THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY
Public Works
Department Contract Representative Arlene Chun, M.S., P.E., Engineering Manager
Telephone Number (909) 387-8165
Project Cedar Avenue at Interstate 10
Interchange
Contractor City of Rialto
Contractor Representative Marcus Fuller, City Manager
Telephone Number (909) 820-2528
Contract Term Upon final payment
Original Contract Amount $6,807,568
Amendment Amount $0
Total Contract Amount $6,807,568
Cost Center 6650002000 40608842 H14777
Recitals
IT IS HEREBY AGREED AS FOLLOWS:
WHEREAS, the San Bernardino County (hereinafter referred to as “ COUNTY”) intends to improve Cedar Avenue at the Interstate 10 (I -10) Interchange in the unincorporated communit y of Bloomington (hereinafter referred to herein as “PROJECT”); and,
WHEREAS, the PROJECT will improve Cedar Avenue from Bloomington Avenue to Slover Avenue, widen Cedar Avenue between Bloomington Avenue and Orange Street, and add turn lanes; widen the I -10 Overcrossing and replace the Union Pacific Railroad (UPRR) at Cedar Avenue overhead; and modify the existing ramps; and,
WHEREAS, the Measure I 2010- 2040 Expenditure Plan and the San Bernardino County Transportation Authority (SBCTA) Nexus Study (Nexus Study) identified freeway interchange projects eligible for partial funding from the Measure I 2010-2040 revenues; and,
WHEREAS, PROJECT and the associated expenditures are included i n the SBCTA Measure I 2010- 2040 Nexus Study and are eligible to receive Measure I 2010 -2040 Valley Freeway Interchange Program (MIVFIP) funds; and,
Contract Number
SAP Number
WHEREAS, SBCTA Measure I 2010 -2040 Strategic Plan sets forth the policies by which the expenditure of Measure I funds are managed; and,
WHEREAS, many of the interchange projects listed in the MIVFIP require shared development contributions from one or more agencies; and,
WHEREAS, COUNTY, the City of Rialto (hereinafter referred to as “ RIALTO”) and the City of Fontana (hereinafter referred to as “ FONTANA”) each has development mitigation fair -share requirements for the PROJECT; and,
WHEREAS, SBCTA Nexus Study requires the agency with the majority share of development mitigation to be the Sponsoring Agency of the PROJECT. COUNTY has the majority share and shall be the responsible agency to coordinate the minority share development mitigation fair-share contributions identified in the Nexus Study; and,
WHEREAS, SBCTA Nexus Study determines the fair -share percentages of the total estimated interchange improvement costs for the PROJECT as: S BCTA Public Share – 70% and Local Development Mitigation Contribution – 30%. The Local Development Mitigation Contribution (30%) is shared among the following local jurisdictions: COUNTY – 68.6%, RIALTO – 19.5%, and FONTANA – 11.9%; and,
WHEREAS, COUNTY and RIALTO (COUNTY and RIALTO are also sometimes each referred to herein as “Party” and collectively referred to herein as “Parties”) wish to enter into this Development M itigation Cooperative Agreement to fund the development mitigation fair -share requirements for the Project Approval and Environmental Document (PA&ED), Plans, Specifications and Estimate (PS&E), Right of Way (ROW), Project Management (Management), and construction phases of the PROJECT; and,
WHEREAS, PROJECT total estimated cost is $113,319,000; and,
WHEREAS, SBCTA will serve in the capacity of Management and shall be reimbursed up to $500,000 for such services; and,
WHEREAS, Local Development Mitigation contribution is estimated to be $33,603,600plus $807,000 for PROJECT PA&ED costs incurred prior to April 5, 2006 (PRIOR COSTS) and $500,000 for Management costs, for a total of $34, 910,600; and SBCTA Public Share is estimated to be $78,408,400, which excludes PRIOR COSTS and Management cost, as set forth more particularly in Exhibits A and B, attached hereto and incorporated herein by this reference; and,
WHEREAS, COUNTY has fully funded and completed the PROJECT PA&ED phase with a total cost of $1,366,000, and in fully funding the PA&ED phase, COUNTY has advanced SBCTA, RIALTO, and FONTANA fair-shares for this phase of the PROJECT; and,
WHEREAS, on July 8, 2014, COUNTY and the State of California Department of Transportation (hereinafter referred to as “C altrans”) entered into Contract No. 08 -1589 (County Contract No. 14 -603), and Amendment Nos. 1 and 2, on September 24, 2019, and September 15, 2020, respectively, for PROJECT PS&E phase wherein Caltrans administers the PROJECT PS&E phase and provides the relevant documents to COUNTY for COUNTY’s use, at a revised estimated cost of $7,552,000; and
WHEREAS, this Agreement specifies RIALTO’s fair-share of the PROJECT’s PRIOR COSTS, PA&ED, PS&E, ROW, Construction and Management costs; and repayment of the advanced payments made by COUNTY on the behalf of RIALTO for the PROJECT’s PA&ED, PS&E and Management; and,
WHEREAS, there will be separate Agreements with SBCTA and FONTANA to coordinate the collection of their fair-shares of the PROJECT’s PRIOR COSTS, PA&ED, PS&E, ROW, Construction, and Management costs, including advanced payments made by COUNTY on the behalf of SBCTA and FONTANA for the PROJECT’s PA&ED, PS&E and Management (FONTANA only).
NOW, THEREFORE, IT IS MUTUALLY AGREED as follows:
1.0 COUNTY AGREES TO:
1.1 Serve as the sponsoring agency of the PA&ED, PS&E, ROW, Construction, and Management for the PROJECT.
1.2 Under the Funding Agreement with SBCTA, as required by the SBCTA Measure I 2010-2040 Strategic Plan, be responsible for ensuring that the PROJECT complies with the terms of the Funding Agreement.
1.3 Provide 68.6% ($23,948,672) of the 30% development mi tigation funding contribution for the PROJECT, which will come from development impact fees or other source of development contribution as required by the Nexus Study (Appendix G of the SBCTA Congestion Management Program – CMP) and Appendix J of the CMP or from a loan of funds to the COUNTY’s development impact fee.
1.4 Invoice eligible PROJECT PRIOR COSTS, PA&ED, PS&E, ROW and Management costs to RIALTO during the PROJECT ROW phase. The total local development contribution for PROJECT PRIOR COSTS, PA&ED, PS&E, ROW and Management is estimated to be $4,552,800. County’s share is estimated at $3,123,221, RIALTO’s share is estimated at $887,797 and FONTANA’s share is estimated at $541,782. Support documentation shall be included with invoices to RIALTO as the basis for substantiating the invoice amount for eligible PROJECT expenditures. Invoicing may be submitted to RIALTO as frequently as monthly.
1.5 Invoice eligible PROJECT Construction and Management costs to RIALTO during the Construction phase of the PROJECT. The local development mitigation contribution for the PROJECT Construction and Management is estimated to be $30,357,800. County’s share is estimated at $20,825,451, RIALTO’s share is estimated at $5,919,771, and FONTANA’s share is estimated at $3,612,578. Invoicing may be submitted to RIALTO as frequently as monthly.
1.6 Abide by all SBCTA, State, and if applicable, Federal policies, procedures, and regulations pertaining to the PROJECT, including policies pertaining to the PROJECT in the Measure I 2010- 2040 Strategic Plan.
1.7 Credit RIALTO any development mitigation costs that are determined by subsequent audit to be unallowable within sixty (60) days of COUNTY receiving notice of audit findings.
1.8 Maintain all source documents, books, and records connected with performance under this Agreement for a minimum of five (5) years from the date of the Final Report of Expenditures submittal to SBCTA or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of RIALTO.
1.9 Have a PROJECT-specific audit completed by COUNTY and/or RIALTO, at RIALTO’s option and expense, upon completion of the PROJECT. The audit must state that all funds expended on the PROJECT were used in conformance with this Agreement.
1.10 Establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) to support accounting activities associated with the delivery of PROJECT by the COUNTY and produce monthly reports, which clearly identify invoice payments for PROJECT, including funding information.
1.11 To include RIALTO in construction meetings, if and when such meetings are held, and in related communications on PROJECT progress, and to consult with RIALTO on critical issues relative to the PROJECT.
2.0 RIALTO AGREES TO:
2.1 Provide 19.5% ($6,807,568) of the 30% development mitigation funding contribution for the PROJECT PRIOR COSTS, PA&ED, PS&E, ROW, construction and M anagement costs in accordance with the SBCTA Nexus Study, as shown in Exhibit s A and B, which will come from development impact fees or other source of development contribution as required by the Appendix G and Appendix J of the CMP or from a loan of funds to RIALTO’s development impact fee.
2.2 Pay to the COUNTY, on a reimbursement basis, RIALTO’s fair-share of PROJECT PRIOR COSTS, PA&ED, PS&E, ROW and PS&E Management costs, which is estimated to be $887,797.
Reimbursement shall occur during the ROW phase of the PROJECT and shall be paid within sixty (60) days after receipt of an itemized statement of costs incurred by COUNTY.
2.3 Pay to the COUNTY, on a reimbursement basis, RIALTO’s fair-share of PROJECT Construction and Construction Management costs, which are estimated to be $5,919,771. Reimbursement shall occur during and after PROJECT construction and shall be paid within sixty (60) days after receipt of an itemized statement of costs incurred by COUNTY.
3.0 IT IS MUTUALLY AGREED:
3.1 The Agreement applies to the PROJECT PRIOR COSTS, PA&ED, PS&E, ROW, C onstruction, and Management and scope of work, as shown in Exhibits A and B.
3.2 RIALTO’s financial responsibi lity shall not exceed 19.5% of 30% (excluding adjustment for PA&ED) of actual PROJECT costs for expenditures on the scope of work as shown in Exhibits A and B, unless the fair -share percentage is amended in the S BCTA Nexus Study as a result of annexations or other changes to growth figures that affect development mitigation fair -share contributions to the PROJECT. Any change in fair -share percentages shall affect only development mitigation contributions subsequent to the amendment to the Nexus Study and shall not be retroactive.
3.3 Eligible PROJECT expenditures shall be limited to the PROJECT- specific work activities shown in Exhibits A and B to this Agreement and shall not include escalation, interest, or other fees.
3.4 The terms of this Agreement represent the mutual consent of the COUNTY and RIALTO to provide the full development fair-share for the PROJECT required by the S BCTA Nexus Study and that the failure of any P arty to contribute the development fair-share according to the terms of this Agreement does not obligate SBCTA to provide supplemental funds or otherwise remedy that failure. SBCTA may use the failure of either P arty to perform according to the terms of this Agreement as justification for termination or modification of S BCTA’s P ROJECT Funding Agreement with the COUNTY if this failure jeopardizes the delivery of the PROJECT according to the terms of the PROJECT Funding Agreement.
3.5 In the event COUNTY determines PROJECT costs may exceed the not to exceed amount identified in Section 2.0, Paragraph 2.1, COUNTY shall inform RIALTO of this determination, and thereafter, the Parties shall work together in an attempt upon an amendment to the PROJECT amounts identified in this Agreement. In no event shall the RIALTO be responsible for PROJECT costs in excess of the PROJECT amounts identified herein absent a written amendment to this Agreement that is approved by the Parties.
3.6 COUNTY agrees to indemnify and hold harmless RIALTO and its officers, agents, volunteers from any and all claims, actions or losses, damages, and/or liability resulting from the COUNTY’s negligent acts or omissions which arising out of COUNTY’s obligations under this agreement.
3.7 RIALTO agrees to indemnify , defend, and hold harmless COUNTY and its officers, agents, volunteers from any and all claims, actions or losses, damages, and/or liability resulting from RIALTO’s negligent acts or omissions which arising out of RIALTO ’s obligations under this agreement.
3.8 In the event the COUNTY and/or RIALTO is found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under the Agreement, the COUNTY and/or RIALTO shall indemnify the other to the extent of its comparati ve fault.
Furthermore, if the COUNTY or RIALTO attempts to seek recovery from the other for Workers’ Compensation benefits paid to an employee, the COUNTY and RIALTO agree that any alleged negligence of the employee shall not be construed against the employer of that employee.
3.9 In the event of litigation arising from this Agreement, each party to the Agreement shall bear its own costs, including attorney(s) fees. This paragraph shall not apply to the costs or attorney(s) fees relative to paragraphs 3.5, 3.6 and 3.7 indemnification.
3.10 COUNTY and RIALTO are authorized self -insured public entities for purposes of Professional Liability, General Liability, Automobile Liability and Workers’ Compensation and warrant that through their respective programs of self-insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Agreement.
3.11 This Agreement will be considered terminated upon the complete development mitigation fair- share payment for eligible PROJECT costs by RIALTO.
3.12 The Parties indemnification obligations described in Paragraphs 3.5, 3.6 and 3.7 shall survive the termination of this Agreement.
3.13 This Agreement contains the entire agreement of the Parties with respect to subject matter hereof, and supersedes all prior negotiations, understandings or agreements. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by all Parties.
3.14 This Agreement shall be governed by the laws of the State of California. Any action or proceeding between RIALTO and COUNTY concerning the interpretation or enforcement of this Agreement, or which arises out of or is in any way connected with this Agreement or the PROJECT, shall be instituted and tried in the appropriate state court, located in the County of San Bernardino, California.
3.15 Time is of the essence for each and every provision of this Agreement.
3.16 Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for any or against any party. Any term referencing time, days or period for performance shall be deemed workdays . The captions of the various articles and paragraphs are for convenience and ease or reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.17 No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise.
3.18 If a court of competent jurisdiction declares any port ion of this Agreement invalid, illegal, or otherwise unenforceable, the remaining provisions shall continue in full force and effect, unless the purpose of this Agreement is frustrated.
3.19 This Agreement may be signed in counterparts, each of which shall constitute an original.
3.20 The Recitals are incorporated into the body of this Agreement.
3.21 This Agreement will be effective on the date it is signed by both Parties.
SIGNATURE ON THE FOLLOWING PAGE
Attest by:
Barbara McGee, City Clerk
Approved as to Legal Form:
Eric Vail, City Attorney
FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
Aaron Gest, Deputy County Counsel Andy Silao, P.E., Engineering Manager Brendon Biggs, Director Date Date Date
SAN BERNARDINO COUNTY CITY OF RIALTO
By
Curt Hagman, Chairman, Board of Supervisors (Authorized signature - sign in blue ink) Dated:
Name Marcus Fuller
SIGNED AND CERTIFIED THAT A COPY OF THIS (Print or type name of person signing contract)
DOCUMENT HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD Title City Manager
Lynna Monell
Clerk of the Board of Supervisors
San Bernardino County
(Print or Type)
Deputy
Exhibit A
SAN BERNARDINO COUNTY/CITY OF RIALTO
CEDAR AVENUE AT INTERSTATE 10 INTERCHANGE PROJECT
PROJECT SCOPE:
The proposed project will improve the Cedar Avenue at I -10 I nterchange located in the unincorporated community of Bloomington. The project will improve Cedar Avenue from Bloomington Avenue to Slover Avenue; widen Cedar Avenue between Bloomington Avenue and Orange Street and add turn lanes; widen the Interstate Overcrossing and replace the UPRR/Cedar Avenue Overhead; and modify existing ramps.
NEXUST STUDY FAIR-SHARE CONTRIBUTION:
Nexus Study SBCTA Local Agency
Total cost Contribution Contribution
70% 30%
Phase
PA&ED $1,366,000 $956,200 $409,800
PS&E $8,727,000 $6,108,900 $2618,100
PS&E Project Mgmt $300,000 $0 $300,000
ROW $2,200,000 $1,540,000 $660,000
Construction $100,526,000 $70,368,200 $30,157,800
Construction Project Mgmt $200,000 $0 $200,000
TOTAL $113,319,000 $78,973,300 $34,345,700
ADJUSTED NEXUS STUDY FAIR-SHARE CONTRIBUTION:
Nexus Study SBCTA1
Local
Agency County Rialto Fontana
Total cost Contribution Contribution Contribution Contribution Contribution 70% 30% 68.60% 19.50% 11.90%
Phase except PA&ED2 of 30% of 30% of 30%
PA&ED2 $807,000 $0 $807,000 $553,602 $157,365 $96,033
PA&ED3 $559,000 $391,300 $167,700 $115,042 $32,702 $19,956 PS&E4 $8,727,000 $6,108,900 $2,618,100 $1,796,017 $510,530 $311,553 PS&E Project
Mgmt5 $300,000 $0 $300,000 $205,800 $58,500 $35,700
ROW $2,200,000 $1,540,000 $660,000 $452,760 $128,700 $78,540 Subtotal $12,593,000 $8,040,200 $4,552,800 $3,123,221 $887,797 $541,782 Construction $100,526,000 $70,368,200 $30,157,800 $20,688,251 $5,880,771 $3,588,778 Construction
Project
Mgmt5 $200,000 $0 $200,000 $137,200 $39,000 $23,800
Subtotal $100,726,000 $70,368,200 $30,357,800 $20,825,451 $5,919,771 $3,612,578 Grand Total $113,319,000 $78,408,400 $34,910,600 $23,948,672 $6,807,568 $4,154,360
1. SBCTA Public Share is adjusted as a result of the ineligible PA&ED expenditures ($807,000) incurred prior to the agreement between County and SBCTA, and Project Management cost ($500,000).
2. Per SBCTA, PA&ED costs of $807,000 incurred prior to 4/5/2006 are ineligible for Public Share reimbursement.
For this reason, SBCTA Public Share is reduced by $564,900 and is distributed to the Local Agency Contribution.
3. PA&ED costs eligible for SBCTA Public Share reimbursement.
4. PS&E cost includes Railroad Agreement/Flagging, Potholing/Coordination, and Environmental Permits.
5. Local Agency Contribution only because SBCTA will provide Project Management services for the PROJECT.
Exhibit “B”
LOCAL DEVELOPMENT FAIR SHARE CONTRIBUTION
COUNTY RIALTO FONTANA
Nexus % Contribution *County Credit
or Contribution
in Construction
Phase
Nexus % Contribution Nexus % Contribution Credit
Phase 68.60% 19.50%
Credit to
County 11.90%
to
County
PA&ED $668,644 $1,366,000 ($697,356) $190,067 $0 $190,067 $115,989 $0 $115,989 PS&E $1,796,017 $4,175,000 ($2,378,983) $510,530 $0 $510,530 $311,553 $0 $311,553 ROW $452,760 $452,760 $0 $128,700 $128,700 $0 $78,540 $78,540 $0 Construction $20,688,251 $20,688,251 $0 $5,880,771 $5,880,771 $0 $3,588,778 $3,588,778 $0 Project
Management $343,000 $437,200 ($94,200) $97,500 $39,000 $58,500 $59,500 $23,800 $35,700
TOTAL $23,948,672 $27,119,211 ($3,170,539) $6,807,568 $6,048,471 $759,097 $4,154,360 $3,691,118 $463,242 *County Credit is reimbursement due from the cities of Rialto and Fontana and SBTCA during PROJECT right of way and constructi on phases.