Amendment No.1.pdf — Fontana City Council, July 26, 2022

City of Fontana
Station Cooperative Agreement 93-078 1 SBCTA Contract No. 22-1002788 Amendment No. 1
AMENDMENT NO. 1 TO
COOPERATIVE AGREEMENT 93-078

BETWEEN THE

SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY
AND

THE CITY OF FONTANA
This Amendment No. 1 to Cooperative Agreement No. 93-078 is hereby made and entered into and effective this 6th day of July, 2022, by and between the SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY (SBCTA) and the CITY OF FONTANA (CITY) with regard to the management of jointly owned property at the Fontana Metrolink Station.

WHEREAS, under SANBAG Contract No. 93-078, dated June 1, 1993, SAN BERNARDINO ASSOCIATED GOVERNMENTS and the CITY entered into an agreement (Agreement), for the development, maintenance and security of a commuter rail station (Station) on the south side of Orange Way, between Sierra Avenue and Juniper Avenues; and WHEREAS, on January 1, 2017, SBCTA became the successor agency to SANBAG pursuant to California Public Utilities Code Section 130800 et. seq., also known as the San Bernardino County Transportation Authority Consolidation Act of 2017; and WHEREAS, SBCTA and CITY (collectively PARTIES and individually PARTY) desire to further amend the aforesaid Cooperative Agreement to clarify the responsibility of the PARTIES with respect to the insurance of assets under the Cooperative Agreement and the apportionment of costs for said insurance and update the distribution to the PARTIES upon termination.

NOW THEREFORE, the PARTIES hereto do mutually agree to amend the Cooperative Agreement as follows:

1. The recitals above are true and correct and are hereby incorporated herein by this reference.

2. Except as specifically amended by this Amendment No. 1, all other provisions of the Agreement, shall remain in full force and effect.

3. All references in the Agreement to SAN BERNARDINO ASSOCIATED GOVERNMENTS or SANBAG shall mean SAN BERNARDINO COUNTY
TRANSPORTATION AUTHORITY (SBCTA).

4. Article I, Section 1.01.c “Operating Hours” DELETE each occurrence of “one (1) hour” and REPLACE them with “thirty (30) minutes”.

5. Article V, Section 5.04 Reservation of Commuter Rail Parking DELETE the word "insure" and REPLACE it with "ensure".

City of Fontana
Station Cooperative Agreement 93-078 2 SBCTA Contract No. 22-1002788 Amendment No. 1

6. Article V, Section 5.07 Station Security DELETE the word "insure" and REPLACE it with "ensure".

7. ADD Article V, Section 5.10 CITY Provided Insurance:

Section 5.10 CITY Provided Insurance. CITY shall obtain and maintain property insurance covering the Non-Operating Property. Such insurance must be in such types and amounts as are or should be reasonably and typically maintained from time to time by CITY for other property owned by CITY, provided that, in any event, CITY shall provide SBCTA with an endorsement naming SBCTA as an additional insured. In the event of any damage to the Non-Operating Property, CITY and SBCTA shall reasonably cooperate with each other in obtaining and using proceeds of such insurance to repair such damage. The CITY shall reimburse SBCTA for fifty percent (50%) of the cost of property insurance provided by SBCTA under Section 6.11 one fiscal year in the arrears.

8. ADD Article VI, Section 6.11 SBCTA Provided Insurance:

Section 6.11 SBCTA Provided Insurance. SBCTA shall obtain and maintain real property insurance covering the Station Platforms and the canopies in amounts as are or should be reasonably and typically maintained from time to time by SBCTA for other real and personal property owned by SBCTA, provided that SBCTA shall provide CITY with an endorsement naming CITY as an additional insured on all such policies. In the event of any damage to the Station Platforms or canopies, CITY and SBCTA shall reasonably cooperate with each other in obtaining and using the proceeds of such insurance to repair such damage. Each fiscal year SBCTA shall notify the CITY of the cost of insurance described in this Section 6.11 in the then current fiscal year no later than January 31st of each fiscal year and shall invoice the CITY for reimbursement of fifty percent (50%) of the cost of the insurance provided under this Section 6.11.

9. Article IX, Section 9.01 Distribution to Parties is DELETED in its entirety and REPLACED as follows:

Section 9.01 Distribution to Parties. All proceeds that may accrue to the PARTIES under this Agreement shall be distributed to the PARTIES hereto in equal shares, except for any parking fees which shall remain the sole property of the CITY as described in Section 5.05.

10. Article XI, Section 11.07 Indemnity is DELETED in its entirety and REPLACED as follows:

Section 11.07 Indemnity. Notwithstanding any other provision of the Agreement, each PARTY agrees to indemnify, defend and hold harmless the other PARTY and City of Fontana
Station Cooperative Agreement 93-078 3 SBCTA Contract No. 22-1002788 Amendment No. 1
their members and the officers, directors, council members, employees, agents, successors and assigns of them and their members (individually and collectively, “Indemnitees”), from and against all loss, liability, claims, demands, suits, liens, claims of liens, damages (including consequential damages), costs and expenses (including, without limitation, all fines, penalties, judgments, litigation expenses, and experts' and attorneys' fees), that are incurred by or asserted against them, whether the liability is alleged or fixed during the Term or thereafter, which arise out of or are connected in any manner with: (1) the acts or omissions of persons while on the Station Site (co-owners shall be jointly and severally liable), except to the extent another PARTY hereto would be liable for such acts of omissions under items (2), (3) or (4), below; (2) the acts and omissions of a PARTY or its officers, contractors, directors, affiliates, a PARTY's invitees or anyone directly or indirectly employed by a PARTY or providing service to a PARTY or for whose acts a PARTY is otherwise liable (collectively, “Personnel”) in connection with the property subject to a PARTY's maintenance and/or security activities, duties and obligations hereunder or arising from the presence upon or performance of activities by a PARTY or its Personnel under this Agreement; (3) bodily injury to or death of any person (including Indemnitees) or damage to or loss of use of property resulting from acts or omissions of a PARTY or its Personnel; or (4) non- performance or breach by a PARTY or its Personnel of any term or condition of this Agreement during the Term hereof. Each PARTY shall obtain and maintain during the time the Agreement, as amended, is in effect, adequate insurance or self- insurance to cover its liability, defense and indemnification obligations in order to protect itself and the other PARTY.

[Signatures on the following page.]
City of Fontana
Station Cooperative Agreement 93-078 4 SBCTA Contract No. 22-1002788 Amendment No. 1
IN WITNESS WHEREOF, the authorized parties have signed below;

SAN BERNARDINO COUNTY

TRANSPORTATION AUTHORITY

By: ___________________________
Name: Art Bishop
Title: Board President