HomeMy WebLinkAboutCDC/2009-62
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(NOTE: COMPANION RESOLUTION 2009-342)
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RESOLUTION NO. CDC/2009-62
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE A SUB-RECIPIENT AGREEMENT BY AND BETWEEN THE
AGENCY AND THE CITY OF SAN BERNARDINO (COMMUNITY-BASED
TRANSPORTATION PLANNING GRANT PROGRAM)
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WHEREAS, the Community Development Commission of the City of San Bernardino
8 ("Commission") recognizes the need to promote mass transit, the planning and funding of various
9 transportation projects and the implementation of Transit Oriented Development ("TOD") which
10 together will playa major role in the future revitalization efforts to be undertaken by the
11 Redevelopment Agency of the City of San Bernardino ("Agency") both within the downtown area
12 and in other appropriate areas of the City of San Bernardino ("City"); and
13 WHEREAS, the Agency recognizes the benefits to be derived from receiving Community-
14 Based Transportation Planning ("CBTP") Grant Program Funds and seeks to participate with the
IS City with respect to the CBTP Grant Program Funds; and
16 WHEREAS, the CBTP Grant Program Funds are made available by Caltrans to encourage
17 livable/sustainable community concepts with a transportation or mobility objective and promote
18 community identity and quality of life, and the City is eligible to apply to Caltrans for such CBTP
19 Grant Prograru Funds, and has in fact submitted such application to Caltrans, and upon receipt of
20 such CBTP Grant Program Funds to then make such funds available for administration and use bv
21 the Agency as a sub-recipient of the application of the City; and
22 WHEREAS, on March 16, 2009, the Council authorized the submittal of a CBTP Grant
23 application for the development of a TOD Overlay District and designated the Agency as the
24 proposed sub-recipient for the ultimate use of such funds; and
25 WHEREAS, the application as submitted by the City has been selected by Caltrans for
26 funding in the amount of $250,000, and pursuant to the approval letter from Caltrans dated
27 September 14,2009, this Commission must adopt a Resolution that identifies the grant request and
28 authorizes the Interim Executive Director of the Agency to enter into a Sub-Recipient Agreement
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CDC/2009-62
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2 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
3 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
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5 Section 1. The Commission hereby finds and determines that the facts and circumstances
6 set forth in the Recitals hereof are true and correct in all respects.
7 Section 2. The Commission hereby approves the form of the Sub-Recipient Agreement with
8 the City in the form as attached hereto as Exhibit "A" and authorizes the Interim Executive Director
9 of the Agency on behalf of the Agency to execute and deliver such Sub-Recipient Agreement
10 together with such non-substantive and technical changes to said Sub-Recipient Agreement for the
1l use and administration of the CBTP Grant Program Funds for the development of a TOO Overlay
J2 District within the City.
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Section 2.
This Resolution shall take effect from and after its date of adoption by this
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE A SUB-RECIPIENT AGREEMENT BY AND BETWEEN THE
AGENCY AND THE CITY OF SAN BERNARDINO (COMMUNITY-BASED
TRANSPORTATION PLANNING GRANT PROGRAM)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
Development Commission of the City of San Bernardino at a joint regular
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meeting
thereof, held on the 19th day of
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October
,2009, by the following vote to wit:
Abstain
Absent
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~
Secretary
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The foregoing Resolution is hereby approved this d 6't:/" day of October
,2009.
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Patrick . Morris, Chair son
ity Development C~;nmission
of the City of San Bernardino
24 Approved as to Form:
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Agenc 0 sel
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EXHIBIT "A"
SUB-RECIPIENT AGREEMENT
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CDC12009-62
(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
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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
ofthe 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 ofthe
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 oflife, 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 TOD 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
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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
I. 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-recipient'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 ofthe 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 ofthird 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
ofa TOD overlay district and the administration of the Grant.
B. Sub-recipient Administration.
l. 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 ofthe City Attorney of the City.
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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
TOO overlay district and the administration of the Program.
Initial amounts allocated to Snb-reciDient:
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 TOO 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 CaDital 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 of9 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.
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10. Use of Allocated Funds
Program Funds shall be used for the purposes set forth in Section 6.
II. 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 [mancial 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. Authoritv 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.
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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 9240 I
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 ofthis 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.
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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
ofthis 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.
H. Insurance companies must have an A.M. Best Rating of B+ VII or better.
HI. 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:
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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 ofthis 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 plarmed Program has been implemented and
measurable goals achieved, the effectiveness of Program management, and the impact of the
Program.
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25. Religious Proselvtizing 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 ofthe 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. Severabilitv
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 if in written form and executed by each of the Parties hereto,
following all necessary approvals and authorizations for such execution.
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30. Governing Law
This Agreement shall be governed by the laws of the State ofCalifomia. Any legal action arising
from or related to this Agreement shall be brought in the Superior Court ofthe State of California
in and for the County of San Bernardino.
31. Comoliance 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. Reoresentations of Persons Executing the Agreement
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);
ll. The failure of Sub-recipient to perform any nonmonetary covenant or obligation
hereunder or any ofthe 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
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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. Voluntary 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;
n. 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;
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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 ofthe 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 ofthis Agreement or seeking to enjoin any act by the City
which is prohibited hereunder; and/or
n. 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
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
36. Consequential Damages and Limitation of Liabilitv
The City and the Snb-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 ofliability set forth in this Section 36 shall apply regardless of fault,
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 ofthe 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.
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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
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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.
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IN WITNESS WHEREOF, the Parties have caused this Agreementto be executed as of the day and
year first written above.
CITY
City of San Bernardino, a charter city
BY~~
Approved as to Form:
By:
City Attorney
SUBRECIPIENT
Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
c::;;. _
By:
Emil A. Marzu ,nterim Executive Director
Approved as to Form:
By:
\: / A~~L
Agency u el
SIGNED COUNTERPART
RETAIN ALL (2) ORIGINAL SIGNATURE PAGES
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as ofthe day and
year first written above.
CITY
City of San Bernardino, a charter city
By:
Patrick J. Morris, Mayor
Approved as to Forn1:
{.r JCr~ /4i_
SUBRECIPIENT
Redevelopment Agency of the City of San Bernardino.
a public body, corporate and politic
By:
Ernil A. Marzullo, Interim Executive Director
Approved as to Form:
Bv:
Agency Counsel
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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 TOO 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.
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EXHIBIT "B"
Supervisory Staff Personnel
City Staff:
Charles McNeely,
City Manager
T em Rahhal,
City Planner
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