MEMORANDUM OF UNDERSTANDING
No. M-XXX-26
BETWEEN THE
SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS
AND THE CITY OF SAN BERNARDINO
FOR TECHNICAL ASSISTANCE RELATING TO THE PLANNING FOR MAIN STREETS
PROJECT
(SCAG Project/OWP No. 145.4957.01)
This Memorandum of Understanding (“MOU”) is entered into by and between the Southern California Association of Governments (“SCAG”) and the City of San Bernardino (“Agency”), for technical assistance relating to the Planning for Main Streets Project. SCAG and the Agency may be individually referred to as “Party” and collectively as “Parties.”
RECITALS
WHEREAS, the California Department of Transportation (“Caltrans”) created the Sustainable Transportation Planning Grant Program (“STPG Program”) to encourage local and regional planning that supports state goals, implements the Regional Transportation Plan/Sustainable Communities Strategy (“RTP/SCS”), and achieves the State of California’s greenhouse gas (“GHG”) reduction targets;
WHEREAS, Caltrans administers the STPG Program pursuant to Senate Bill 1 (The Road Repair and Accountability Act of 2017), a transportation funding bill that aims to maintain and integrate the State’s multi-modal transportation system;
WHEREAS, Caltrans released the Fiscal Year (“FY”) 2024 -25 STPG Program Application Guide and Call for Applications for transportation planning projects statewide;
WHEREAS, SCAG is the federally designated MPO for Southern California, primarily responsible for the development of a Regional Transportation Plan/Sustainable Communities Strategy (“RTP/SCS” also known as “Connect SoCal”) for the counties of Imperial, Los Angeles, Orange, San Bernardino, Riverside, and Ventura;
WHEREAS, SCAG, in partnership with Caltrans, identified several State highway main streets in the SCAG region and developed the Planning for Main Streets project (“Project”) which Caltrans awarded a total of $500,000.00 in Grant Funding under the STPG Program – Strategic Partnerships (FHWA SPR Part I);
WHEREAS, SCAG will procure the services of a consultant (“Consultant”) to oversee and manage the Project, complete Project tasks and deliverables, and achieve the Project objectives;
WHEREAS, the Project will assess existing conditions, engage with surrounding communities to define a vision and refine corridor priorities, and develop conceptual plans and associated cost estimates for sustainable transportation improvements to position the State highway main streets for future grant funding opportunities and/or incorporation into future workplans with the goal of improvements implementation;
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WHEREAS, Agency is a local jurisdiction located along one of the State highways and identified as a key stakeholder and Project partner who will support, cooperate, collaborate, and provide guidance as needed to complete the Project by participating in technical advisory committee meetings and other community engagement activities as facilitated by the Consultant; and
WHEREAS, the purpose of this MOU is to describe the responsibilities of the Parties.
NOW THEREFORE, IT IS MUTUALLY AGREED THAT:
1. MOU Contents
This MOU consists of the Recitals above, the terms and conditions below, and the attached exhibits which are hereby incorporated by reference and made a part of this MOU. The MOU Contents contains the entire agreement of the Parties. This MOU supersedes al l prior negotiations, discussions and previous agreements between the Parties.
2. Term
This MOU is effective as of the last date on which it is executed by all Parties (“Effective Date”) and continues until June 30, 2027 (“Completion Date”), unless terminated earlier in accordance with the termination provisions of this MOU. Time is of the essence in the performance of Services under this MOU.
3. Responsibilities of the Parties:
a. SCAG will:
i. Contribute funding for the Project in accordance with Section 5, Funding, below.
ii. Provide technical assistance to Agency by:
1. Procuring a Consultant.
2. Overseeing and managing the Consultant’s activities in performing the Scope of Work.
3. Reviewing, approving, and paying the Consultant’s invoices.
4. Reviewing and approving Consultant’s deliverables in consultation with Agency.
iii. Complete the Project.
b. Agency will:
i. Fulfill any obligations in compliance with this MOU, the STPG Program Guidelines, the Funding Requirements, and all federal, state and local laws, rules and regulations.
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ii. Commit to supporting the Project by:
1. Cooperating with SCAG and Consultant.
2. Meeting with SCAG and Consultant as determined by SCAG.
3. Participating in public outreach for the main street corridor located within Agency’s jurisdiction, as facilitated by the Consultant.
4. Providing guidance and decisions without delay.
5. Responding to requests for information and records as requested by Consultant or SCAG as promptly as practicable.
6. Providing access to Agency’s facilities and data upon reasonable notice.
7. Reviewing, providing feedback, and approving deliverables.
8. Coordinating with Consultant on a presentation of final deliverables to Agency’s governing body for proposed acceptance or adoption.
iii. Completing the Project.
c. Agency certifies, to the best of its knowledge and belief, that no State or Federal funds have been paid or will be paid, by or on behalf of Agency to any person for influencing or attempting to influence an officer or employee of any State or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding of any State or Federal contract, the making of any State or Federal grant, the making of any State or Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any State or Federal contract, grant, loan, or cooperative agreement.
If any funds other than State or Federal funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, Agency shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities" in accordance with those form instructions.
4. Program Management
a. All work under this MOU shall be coordinated with SCAG and Agency through the Project Managers.
b. For purposes of this MOU, SCAG designates the following individual as its Project Manager:
Rachel Om
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SCAG Project/OWP No.: 145.4957.01
Senior Regional Planner
213-630-1550
[email protected]
c. For purposes of this MOU, Agency designates the following individual as its Project Manager:
[Name] Azzam Jabsheh
[Title] Deputy Director of Public Works/City Engineer
[Number] 909-998-2448
[Email] [email protected]
Either Party may change the designation upon written notice to the other Party.
5. Funding
SCAG’s contribution to the Project is funded with STPG Program – Strategic Partnerships (FHWA SPR Part I) funds. No funds will be provided to Agency. SCAG reserves the right, in its sole discretion, to discontinue funding the Project and terminate this MOU.
6. Work Products
a. For purposes of this MOU, “Work Products” shall mean all deliverables created or produced under this MOU including, but not limited to, all deliverables conceived or made either solely or jointly with others during the term of this MOU and for six months after, which relates to the Project.
Work Products shall not include real property or capital improvements. Work Products includes all inventions, innovations, improvements, or other works of authorship directly related to this MOU that Agency or Consultant may conceive of or develop during the term of this MOU and for six months after, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection.
b. SCAG shall own all Work Products and may, in its sole discretion, grant to the Agency a license to use the Work Products. Any reproduction, publishing, or reuse of the Work Products will be at the Agency’s sole risk and without liability or legal exposure to SCAG.
7. Amendments
No amendment or variation of the terms of this MOU shall be valid unless made in writing, signed by the Parties and approved as required.
8. Notices
Any notice (s) to be given may be personally served or served by certified mail, return receipt requested, to the following addresses:
To SCAG: Cindy Giraldo
Chief Financial Officer
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Southern California Association of Governments
900 Wilshire Blvd., Suite 1700
Los Angeles, CA 90017
(213) 630-1413
[email protected]
To Agency: Name Azzam Jabsheh
Title Deputy Director of Public Works/City Engineer
Agency City of San Bernardino
Address 290 N.D Street, San Bernardino, CA 92401
Phone 909-998-2448
Email [email protected]
Either Party may change the designation upon written notice to the other Party.
9. Indemnification and Release
a. Agency assumes all risk of injury to its employees, agents, and Subconsultants, including loss or damage to property.
b. When the law establishes a professional standard of care, to the fullest extent permitted by law, Agency shall indemnify, protect, defend, and hold harmless SCAG, its members, officers, Regional Council Board members, employees, and agents from and against any and all losses, liabilities, damages, costs, and expenses, including attorney’s fees and costs to the extent caused in whole or in part by any act, error, or omission of Agency, its agents, employees, or subconsultants arising out of, pertaining to, or related to this MOU.
c. For all other s ervices performed by Agency pursuant to this MOU, Agency shall indemnify, protect, defend, and hold harmless SCAG, its members, officers, Regional Council members, employees, and agents from and against any and all losses, liabilities, damages, costs, and expenses, including reasonable attorney’s fees and costs where the same arises out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this MOU by Agency, its agents, employees, or Subconsulta nts; provided, however, that Agency ’s duty to indemnify and hold harmless shall not include any claims or liability arising from the intentional or willful misconduct of SCAG, its members, officers, Regional Council members, employees, and agents.
d. Agency acknowledges that SCAG in no way whatsoever insures or guarantees the Work Product or the Project , and that Agency is accepting the Work Product and Project from SCAG and its Consultant “AS IS” without warranty of any kind, either express or implied, including without limitation any warranties of merchantability or fitness for a particular purpose.
10. Disputes
The Parties shall make their best efforts to resolve disputes that occur under this MOU by good faith negotiations whenever possible. Both Parties shall meet and confer in good faith in order to foster a MOU No.: M-xxx-26
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spirit of cooperation and efficiency in the administration and monitoring of performance and compliance by each other with the terms, provisions and conditions of this MOU.
11. Termination of MOU
a. Termination Resulting from Lack of Funding: In the event the Project provided for under this MOU is not approved in the SCAG Comprehensive Budget or Comprehensive Budget Amendments, this MOU is deemed to be terminated effective June 30th of the applicable Fiscal Year. In the event the funding agency reduces or eliminates the available funding, this MOU may be terminated effective immediately upon notice.
b. Termination for Convenience: Either Party may terminate this MOU for convenience if mutually agreed upon by the Parties. In addition, SCAG may terminate this MOU at any time for any reason or for no reason, by giving written notice to Agency of such termination at least thirty (30) calendar days before the effective date of such termination. Upon receipt of the notice of termination, Agency shall immediately avoid incurring any additional obligation costs or expense except as may be necessary to terminate i ts activities or the activities of C onsultant. In such event, all finished or unfinished Work Products, at the option of SCAG, become SCAG’s property. If this MOU is terminated by SCAG, as provided herein, SCAG’s only obligation shall be the payment of fees and expenses incurred prior to the termination date, in accordance with the cost provisions of this MOU.
c. Termination for Cause: If through any cause, Agency shall fail to fulfill in a timely and proper manner its obligations under this MOU, or if Agency violates any of the covenants, terms, or stipulations of this MOU, SCAG shall thereupon have the right to t erminate this MOU by giving not less than ten (10) calendar days written notice to Agency of the intent to terminate and specifying the effective date thereof. In such event, all finished or unfinished Work Products shall, at the option of SCAG, become SCAG’s property.
12. Records Retention, Monitoring, and Audits
a. Agency shall maintain its source documents, books and records connected with the Project for a minimum of five (5) years after the termination or expiration of this MOU. Wherever practicable, such records should be collected, transmitted, and stored in open and machine-readable formats.
b. If any litigation, claim, negotiation, audit, monitoring, inspection, or other action has been started before the expiration of the required record retention period, all records shall be retained by Agency for five (5) years after: (a) the conclusion or resolution of the matter; (b) the date an audit resolution is achieved for each annual SCAG OWP; or (c) the termination or expiration of this MOU, whichever is later.
c. SCAG may monitor activities of Agency as SCAG deems necessary.
d. Agency agrees that SCAG, or any authorized agency, or their designated representatives shall have the right to review, obtain, and copy all records and supporting documentation related to the performance of this MOU. Agency agrees to provide any relevant information requested. Copies shall be made and furnished to SCAG upon request at no cost to SCAG.
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e. Agency agrees to permit SCAG, or any authorized agency, or their designated representatives access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees who might reasonably have information related to such records and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation.
13. Compliance with Laws, Rules and Regulations
a. Partner Agency agrees to comply with all federal, state and local laws, rules and regulations.
b. During the performance of this MOU, Agency assures that no person shall be denied the MOU’s benefits, be excluded from participation or employment, be denied Project benefits, or be subjected to discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, under the Project or any program or activity funded by this MOU, as required by Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. §§ 3601- 20) and all implementing regulations, the Americans with Disabilities Act (“ADA”) of 1990 (42 U.S.C. §§ 12101 et seq.) and all applicable regulations and guidelines issued pursuant to the ADA, and the Age Discrimination Act of 1975 and all implementing regulations. Agency shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination.
c. During the performance of this MOU, Agency shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code § 12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs. tit. 2, § 11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§ 11135-11139.5), and the regulations or standards adopted to implement such article.
d. During the performance of this MOU, Agency shall comply with the Americans with Disabilities act of 1990 and nondiscrimination program requirements of Title VI of the Civil Rights Act of 1964. Accordingly, 49 CFR Part 21, and 23 CFR Part 200 are made applicable to this MOU by this reference. Wherever the term “Contractor” appears therein, it shall mean Agency. Annually, Agency shall submit a “Title VI Compliance Report,” attached as Exhibit A , to document compliance with Title VI requirements.
14. Conflict of Interest
The Parties shall comply with all applicable federal and state conflict of interest laws, regulations, and policies.
15. Independent Contractor
Agency and its officers, employees, and agents shall be independent contractors in the performance of this MOU, and not officers, employees, contractors or agents of SCAG.
16. Assignment
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Neither Party shall assign any rights or interests in this MOU, or any part thereof, without the written consent of each Party to this MOU, which consent may be granted, withheld or conditioned in the consenting Party’s sole and absolute discretion. Any assignment without such written consent shall be void and unenforceable. The covenants and agreement of this MOU shall inure to the benefit of and shall be binding upon each of the Parties and their respective successors and assignees.
17. Non-Exclusivity
This MOU shall not create an exclusive arrangement between SCAG and Agency and nothing shall restrict SCAG from acquiring similar, equal or like services from other entities or sources. Nothing in this MOU shall be construed to limit or restrict the remedies available to SCAG in both at law and in equity.
18. Severability
If any provision of this MOU is held to be illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable, and the legality, validity, and enforceability of the remaining provisions shall not be affected thereby.
19. Survival
The following sections survive expiration or termination of this MOU:
Section 6 (Work Products)
Section 9 (Indemnification and Release)
Section 10 (Disputes)
Section 12 (Records Retention, Monitoring, and Audits)
Section 20 (Jurisdiction and Venue)
20. Jurisdiction and Venue
This Agreement shall be interpreted under the laws of the State of California. Venue shall be Los Angeles County.
21. Waiver
No delay or failure by either Party to exercise or enforce at any time any right or provision of this MOU shall be considered a waiver thereof of such Party’s right thereafter to exercise or enforce each and every right and provision of this MOU. A waiver to be valid shall be in writing but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver.
22. Order of Precedence
In the event of any conflict between the following documents, the order of precedence shall be as follows:
Amendment(s)
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MOU
Exhibits
23. Execution
This MOU, or any amendments related thereto, may be executed in multiple counterparts , each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
The signature page of this MOU or any amendments may be executed by way of a manual or authorized digital signature. Delivery of an executed counterpart of a signature page to this MOU or an amendment by electronic transmission scanned pages shall be deemed effective as a delivery of a manually or digitally executed counterpart to this MOU or any amendment.
24. Authority
The person(s) executing this MOU on behalf of the Parties warrant that they are duly authorized to execute this agreement on behalf of said Parties, and that by doing so the Parties are formally bound to the provisions of this MOU.
[SIGNATURE PAGE FOLLOWS]
MOU No.: M-xxx-26
SCAG Project/OWP No.: 145.4957.01
MEMORANDUM OF UNDERSTANDING
NO. M-XXX-26
IN WITNESS WHEREOF, the Parties have caused this MOU to be executed by their duly authorized representatives as of the dates indicated below:
SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS (SCAG)
By: _______________________________________________ _________________ Cindy Giraldo Date
Chief Financial Officer
APPROVED AS TO FORM:
By: _______________________________________________ _________________ Richard Lam
Senior Deputy Legal Counsel
CITY OF SAN BERNARDINO
By: _______________________________________________ _________________ Eric Levitt Date
City Manager