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HomeMy WebLinkAbout2018-1111 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2018-111 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN INFRASTRUCTURE IMPROVEMENT AGREEMENT WITH THE SAN MANUEL BAND OF MISSION INDIANS (SMBMI) FOR THE REHABILITATION OF VARIOUS STREETS THROUGHOUT THE CITY BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager is hereby authorized and directed to execute an Agreement between the City of San Bernardino and San Manuel Band of Mission Indians for Victoria Avenue Improvements attached hereto and incorporated herein as Exhibit "A". SECTION 2. That this public works project is exempt from the requirements of competitive bidding because it can be seen with certainty that no competitive advantage can be gained by soliciting bids as this project is being completed at no cost to the City. SECTION 3. That the authorization to execute the above -referenced Agreement is rescinded, if it is not executed and returned to the Office of the City Clerk within ninety (90) days of the passage of this Resolution. 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 26 27 2s RESOLUTION NO. 2018-111 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN INFRASTRUCTURE IMPROVEMENT AGREEMENT WITH THE SAN MANUEL BAND OF MISSION INDIANS (SMBMI) FOR THE REHABILITATION OF VARIOUS STREETS THROUGHOUT THE CITY I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 18th day of April 2018, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ X BARRIOS I- VALDIVIA k CM SHORETT k NICKEL )r RICHARD k MULVIHILL X(5 George anna, CMC, 44ity Clerk The foregoing Resolution is hereby approved this 18th day of April 2018. R. Carey DavZaidino ayor City of San B Approved as to form: Gary D. Saenz, City Attorney Lm 11 I INFRASTRUCTURE IMPROVEMENT AGREEMENT This INFRASTRUCTURE IMPROVEMENT AGREEMENT (this "Agreement"), entered into as of April 18, 2018 (the "Effective Date"), is by and between the CITY OF SAN BERNARDINO, a California municipal corporation ('CITY), and THE SAN MANUEL BAND OF MISSION INDIANS, a federally recognized Indian tribe ("DEVELOPER"). CITY and DEVELOPER are sometimes hereinafter referred to individually as a "Party" and collectively as the "Parties". RECITALS WHEREAS, DEVELOPER is a federally recognized Indian tribe whose federally recognized reservation land (the "Reservation") is located adjacent to the CITY; WHEREAS, DEVELOPER, as a member of the surrounding community, would like to invest in the surrounding community by undertaking various infrastructure improvement projects that will benefit the citizens of CITY; WHEREAS, DEVELOPER has proposed to undertake the infrastructure improvement project described on Exhibit A (the "Improvements"), which: (a) will be located in, on, under, and/or over the parcels of real property owned or controlled by CITY that are described on Exhibit B (the "Site"); and (b) will improve the Site and the existing improvements located thereon; WHEREAS, DEVELOPER intends, at its own cost, to design, construct, and commission the Improvements, after which DEVELOPER will transfer ownership of the Improvements to the CITY, in each case subject to the terms and conditions hereof; and WHEREAS, CITY is willing to accept ownership of the Improvements upon completion and is willing to grant to DEVELOPER the rights, licenses, permits, and approvals that DEVELOPER will require in order to design, construct, and commission the Improvements, and to transfer the Improvements to CITY, in each case on the terms and conditions set forth herein. NOW, THEREFORE, for the purposes set forth herein, and for good and valuable consideration, the adequacy ofwhich is hereby acknowledged, DEVELOPER and CITY hereby agree as follows: TERMS 1.0 Incorporation of Recitals. The Parries hereby affirm the facts set forth in the Recitals above and agree to the incorporation of the Recitals as though fully set forth herein. 2.0 Design, Construction, and Commissioning of Improvements. DEVELOPER shall design, construct, and commission, or have designed, constructed, and commissioned, in accordance with the terms of this Agreement and at its own cost, expense, and liability, the Improvements. US-DOCS%94839237 11 {a) DEVELOPER shall be responsible for: (i) replacing, relocating, or removing any component of any existing public or private improvement in conflict with the construction or installation of the Improvements (an "Existing Componenf ); and (ii) replacing such Existing Component in accordance with the terms hereof, or restoring such Existing Component to at least the same condition it was in prior to any such relocation;rop vided that DEVELOPER shall not relocate any Existing Component without the prior written approval of CITY, such approval not to be unreasonably withheld, conditioned, or delayed, unless relocation of the Existing Component is contemplated by the Plans and Specifications. (b) CITY shall promptly provide DEVELOPER with any and all rights, approvals, licenses, or permits necessary for DEVELOPER to replace, relocate, or remove any Existing Component. (c) If any Existing Component is owned by a private party and the Parties reasonably agree that such Existing Component must be removed to accommodate the Improvements and cannot be relocated at reasonable cost, then: (i) CITY may, in its sole discretion, attempt to acquire (through its use of the power of eminent domain or otherwise) such Existing Component for its fair market value; and (ii) DEVELOPER shall reimburse CITY for the reasonable costs involved in the acquisition of such private party to acquire such Existing Component, including amounts paid to the private party and any legal fees and costs. (d) DEVELOPER further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary to complete the Improvements. 2.1 Plans and Specifications. (a) DEVELOPER shall perform, or shall cause to be performed, all design and engineering services that are reasonably necessary for the development of the Improvements in a manner that is substantially consistent with the description of the Improvements set forth on Exhibit A. Without limiting the foregoing, DEVELOPER shall provide all engineering technical requirements, design services, and field engineering support during construction necessary to complete the Improvements in accordance with this Agreement, including any conceptual design, engineering, and other design necessary to describe and detail the Improvements, the provision of detailed design criteria to suppliers of equipment and systems for incorporation into the Improvements, and the preparation of drawings, plans, material, specifications, and bills of material in accordance with this Agreement. (b) The plans and specifications for the Improvements (the "Plans and Spec&a&ne) shall be approved by CITY prior to commencement of the Project, such approval not to be unreasonably withheld, delayed, or conditioned; provided 2 US-DOCS194839237.11 that such review and approval does not relieve DEVELOPER from ensuring that all Improvements conform with all of the requirements set forth in this Agreement. 2.2 Permits and Notices. DEVELOPER shall, at its sole cost and expense, obtain all necessary rights, approvals, permits, and licenses (collectively, "Applicable Perm), and give all necessary notices, in each case required for the lawful construction of the Improvements and performance of DEVELOPER's obligations under this Agreement. Prior to commencing any portion of the construction work on the Improvements, DEVELOPER shall have obtained all Applicable Permits, and shall have given all necessary notices, required for the lawful construction of such portion of the Improvements. DEVELOPER shall conduct the work on the Improvements in full compliance with the lawful regulations, rules, and other requirements contained in the Applicable Permits issued to DEVELOPER. CITY shall, at the request of DEVELOPER, reasonably assist DEVELOPER in its efforts to obtain any and all Applicable Permits, which assistance shall include: (a) upon the request of DEVELOPER, promptly providing DEVELOPER with any and all applications and information relating to any Applicable Permit to be issued by CITY; (b) promptly providing assistance with the process of completing and submitting such applications, and expediting review and approval of such applications to the extent practicable and in compliance with Applicable Law; and (c) providing reasonable support for any applications submitted by DEVELOPER to any third party for Applicable Permits that will not be issued by CITY. 23 Real Property Rights. CITY shall, at no cost to DEVELOPER, promptly provide to DEVELOPER, in form and substance reasonably satisfactory to DEVELOPER, instruments and/or documents granting to DEVELOPER any and all real property rights and interests that are necessary, based on the Plans and Specifications, for DEVELOPER to access, occupy, use, and/or alter the Site, and to construct the Improvements in, on, under, and/or over the Site, as reasonably determined by DEVELOPER in consultation with CITY (the "Real Property Rights'). Any such Real Property Rights shall extinguish and be of no more force or effect upon the transfer of ownership of the Improvements to CITY in accordance with Section 7.0 (other than any such Real Property Rights that DEVELOPER may require to perform its warranty obligations under Section 8.0), and DEVELOPER shall, at the written request of CITY, take any and all actions reasonably necessary for DEVELOPER to release or terminate any such Real Property Rights at such time. 2A Quality of Work; Compliance With Laws and Codes. The Plans and Specifications shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, and standards (collectively, "Applicable Laws'l. The Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto that are: (a) on file with CITY; and (b) made reasonably available to DEVELOPER upon request, as well as all Applicable Laws in force at the time of the Agreement; provided, however, that if any Change in Law (as defined below) occurs after the Effective Date and such Change in Law increases the cost to DEVELOPER of completing the Improvements in accordance with this Agreement, then CITY and DEVELOPER shall use reasonable efforts and work in good faith to revise the Plans and Specifications in such a manner that such Change in Law does not cause a net increase in the cost to DEVELOPER of completing the Improvements. "Change in Law" means the enactment, adoption, promulgation, modification, change in binding interpretation, or repeal ager the Execution Date of any applicable law of the United States of US-DOCSWU39237.11 America or any state thereof (other than any United States national, federal, state or other income tax law) that impacts the Project or adversely affects DEVELOPER's performance under this Agreement. 2.5 Standard of Performance. DEVELOPER and the contractor with whom DEVELOPER contracts to construct the Improvements (the "Contractor") shall perform all work required to construct the Improvements in a skillful and workmanlike manner that is consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. DEVELOPER shall have, or shall cause the Contractor to have, the skill necessary to perform the work in accordance with the immediately preceding sentence. The Contractor shall, and the employees of DEVELOPER that are performing design or construction work in connection with the Improvements shall, have sufficient skill and experience to perform the work assigaed to them, and shall have all licenses, permits, qualifications, and approvals of whatever nature that are legally required for them to perform the work (which licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement). 2.6 Alterations to Improvements. All work shall be done and the Improvements completed in accordance with the Plans and Specifications, and any subsequent alterations thereto made in accordance with the terms of this Agreement. If, during the course of the construction and installation of the Improvements, the CITY reasonably determines that the public interest requires alterations in the Improvements, then: (a) DEVELOPER shall consider such request in good faith; and (b) if DEVELOPER agrees to such requested change (such agreement not to be unreasonably withheld, conditioned, or delayed), then: (x) DEVELOPER shall make such alteration to the Plans and Specifications; and (y) CITY shall reimburse DEVELOPER on demand for the reasonable incremental costs incurred by DEVELOPER to implement such alteration, including the cost to redesign the Plans and Specification, the cost to remove, replace, or alter completed work relating to the Improvements, and any additional increase in the cost to procure, construct, and commission the Improvements that results from such requested alteration. Any and all alterations in the Plans and Specifications or the Improvements may be accomplished without first giving prior notice thereof to DEVELOPER's surety for this Agreement. 2.7 Prevailing Wage RequirementJPublic Works Laws. DEVELOPER shall, and shall cause the Contractor to, pay prevailing wages (in accordance with Articles 1 and 2 of Chapter 1, Part 7, Division 2 of the Labor Code) to all persons who perform construction work for DEVELOPER or the Contractor in connection with the Improvements, and to otherwise comply with the provisions of the Labor Code, the Government Code and the Public Contract Code relating to public works projects that are set forth on Exhibit E hereto. DEVELOPER shall provide proof to CITY, at such intervals as CITY may reasonably require, that the foregoing requirements are being satisfied. 3.0 Maintenance of Improvements. CITY shall not be responsible or liable for the maintenance or care of the Improvements until ownership of the Improvements has been transferred to CITY in accordance with Section 7.0. CITY shall exercise no control over the Improvements until ownership of the Improvements has been transferred to CITY in accordance with Section 7.0. Any use by any person of the Improvements, or any portion thereof, shall be at the sole and exclusive risk of DEVELOPER at all times prior to CITY's acceptance of the Improvements. DEVELOPER shall maintain all of the Improvements in a state of good repair until they are completed by 4 US-DOCSWU39237.11 DEVELOPER and transferred to CITY in accordance with Section 7.0. Until ownership of the Improvements has been transferred to CITY in accordance with Section 7.0, it shall be DEVELOPER's responsibility to initiate all maintenance work relating to the Improvements, but if DEVELOPER shall fail to do so, DEVELOPER shall promptly perform such maintenance work when notified to do so by CITY. If DEVELOPER fails to properly prosecute its maintenance obligation under this section, then CITY may do all work necessary for such maintenance and the cost thereof shall be the responsibility of DEVELOPER and its surety under this Agreement. Except as set forth in Simon 12.0, CITY shall not be responsible or liable for any damage to the Improvements, or any bodily injury in any way related to or caused by the Improvements or their condition, prior to the date on which ownership of the Improvements has been transferred to CITY in accordance with Section 7.0. 4.0 Fees and Charges. DEVELOPER shall, at its sole cost and expense, pay all fees, charges, and taxes arising out of the construction of the Improvements, including, but not limited to, all plan check, design review, engineering, inspection, sewer treatment connection fees, and other service fees that CITY generally charges in connection with similar types of projects in the same geographic area in which the Improvements will be located. 5.0 CITY Inspection of Improvements. DEVELOPER shall, at its sole cost and expense, and at all times during construction of the Improvements, provide safe access, during all working hours and upon reasonable prior notice, for inspection by CITY of the Improvements and areas where construction of the Improvements is occurring or will occur. Employees, representatives, and contractors of CITY shall comply with any and all safety protocols established by DEVELOPER when visiting the Site, the Improvements, or areas where construction of the Improvements is occurring or will occur. CITY will inspect the Improvements to insure the Improvements are built in accordance with the Plans and Specifications. 6.0 Liens. Upon the expiration of the time for the recording of claims of liens as prescribed by Sections 8412 and 8414 of the Civil Code with respect to the Improvements, DEVELOPER shall provide to CITY reasonable evidence that all persons, firms and corporations supplying work, labor, materials, supplies and equipment in connection with the construction of the Improvements have been paid, and that no claims of liens have been recorded by or on behalf of any such person, firm or corporation. Rather than await the expiration of the said time for the recording of claims of liens, DEVELOPER may elect to provide to CITY a title insurance policy or other security acceptable to CITY guaranteeing that no such claims of liens will be recorded or become alien upon the Site. 7.0 Acceptance of Improvements; As -Built or Record Drawings. (a) When DEVELOPER believes that DEVELOPER has completed the Improvements in accordance with this Agreement, DEVELOPER shall notify CITY in writing (such notice, a "Notice of Completion'). Promptly after receiving a Notice of Completion (but in no event later than seven (7) business days after receiving such notice), CITY shall inspect the Improvements and promptly thereafter (but in no event later than seven (7) business days thereafter) either: (i) accept the Improvements by countersigning such Notice of Completion and returning such 5 US-DOCSWM9237.11 countersigned notice to DEVELOPER; or (ii) if any elements of the Improvements fail to comply with the requirements of this Agreement, notify DEVELOPER in writing of such elements, which notice shall specify in reasonable detail such elements and the corrective action that CITY believes that DEVELOPER must take in connection therewith to bring such elements into compliance. If CITY delivers a written notice to DEVELOPER under clause(ii) above, then: (x) the Parties shall promptly meet and confer with respect to such alleged deficiencies; and (y) DEVELOPER thereafter shall promptly correct any elements of the Improvements that fail to comply with the terms of this Agreement. The process set forth in this clause a shall be repeated on an iterative basis until all of the Improvements have been accepted by CITY. (b) CITY may, in its sole and absolute discretion, accept fully completed portions of the Improvements prior to such time that all of the Improvements are complete, which shall not release or modify DEVELOPER's obligation to complete the remainder of the Improvements. (c) Upon the total or partial acceptance of the Improvements by CITY, DEVELOPER shall file with the Recorder's Office of the County of San Bernardino a notice of completion for the accepted Improvements in accordance with California Civil Code sections 8182, 8184, 9204, and 9208, at which time the accepted Improvements shall become the sole and exclusive property of CITY without any payment therefor. Notwithstanding the foregoing, CITY may not accept any Improvements unless and until DEVELOPER provides one (1) set of "as built" or record drawings or plans to the CITY for all such Improvements. The drawings shall be certified and shall reflect the condition of the Improvements as constructed, with all changes incorporated therein. 8.0 Warranty Requirements; CITY as Third -Party Beneficiary. (a) DEVELOPER shall cause its contract with the Contractor for the construction of the Improvements (the "Construction Con&wfI to include, at a minimum, the following warranty provisions: (i) The Contractor will warrant that the Improvements will be free from Defects (as defined below) (the "Warranty") for a period of one (1) year following completion of the Improvements and acceptance by CITY thereof in accordance with Section 7.0 of this Agreement (the " Wwmnty Period"). Notwithstanding anything to the contrary in the foregoing sentence, the Warranty will not apply to any damage to any portion of the Improvements to the extent such damage is caused by: (i) normal wear and tear; (ii) improper repairs or alterations of such portion of the Improvements; (iii) CITY's failure to operate or maintain such portion of the Improvements, including in compliance with any operation and maintenance manuals for the Improvements provided by the CONTRACTOR or DEVELOPER; or (iv) any negligent act or the willful misconduct of CITY or its 6 US-DMW4839237.11 representatives. "Defect' means any element of the Improvements, including the construction or installation of such element, that does not conform to the requirements of this Agreement. (ii) If CITY or DEVELOPER notifies Contractor of any Defect at any time within the Warranty Period, then Contractor will re -perform, replace, or repair such Defect in accordance with all Applicable Laws and the requirements of the Construction Contract. The repair, replacement, or reconstruction of any Defect during the Warranty Period will be at the sole cost, expense, and liability of the CONTRACTOR and its surety. If any portion of the Improvements is repaired, replaced, or reconstructed during the Warranty Period to correct a Defect, then the CONTRACTOR and its surety will extend the Warranty Period with respect to such.portion of the Improvements for an additional one (1) year period following CITY's acceptance of the repaired, replaced, or reconstructed portion of the Improvements; provided that, notwithstanding the foregoing, the Warranty Period for any repaired, replaced, or reconstructed portion of the Improvements will not exceed a total of eighteen (18) months, regardless of any subsequent Warranty work on such portion of the Improvements. (b) DEVELOPER shall cause the Construction Contract to name CITY as a third -parry beneficiary of the Warranty provisions under the Construction Contract with the same rights and privileges as DEVELOPER with respect thereto, including, but not limited to, the right to enforce such Warranty provisions against the Contractor. 9.0 Administrative Costs. If DEVELOPER fails to construct and install all or any part of the Improvements, or if DEVELOPER fails to comply with any other obligation contained herein, DEVELOPER and its surety shall be jointly and severally liable to CITY for all reasonable, documented, and out-of-pocket administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law. 10.0 Default; Notice; Remedies. 10.1 Notice of Default; Cure; Termination. If either Party (the "Defaulting Party) fails to fulfill or timely complete any of its material obligations under this Agreement and such failure is continuing, then the other Party (the "Non Defaulting Party') may, at any time thereafter, declare the Defaulting Party to be in default or violation of this Agreement and make written demand upon the Defaulting Party (or if the defaulting Party is DEVELOPER, upon DEVELOPER, its surety, or both) to immediately remedy such failure (any such notice, a "Notice of Default'). The Defaulting Party shall thereafter promptly commence the cure of such failure within five (5) days after receiving such Notice of Default and shall use diligent and continuous efforts to cure such failure as soon as reasonably practical, but in no event later than thirty (30) days after receiving such Notice of Default; provided, however, that if such failure is not capable of being cured within such period of thirty (30) days, then such cure period shall be extended for an additional reasonable period of time (not to exceed ninety (90) days in total) so long as the Defaulting Party is working 7 US-DOCS194839237.11 diligently to cure such failure. If DEVELOPER has failed to fulfill or timely complete any of its material obligations under this Agreement and such failure constitutes an immediate threat to the public health, safety, or welfare, CITY may provide the Notice ofDefault to DEVELOPER orally, and DEVELOPER shall substantially commence the cure of such failure within twenty-four (24) hours thereof. If the Defaulting Parry does not cure such failure within the time periods set forth in this Section 10.1, then the Non -Defaulting Party shall have the right: (a) to terminate this Agreement by delivering a written notice of termination to the Defaulting Party; and (b) to pursue all remedies available to it at law or in equity; .. row that such failure has not been cured by the Defaulting Party by the date on which the Defaulting Party receives such notice of termination. 10.2 Failure to Remedy. If: (a) DEVELOPER has failed to fulfill or timely complete any of its material obligations under this Agreement and has failed to cure such failure within the applicable time periods set forth in Section 10.1.; and (b) CITY has terminated this Agreement in accordance with Section 10. 1, then, in addition to any other remedies that CITY may have at law or in equity, CITY may, in its sole discretion, complete, or arrange for the completion of, the Improvements at the sole and absolute cost, expense, and liability of DEVELOPER and its surety. CITY's right to take such actions shall in no way be limited by the fact that DEVELOPER or its surety may have constructed any of the Improvements at the time of CITY's demand for performance. In the event CITY elects to complete or arrange for completion of the improvements, CITY may require all work by DEVELOPER or its surety to cease in order to allow adequate coordination by CITY. 103 Other Remedies. No action by either Party pursuant to Sections 10.1 or 10.2 of this Agreement shall prohibit such Party from exercising any other right, or pursuing any other legal or equitable remedy, available under this Agreement or Applicable Law. Either Party may exercise its rights and remedies independently or cumulatively, and each Party may pursue inconsistent remedies. Either Party may institute an action for damages, injunctive relief, or specific performance. 11.0 Security; Surety Bonds. Prior to the commencement of any work on the Improvements, DEVELOPER shall cause its Contractor to provide CITY with surety bonds in the amounts and under the terms set forth below (the "Security"). The amount of the Security shall be based on the estimated actual costs to construct the Improvements, as determined by DEVELOPER in consultation with CITY (the "Estimated Costs'j. DEVELOPER's compliance with Sections 11.0 through 11.4 of this Agreement shall in no way limit or modify DEVELOPER's indemnification obligation provided in Section 12.0 of this Agreement. 11.1 Performance Bond. To guarantee the performance by DEVELOPER of its obligations under this Agreement, DEVELOPER shall cause its Contractor to provide CITY with a performance bond in an amount which sum shall be not less than one hundred percent (100%) of the Estimated Costs. CITY may, in its sole and absolute discretion, partially release a portion or portions of the Security provided under this Section 11.1 as the Improvements are accepted by CITY;rop vided that DEVELOPER is not in default on any provision of this Agreement and the total remaining Security is not less than fifty percent (50%) of the Estimated Costs. All Security provided under this Section 11.1 shall be released at the end of the Warranty Period; provided that DEVELOPER is not in default of any provision of this Agreement. 8 US-DOM\94939237.11 11.2 Labor & Material Bond. To secure payment to the subcontractors, laborers, materialmen, and other persons fimiishing labor, materials, or equipment in connection with the Improvements, DEVELOPER shall cause the Contractor to provide CITY with a labor and materials bond in an amount which sum shall not be less than one hundred percent (1001/6) of the Estimated Costs. The Security provided under this Section 11.2 shall be released by written authorization of CITY no later than six (6) months from the date on which CITY accepts the Improvements in accordance with Section 7.0. if such Security has not already been terminated or has not otherwise expired in accordance with its terms. The amount of such Security shall be reduced by the total of all stop notice or mechanic's lien claims of which CITY is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of CITY's anticipated administrative and legal expenses arising out of such claims. 11.3 Additional Requirements. The surety for any surety bonds provided as Security shall have a current AM. Best rating of at least "A " and FSC -VII, shall be licensed to do business in California, and shall have a physical office within one hundred (100) miles of the city limits. Developer shall cause the Contractor and the surety to stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Improvements, or the Plans and Specifications shall in any way affect its obligation on the Security. 11.4 Evidence of Security. Evidence of the Security shall be provided on the forms set forth in Exhibit C, unless other forms are deemed acceptable by the CITY (such acceptance not to be unreasonably withheld, conditioned, or delayed). 12.0 Indemnification. (a) Subject to Section 14.2, DEVELOPER agrees to defend, indemnify, and hold harmless CITY, its officers, elected and appointed officials, employees, agents, and volunteers (each, a "City Indemnified Party") from and against any and all claims, damages, losses, expenses, fines, penalties, judgments, demands, and actual, direct, documented and reasonable out-of-pocket defense costs and expenses (including, without limitation, amounts paid in compromise or settlement and reasonable outside legal fees arising from litigation of every nature or liability of any kind or nature including civil, criminal, administrative or investigative) (collectively, "Claims") for property damage or bodily injury that arise out of, or are in any way related to, the construction, operation, or maintenance of, or any negligent error in the design of, the Improvements prior to the date on which ownership of the Improvements are transferred to CITY in accordance with Section 7.0, except to the extent any such Claim was caused by the negligence, recklessness, or willful misconduct of any City Indemnified Party. DEVELOPER hereby waives any and all rights to any types of express or implied indemnity against any of the City Indemnified Parties arising out of the above referenced conduct. The policy limits of any insurance of DEVELOPER, its affiliates or other parties are not a limitation upon the obligation of DEVELOPER under this Section 12.0, including without limitation, the amount of indemnification to be provided by DEVELOPER The provisions of this section shall survive the termination of this Agreement. 9 US-DOCS194839237.11 (b) CITY agrees to defend (with counsel selected by DEVELOPER), indemnify, and hold harmless DEVELOPER, its officers, tribal members, employees, agents, contractors, and volunteers (each, a "Developer Indemnifwd Party) from and against any and all Claims for property damage or bodily injury that arise out of, or are in any way related to, the operation or maintenance of the Improvements on and after the date on which ownership of the Improvements are transferred to CITY in accordance with Section 7.0, except to the extent any such Claim was caused by the negligence, recklessness, or willful misconduct of any Developer Indemnified Parry. CITY hereby waives any and all rights to any types of express or implied indemnity against any of the Developer Indemnified Parties arising out of the above referenced conduct. The policy limits of any insurance maintained by CITY, its affiliates or other parties are not a limitation upon the obligations of CITY under this Section 12.0, including without limitation, the amount of indemnification to he provided by CITY. The provisions of this section shall survive the termination of this Agreement. 13.0 Insurance. DEVELOPER shall procure and maintain, and shall require the Contractor to procure and maintain, during the performance of this Agreement, insurance of the types and in the amounts described in Exhibit D. 14.0 LEVIITATION ON LIABILITY; RELEASE OF CLAIMS. 14.1 Consequential Damages. Neither Party shall be liable under this Agreement or under any cause of action related to the subject matter of this Agreement, whether in contract, warranty, tort (including negligence), strict liability, products liability, professional liability, indemnity, contribution, or any other cause of action, for loss of profit, loss of revenue, loss of reputation, loss of opportunity, the cost of obtaining or maintaining financing including any interest and bank charges, or other special, indirect, incidental or consequential losses or damages (collectively, "Consequential Damages"), and each Party hereby releases the other Party from any and all liability for such Consequential Damages. 14.2 RELEASE OF DEVELOPER. UPON TRANSFER OF THE OWNERSHIP OF THE IMPROVEMENTS TO CITY UNDER SECTION 7.0, CITY HEREBY FOREVER RELEASES AND DISCHARGES DEVELOPER FROM ANY AND ALL LIABILITY, AND WAIVES ANY AND ALL CLAIMS THAT CITY MAY HAVE AGAINST DEVELOPER AT SUCH TIME OR IN THE FUTURE, IN CONNECTION WITH THE DESIGN, CONSTRUCTION, OWNERSHIP, OPERATION, USE, OR MAINTENANCE OF THE IMPROVEMENTS (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCTS LIABILITY, PROFESSIONAL LIABILITY, INDEMNITY, CONTRIBUTION, OR ANY OTHER CAUSE OF ACTION). 15.0 Miscellaneous. 10 Us -D005\94939237.11 15.1 Entire Agreement. This Agreement contains the entire agreement between CITY and DEVELOPER and supersedes any prior oral or written statements or agreements between CITY and DEVELOPER 15.2 Assignment. Neither Parry shall assign all or any portion of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may be withheld in the other Party's sole discretion; provided that DEVELOPER may, without the consent of CITY, assign this Agreement to any instrumentality of DEVELOPER or affiliated entity. Any such assignment in violation of this Section 15.2 shall be void ab initio. 15.3 Relationship Between the Parties. The Parties hereby mutually agree that this Agreement shall not operate to create a partnership or joint venture between CITY and DEVELOPER- Nothing EVELOPERNothing herein shall be deemed to make DEVELOPER, the Contractor or any subcontractor of the Contractor an agent or contractor of CITY. The Contractor and its subcontractors are exclusively and solely under the control and dominion of DEVELOPER 15.4 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to cause its respective Party to enter into this Agreement and to bind its respective Party. 15.5 Prohibited Interests. DEVELOPER warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for DEVELOPER, to solicit or secure this Agreement. DEVELOPER also warrants that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for DEVELOPER, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon the making of this Agreement. For breach of this warranty, CITY shall have the right to rescind this Agreement without liability. 15.6 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice: To CITY: City of San Bernardino Attn: Public Works Director 290 North "D" Street San Bernardino, CA 92401 To DEVELOPER: San Manuel Band of Mission Indians Attn: Director of Real Estate and Development 26569 Community Center Drive Highland, California 92346 Depending upon the method of transmittal, notice shall be deemed received as follows: by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S. Mail. 11 US-DOM9M9237.11 15.7 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement. 15.8 Construction; References; Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to DEVELOPER include all personnel, employees, agents, and contractors of DEVELOPER, except as otherwise specified in this Agreement. All references to CITY include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 15.9 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 15.10 Waiver. 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 right by custom, estoppel, or otherwise. 15.11 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation. 15.12 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 15.13 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 15.14 Dispute Resolution: Arbitration; Mutual Waiver of Immunity (a) Negotiation. Any contractual dispute, claim or controversy (" GTaim") that arises under or with respect to this Agreement shall in the first instance be the subject of informal negotiations between designated officers of each Party who have the appropriate authority to settle any such Claim. A Claim shall be considered to have arisen when one Party sends the other a notice that identifies with particularity the nature of and the acts(s) or omission(s) forming the basis of the Claim. The period for informal negotiations shall not exceed fifteen (15) business days from the time the Claim arises, unless it is modified by written agreement of the Parties. 12 US-DOCS194839237.11 (b) Mediation. In the event that the Parties cannot resolve a Claim by informal negotiations in accordance with clause a above, the Parties agree to submit the Claim to non-binding mediation. Within fifteen (15) business days following the expiration of the time period for informal negotiations, the Parties involved in the dispute shall propose and agree upon a neutral and otherwise qualified mediator. In the event that the Parties fail to agree upon a mediator either party may request JAMS to appoint a mediator. The period for mediation shall commence upon the appointment of the mediator and shall not exceed sixty (60) days, unless such time period is modified by written agreement of the Parties. The decision to continue mediation shall be in the sole discretion of each Party. Each Party shall bear their own costs of the mediation, and the mediator's fees shall be shared equally by the Parties (c) Arbitration. If the Parties are unable to resolve any Claim pursuant to Sections 15.14(ai and 15.14ffi the Parties agree that any such Claim shall be determined by arbitration in the County of San Bernardino before one arbitrator agreed to by the Parties. The arbitration shall be administered by JAMS pursuant to its Arbitration Rules & Procedures (Comprehensive or Streamlined), and may include the Expedited Procedures. Judgment of any award issued by the arbitrator C Award') maybe entered in any court having jurisdiction. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from any court having jurisdiction. (d) Allocation of Fees and Costs. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator, the administrative costs described in Section 9.0 of this Agreement, and the reasonable attorneys' fees of the prevailing party. (e) Mutual Waiver of Immuni . CITY agrees to expressly waive any right to assert governmental immunities against the DEVELOPER, and DEVELOPER agrees t(7 expressly waive any right to assert tribal sovereign immunity against the CITY, in connection with the arbitrator's jurisdiction in any action brought pursuant to this Section to enforce the provisions of this Agreement. DEVELOPER agrees to provide CITY with a written resolution authorizing a limited waiver of its sovereign immunity from suit, attached hereto as Forb t F. 15.15 Facsimile; Counterparts. Either Party may deliver executed signature pages to this Agreement by facsimile or electronic transmission to the other Party, which facsimile or electronic copy shall be deemed to be an original executed signature page. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute a single instrument. [Signature Page(s) Follows] 13 US-AQCSXM39237.11 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. CITY OF SAN BERNARDINO, a California municipal corporation By. Name: Andrea M Miller Title: City Manager Approved as to Legal Form: GARY D. SAENZ, City Attorney ATTEST Georgeann Hanna, City Clerk: THE SAN MANUEL BAND OF MISSION INDIANS, a federally recognized Indian tribe By: Name: Title: [Signature Page to Infrastructure Improvement Agreement] y= - THE SAN MANUEL BAND OF MISSION INDIANS, a federally recognized Indian tribe By: Name: Title: [Signature Page to Infrastructure Improvement Agreement] EDIT A DESCRIPTION OF I PROVEMENTS [See attached] EXHIBIT A-1 US-DQCS\9M9137.11 EXHIBIT A DESCRIPTION OF IMPROVEMENTS The Project will be comprised of evaluation and rehabilitation of asphaltic concrete pavement in ten (10) segments of public streets listed below: 1. Approximately 3,850 linear feet of North Victoria Avenue, from north of Highland Avenue to the intersection with Lynwood Drive. 2. Approximately 1,900 linear feet of Citrus Street, from east of North Victoria Avenue to the intersection with Bangor Avenue. 3. Approximately 500 linear feet of Havasu Court, north of Citrus Street. 4. Approximately 500 linear feet of Pinon Court, north of Citrus Street. 5. Approximately 590 linear feet of Mojave Court, north of Citrus Street. 6. Approximately 650 linear feet of Indian Canyon Court, from north of Citrus Street to south of Piedmont Drive. 7. Approximately 365 linear feet of Roadrunner Court, north of Citrus Street. 8. Approximately 165 linear feet of Oleta Lane, north of Citrus Street 9. Approximately 380 linear feet of Bangor Avenue, from north of Citrus Street to south of Piedmont Drive. 10. Approximately 500 linear feet of Central Avenue, from north of Piedmont Drive to San Manuel Reservation Boundary. EYMIT B DESCRIPTION OF SITE [See attached] EDIT B-1 US-DOCM"839237.11 GRAPHIC SCALE 3�' R �; ; 'r . 0 30 800 a: SAN _.1�1`E`�- t may. 4XVIALV R�`.�Er{R�TID1V ( IN FEET ) i� 1 inch — 600 ft. LEGEND PROJECT AREA M , J Rb h �. 4- 711 - ' �-�-��'- � s �.. •��-d ....... ,. ._��. - �s .,.� a r-y— �. i.! � � _"ir _ ar ITT + I t % I t I -.-- ' - ' - • - - jv.;_ _.--:--:-ati.,--rte^'. �' I -- - - �� "�" S��=a 1t V,_.- EXHIBIT B PREPARED BY. PUNSAKEA &ASSOCIATES r'z �v,�E• ,N°. PROJECT SITE I . , ..r.w • .r x= , T 11lM�iOO 1lbA IIID WAMM - rwem Y 1WA.fl��l<�l FORMS FOR SECURITY [See attached) EXHIBIT C-1 US-DOC3W4839237,11 BOND NO. INITIAL PREMIUM: SUBJECT TO RENEWAL PERFORMANCE BOND WHEREAS, the City of San Bernardino ("CITY") has executed an agreement with the San Manuel Band of Mission Indians (hereinafter "DEVELOPER'), requiring DEVELOPER to perform certain work consisting of, but not limited to, furnishing all labor, materials, tools, equipment, services, and incidentals for the construction of street and transportation system improvements (hereinafter the "Work"); WHEREAS, the Work to be performed by DEVELOPER is more particularly set forth in that certain Infrastructure Improvement Agreement dated "March 2018 (hereinafter the "DEVELOPER Agreement'); and WHEREAS, DEVELOPER has engaged [Contractor] (hereinafter "CONTRACTOR") to perform the Work on behalf of DEVELOPER under that certain [Construction Contract], dated [date] (the "Agreement'j; and WHEREAS, CONTRACTOR is required by the Agreement: (a) to provide (and DEVELOPER is obligated under the DEVELOPER Agreement to cause CONTRACTOR to provide) a good and sufficient bond for performance of the Work; and (b) to warranty the Work constructed thereunder; and WHEREAS, the Agreement is hereby referred to and incorporated herein by this reference; and NOW, THEREFORE, we the undersigned, CONTRACTOR, as Principal and [Surety], a corporation organized and existing under the laws of the State of [state] and duly authorized to transact business under the laws of the State of California, as Surety: (a) are held and firmly bound unto the CITY in the sum of [Amount] ($ ), said sum being not less than one hundred percent (100%) of the total cost of the Work as set forth in the Agreement, and (b) bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such, that if CONTRACTOR, or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless CITY, its officers, employees, and agents, as E�LHIBTT C-2 I,Is-noC5\94839237.1 1 stipulated in the Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by CITY in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or additions to the terms of the said Agreement or to the Work to be performed thereunder or the specification accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the Worm. IN WITNESS WHEREOF, we have hereto set our hands and seals this [number] day of [month], 2017. Principal By: Its: Surety By: Attorney -in -Fact EI1MIT C-3 US-DOCS19M9237.11 BOND NO. INITIAL PREMIUM: SUBJECT TO RENEWAL LABOR & MATERIAL BOND WHEREAS, the City of San Bernardino ("CITY'] has executed an agreement with the San Manuel Band of Mission Indians (hereinafter "DEVELOPER"), requiring DEVELOPER to perform certain work consisting oi, but not limited to, furnishing all labor, materials, tools, equipment, services, and incidentals for the construction of street and transportation system improvements (hereinafter the "Work); WHEREAS, the Work to be performed by DEVELOPER is more particularly set forth in that certain Infrastructure Improvement Agreement dated March 2018 (hereinafter the "DEVELOPER Agreement"); and WHEREAS, DEVELOPER has engaged [Contractor] (hereinafter "CONTRACTOR") to perform the Work on behalf of DEVELOPER under that certain [Construction Contract], dated [date] (the "Agreement"); and WHEREAS, CONTRACTOR is required to furnish a bond in connection with the Agreement providing that if CONTRACTOR shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for or about the performance of the Work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the provisions of 3248 of the California Civil Code. with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney's fee in case suit is brought on the bond. NOW, THEREFORE, we the undersigned, CONTRACTOR, as Principal and [Surety], a corporation organized and existing under the laws of the State of [State] and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the CITY and to any and all material men, persons, companies or corporations fiunishmg materials, provisions, and other supplies used in, upon, for or about the performance of the said Work, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to said Work to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid, the sum of [amount] ($), said sum being not less than 100% of the total amount payable to CONTRACTOR EBIT C-4 US-AOCSV4839237.11 under the terms of the Agreement, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if CONTRACTOR or its heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Work contracted to be done, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 9100, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to he deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein. In case legal action is required to enforce the provisions of this bond, the prevailing party shall be entitled to recover reasonable attorneys' fees in addition to court costs, necessary disbursements and other consequential damages. In addition to the provisions hereinabove, it is agreed that this bond will inure to the benefit of any and all persons, companies and corporations entitled to make claims under Sections 8024, 8400, 8402, 8404, 8430, 9100 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or additions to the terms of the Agreement or to the Work to be performed thereunder or .e specification accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the Work. IN WITNESS WHEREOF, we have hereto set our hands and seals this [number] day of [month], 2017. Principal By: Its: EICMIT C-5 US-DUCS194839237.11 Surety m Attorney -in -Fact EX]Mff C-6 us-nocs\94839237.11 EX IBrr D INSURANCE 1.0 Types; Amounts. DEVELOPER shall procure and maintain, and shall require contractors to procure and maintain, during performance of this Agreement, insurance of the types and in the amounts described below ("Required Insurance"). If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit. (a) General Liability. Occurrence version general liability insurance, or equivalent form, with a limit of not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage. (b) Automobile Liability. Automobile liability insurance with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any auto owned, leased, hired, or borrowed by the insured or for which the insured is responsible. (c) Workers' Compensation. Workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence, at all times during which insured retains employees. (d) Professional Liability. For any consultant or other professional who will engineer or design the Improvements, liability insurance for errors and omissions with limits not less than Two Million Dollars ($2,000,000) per claim, shall be procured and maintained for a period of five (5) years following completion of the Improvements. Such insurance shall be endorsed to include contractual liability. 2.0 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by CITY. 3.0 Additional Insured; Separation of Insureds. The Required Insurance shall name CITY, its elected officials, officers, employees, and agents as additional insureds with respect to work performed by or on behalf of DEVELOPER or its contractors, including any materials, parts, or equipment finished in connection therewith. The Required Insurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to CITY, its. elected officials, officers, employees, or agents. 4.0 Primary Insurance; Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering CITY, its elected officials, officers, employees, or agents. The policy required for workers' compensation insurance shall provide that the insurance company waives all right of recovery by way of subrogation against CITY in connection with any damage or harm covered by such policy. EX "ff D-1 us-nocM93M7.11 5.0 Certificates; Verification. DEVELOPER and its contractors shall furnish CITY with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by CITY before work pursuant to this Agreement can begin. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time. 6.0 Term; Cancellation Notice. DEVELOPER and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on thirty (30) days' prior written notice to CITY. 7.0 Insurer Rating. Unless approved in writing by CITY, all Required Insurance shall be placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least "A" and FSC -VIII. EI=IT D-2 US-DOCS\94939239.11 EXHIBIT E APPLICABLE PUBLIC WORKS LAW PROVISIONS None. US-DOCS144839237.11