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COOPERATIVE AGREEMENT NO. 19-1002205
BETWEEN
SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SAN BERNARDINO
FOR
PROJECT APPROVAL AND ENVIRONMENTAL DOCUMENT (PA/ED), PLANS,
SPECIFICATIONS AND ESTIMATES (PS&E), RIGHT OF WAY (ROW), AND
CONSTRUCTION PHASES FOR THE INTERCHANGE AT UNIVERSITY PARKWAY AND INTERSTATE 215 (I-215) IN THE CITY OF SAN BERNARDINO I. PARTIES AND TERM
A. THIS COOPERATIVE AGREEMENT NO. 19-1002205 (“AGREEMENT”) is made and entered into by and between the San Be rnardino County Transportation Authority (hereinafter referred to as “SBCTA”) and th e City of San Bernardino (“CITY”), (SBCTA and CITY may be referred to herein indivi dually as a “PARTY” and collectively as “PARTIES”).
B. This AGREEMENT is effective on June 30, 2018. Unless this AGREEMENT is terminated early as provided in Section V, Paragra ph E, this AGREEMENT shall terminate upon completion of the PARTIES’ obligations asso ciated with the PA/ED, PS&E, ROW, and Construction phases described herein. The inde mnification provisions identified in Section V, Paragraphs C through D, shall survive the termination of this AGREEMENT. Should any claims arising out of this AGREEMENT be a sserted against one of the PARTIES prior to termination of this AGREEMENT, the AGREEM ENT shall be extended until such time as the claims are settled, dismissed or paid.
II. RECITALS
A. WHEREAS, PARTIES entered into Coopera tive Agreement No. 16-1001335 in November 2015, attached herein as ATTACHMENT B, to define roles and responsibilities and funding for improvements for the PA/ED, PS&E, and RO W phases for the interchange at University Parkway and I-215 in the limits of the City of San Bernardino (PROJECT); and
B. WHEREAS, PARTIES amended Cooperative Agreement No. 16-1001335, attached herein as ATTACHMENT C, in September 2016 to reflect an estimated increase in the cost for the PA/ED and PS&E phases; and
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C. WHEREAS, SBCTA procured environmental and design services for the PA/ED and PS&E phases and began preliminary design and environmental studies on June 20, 2017; and
D. WHEREAS, Cooperative Agreement N o. 16-1001335 terminated on June 29, 2018, according to Section I, Parties and Term, Article A of Cooperative Agreement No. 16- 1001335; and
E. WHEREAS, the CITY desires SBCTA to con tinue to lead the PROJECT and provide project management services for PA/ED, PS&E, ROW, and Construction phases, at the sole cost of CITY and pay 100% of actual SBCTA project management costs in accordance with SBCTA Policy 40005/VFI-35; and
F. WHEREAS, PROJECT costs, aside from SBCT A project management costs, for PA/ED, PS&E, ROW, and Construction phases, after reduction by application of buy-down funds, are allocated as 15.8% Development Share fund s and 84.2% Public Share funds, as defined by the Nexus Study and the SBCTA Measure I 2010-2014 Strategic Plan; and
G. WHEREAS, Project development activities for the PA/ED, PS&E, and ROW phases are continuing for the PROJECT; and
H. WHEREAS, PARTIES desire to enter into this AGREEMENT to continue the terms, conditions, and funding in Cooperative Agr eement 16-1001335, as amended, as referenced herein as ATTACHMENT B and ATTACHME NT C, for the PA/ED, PS&E, and ROW phases from the date of expiration of Cooperative Agreement No. 16-1001335, for continuity of the project delivery process; and
I. WHEREAS, expenditures have occurred against the funding ta ble shown in Attachment A of this AGREEMENT under Cooperative Agreement 16-1001335; and
J. WHEREAS, increases in PROJECT cost, s hown in Attachment A to Cooperative Agreement No. 16-1001335, are anticipated, a nd Attachment A of this AGREEMENT reflects the anticipated PROJECT cost increases; and
K. WHEREAS, PARTIES desire to include the Construction phase in this AGREEMENT to delineate roles, responsibilities, and funding commitments relative to the Construction Phase of PROJECT; and
NOW THEREFORE, in consideration of the terms a nd conditions set forth herein, the PARTIES agree to the following:
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III. SBCTA RESPONSIBILITIES
SBCTA agrees:
A. To be lead agency on Project Management, PA /ED, PS&E, ROW, and Construction Phases and to diligently undertake and complete the PA/ED, PS&E, ROW, and Construction work for the PROJECT, including the selection and re tention of consultants. Performance of services under these consultant contracts shall be subject to the technical direction of the SBCTA’s Director of Project Delivery and Toll Operations, or designee(s), with input and consultation from CITY.
B. To contribute towards PA/ED, PS&E, ROW, and Construction phases of the PROJECT cost as shown in Attachment A. The actual cost of a specific phase may ultimately vary from the estimates provided in Attachment A, and shou ld SBCTA’s total share of the PA/ED, PS&E, ROW, and Construction phases exceed the esti mates as shown in Attachment A, SBCTA agrees to amend the AGREEMENT in good faith.
C. To prepare and submit to CITY signed invoices for reimbursement of allowable PROJECT expenditures. Invoices may be submitted to CITY as frequently as monthly.
D. To establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (“GAAP”) to support S BCTA’s request for reimbursement, payment vouchers, or invoices which segregate and accumulate costs of Project Management, PA/ED, PS&E, ROW, and Construction work elements and produce monthly reports which clearly identify reimbursable costs, matching f und costs, indirect cost allocation, and other allowable expenditures by SBCTA.
E. To prepare a final accounting of expenditures, including a final invoice for the actual Project Management, PA/ED, PS&E, ROW, and Constr uction phase costs. The final accounting and invoice shall be submitted no later than one hundred and twenty (120) calendar days following the completion of this AGREEMENT and shall be submitted to CITY. The invoice shall include a statement that these PR OJECT funds were used in conformance with this AGREEMENT and for those PROJECT-sp ecific Project Management, PA/ED, PS&E, ROW, and Construction work activities.
F. To cooperate in having a PROJECT-specific audit completed by CITY, at its option, upon completion of Project Management, PA/ED, PS&E, ROW, and Construction work.
The audit should justify and validate that all funds expended on the PROJECT were used in conformance with this AGREEMENT.
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G. To reimburse CITY for costs that are determ ined by subsequent audit to be unallowable within ninety (90) calendar days of SBCT A receiving notice of audit findings, which time shall include an opportunity fo r SBCTA to respond to and/or resolve the finding. Should the finding not be otherwise resolved and SB CTA fails to reimburse monies due CITY within ninety (90) calendar days of audit fi nding, or within such other period as may be agreed between both PARTIES hereto, the CITY ’s Council reserves the right to withhold future payments due SBCTA from any source under CITY’s control.
H. SBCTA’s Director of Project Delivery and Toll Operations is au thorized to act on behalf of SBCTA under this Section of the AGREEMENT.
I. To designate a responsible staff member that will be SBCTA’s representative in attending the Project Development Team (“PDT”) mee tings, receiving day-to-day communication, and providing Project Management services.
J. To complete review and provide comments on PROJECT documents in a timely manner that is consistent with the schedule.
K. To include CITY in PDT meetings and re lated communications on PROJECT progress as well as to provide CITY with copies of PDT meeting minutes and action items.
L. To provide CITY, with a reasonable amount of review time, an opportunity to review and comment on PA/ED, PS&E, ROW and Construction deliverables.
M. To provide all necessary ROW services to acquire rights-of-way for PROJECT through negotiated purchases of property, or if nece ssary, through Eminent Domain. If necessary, SBCTA will conduct Resolutions of Necessity hear ings and acquire property in the name of SBCTA for the purposes of construction of the PROJECT and convey such property, or portions thereof, to CITY. The interest conveyed to CITY shall be a permanent easement or other required instrument for public street and/or utility purposes.
N. To identify the utilities with in the PROJECT area and coordina te with utility companies to determine their location, and if necessary, their relocation.
IV. CITY RESPONSIBILITIES
CITY agrees:
A. To reimburse SBCTA for the CITY’s share of actual costs incurred towards the PA/ED, PS&E, ROW, and Construction phases of the PROJECT and for SBCTA’s Project Management as shown in Attachment A. The actual cost of a specific phase may ultimately vary from the estimates provided in Attachme nt A, and should CITY’s total share for the 19-1002205 5
Project Management, PA/ED, PS&E, ROW, an d Construction phase with SBCTA’s Project Management exceed the estimates as shown in Attachment A, CITY agrees to amend the AGREEMENT in good faith and contribute these additional costs.
B. When conducting an audit of the costs claimed under the pr ovisions of this AGREEMENT, to rely to the maximum extent possible on any prior audit of SBCTA performed pursuant to the provisions of State and Federal laws. In th e absence of such an audit, work of other auditors will be relied upon to the extent that work is acceptable to CITY when planning on conducting additional audits.
C. To designate a responsible staff member that will be CITY’s representative in attending the PDT meetings, receiving day-to-day co mmunication and reviewing the PROJECT documents.
D. To complete review and provide comments on PROJECT documents within four (4) weeks of receiving the review request from SBCTA.
E. CITY’s Public Works Director is authorized to act on behalf of CITY under this Section of the AGREEMENT.
F. To accept all PROJECT acquired right-of-way located within CITY’s jurisdictional boundaries upon completion of construction. The City of San Bernardino City Council, by approval of this AGREEMENT, authorizes a nd directs the City Clerk to execute an acceptance, in substantial conformance with the form attached hereto as Attachment D and made a part of this AGREEMENT, within thirty (30) days of receipt of quit claim deeds for property acquired by SBCTA.
G. To provide permits, inspections, reviews, acceptance of the transfer of title of properties and oversight at no cost to SBCTA or to consu ltants and contractors contracted by SBCTA to work on the PROJECT.
H. To provide CITY-owned right-of-way necessary for project construction at no cost to the PROJECT.
I. To provide SBCTA copies of the franchise/u tility agreements for the utilities in the PROJECT area for the purpose of determining prior rights and estimating utility relocation costs.
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J. To assist SBCTA as requested and when necessary, exercise its rights under utility relocation law or under any franchise agreement to cause each utility to relocate or rearrange its utility facility.
L. WHEREAS, planned improveme nts include improving freeway access to I-215 and improving local traffic flow by reconstructing the existing ramp intersections at the interchange into a Diverging Diamond Interchange (DDI); and
M. WHEREAS, the CITY desires SBCTA to pr ovide project management services for PROJECT, the funding for which CITY shall be solely responsible, and to pay 100% of actual SBCTA project management costs in accordance with SBCTA Policy 40005/VFI-35; and
V. The PARTIES agree:
A. To abide by all applicable Federal, State and Local laws and regulations pertaining to the PROJECT, including policies in the appl icable program in the Measure I 2010-2040 Strategic Plan, as amended, as of the Effec tive Date of this AGREEMENT. In the event SBCTA determines Project Management, PA/E D, PS&E, ROW, and Construction work may exceed the amounts identified in Attachment A of this AGREEMENT, SBCTA shall inform CITY of this determination and thereaf ter the PARTIES shall work together in an attempt to agree upon an amendment to the amounts identified in this AGREEMENT. In no event, however, shall the PART IES be responsible for PROJ ECT costs in excess of the amounts identified in this AGREEMENT without a written amendment that is approved by the PARTIES.
B. Eligible PROJECT reimbursements shall incl ude only those costs incurred by SBCTA for PROJECT-specific work activities that are de scribed in this AGREEMENT and shall not include escalation or interest.
C. Neither SBCTA, nor any officer, director, employ ee or agent thereof, is responsible for any injury, damage or liability occurring or arisin g by reason of anything done or omitted to be done by CITY under or in connection with any wo rk, authority or jurisdiction delegated to CITY under this AGREEMENT. It is understood and agreed that, pursuant to Government Code Section 895.4, CITY shall fully defend, indemnify and save harmless SBCTA, its officers, directors, employees or agents from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or ju risdiction delegated to CITY under this AGREEMENT.
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D. Neither CITY, nor any officer, director, employ ee or agent thereof, is responsible for any injury, damage or liability occurring or arisin g by reason of anything done or omitted to be done by SBCTA and under or in connection w ith any work, authority or jurisdiction delegated to SBCTA under this AGREEMENT. It is understood and agreed that, pursuant to Government Code Section 895.4, SBCTA shall fully defend, indemnify and save harmless CITY, its officers, directors, employees or agents from all claims, suits or actions of every name, kind and description brought fo r or on account of injury (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted to be done by SBCTA under or in connection with any work, authority or jurisdiction delegated to SBCTA under this AGREEMENT.
E. This AGREEMENT will be considered termin ated upon completion of PROJECT closeout and reimbursement of eligible costs by CITY. Notwithstanding any ot her provision herein, to the extent consistent with the terms a nd obligations hereof, any PARTY may terminate this AGREEMENT at any time, with or without cause, by giving thirty (30) calendar days written notice to the other PARTY. In the event of a termination, the PARTY terminating this AGREEMENT shall be liable for any costs or other obligations it may have incurred under the terms of the AGREEMENT prior to termination.
F. The Recitals to this AGREEMENT are true a nd correct and are incorporated into this AGREEMENT.
G. All signatories hereto warrant that they are duly authorized to execute this AGREEMENT on behalf of said PARTY and that by execu ting this AGREEMENT, the PARTIES hereto are formally bound to this AGREEMENT.
H. This AGREEMENT shall be governed by and cons trued in accordance with the laws of the State of California. All PARTIES agree to foll ow all applicable local, state, county and federal laws and ordinances with respect to performance under this AGREEMENT.
I. The PARTIES agree that each PARTY and any authorized representative, designated in writing to the PARTIES, and upon reasonable notice, shall ha ve the right during normal business hours to examine all PARTIES’ financ ial books and records w ith respect to this AGREEMENT. The PARTIES agree to retain th eir books and records fo r a period of five (5) years from the later of: a) the date on which this AGREEMENT terminates; or b) the date on which such book or record was created.
J. If any clause or provision of this AGREEMEN T is illegal, invalid or unenforceable under applicable present or future laws, then it is the intention of the PARTIES that the remainder of this AGREEMENT shall not be affected but shall remain in full force and effect. 19-1002205 8
K. This AGREEMENT cannot be amended or modi fied in any way except in writing, signed by all PARTIES hereto.
L. Neither this AGREEMENT, nor any of the PARTIES’ rights, obligations, duties, or authority hereunder, may be assigned in whole or in part by either PARTY without the prior written consent of the other PARTY in its so le, and absolute, discretion. Any such attempt of assignment shall be deemed void and of no force and effect.
M. No waiver of any default shall constitute a wa iver of any other default 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 othe r PARTY any contractual rights by custom, estoppel, or otherwise.
N. In the event of litigation arising from this AGREEMENT, each PARTY to this AGREEMENT shall bear its own costs, including attorney(s) fees. This paragraph shall not apply to the costs or attorney(s) fees provided for in paragraphs C and D of this Section.
O. This AGREEMENT may be signed in counterparts, each of which shall constitute an original. This AGREEMENT is eff ective June 30, 2018, following execution by both PARTIES.
P. Any notice required, authorized or permitte d to be given hereunder or any other communications between the PARTIES provided for under the terms of this AGREEMENT shall be in writing, unless otherwise provided for herein, and shall be served personally or by reputable courier addressed to the relevant party at the address/fax number stated below:
If to SBCTA: Paula Beauchamp
Director of Project Deli very and Toll Operations
1170 W. 3 rd Street, Floor 2
San Bernardino, CA 92410
If to CITY: Alex Qishta
Acting Director of Publ ic Works/City Engineer
201 North E Street
San Bernardino, CA 92401
Q. There are no third party beneficiaries, and this AGREEMENT is not intended, and shall not be construed to be for the benefit of, or be enforceable by, any other person or entity whatsoever.
----------SIGNATURES ON THE FOLLOWING PAGE----------
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IN WITNESS WHEREOF, the PARTIES ha ve duly executed this AGREEMENT below.
SAN BERNARDINO COUNTY
TRANSPORTATION AUTHORITY
By: _____________________________
Darcy McNaboe
Board President
Date: _____________________________
APPROVED AS TO FORM:
By: _____________________________
Julianna K. Tillquist
General Counsel
CONCURRENCE
By: _____________________________
Jeffery Hill
Procurement Manager
CITY OF SAN BERNARDINO
By: _____________________________
Teri Ledoux
Acting City Manager
Date: _____________________________
APPROVED AS TO FORM:
By: _____________________________
Gary D. Saenz
City Attorney
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Attachment A
Project Scope:
Improve traffic operations at the I-215 University Parkway In terchange by improving freeway access to I-215 and improving local traffic flow on University Parkway. An alternative being evaluated is to reconstruct the existing ramp intersections at the interchange into a Diverging Diamond Interchange (DDI) configuration.
Project Cost Estimate and Funding Shares:
Project costs that are not federally reimbursabl e will be split according to the Nexus Study with the Public Share at 84.2% and the Development Share/ Local Share at 15.8%
Phase Estimated
Cost
Buy-Down
Funds Public Share Development
Share*
Project Approval and
Environmental Document
(PA/ED)
$1,062,176 $939,716 $103,111 $19,349
Design (PS&E) $803,856 $703,855 $84,201 $15,800
Right of Way (ROW) $712,300 $475,900 $199,049 $37,351
Construction $12,179,584 $3,615,529 $7,210,934 $1,353,121 SANBAG Oversight $570,000 $0 $0 $570,000
TOTAL $15,327,916 $5,735,000 $7,597,295 $1,995,621
* $147,327.95 of Development Share expended as of June 29, 2018. Remaining Development Share and receivable amount under this AGREEMENT is $1,848,293.05 Project Milestones:
Milestone Actual / (Forecast)
Start of Project Approval and Environmental Document (PA/ED) 6/2017 Environmental Approval (9/2019)
Design Approved and ROW Certified (11/2020)
Construction Notice to Proceed (6/2021)
Construction Complete (5/2022)
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Attachment B
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Attachment C
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Attachment D
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CERTIFICATE OF ACCEPTANCE
This is to certify that the in terests in real proper ty conveyed by the Quit Claim Deed to which this Certificate of Acceptance is attached from San Bern ardino County Transportation Authority (SBCTA) to the City of San Bernardino, a municipal corporation, is hereby accepted by the order of the City Council of the City of Sa n Bernardino on ___________ and the City of San Bernardino consents to recordation thereof by its duly authorized agent.
THE CITY OF SAN BERNARDINO, a municipal corporation
B y :
City Clerk
Dated: _____________