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COOPERATIVE AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
AND OMNITRANS
FOR THE “E” STREET MEDIAN PROJECT
This Cooperative Agreement is made and entered into by and between the City of San Bernardino (“City”) and Omnitrans (“Omnitrans”). (City and Omnitrans are each a “Party” and are collectively referred to as the “Parties”).
RECITALS
1. WHEREAS Omnitrans constructed and started revenue service on its first bus rapid transit line in 2014, the sbX Green Line, which operates along Kendall Drive, “E” Street, Hospitality Lane, and Tippecanoe Avenue in the City of San Bernardino and on Anderson Street in the City of Loma Linda.
2. WHEREAS the sbX Green Line operates in a center-running dedicated transit lane along “E” Street between 10th Street and Hospitality Lane, and along Hospitality Lane between “E” Street and Tippecanoe Avenue.
3. WHEREAS the City owns and maintains the street right-of-way, including dedicated bus lanes, pursuant to the Master Cooperative Agreement between Omnitrans and the City of San Bernardino for the “E” Street Corridor sbX Bus Rapid Transit Project, executed September 21, 2009.
4. WHEREAS the City and Omnitrans have determined that a safety concern exists where vehicles make left turns out of business driveways across the dedicated bus lane.
5. WHEREAS the temporary delineators installed by Omnitrans to stop vehicles from crossing the dedicated bus lane have not been effective because they are easily removed/destroyed and need frequent replacement.
6. WHEREAS the City has found maintenance and replacement of removed/destroyed delineators to be ineffective and cost prohibitive.
7. WHEREAS the City constructed a concrete median in 2019 along a portion of the corridor along Hospitality Lane between “E” Street and Waterman Avenue, which has resulted in nearly no bus collisions since the median was installed.
8. WHEREAS Omnitrans and the City desire to partner on a project to design and construct a concrete median along the remainder of the dedicated bus lane section of 55600.00100\41952129.2
the sbX Green Line, between “E” Street between 10 th Street and Hospitality Lane, hereby referred to as the “E” Street Median Project (“Project”).
9. WHEREAS Omnitrans and the City desire to first enter a Design Phase for the Project in order to aid in securing additional capital grant funds for the cost of the Construction Phase.
Now, THEREFORE, the Parties agree to the following:
ROLES AND RESPONSIBILITIES
1. The Parties agree that the above-referenced RECITALS are true and correct in all respects, shall constitute a substantive part of this Agreement, and are incorporated herein by reference.
2. The Project consists of design, environmental clearance, and construction of a concrete median in the center of “E” Street between 10th Street and Hospitality Lane, including any roadwork necessary to install the median, protect-in-place the existing surrounding roadway and utilities, and reconstruct any part of the roadway that needs to be removed in order to install the median. The Project is more particularly described in Exhibit “A”, attached hereto and incorporated herein by this reference.
3. City will lead design, environmental work, and construction for the Project, including preparing construction documents (plans, specifications, and estimate), filing all environmental clearance documents required under CEQA (and NEPA if project is federally funded), obtaining any needed permits for the work, advertising for bids, managing the construction contractor, providing bid services, design services during construction, and inspections, and accepting ownership and maintenance responsibilities of the Project once constructed.
4. Prior to the completion of construction of the Project, Omnitrans and the City will execute an Amendment to the 2009 Master Cooperative Agreement between Omnitrans and the City of San Bernardino for the “E” Street Corridor sbX Bus Rapid Transit Project, to clarify that the City is responsible for ownership and maintenance of the median (currently not specified in the Agreement because the median was not an original part of the “E” Street Corridor sbX Bus Rapid Transit Project).
5. City and Omnitrans will each designate a single project manager/point of contact for the Project and will promptly notify one another if the point of contact changes.
6. Omnitrans will provide input on project design, including providing comments in a timely manner on project plans and other project documents.
7. City will provide Omnitrans a reasonable timeframe to review design plans and other key project documents and will address and respond to Omnitrans’ comments.
8. City will lead Project status meetings at least once every two weeks (or appropriate intervals for each phase of the Project) to keep Omnitrans informed of Project status. 55600.00100\41952129.2
9. City will keep Omnitrans informed as soon as possible of expected construction dates which may impact Omnitrans bus services. City will make all reasonable efforts to minimize impacts of the Project to Omnitrans bus service.
10.PROJECT COST SHARE
a. The estimated total cost for the Project is $2,380,646, which includes design, environmental clearance, construction, construction management service, design services during bid phase and construction, and a 15% contingency The estimated total cost of the Project is more particularly described in Exhibit “B”, attached hereto and incorporated herein by this reference.
b. The City and Omnitrans agree to split the total Project Cost, and each Phase Cost, in half. Thus, Omnitrans agrees to reimburse no more than 50% of the expected total project cost, for a total not-to-exceed amount of $1,190,323 to be funded by Omnitrans under this Agreement through Federal funds.
c. In the event the actual cost of the Project exceeds the estimated Project Cost, City shall notify Omnitrans before authorizing additional work. City and Omnitrans staff will work cooperatively to amend this Cooperative Agreement to reflect the actual cost of the Project or reduce the Project’s scope to bring the actual cost within the estimated total cost as outlined in Section 10(a) of this Agreement. An Amendment to this Agreement will need to be approved by the respective governing bodies of the City and Omnitrans if additional funds will be added to this Agreement. d. The City shall not award any Contractor/Vendor contracts that commit more funding than is available for the Project; rather, the City and Omnitrans shall endeavor to agree upon an alternative course of action, such as re-advertising for bids or seeking additional funds for the Project.
e. Omnitrans and the City will cooperate to seek additional capital funding sources, such as by partnering to apply for competitive grant sources, to cover construction costs for the project.
f. If either Omnitrans or the City becomes the recipient of grant funding for the project as a result of both parties’ collaborative efforts to seek funding, the grant funding source will be considered a joint contribution of funding to the project; then the balance of the project cost will be split in half between the City and Omnitrans. g. If Omnitrans or the City requests additional work beyond the scope of the original Project as outlined in this Agreement, said work will be paid solely by the Party requesting the work at the construction contract unit costs. h. Omnitrans and the City desire to approach the project in the following three phases:
1) Design and Environmental Phase – cost is estimated to be $242,510. 55600.00100\41952129.2
2) Construction of Median on “Segment 1” - along “E” Street between 10th Street and Mill Street – cost is estimated to be $1,007,098.
3) Construction of Median on “Segment 2” - along “E” Street from Mill Street to Fairway Avenue – cost is estimated to be $1,131,038.
a. The Parties will enter each Project phase contingent on availability of funds for each phase. Omnitrans will issue a Notice to Proceed to the City for each phase to indicate availability of funds and readiness to proceed into each phase. b. Before the completion of each phase, the City will provide an Engineer’s Cost Estimate to Omnitrans for the next phase. Near the completion of each phase, Omnitrans and the City will meet to confer to decide whether to proceed with the next phase.
11.INVOICING AND REIMBURSEMENT
a. Omnitrans will reimburse the City for its 50% share of project expenses, not to exceed the total not-to-exceed amount under this Agreement. The City may submit monthly requests for reimbursement (invoices). The invoices must include a breakdown of expenses with copies of contractor invoices as backup for expenses, and a high-level project progress update. The invoices must show the breakdown of Project costs between the City and Omnitrans per the agreed-upon cost share percentage.
b. Requests for reimbursement must be submitted to
[email protected] with a copy to the Omnitrans Project Manager ([email protected]).
c. Omnitrans must receive invoices by the 15 th of each month in order to issue payment in the following month.
d. Omnitrans will notify the City within 5 business days if the request for disbursement is incomplete or needs to be corrected.
12.TERM
a. This Agreement shall continue in full force and effect until completion of construction, acceptance, closeout, invoicing, and payment for the Project. An estimated schedule for the Project is attached hereto as Exhibit “C”, and incorporated herein by this reference.
b. Parties agree to keep relevant records for the project as long as required to comply with all relevant grant funding requirements or laws.
13.RECORD RETENTION. City shall maintain all records, including but not limited to accounting records pertaining to all costs incurred under the Project, and shall make 55600.00100\41952129.2
all such materials available to Omnitrans as may be required for auditing or reporting for grant funds used for the project or to comply with public records requests.
14.TERMINATION. Either Party may terminate this Agreement for breach of Agreement terms, with written notice to the other Party, if the breaching Party does not take sufficient steps to remedy the claimed breach within ten (10) business days. In the event of termination of this Agreement prior to completion of the Project, Omnitrans will reimburse all Disbursement Requests from City for expenses incurred by City under the Project prior to termination that comply with all requirements of the Grant Agreement and this Agreement.
15.SUSPENSION. If for any reason, the grant funds that Omnitrans has committed to the Project are lost or suspended, Omnitrans shall immediately notify City electronically in writing. City shall immediately suspend work under the Project.
16.FORCE MAJEURE. An "Uncontrollable Force" (Force Majeure) is any occurrence beyond the control of a Party which causes that Party to be unable to perform its obligations hereunder and which a Party has been unable to overcome by the exercise of due diligence, including but not limited to, flood, drought, earthquake, storm, fire, pestilence, lightning and other natural catastrophes, epidemic, war, riot, civil disturbance or disobedience, strike, labor dispute, action or inaction of legislative bodies, judicial bodies, or regulatory agencies, or other proper authority, excepting the governing body of the Party asserting the Uncontrollable Force, which may conflict with the terms of this Agreement.
a. Neither Party shall be in default in the performance of any of the clauses contained in this Agreement when and to the extent failure of performance is caused by an Uncontrollable Force.
b. If either Party because of an Uncontrollable Force is rendered wholly or partly unable to perform its obligations under this Agreement, the Party shall be excused from whatever performance is affected by the Uncontrollable Force to the extent so affected provided that: (i) the nonperforming Party within one week after the occurrence of the Uncontrollable Force, gives the other Party written notice describing the particulars of the occurrence; (ii) the suspension of performance is of no greater scope and of no longer duration than is required by the Uncontrollable Force; (iii) the nonperforming Party uses its best efforts to remedy its inability to perform (this subsection shall not require the settlement of any strike, walkout, lockout, other labor disputes or any other dispute on terms which, in the sole judgment of the Party involved in the dispute, are contrary to its interest, it being understood and agreed that the settlement of any disputes shall be at the sole discretion of the Party having the difficulty); and (iv) when the nonperforming Party is able to resume performance of its obligations under this Agreement, that Party shall give the other Party written notice to that effect. 55600.00100\41952129.2
c. If either Party's ability to perform cannot be corrected when the Uncontrollable Force is caused by the actions or inactions of legislative bodies, judicial bodies, or regulatory agencies or other property authority, the Parties agree to meet in good faith to determine if this Agreement may be amended to comply with the legal or regulatory change which caused the nonperformance if the Parties. d. In no event shall any Uncontrollable Force excuse the obligation to issue Disbursements to City as soon as Omnitrans is reasonably able to do so.
17.DISPUTE RESOLUTION. Any dispute between the parties shall be resolved as follows:
a. The Parties shall meet and confer in good faith to resolve the dispute. b. If unresolved, the dispute shall be referred to the City Manager and Omnitrans’ CEO/General Manager, who shall meet and confer in good faith to resolve the dispute. In the event the dispute is still not resolved the dispute shall be referred to the governing bodies of the City and Omnitrans, who shall arrange to meet and confer (to the extent permitted by the Ralph M. Brown Act) through committees, representatives, or delegates to resolve the dispute. The decisions of the governing bodies shall be final. The City and Omnitrans reserve all rights, following completion of the above-described process, to seek appropriate relief or remedy.
18.In the event of litigation arising from this Agreement, each Party to this Agreement shall bear its own costs, including attorney(s) fees.
19.MUTUAL INDEMNIFICATION. No Party nor any officer, director, employee, or agent thereof is responsible for any injury, damage or liability occurring or arising by reason of anything done or omitted to be done by any other Party under this Agreement. It is understood and agreed that each Party shall fully defend, indemnify, and save harmless each other Party, its officers, directors, members, employees, contractors or agents from all claims, liabilities, suits or actions of every name, kind, and description brought for or on account of any injury (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted to be done by the indemnifying Party under or in connection with any work, authority, action or inaction undertaken under this Agreement by the indemnifying party.
20.Omnitrans and City are wholly or partially self-insured public entities for purposes of Professional Liability, Automobile Liability, General Liability, and Workers’ Compensation and warrant that through their programs of self-insurance, they have adequate coverage or resources to protect against liabilities arising from the Parties’ performance under this Agreement.
21.All signatories hereto warrant that they are duly authorized to execute this Agreement on behalf of their respective Parties and that by so executing this Agreement, the Parties hereto are formally bound to this Agreement.
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22.This Agreement shall be governed and construed in accordance with all applicable federal, state, and local laws.
23.If any clause or provision of this Agreement 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.
24.This Agreement can be amended only with a written amendment duly authorized and executed by both Parties.
25.This Agreement may be signed in counterparts, each of which shall constitute an original.
26.NO THIRD-PARTY BENEFICIARIES. There are no third-party beneficiaries to this Agreement. Other than the Parties, no person, political subdivision, agency, board, department, division, or commission shall be entitled to bring an administrative or judicial proceeding to enforce or interpret its terms.
27.NOTICES. Any notice required or authorized to be given hereunder or any other communications between the Parties provided for under the terms of this Agreement shall be in writing to the following:
If to OMNITRANS:
Erin Rogers, CEO/General Manager
1700 W. Fifth St., San Bernardino CA 92411
[email protected]
If to City of San Bernardino:
Charles Montoya, City Manager
290 North D Street, San Bernardino, CA 92401
[email protected]
If the above contact information changes, Parties will notify one another as soon as possible of said change and will provide the new contact information. (Signatures on following page)
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the day and year written above.
OMNITRANS
Signature _____________________________ Date __________________ Erin Rogers, CEO/General Manager
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CITY OF SAN BERNARDINO
Signature _____________________________ Date __________________ Charles Montoya
Signature _____________________________ Date __________________ City Attorney
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EXHIBIT A
PROJECT DESCRIPTION AND SITE MAP
Project Description
The project will consist of design and construction of a concrete median along the remainder of the dedicated bus lane section of the sbX Green Line, between “E” Street between 10th Street and Hospitality Lane, hereby referred to as the “E” Street Median Project.
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Segment 1
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Segment 2
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EXHIBIT B
PROJECT COST ESTIMATE
Description Of Work Total Cost City Cost Omnitrans
Cost
Design and Environmental
Segment 1 & 2
$242,510 $121,255 $121,255
Construction segment 1- 10th
Street to Mill Street
$1,007,098 $503,549 $503,549
Construction segment 2- Mill Street
to Fairway Avenue
$1,131,038 $565,519 $565,519
Total Project Cost $2,380,646 $1,190,323 $1,190,323
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EXHIBIT “C”
Design And Construction Schedule
Grant Opportunity 2024/2025
Design and Environmental Phase 2025/2026
Construction Segment 1 2026/2027
Construction Segment 2 2027/2028