HomeMy WebLinkAbout2012-276 I RESOLUTION NO. 2012-276
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING
EXECUTION OF A COOPERATIVE AGREEMENT WITH THE COUNTY OF SAN
3 BERNARDINO FOR CITRUS STREET AND STERLING AVENUE STORM DRAIN
4 IMPROVEMENTS.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
6
7 SECTION 1. The City Manager is hereby authorized and directed to execute a
8 Cooperative Agreement between the County of San Bernardino and the City of San
9 Bernardino for Citrus Street and Sterling Avenue Storm Drain Improvements, a copy of which
10 is attached and incorporated herein as Attachment"A".
11 SECTION 2. The authorization to execute the above-referenced agreement is
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13 rescinded if the parties to the agreement fail to execute it within ninety (90) days of the
14 passage of this resolution.
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2012-276
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING
EXECUTION OF A COOPERATIVE AGREEMENT WITH THE COUNTY OF SAN
2 BERNARDINO FOR CITRUS STREET AND STERLING AVENUE STORM DRAIN
IMPROVEMENTS.
3
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
5 and Common Council of the City of San Bernardino at a joint regular meeting
6 thereof,held on the 19thday of November 2012, by the following vote,to wit:
7
Council Members: AYES NAYS ABSTAIN ABSENT
8
9 MARQUEZ x
10 JENKINS x
11 VALDIVIA x
12 SHORETT x
13
KELLEY x
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JOHNSON x
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16 MCCAMMACK x
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18 Georgdm HanngOtity Clerk
19 The foregoing resolution is hereby approved this a,QT-)�-day of November , 2012.
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tric J M
22 . orns r
, a o
City o San Bernardino
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Approved as to form:
24 JAMES F. PENMAN,
25 City Attorney
26 B c�Lsf
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2012-276
FOR COUNTY USE ONLY
V17771 6a New FAS Vendor Code Dept. Connttract Number
El Change vjI/
GOUN�y_ / //-F8-3
�BE' "DIN• ��
"� `• ❑ Cancel
ePro Vendor Number ePro Contract Number
County Department Dept. Orgn. Contractor's License No.
Public Works-Transportation TRA TRA
County Department Contract Representative Telephone Total Contract Amount
County of San Bernardino Eric D.Jacobsen, Supervising Transportation
(909)387-8166 $37,700
Analyst
F A S Contract Type
® (Revenue I—I Encumbered 171 Unencumbered ri Other:
STANDARD CONTRACT If not encumbered or revenue contract type,provide reason:
Commodity Code Contract Start Date Contract End Date Original Amount Amendment Amount
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No Amount
SAA TRA TRA 9800 18H14495 $ 107,000
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
I I
Project Name Estimated Payment Total by Fiscal Year
STERLING AVENUE FY Amount I/D FY Amount I/D
Culvert Replacement
THIS CONTRACT is entered into in the State of California by and between the County of San Bernardino, hereinafter called
the County, and
Name
CITY OF SAN BERNARDINO hereinafter called CITY
Address
300 North "D" Street
San Bernardino. CA 92418-001
Telephone Federal ID No.or Social Security No.
(909) 384-5211
IT IS HEREBY AGREED AS FOLLOWS:
WITNESSETH
WHEREAS, the County of San Bernardino (hereinafter referred to as "COUNTY") and the
City of San Bernardino (hereinafter referred to as "CITY") desire to cooperate and jointly participate
in a project to install a culvert under Sterling Avenue at Citrus Street and upgrade one pedestrian
access ramp on the northeast corner of Sterling Avenue at Citrus Street (hereinafter referred to as
"PROJECT"); and
WHEREAS, the PROJECT is partially in the unincorporated area of the COUNTY and
partially within the incorporated area of the CITY, and will be of mutual benefit to the COUNTY and
CITY; and
WHEREAS, the total project cost is estimated to be $107,000; and
Auditor-Controller/Treasurer Tax Collector Use Only
❑Contract Database ❑FAS
Input Date Keyed By
ATTACHMENT A Page 1 of 8
2012-276
•
WHEREAS, PROJECT costs are partially (64.77%) in the unincorporated area of the
COUNTY and partially (35.23%) within the incorporated area of the CITY, and will be of mutual
benefit to the COUNTY and CITY; and
WHEREAS, the costs are proportioned based on work done in each party's jurisdiction; and
WHEREAS, the COUNTY desires to provide financial assistance to the CITY to design and
construct the PROJECT; and
WHEREAS, the COUNTY's share toward PROJECT cost is estimated at $69,300 (64.77%
of PROJECT) and the CITY's share of PROJECT cost is estimated at $37,700 (35.23% of
PROJECT), as more particularly set forth in Exhibit "A", attached hereto and incorporated herein by
reference; and
WHEREAS, COUNTY desires to provide CITY with financial assistance in providing the
CITY's share of PROJECT in accordance with Streets and Highways Code section 1680, et seq.,
as there is a general COUNTY interest in the PROJECT; and
WHEREAS, Streets and Highways Code sections 1685 and 1803 authorize CITY to contract
with COUNTY for the maintenance, construction or repair of CITY streets and roads, if the
legislative body of CITY determines that it is necessary for the more efficient maintenance,
construction, or repair of streets and roads; and
WHEREAS, the legislative body of CITY determines that it is necessary for the more efficient
maintenance, construction, or repair of streets and roads within CITY to contract with COUNTY for the
PROJECT; and
WHEREAS, COUNTY and CITY desire to set forth responsibilities and obligations of each
as they pertain to such participation and to the design, construction, and funding of the PROJECT.
NOW, THEREFORE, IT IS MUTUALLY AGREED as follows:
1.0 COUNTY AGREES TO:
1.1 Act as the Lead Agency in the design and construction of the PROJECT.
1.2 Provide plans and specifications, environmental documents, and all necessary construction
engineering for the PROJECT for CITY's review and approval.
1.3 Obtain a no-cost permit from the CITY for work performed within the CITY's right-of-way.
1.4 Advertise, award and administer the construction contract for the PROJECT, in accordance
with the provisions of the California Public Contract Code applicable to counties.
1.5 Pay its proportionate share of the PROJECT costs estimated at $69,300, which shall be
64.77% of estimated PROJECT costs (see Exhibit A).
1.6 Pay CITY's proportionate share of the PROJECT costs estimated at $37,700, which shall be
35.23% of estimated PROJECT costs (see Exhibit A).
1.7 Submit to the CITY, following completion of the PROJECT, an itemized accounting of actual
final design and construction costs incurred by COUNTY which specifies the actual costs for
work performed in each party's jurisdiction.
1.8 Require the prime contractor working on the construction of the PROJECT to have
appropriate and adequate insurance coverage for the mutual protection and benefit of
COUNTY and CITY. Except for Workers' Compensation, Errors and Omissions and
Professional Liability policies, COUNTY shall require and ensure that all COUNTY
contractors/subcontractors for the PROJECT shall have insurance policies that contain
endorsements naming the CITY and its officers, employees, agents and volunteers as
Sterling Ave Culvert Final Design H14495 Page 2 of 8
• s 2012-276
•
additional insureds with respect to liabilities arising out of the performance of services
hereunder. The additional insured endorsements shall not limit the scope of coverage for
the CITY to vicarious liability but shall allow coverage for the CITY to the full extent provided
by the policy. Such additional insured coverage shall be at least as broad as Additional
Insured (Form B) endorsement from ISO, CG 2010.11 85.
1.9 Require its contractors to maintain and to comply throughout the term of any contract
awarded by COUNTY with the insurance requirements described in County Policy Numbers
11-07 and 11-07SP.
1.10 Include compliance with any applicable requirements of CEQA, as well as completing the
required CEQA documentation.
2.0 CITY AGREES TO:
2.1 Provide a no-cost permit to the COUNTY for its work in the CITY's right-of-way.
2.2 Not unreasonably withhold, condition, or delay its review of the PROJECT's plans and
specifications.
3.0 IT IS MUTUALLY AGREED:
3.1 COUNTY agrees to indemnify, defend with counsel approved by CITY) and hold harmless
the CITY and its officers, employees, agents, and volunteers from any and all claims,
actions, losses, damages, and/or liability resulting from the COUNTY's negligent acts or
omissions which arise from the COUNTY's performance of its obligations under this
Agreement.
3.2 CITY agrees to indemnify, defend (with counsel approved by COUNTY) and hold harmless
the COUNTY and its officers, employees, agents and volunteers from any and all claims,
actions, losses, damages and/or liability resulting from the CITY's negligent acts or
omissions which arise from the CITY's performance of its obligations under this Agreement.
3.3 In the event the COUNTY and/or the CITY is found to be comparatively at fault for any
claim, action, loss or damage which results from their respective obligations under the
Agreement, the COUNTY and/or CITY shall indemnify the other to the extent of its
comparative fault. Furthermore, if the COUNTY or CITY attempts to seek recovery from the
other for Workers' Compensation benefits paid to an employee, the COUNTY and CITY
agree that any alleged negligence of the employee shall not be construed against the
employer of that employee.
3.4 In the event of litigation arising from this Agreement, each party to the agreement shall bear
its own costs, including attorney(s) fees. This paragraph shall not apply to the costs or
attorney(s) fees relative to paragraphs 3.1, 3.2, and 3.3, indemnification.
3.5 COUNTY and CITY are authorized self-insured public entities for purposes of Professional
Liability, Automobile Liability, General Liability and Workers' Compensation and warrant that
through their respective programs of self-insurance they have adequate coverage or
resources to protect against liabilities arising out of COUNTY and CITY's performance of the
terms, conditions or obligations of this Agreement.
3.6 If either COUNTY or CITY requests additional work that is beyond the scope of the original
PROJECT, and not considered by all parties to be a necessary part of the PROJECT, said
work, if approved by all parties, will be paid solely by the agency requesting the work, unless
all parties agree by written amendment to allocate the cost in accordance with the
percentage allocation provided herein, or in some other mutually acceptable manner.
3.7 COUNTY shall notify CITY of the bids received and the amounts thereof. Within ten (10)
days thereafter, COUNTY and CITY shall determine the cost of the PROJECT. In the event
that either party intends to cancel this Agreement based upon the bids or amount thereof,
said party shall notify the other party at a reasonable time prior to the awarding of a contract
to construct the PROJECT to avoid any detrimental reliance by either contracting party,
contractor or potential contractor.
Sterling Ave Culvert Final Design H14495 Page 3 of 8
2012-276
3.8 In the event that change orders are required during the course of the PROJECT, said
change orders must be in form and substance as set forth in attached Exhibit "B" of this
Agreement and approved by both COUNTY and CITY. Contract Change Order forms will be
delivered by fax and must be returned within two (2) working days. The CITY shall not
unreasonably withhold approval of change orders. If a CITY disapproved or modified
change order is later found to be a cost of the PROJECT, then the CITY shall be
responsible for any costs, awards, judgments or settlements associated with the
disapproved or modified change order.
3.9 If this Agreement is funded in whole or in part with funds provided by the American
Recovery and Reinvestment Act of 2009, the COUNTY and CITY shall comply with the
following provisions:
Use of ARRA Funds and Requirements - This Contract may be funded in whole or in
part with funds provided by the American Recovery and Reinvestment Act of 2009
("ARRA"), signed into law on February 17, 2009. Section 1605 of ARRA prohibits the
use of recovery funds for a project for the construction, alteration, maintenance or repair
of a public building or public work (both as defined in 2 CFR 176.140) unless all of the
iron, steel and manufactured goods (as defined in 2 CFR 176.140) used in the project
are produced in the United States. A waiver is available under three limited
circumstances: (i) Iron, steel or relevant manufactured goods are not produced in the
United States in sufficient and reasonable quantities and of a satisfactory quality; (ii)
Inclusion of iron, steel or manufactured goods produced in the United States will
increase the cost of the overall project by more than 25 percent; or (iii) Applying the
domestic preference would be inconsistent with the public interest. This is referred to as
the "Buy American" requirement. Request for a waiver must be made to the COUNTY
for an appropriate determination.
Section 1606 of ARRA requires that laborers and mechanics employed by contractors
and subcontractors on projects funded directly by or assisted in whole or in part by and
through the Federal Government pursuant to ARRA shall be paid wages at rates not less
than those prevailing on projects of a character similar in the locality as determined by
the Secretary of Labor in accordance with the Davis-Bacon Act (40 U.S.C. 31). This is
referred to as the "wage rate" requirement.
The above described provisions constitute notice under ARRA of the Buy American and
wage rate requirements. Contractor must contact the COUNTY if it has any questions
regarding the applicability or implementation of the ARRA Buy American and wage rate
requirements. Contractor will also be required to provide detailed information regarding
compliance with the Buy American requirements, expenditure of funds and wages paid
to employees so that the COUNTY may fulfill any reporting requirements it has under
ARRA. The information may be required as frequently as monthly or quarterly.
Contractor agrees to fully cooperate in providing information or documents as requested
by the COUNTY pursuant to this provision. Failure to do so will be deemed a default
and may result in the withholding of payments and termination of this Contract.
Contractor may also be required to register in the Central Contractor Registration (CCR)
database at http://www.ccr.qov and may be required to have its subcontractors also
register in the same database. Contractor must contact the COUNTY with any
questions regarding registration requirements.
Schedule of Expenditure of Federal Awards - In addition to the requirements
described in "Use of ARRA Funds and Requirements," proper accounting and reporting
of ARRA expenditures in single audits is required. Contractor agree to separately
Sterling Ave Culvert Final Design H14495 Page 4 of 8
2012-276
identify the expenditures for each grant award funded under ARRA on the Schedule of
Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF-SAC)
required by the Office of Management and Budget Circular A-133, "Audits of States,
Local Governments, and Nonprofit Organizations." This identification on the SEFA and
SF-SAC shall include the Federal award number, the Catalog of Federal Domestic
Assistance (CFDA) number, and amount such that separate accountability and
disclosure is provided for ARRA funds by Federal award number consistent with the
recipient reports required by ARRA Section 1512 (c).
In addition, Contractor agrees to separately identify to each subcontractor and document
at the time of sub-contract and at the time of disbursement of funds, the Federal award
number, any special CFDA number assigned for ARRA purposes, and amount of ARRA
funds.
Contractor may be required to provide detailed information regarding expenditures so
that the COUNTY may fulfill any reporting requirements under ARRA described in this
section. The information may be required as frequently as monthly or quarterly.
Contractor agrees to fully cooperate in providing information or documents as requested
by the COUNTY pursuant to this provision. Failure to do so will be deemed a default
and may result in the withholding of payments and termination of this Contract.
Whistleblower Protection - Contractor agrees that both it and its subcontractors shall
comply with Section 1553 of the ARRA, which prohibits all non-Federal contractors,
including the State, and all contractors of the State, from discharging, demoting or
otherwise discriminating against an employee for disclosures by the employee that the
employee reasonably believes are evidence of: (1) gross mismanagement of a contract
relating to ARRA funds; (2) a gross waste of ARRA funds; (3) a substantial and specific
danger to public health or safety related to the implementation or use of ARRA funds; (4)
an abuse of authority related to the implementation or use of recovery funds; or (5) a
violation of law, rule, or regulation related to an agency contract (including the
competition for or negotiation of a contract) awarded or issued relating to ARRA funds.
Contractor agrees that it and its subcontractors shall post notice of the rights and
remedies available to employees under Section 1553 of Division A, Title XV of the
ARRA.
3.10 This Agreement shall be for a term of three (3) years and shall terminate upon project
completion as described in Paragraph 3.11 or December 31, 2015 (whichever occurs first),
but may be cancelled upon thirty (30) days advance written notice of either party, provided
however, that neither party may cancel this Agreement after COUNTY awards a contract to
construct the PROJECT. In the event of cancellation as provided herein, all PROJECT
costs required to be paid by the Parties prior to the effective date of cancellation shall be
paid by the Parties in the same proportion to their contribution for the PROJECT.
3.11 Except with respect to the Parties' operation, maintenance and indemnification obligations
contained herein, this Agreement shall terminate upon completion of the PROJECT and
payment of final billing by the CITY for its share of the PROJECT costs (if any).
3.12 This Agreement contains the entire agreement of the Parties with respect to subject matter
hereof, and supersedes all prior negotiations, understandings or agreements. No
supplement, modification, or amendment of this Agreement shall be binding unless
executed in writing and signed by both parties.
3.13 This Agreement shall be governed by the laws of the State of California. Any action or
proceeding between CITY and COUNTY concerning the interpretation or enforcement of
this Agreement, or which arises out of or is in any way connected with this Agreement or the
Sterling Ave Culvert Final Design H14495 Page 5 of 8
2012-276
PROJECT, shall be instituted and tried in the appropriate state court, located in the County
of San Bernardino, California.
3.14 Time is of the essence for each and every provision of this Agreement.
3.15 Since the Parties or their agents have participated fully in the preparation of this Agreement,
the language of this Agreement shall be construed simply, according to its fair meaning, and
not strictly for any or against any party. Any term referencing time, days or period for
performance shall be deemed work days. The captions of the various articles and
paragraphs are for convenience and ease or reference only, and do not define, limit,
augment, or describe the scope, content, or intent of this Agreement.
3.16 No waiver of any default shall constitute a waiver of any other default or breach, whether of
the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily
given or performed by a party shall give the other party any contractual rights by custom,
estoppel, or otherwise.
3.17 If a court of competent jurisdiction declares any portion of this Agreement invalid, illegal, or
otherwise unenforceable, the remaining provisions shall continue in full force and effect,
unless the purpose of this Agreement is frustrated.
3.18 This Agreement may be signed in counterparts, each of which shall constitute an original.
3.19 The Recitals are incorporated into the body of this Agreement.
THIS AGREEMENT shall inure to the benefit of and be binding upon the successors and assigns of both
Parties.
IN WITNESS WHEREOF, the parties to these presents have hereunto set their hands.
COUNT SF SA' :E-.014-60 P O_ CITY OF SAN BERNARDINO
► By ► `�' 4 !'k ti (/114
Josie Gonzales, Chair, Board of Supervisors (Authorized signature-sign in blue ink)
Dated: Yy 1 Name: Andrea Travis-Miller
SIGNED AND CERTIFIED THAT A COPY OF THIS
DOCUMENT HAS BEENpEECIVEtE T,Q THE Title: Acting City Manager
CHAIRMAN OF THE 4fl ."'4;e„
Dated: If-
t)e Board o1S aelvsors
County'of f an peiTaardino
4, .1,1"i1,1 }1
By Address 300 North "D" Street, San Bernardino CA 92418
Approved as to Legal For , f eviewed by C• tract Complian•e Presented to BOS for Signature
► «K t lJ ` ► i 4.(dmal / 1 71 717eAAY-C64/t----
County Counsel /f Department Head
Date 1 �,— 6- f Date / 1//$6/f 1 Date 1.41 r31
Approved as to form:
James F. Penman, City Attorney
BY C ck 61—t1r-.0
Sterling Ave Culvert Final Design H14495 Page 6 of 8
2012-276
EXHIBIT A
ESTIMATE OF PROJECT COSTS
FOR CITY OF SAN BERNARDINO/COUNTY OF SAN BERNARDINO
DESIGN AND CONSTRUCTION OF A CULVERT AT CITRUS STREET
IN THE SAN BERNARDINO AREA
DESCRIPTION LIMITS TOTAL COUNTY OF % OF CITY OF %OF
COST OF SAN PROJECT SAN PROJECT
PROJECT BERNARDINO COUNTY BERNARDINO CITY
SHARE
Sterling At Citrus Street $107,000 $69,300 64.77% $37,700 35.23%
Avenue Culvert
64.77%
TOTAL $107,000 $69,300 $37,700 35.23%
EXHIBIT B
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� 2012-276
• CONTRACT CHANGE ORDER REVIEW/APPROVAL
PROJECT: STERLING AVENUE AT CITRUS STREET CULVERT
COUNTY OF SAN BERNARDINO CONTRACT#
File: H 14495
Proposed Contract Change Order No. has been reviewed in accordance with the existing agreements with the City of
San Bernardino and County of San Bernardino for the above project and the following shall apply:
DATE OF CITY OF SAN BERNARDINO ACTION: / /
❑ APPROVED for Implementation with 100% Participation by CITY OF SAN BERNARDINO
❑APPROVED Subject to Comments/Revisions Accompanying This Document
❑ APPROVED With Limited Funding Participation by CITY OF SAN BERNARDINO
❑ % of Actual Cost to be Funded by CITY OF SAN BERNARDINO
[' CITY OF SAN BERNARDINO Participation Not to Exceed $
❑ DISAPPROVED-Not Acceptable to CITY OF SAN BERNARDINO
Note: Approval under any of the above conditions shall in no case be construed as agreement to increase the total
financial participation beyond that prescribed in the existing CITY OF SAN BERNARDINO and COUNTY OF SAN
BERNARDINO agreements without separate amendment to said agreements. Net increases in costs deriving from
this and previously approved Contract Change Orders shall not cause the total construction costs to exceed the sum
of the authorized contract total and contingency amounts.
Comments, as follows and/or attached, are conditions of the above action? ❑ YES ❑ NO
SIGNED:
TITLE:
Distribution:
Signed Original Returned to Resident Engineer(FAX#909-387-7920)
Signed Original for CITY OF SAN BERNARDINO File
Sterling Ave Culvert Final Design H14495 Page 8 of 8
2012-276
FOR COUNTY USE ONLY
New FAS Vendor Code /� A
Dept. A Contract Number
pa.,eOO ^ Change SC
Cancel
ePro Vendor Number ePro Contract Number
County Department Dept. Orgn. Contractors License No.
Public Works-Transportation TRA TRA
County Department Contract Representative Telephone Total Contract Amount
County of San Bernardino Eric D.Jacobsen, Supervising Transportation (909)387-8166 $37,700
Analyst
FAS Contract Type
v n Encumbered n n mbered her:
STANDARD CONTRACT If not encumbered or revenue contract type,provide reason:
Commodity Code Contract Start Date Contract IDDate Original Amount Amendment Amount
Fund Dept. Organization Appr. Obj/Rev GRC/PROJ/JOB No Amount
S AA TRA TRA 9800 18HI4495 $ 107,000
Fund Dept. Organization Appr. Obj/Rev GRC/PROJ/JOB No. Amount
Fund Dept. Organization Appr. Obj/Rev GRC/PROJ/JOB No. Amount
Project Name Estimated Payment Total by Fiscal Year
STERLING AVENUE FY Amount I/D FY Amount I/D
Culvert Replacement
THIS CONTRACT is entered into in the State of California by and between the County of San Bernardino, hereinafter called
the County, and
Name
CITY OF SAN BERNARDINO hereinafter called CITY
Address
300 North"D" Street
San Bernardino. CA 92418-001
Telephone Federal ID No.or Social Security No.
(909)384-5211
IT IS HEREBY AGREED AS FOLLOWS:
WITNESSETH
WHEREAS, the County of San Bernardino (hereinafter referred to as "COUNTY") and the
City of San Bernardino (hereinafter referred to as "CITY") desire to cooperate and jointly participate
in a project to install a culvert under Sterling Avenue at Citrus Street and upgrade one pedestrian
access ramp on the northeast corner of Sterling Avenue at Citrus Street (hereinafter referred to as
'PROJECT'); and
WHEREAS, the PROJECT is partially in the unincorporated area of the COUNTY and
partially within the incorporated area of the CITY, and will be of mutual benefit to the COUNTY and
CITY; and
WHEREAS, the total project cost is estimated to be $107,000; and
Auditor-Controller/treasurer Tax Collector Use Onl
0 Contract Database ❑FAS
Input Date Keyed By
ATTACHMENT A Page 1 of 8
2012-276
WHEREAS, PROJECT costs are partially (64.77%) in the unincorporated area of the
COUNTY and partially (35.23%) within the incorporated area of the CITY, and will be of mutual
benefit to the COUNTY and CITY; and
WHEREAS, the costs are proportioned based on work done in each party's jurisdiction; and
WHEREAS, the COUNTY desires to provide financial assistance to the CITY to design and
construct the PROJECT; and
WHEREAS, the COUNTY's share toward PROJECT cost is estimated at $69,300 (64.77%
of PROJECT) and the CITY's share of PROJECT cost is estimated at $37,700 (35.23% of
PROJECT), as more particularly set forth in Exhibit "A", attached hereto and incorporated herein by
reference; and
WHEREAS, COUNTY desires to provide CITY with financial assistance in providing the
CITY's share of PROJECT in accordance with Streets and Highways Code section 1680, et seq.,
as there is a general COUNTY interest in the PROJECT; and
WHEREAS, Streets and Highways Code sections 1685 and 1803 authorize CITY to contract
with COUNTY for the maintenance, construction or repair of CITY streets and roads, if the
legislative body of CITY determines that it is necessary for the more efficient maintenance,
construction, or repair of streets and roads; and
WHEREAS, the legislative body of CITY determines that it is necessary for the more efficient
maintenance, construction, or repair of streets and roads within CITY to contract with COUNTY for the
PROJECT; and
WHEREAS, COUNTY and CITY desire to set forth responsibilities and obligations of each
as they pertain to such participation and to the design, construction, and funding of the PROJECT.
NOW, THEREFORE, IT IS MUTUALLY AGREED as follows:
1.0 COUNTY AGREES TO:
1.1 Act as the Lead Agency in the design and construction of the PROJECT.
1.2 Provide plans and specifications, environmental documents, and all necessary construction
engineering for the PROJECT for CITY's review and approval.
1.3 Obtain a no-cost permit from the CITY for work performed within the CITY's right-of-way.
1.4 Advertise, award and administer the construction contract for the PROJECT, in accordance
with the provisions of the California Public Contract Code applicable to counties.
1.5 Pay its proportionate share of the PROJECT costs estimated at $69,300, which shall be
64.77% of estimated PROJECT costs (see Exhibit A).
1.6 Pay CITY's proportionate share of the PROJECT costs estimated at $37,700, which shall be
35.23% of estimated PROJECT costs (see Exhibit A).
1.7 Submit to the CITY, following completion of the PROJECT, an itemized accounting of actual
final design and construction costs incurred by COUNTY which specifies the actual costs for
work performed in each party's jurisdiction.
1.8 Require the prime contractor working on the construction of the PROJECT to have
appropriate and adequate insurance coverage for the mutual protection and benefit of
COUNTY and CITY. Except for Workers' Compensation, Errors and Omissions and
Professional Liability policies, COUNTY shall require and ensure that all COUNTY
contractors/subcontractors for the PROJECT shall have insurance policies that contain
endorsements naming the CITY and its officers, employees, agents and volunteers as
Sterling Ave Culvert Final Design H14495 Page 2 of 8
2012-276
additional insureds with respect to liabilities arising out of the performance of services
hereunder. The additional insured endorsements shall not limit the scope of coverage for
the CITY to vicarious liability but shall allow coverage for the CITY to the full extent provided
by the policy. Such additional insured coverage shall be at least as broad as Additional
Insured (Form B) endorsement from ISO, CG 2010.11 85.
1.9 Require its contractors to maintain and to comply throughout the term of any contract
awarded by COUNTY with the insurance requirements described in County Policy Numbers
11-07 and 11-07SP.
1.10 Include compliance with any applicable requirements of CEQA, as well as completing the
required CEQA documentation.
2.0 CITY AGREES TO:
2.1 Provide a no-cost permit to the COUNTY for its work in the CITY's right-of-way.
2.2 Not unreasonably withhold, condition, or delay its review of the PROJECT's plans and
specifications.
3.0 IT IS MUTUALLY AGREED:
3.1 COUNTY agrees to indemnify, defend with counsel approved by CITY) and hold harmless
the CITY and its officers, employees, agents, and volunteers from any and all claims,
actions, losses, damages, and/or liability resulting from the COUNTY's negligent acts or
omissions which arise from the COUNTY's performance of its obligations under this
Agreement.
3.2 CITY agrees to indemnify, defend (with counsel approved by COUNTY) and hold harmless
the COUNTY and its officers, employees, agents and volunteers from any and all claims,
actions, losses, damages and/or liability resulting from the CITY's negligent acts or
omissions which arise from the CITY's performance of its obligations under this Agreement.
3.3 In the event the COUNTY and/or the CITY is found to be comparatively at fault for any
claim, action, loss or damage which results from their respective obligations under the
Agreement, the COUNTY and/or CITY shall indemnify the other to the extent of its
comparative fault. Furthermore, if the COUNTY or CITY attempts to seek recovery from the
other for Workers' Compensation benefits paid to an employee, the COUNTY and CITY
agree that any alleged negligence of the employee shall not be construed against the
employer of that employee.
3.4 In the event of litigation arising from this Agreement, each party to the agreement shall bear
its own costs, including attorney(s) fees. This paragraph shall not apply to the costs or
attorney(s)fees relative to paragraphs 3.1, 3.2, and 3.3, indemnification.
3.5 COUNTY and CITY are authorized self-insured public entities for purposes of Professional
Liability, Automobile Liability, General Liability and Workers' Compensation and warrant that
through their respective programs of self-insurance they have adequate coverage or
resources to protect against liabilities arising out of COUNTY and CITY's performance of the
terms, conditions or obligations of this Agreement.
3.6 If either COUNTY or CITY requests additional work that is beyond the scope of the original
PROJECT, and not considered by all parties to be a necessary part of the PROJECT, said
work, if approved by all parties, will be paid solely by the agency requesting the work, unless
all parties agree by written amendment to allocate the cost in accordance with the
percentage allocation provided herein, or in some other mutually acceptable manner.
3.7 COUNTY shall notify CITY of the bids received and the amounts thereof. Within ten (10)
days thereafter, COUNTY and CITY shall determine the cost of the PROJECT. In the event
that either party intends to cancel this Agreement based upon the bids or amount thereof,
said party shall notify the other party at a reasonable time prior to the awarding of a contract
to construct the PROJECT to avoid any detrimental reliance by either contracting party,
contractor or potential contractor.
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3.8 In the event that change orders are required during the course of the PROJECT, said
change orders must be in form and substance as set forth in attached Exhibit "B" of this
Agreement and approved by both COUNTY and CITY. Contract Change Order forms will be
delivered by fax and must be returned within two (2) working days. The CITY shall not
unreasonably withhold approval of change orders. If a CITY disapproved or modified
change order is later found to be a cost of the PROJECT, then the CITY shall be
responsible for any costs, awards, judgments or settlements associated with the
disapproved or modified change order.
3.9 If this Agreement is funded in whole or in part with funds provided by the American
Recovery and Reinvestment Act of 2009, the COUNTY and CITY shall comply with the
following provisions:
Use of ARRA Funds and Requirements - This Contract may be funded in whole or in
part with funds provided by the American Recovery and Reinvestment Act of 2009
("ARRA"), signed into law on February 17, 2009. Section 1605 of ARRA prohibits the
use of recovery funds for a project for the construction, alteration, maintenance or repair
of a public building or public work (both as defined in 2 CFR 176.140) unless all of the
iron, steel and manufactured goods (as defined in 2 CFR 176.140) used in the project
are produced in the United States. A waiver is available under three limited
circumstances: (i) Iron, steel or relevant manufactured goods are not produced in the
United States in sufficient and reasonable quantities and of a satisfactory quality; (ii)
Inclusion of iron, steel or manufactured goods produced in the United States will
increase the cost of the overall project by more than 25 percent; or (iii) Applying the
domestic preference would be inconsistent with the public interest. This is referred to as
the 'Buy American" requirement. Request for a waiver must be made to the COUNTY
for an appropriate determination.
Section 1606 of ARRA requires that laborers and mechanics employed by contractors
and subcontractors on projects funded directly by or assisted in whole or in part by and
through the Federal Government pursuant to ARRA shall be paid wages at rates not less
than those prevailing on projects of a character similar in the locality as determined by
the Secretary of Labor in accordance with the Davis-Bacon Act (40 U.S.C. 31). This is
referred to as the "wage rate" requirement.
The above described provisions constitute notice under ARRA of the Buy American and
wage rate requirements. Contractor must contact the COUNTY if it has any questions
regarding the applicability or implementation of the ARRA Buy American and wage rate
requirements. Contractor will also be required to provide detailed information regarding
compliance with the Buy American requirements, expenditure of funds and wages paid
to employees so that the COUNTY may fulfill any reporting requirements it has under
ARRA. The information may be required as frequently as monthly or quarterly.
Contractor agrees to fully cooperate in providing information or documents as requested
by the COUNTY pursuant to this provision. Failure to do so will be deemed a default
and may result in the withholding of payments and termination of this Contract.
Contractor may also be required to register in the Central Contractor Registration (CCR)
database at htto://www.ccr.aov and may be required to have its subcontractors also
register in the same database. Contractor must contact the COUNTY with any
questions regarding registration requirements.
Schedule of Expenditure of Federal Awards - In addition to the requirements
described in "Use of ARRA Funds and Requirements," proper accounting and reporting
of ARRA expenditures in single audits is required. Contractor agree to separately
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identify the expenditures for each grant award funded under ARRA on the Schedule of
Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF-SAC)
required by the Office of Management and Budget Circular A-133, "Audits of States,
Local Governments, and Nonprofit Organizations." This identification on the SEFA and
SF-SAC shall include the Federal award number, the Catalog of Federal Domestic
Assistance (CFDA) number, and amount such that separate accountability and
disclosure is provided for ARRA funds by Federal award number consistent with the
recipient reports required by ARRA Section 1512 (c).
In addition, Contractor agrees to separately identify to each subcontractor and document
at the time of sub-contract and at the time of disbursement of funds, the Federal award
number, any special CFDA number assigned for ARRA purposes, and amount of ARRA
funds.
Contractor may be required to provide detailed information regarding expenditures so
that the COUNTY may fulfill any reporting requirements under ARRA described in this
section. The information may be required as frequently as monthly or quarterly.
Contractor agrees to fully cooperate in providing information or documents as requested
by the COUNTY pursuant to this provision. Failure to do so will be deemed a default
and may result in the withholding of payments and termination of this Contract.
Whistleblower Protection - Contractor agrees that both it and its subcontractors shall
comply with Section 1553 of the ARRA, which prohibits all non-Federal contractors,
including the State, and all contractors of the State, from discharging, demoting or
otherwise discriminating against an employee for disclosures by the employee that the
employee reasonably believes are evidence of: (1) gross mismanagement of a contract
relating to ARRA funds; (2) a gross waste of ARRA funds; (3) a substantial and specific
danger to public health or safety related to the implementation or use of ARRA funds; (4)
an abuse of authority related to the implementation or use of recovery funds; or (5) a
violation of law, rule, or regulation related to an agency contract (including the
competition for or negotiation of a contract) awarded or issued relating to ARRA funds.
Contractor agrees that it and its subcontractors shall post notice of the rights and
remedies available to employees under Section 1553 of Division A, Title XV of the
ARRA.
3.10 This Agreement shall be for a term of three (3) years and shall terminate upon project
completion as described in Paragraph 3.11 or December 31, 2015 (whichever occurs first),
but may be cancelled upon thirty (30) days advance written notice of either party, provided
however, that neither party may cancel this Agreement after COUNTY awards a contract to
construct the PROJECT. In the event of cancellation as provided herein, all PROJECT
costs required to be paid by the Parties prior to the effective date of cancellation shall be
paid by the Parties in the same proportion to their contribution for the PROJECT.
3.11 Except with respect to the Parties' operation, maintenance and indemnification obligations
contained herein, this Agreement shall terminate upon completion of the PROJECT and
payment of final billing by the CITY for its share of the PROJECT costs (if any).
3.12 This Agreement contains the entire agreement of the Parties with respect to subject matter
hereof, and supersedes all prior negotiations, understandings or agreements. No
supplement, modification, or amendment of this Agreement shall be binding unless
executed in writing and signed by both parties.
3.13 This Agreement shall be governed by the laws of the State of California. Any action or
proceeding between CITY and COUNTY concerning the interpretation or enforcement of
this Agreement, or which arises out of or is in any way connected with this Agreement or the
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PROJECT, shall be instituted and tried in the appropriate state court, located in the County
of San Bernardino, California.
3.14 Time is of the essence for each and every provision of this Agreement.
3.15 Since the Parties or their agents have participated fully in the preparation of this Agreement,
the language of this Agreement shall be construed simply, according to its fair meaning, and
not strictly for any or against any party. Any term referencing time, days or period for
performance shall be deemed work days. The captions of the various articles and
paragraphs are for convenience and ease or reference only, and do not define, limit,
augment, or describe the scope, content, or intent of this Agreement.
3.16 No waiver of any default shall constitute a waiver of any other default or breach, whether of
the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily
given or performed by a party shall give the other party any contractual rights by custom,
estoppel, or otherwise.
3.17 If a court of competent jurisdiction declares any portion of this Agreement invalid, illegal, or
otherwise unenforceable, the remaining provisions shall continue in full force and effect,
unless the purpose of this Agreement is frustrated.
3.18 This Agreement may be signed in counterparts, each of which shall constitute an original.
3.19 The Recitals are incorporated into the body of this Agreement.
THIS AGREEMENT shall inure to the benefit of and be binding upon the successors and assigns of both
Parties.
IN WITNESS WHEREOF, the parties to these presents have hereunto set their hands.
COUNTY OF SAN BERNARDINO CITY OF SAN BERNARDINO
► By ►
Josie Gonzales, Chair, Board of Supervisors (Authorized signature-sign in blue ink)
Dated: Name: Andrea Travis-Miller
SIGNED AND CERTIFIED THAT A COPY OF THIS
DOCUMENT HAS BEEN DELIVERED TO THE Title: Acting City Manager
CHAIRMAN OF THE BOARD
Laura H. Welch Dated:
Clerk of the Board of Supervisors
of the County of San Bernardino
By Address 300 North "D"Street, San Bernardino CA 92418
Deputy
Approved as to Legal Form Reviewed by Contract Compliance Presented to BOS for Signature
► ► ►
County Counsel Department Head
Date Date Date
Approved as to form:
James F. Penman, City Attorney
By:
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EXHIBIT A
ESTIMATE OF PROJECT COSTS
FOR CITY OF SAN BERNARDINO/COUNTY OF SAN BERNARDINO
DESIGN AND CONSTRUCTION OF A CULVERT AT CITRUS STREET
IN THE SAN BERNARDINO AREA
DESCRIPTION LIMITS TOTAL COUNTY OF %OF CITY OF %OF
COST OF SAN PROJECT SAN PROJECT
PROJECT BERNARDINO COUNTY BERNARDINO CITY
SHARE
Sterling At Citrus Street $107,000 $69,300 64.77% $37,700 35.23%
Avenue Culvert
64.77%
TOTAL $107,000 $69,300 $37,700 35.23%
EXHIBIT B
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20 12-2 76
CONTRACT CHANGE ORDER REVIEW/APPROVAL
PROJECT: STERLING AVENUE AT CITRUS STREET CULVERT
COUNTY OF SAN BERNARDINO CONTRACT#
File: H14495
Proposed Contract Change Order No. has been reviewed in accordance with the existing agreements with the City of
San Bernardino and County of San Bernardino for the above project and the following shall apply:
DATE OF CITY OF SAN BERNARDINO ACTION: _/_/_
❑APPROVED for Implementation with 100% Participation by CITY OF SAN BERNARDINO
❑ APPROVED Subject to Comments/Revisions Accompanying This Document
❑APPROVED With Limited Funding Participation by CITY OF SAN BERNARDINO
❑ "/o of Actual Cost to be Funded by CITY OF SAN BERNARDINO
❑ CITY OF SAN BERNARDINO Participation Not to Exceed $
❑ DISAPPROVED-Not Acceptable to CITY OF SAN BERNARDINO
Note: Approval under any of the above conditions shall in no case be construed as agreement to increase the total
financial participation beyond that prescribed in the existing CITY OF SAN BERNARDINO and COUNTY OF SAN
BERNARDINO agreements without separate amendment to said agreements. Net increases in costs deriving from
this and previously approved Contract Change Orders shall not cause the total construction costs to exceed the sum
of the authorized contract total and contingency amounts.
Comments, as follows and/or attached, are conditions of the above action? [] YES ❑ NO
I
SIGNED:
TITLE:
Distribution:
Signed Original Returned to Resident Engineer(FAX#909-387-7920)
Signed Original for CITY OF SAN BERNARDINO File
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