1 COOPERATIVE AGREEMENT
FOR THE
DR. MARTIN LUTHER KING JR. BOULEVARD UNDERPASS
RECONSTRUCTION PROJECT
This Cooperative Agreem ent (“Agreement”) is made and entered into this ________________ day of __________________, 2024, by and between the CITY OF STOCKTON, a Municipal Corporation to the State of California, (“CITY”), and the San Joaquin Regional Rail Commission, a California joint powers agency (“SJRRC”),
W I T N E S E T H
WHEREAS, CITY
plans to undertake Dr . Martin Luther King Jr. Boulevard Underpass Reconstruction project (herein referred to as “PROJECT”) to improve multi-modal access on Dr. Martin Luther King Jr. Boulevard between Grant Street and Airport Way (see Exhibit A attached hereto and made a part hereof); and WHEREAS, City and SJRRC execut ed a cooperative agreement on October 6, 2022, to collaborate on several projects, including the PROJECT, to “improve the transportation grid, aesthetics, reduced blight, noise and emergency response access” (See Section 5 of the Cooperative Agreement) attached hereto as Exhibit B and made a part hereof; and
WHEREAS, CITY plans to begin the PROJECT by pursuing the Project Approval and Environmental Documentation Phase (PA&ED); and WHEREAS, CITY is taking the l ead in completing the PA&ED phase, including preliminary engineering, public outreach, en vironmental approvals, and identification of Right of Way needs; and
WHEREAS, CITY will be jurisdictional lead agency for PROJECT with support from SJRRC as needed; and
WHEREAS, CITY has established an eighteen (18) month schedule to complete the PA&ED Phase of the PROJECT.
NOW, THEREFORE, it is mutually agreed by and between CITY and SJRRC as follows:
1. CITY shall act as jurisd ictional lead for PROJECT.
2. SJRRC will support CITY and the PROJECT to the extent possible, including financial support when possible, seeking out grant funds for future phases of the PROJECT.
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2 3. SJRRC agrees to fund 50% of the PA&ED phase costs, which include actual costs for consultants, and contingencies as needed. CITY and SJRRC will split the actual costs for the PA&ED phase 50%-50%.
4. Currently, the estimated cost of the PA&ED phase is $1,600,000. If costs are expected to exceed $1, 600,000, CITY will confer with SJRRC, and the Parties will agree in principle to a new estimate prior to CITY proceeding. This estimate is based on a negotiated contract proposal with the selected consultant, Mark Thomas and Company as follows:
a. Contract with MTC $1,450,000
b. Contingency $ 150,000
Total $1,600,000
Estimated share per agency $ 800,000
5. Unless otherwise agreed to in writ ing the amount actually paid or reimbursed to CITY will not exceed $300,000 for fiscal year (July – June) 2023-2024 and $500,000 for fiscal year 2024-2025. As additional funding is identified and programmed, this agreement can be amended to update the not to exceed amount.
6. On a monthly basis, the CITY shall submit to SJRRC a detailed invoice reflecting all costs incurred by the City for the PA&ED phase of the PROJECT. Invoices shall clearly identify the 50% portion SJRRC is responsible for reimbursing. Invoices shall be submitted via email to [email protected].
7. SJRRC will reimburse City for 50% of all allowable costs, as described in Section 8 of this Agreement, associated with the PA&ED phase of the PROJECT, and will make its best efforts to pay all invoices within sixty (60) days of an approved invoice. SJRRC shall notify CITY, in writing, of any disputed amounts included in an invoice.
8. All costs charged under this Ag reement by the CITY shall be supported by time records, invo ices, and vouchers, evidencing in proper detail the nature and propriety of the charges. CITY shall also comply with Title 2, Code of Federal Regulations, Part 200 (Uniform Administrative Requirement s for Grants and Cooperative Agreements to State and Local Governments) in the procurement of services, supplies, or equipment. Any direct costs charged for travel shall be in accordance with Cal HR guidelines.
9. CITY will procure and ent er into a contract wit h a consultant for the PA&ED phase. SJRRC agrees to a ssist CITY with selection of EXHIBIT 1
3 consultant. CITY will require any and all contractors, subcontractors, and entities providing goods or se rvices in connection with the PA&ED phase of the PROJECT to agree to comply with all applicable laws, statutes, and regulations.
10. CITY will include SJRRC in progre ss meetings and other meetings as necessary to avoid PROJECT delays.
11. SJRRC shall assist CITY in disc ussions with SJRRC partners, such as Union Pacific Railroad and others as needed to resolve PROJECT issues or impacts if they arise.
12. CITY shall confer with and get concurrence from SJRRC prior to executing any amendments to the c onsultant contract. CITY and SJRRC will split the actual costs for amendments 50%-50%.
13. SJRRC will be responsible for meeting the terms and conditions of all funding sources for the PROJECT. All communication with San Joaquin Council of Governments, Caltrans, and the California Transportation Commission will be through SJRRC.
14. Prior to final payment by SJRR C to CITY, CITY shall provide SJRRC copies of the final documentation including, but not limited to, design drawings, and a final detailed statement of all project costs borne by CITY in support of the PA&ED phase of the PROJECT.
15. Neither SJRRC nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY and/or is agents under or in connection with any work, authority, or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that CITY and/or its agents will fully defend, indemnify, and save harmless SJRRC and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY and/or its agents under this Agreement.
16. Neither CITY nor any officer or empl oyee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by SJRR C and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon SJRRC under this Agreement. It is understood and agreed that SJRRC and/or its agents will fully defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, EXHIBIT 1
4 or other theories or assertions for liability occurring by reason of anything done or omitted to be done by SJRRC and/or its agents under this Agreement.
17. Insurance
a. SJRRC shall have and maintain in full force and effect during the term of this Agreement railr oad liability, or the equivalent, insurance in an amount not less than $2,000,000 per occurrence.
SJRRC shall ensure that CITY, it s officers, officials, employees, and volunteers are named as addi tional insureds on the railroad liability, or the equivalent, insurance policy for the purpose of any claims arising at any time duri ng or after the term of this Agreement with respect to the performance of this Agreement, or any act or omission thereunder. That policy shall also provide for notice to CITY in the event of an y lapse of coverage, except for nonpayment of premium. Evidence of self-insurance on the part of SJRRC will be acceptable to satisfy the insurance
requirements of this section.
b. CITY shall have and maintain in full force and effect during the term of this Agreement the following minimum coverages:
Commercial General Liability Insu rance on an occurrence basis including Bodily Injury & Proper ty Damage Coverage, Premises Coverage, Products & Comple ted Operations Coverage,
Contractual Liability Cover age, and Independent Contractors Liability Coverage with limits not less than the following:
$5,000,000 Gener al Aggregate
$5,000,000 Products & Completed Operations Aggregate
$5,000,000 Each Occurrence
$1,000,000 Personal & Advertising Injury
$100,000 Damage to Premises Rented to You
Such policy shall be endorsed to provide:
Waiver of Subrogation in favor of SJRRC and their
directors, officers, re presentatives, agents, and
employees (CG 24 04 or equivalent).
SJRRC shall be in cluded as Additional Insured to
include on-going and completed operations (CG 20
10 & CG 20 37 or equivalent).
Additional Insured cove rage must be on Primary
and Non-Contributory basis.
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5 Include Contractual Liability – SJRRC
Endorsement (CG 24 17 or equivalent), if
applicable.
Coverage must not e xclude Punitive Damages,
unless prohibited by law.
An Umbrella policy may be utilized to satisfy the
required limits of liability.
Thirty (30) days prior notice of cancellation.
CITY shall maintain Statutor y Workers’ Compensation and Employers’ Liability Insurance for its employees (if any) with minimum limits of not less than:
$1,000,000 Bodily Injury by Accident, Each Accident
$1,000,000 Bodily Injury by Disease, Policy Limit
$1,000,000 Bodily Injury by Disease, Each Employee
Such policy shall be endorsed to provide:
Waiver of Subrogation in favor of SJRRC
and their directors, officers, representatives,
agents, and employees (WC 04 13 or
equivalent)
Alternate Employer Endorsement, if
applicable (WC 00 03 or equivalent)
Thirty (30) days prior notice of cancellation.
CITY shall maintain Business Au to Insurance for all vehicles owned, leased, borrowed, or rented by the CITY with a minimum liability limit of not le ss than $1,000,000 per occurrence (combined single limit).
Such policy shall be endorsed to provide:
Waiver of Subrogation in favor of SJRRC and their
directors, officers, repr esentatives, agents, and
employees (CA 04 44 or equivalent)
SJRRC shall be included as Additional Insured on a
Primary & Non-Contributory basis.
Coverage for Certain Operations in Connection with
SJRRC Endorsement, if applicable (CA 20 70 or
equivalent)
Broadened Pollution coverage, if applicable (CA 99 48 or equivalent)
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6 Thirty (30) days prior notice of cancellation.
CITY shall maintain Umbrella/Excess Liability insurance on an occurrence basis in excess of the underlying insurance described above which is at least as br oad as each and every one of the underlying policies. Umbrella limit s may be used to satisfy limit requirements as long as the total amount of insurance is not less than the limits specified in this Agreement.
$5,000,000 Each Occurrence
$5,000,000 Gener al Aggregate
$5,000,000 Products & Comple ted Operations Aggregate
Such policy shall be endorsed to provide:
Waiver of Subrogation in favor of SJRRC and their
directors, officers, repr esentatives, agents, and
employees on a follow form basis of the underlying
coverages.
SJRRC shall be included as an Additional Insured on a Primary and Non-Contributory basis.
Coverage must not exclude Punitive Damages, unless
prohibited by law.
Thirty (30) days prior notice of cancellation.
If applicable, the CITY shall main tain Professional Liability Insurance with minimum limits of $5,000,000 per occurrence coverage all operations of the CITY.
Such policy shall be endorsed to provide:
Insured’s interest in joint ventures, if applicable.
Coverage must not exclude Punitive Damages, unless
prohibited by law.
Retroactive Date must be prior to the commencement
of work.
Extended Reporting Period of no less than 36 months.
general liability insurance in an amount not less than $5,000,000 per occurrence. CITY shall ensure that SJRRC and its directors, officers, representatives, agents, and employees are named as additional insureds on the general liability insurance policy for the purpose of any claims arising at any time during or after the term of this Agreement with respec t to the performance of this Agreement, or any act or omissi on thereunder. That policy shall EXHIBIT 1
7 also provide for notice to SJRRC in the event of any lapse of coverage and in the event of any claim thereunder. Evidence of self-insurance on the part of CITY will be acceptable to satisfy the insurance requirements of this section.
c. CITY shall cause any consultant or contractor it retains for the performance of any aspect of this Agreement to provide railroad liability or general liability insurance, as applicable, and workers compensation, automobile, and commercial general liability, umbrella/excess, and professional liability insurance coverage that meets all of the requirements of this Agreement. SJRRC, its directors, officers, representatives, agents, and employees shall be included as Additional Insured, on a Pr imary and Non- Contributory basis with Waiver of Subrogation on all insurance policies required for the perform ance of all work under this Agreement.
18. The indemnification obligations under Sections 15 and 16 will not be limited by the existence of any insurance policy procured or maintained by CITY, or by or for any or all CITY-Related Parties, or by SJRRC, or by or for any or all SJRRC-Related Persons, or by any limitation on the amount or type of damages, compensation or benefits payable by or for CITY or by or for any or all CITY PROJECT completion, including other conditions as agreed, unless terminated earlier as provided herein or unle ss otherwise exten ded in writing.
Either Party may terminate this Agreement for convenience by providing the other not less than th irty (30) business days written notice. In the event SJRRC terminat es for convenience, SJRRC will reimburse CITY for any documented expenses incurred as of the date the notice is received by CITY, but not to exceed the total amount of SJRRC’s contribution hereunder.
19. This Agreement shall be effective upon execution date and shall continue until PROJECT completion, including other conditions as agreed, unless terminated earlier as provided herein or unless otherwise extended in wr iting. Either Party may terminate this Agreement for convenience by providing the other not less than thirty (30) business days written notice. In the event SJRRC terminates for convenience, SJRRC will reimburse CITY for any documented expenses incurred as of the date t he notice is received by CITY, but not to exceed the total amount of SJRRC’s contribution hereunder.
20. This Agreement, including any a ttachments or exhibits hereto, constitutes the entire agreement between the Parties concerning the subject matter herein. No promise or representation not expressly set forth herein shall be binding or have any force or effect.
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8 21. Force Majeure. The failure of eith er Party to perform, in whole or in part, any of the obligations of that Party under this Agreement, by reason of the occurrence of acts of terrorism, riots, insurrection or war, strikes or lockouts by third par ties providing labor, material or services under contract to a party, delays caused by another party to this Agreement, third-party litigation or court order, derailments, wrecks or freight embargoes, inability to procure critical materials, unforeseen delays in obtaining any required permits or approvals, unforeseen physical conditions, env ironmental conditions including cultural, archaeological, paleontological, or other protected resources or catastrophic emergencies anywhere within the rail system utilized by that Party, and earthquake, fire, flood, explosion, disaster, tornado, epidemic, pandemic, or other phenomena of nature beyond the power of a party reasonably able to fores ee or to make preparation in defense against, or any other caus e beyond the reasonable control of that Party (hereinafter referred to as (“Force Majeure Occurrence”) shall be excused for all purposes , including time performance; provided, that the Party affected shall promptly begin work when the Force Majeure Occurrence abates and complete the work. However, if the Force Majeure Occurrence has delayed work or increased costs so that PROJECT scope of work cannot be completed as specified in this Agreement, for the cost or in the time or manner specified in the exhibits, that Party need not proceed with completion of work until the Parties have mutually agreed to amend the PROJECT or this Agreement in ways necessary to complete the work hereunder in order to enable the PROJECT scope of work to be completed in the revised manner, for the revised amount and/or in compliance with the revised schedule. In the event of a claimed Force Majeure Occurrence, the affected Party shall promptly notify and consult with the other Party as to how to proceed pursuant to the provisions of this Agreement under the circumstances presented by the Force Majeure Occurrence.
22. Neither Party shall assign this Agreement without prior written consent of the other, which cons ent may be withheld by the other Party in its sole discretion.
23. Neither CITY, nor any or all of its respective directors, officers, representatives, agents, and employees, shall be considered agents of SJRRC.
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9 24. Neither SJRRC, nor any or all of its respective directors, officers, representatives, agents, and employees, shall be considered agents of CITY.
25. Amendment to this Ag reement shall be mutually agreed to between the CITY and SJRRC. The City Manager or designee for CITY and the Executive Director or designee for SJRRC shall have the authority to amend this Agreement by written concurrence of both Parties.
26. Default
a. Failure of either Party to perform its obligations under this Agreement shall constitute a default. The Party, who is not in default, may notify the defaulting Party and demand a cure to the default, which must be cured within thirty (30) days, unless the Parties mutually agree in writ ing otherwise. Failure of the defaulting Party to cure or commence a cure to the default within this period or any agreed extend ed period shall be a breach of this Agreement and shall consti tute cause to allow the non- defaulting Party to terminate this Agreement.
b. Material failure of CITY to properly perform its obligations under this Agreement, in compliance with City, State and Federal laws and regulations and applicable dire ctives, shall constitute a default and SJRRC may elect to terminate this Agreement if CITY fails to cure any such default as provided in subsection 26.a, above.
c. In the event that CITY defaults as provided above, and SJRRC elects to terminate this Agreemen t, CITY shall promptly remit to the SJRRC the full amount of SJRRC funds received.
27. Pursuant to California Government Code Section 8546.7, the Parties shall be subject to the examination and audit of the State Auditor, at the request of CITY or as part of any audit of CITY by the State Auditor, for a period of three (3) years after final payment under this Agreement. The examination and audit shall be confined to those matters connected with the performance of this Agreement, including, but not limited to, the cost of administering the Agreement.
28. CITY will ensure that a descripti on of the foregoing audit rights is included in each subcontract for work under this Agreement, or in an addendum or amendment to each subcontract. The term
"subcontract" as used in this paragraph excludes (1) purchase orders not exceeding $10,000 and (2) subcont racts or purchase orders for public utility services at rates est ablished for uniform applicability to the public.
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10 29. Notices
Any written notice required or permi tted to be given herein shall be made by registered or certified U.S. Mail, Electronic Mail (e-mail), or by personal delivery to the receiving Party at the following addresses, or to such other addresses as eit her Party may from time-to-time designate in writing, during normal business hours:
SJRRC
Stacey Mortensen Executive
Director
949 East Channel Street
Stockton, CA 95202
Phone: (209) 944-6220
Email:
[email protected]
(Invoices)
[email protected] (Project
Related)
CITY
Harry Black, City Manager
425 N. El Dorado Street
Stockton, CA, 95202
Phone: (209) 937-8212
Email:
Notices sent by mail shall be deemed given on the date of the postmark affixed by the United States Post Office. Notices served by personal delivery shall be effective on the date of service.
30. This Agreement may be executed in multiple counterparts, each of which, when so executed and deliver ed, shall be an original but all such counterparts shall together constitute but one and the same instrument. Not all signatures need be on the same counterpart. A facsimile, electronic, or scanned .pdf signature, if the genuine act of a Party, shall be sufficient to bind a Party to this Agreement.
[The balance of this page is intentionally left blank. Signatures of the Parties are on the next page.]
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11 IN WITNESS WHEREOF, this Agr eement has been executed on this ______day of ______, 2024, by the respective parties hereto through their respective authorized officers at Stockton, California, the day, and year first above written.
SAN JOAQUIN REGIONAL RAIL
COMMISSION CITY OF STOCKTON
H A R R Y B L A C K
City Manager
B y
STACEY MORTENSEN
Executive Director
A T T E S T :
APPROVED AS TO FORM:
E L I Z A G A R Z A
C i t y C l e r k
_____________________
JANICE D. MAGDICH
General Counsel
APPROVED AS TO FORM:
L O R I A S U N C I O N
C i t y A t t o r n e y
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