HomeMy WebLinkAbout2011-142
RESOLUTION NO. 2011-142
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RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING
COOPERATIVE AGREEMENT NO. CH153 WITH SAN BERNARDINO
ASSOCIATED GOVERNMENTS (SANBAG), AND THE CITY OF COLTON FOR
DESIGN, RIGHT- OF-WAY ACQUISITION AND CONSTRUCTION OF A GRADE
SEPARATION ON HUNTS LANE AT THE UNION PACIFIC RAILROAD (UPRR) (SS
04-51).
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and
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directed to execute on behalf of the City, Cooperative Agreement No. Cll153 with San
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Bernardino Associated Governments (SANBAG), and the City of Colton to provide design,
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right of way acquisition and construction services for a grade separation on Hunts Lane at the
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Union Pacific Railroad (UPRR) south of Redlands Boulevard (CIP project no. (SS 04-51),
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attached as Exhibit "A".
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SECTION 2. The authorization to execute the above-referenced agreement is rescinded
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if the parties to the agreement fail to execute it within ninety (90) days of the passage of this
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2011-142
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RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING
COOPERATIVE AGREEMENT NO. CI1153 WITH SAN BERNARDINO
ASSOCIATED GOVERNMENTS (SANBAG), AND THE CITY OF COLTON FOR
DESIGN, RIGHT- OF-WAY ACQUISITION AND CONSTRUCTION OF A GRADE
SEPARATION ON HUNTS LANE AT THE UNION PACIFIC RAILROAD (UPRR) (SS
04-51 ).
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
joint
Common Council of the City of San Bernardino at a regular meeting thereof, held on the
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20th day of
June
,2011, by the following vote, to wit:
8 Council Members:
9 MARQUEZ
10 VACANT
II
BRINKER
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SHORETT
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KELLEY
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JOHNSON
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MC CAMMACK
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AYES
NAYS
ABSTAIN ABSENT
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17 ..a~ J4. ~
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18 City Clerk
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19 The foregoing resolution is hereby approved this ~ day of June ,2011.
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~r
City of San Bernardino
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Approved as to form:
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JAMES F. PENMAN,
City Attorney
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By:
SANBAG'S SIGNATURE PAGE
2011-142
SAN BERNARDINO ASSOCIATED GOVERNMENTS
By:
Attest:
By:
LARRY McCALLON, President
SAN BAG Board of Directors
VICKI WATSON
Clerk of the Board
Aooroved as to Form:
By:
PENNY ALEXANDER-KELLEY
SANBAG/Authority Counsel
Concurrence:
By:
Cl1153
KATHLEEN MURPHY-PEREZ
Contracts Manager
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2011-142
COMMISSION'S SIGNATURE PAGE
SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION
By:
LARRY McCALLON, President
SAN BAG Board of Directors
Attest:
By:
VICKI WATSON
Clerk of the Board
Approved as to Form:
By:
PENNY ALEXANDER-KELLEY
SANBAG/Authority Counsel
Concurrence:
By:
KATHLEEN MURPHY-PEREZ
Contracts Manager
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2011-142
Exhibit A
CITY OF
[STREET ADDRESS]
[CITY], CALIFORNIA [ZIP CODE]
QUIT CLAIM DEED CERTIFICATION
California Government Code 27281
This is to certify that the real property conveyed by the attached instrument dated
, 20_ from the San Bernardino County Transportation Commission, a
California transportation commission, as Grantor to the City of , as Grantee, is
hereby accepted by order of the City Council of the City of , County of
San Bernardino, State of California, as the governing board of said grantee, and consents to the
recordation thereof by its duly authorized officer.
Date:
By:
Name:
Title:
ATTEST:
, City Clerk
City of
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Cl1153
Exhibit "A"
2011-142
COOPERATIVE AGREEMENT
RELATING TO
HUNTS LANE GRADE SEPARATION PROJECT
THIS COOPERATIVE AGREEMENT (this "Agreement") dated as of June 20
2011, is entered into by and among SAN BERNARDINO ASSOCIATED GOVERNMENTS,
acting in its capacity as the San Bernardino County Transportation Authority, the duly
constituted transportation authority for the County of San Bernardino, organized and existing
pursuant to the Constitution and laws of the State of California ("SAN BAG"), SAN
BERNARDINO COUNTY TRANSPORTATION COMMISSION, the duly constituted
transportation commission for the County of San Bernardino, organized and existing pursuant to
the Constitution and laws of the State of California ("Commission"), CITY OF COLTON, a public
body, corporate and politic ("Colton") and CITY OF SAN BERNARDINO, a public body,
corporate and politic ("San Bernardino"). SANBAG, Colton and San Bernardino are hereinafter
individually referred to as a "Party" and collectively referred to as the "Parties." Colton and San
Bernardino are hereinafter collectively referred to as the "Cities."
RECITALS:
A. The Parties are engaged in the design and construction of an overhead grade
separated overpass structure replacing the existing at-grade crossing at the intersection of
Hunts lane and the Union Pacific Railroad Company ("UPRR") railroad tracks in the cities of
Colton and San Bernardino, California (the "Project"). Construction of this overpass structure
will require the complete closure of Hunts lane to traffic for a period of thirteen (13) months and
will require traffic to be detoured to adjacent streets. There will also be short term closures of
City streets and a permanent closure of the connection of Club Center to Hunts lane in the City
of San Bernardino.
B. The Project will include (i) a four (4) lane highway bridge with a single span of
approximately 118 feet and 7 inches in length over the tracks of the UPRR railroad and
approaches thereto; (ii) any and all necessary changes to telephone, signal, fiber optic, oil, gas,
water, sewer, storm drain and electric lines and appurtenances; (iii) all temporary and
permanent railroad work, grading, drainage facilities and access driveways; (iv) all highway
facilities, right-of-way acquisition, preliminary and construction engineering; and (v) any and/or
all other work of every kind and character necessary to accomplish the construction of the
Project. The project will include a 60 calendar day plant maintenance period. Upon completion
of the period and written notification by SAN BAG to each City, maintenance of plants will
become the responsibility of each City for the area within their jurisdiction.
C. The Project is funded with Traffic Congestion Relief Program (TCRP) funds,
Federal Demonstration (DEMO) and Projects of National and Regional Significance (PNRS)
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2011-142
funds, Federal Congestion Mitigation and Air Quality (CMAQ) funds and a project contribution
from UPRR.
D. The Parties now desire to enter into this Agreement for purposes of defining the
roles, responsibilities and obligations of the Parties with respect to design approval, right-of-
way, construction, identification of the Legally Responsible Person (LRP) per the Statewide
Construction General Permit Order Order No. 2009-009-DWQ (CGP) and Project acceptance
and potential cost increase allocation.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as
follows:
1. Incorporation of Recitals. The recitals set forth above are true and correct and
are incorporated herein by this reference.
2. SANBAG ObliQations. SAN BAG agrees:
a. To prepare the plans and specifications for the Project and submit such
plans and specifications to the City Engineers of the Cities of Colton and San Bernardino,
respectively, for prior review and approval.
b. To cooperate on all planning, zoning, environmental approval and
permitting activities required by state law.
c. To act as the Project Manager including the selection and retention of
consultants, construction managers and contractors to perform the work on the Project.
d. To comply with any and all approvals, permits, licenses and other
authorizations required by applicable laws, regulations, rules and ordinances.
e. To fully comply with its obligations under that certain Public Highway
Overpass Crossing Agreement, dated March 21, 2011 (the "UPRR Overpass Agreement"), by
and among UPRR, Colton, San Bernardino and SANBAG.
f. To notify the Cities of all changes to the plans and specifications.
g. With respect to a change order or contract amendment exceeding
$150,000, SANBAG agrees to first provide such change order or contract amendment to Colton
and San Bernardino to review and reasonably concur (through individual designated with this
authority by Colton and San Bernardino, respectively, to review change orders or contract
amendments) prior to SANBAG approval of the change orders or contract amendments which
approval shall not be unreasonably withheld or delayed.
h. To provide written notice to Colton and San Bernardino upon SAN BAG's
determination that the Project is substantially completed in accordance with the plans and
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specifications. For the purposes of this Agreement, "substantially completed" shall mean that
the Project can be reasonably used for its intended purposes, notwithstanding that certain
nonmaterial work remains to be completed, it being understood that SAN BAG shall promptly
pursue the completion of said nonmaterial work.
I. To act as 'Owner" and to file the "Notice of Completion" per California
Civil Code 3092,3094,3097 and 3098.
j. To cooperate in the administration of the storm water pollution prevention
plan per the CGP .
k. Upon completion of construction of Project, SAN BAG shall deliver to each
of Colton and San Bernardino a complete set of reproducible "as-built" plans of the Project.
I. SAN BAG shall notify San Bernardino and Colton of the bids received and
the amounts thereof. Within ten (10) days thereafter, Colton, San Bernardino or SANBAG shall
determine the construction cost of the Project, subject to paragraph 6, hereof.
m. SANBAG shall provide a qualified representative, who shall have the
authority to discuss and resolve issues concerning the Project. Said representative must be
able to resolve issues in a timely manner.
n. With written authorization by both San Bernardino and Colton, SANBAG
shall serve as the LRP for the Project per the CGP, NPDES No. CAS000002, Appendix 5. As
the construction of the Project is being administered by SAN BAG, the control of the contract by
SANBAG does not make either San Bernardino or Colton eligible to be the LRP to sign the
Notice of Intent or their related documents identified in the CGP. This Condition qualifies as a
special circumstance under the CGP, and Colton and San Bernardino may authorize the
controlling agency to be the LRP tor the Project. Colton's and San Bernardino's LRP may
authorize a representative of SAN BAG to be designated the LRP as noted in Appendix 5 of the
CGP.
o. To obtain encroachment permits from Colton and San Bernardino at no
cost.
3. Commission Oblioations. Commission agrees:
a. To convey by quit claim deed to Colton all Project acquired rights-of-way
located within Colton's jurisdictional boundaries upon completion of construction.
b. To convey by quit claim deed to San Bernardino all Project acquired
rights-of-way located within San Bernardino's jurisdictional boundaries upon completion of
construction.
4. Colton Oblioations. Colton agrees:
a. To approve and cause to be signed by its City Engineer the design plans,
which approval shall not be unreasonably withheld or delayed.
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2011-142
b. To review and approve all change orders or contract amendments that
exceed $150,000, which approval shall not be unreasonably withheld or delayed.
c. To accept all Project acquired rights-of-way located within Colton's
jurisdictional boundaries upon completion of construction. The City Council of Colton, by
approval of this Agreement, authorizes and directs the City Manager to execute an acceptance,
in substantially the form attached hereto as Exhibit A, within thirty (30) days of receipt of a quit
claim deed from SANBAG conveying its interests in such acquired rights-of-way.
d. To accept in writing the Project within Colton's jurisdictional boundaries
within thirty (30) days of receipt of written notice from SAN BAG that the Project is substantially
completed as described by subparagraph "h" in Paragraph 2, which acceptance shall not be
unreasonably withheld or delayed. Withholding or delaying acceptance because of nonmaterial
work remaining to be completing shall be deemed unreasonable.
e. To fully comply with its obligations under that certain Agreement, dated
June 21, 2010 (the "Maintenance Agreement"), by and between Colton and San Bernardino
relating to maintenance and repair of the Project.
f. To fully comply with its obligations under that certain UPRR Overpass
Agreement.
g. Any damages or claims occurring after the Project is transferred or
conveyed to Colton shall be Colton's responsibility, except to the extent that such damages or
claims are due to the acts or omissions of any other Party or their agents or contractors
occurring prior to Project transfer or conveyance to Colton, and any such damages or claims are
expressly made subject to Section 7 of this Agreement.
h. Colton shall provide a qualified representative, who shall have the
authority to discuss and resolve issues concerning the Project. Said representative must be able
to resolve issues in a timely manner.
i. Colton shall provide written authorization that SAN BAG shall serve as the
LRP for the Project per the Statewide CGP, NPDES No. CAS000002, Appendix 5, as described
in Paragraph 2, subparagraph "n".
5. San Bernardino Obliaations. San Bernardino agrees:
a. To approve and cause to be signed by its City Engineer the design plans.
b. To review and approve all change orders or contract amendments
exceeding $150,000, which approval shall not be unreasonably withheld or delayed.
c. To accept all Project acquired rights-of-way located within San
Bernardino's jurisdictional boundaries upon completion of construction. The City Council of San
Bernardino, by approval of this Agreement, authorizes and directs the City Clerk to execute an
acceptance, in substantially the form attached hereto as Exhibit A, within thirty (30) days of
receipt of a quit claim deed from SANBAG conveying its interests in such acquired rights-of-
way.
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d. To accept in writing the Project within San Bernardino's jurisdictional
boundaries within thirty (30) days of receipt of written notice from SAN BAG that the Project is
substantially completed as described by subparagraph "h" in Paragraph 2, which acceptance
shall not be unreasonably withheld or delayed. Withholding or delaying acceptance because of
nonmaterial work remaining to be completing shall be deemed unreasonable.
e. To fully comply with its obligations under the Maintenance Agreement
relating to maintenance and repair of the Project.
f. To fully comply with its obligations under the UPRR Overpass Agreement.
g. Any damages or claims after the Project is turned over to the City shall be
the City's responsibility.
h. SAN BERNARDINO shall provide a qualified representative, who shall
have the authority to discuss and resolve issues concerning the PROJECT. Said representative
must be able to resolve issues in a timely manner.
i. SAN BERNARDINO shall provide written authorization that SANBAG
shall serve as the LRP for the project per the Statewide CGP, NPDES No. CAS000002,
appendix 5 as described in Paragraph 2, subparagraph "n".
6. FundinQ.
a. Each Party expressly acknowledges and agrees that the performance of
obligations specified in Sections 2, 4 and 5 hereof are subject to the appropriation of resources
by the California State Legislature, the State Budget Act authority, and the allocation of funds by
the California Transportation Commission, including TCRP funds and is further subject to the
appropriation of resources by the United States Congress and the allocation of funds by the
Department of Transportation, including DEMO, PNRS, and CMAQ funding.
b. Each Party expressly acknowledges and agrees that the program funding
limit for right of way acquisition is $5,500,000 and the program funding limit for construction and
construction management (and contingencies) is $29,125,000 for a total project funding of
$34,625,000. The Parties further agree to meet and confer in good faith to determine how to
resolve any potential cost overruns beyond the respective program funding limits.
c. If Colton, San Bernardino or SANBAG, requests additional work that
isbeyond the scope of the original Project, said work will be paid solely by the agency
requesting the work.
d. If, upon opening of bids, it is found that a cost overrun exceeding the
estimated Project costs will occur, SANBAG shall not award any contracts for the Project.
Rather Colton, San Bernardino and SANBAG shall endeavor to agree upon an alternative
course of action, including re-bidding of the Project. If, after thirty (30) days, an alternative
course of action is not mutually agreed upon in writing, this Agreement shall be deemed to be
terminated by mutual consent.
7. Indemnification. To the fullest extent permitted by law, each Party agrees to
save, indemnify, defend, and hold harmless all other Parties to this Agreement from any and all
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liability, claims, suits, actions, arbitration proceedings, administrative proceedings, and
regulatory proceedings, losses, expenses, or any injury or damage of any kind whatsoever,
whether actual, alleged or threatened, including attorney fees, court costs, and any other costs
of any nature without restriction incurred in relation to, as a consequence of, or arising out of,
the performance of this Agreement by such indemnifying Party. Following a determination of
the percentage of fault and or liability by agreement between the Parties or by a court of
competent jurisdiction, the Party responsible for liability to the other Parties will indemnify each
of the other Parties to this Agreement for the percentage of liability determined. This section
shall survive expiration or termination of this Agreement, and shall survive the transfer or
conveyance of the Project to Colton and San Bernardino.
8. Term of Aareement. This Agreement shall become effective upon execution by
the Parties and continue in full force and effect through completion of construction of the
Project, which is anticipated to be before December 31, 2016. Notwithstanding any other
provision herein, to the extent consistent with the terms and obligations hereof, any Party may
terminate this Agreement at any time, with or without cause, by giving thirty (30) calendar days
written notice to all the other Parties. In the event of a termination, each Party shall remain
liable for any costs or other obligations it may have incurred under the terms of the Agreement
prior to termination.
9. Default. If any Party breaches or fails to comply with any of the covenants,
terms, or conditions of this Agreement, any non-breaching Party may provide a written notice of
default to the breaching Party. If the breaching Party has not cured such default within thirty
(30) calendar days following receipt of such notice, or such longer period as the non-breaching
Party may allow, the non-breaching Party may terminate this Agreement and/or may exercise
any remedy available at law or in equity. A Party would not be in breach if the obligation
reasonably required more than 30 days to complete performance and the party commenced
performance within the 3D-day period and thereafter diligently pursued completion of
performance.
10. Miscellaneous.
(a) Governing Law. Except on subjects preempted by Federal law, this Agreement
shall be governed by and construed in accordance with the laws of the State of California.
(b) Headings. The Section headings in this Agreement are for convenience only and
shall not be used for any purpose in the interpretation of this Agreement.
(c) Severability. If any clause or provision of this Agreement is illegal, invalid, or
unenforceable under applicable present or future laws, then it is the intention of the Parties that
the remainder of this Agreement shall not be affected but shall remain in full force and effect.
(d) Exhibits. All of the exhibits attached to this Agreement are hereby incorporated
by this reference.
(e) Relationship of the Parties. Each Party is and shall at all times be and remain
independent from the other Parties hereto and shall not be deemed an agent of any other Party.
Nothing contained herein shall have the effect of creating a joint venture or partnership between
or among any of the Parties hereto. No Party shall have any right or power to obligate or bind
any other Party in any manner whatsoever. This Agreement is not intended and shall not be
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construed to create any beneficiary rights in any individual or entity not a party hereto. None of
the Parties hereto is a fiduciary of any other Party.
(f) Amendments. This Agreement cannot be modified or amended In any way
except in writing, signed by the Parties hereto.
(g) Notices. Any notice required or authorized to be given hereunder or any other
communications between the Parties provided for under the terms of this Agreement shall be in
writing, unless otherwise provided, and shall be served personally, by reputable express courier
service, facsimile transmission or certified United States mail addressed to the relevant Party at
the address stated below or at any other address notified by that Party to the other as its
address for service. Any notice so given personally, by express courier service or certified
United States mail shall be deemed to have been served and received upon delivery, and any
notice so given by facsimile transmission shall be deemed to have been served and received on
dispatch. As proof of such service and receipt, it shall be sufficient to produce a receipt showing
delivery by personal service, by express courier service or certified United States mail, or an
activity report of the sender's facsimile machine showing the correct facsimile number of the
Party to whom notice is served and the correct number of pages transmitted. The Parties'
addresses for service are:
If to SAN BAG: Deborah Barmack
Executive Director
1170 West Third Street, Second Floor
San Bernardino, CA 92410-1715
If to Commission: Deborah Barmack
Executive Director
1170 West Third Street, Second Floor
San Bernardino, CA 92410-1715
If to Colton: Rod Foster
City Manager
650 N. La Cadena Drive
Colton, CA 92324
If to San Bernardino: Charles McNeely
City Manager
300 N. "0" Street, 6th Floor
San Bernardino, CA 92418-0001
(h) Entire Agreement. This Agreement constitutes a single, integrated, written
contract expressing the entire agreement of the Parties on the subjects addressed herein. No
covenants, agreements, representations, or warranties of any kind whatsoever have been made
by any Party hereto, except as specifically set forth herein. All prior discussions and
negotiations on the subjects addressed herein have been and are merged and integrated into,
and superseded by, this Agreement.
(i) Waivers. Any waiver, modification, consent, or acquiescence with respect to any
provision of this Agreement shall be set forth in writing and duly executed by or on behalf of the
Party to be bound thereby. No waiver by any Party of any breach hereunder shall be deemed a
waiver of any other or subsequent breach.
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U) No Presumption Against Drafting Party. This Agreement and the provIsIons
contained therein shall not be construed or interpreted for or against any Party because that
Party drafted or caused its legal representative to draft any of the Agreement's provisions.
(k) Authority. Each individual executing this Agreement hereby represents and
warrants that he or she has the capacity set forth on the signature pages with full power and
authority to bind the Party on whose behalf he or she is executing the Agreement.
(I) Assignment. This Agreement shall be binding upon and inure to the benefit of
each of the Parties hereto and to their respective transferees, successors, and assigns. No
Party may assign its rights or obligations under this Agreement to a third party without the
written consent of the other Parties, except where assignment occurs as a result of a sale or
transfer of all or substantially all of a Party's assets pursuant to merger, sale, consolidation,
combination, or order or decree of governmental authority.
(m) No Third Party Beneficiaries. Enforcement of the terms of this Agreement shall
be reserved to the Parties, and nothing contained in this Agreement shall provide any claim or
right of action for enforcement to any other Party.
(n) Time of Essence. Time is of the essence with regard to all dates and time
periods set forth or referred to in this Agreement.
(0) No Partnership. Notwithstanding any other provision of this Agreement, the
Parties hereto shall not be deemed or constituted to be partners or joint ventures or agents of
one another for any purpose, and no Party shall be liable for any obligation of the other Party.
(p) Counterparts. This Cooperative Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and together shall constitute one and
the same agreement, with one counterpart being delivered to each Party.
(q) Recitals. The recitals to this Agreement are true and correct and are
incorporated into this Agreement by this reference as though set forth fully herein.
[SIGNATURES ON FOllOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives all as of the date and year first written
above.
CITY'S SIGNATURE PAGE
CITY OF COLTON
BY:~
Rod Fost~r, City Manager
City of Cohon
By:
,1
.l
,./"
Attest:
/-
Approved as to Form:
By:
~
torney
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2011-142
CITY'S SIGNATURE PAGE
CITY OF SAN BERNARDINO
By:
Attest:
By:
tf:M~-<, ~~~LJd"l-
achel Clark, City Clerk /JL~i!h. t!4 (! U~
City of San Bernardino "--F-- (J 0 I
Approved as to Form:
By:
es F. Penman, City Attorney
C y of San Bernardino
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SANBAG'S SIGNATURE PAGE
SAN BERNARDINO ASSOCIATED GOVERNMENTS
By:
)227L
VICKI WATSON
Clerk of the Board
Attest:
By:
By:
/--------
]
4')
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C11153
COMMISSION'S SIGNATURE PAGE
SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION
By:
CALLON, President
Board of Directors
Attest:
By:
j)t?21L
VICKI WATSON
Clerk of the Board
Approved as to Form:
By:
By:
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Exhibit A
CITY OF
[STREET ADDRESS]
[CITY], CALIFORNIA [ZIP CODE]
QUIT CLAIM DEED CERTIFICATION
California Government Code 27281
This is to certify that the real property conveyed by the attached instrument dated
, 20_ from the San Bernardino County Transportation Commission, a
California transportation commission, as Grantor to the City of , as Grantee, is
hereby accepted by order of the City Council of the City of , County of
San Bernardino, State of California, as the governing board of said grantee, and consents to the
recordation thereof by its duly authorized officer.
Date:
By:
Name:
Title:
ATTEST:
, City Clerk
City of
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