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HomeMy WebLinkAbout2009-342 I (NOTE: COMPANION RESOLUTION CDc/2009-62) , ' 1 2 3 4 5 6 RESOLUTION NO. 2009-342 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING CERTAIN AGREEMENTS AND AUTHORIZING THE MAYOR TO EXECUTE (1) AN AGREEMENT BY AND BETWEEN THE CITY AND CALTRANS FOR COMMUNITY- BASED TRANSPORTATION PLANNING ("CBTP") GRANT PROGRAM FUNDS AND (2) A SUB-RECIPIENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND THE CITY 7 WHEREAS, the Mayor and Common Council of the City of San Bernardino recognizes the 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 need to promote mass transit, the planning and funding of various transportation projects and the implementation of Transit Oriented Development ("TaD") which together will playa major role in the future revitalization efforts to be undertaken by the Redevelopment Agency of the City of San Bernardino ("Agency") both within the downtown area and in other appropriate areas of the City of San Bernardino ("City"); and WHEREAS, the Agency recognizes the benefits to be derived from receiving Community- Based Transportation Planning ("CBTP") Grant Program Funds and seeks to participate with the City with respect to the CBTP Grant Program Funds; and WHEREAS, the CBTP Grant Program Funds are made available by Caltrans to encourage livable/sustainable community concepts with a transportation or mobility objective and promote community identity and quality of life, and the City is eligible to apply to Caltrans for such CBTP Grant Program Funds, and has in fact submitted such application to Caltrans, and upon receipt of such CBTP Grant Program Funds to then make such funds available for administration and use by the Agency as a sub-recipient of the application of the City; and WHEREAS, on March 16, 2009, the Council authorized the submittal of a CBTP Grant application for the development of a TaD Overlay District and designated the Agency as the proposed sub-recipient for the ultimate use of such funds; and WHEREAS, the application as submitted by the City has been selected by Caltrans for funding in the amount of $250,000, and pursuant to the approval letter from Caltrans dated September 14, 2009, this Mayor and Common Council must adopt a Resolution that identifies the 1 P:\Agendas\Resolutions\Resolutions\2009\lO-19-09 CBTP Sub-Recipient Agreement MCC Reso.doc " 2009-342 1 grant request and authorizes a representative of the City to enter into a contract with Caltrans when 2 such contract has been prepared by Caltrans and submitted to the City for execution by such 3 authorized representative. 4 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY 5 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS 6 FOLLOWS: 7 Section 1. The Mayor and Common Council hereby finds and determines that the facts and 8 circumstances set forth in the Recitals hereof are true and correct in all respects. 9 Section 2. The Mayor and Common Council hereby accept the CBTP Grant Program Funds 10 as offered by Caltrans pursuant to the letter from Caltrans dated September 14, 2009, and further 11 authorizes the Mayor as the authorized representative of the City to execute the final form of such 12 contract with Caltrans for the CBTP Grant Program Funds at such time as Caltrans submits the final 13 form of such contract to the City for execution and delivery. The Council approves the form of the 14 Sub-Recipient Agreement with the Agency in the form as attached hereto as Exhibit "A" and 15 authorizes the Mayor on behalf of the City to execute and deliver such Sub-Recipient Agreement 16 together with such non-substantive and technical changes to said Sub-Recipient Agreement for the 17 use and administration of the CBTP Grant Program Funds for the development of a TOD Overlay 18 District within the City. 19 Section 3. This Resolution shall take effect upon its adoption and execution in the manner 20 as required by the City Charter. 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III 2 P:\Agendas\Resolutions\Resolutions\2009\1 0-19-09 CaIP Sub-Recipient Agreement MCC Reso.doc 1 2 3 4 5 6 2009-342 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING CERTAIN AGREEMENTS AND AUTHORIZING THE MAYOR TO EXECUTE (1) AN AGREEMENT BY AND BETWEEN THE CITY AND CALTRANS FOR COMMUNITY- BASED TRANSPORTATION PLANNING ("CBTP") GRANT PROGRAM FUNDS AND (2) A SUB-RECIPIENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND THE CITY I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a joint regular meeting 8 thereof, held on the 19th day of October , 2009, by the following vote to wit: 9 Council Members: Ayes Nays Abstain Absent 10 ESTRADA x - 11 BAXTER x 12 BRINKER x 13 SHORETT x 14 KELLEY x 15 JOHNSON x - 16 MC CAMMACK x 17 Q~);;.~ 18 Rac~ G. Clark, City Clerk 19 20 The foregoing Resolution is hereby approved this ).,..d day o( 21 22 23 24 October , 2009. Approved as to Form: 25 26 By: 27 28 .r enman, City Attorney 3 P:\Agendas\Resolutions\Resolutions\2009\1 0-19-09 CBTP Sub-Recipient Agreement MCC Reso.doc 2009-342 1 EXHIBIT" A" 2 SUB-RECIPIENT AGREEMENT 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 P:\Agendas\Resolutions\Resolutions\2009\lO-19-09 CBTP Sub-Recipient Agreement MCC Reso.doc CDC/2009-62 (2009-342) TRANSIT ORIENTED DEVELOPMENT OVERLAY DISTRICT SUB-RECIPIENT AGREEMENT BY AND BETWEEN CITY OF SAN BERNARDINO AND REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 4832-3636-9156.2832-3636-9156.1 1 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) Community Based Transportation Planning Grant Sub-recipient Agreement This Agreement is entered into this 19th day of October, 2009 ("Agreement"), by and between the City of San Bernardino, a charter city and municipal corporation established and existing pursuant to the Constitution of the State of California, hereinafter referred to as the "City" and the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic, hereinafter referred to as the "Agency" or the "Sub-recipient" and may be collectively referred to as "Parties" or individually referred to as "Party" in this Agreement. WITNESSETH WHEREAS, the City has been awarded a grant in the amount of $250,000 from the State of California Department of Transportation ("Caltrans") for the Community Based Transportation Planning Grant ("Grant"); and WHEREAS, the City and the Sub-recipient have an interest in providing necessary services to and enhancement of the quality of life of its citizens; and WHEREAS, the City and the Sub-recipient recognize that the project herein is eligible under applicable Caltrans regulations; and WHEREAS, the City and the Sub-recipient desire to cooperate in the implementation of the Program by reason of experience, preparation, organization, staffing and facilities to provide for the development of a transit oriented development ("TOD") overlay district within portions of the City; and WHEREAS, the Mayor and Common Council of the City of San Bernardino ("Council") recognize the need to promote mass transit, the planning and funding of various transportation projects and the implementation ofTOD which together will playa major role in the future revitalization efforts to be undertaken by the Sub-recipient both within the downtown area and in other appropriate areas of the City; and WHEREAS, the Agency recognizes the benefits to be derived from receiving Community Based Transportation Planning Grant Program Funds ("Program Funds"); and WHEREAS, the Program Funds are made available by Caltrans to encourage livable/sustainable community concepts with a transportation or mobility objective and promote community identity and quality of life, and the City is eligible to apply to Caltrans for such Program Funds and to then make them available for administration and use by the Agency as a sub-recipient of the Community Based Transportation Planning application ("CBTP Application") of the City; and WHEREAS, on March 16,2009, the Council authorized the submittal of a CBTP Application for the development of a TO D overlay district; and WHEREAS, the City was denoted. as the award recipient and the Agency as the sub-recipient pursuant to such CBTP Application; and 4832-3636-9156.2832-3636-9156.1 2 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009~342) WHEREAS, before an assistance agreement between the City and Caltrans can be executed, an agreement between the City and the Agency must be duly approved and executed. NOW, THEREFORE, in consideration of the mutual covenants herein set forth and the mutual benefits to be derived therefrom, the parties agree as follows: OPERATIVE PROVISIONS 1. Incorporation of Recitals The Recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 2. Sub-recioient's Name The name of the Sub-recipient is identified as the Redevelopment Agency of the City of San Bernardino. Any substitution of name shall require a majority vote of the Sub-recipient's governing body being the Community Development Commission of the City of San Bernardino (the "Commission") and approved by the Council on behalf of the City. 3. Supervision of Sub-recipient A. The individuals designated in Exhibit "B", hereinafter referred to as "City Staff', shall be responsible for the direction of any work to be performed by Sub-recipient and any other consultants or sub-consultants to the Agency under this Agreement. The Sub-recipient shall not undertake any work under the terms of this Agreement, unless instructed to do so by one of the designated City Staff members. No other staff member is authorized by the City to request services from Sub-recipient. B. The Sub-recipient may be required to obtain approvals from the Commission for its activities affecting the procurement of third party services and without any further approval by the Council. 4. Organization of Sub-recipient A. The Sub-recipient's role in this Agreement is to procure services related to the development of a TOD overlay district and the administration of the Grant. B. Sub-recipient Administration. 1. The Sub-recipient is identified as the Redevelopment Agency of the City of San Bernardino. General legal counsel shall be provided by the Agency's existing counsel and the office of the City Attorney of the City. 4832-3636-9156.2832-3636-9156.1 3 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 carp Sub Recipient Agreement.doc CDC/2009-62 (2009-342) 5. Sub-recipient Funding and Support The City has adopted Resolution No. _, dated October 19, 2009 authorizing the Mayor to execute an agreement with Caltrans to receive the following funds which shall be made available to the Sub-recipient to fund the procurement of professional services related to the development of a TOD overlay district and the administration of the Program. Initial amounts allocated to Sub-recipient: Source of Funds: Dollar Amount: Grant $250,000 6. Scope of Sub-recipient Services The Sub-recipient's scope of services pursuant to this Agreement is to procure third party consultant services related to the development of a TOD overlay district and the administration of the Grant. The Sub-recipient shall perform the services as set forth in Exhibit "A" attached hereto and by this reference made a part hereof within the time periods set forth therein. 7. Time of Performance Said services of the Sub-recipient are to commence on or about February 1, 2010, or as soon as practicable thereafter upon execution of an appropriate contract with Caltrans, whichever is the first to occur (the "Effective Date"), and shall continue in full force and effect through and including February 28, 2012. 8. Initial Capital Allocation The Sub-recipient shall be funded through an allocation of $250,000, as indicated by the Grant amounts delineated in Section 5. 9. Record Retention Records, maps, field notes and supporting documents and all other records pertaining to the use of Program Funds disbursed to the Sub-recipient hereunder shall be retained by the Sub-recipient and available to the City for examination and for purposes of performing an audit for a period of five (5) years from the date of expiration or termination of this Agreement or for a longer period, as required by law. Such records shall be available to the City and to appropriate county, state or federal agencies and officials for inspection during the regular business hours of the Sub-recipient. If the Sub-recipient does not maintain regular business hours, then such records shall be available for inspection between the hours of 9 a.m. and 5 p.m. Monday through Friday, excluding federal and state government holidays. In the event of litigation or an audit relating to this Agreement or funds paid to the Sub-recipient by the City under this Agreement, such records shall be retained by the Sub-recipient until all such litigation or audit has been resolved. 4832-3636-9156.2832-3636-9156.1 4 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) 10. Use of Allocated Funds Program Funds shall be used for the purposes set forth in Section 6. 11. Accounting A. The Sub-recipient shall establish and maintain on a current basis a adequate accrual accounting system in accordance with generally accepted accounting principles, practices, and standards. B. At all times, the Chief Financial Officer of the Agency shall maintain the financial books and records of the Sub-Recipient to be established pursuant to this Agreement and maintained by the Agency separate and apart from other Agency financial records and shall set forth all financial activity hereunder as a separate line item in the annual budget of the Agency. 12. Regular Reporting Requirements The Sub-recipient shall follow the Caltrans Grant agreement procedures and requirements for reporting and provide periodic reporting and the monitoring of compliance regarding the expenditures of the Program Funds for all purposes of this Agreement. 13. Authority to Enter Into Agreements The Sub-recipient may not enter into any third party service agreement except with the prior approval of the Commission. Such approval may be granted only at a noticed public meeting of the Commission. 14. Compliance with Laws and Assurances The Sub-recipient hereby assures and certifies that it has complied and will continue to comply with the provisions of the Grant agreement of the City with Caltrans and all applicable federal, state, and local laws, ordinances, regulations, policies, guidelines, and requirements as they relate to acceptance and use of funds for this state-assisted Program. 15. Affirmative Action The Sub-recipient shall make every effort to ensure that all projects funded wholly or in part by Program Funds shall provide equal employment and career advancement opportunities for minorities and women. 16. Discrimination A. No person shall, on the grounds of race, sex, creed, color, religion or national origin, be excluded from participating in, be refused the benefits of, or otherwise be subjected to discrimination in any activities, programs, or employment supported by this Agreement. 4832-3636-9156.2832-3636-9156.1 5 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) B. The Sub-recipient shall not discriminate against any person on the basis of race, color, creed, religion, natural origin, ancestry, sex, marital status or physical handicap in the performance of the Scope of Services of this Agreement. Without limitation, the Sub- recipient hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status or national origin. 17. Changes in Grant Allocation The City, through the Council, may grant additional funds at its discretion for use by the Sub- recipient to assure the successful completion of the Program. 18. Notices All notices herein required shall be in writing. Notices shall be sent by prepaid First Class Mail to the following Address: To the City: City of San Bernardino Attention: Charles McNeely, City Manager 300 North "D" Street San Bernardino, California 92418 Phone: (909) 384-5122 Fax: (909) 384-5138 To the Sub-recipient: Redevelopment Agency of the City of San Bernardino Attention: Emil A. Marzullo, Interim Executive Director 201 North "E" Street, Suite 301 San Bernardino, California 92401 Phone: (909) 663-1044 Fax: (909) 888-9413 19. Assignment This Agreement is not assignable by the Sub-recipient without the express prior written consent of the City, which consent shall be given in the City's sole discretion. Any attempt by the Sub- recipient to assign any performance of the terms of this Agreement shall be null and void and shall constitute a material breach of this Agreement upon the occurrence of which the City may, among its other remedies, and without limitation or prior notice, cancel, terminate or suspend this Agreement. 20. Termination (a) This Agreement may be terminated at any time by either Party upon giving thirty (30) day notice in writing to the other Party. 4832-3636-9156.2832-3636-9156.1 6 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 carp Sub Recipient Agreement.doc CDC/2009-62 (2009-342) 21. Release. Indemnification. and Hold Harmless The Sub-recipient shall defend (if requested by the City), release, indemnify and hold the City, their officers, officials, attorneys, agents, employees, and volunteers, harmless from and against any loss, liability, claim, or damages that may arise or result from activities of the Sub-recipient, its officers, agents, and employees and, shall, at its own costs, expense and risk, defend any and all legal proceedings that may be brought against the City on any claim, demand, or alleged liability, and shall satisfy any settlement or judgment that may be rendered against any of them arising or resulting from activities of the Sub-recipient hereunder, and shall assume liability for any and all direct expense incurred in providing services pursuant to this Agreement and shall assume any and all responsibilities for loss or damage resulting from negligence, injury, illness or disease arising out of the provision of services. The City, however, is obligated to promptly notify the Sub- recipient in writing of any such claim of loss or damage. 22. Insurance Requirements The Sub-recipient shall secure and maintain throughout the term of the Agreement the following types of insurance with limits as shown: A. Statutory Worker's Compensation Insurance. The Sub-recipient shall require the carriers of this coverage to waive all rights of subrogation against the City, its officers, volunteers, employees, contractors and subcontractors. The Sub-recipient shall maintain all California statutory requirements to a One Million Dollars ($1,000,000) limit. B. Comprehensive General and Automobile Liability Insurance. The Sub-recipient shall obtain general liability insurance on a per occurrence basis with a combined single limit of One Million Dollars ($1,000,000); and automobile liability insurance for owned, hired and non-owned vehicles on a per occurrence basis with a combined single limit of One Million Dollars ($1,000,000). Additional insured endorsements are required for general and automobile liability policy coverage. Additional insured shall be listed as: "The City , its officers, officials, attorneys, agents, employees and volunteers" C. Other Requirements and Acceptable Proof of Insurance. 1. All insurance coverage must be maintained throughout the duration of this Agreement. 11. Insurance companies must have an A.M. Best Rating of B+ VII or better. 111. Policy deductibles must be stated for each coverage. Deductibles greater than Five Thousand Dollars ($5,000) must include a letter of credit. IV. Acceptable Proof of Insurance: 4832-3636-9156.2832-3636-9156.1 7 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 carp Sub Recipient Agreement.doc CDC/2009-62 (2009-342) a. A Certificate of Insurance listing all coverage, limits, deductibles and insurers; and blanket endorsements for all applicable coverage if agent has authority to issue it; or b. Binders of insurance for all coverage. Agents must confirm that policy endorsements have been ordered from the respective insurance companies. Upon issuance, policy endorsements and a corresponding Certificate of Insurance listing all insurers and coverage must be submitted to the City. (NOTE: Insurance binders are only valid for thirty (30) days and may need to be reissued if the policy endorsements are still pending. Binders may be issued for a maximum of three, thirty (30) day periods.) The Sub-recipient shall furnish certified copies of all policies and endorsements to the City, evidencing the insurance coverage above required, five business days prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) day prior written notice to the City, and shall maintain such insurance from the time the Sub-recipient commences performance of services hereunder, until the completion of such services. An inventory of such insurance shall be completed by the Sub-recipient and approved by the City prior to the commencement of performance of services hereunder. All policies, with respect to the insurance coverage required above, except for the worker's compensation coverage, shall contain additional insured endorsements naming the City and its officers, agents, employees and volunteers as additional name insured, with respect to liabilities arising out of the performance of services hereunder. 23. Conflict of Interest The Sub-recipient, its agents and employees shall comply with all applicable federal, state, county and City laws and regulations governing conflict of interest. To this end, the Sub-recipient will make available or shall provide copies of all applicable federal, state, county and City laws and regulations governing conflict of interest, to its agents and employees. 24. Program Monitoring The City will monitor the Sub-recipient in the performance of this Agreement. The Sub-recipient shall maintain such property, personnel, financial and other records and accounts as are considered necessary by Caltrans and the City to assure proper accounting for all Program Funds authorized under this Agreement. The Sub-recipient shall permit on-site inspection by the City and/or Caltrans representatives, and ensure that its employees and board members furnish such information, as in the judgment of the City and Caltrans, may be relevant to a question of compliance with contractual conditions and Caltrans directives, or the effectiveness, legality, and achievements of the Program. All the Sub-recipient records, with the exception of confidential client information, shall be made available to representatives of the City and appropriate state agencies. The City Manager or his/her designee will conduct periodic Program progress reviews. These reviews will focus on the extent to which the planned Program has been implemented and measurable goals achieved, the effectiveness of Program management, and the impact of the Program. 4832-3636-9156.2832-3636-9156.1 8 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CSTP Sub Recipient Agreement. doc CDC/2009-62 (2009-342) 25. Religious Proselytizing or Political Activities The Sub-recipient agrees that it will not perform or permit any religious proselytizing or political activities in connection with the performance of this Agreement. Program Funds under this Agreement will be used exclusively for performance of the services required under this Agreement and no funds shall be used to promote any religious or political activities. 26. Audits The Sub-recipient may be required pursuant to the terms and conditions of the Program Funds to arrange for an independent financial and compliance audit annually for each fiscal year funds are received under this Agreement. An audit may also be conducted by State or local funding source agencies as part of the City's audit responsibilities. The results of the independent audit must be submitted to the City within thirty (30) days after completion. Within thirty (30) days after the submittal of audit report, the Sub-recipient shall provide a written response to all conditions or findings reported in said audit report. The response must examine each condition or finding and explain a proposed resolution, including a schedule for correcting any deficiency, within six (6) months after receipt of the audit report. The City and the Agency, and their authorized representatives shall, at all times, have access for the purpose of audit or inspection to any and all books, documents, papers, records, property, and premises of the Sub-recipient, whose staff will cooperate fully with authorized auditors when they conduct audits and examinations of the Program. 27. Counterparts This Agreement may be executed in three (3) counterparts. When executed, each counterpart shall be deemed an original, irrespective of date of execution. Said counterparts shall together constitute one and the same Agreement. 28. Severability Each and every section of this Agreement shall be construed as a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof to certain circumstances shall be declared invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is declared invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 29. Amendment or Modification This Agreement may only be modified or amended by written instrument duly approved and executed by each of the Parties hereto. Any such modification or amendment shall be valid, binding and legally enforceable only ifin written form and executed by each of the Parties hereto, following all necessary approvals and authorizations for such execution. 4832-3636-9156.2832-3636-9156.1 9 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\1D-19-Cl9 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-'342) 30. Governing Law This Agreement shall be governed by the laws of the State of California. Any legal action arising from or related to this Agreement shall be brought in the Superior Court of the State of California in and for the County of San Bernardino. 31. Compliance with Law The Sub-recipient shall comply with all local, state and federal laws, including, but not limited to, environmental acts, rules and regulations applicable to the work to be performed by the Sub- recipient under this Agreement. The Sub-recipient shall maintain all necessary licenses and registrations for the lawful performance of the work required of the Sub-recipient under this Agreement. 32. Non-Waiver Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the same provision or any remaining provisions of this Agreement. 33. Representations of Persons Executing the Agreeme~t The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the respective Party that each purports to represent. 34. Press Releases Press or news releases, including photographs or public announcements, or confirmation of the same related to the work to be performed by the Sub-recipient under this Agreement shall only be made by the Sub-recipient with the prior written consent of the City. 35. Default and Remedies A. Events of Default The occurrence of any of the following shall, after the giving of any notice described therein, constitute a default by Sub-recipient hereunder ("Event of Default"): 1. The failure of Sub-recipient to payor perform any monetary covenant or obligation hereunder or any of the documents executed in connection herewith, without curing such failure within ten (10) calendar days after receipt of written notice of such default from the City (or from any party authorized by the City to deliver such notice as identified by the City in writing to Sub-recipient); 11. The failure of Sub-recipient to perform any nonmonetary covenant or obligation hereunder or any of the documents executed in connection herewith, without curing such failure within thirty (30) calendar days after receipt of written notice of such default from the City (or from any party authorized by the City to deliver such notice as identified by the City in writing to Sub-recipient) specifying the nature of 4832-3636-9156.2832-3636-9156.1 10 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) the event or deficiency giving rise to the default and the action required to cure such deficiency; provided, however, that if any default with respect to a nonmonetary obligation is such that it cannot be cured within a thirty-day period, it shall be deemed cured if Sub-recipient commences the cure within said thirty-day period and diligently prosecutes such cure to completion thereafter. B. Notwithstanding anything herein to the contrary, the herein described notice requirements and cure periods shall not apply to any Event of Default described in the following sentence. V oluntary cessation of the operation of the Project for a continuous period of more than thirty (30) calendar days or the involuntary cessation of the operation of the Project in accordance with this Agreement for a continuous period of more than sixty (60) calendar days, unless such cessation is approved, in writing, by the City. C. Any failure or delay by a party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties under this Agreement are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. D. The City's Remedies Without any prejudice to the other rights of the City pursuant to Section 20, upon the occurrence of an Event of Default hereunder, the City, or an agent of the City, may, in its sole discretion, take anyone or more of the following actions: 1. By notice to Sub-recipient declare that the entire unused amount of the Program Funds must be immediately repaid to the City, and the same shall become due and payable without further demand, protest or further notice of any kind, all of which are expressly waived; 11. Subject to any nonrecourse provisions in this Agreement, take any and all actions and do any and all things which are allowed, permitted or provided by law, in equity or by statute, to enforce performance and observance of any obligation, agreement or covenant of the Sub-recipient under this Agreement or under any other document executed in connection herewith; 111. Cease allowing Sub-recipient access to any Program Funds unless and until the Event of Default (if curable) is cured; IV. Demand reimbursement from the Sub-recipient for any payments made to it by the City for which the contracted work product was not satisfactorily delivered by the Sub-recipient; v. Confiscate any material or other work product purchased or produced by the Sub- recipient for the Project; 4832-3636-9156.2832-3636-9156.1 11 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) VI. Take any and all actions and do any and all things which are allowed, permitted or provided by law, in equity or by statute, to enforce performance and observance of any obligation, agreement or covenant of the Sub-recipient under this Agreement or under any other document executed in connection herewith. E. City Default and Sub-recipient's Remedies Upon fault or failure of the City to meet any of its obligations under this Agreement without curing such failure within thirty (30) calendar days after receipt of written notice of such failure from Sub-recipient specifying the nature of the event or deficiency giving rise to the default and the action required to cure such deficiency, Sub-recipient may, as its sole and exclusive remedies: 1. Bring an action in equitable relief seeking the specific performance by the City of the terms and conditions of this Agreement or seeking to enjoin any act by the City which is prohibited hereunder; and/or 11. Bring an action for declaratory relief seeking j udicial determination of the meaning of any provision of this Agreement. Without limiting the generality of the foregoing, Sub-recipient shall in no event be entitled to, and hereby waives, any right to seek indirect or consequential damages of any kind or nature from the City arising out of or in connection with this Agreement, and in connection with such waiver Sub-recipient is familiar with and hereby waives the provisions of Section 1542 of the California Civil Code which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE MATERIALL Y AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 36. Consequential Damages and Limitation of Liability The City and the Sub-recipient agree that except as otherwise provided in this Section 36, in no event will either be liable to the other under this Agreement for any damages including but not limited to, special damages, loss of revenue, loss of profit, operating costs or business interruption losses, regardless of cause, including breach of contract, negligence, strict liability or otherwise. The limitations and exclusions of liability set forth in this Section 36 shall apply regardless offault, breach of contract, tort, strict liability or otherwise of the Sub-recipient and the City, their employees or subconsultants. 37. Legal Proceedings Should any legal proceedings be commenced to enforce, enjoin, or collect funds or otherwise affect this agreement between the Parties, it shall be filed in San Bernardino County Superior Court. The prevailing party shall be entitled to recover its reasonable legal fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the City shall be considered as "legal fees" for the purposes of this paragraph. 4832-3636-9156.2832-3636-9156.1 12 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) 38. Exhibits The Exhibits to this Agreement, indicated as Exhibits "A" and "B", are an integral part of this Agreement and have each been incorporated herein. The Agreement shall not become effective until such time as the Sub-recipient has properly filled out and fully executed each Exhibit to this Agreement, as required, and the Interim Executive Director or his designee has reviewed. and approved the form and content of each Exhibit. 39. Entire Agreement III III III III III III III III III III III III III III III This Agreement constitutes the entire agreement between the Parties. This Agreement supersedes all prior negotiation, discussions and agreements between the Parties concerning the subject matters covered herein. The Parties intend this Agreement to be the final expression of their agreement with respect to the subjects covered herein and a complete and exclusive statement of such terms. 4832-3636-9156.2832-3636-9156.1 13 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CSTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) IN WITNES S WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first written above. CITY City of San Bernardino, a charter city By: Patrick J. Morris, Mayor Approved as to Form: ~ ~GI 'eN~~ SUBRECIPIENT Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic By: Emil A. Marzullo, Interim Executive Director Approved as to Form: By: Agency Counsel 4832-3636-9156.2832-3636-9156.1 14 P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first written above. CITY City of San Bernardino, a charter city Approved as to Form: By: City Attorney SUBRECIPIENT Redevelopment Agency of the City of San Bernardino, aB public b: co~ politic y:~ Emil A. Marzullo, Interim Executive Director Approved as to Form: By: \~1~ Agency Co sel . NOTE: SIGNED COUNTERPART RETAIN ALL (2) ORIGINAL SIGNATURE PAGES 4832-3636-9156.2832-3636-9156.1 14 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) EXHIBIT" A" Scope of Services Sub-recipient shall be responsible for carrying out the following City activities: procurement of services related to the development of a TOD overlay district and the administration of the Grant. The Program shall be carried out in a manner satisfactory to the City and consistent with this Agreement, any amendments thereto and any standards required as a condition of providing the Program Funds. 4832-3636-9156.2832-3636-9156.1 15 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc CDC/2009-62 (2009-342) EXHIBIT "B" Supervisory Staff Personnel City Staff: Charles McNeely, City Manager T em Rahhal, City Planner 4832-3636-9156.2832-3636-9156.1 16 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\10-19-09 CBTP Sub Recipient Agreement.doc