WCCTAC Cooperative Agreement with City of San Pablo
COOPERATIVE FUNDING AGREEMENT BETWEEN
WEST CONTRA COSTA TRANSPORTATION ADVISORY COMMITTEE
AND
City of San Pablo
San Pablo Avenue Bridge Replacement and Intersection Realignment Project
This AGREEMENT is made and entered into as of __9/18/2021______, (the “Effective Date”) by and between the West Contra Costa Transportation Advisory Committee (“WCCTAC”), a Joint Exercise of Powers Agency organized pursuant to California Government Code Section 6500, et. seq., among the cities of El Cerrito, Hercules, Pinole, Richmond, and San Pablo, the County of Contra Costa, and the transit agencies AC Transit, Bay Area Rapid Transit District, and Western Contra Costa Transit Authority, with offices located at 6333 Potrero Avenue, Suite 100, El Cerrito, CA 94530, and City of San Pablo, a municipal corporation.
WCCTAC and City of San Pablo (“Agency”) shall sometimes be referred to collectively herein as the “Parties” and individually as a “Party.”
RECITALS
WHEREAS, the members of WCCTAC signed a Master Cooperative Agreement pertaining to the 2019 Subregional Transportation Mitigation Fee Program Update (“2019 STMP”) in West Contra Costa County, including a list of twenty specific projects and the STMP funding commitments to those projects; and
WHEREAS, Agency’s Project, as further described in the Scope of Work, attached as Exhibit A, which is incorporated herein (“Project”), is one of the twenty projects identified in the 2019 STMP; and
WHEREAS, plans, studies, and cost estimates for Agency’s Project are eligible uses for the STMP funds; and
WHEREAS, at its May 28, 2021 meeting, the WCCTAC Board of Directors approved an appropriation of six hundred and sixty-eight thousand dollars ($668,000) in STMP funds to Agency towards the Project.
Now, therefore, the Parties hereby agree as follows:
SECTION 1
SCOPE OF WORK
1.1 Scope of Work. Subject to the terms and conditions set forth in this Agreement, Agency shall perform or cause to perform the work described in the scope of work attached as Exhibit A, and incorporated herein (the “Scope of Work”), at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
WCCTAC Cooperative Agreement with City of San Pablo
1.2 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on the third anniversary of the Effective Date, and Agency shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended. The time provided to Agency to complete the services required by this Agreement shall not affect WCCTAC’s right to terminate the Agreement.
1.3 Standard of Performance. Agency shall perform or cause to be performed all services required in Exhibit A according to the standards observed by a competent practitioner of the profession in which Agency’s consultants or contractors are engaged.
1.4 Assignment of Personnel. Agency shall retain only competent personnel to perform the Project to this Agreement. In the event that WCCTAC, in its sole discretion exercised reasonably and in a nondiscriminatory manner, desires the reassignment of any such persons, Agency shall, upon receiving notice from WCCTAC, of such desire of WCCTAC, reassign such person or persons.
1.5 Time is of the Essence. Time is of the essence. Agency shall devote such time to the performance of the Project pursuant to this Agreement as may be reasonably necessary to timely finish the Scope of Work.
1.6 Public Works and Department of Industrial Relations Requirements. Because the Project and Scope of Work described in Exhibit A may include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the Project may constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. In accordance with California Labor Code Section 1773.2, WCCTAC notifies Agency that this Project is subject to the general prevailing wages in the locality in which the services described in Exhibit A are to be performed. Agency shall cause to be paid prevailing wages for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which Agency shall make available on request by contractors and consultants. The Agency, its consultant and contractors engaged in the performance of the Scope of Work described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A. Agency is also required to comply all relevant provisions of the Labor Code applicable to public works, including enforcement of the contractor registration requirements of the California State Department of Industrial Relations.
SECTION 2
FUNDING OBLIGATIONS
2.1 Funding. In accordance with the WCCTAC Master Cooperative Agreement pertaining to the 2019 STMP, and subject to available funding, WCCTAC hereby agrees to fund Agency’s Project in a sum not to exceed six hundred and sixty-eight thousand dollars, ($668,000) notwithstanding any contrary indications that may be contained in Agency or any third-party proposal for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and WCCTAC Cooperative Agreement with City of San Pablo
Agency’s Scope of Work, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail.
The payments specified herein shall be the only payments from WCCTAC to Agency pursuant to this Agreement. Agency shall submit all invoices to WCCTAC in the manner specified herein. Agency shall not bill WCCTAC for duplicate services performed by more than one person.
WCCTAC and Agency acknowledge and agree that funding paid by WCCTAC to Agency under this Agreement is based upon Agency’s estimated costs of funding Agency’s Project, including salaries and benefits of employees, consultants and contractors of Agency. WCCTAC has no responsibility for such contributions beyond the amount set forth under this Agreement.
2.2 Invoices. Agency shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost it incurs for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
b. The beginning and ending dates of the billing period; c. A task summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
d. Such other information as reasonably requested by WCCTAC.
2.3 Monthly Payment. WCCTAC shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. WCCTAC shall have 60 days from the receipt of an invoice that complies with all of the requirements above to pay Agency.
2.4 Total Payment. In no event shall Agency submit any invoice for an amount in excess of the maximum amount of compensation provided in Section 2.1, above, either for a task or for the entire Agreement, unless the Agreement is modified in writing prior to the submission of such an invoice by a properly executed change order or amendment.
2.5 Reimbursable Expenses. Reimbursable expenses shall not include a mark-up from the Agency and are billed as a direct cost. In no event shall expenses be advanced by WCCTAC to the Agency. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.
2.6 Payment of Taxes. Agency and its contractors and consultants are solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
WCCTAC Cooperative Agreement with City of San Pablo
2.7 Payment upon Termination. In the event that WCCTAC or Agency terminates this Agreement pursuant to Section 3.4, WCCTAC shall compensate the Agency for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Agency shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.8 Authorization to Perform Services. The Agency is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement, beyond those set forth in Exhibit A, until receipt of authorization from WCCTAC’s Executive Director or his designee.
2.9 Funding Request. Agency shall submit the request for funds for specific components of the Project, detailing project scope, schedule and proposed funding plan, at least four (4) months in advance of the initial anticipated cash flow need or reimbursement; to submit subsequent requests at least two (2) months in advance of anticipated need; and to apply any funds received under this Agreement to the Project consistent with the terms and conditions of an approved funding appropriation.
2.10 Progress Reports. Progress reports shall be submitted along with the funding request in Section 2.9. Agency shall submit progress reports in a form satisfactory to WCCTAC based on the cost for services performed.
2.11 Records Keeping. All reports, studies, plans, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Agency prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be made available to WCCTAC at WCCTAC’s request with the exception of any documents that are covered by attorney-client or attorney work product privilege.
2.12 Agency Financial Records. Agency shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to WCCTAC under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Agency to this Agreement.
2.13 Inspection and Audit of Records. Any records or documents that Sections 2.11 and
2.12 of this Agreement requires Agency to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request by WCCTAC. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of WCCTAC or as part of any audit of WCCTAC, for a period of 3 years after final payment under the Agreement.
WCCTAC Cooperative Agreement with City of San Pablo
SECTION 3
GENERAL PROVISIONS
3.1 Funding Limitations and Contingencies. If, in response to the Request for Proposal(s), it appears that Project costs including contingency, will exceed the funding set forth in Section 2.1, the Parties agree that they shall meet to revise Scope of Work to meet available funding. Funding of Agency’s Project is strictly contingent upon WCCTAC having received, appropriated and allocated sufficient STMP funds for the Agency’s Project. Funding is also contingent upon WCCTAC receiving a fully executed Agreement from Agency. If the Scope of Work cannot be revised to meet available funding, then WCCTAC reserves the right to terminate this Agreement, or suspend funding, until such time that additional STMP funds are available and allocated to Agency’s Project.
3.2 Acceptance. Upon completion of the Project, Agency shall submit a report documenting that the Project is substantially complete. Agency shall be responsible for filing the appropriate notice of completion for the Project and shall provide a copy to WCCTAC for its records.
3.3 Alternative Dispute Resolution. All disputes that arise in connection with interpretation or performance of the Agreement shall first attempted to be resolved informally by the Parties. If not resolved, prior to instituting legal action, the Parties agree to participate in mediation with a mediator jointly selected by the Parties. If the dispute is not resolved by mediation, then the Parties will retain any and all remedies that they otherwise would have at law or equity.
3.4 Termination. This Agreement shall be subject to termination as follows:
a. Either Party may terminate this Agreement at any time for cause pursuant to a power created by the Agreement or by law, other than for breach, by giving written notice of termination to either Party, which notice shall specify both the cause and the effective date of termination. Notice of termination under this provision shall be given at least ninety (90) days before the effective date of such termination. All obligations that are still executory will be discharged but any right based upon prior breach or performance shall survive. b. This Agreement may be terminated by a Party for breach of any obligation, covenant, or condition by the other Party, upon notice to the breaching Party.
With respect to any breach that is reasonably capable of being cured, the breaching Party shall have thirty (30) days from the date of the notice to initiate steps to cure. If the breaching Party diligently pursues cure, such Party shall be allowed a reasonable time to cure, not to exceed sixty (60) days from the date of the initial notice, unless a further extension is granted by the non-breaching Party.
On termination, the non-breaching Party retains the same rights as a Party exercising its right to terminate under the provisions of Section 3.4, except that the non-breaching Party also retains any remedy for breach of the whole contract or any unperformed balance.
WCCTAC Cooperative Agreement with City of San Pablo
c. By mutual consent of both Parties, this Agreement may be terminated at any time. d. This Agreement may be terminated by WCCTAC if funding for Agency’s Project is no longer available by operation of law, or by action taken by the WCCTAC Board of Directors to reallocate funds.
e. In no event shall the Parties terminate this Agreement if such termination would conflict with, cause a default under, or otherwise violate the terms or conditions of any revenue bonds.
3.5 Waiver of Claims Against WCCTAC. Agency waives all claims by Agency, its directors, supervisors, officers, employees, or agents against WCCTAC, its commissioners, officers, employees, or agents for damages, loss, injury and/or liability, direct or indirect, resulting from Agency’s participation in the Project. Agency’s waiver shall not apply to liability arising from and caused by the sole negligence or willful misconduct of WCCTAC, its commissioners, officers, employees, or agents.
3.6 Indemnity. Agency shall defend, indemnify and hold harmless WCCTAC, its governing board, member agencies, officers, employees, and agents from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, reasonable attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Agency’s performance of any work under this Agreement, except such Liability caused by the sole negligence or willful misconduct of WCCTAC. With respect to any claims brought against Agency by a third party, Agency waives any and all rights of any type to express or implied indemnity by WCCTAC.
3.7 Notices. All notices (including requests, demands, approvals or other communications) under this Agreement shall be in writing. Notice shall be sufficiently given for all purposes as follows:
a. When delivered by first class mail, postage prepaid, notice shall be deemed delivered three (3) business days after deposit in the United States Mail. b. When mailed by certified mail with return receipt requested, notice is effective upon receipt if delivery is confirmed by a return receipt. c. When delivered by overnight delivery by a nationally recognized overnight courier, notice shall be deemed delivered one (1) business day after deposit with that courier.
d. When personally delivered to the recipient, notice shall be deemed delivered on the date personally delivered.
e. The place for delivery of all notices under this Agreement shall be as follows:
If to WCCTAC:
WCCTAC Cooperative Agreement with City of San Pablo
John Nemeth, Executive Director
West Contra Costa Transportation Advisory Committee
6333 Potrero Avenue, Suite 100
El Cerrito, CA 94530
with a Copy to:
Kristopher J. Kokotaylo, Legal Counsel
Meyers Nave
1999 Harrison Street, 9
th Floor
Oakland, CA 94612
If to Agency:
Matt Rodriguez, City Manager
City of San Pablo
1000 Gateway Avenue
San Pablo, CA 94806
3.8 Additional Acts and Documents. Each Party agrees to do all such things and take all such actions, and to make, execute, and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent, and purpose of this Agreement.
3.9 Integration. This Agreement represents the entire agreement of the Parties with respect to the subject matter. No representations, warranties, inducement, or oral agreements have been made by any of the Parties except as expressly set forth in this Agreement.
3.10 Governing Law. The laws of the State of California shall govern this Agreement.
Agency and any consultants and contractors shall comply with all laws, including, but not limited, all statutes, regulations, local ordinances, and decisional authority, applicable to the Scope of Work hereunder.
3.11 Amendment. This Agreement may not be changed, modified, or rescinded except by the written approval, and any attempt of oral modification of this Agreement shall be void and of no effect.
3.12 Independent Contractor. Agency and WCCTAC render their services under this Agreement as independent contractors. None of the agents or employees of either shall be agents or employees of the other.
3.13 Assignment. This Agreement may not be assigned, transferred, hypothecated, or pledged by any Party without the express written consent of the other Party.
3.14 Successors and Assigns. This Agreement shall be binding upon the successors, assignees, or transferees of WCCTAC or Agency as the case may be. This provision WCCTAC Cooperative Agreement with City of San Pablo
shall not be constructed as an authorization to assign, transfer, hypothecate, or pledge this Agreement other than as provided above.
3.15 Severability. Should any part of this Agreement be determined to be unenforceable, invalid, or beyond the authority of either Party to enter into or carry out, such determination shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, so long as the remainder, absent the excised portion, can be reasonably interpreted to give effect to the intentions of the parties.
3.16 Jurisdiction and Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Contra Costa or in the United States District Court for the Northern District of California.
3.17 Attorney’s Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
3.18 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
3.19 Counterparts. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and attested by their respective officers, duly authorized so to act, as of the date set forth in the first paragraph of this Agreement.
City of San Pablo West Contra Costa Transportation
Advisory Committee
Matt Rodriguez, City Manager John Nemeth, Executive Director
Approved as to Form: Approved as to Form:
Lynn Tracy Nerland, City Attorney Kristopher Kokotaylo, Legal Counsel
5047796.1
WCCTAC Cooperative Agreement with City of San Pablo
EXHIBIT A
SCOPE OF WORK
The Agency agrees to:
1. To act as the lead agency and take responsibility for evaluating prospective consultants and contractors retained by Agency and subsequent award of work consistent with this Agreement.
2. To act as the lead agency and retain, as appropriate, consulting services consistent with this Agreement.
3. To be responsible for providing management of consultant and contractor activities, including responsibility for scheduling, budgeting, and oversight of the services, consistent with the scope of the project.
4. To advance or complete all or a portion of following STMP project identified as funding category: Category 16 Local Streets and Intersections.
5. To use the STMP funds for design and construction of the City of San Pablo’s San Pablo Avenue Bridge Replacement and Intersection Improvements at 23rd Street and Road 20.
6. To produce or complete the design and replacement of the deficient existing six-lane bridge at the intersection of San Pablo Avenue/Road 20/23rd Street with a new bridge and make associated intersection realignment and safety improvements for all users. Specific improvements are as follows:
The replacement bridge will incorporate a wider structure that will improve traffic flow including transit and incorporate bicycle/pedestrian access with enhanced paving that is to include a gateway plaza with pedestrian furnishings, lighting and interpretive elements.
This funding will focus on the intersection improvement elements of the project. Three alternatives are being considered on the front end of the project. These include: generally keeping the same geometry with San Pablo Avenue as the through street (Alternative 1), converting the intersection to a three-legged roundabout (Alternative 2) or making the through movements from San Pablo Avenue to 23rd Street (Alternative 3).
Whatever design is approved, the following will be incorporated into the design that will also result in a widened structure.
The existing structure is an irregularly shaped, three-span, 102-foot long concrete bridge.
The bridge has been widened over time to, first to accommodate pedestrians and later to accommodate intersection modifications. The layout of the replacement structure will be largely dictated by the preferred intersection geometrics. This may result in a relatively straight, constant width structure as considered Intersection Alternative 1, or it could result in a bridge with variable width and curved geometry as considered in Intersection Alternatives 2 and 3. Other considerations for the replacement bridge include traffic staging, superstructure depth (to reduce hydraulic impacts), speed of access. The replacement bridge is anticipated to be similar in length to the existing structure.
WCCTAC Cooperative Agreement with City of San Pablo
Each alternative will include solutions for improving bicycle, pedestrian, transit, and auto circulation. As part of the ongoing City of San Pablo Bike and Pedestrian Corridor Study project, Kimley-Horn is assessing how the existing infrastructure can be better assigned to provide higher quality bicycle and pedestrian accommodations. Solutions proposed include eliminating one of the southbound lanes and instead re-allocating space to provide protected Class IV cycle tracks along SPA or narrowing lane widths and shifting the median to provide Class II bike lanes.
7. To complete the over-all project based on the following initial schedule for the project:
Begin Initial Design 2-19-22 (Starting with preparation of Draft Design Criteria)
Initial Design Complete 11-30-23
Begin Environmental Documentation 12-1-23
Complete Environmental Documentation 10-15-25
Award Construction Contract 3-15-26
8. To complete the STMP-funded portion of the project based on the estimated completion date of March 15, 2026