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HomeMy WebLinkAboutContracts & Agreements_80-2019TRANSIT STOP ACCESS IMPROVEMENT PROJECTS FUNDING AGREEMENT BETWEEN THE CITY OF REDLANDS AND OMNITRANS This Transit Stop Access Improvements Project Funding Agreement ("AGREEMENT") is entered into as of this 7th day of May, 2019 ("EFFECTIVE DATE"), by and between the CITY OF REDLANDS, a California general law city ("CITY") and OMNITRANS, a joint powers public transit agency ("OMNITRANS") CITY and OMNITRANS are sometimes individually referred to herein as a "Party" and, together, as the "Parties " RECITALS WHEREAS, OMNITRANS and CITY desire to cooperate and participate in the design and construction of the Transportation Development Act ("TDA") 2013 Transit Stop Access Improvement Project, including concrete boarding areas, sidewalk, and curb ramps ("PROJECT"), at various locations in CITY as shown in Exhibit "A," which is attached hereto and incorporated herein by this reference, and WHEREAS, CITY will use TDA Article 3 grants from the San Bernardino County Transportation Authority ("SBCTA") along with the funding from OMNITRANS described in Section I, Part 2 of this AGREEMENT, and WHEREAS, PROJECT costs including but not limited to the following are reimbursable under this AGREEMENT administration, preliminary engineering and design, plans, specifications, estunates, construction, labor, materials, mobilization, traffic control and safety, permits, legal contract review, and contingencies, in accordance with the terms of the grant funding, and WHEREAS, the PROJECT must be completed before December 31, 2019, in accordance with the terms of the grant funding, unless a time extension is granted by SBCTA, and WHEREAS, OMNITRANS and CITY desire to specify herein the terms and conditions under which the PROJECT shall be funded, designed, and constructed, NOW, THEREFORE, in consideration of the mutual promises contained herein, CITY and OMNITRANS agree as follows AGREEMENT SECTION I OMNITRANS AGREES 1 To attend pertinent meetings set forth by CITY and/or CITY's CONTRACTOR regarding the PROJECT 2 To provide FY2018 State Prop lb funds in an amount not to exceed eight thousand seven hundred forty two dollars ($8,742) to CITY, as a 20% match for the Article 3 grants that CITY was awarded by SBCTA in 2013 2 L Ica\djm\Agreements\Transt1 Stop Access Project Agreement FINAL.docx 3 Within five (5) working days following the receipt of an invoice and accompanying certification, OMNITRANS shall notify CITY as to what, if any, additional supporting documentation and background information will be required CITY shall make all required documentation available to OMNITRANS within five (5) working days, unless stipulated otherwise in writing by OMNITRANS 4 In the second week of the following month after invoice submittal pursuant to Section II Part 5 below, OMNITRANS shall (i) disburse (including through electronic transfer of funds, if so requested and if CITY provides the necessary information) so much of the requested fluids which it reasonably believes it can disburse without violating the terms of either the grant or of applicable regulations, and (n) notify CITY as to why it reasonably believes that it is unable to disburse some or all of the requested funds without violating the terms of either the grant or of applicable regulation 5 OMNITRANS shall have no liability to CITY for any refusal to disburse funds so long as OMNITRANS has a good faith and reasonable belief that such disbursement would constitute a violation of the terms of the grant or of applicable law 6 OMNITRANS shall defend, with counsel reasonably approved by CITY, indemnify and hold CITY, and its elected and appointed officials, officers, employees, and agents free and harmless from any and all liability from loss, damage, or injury to property or persons, including wrongful death, in any manner arising out of or incident to any breach of contract, negligent acts, omissions or willfiil misconduct of OMNITRANS arising out of or in connection with OMNITRANS' performance of this AGREEMENT SECTION II CITY AGREES To complete a PROJECT schedule as set forth in Exhibit "B," which is attached hereto and incorporated herein by this reference, upon the start of the PROJECT, and to prepare a detailed cost estimate and specifications in full compliance with the law for the PROJECT and in accordance with applicable funding requirements 2 Upon point approval of the design plans from OMNITRANS, to award a construction contract in full compliance with all applicable regulations to an experienced contractor or group of contractors (herein referred to as "CONTRACTOR") 3 To provide the right-of-way for construction of the PROJECT, perform all necessary investigations, and complete and obtain all necessary permits for the use of the identified right-of-way for the PROJECT 3 L IcaldimlAgreements\Transtt Stop Access Project Agreement FINAL.docx 4 To provide construction management and related administrative support required during the bid and construction phase of the PROJECT 5 To submit a monthly, itemized invoice to OMNITRANS on or before the 15th day of the month that indicates all costs, fees, and other charges that CITY incurred related to the PROJECT The statement shall describe the amount of services and supplies provided since the initial commencement date, or since the start of the subsequent billing period, as appropriate, through the date of the current statement Each invoice should include the following a The total amount incurred and a statement that 80% of the total amount is being billed to SBCTA (through Article 3 grant) and 20% of the total amount is being billed to OMNITRANS b A detailed breakdown of work provided, as well as a progress report on the status of the PROJECT, in order to provide enough information to OMNITRANS to satisfy funding progress reporting requirements OMNITRANS shall have the right to reasonably request additional information to be included m the breakdown provided by CITY c A detailed breakdown of labor, material, direct, and indirect costs, including backup information such as time sheets, copies of checks, and copies of receipts OMNITRANS shall have the right to reasonably request additional information to be included in the breakdown provided by CITY 6 To certify to OMNITRANS for each disbursement request, that to the best of its knowledge such disbursement will not constitute any violation of either the provisions of the grant or of applicable law and that CITY will use the disbursement as indicated in the disbursement request 7 To insure that all aspects of the PROJECT and any aspect of CITY's participation m this AGREEMENT and the actions contemplated of it by this AGREEMENT will be in compliance with the terms of the grant which is being sought and with all applicable law 8 To provide OMNITRANS with all documentation required for audit purposes and for compliance with State funding requirements 9 CITY shall be responsible for all duties relative to the construction phase of the PROJECT, including complying with all bidding and contract administration requirements, including prevailing wage, relative to construction ofa public works project, with all due diligence and in a skillful and competent manner CITY shall be responsible to OMNITRANS for any errors or omissions in its execution of this AGREEMENT CITY represents and warrants to OMNITRANS that it and/or its CONTRACTOR has or will have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work required to 4 L lcaldjrn\Ageements\Transit Stop Access Project Agreement FINAL.docx complete the PROJECT CITY further represents and warrants that it and/or its CONTRACTOR shall keep in effect all such licenses, permits, and other approvals dunng the term of this AGREEMENT 10 CITY shall keep and maintain all books, papers, records, and accounting records, including but not limited to all direct and indirect costs allocated to the PROJECT, files, accounts, reports, cost proposals with backup data, and all othei material relating to the PROJECT CITY shall, upon request, make all such materials available to OMNITRANS or its designee at any reasonable time during the tenn of this AGREEMENT and for three (3) years from the date of final payment to CITY, for auditing, inspection, and copying Any_contract entered into as a result of this_AGREEMENT, shall contain all of the provisions of this paragraph 11 CITY shall defend, with counsel reasonably approved by OMNITRANS, indemnify and hold OMNITRANS, its officials, officers, employees and agents free and harmless from any and all liability from loss, damage, or injury to property or persons, including wiongful death, in any manner arising out of or incident to any breach of contract, negligent acts, omissions or willful misconduct of CITY arising out of or in connection with CITY's performance of this AGREEMENT and/or the PROJECT 12 CITY shall retain title to PROJECT property and shall maintain it in good working order SECTION III IT IS MUTUALLY AGREED 1 Payment upon Termination All eligible and approved costs incurred during each phase of the PROJECT, as required to complete said phase, shall be reimbursed through the funding identified In addition, should some unforeseen circumstance beyond the control of the parties occur, such as a loss in funding for the PROJECT dunng any phase of the PROJECT, then either party may give written notice of its intent to terminate the PROJECT and all eligible costs to date will be reimbursed through the available funds identified for the PROJECT In the event of such termination, OMNITRANS shall authorize full payment to CITY for all services performed which have been previously approved and actually incuned by CITY at the time of tennination, which amount shall not exceed the reasonable value of the work completed according to the schedule established pursuant to Section I In the event that none of the funding identified in Section 1 of this AGREEMENT is available due to a complete loss in funding for the PROJECT, OMNITRANS will have no obligation to make payment to CITY for any services performed In ascertaining the services actually rendered hereunder up to the date of termination of this AGREEMENT, consideration shall be given to both completed 5 L Icaldjm'Agreements\Transrt Stop Access Project Agreement FINAL.docx work and work in process of completion 2 Term The term of this AGREEMENT shall commence on its EFFECTIVE DATE until PROJECT completion, including submission of all required reports, unless earlier terminated herein by either Party 3 Insurance Each Party hereby represents and covenants that it is an authorized self- insured public entity for purposes of general liability, automobile liability, and workers compensation, and each Party warrants that through its respective program of self-insurance, it has adequate coverage and/or resources to protect against its potential liabilities arising out of the performance of the PROJECT 4 Amendment No alteration or variation of the terms of this AGREEMENT shall be valid unless made in writing and signed by the Parties, and no oral understanding or agreement not incorporated herein shall be binding on either of the Parties 5 No Third Party Beneficiaries Nothing in the provisions of this AGREEMENT is intended to create duties or obligations to, or rights in, third parties not party to this AGREEMENT, or affect the legal liability of any Party to this AGREEMENT by imposing any standard of care with respect to the maintenance of facilities different from the standard of care imposed by law 6 Notices Any notice or other communication required, or which may be given, pursuant to this AGREEMENT, shall be in writing Any such notice shall be deemed delivered (i) on the date of delivery m person, (ii) five (5) days after deposit in first class registered mail, with return receipt requested, (iii) on the actual delivery date if deposited with an overnight courier, or (iv) on the date sent by facsimile, if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail, in each case properly posted and fully prepaid to the appropriate address set forth below, or such othei address as a Party may provide notice in accordance with this section CITY City Clerk City of Redlands 35 Cajon Street P 0 Box 3005 (mailing) Redlands, CA 92373 jdonaldson@cityofredlands org Phone (909) 798-7531 Fax (909) 798-7535 OMNITRANS Scott Graham, CEO/General Manager 1700 W Fifth Street San Bernardino, CA 92411 Scott Graham@omnitrans org Phone (909) 379-7100 Fax (909) 379-7105 7 Successors and Assigns This AGREEMENT shall be binding on and inure to the benefit of the successors and pennitted assigns of the Parties, but may not be assigned by CITY without approval from OMNITRANS 6 L lcaldjm\Agreements\Transit Stop Access Project Agreement TINAL.doex S Prohibited Interests CITY a Solicitation CITY warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for CITY, to solicit or secure this AGREEMENT Further, CITY warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CITY, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this AGREEMENT For breach or violation of this warranty, OMNITRANS shall have the right to rescind this AGREEMENT without liability b Conflict of Interest For the term of this AGREEMENT, no membei, officer or employee of CITY, during the term of his or her service with CITY, shall have any direct interest m this AGREEMENT, or obtain any present or anticipated material benefit arising there from CITY covenants that at the present time it has no interest, and will not have any interest, direct or indirect, which would conflict in any manner with the performance of this AGREEMENT or the PROJECT required hereunder OMNITRANS a Solicitation OMNITRANS warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for OMNITRANS, to solicit or secuie this AGREEMENT Further, OMNITRANS warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee woiking solely for OMNITRANS, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this AGREEMENT Foi breach or violation of this warranty, CITY shall have the right to rescind this AGREEMENT without liability b Conflict of Interest For the term of this AGREEMENT, no member, officer or employee of OMNITRANS, during the term of his or her service with OMNITRANS, shall have any direct interest in this AGREEMENT, or obtain any present or anticipated material benefit arising there from OMNITRANS covenants that at present it has no interest, and will not have any interest, direct or indirect, which would conflict in any manner with the performance of this AGREEMENT of the PROJECT required hereunder 9 Dispute Resolution a In the event of a dispute, claim, or controversy arising from or in relation to this AGREEMENT, the Parties agree to undertake good faith attempts to resolve 7 L 1ca\dpn\Ageements\Transit Stop Access Project Agreement FINAL.docx said dispute, claim, or controversy within seven (7) calendar days after the receipt of the written notice from the Party alleging that a minor dispute, claim, or controversy exists b If any Party, in accordance with this AGREEMENT, requests that an unresolved dispute, claim, or controversy be submitted to litigation, the Parties agree first to undertake good faith efforts to settle the dispute through mediation administered by Judicial Arbitration and Mediation Services, Inc (JAMS) pursuant to its Comprehensive Mediation Rules and Procedures If a Party rejects the resulting mediation determination, within a period of fifteen (I5) calendar days after such decision is deemed received, then, upon written notice by any Party to the other Party, all disputes, claims, questions or differences shall be settled through non-binding arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures as provided in Section VII C , below c Iii the event of a dispute, claim, of controversy arising from or in relation to this AGREEMENT that cannot be resolved pursuant to Section VII B above, or the breach, termination, enforcement, interpretation, or validity thereof (including the determination of the scope or applicability of this AGREEMENT (collectively, the "CONTROVERSY"), the Parties agree to submit the CONTROVERSY to non-binding arbitration conducted by one (I) arbitrator selected in the manner as provided herein Such arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures The arbitrator must be mutually acceptable to the Parties and shall be approved as such in writing prior to commencement of any arbitration proceeding Any award granted pursuant to this section shall be non-binding, advisory, and shall not be entered as a judgment in any court (except on mutual consent of the Parties) The award shall not be cited as evidence or precedent, with any preclusive effect, in any court arbitration, or other proceeding The Parties shall not refer to any arbitration proceeding entered into pursuant to this section or any award, pleadings, briefs, testimony, or process relating to the same in any subsequent proceeding d Compliance with the provisions of this AGREEMENT shall be a condition precedent to any legal action, provided that nothing herein shall limit a Party's right to terminate this AGREEMENT for failure to comply with the insurance provisions herein, default, a lack of PROJECT funding, or an unreasonable and prolonged disruption in service or construction delay caused by a Party or the Parties e The Parties agree to share equally the fees of the mediator, arbitrator, and all costs associated with meditation and arbitration, provided that each Party shall 8 L Ica\djmlAgreenrents\Transit Stop Access Project Agreement FINAL.docx be responsible for its own legal costs, including attorney' fees and the costs associated with experts 10 Default a Failure or delay by a Party to perform any material term or provision of this AGREEMENT shall constitute a default under this AGREEMENT, provided that if the Party who is otherwise claimed to be in default by the other Party commences to cure, correct, of remedy the alleged default within thirty (30) calendar days after receipt of written notice specifying such default and thereafter diligently undertakes efforts to complete such cure, correction, or remedy, such Party shall not be deemed to be in default hereunder The Party claiming that a default has occurred shall give written notice of default to the defaulting Party, specifying the deficiencies causing the alleged default Delay in giving such written notice shall not constitute a waiver of any default nor shall it change the time of default, provided, however, the non -defaulting Party shall have no right to exercise any remedy for a default hereunder without first delivering the written default notice a specified herein b In the event that the defaulting Party fails to commence to cure, correct, or remedy a default within thirty (30) calendar days following receipt of written notice, or thereafter fails to diligently complete such cure, correction, or remedy, a breach of this AGREEMENT shall be deemed to have occurred In the event of a breach the non -defaulting Party may terminate this AGREEMENT through written notice of termination Disputes regarding the facts that may have given rise to termination under this section shall be subject to the dispute resolution provisions provided above, but the right to terminate for such reasons shall not be subject to review 11 Termination Both OMNITRANS and CITY shall retain their rights to terminate this AGREEMENT and the PROJECT, without liability, at any time due to the lack of adequate funding or the lack of or denial of any required approval from any permitting agency In the event that work has commenced on the PROJECT which results in any portion of a right-of-way upon which construction activities have commenced and have not been completed as of the date of determination that funding is insufficient or has otherwise been denied for the PROJECT, OMNITRANS shall use other available sources of funds not already allocated or obligated to repair such rights-of-way to a condition reasonably satisfactory to CITY that allows for vehicular and pedestrian use of any such rights-of-way without any costs to CITY This provision for the completion or restoration of work on rights-of-way shall survive any termination of this AGREEMENT by either OMNITRANS or CITY 12 In the event that any Party to this AGREEMENT, despite its best efforts, cannot for reasons beyond the control of the Party timely satisfy a contingency or condition 9 L lealdjmlAgreements\Transit Stop Access Project Agreement FINAL.docx required by this AGREEMENT, that Party shall provide immediate written notification to the other Party within seven (7) calendar days after the occurrence of the event specifying the reasons for which the requirements cannot be met As soon as practically possible thereafter, the Parties shall meet and confer in good faith to consider the changed conditions and the potentially adverse impacts upon this AGREEMENT The Parties shall work in good faith to resolve the problem and if this meet -and -confer process results m a recommended restructured form of this AGREEMENT, representative of the Parties will recommend such changes as necessary to the individual, Party, or governing body authorized to amend this AGREEMENT Any approval of such restructured AGREEMENT shall be subject to the amendment provisions provided below 13 In addition to specific provisions of this AGREEMENT, performance by either Party hereunder shall not be deemed to be in default, or considered to be a default, where delays ox defaults are due to the force majeure events of war, terrorist, or related terrorist acts, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or lack of transportation, weather -caused delays, inability to secure necessary labor, materials or tools, delays of any contractors, subcontractor, or supplies, which are not attributable to the fault of the Party claiming an extension of time to prepare or acts of failure to act of any public or governmental agency or entity, other than the Parties Delays encountered by either Party in obtaining necessary funding for the PROJECT, governmental actions, reviews, approvals, and permits shall not be deemed to be an enforced delay or a force majeure event pursuant to this section An extension of time for any such force majeure event shall be for the period of the enforced delay and shall commence to run from the date occurrence of the delay, provided, however, that the Party that claims the existence of the delay has first provided the other Party with written notice of the occurrence of the delay within seven (7) calendar days after the commencement of such occurrence or delay A Party's failure to timely submit such notice of the occurrence of the delay pursuant to this section shall be precluded from asserting the occurrence of an enforced delay or force majeure event 14 Except as otherwise expressly provided herein, each Party who files any action or brings any action or proceeding against the other arising from this AGREEMENT, seeks resolution of disputes pursuant to this AGREEMENT or is made a party to any action or proceeding brought by any other person or governmental entity, shall bear its own costs and fees 15 Each Party shall keep fully informed of and in compliance with all applicable laws, rules, and regulations in any manner affecting the performance of this AGREEMENT or any work related to the PROJECT, including all CaI/OSHA requirements, and shall give all notices required by law Each Party shall be liable for its violations of such laws and regulations in connection with this 10 L lcaldjm\Agreements\Transit Stop Access Project Agreement FINAL.docx AGREEMENT or any work related to the PROJECT If either Party performs any of its obligations hereunder knowing that its actions are contrary to such law, rules, and regulations and without giving wntteri notice to the other, the violating Party shall be solely responsible for all costs arising therefrom The violating Party shall defend, indemnify, and hold the other, its officials, directors, officers, employees, volunteers, and agents free and harmless pursuant to the indemnification provisions of this AGREEMENT, from any claim or liability ansing out of any failure or alleged failure to comply with such laws, rules, or regulations 16 Consent and Approvals Whenever review, consent, or approval of either Party must be given or where it can be withheld, that Party must not unreasonably review or unreasonably withhold such consent or approval Approvals required of OMNITRANS or CITY, or any officers, agents, employees, or volunteers of either Party shall not be unreasonably withheld or approval or disapproval shall be given within a reasonable time 17 Entire Agreement This AGREEMENT constitutes the entire understanding of the Parties with respect to the subject matter hereof, and there are no other representations, promises, warranties, covenants or undertakings with respect thereto In witness thereof, the Parties have caused this AGREEMENT to be executed by their respective officers CITY OF REDLANDS OMNITRANS By Denise Davis, Mayor Pro Tem Attest Donaldson, City Clerk 11 L 1ca\djm\Agreements\Transit Stop Access Project Agreement FINAL.docx By ti P Scottt Graham, CEO/General Manager Ommnitrans General Counsel Exhibit A: Project Locations Tn- 117.1 15 NlSnsavan '!'L�.' .'-'SAV H5 184o WE 15 Nosant FFS � NNN v� 1S A1151I3 AINf1 19 HOaf1HO 1$ 35NY Jo SAI.SFRNARDINO AVE 19 a7>31 10 WIN/ICU! 211 SS N3Sdfif '. /1 LS LI 1u 35N'd1:13 r `1S Chlad • 9'` -1G .4YY9f1N 1S WADI 15 VCIVA3N 12 L 1ca\djm\Agrecments\Transit Stop Access Project Agreement FINAL.docx Exhibit B: Project Milestones & Schedule Milestone Completion Date Complete design and any required environmental clearance for project Complete specifications for construction Obtain quotes or bids for construction Award construction contract Start construction Complete construction Complete invoicing To be completed by the Crty upon the start of the Project 13 L Ica\dpn\Agreemcnts\Transit Stop Access Project Agreement fINAL.docx Exhibit C• Omnitrans Funding Letter oak OmniTrans Connecting Our Community May 6 2013 Fred Mousavipour Municipal Utilities & Engineering Director 35 Cajon Street Redlands CA 92373 Subject. TDA Article 3 Call for Projects for Transit Stop Access Improvements City of Redlands' Application for Access Improvements at Transit Stops 17oa W Fifth St San Bernardino, CA 97411 909-379-71oo www.omnitrans.org On behalf of Omnitrans, the public transit operator for the San Bernardino Valley, I am writing to express support for the City of Redlands' application for TDA Article 3 funds for access improvements at transit stops throughout the City All of the stops on the application were identified as stops that need ADA accessibility improvements in Omnitrans' field survey Retrofitting bus stops for ADA accessibility throughout our service area is an important part of our annual program If the City of Redlands is awarded this grant, Omnitrans will provide 20% match funding to the City through a pass-through agreement, from our annual 1% set-aside of FTA 5307 funding for Associated Transit Improvements {formerly known as Transit Enhancements) Omnitrans looks forward to partnering with the City of Redlands on this project. It will provide much needed accessibility improvements for our passengers Should you have any questions, please feel free to contact Anna Rahtz at (909) 379-7256 or anna.rahtz@omnitrans.org Rohan Kuruppu Director of Planning & Development Services 14 L 1ca\djm\Agreements\Transit Stop Access Project Agreement F1NAL.docx