25-1003341
COOPERATIVE AGREEMENT NO. 25-1003341
BETWEEN
SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SAN BERNARDINO
FOR
PROJECT INITIATION DOCUMENT (PID), PROJECT APPROVAL AND
ENVIRONMENTAL DOCUMENT (PA/ED), AND
PLANS, SPECIFICATIONS AND ESTIMATE (PS&E) PHASES
FOR THE PALM AVENUE AT INTERSTATE 215 (I-215) INTERCHANGE
IN THE CITY OF SAN BERNARDINO
I. PARTIES AND TERM
A. THIS COOPERATIVE AGREEMENT (“ AGREEMENT”) is made and entered into by and between the San Bernardino County Transportation Authority (“SBCTA”) and the City of San Bernardino (“CITY”). SBCTA and CITY may be referred to herein individually as a “PARTY” and collectively as “PARTIES”.
B. Unless this AGREEMENT is terminated early as provided in Section V, Paragraph E, this AGREEMENT shall terminate upon completion of the PARTIES’ obligations associated with the project initiation document (PID), project approval and environmental document (“PA/ED”), and plans, specifications and estimate (“ PS&E”) phases descr ibed herein or December 31, 2039, whichever is earlier in time. The indemnification 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 asserted against one of the PARTIES prior to the termination of this AGREEMENT, the AGREEMENT shall be extended until such time as the claims are settled, dismissed or paid.
II. RECITALS
A. WHEREAS CITY has requested to initiate improvements of the Palm Avenue at Interstate 215 Interchange within the limits of the City of San Bernardino (“PROJECT”); and
B. WHEREAS, planned improvements include widening the northbound and southbound on-and off-ramps, widening Palm Avenue to provide dual left turn lanes, replacing the I-215 Bridge over Palm Avenue, constructing tie -back retaining walls at the bridge undercrossing , and intersection improvements at Kendall Drive and Hallmark Parkway, as further described in Attachment B, attached hereto and made part of this AGREEMENT, and are collectively defined as the “PROJECT”; and
C. WHEREAS, the PROJECT is in the Measure I 2010 -2040 Strategic Plan and identified as eligible in the Valley Interchange Program; and
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D. WHEREAS the PARTIES consider the PROJECT to be high priority and are willing to participate in funding the PROJECT pursuant to the provisions of the SBCTA Development Mitigation Nexus Study; and
E. WHEREAS the PARTIES wish to enter into this AGREEMENT to delineate roles, responsibilities, and funding commitments related to Project Management, PID, PA/ED, and PS&E activities of the PROJECT; and
F. WHEREAS the CITY desires SBCTA to provide Project Management services, estimated at $500,000, for the PID, PA/ED, and PS&E phases of PROJECT, and understands it is the CITY’s sole responsibility to pay 100% of the actual SBCTA Project Management costs in accordance with SBCTA Measure I Strategic Plan Policy 40005 VFI-34 and 35; and
G. WHEREAS the remaining PROJECT cost for the PID, PA/ED, and PS&E phases shall be funded with 35.7% Development Share funds and 64.3% Public Share funds, as defined by the Nexus Study and the SBCTA Measure I 2010-2040 Strategic Plan and Policy 40005/VFI-19; and
H. WHEREAS the PARTIES agree to limit the Project cost to $10 Million for the PID, PA/ED, and PS&E phases, and
I. WHEREAS the PARTIES’ intent is that this AGREEMENT is limited to the identified project phases and SBCTA shall not be obligated to fund or participate in any other project phases for PROJECT unless the PARTIES execute a new cooperative agreement.
NOW, THEREFORE, for good and valuable consideration and the mutual promises contained herein, the PARTIES agree to the following:
III. SBCTA RESPONSIBILITIES
SBCTA agrees:
A. To provide Project Management services and act as lead agency for the PID, PA/ED, and PS&E phases, and to diligently undertake and complete the PID, PA/ED, and PS&E work for the PROJECT, including the selection and retention 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 Express Lanes, or designee, with input and consultation from CITY. SBCTA shall ensure that consultants and contractors participating in PROJECT work are appropriately qualified or licensed to perform the tasks assigned to them and shall be responsible for managing the quality of the PROJECT work.
B. To contribute towards PID, PA/ED, and PS&E 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 should SBCTA’s total share of the PID, PA/ED, and PS&E phases exceed the estimates as shown in Attachment A, SBCTA agrees to entertain amendment
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of the AGREEMENT in good faith in accordance with Section V, Paragraph A, below .
However, in no case shall the SBCTA contribution exceed $6,430,000.
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 SBCTA’s request for reimbursement, payment vouchers, or invoices which segregate and accumulate costs of P roject Management, PID, PA/ED, and PS&E work elements and produce monthly reports which clearly identify reimbursable costs, matching fund 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 P roject Management, PID, PA/ED, and PS&E 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 PROJECT funds were used in conformance with this AGREEMENT and for those PROJECT-specific Project Management, PID, PA/ED, and PS&E work activities.
F. To cooperate in having a PROJECT -specific audit completed by CITY, at its option, upon completion of Project Management, PID, PA/ED, and PS&E work. The audit should justify and validate that all funds expended on the PROJECT were used in conformance with this AGREEMENT.
G. To reimburse CITY for costs that are determined by subsequent audit to be unallowable within ninety (90) calendar days of SBCTA receiving notice of audit findings, which time shall include an opportunity for SBCTA to respond to and/or resolve the finding. Should the finding not be otherwise resolved and SBCTA fails to reimburse monies due to CITY within ninety (90) calendar days of audit finding, 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. To designate a responsible staff member that will be SBCTA’s representative in attending the Project Development Team (“ PDT”) meetings, receiving day -to-day communication, and providing Project Management services.
I. To complete review and provide comments on PROJECT documents in a timely manner that is consistent with the schedule.
J. To provide CITY with a proposed project schedule to complete the PROJECT.
K. To include CITY in PDT meetings and related communications on PROJECT progress as well as to provide CITY with copies of PDT meeting minutes and action items.
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L. To perform the design in accordance with State and Federal standards and practices.
M. To provide CITY with a reasonable amount of review and approval time and an opportunity to review, comment on, and approve PID, PA/ED, and PS&E documents.
N. To apply for encroachment permits authorizing entry of SBCTA and its consultants and contractors onto CITY right of way to perform investigative activities, including surveying and geotechnical borings activities required by the PROJECT; and to receive encroachment permits from the CITY at no cost to SBCTA, its consultants, and contractors.
O. To obtain all necessary PROJECT permits, agreements and/or approvals from appropriate agencies; all necessary PROJECT permits, agreements, and/or approvals from the CITY shall be provided at no cost to SBCTA, its consultants, and contractors. All mitigation, monitoring, and/or remedial action required by said permits and/or agreements obtained from agencies other than the CITY shall constitute part of the PROJECT cost.
P. To identify the utilities within the PROJECT area and coordinate with utility companies to determine their location.
Q. To provide written notice to CITY upon SB CTA’s determination that the PROJECT work under AGREEMENT is substantially completed. For this AGREEMENT, “substantially completed” shall mean that the PROJECT plans and specification have been approved by Caltrans.
R. To require all contractors and/or consultants under contract to perform services related to the PROJECT to include the CITY, its officers, directors, employees and agents as additional insureds and to indemnify, defend, and hold harmless the CITY, its officers, directors, employees and agents from any liability, claims, demands, suits or actions which may be made by any person resulting from the PROJECT.
IV. CITY RESPONSIBILITIES
CITY agrees:
A. To reimburse SBCTA for CITY’s share of actual costs incurred towards the PID, PA/ED, and PS&E 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 Attachment A, and should CITY’s total share for the PID, PA/ED, and PS&E phase with SBCTA’s Project Management exceed the estimates as shown in Attachment A , PARTIES shall amend AGREEMENT and CITY shall contribute these additional costs beyond SBCTA’s maximum contribution as shown in Article III.B and Attachment A.
B. When conducting an audit of the costs claimed under the provisions 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 the absence of such an audit, work of other auditors
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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 attending the PDT meetings, receiving day-to-day communication and reviewing the PROJECT documents.
D. To review, provide comments on, and approve PROJECT documents within two (2) weeks of receiving the review request from SBCTA.
E. To provide permits, inspections, reviews, and oversight at no cost to SBCTA or to consultants and contractors contracted by SBCTA to work on the PROJECT.
F. To provide SBCTA copies of the franchise/utility agreements for the utilities in the PROJECT area for the purpose of determining prior rights and estimating utility relocation costs.
G. To assist SBCTA as requested, and when necessary, exercise its rights under utility relocation law or any franchise agreement, to determine liability and costs for utility relocation.
H. To accept in writing the PROJECT within thirty (30) days of receipt of written notice from SBCTA that the PROJECT work under AGREEMENT is substantially completed as described by Paragraph “ Q” in Section III, which acceptance shall not be unreasonably withheld or delayed. Withholding or delaying because of non-material work remaining to be completed shall be deemed unreasonable and City shall be fully responsible for all additional costs resulting from such delay or withholding of acceptance.
I. CITY is responsible for all commitments which are part of their direct agreement with Caltrans, including but not limited to Freeway Maintenance Agreement and Landscape and Aesthetic Maintenance Agreements
V. MUTUAL RESPONSIBILITIES
The PARTIES agree:
A. To abide by all applicable Federal, State and Local laws and regulations pertaining to the PROJECT, including policies in the applicable program in the Measure I 2010-2040 Strategic Plan, as amended, as of the Effective Date of this AGREEMENT.
B. Eligible PROJECT reimbursements shall include only those costs incurred by SBCTA for PROJECT-specific work activities that are described in this AGREEMENT and shall not include escalation or interest.
C. Neither SBCTA 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 CITY under or in connection with any work, 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 act ions of every name, kind
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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 jurisdiction delegated to CITY under thi s AGREEMENT. CITY’s indemnification obligation applies to SBCTA’s “active” as well as “passive” negligence but does not apply to SBCTA’s “sole negligence” or “willful misconduct” within the meaning of Civil Code Section 2782.
D. Neither CITY 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 SBCTA and under or in connection with 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 o r 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 SBCTA under or in connection with any work, authority or jurisdiction delegated to SBCTA under this AGREEMENT. SBCTA’s indemnification obligation applies to CITY’s “active” as well as “passive” negligence but does not apply to CITY’s “sole negligence” or “willful misconduct” within the meaning of Civil Code Section 2782. Further, to the extent, but only to the extent, that SBCTA’s Work falls within the scope of Civil Code Section 2782.8, the following indemnification is applicable: SBCTA shall indemnify and defe nd CITY and its officers, directors and employees from any and all losses, damages, liability, actions, and/or costs for claims that arise out of, pertaining to, or that are related to the negligence, recklessness, or willful misconduct of the design professional.
E. This AGREEMENT will be considered terminated upon completion of PROJECT closeout and reimbursement of eligible costs by CITY. Notwithstanding any other provision herein, to the extent consistent with the terms and obligations hereof, any PARTY may terminate this AGREEMENT at any time, with or without cause, by giving sixty (60) 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 and 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 executing this AGREEMENT, the PARTIES hereto are formally bound to this AGREEMENT.
H. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California. All PARTIES agree to follow all applicable local, state, county and federal laws and ordinances with respect to performance under this AGREEMENT.
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I. The PARTIES agree that each PARTY and any authorized representative, designated in writing to the PARTIES, and upon reasonable notice, shall have the right during normal business hours to examine all PARTIES’ financial books and records with respect to this AGREEMENT and the PROJECT. The PARTIES agree to retain their books and records for 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 provisions 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.
K. This AGREEMENT cannot be amended or modified 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 sole, and absolute, discretion. Any attempted assignment shall be deemed void and of no force and effect.
M. No waiver of any default shall constitute a waiver 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 other 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 relative to paragraphs C and D of this Section V.
O. This AGREEMENT may be signed in counterparts, each of which shall constitute an original.
This AGREEMENT is effective on the date executed by SBCTA (“Effective Date”), following execution by both PARTIES.
P. Any notice required, authorized or permitted 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: Sal Chavez
Project Delivery Manager
1170 West Third Street
San Bernardino, CA 92410-1715
If to CITY: Azzam Jabsheh, City Engineer and
Deputy Public Works Director
201 North E Street, Suite 200
San Bernardino, CA 92401
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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.
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SIGNATURE PAGE TO
COOPERATIVE AGREEMENT NO. 25-1003341
BETWEEN
SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY
and CITY OF SAN BERNARDINO
SAN BERNARDINO COUNTY
TRANSPORTATION AUTHORITY
CITY OF SAN BERNARDINO
By:__________________________
Rick Denison
President, Board of Directors
By:_________________________
Eric Levitt
City Manager
Date:_________________________
Date:________________________
APPROVED AS TO FORM:
By:___________________________
Julianna K. Tillquist
General Counsel
APPROVED AS TO FORM:
By:_________________________
Sonia R. Carvalho
City Attorney
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Attachment A
Project Scope:
At the Palm Avenue Interstate 215 (I -215) interchange, reconfigure interchange. Through final design approval only.
Project Cost Estimate and Funding Shares:
SBCTA’s Share: Public Share: 64.3%
City’s Share: Development Share or Local Share: 35.7% (City of San Bernardino)
Phase Estimated Cost1 Public Share2 Development
Share
PID - PA/ED $3,300,000 $2,121,900 $1,178,100
PS&E $3,500,000 $2,250,500 $1,249,500
SBCTA Project
Management $500,000 $0 $500,000
Total $7,300,000 $4,372,400 $2,927,600
1Estimated cost assumes analysis of one build alternative. 2Total Public Share contribution shall not exceed $6,430,000.
Project Milestones:
Milestone1 Actual
(Forecast)
Start of Project Approval and Environmental Document Phase (PA/ED) (12/2026) Environmental Approval (12/2029)
Design Approved (04/2032)
1Milestone assumes analysis of one build alternative. Anticipated environmental determination under CEQA is an Environmental Impact Report and under NEPA an Environmental Assessment.
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Attachment B
CONCEPTUAL LAYOUT