1 FUNDING AGREEMENT
BETWEEN
OMNITRANS
AND
CITY OF FONTANA POLICE DEPARTMENT
This Funding Agreement (“Agreement”) by and between City of (“City of Fontana”), and Omnitrans, a Joint Powers Authority and a Consolidated Transportation Services Agency (“Omnitrans”), is entered into this ____ day of _______________, 2024. City of Fontana and Omnitrans are sometimes individually referred to as “Party” and collectively as “Parties.”
RECITALS
WHEREAS, Omnitrans proposes, Fontana Metrolink Station Security Guard Service (“Project”); and
WHEREAS, Omnitrans desires to provide Local/State assistance funds to City of Fontana, on a reimbursable basis, for additional Security Guard for the Project; and WHEREAS, the Parties wish to enter into this Agreement to document the terms and conditions of Omnitrans funding of the Project.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Project Description: Fontana Metrolink Station at 6777 Orange Way, Fontana, California Security Guard Service; City of Fontana will add one (1) additional Security Officer under the existing City of Fontana’s Security Service contract (SP-92-CW-22) to the Fontana Metrolink Station. This additional Security Officer will provide security services directly to the Omnitrans employees, buses, and passengers at the Fontana Metrolink Station. Hours of operation will be consistent with the existing Security Officer, 15 minutes before the first Metrolink train until 15 minutes after the last train, seven days per week. Incident reports completed by any Security Officer working at Fontana Metrolink Station related to bus operations or Omnitrans personnel and equipment will be forwarded to Omnitrans’ Security Specialist, or designee, as soon as reasonable after the event but no more than one day of the event.
2. Term: This Agreement will be for a term of sixteen (16) months beginning March 1, 2024 and shall expire on June 30, 2025, unless otherwise terminated as provided for in this Agreement or extended by written agreement between the Parties. No later than December 31, 2024, the Parties will meet to discuss and evaluate the performance of the Project, and decide whether to extend the agreement for an additional year. 2 3. Funding Amount: The amount to be paid to the City of Fontana under this Agreement will not exceed $233,000 in operating expenses, with annual not to exceed amounts of $58,000 in Fiscal Year 2024, and $175,000 in Fiscal Year 2025. No capital expenses shall be included unless agreed to in advance by the parties pursuant to a written amendment. In no instance will Omnitrans be liable for any payments or costs for work in excess of these amounts.
4. Payment:
a. On a monthly basis, City of Fontana will provide Omnitrans with an invoice for reimbursement pursuant to Subsections 4.b. below.
b. Payments for operating expenses to City of Fontana hereunder will be made in arrears. City of Fontana will submit a detailed and properly documented invoice for reimbursement submitted only once a month,, which invoice will include: (i) a description of the work performed; and (ii) a detailed accounting of costs incurred. c. Omnitrans will notify the City of Fontana within ten (10) business days following receipt of its invoice by Omnitrans of any circumstances or data in City of Fontana’s invoice that would cause withholding of approval and subsequent payment. City of Fontana’s invoice will include documentation of reimbursable expenses and billed items , to substantiate billings. Omnitrans reserves the right to withhold payment of disputed amounts.
d. At no time shall payments from Omnitrans be used to supplant any existing funding source for City of Fontana’s Security Services contract SP-92-CW-22 providing security service at Fontana Metrolink Station. . City of Fontana shall notify Omnitrans of any potential loss of funding for the existing City of Fontana services within ten (10) business days of learning of the funding loss.
5. Compliance with Laws: City of Fontana will comply with all applicable federal, state, and local laws, codes, ordinances, regulations, orders, circulars, and directives, including, without limitation: (i) all regulatory requirements associated with the funding provided to the City of Fontana for this Project; (ii) all disability laws; and (iii) non-discrimination and equal opportunity laws. Any failure by City of Fontana to comply with such laws may result in the termination of this Agreement or such other remedy as Omnitrans deems appropriate.
6. Independent Contractor: City of Fontana, and the agents and employees of City of Fontana, in the performance of this Agreement, will act as and be independent contractors, and not officers, employees, or agents of Omnitrans. City of Fontana, its officers, employees, agents, and contractors, if any, will have no power to bind or commit Omnitrans to any decision or course of action, and will not represent to any person or business that they have such power.
City of Fontana has and will retain the right to exercise fully responsibility for the supervision of the Project, and over the employment, direction, compensation, and discharge of all persons 3 assisting in the performance of the work funded by this Agreement. City of Fontana will be solely responsible for all matters relating to the payment of its employees and contractors, including but not limited to, compliance with all laws, statutes, and regulations governing such matters.
7. Termination:
a. Omnitrans may terminate this Agreement for cause by giving City of Fontana a notice of default and intention to terminate the Agreement (“Termination Notice”). The notice will be deemed served and effective for all purposes on the date it is deposit ed in the U.S. mail, certified, return receipt requested, addressed to City of Fontana at the address indicated in Section 18 below.
b. Upon receipt of a Termination Notice, City of Fontana shall have 30 days in which to cure the stated violation(s) and to provide to Omnitrans evidence that the violations have been cured. If City of Fontana has not cured within 30 days of such notice, or has not provided sufficient evidence of such to Omnitrans, the Agreement shall be terminated, effective immediately.
c. Omnitrans may also terminate this Agreement in the event of funding shortfall , upon 15 days written notice. Such notice will be served and effective as set forth in Subsection 8.a., herein.
d. Omnitrans may also terminate this Agreement in the event of a funding shortfall for City of Fontana’s Project or the failure to provide notice to Omnitrans of such funding shortfall, as required pursuan t to section 4.d. In the event City of Fontana fails to provide the notice required pursuant to section 4.d., Omnitrans is not required to give City of Fontana an opportunity to cure such violation.
e. If Omnitrans issues a Termination Notice or terminates this Agreement due to a funding shortfall, Omnitrans will reimburse City of Fontana for work actually performed up to the effective date of the Termination Notice, subject to the limitations in Section 4, and less any compensation to Omnitrans for damages suffered as a result of City of Fontana’s failure to comply with the terms of this Agreement. f. City of Fontana will have the right to terminate this Agreement in the event Omnitrans is unable to make required payments. In such event, City of Fontana will provide Omnitrans with seven (7) days written notice of termination. The notice will be deemed served and effective on the date it is deposited in the U.S. mail, certified, return receipt requested, addressed to Omnitrans at the address indicated in Section 18. Omnitrans will make payment to City of Fontana through the date of termination..
8. Dispute Resolution:
4 a. Any disputes or disagreements arising from or related to this Agreement shall be resolved through good faith negotiations between authorized representatives of both Parties. b. If the Parties are unable to resolve the dispute through negotiation, they agree to engage in mediation. A neutral third party mediator, agreed upon by both Parties, shall facilitate the mediation process. The cost of the mediator shall be shared equally by both Parties. c. If mediation does not lead to resolution within a reasonable period, the Parties may seek resolution through arbitration. The arbitration shall be conducted in accordance with the rules and procedures of a recognized arbitration association agreed upon by both Parties. d. Nothing in this clause shall prevent either party from seeking interim injunctive relief from a court of competent jurisdiction if deemed necessary to protect its rights. e. Both parties agree that the outcome of any dispute resolution process, whether through negotiation, mediation, or arbitration, shall be final and binding upon them.
9. Performance Monitoring:
a. City of Fontana shall provide regular performance updates to Omnitrans, outlining progress made on the Program. These updates shall be submitted on a monthly basis and will include key milestones achieved, incidents reported, and any challenges encountered. b. Omnitrans reserves the right to conduct periodic reviews of the Project's performance, effectiveness, and compliance with the terms of this Agreement. These reviews may include site visits, meetings, and evaluations as deemed necessary by Omnitrans. c. In the event that either party identifies performance issues, both Parties agree to collaborate in good faith to address and resolve such issues in a timely manner. Should performance concerns persist, the Parties will meet to discuss poten tial remedies and adjustments to ensure the project's successful execution.
10. Assignment: The Parties understand that Omnitrans entered into this Agreement with City of Fontana. Therefore, without the prior express written consent of Omnitrans, this Agreement is not assignable by City of Fontana either in whole or in part.
11. Binding Agreement: This Agreement will be binding on the Parties hereto, their assigns, successors, administrators, executors, and other representatives.
12. Amendments: No alteration or variation of the terms of this Agreement will be valid unless made in writing and signed by the Parties hereto, and no oral understanding or agreement not incorporated herein, will be binding on any of the Parties hereto. 5 13. Contractors and Subcontractors : City of Fontana will be fully responsible for all work performed by its contractors and subcontractors. Omnitrans reserves the right to review and approve any contract or agreement to be funded in whole or in part using funds provided under this Agreement in excess of $25,000 . City of Fontana shall incorporate the terms of this Agreement, including without limitatio n the indemnification and insurance provisions, into any subcontractor agreement funded by this Agreement.
14. Indemnification. City of Fontana shall defend, indemnify and hold Omnitrans, its directors, officials, officers, employees, agents and/or volunt eers 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 acts, omissions or willful misconduct of City of Fontana or any of its directors, officials, officers, employees, agents, volunteers, or service providers arising out of or in connection with City of Fontana’s performance of this Agreement, including, without limitation, the payment of consequential damages and attorneys' fees. Furt her, City of Fontana shall defend, at its own expense, including the payment of attorneys' fees, Omnitrans, its officials, officers, employees, agents and/or volunteers in any legal action based upon such acts, omissions or willful misconduct. City of Fontana shall reimburse Omnitrans, its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.
15. Insurance. City of Fontana shall require all contractors or consultants hired to perform work or services on the Project to obtain, and require their sub-consultants and sub-contractors to obtain, insurance of the City of Fontana and in the amounts descri bed below and satisfactory to Omnitrans. City of Fontana may satisfy its insurance obligations herein through participation in a program of self -insurance. Such insurance shall be maintained throughout the term of this Agreement, or until completion of t he Project, whichever occurs last. Upon request, City of Fontana will provide written certificates evidencing compliance to Omnitrans. a. Commercial General Liability Insurance. Occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $1,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Project or be no less than two times the occurrence limit.
b. Workers’ Compensation Insurance . Workers’ compensation insurance with statutory limits and employers’ liability insurance with limits of not less than $1,000,000.00 each accident.
16. Audit: An independent auditor shall audit City of Fontana’s use of Project funds no less than annually. City of Fontana agrees to supply Omnitrans with a copy of any audit of Project related activities performed.
17. Retention and Inspection of Records
6 a. City of Fontana , including any contractors or subcon tractors, will retain all State licenses required to legally perform Security Guard duties in the State of California. b. Omnitrans or its designee will have the right to review, obtain, copy, and audit all books, records, computer records, accounts, do cumentation and any other materials pertaining to performance of this Agreement (collectively “Records”), including any Records in the possession of any contractors or subcontractors. City of Fontana agrees to provide Omnitrans or its designee with any relevant information requested and will permit Omnitrans or its designees access to its premises, upon thirty days notice, during normal business hours, for the purpose of interviewing employees and inspecting and copying such Records for the purpose of determining compliance with any applicable federal and state laws and regulations.
c. City of Fontana further agrees to maintain all Project Records for a period of four (4) years after final payment under the Agreement or four (4) years from the conclusion or resolution of any and all audits or litigation relevant to this Agreement and any amendments, whichever is later. If so directed by Omnitrans upon expiration of this Agreement, City of Fontana will cause all Records relevant to the Project to be delivered to Omnitrans as depository.
18. Notices. All notices hereunder shall be in writing and shall be effective upon receipt. All notices and communications, including invoices, between the Parties to this Agreement shall be either personally delivered, sent by first-class mail, return receipt requested, or sent by overnight express delivery service, postage or other charges fully prepaid, as follows:
TO OMNITRANS: TO City of Fontana:
Omnitrans 8353 Sierra Avenue
1700 West Fifth Street Fontana, CA 92335
San Bernardino, CA 92411 ATTN: Sid Lambert
ATTN: CEO/GM
19. Waivers: No waiver of any breach of this Agreement will be held to be a waiver of any prior or subsequent breach. The failure of the Parties to enforce at any time the provisions of this Agreement or to require at any time performance of these provisions, will in no way be construed to be a waiver of such provisions nor to affect the validity of this Agreement or the right of the Parties to enforce these provisions.
20. Litigation: The Parties will notify immediately of any claim or action undertaken by it or against it that affects or may affect this Agreement , and will take such action with respect to the claim or action as is consistent with the terms of this Agreement and the interests of the Parties. 7 21. Non-Liability of Omnitrans: Omnitrans shall not be liable to City of Fontana or any third party for any claim for loss of profits or consequential damages. Further, Omnitrans shall not be liable to City of Fontana or any third party for any loss, cost, claim or damage, either direct or consequential, allegedly arising from a delay in performance or failure to perform under this Agreement. There are no third-party beneficiaries to this Agreement
22. Costs and Attorneys’ Fees : If either party commences any legal action against the other party arising out of this Agreement or the performance thereof, the prevailing party in such action may recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and reasonable attorneys’ fees.
23. Governing Law and Choice of Forum : This Agreement will be administered and interpreted under California law as if written by both Parties. Any litigation arising from this Agreement will be brought in the Superior Court of San Bernardino County.
24. Integration: This Agreement represents the entire understanding of Omnitrans and City of Fontana as to those matters contained herein and supersedes all prior negotiations, representations, or agreements, both written and oral. This Agreement may not be modified or altered exce pt in accordance with Section 13.
25. Severability: If any term or provision of this Agreement or the application thereof to any person or circumstance will, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is invalid or unenforceable, will not be affected thereby, and each term and provision of this Agreement will be valid and will be enforced to the fullest extent permitted by law, unless the exclusion of such term or provision, or the application of such term or provision, would result in such a material change so as to cause completion o f the obligations contemplated herein to be unreasonable.
26. Headings: The headings of the various sections of this Agreement are intended solely for convenience of reference and are not intended to explain, modify, or place any interpretation upon any of the provisions of this Agreement.
27. Authority: Each person signing this Agreement on behalf of a party hereby certifies, represents, and warrants that he or she has the authority to bind that party to the terms and conditions of this Agreement.
28. Ownership; Permission: Omnitrans represents and warrants that all materials used in the performance of the Project work, including, without limitation, all computer software materials and all written materials, are either produced or owned by City of Fontan a or that all required permissions and license agreements have been obtained and paid for by City of Fontana. City of Fontana will defend, indemnify and hold harmless Omnitrans and its directors, officers, 8 employees, and agents from any claim, loss, damage, cost, liability, or expense to the extent of any violation or falsity of the foregoing representation and warranty.
29. Counterparts: This Agreement may be executed in multi ple counterparts, each of which will constitute an original, and all of which taken together will constitute one and the same instrument.
30. Press Releases: Parties will obtain ' prior written approval of any press releases, or other public outreach materials, that include any reference to both Parties or depiction of the Parties logo.
IN WITNESS WHEREOF, the PARTIES hereto have executed this Agreement, as of the date first appearing above.
By:
_________________________ ___________________________ Erin Rogers NAME
CEO/General Manager TITLE
Omnitrans City of Fontana
Approved as to form:
_________________________ _____________________________ Omnitrans Legal Counsel Legal Counsel of City of Fontana