Loading...
HomeMy WebLinkAboutContracts & Agreements_214-2022COOPERATIVE AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND THE CITY OF REDLANDS (MOUNTAIN VIEW AVENUE PROJECT) This COOPERATIVE AGREEMENT (this "Agreement'), dated as of 2022 (the "Effective Date"), by and among the City of San Bernardino, a charter city ("San Bernardino') and the City of Redlands, a general law city ("Redlands"). San Bernardino, and Redlands are sometimes individually referred to each as a "Party" and collectively referred to as the "Parties." Recitals WHEREAS, the Inland Valley Development Authority (IVDA) is a special military base reuse Joint Powers Authority dedicated to the effective reuse of the former Norton Air Force Base. WHEREAS, the IVDA is currently carrying out Phase II of the Mountain View Avenue Widening Project ("Mountain View Project') in order to widen and rehabilitate Mountain View Avenue from the Santa Ana River Bridge to just south of the Mission Creek Channel. WHEREAS, IVDA has constructed a new bridge over Mission Creek (the "Mission Creek Bridge") as part of the Mountain View Project, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference. WHEREAS, the border between the cities of San Bernardino and Redlands is located on the centerline of Mountain View Avenue. WHEREAS, the Mission Creek Bridge is aligned with Mountain View Avenue with approximately east half of the Mission Creek Bridge located in Redlands and the west half in San Bernardino. WHEREAS, due to the Mission Creek Bridge being located within the jurisdictions of Redlands and San Bernardino, the PARTIES mutually desire to identify the maintenance responsibilities for the Mission Creek Bridge. NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties agree as follows: Section 1. Definitions. As used in this Agreement, the following words and terms shall have the meaning as provided in the Recitals or in this section unless the specific context of usage of a particular word or term may otherwise require: "Mission Creek Bridge" means the bridge constructed over the Mission Creek Channel by IVDA. "Effective Date" means the date first above referenced in the introductory paragraph of this Agreement. "Redlands" means the City of Redlands, a general law city, and its officials, officers, employees, volunteers and agents 1 L:\ea\Agreements\Coop Agreement CIty of SB Mountain_View_Ave_Maintenace_Agreement-FY22-0034.doc jm "San Bernardino" means the City of San Bernardino, a charter city, and its officials, officers, employees, volunteers and agents. Section 2. Term. The term of this Agreement shall become effective on the Effective Date first shown above and shall remain in full force and effective until amended, unless otherwise terminated or extended by mutual agreement of the Parties. Section 3. Maintenance of the Mission Creek Bridge. Section 3.1 It is the intent of the Parties that the Mission Creek Bridge be maintained and kept in a safe condition and repair and in compliance with all applicable laws and safety regulations. During the term of this Agreement Redlands shall be responsible for the maintenance and repair of the Mission Creek Bridge as provided in this Section 3, and by this Agreement is permitted to enter the west half of the Mission Creek Bridge located in San Bernardino to perform its obligations under this Agreement. Section 3.2 Redlands will maintain the entire Mission Creek Bridge including the traveled way, shoulders, curbs, sidewalks, and structural drainage systems with the cost being shared by the Parties as described by Section 4. Section 3.3 Each Party will maintain at their expense the Party's utilities such as water and storm drain, that are within the Mission Creek Bridge, as well as lighting, traffic service facilities (signs, pavement markings) and the elimination of graffiti that is within their jurisdiction. Section 3.4 Redlands shall arrange for an annual inspection of the Mission Creek Bridge by a Caltrans approved inspector. Specific inspection dates shall be coordinated with the inspector and Redlands shall provide a copy the report issued by the inspector to San Bernardino. Redlands shall be responsible for performing all maintenance and repair of the Mission Creek Bridge as recommended in the inspection report together with such other maintenance and repairs as reasonably necessary to maintain the Mission Creek Bridge in accordance with the standards in 3.1 above. Section 3.5 San Bernardino shall have the right to perform inspections of the Mission Creek Bridge independent from the annual inspection under 3.4 above, which inspections shall be made at the expense of San Bernardino. If such inspection reveals any necessary maintenance or repairs the inspecting Party shall provide a written report to Redlands detailing the required maintenance or repairs. Redlands will have a reasonable period of time to review the requested maintenance or repairs, to inspect the Mission Creek Bridge and either undertake such work or respond to San Bernardino as to the necessity and scope of the requested work. In the event if any difference of opinion as to any necessary maintenance or repairs to the Mission Creek Bridge all of the Parties will meet, confer, and cooperate in good faith pursuant to Section 6 below to determine the necessary work to maintain the Mission Creek Bridge in accordance with the standards in 3.1 above. Section 4. Payment Section 4.1 Redlands shall provide San Bernardino a detailed invoice of the cost of the inspection, maintenance, and repair of the Mission Creek Bridge as described by Section 3 and any associated permitting costs within 30 calendar days of the maintenance and repair being conducted. San Bernardino shall have 60 calendar days from the date of receiving the invoice to reimburse Redlands fifty percent (50%) of the cost. In the event of a difference of opinion between the Parties as to the costs L:\ca\Agreements\Coop Agreement CIty of SB Monntain_View_Ave Maintenace Agreement-FY22-0034.doe jm included in the invoice the Parties will meet, confer and cooperate in good faith pursuant to Section 6 below to reach a mutual understanding of the invoice amount. Section 5. Insurance and hidemnity Section 5.1 All insurance required by this Agreement is to be maintained by Redlands for the term of this Agreement, and all such insurance shall be primary with respect to Redlands and non- contributing to any insurance or self-insurance maintained by San Bernardino. Redlands shall provide San Bernardino with certificates of insurance and endorsements evidencing such insurance within ten (10) days of the Effective Date of the Agreement. No contractor of Redlands shall perform any maintenance or repair work for the Mission Creek Bridge unless Redlands provides to San Bernardino certificates of insurance and endorsements evidencing the contractor's compliance with the requirements of this Section prior to the commencement of such work. a. Workers' Compensation and Employer's Liability. Redlands shall secure and/or self -insure, and require its contractors to secure, workers' compensation and employer's liability insurance in an amount which satisfies statutory requirements with an insurance carrier reasonably acceptable to San Bernardino in connection with any construction, maintenance or repair work performed for the Mission Creek Bridge by Redlands and its contractors pursuant to Redlands obligations under this Agreement. b. Comprehensive General Liability Insurance. Redlands shall secure and/or self - insure, and require its contractors to secure, comprehensive general liability insurance covering all maintenance or repair work performed for the Mission Creek Bridge by Redlands and its contractors pursuant to Redlands' obligations under this Agreement, with carriers reasonably acceptable to San Bernardino. Minimum coverage of one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate for public liability, property damage and personal injury is required. San Bernardino, and their elected officials, officers and employees, shall be named as additional insureds, and the insurance policies shall include a provision prohibiting modification of the coverage limits or cancellation of the policy except upon thirty (30) days prior written notice to San Bernardino. C. Business Auto Liability Insurance. Redlands shall secure and/or self -insure, and require its contractors to secure, business auto liability coverage, with minimum limits of one million dollars ($1,000,000) per occurrence, combined single limit for bodily injury liability and property damage liability. This coverage shall include all Redlands and its contractor owned vehicles, hired and non - owned vehicles, and employee non -ownership vehicles used in connection with any maintenance or repair work performed for the Mission Creek Bridge by Redlands and its contractors pursuant to the Redlands' obligations under this Agreement. San Bernardino and their elected officials, officers and employees shall be named as additional insureds, and the insurance policies shall include a provision prohibiting modification of the coverage limits or cancellation of the policy except upon thirty (30) days prior written notice to San Bernardino. Section 5.2 Indemnity/Hold Harmless. San Bernardino and their elected officials, officers, employees and agents (collectively, the "Indemnified Parties") shall not be liable for any injuries (as defined by Government Code section 810.8) to persons or property occasioned by reason of the negligent acts or omissions, or willful misconduct, of Redlands, or its employees, contractors and agents, in the performance of the Redlands' maintenance obligations for the Mission Creek Bridge under this Agreement. Redlands further agrees to protect, defend, indemnify and hold harmless the Indemnified Parties from any and all claims, demands, causes of action, injuries, liability or loss of any kind, resulting from, or arising out of, the negligent acts or omissions, or willful misconduct, of Redlands, or its employees, contractors and agents in the performance of any maintenance or repair work performed, or 3 L:\ca\Agreements\Coop Agreement CIty of SB Mountain_ View_Ave _Maintenace_Agreement-FY22-0034.doe-jm caused to be performed, by Redlands for the Mission Creek Bridge pursuant to Redlands' obligations under this Agreement, except however, Redlands is not obligated to protect, defend or indemnify Indemnified Parties for any claims, demands, damages or losses resulting from the negligence or willful misconduct of Indemnified Parties in connection with or arising from this Agreement.. The indemnity and hold harmless provided by Redlands hereunder shall not extend to any claims, actions, demands, damages or losses related to the design of the Mission Creek Bridge or the initial construction of the Mission Creek Bridge, it being the understanding of the Parties that the indemnity and hold harmless hereunder shall only be applicable to Redlands performance of maintenance work to the Mission Creek Bridge in accordance with this Agreement. Section 6. Dispute Resolution Section 6.1. hi the event of a dispute, claim or controversy arising from or in relation to this Agreement, the Parties agree to meet and confer in a good faith attempt to resolve said dispute, claim or controversy within fourteen (14) calendar days after the receipt of written notice from the Party alleging that a dispute, claim or controversy exists or in the event of a claimed default fourteen (14) calendar days after the date of the notice provided under Section 10 below. The Parties additionally agree to cooperate with the other Party in scheduling negotiation sessions. However, if said matter is not resolved within thirty (30) calendar days after conducting the first negotiating session, any Party may then request that the matter be submitted for mediation or non -binding arbitration as determined by the Parties; provided that no Party shall be required to submit to mediate or non- binding arbitration. Section 6.2. The Parties agree that those Parties participating in mediation or arbitration shall share the fees of the mediator, arbitrator and all costs associated with mediation and arbitration proceeding; provided, however, each Party that is subject to the proceeding shall be responsible for its own legal costs, including attorneys' fees and the costs associated with experts. Section 7. Default. Section 7.1. The failure or delay by any Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the Party who are otherwise claimed to be in default by the other Party commences to cure, to correct or to remedy the alleged default within thirty (30) calendar days after receipt of written notice specifying such default and thereafter diligently undertakes efforts to complete such cure, correction or remedy, such Party shall not be deemed to be in default hereunder. The Party claiming that a default has occurred shall give written notice of default to the defaulting Party specifying the deficiencies causing the alleged default. Delay in giving such written notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the non -defaulting Party shall have no right to exercise any remedy for a default hereunder without first delivering the written default notice as specified herein. Section 7.2. In the event that the defaulting Party fails to commence to cure, to correct or to remedy a default within thirty (30) calendar days following receipt of written notice, or thereafter fails to diligently complete such cure, correction or remedy, a breach of this Agreement shall be deemed to have occurred. In the event of a breach the non -defaulting Party shall have all rights and remedies available under applicable law, including the right to terminate this Agreement through a written notice of termination. Disputes regarding the facts that may have given rise to termination under this section shall be subject to the dispute resolution provisions provided in Section 6 above. Section S. Force Majeure. In addition to specific provisions of this Agreement, performance by any Party hereunder shall not be deemed to be in default, or considered to be a default, where delays or 4 L:\ca\Agreements\Coop Agreement CIty of SB Mountain View Ave Maintenaee_Agreement-FY22-0034.doc-jm defaults are due to the force majeure events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or lack of transportation, weather -caused delays, inability to secure necessary labor, materials or tools, delays of any contractors, subcontractor or supplier, which are not attributable to the fault of the Party claiming an extension of time to prepare or acts or failure to act of any public or governmental agency or entity. An extension of time for any such force majeure event shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the Parry that claims the existence of the delay has first provided the other Party with written notice of the occurrence of the delay within seven (7) calendar days after the commencement of such occurrence or delay. A Party's failure to timely submit such notice of the occurrence of the delay pursuant to this Section shall be precluded from asserting the occurrence of an enforced delay or force majeure event. Section 9. Approvals. Approvals required of the Parties, or any officers, agents or employees of any Party, shall not be unreasonably withheld and approval or disapproval shall be given within a reasonable time. Section 10. Notices. Demands and Communications Between the Parties. Section 10.1. Formal notices, demands and communications between the Parties shall be deemed sufficiently given if: (i) dispatched by registered or certified mail via the United States Postal Service, postage prepaid, return receipt requested, as designated in this Section, or (ii) by messenger service for immediate personal delivery, or (iii) by electronic transmittal, including fax transmissions with telephonic verification receipt. Such written notices, demands and communications may be sent in the same manner to such other addresses as the Parties may from time to time designate by written notice to the other Parties. Section 10.2. All notices, demands and communications shall be sent, as follows: TO SAN BERNARDINO City of San Bernardino Attn: City Manager 300 North "D" Street, 6Ch Floor San Bernardino, CA 92418 TO REDLANDS: City of Redlands Attn: City Manager 35 Cajon Street, Suite 200 Redlands, CA 92373 Section 11. Amendment. This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing signed by all of the Parties. Section 12. Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Section 13. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. L:Aca\AgreementsACoop Agreement CIty of SB Mountain_ View_Ave _Maintenace_Agreement-FY22-0034.doc-jm Section 14. Time is of the Essence. For each provision of this Agreement which states a specific amount of time within which the requirements thereof are to be satisfied, time shall be deemed of the essence. Section 15. Third Party Beneficiaries. This Agreement and the performance of the Parties' obligations hereunder are for the sole and exclusive benefit of the Parties. No person or entity who or which is not a signatory to this Agreement shall be deemed to be benefited or intended to be benefited by any provision hereof, and no such person or entity shall acquire any rights or causes of action against the Parties hereunder as a result of any Party's performance or nonperformance of their respective obligations under this Agreement. Section 16. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to conflicts of laws principles. This Agreement shall be deemed to have been made in the County of San Bernardino, State of California, regardless of the order of the signatures of the Parties affixed hereto. Any litigation or other legal proceedings which arise under or in connection with this Agreement shall be conducted in a federal or state court located within or for the County, in the State. The Parties consent to the personal jurisdiction and venue in federal or state court located within or for the County, in the State, and hereby waive any defenses or objections thereto including defenses based on the doctrine of forum non conveniens. Section 17. Constriction; References; Captions. 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 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 San Bernardino, and to Redlands include all officials, officers, employees, personnel, agents, volunteers, contractors and subcontractors of San Bernardino and Redlands, 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, the content, or the intent of this Agreement. Section 18. Waiver. No delay or omission in the exercise of any right or remedy of a non -defaulting Party or Parties on any default shall impair such right or remedy or be construed as a waiver. Any Parties' consent or approval of any act by the other Party requiring its consent or approval shall not be deemed to waive or to render unnecessary its consent to or approval of any subsequent act of the other Party. Any waiver by any Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. Section 19. Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. Section 20. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder. Section 21. Binding Effect. The terms of this Agreement shall inure to the benefit of, and shall be binding upon, each of the Parties and their respective successors and assigns. 6 L:\ea\Agreements\Coop Agreement Oty of SB Mountain_ View_Ave _Maintenace_Agreement-FY22-0034.doc jm Section 22. Authorized Representatives. The person or persons executing this Agreement on behalf of the Agency, of San Bernardino and Redlands warrant and represent that he/she has the authority to execute this Agreement on behalf of that Party and that they have the authority to bind that Party to the performance of its obligations herermder. Section 23. Entire Agreement. This Agreement constitutes the entire and integrated agreement of San Bernardino and Redlands with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral or written negotiations, representations or agreements. [SIGNATURES ON THE FOLLOWING PAGE] 7 L:\ca\Agreemems\Coop Agreement City of SB Mountain_ View_ Ave_Maintenaee_Agreement-FY22-0034.doc-im SIGNATURE PAGE TO COOPERATIVE AGREEMENT SAN BERNARDINO City of San Bernardino, a charter city 1-2 Robert D. Field, City Manager Dated. - APPROVED AS TO LEGAL FORM: By: Best Best Krieger, City Attorney ATTEST: By: Genoveva Rocha, CMC, City Clerk REDLAN Ci of Redlands By: Paul T. Barich, Mayor Dated: 2 2 APPR UED AS T}OLEGAL F By: r r� vette M. Abich Garcia, City Attorney ATTEST: By: nne Donaldson, City Clerk 8 L:Ica\Agreements\Coop Agreement CIty of SB Mountain_View_Ave_Maintenace_Agreement-FY22-0034.doc-im Mission Creek Bridge spans the Mission Creek approximately 0.3 miles north of the I-10 Freeway and approximately 0.2 miles south of E. Victoria Avenue/Almond Avenue. The centerline of Mountain View Avenue, therefore the bridge, is the border between the City of San Bernardino and the City of Redlands. 9 L:IcalAgreements\Coop Agreement CIty of S$ Mountain —View —Ave Maintenace_Agreement-FY22-0034.doc-jm