prepare a detailed cost estimate and specifications for the PROJECTS. o
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3. To award a construction contract in full compliance with TDA funding requirements y
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 0
completed and the parties agree to move forward with construction of PROJECTS. L
4. To provide the right-of-way for construction of PROJECTS, perform all necessary o
investigations, and complete and obtain all necessary permits for the use of the
identified right-of-way for PROJECTS.
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5. To provide construction management and related administrative support required
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during the bid and construction phase of the PROJECTS.
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6. To submit one itemized invoice to Omnitrans upon completion of PROJECTS,which u
indicates all costs, fees, and other charges that CITY incurred related to PROJECTS. N
The statement shall describe the amount of services and supplies provided since the Q
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initial commencement date, or since the start of the subsequent billing period, as
appropriate, through the date of the current statement. E
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a. The invoice must be itemized for each PROJECT location, consistent with
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the PROJECT names listed in Exhibit A and the table in Section 1.2.
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7. To certify to OMNITRANS for each disbursement request, that to the best of its a
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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g. 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.
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10. CITY shall be responsible for all duties relative to this PROJECT, including
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complying with all bidding and contract administration requirements relative to E
construction of a public works project, with all due diligence and in a skillful and
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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, i
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, N
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permits, and other approvals during the term of this Agreement.
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11. CITY shall keep and maintain all books, papers, records, accounting records a
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 u
relating to the PROJECT. CITY shall, upon request, make all such materials N
available to OMNITRANS or its designee at any reasonable time during the term of
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the Agreement and for three (3) years from the date of final payment to CITY, for N
auditing, inspection, and copying. Any contract entered into as a result of this E
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Agreement, shall contain all of the provisions of this paragraph. Q
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12. CITY shall defend with counsel reasonably approved by OMNITRANS, indemnify E
and hold OMNITRANS, its officials, officers, employees and agents free and a
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: E
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1. The term of this Agreement shall be from the date of execution by both parties until 0
PROJECT completion, including submission of all required reports, unless earlier
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terminated herein by either party.
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2. Each Party hereby represents and covenants that they are an authorized self-insured c
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public entity for purposes of general liability, automobile liability, and workers
compensation, and each Party warrants that through their respective program of self- o
insurance, it has adequate coverage and/or resources to protect against its potential
liabilities arising out of the performance of this PROJECT.
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3. CITY acknowledges that failure to comply with any material provisions of this
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Agreement (such failure to comply is hereinafter called a "Default") may, in the sole
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but reasonable discretion of OMNITRANS, result in revocation of funding for the
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PROJECT by OMNITRANS. In the event OMNITRANS determines that CITY has C;;
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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)
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days (unless a shorter time is reasonably determined by OMNITRANS to be required
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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 c
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Default under the provisions of Section III, item 10 within the time allowed or if the
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CITY's dispute is not resolved in the CITY's favor, OMNITRANS may revoke the Q
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
`yam, 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.
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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 Q
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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.
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6. All notices and correspondence are to be sent to the following addresses: N
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OMNITRANS CITY OF SAN BERNARDINO
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Attn: Scott Graham Attn: Mark Scott
CEO/General Manager City Manager
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1700 W. Fifth Street 300 North"D" Street E
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San.Bernardino, CA 92411-2499 San Bernardino, CA 92418 a'
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7. This Contract shall be binding on the successors and assigns of the parties, but may not U-
be assigned by CITY without approval from OMNITRANS. N
8. Prohibited Interests. a
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CITY OF SAN BERNARDINO: E
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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 a
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
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manner with the performance of the Agreement or the PROJECT required o
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hereunder. E
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OMNITRANS: L
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A. Solicitation. OMNITRANS maintains and warrants that it has not employed nor N
retained any company or person, other than a bona fide employee working solely
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for OMNITRANS, to solicit or secure this Agreement. Further, OMNITRANS E
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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,
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commission, percentage, brokerage fee, gift or other consideration contingent E
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 c
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without liability.
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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 a
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OMNITRANS, shall have any direct interest in this Agreement, or obtain any C4
present or anticipated material benefit arising there from. OMNITRANS E
covenants that at present it has no interest, and will not have any interest, direct Q
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or indirect, which would conflict in any manner with the performance of the E
Agreement or the PROJECT required hereunder.
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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
m 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
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grounds of the dispute and why the dispute should be resolved in the disputing Party's
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favor. If the CEO/General Manager fails to resolve the dispute in a manner acceptable c
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to CITY, then such appeal shall be decided by a court of competent jurisdiction. During E
resolution of the dispute, CITY shall proceed with the performance of this Agreement to c
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the extent practicable. ~
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11. Whenever review, consent, or approval of either party must be given or where it can be o
withheld, that party must not unreasonably review or unreasonably withhold such E
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consent or approval.
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This Agreement constitutes the entire understanding of the parties with respect to the subject
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matter hereof, and there are no other representations, promises, warranties, covenants or a
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undertakings with respect thereto. Q
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In witness thereof, the parties have caused this Agreement to be executed by their respective
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OMNITRANS CITY OF SAN BERNARDINO N
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By: By:
P. Scott Graham Mark Scott
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CEO/General Manager City Manager Q
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Date: Date:
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APPROVED AS TO FORM: APPROVED AS TO FORM:
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Gary D. Saenz, City Attorney
By: B ,
Omnitrans Legal Counsel
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Exhibit A: Funding Award
San Rt.ruardino A,.,, �a�:�Nd Governments
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San Bet:T Sa:ttmo t...oun y Yt'i-mi ov(3tion C,xllf.2 mii- i 1. .r.�,,I I.kCrtil nfit f`iigtS.i.ti Ttiifi^y�sr t.sr':c*1'k tSL?..tli'±i'D1t= N
[:Beaaaardin
Euclid Ave aklth s 2,464
gasafine at MeHdNin ES S 2,240.
6th St at G f ave 3,018,
Euclid at Belmont S 3,450
Merril I at 800ch Es $ 6.560
jurupa at EtNw kind".." S 7.685
$ 3,450
Iniand.Empire ilt Mercedes; $ 3,450
s Bernardino at kswowaod $ 6,400
Fur,fid at Alvetside $ 1,478 Q
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kfifli tor.at Santa Ana $ 3,450
easelina at pepper Es 2,560 0
Milliken at Jjf upa $ ;3,450 0.
San fletnardina at Ettcafyptus $ 1,232 E
Wildrose at Wood nine SS W 13,600
Reverside at Senior WAY 913 3 1,600
Rivetside ztt J,,%mes SS $ 2.896 F.
Milliken at Toyota 3,45() L-
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FUNDS TO BE DISBURSED UPON INSTRUCTION OF SANBAG
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1,68,852.00- 055061M21-T?
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Exhibit S: Project Milestones & Schedule
Milestone Completion Date
Complete design and any required environmental clearance for
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Complete specifications for construction. c
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Obtain quotes or bids for construction.
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Award construction contract.
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Start construction. Q
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Complete construction. N
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Complete invoicing.
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To be completed by the City upon the start of the Project.
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TIPPECANOE & SAN BERNARDINO TRANSIT STOP ACCESS
IMPROVEMENT PROJECT
FUNDING AGREEMENT
BETWEEN
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THE CITY OF SAN BERNARDINO E
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300 NORTH "D" STREET a
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SAN BERNARDINO, CA 92418
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AND 2
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OMNITRANS
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1700 WEST FIIL TH STREET
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SAN BERNARDINO, CALIFORNIA 92411 L
This AGREEMENT, entered into on is between the CITY OF SAN U.
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BERNARDINO, a body politic and a municipal corporation of the State of California, N
referred to herein as "CITY" and OMNITRANS, a joint powers public transit agency, m
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referred to herein as "OMNITRANS."
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RECITALS
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1. OMNITRANS and CITY mutually desire to cooperate and participate in the Q
design and construction of a Transit Stop Access Improvement project located
on Tippecanoe Avenue north of San Bernardino Avenue, referred to herein as
"PROJECT."
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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
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Agreement: administration, preliminary engineering and design, plans, E
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specifications, estimates, construction, mobilization,traffic control and safety, o
labor, materials, permits, legal contract review, and contingencies, in E
accordance with the terms of the grant funding.
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4. The PROJECT must be completed before June 30, 2016, in accordance with ,0
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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
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to this PROJECT.
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6. OMNITRANS and CITY desire to specify herein the teens and conditions a,
under which the PROJECT shall be funded, designed, constructed,
maintained, and operated. `'
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Payment Upon Termination 7t-
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 Q
occur, such as a loss in funding for the PROJECT during any phase of the PROJECT, E
then either party may give written notice of its intent to terminate the PROJECT and
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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.
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In ascertaining the services actually rendered hereunder up to the date of termination
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of this Agreement, consideration shall be given to both completed work and work in o
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process of completion. E
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SECTION I
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OMNITRANS AGREES:
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1. To attend pertinent meetings set forth by the CITY and/or the CITY's
CONTRACTOR regarding the development process of PROJECT.
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2. To provide funding for the project from Transportation Development Act
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(TDA) Article 3 funds awarded to Omnitrans by the San Bernardino E
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Associated Governments in 2013 (See Exhibit B). Of the total grant amount a
of $7,885, Omnitrans will use 3.27% or $258 for administration (per S
Omnitrans' Cost Allocation Plan). The remaining amount, $7,627, will be
passed through to the City of San Bernardino for completion of PROJECT. N
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3. Within five (5) working days of the receipt of an invoice and accompanying m
certification, OMNITRANS shall notify the CITY as to what, if any, N
additional supporting documentation and background information will be
required. CITY shall make all required documentation available to Q
OMNITRANS within five (5) working days, unless stipulated otherwise in E
writing by OMNITRANS.
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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 E
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disbursement would constitute a violation of the terms of the grant or of o
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applicable law. E
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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 N
OMNITRANS' performance of this Agreement and/or the PROJECT.
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SECTION II Q
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CITY AGREES:
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1. To provide 20% local match or project amounts over and above the TDA
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grant amounts, whichever is higher.
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2. To complete a PROJECT schedule (see Exhibit C) upon the start of the E
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PROJECT, and to prepare a detailed cost estimate and specifications for the
PROJECT. a
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3. To award a construction contract in full compliance with TDA funding
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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.
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6. To submit one itemized invoice to Omnitrans on or before the 15th day of the
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month that indicates all costs, fees, and other charges that CITY incurred
related to the PROJECT. The statement shall describe the amount of services y
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.
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7. To certify to OMNITRANS for each disbursement request, that to the best of 0
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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
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disbursement as indicated in the disbursement request.
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8. To provide to Omnitrans all information needed to meet TDA funding
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reporting requirements.
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9. To insure that all aspects of the PROJECT and any aspect of CITY's
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participation in this Agreement and the actions contemplated of it by this
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Agreement will be in compliance with the terms of the grant and with all N
applicable law.
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10. CITY shall be responsible for all duties relative to this PROJECT, including Q
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complying with all bidding and contract administration requirements relative E
to construction of a public works project, with all due diligence and in a
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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
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including but not limited to all direct and indirect costs allocated to the E
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PROJECT, files, accounts, reports, cost proposals with backup data, and all o
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other material relating to the PROJECT. CITY shall, upon request, make all E
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such materials available to OMNITRANS or its designee at any reasonable
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time during the term of the Agreement and for three (3) years from the date of ~
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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. p
12. CITY shall defend with counsel reasonably approved by OMNITRANS, y
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 rn
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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 `L
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performance of this Agreement and/or the PROJECT.
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13. The CITY shall agree to comply with all conditions and obligations of the TDA N
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Article 3 grant for the PROJECT, to the extent it is within CITY's authority to do E
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So.
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SECTION III Q
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
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against its potential liabilities arising out of the performance of this PROJECT. E
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3. CITY acknowledges that failure to comply with any material provisions of this E
Agreement (such failure to comply is hereinafter called a "Default") may, in the N
sole but reasonable discretion of OMNITRANS, result in revocation of funding
for the PROJECT by OMNITRANS. In the event OMNITRANS determines .0
that CITY has committed a Default by failing to comply with a material CZ
provision of this Agreement, OMNITRANS will notify CITY in writing of the E
Default. CITY shall have thirty (30) days (unless a shorter time is reasonably
determined by OMNITRANS to be required under the circumstances) from the
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date of OMNITRANS' letter of notification of Default to cure the Default. In
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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
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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 °N°
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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 E
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with the requirements of the available grant funds.
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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 Q
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.
b. All notices and correspondence are to be sent to the following addresses:
OMNITRANS CITY OF SAN BERNARDINO
Attn: Scott Graham Attn: Mark Scott
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CEO/General Manager City Manager
1700 W. Fifth Street 300 North "D" Street in
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San Bernardino, CA 92411-2499 San Bernardino, CA 92418 L
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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. 0
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8. Prohibited Interests.
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CITY OF SAN BERNARDINO: L
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A. Solicitation. CITY maintains and warrants that it has not employed nor
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retained any company or person, other than a bona fide employee working
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solely for CITY, to solicit or secure this Agreement. Further, CITY C;;
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,
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commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting fiom the award or making of this Agreement. Q
For breach or violation of this warranty, OMNITRANS shall have the
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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
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employed nor retained any company or person, other than a bona fide E
employee working solely for OMNITRANS, to solicit or secure this a
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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 L
working solely for OMNITRANS, any fee, commission, percentage, °
brokerage fee, gift or other consideration contingent upon or resulting
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from the award or making of this Agreement. For breach or violation of
this warranty, CITY shall have the right to rescind this Agreement o
without liability.
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B. Conflict of Interest. For the term of this Contract, no member, officer or E
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employee of OMNITRANS, during the term of his or her service with Q
OMNITRANS, shall have any direct interest in this Agreement, or obtain c
any present or anticipated material benefit arising there from.
OMNITRANS covenants that at present it has no interest, and will not
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have any interest, direct or indirect, which would conflict in any manner
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with the performance of the Agreement or the PROJECT required
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hereunder. r
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9. If any legal action is instituted to enforce or declare any party's rights hereunder, a
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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 y
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arising from any third party legal action against a party hereto and payable under Q
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
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court of competent jurisdiction. During resolution of the dispute, CITY shall a
proceed with the performance of this Agreement to the extent practicable.
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13. Whenever review, consent, or approval of either party must be given or where E
it can be withheld, that party must not unreasonably review or unreasonably
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withhold such consent or approval.
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This Agreement constitutes the entire understanding of the parties with respect to the
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subject matter hereof, and there are no other representations, promises, warranties,
covenants or undertakings with respect thereto.
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In witness thereof, the parties have caused this Agreement to be executed by their
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respective officers. E
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OMNITRANS CITY OF SAN BERNARDINO a
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By: By:
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P. Scott Graham Mark Scott N
CEO/General Manager City Manager m
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Date: Date: E
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APPROVED AS TO FORM: APPROVED AS TO FORM: a
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Gary D. Saenz,City Attorney E
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By: By:
Omnitrans Legal Counsel
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Exhibit A: Photo of Project Location and Existing Conditions
Stop 6908
Tippecanoe Ave at San Bernardino Aye (North)
San Bernardino. CA
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Exhibit B: Funding Award
San Bernardino Associated Governments
11?Cruc:at 3.d 5..,Z.-W t^1.Saa Licm:arxlin i,CA 9241£1.1715
k'tt.ogz-t! 1d7 584- 2"6 t=ax:;9091885.440?Wcb-uv,w.sari hag,ca go
-San Aernatclinc:couruy 'gar,:st ,rtatannCr,a erlwt io i Sim 8rmardino f'ratrary'r(a SiNarlatinrt&homy
$art tar..,atxttnv Gaut y C:ct:>( stun tit t kr.nc*.:t.ri .v nc
-Set vj(xr4.A,_:,1. cy fur 1 14ie' ixv Emer tpicFes
cOt113TY: County of San Bernardino Allocation#: S-1407-14
SANBAG P.O.': 4000724
MONTH:Jury �
FY. 2013-14 >
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CLAIMANT: OTrtratttart� Attn.' k1eUrife mansion E
1700 W.5th Street Treasury Manager
San Bernardino, Ca 9241:1 N
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ARTICLE., 3 P'adiBikc ,o
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PUC CODE: 9673.1:
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AMOUNT: $ 168,852 E
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PURPOSE: Kendall at University y 1,232 Transit Act e.ss
Del Rosa at Date S 3.450 �
E St at 14th 2,803 rn
E St at IOth 3,450
fitly at Medical Center x 3,018 aEi
E st axt 16th $ 3"")18 tU
Sultana at Transit. $. 1,478 Q
Catnpus at Holt S 2,0_9 4 Cn
Waterman at Sth 7,885 c
Sierra at 16th $ 1.$71 �
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Kendall at H St. 3,450
48th at 41h WS 3.018
Tippecanoe at an Bernardino 7,885 C14
San Bernardino at Live Oak $ 5,400 N
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9th at Western $ 3.018
Sierra<at 16t#'t 1,971 m
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Vinyard.at 7th $ e^2,531 N
Sierra at 30th S 3,450
0 at 9th :« P587 E
San Bernardino at Hemlock v 5,400 c
Merril(at Uecc11 11tS 12,80LI
Kendall at 48th 2,37? c
Saar Bernardino at Indigo S 2,587
5th at Benson S 1,487 �
Sierra at i:9th 1,667E
C at Pennsylvania S 1,478 Q
C at Pennsylvania WS S 1,478
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Exhibit C: Project Milestones & Schedule
Milestone Completion Date
Complete design and any required environmental clearance for
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project. E
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Complete specifications for construction. C
Obtain quotes or bids for construction. c
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Award construction contract.
Start construction.
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Complete construction.
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Complete invoicing. c
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To be completed by the City upon the start of the Project.
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