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HomeMy WebLinkAboutContracts & Agreements_18-2024THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY Contract .Number SAP Number San Bernardino County Flood Control District Department Contract Representative Michael B. Fam Telephone Number 909-387-8120 Contractor Contractor Representative Telephone Number Contract Term Original Contract Amount Amendment Amount Total Contract Amount Cost Center City of Redlands Gerard Nepomuceno, P.E. 909-798-7584 ext. 4 Not Applicable $2,150,000 $2,150,000 1930002526 - F02870 IT IS HEREBY AGREED AS FOLLOWS: WITNESSETH WHEREAS, the San Bernardino County Flood Control District (DISTRICT) and the City of Redlands (REDLANDS) are signatories to this AGREEMENT, and may hereinafter be individually referred to as a "PARTY" and, collectively referred to as the "PARTIES"; and WHEREAS, the PARTIES desire to cooperate and jointly participate in the development, funding, and construction of improvements to the flood control facility, generally referred to as the Mission Channel Box Culvert Crossing at the intersection of Redlands Boulevard and California Street (hereinafter referred to as the "PROJECT"); and WHEREAS, the PROJECT has been recognized as a significant Secondary Flood Protection Facility with regional impacts and the funding was recommended as a part of the DISTRICT's Zone 3 Priority Project List and Ten -Year Construction Funding Program; and WHEREAS, the PARTIES agree that the PROJECT will be of mutual benefit to the PARTIES; and Standard Contract Page 1 of 10 WHEREAS, the estimated PROJECT cost is Four Million Three Hundred Thousand Dollars ($4,300,000) as shown on Exhibit A; and WHEREAS, the PARTIES agree that the participation funding ratio (RATIO) for the PROJECT shall be fifty percent (50%) by the DISTRICT and fifty percent (50%) by REDLANDS; and WHEREAS, the PARTIES agree that the DISTRICT will contribute to the total PROJECT costs by reimbursing REDLANDS 50% of the estimated PROJECT cost, in an amount not to exceed Two Million One Hundred Fifty Thousand Dollars ($2,150,000) as illustrated in Exhibit A; and WHEREAS, the PARTIES agree that REDLANDS will share in the total PROJECT costs by contributing 50% of the estimated PROJECT cost, in the amount of Two Million One Hundred Fifty Thousand Dollars ($2,150,000) as illustrated in Exhibit A; and WHEREAS, the PARTIES agree that the PROJECT costs include engineering design, inspection, materials testing, construction management, environmental permitting, utility relocation, construction, and contingencies of the PROJECT; and WHEREAS, REDLANDS will act as the Lead Agency on the PROJECT; and WHEREAS, the PARTIES understand that the DISTRICT does not currently have the full funding available for its share of the cost to fund the PROJECT within its Flood Control Zone 3 construction budget and, therefore, will reimburse REDLANDS per the reimbursement schedule, as stipulated under Section 2.1 and outlined in Exhibit B; the DISTRICT does reserve the right to amend the reimbursement schedule should an event occur that requires the DISTRICT to re -allocate funding from improvement projects, such as this PROJECT, to maintenance and repair of its facilities; and WHEREAS, as the Lead Agency, REDLANDS is willing to advance the total funding for the PROJECT and will be responsible for all costs including engineering design, inspection, materials testing, construction management, environmental permitting, property acquisition, utility relocation, construction, and contingencies of the PROJECT; and WHEREAS, upon completion of the PROJECT, the PARTIES agree that REDLANDS shall own, operate, and maintain the PROJECT within its jurisdictions accordingly; and WHEREAS, the PARTIES desire to set forth their respective responsibilities and obligations regarding construction of the PROJECT. NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: SECTION I 1.0 REDLANDS AGREES TO: 1.1 Act as the Lead Agency to prepare all environmental documents, construction plans, specifications, engineer's estimates, and administer construction, including advertisements for bids, bid reviews, contract awards, construction, and all other needed inspections of the PROJECT. 1.2 Submit to the DISTRICT contract plans, specifications, engineer's cost estimates, invoices, and progress reports regarding the PROJECT for review and approval prior to reimbursement. REDLANDS shall not commence advertising for the PROJECT contract bids until DISTRICT has reviewed and approved the contract plans, specifications, and engineer's cost estimates for the PROJECT in writing. Revised Page 2 of 10 1.3 Process necessary environmental documents as required, including but not limited to, pursuant to the California Environmental Quality Act, and obtain all necessary environmental agencies' clearances for the construction of the PROJECT. 1.4 Provide all services to acquire any right-of-way needed for the PROJECT, including, but not limited to, eminent domain procedures, contacting owners or occupants, entering properties, inspecting, negotiating right-of-way takes, negotiating easements or replacement property for impacted trees, fences, drive approaches, and other property structures. 1.5 Provide reasonable timely notification to the DISTRICT of any meetings related to the PROJECT and schedule Project Development Team (PDT) meetings periodically before and during construction to ensure that DISTRICT have the opportunity to be represented. 1.6 Provide the DISTRICT with copies of all reports and other technical documents related to the PROJECT and allow the DISTRICT to comment prior to accepting such report or document. 1.7 Arrange for relocation of any utilities that may interfere with construction of the PROJECT within the PROJECT sites. 1.8 Obtain a no -cost encroachment permit from the DISTRICT for the portion of the PROJECT constructed within DISTRICT owned land and right-of-way. 1.9 Ensure PROJECT is constructed in accordance with the plans and specifications approved by the DISTRICT. 1.10 Enter into construction contract(s) with contractor(s) for the PROJECT. 1.11 Advertise, award, administer, and fund construction of the PROJECT in accordance with all applicable laws, including but not limited to, the Public Contract Code, the Civil Code, the Labor Code, and the Business and Professions Code. 1.12 Perform inspections of all items of work performed under the construction contract(s) with REDLANDS' contractors or subcontractors for the PROJECT and maintain adequate records of inspection and materials testing made available for review to the DISTRICT. REDLANDS shall provide copies of all records of inspection including inspection notes and materials testing to the DISTRICT within ten (10) business days of REDLANDS' receipt of written request from the DISTRICT for such records. 1.13 Provide the DISTRICT the opportunity to inspect the PROJECT during all phases of construction in accordance with the provisions of the encroachment permit, obtained per Section 1.8 above. 1.14 Pay all costs for the PROJECT including the DISTRICT's share as set forth in Section 2.3. REDLANDS, at its sole discretion, may advance the DISTRICT's share of the cost of the PROJECT, which shall be reimbursed by the DISTRICT as set forth in Section 2.1. 1.15 Submit progress reports on a regular and consistent basis to meet the DISTRICT's requirement for reimbursement of funds. The reporting period shall not exceed one quarter of the year in length. The progress reports may be sent via email; however, an official hardcopy shall be sent to the DISTRICT's Project Manager. The progress reports shall provide a brief description of the work performed during the reporting period including activities, milestones achieved, major accomplishments and any problems encountered in the performance of the PROJECT. 1.16 Provide the DISTRICT invoices on a quarterly basis for cost incurred on the PROJECT and shall include at minimum the following information: Revised Page 3 of 10 a. .Cost incurred for work performed in implementing the PROJECT during the period identified in the particular invoice, including the RATIO of costs to be allocated between the PARTIES as set forth in Exhibits A and B. b. Cost incurred for any interest in real property (land or easement) that have been necessarily acquired for the PROJECT during the period identified in the particular invoice for the implementation of the PROJECT. c. Invoices submitted shall meet the following format requirements: 1. Cover letter with signature from the responsible REDLANDS official. 2. Invoice must contain date of invoice, time period covered by the invoice, and the total amount due. 3. A cost breakdown in table format with Vendor (Contractor, Invoices and Staff Time), description of costs, total costs for each line item and the DISTRICT's and REDLANDS' cost share for every invoice. 4. Invoices must be itemized. 5. Sufficient backup documentation (e.g. receipts, copies of checks, time sheets, labor reports, cost accounting reports,) as reasonably determined by the DISTRICT must be provided to support all charges and all costs included in the invoice. Additional cost share shall be accounted for separately in the progress reports. d. Cost incurred for the relocation of any utility associated with PROJECT before or during construction. e. Submit the original, signed, invoice to the following address: Michael Pam, P.E. Flood Control Planning Division 825 East Third Street, Room 122 San Bernardino, CA 92415-0835 1.17 Own, operate, and maintain the PROJECT within REDLANDS's jurisdiction, upon completion of the PROJECT and acceptance of the PROJECT work by DISTRICT, pursuant to Section 3.5. 1.18 Require all contractors and vendors working on the PROJECT to: 1.18.1 Have appropriate and adequate insurance coverage for the mutual protection and benefit of the PARTIES. DISTRICT and San Bernardino County (COUNTY) shall be added as an additional insured on all contracts awarded by REDLANDS. The limits of Liability in the Public Liability and Property Damage policy or policies shall not be less than $1,000,000 combined single limit; 1.18.2 Add DISTRICT as an obligee, to the Payment and Performance Bonds provided for the PROJECT and name DISTRICT as express third -party beneficiaries to the PROJECT contract documents; and 1.18.3 Indemnify, defend, and hold the PARTIES and COUNTY harmless from all claims and liabilities resulting in whole or in part from the acts or omissions of the contractor or vendor, to the full extent permitted by law, 1.19 Provide status reports regarding the PROJECT to the DISTRICT within fourteen (14) calendar days of REDLANDS' receipt of written request from the DISTRICT for such reports. 1.20 Provide to the DISTRICT, upon completion of PROJECT, one (1) set of Mylar drawings, and one (1) electronic set of "Record Drawings" of the PROJECT. 1.21 Retain or cause to be retained for audit by the DISTRICT, or other government auditors for a period of three (3) years from the date of the final payment, all records and accounts relating to the PROJECT. SECTION II 2.0 DISTRICT AGREES TO: Revised Page 4 of 10 2.1 Pay to REDLANDS the amounts within the given Fiscal Year upon availability of funds as outlined in Exhibit B starting in Fiscal Year 2024/2025 for DISTRICT's share of the cost of the PROJECT. DISTRICT's total funding participation under this AGREEMENT shall not exceed $2,150,000. DISTRICT'S reimbursement payments will be made no more frequently than quarterly, pursuant to Section 1.16. The DISTRICT shall be responsible for and pay its respective share for the PROJECT and pre -approved contingencies per the RATIO and as stipulated in this Section. DISTRICT's financial obligations for payments are subject to and limited by the DISTRICT's Board of Supervisors budgetary and appropriation process. 2.2 Pay for additional work to approved plans and specifications only when such additional work is requested by the DISTRICT and authorized in writing by the DISTRICT pursuant to Section 3.11 and the DISTRICT has received a request for payment with adequate documentation from REDLANDS pursuant to Section 1.16. 2.3 Pay its share of PROJECT costs based on the RATIO as shown in Exhibit A; the DISTRICT"s share of funding for the PROJECT shall not exceed $2,150,000, unless costs in excess of the total PROJECT costs are agreed upon by both PARTIES in writing, then the DISTRICT's share of such additional costs shall be at the RATIO set forth in Exhibit A. 2.4 Promptly review and comment on contract plans, specifications and engineer's estimates prepared and submitted by REDLANDS or by its representatives, and upon REDLANDS satisfactorily addressing all of DISTRICT's comments, issue all necessary encroachment permits. 2.5 Issue no fee encroachment permit(s), after review of construction plans, when necessary, to REDLANDS for work within DISTRICT right-of-way. SECTION III 3.0 IT IS FURTHER UNDERSTOOD AND AGREED: 3.1 The Effective Date of the AGREEMENT shall be the first date upon which all the following has occurred: (1) REDLANDS' Council and DISTRICT's Board have approved the AGREEMENT; and (2) the authorized representative of each PARTY has signed the AGREEMENT. 3.3 All payments .shall be made via electronic funds transfer (EFT) directly deposited into the PARTIES' designated checking or other bank account. PARTIES shall promptly comply with directions and accurately complete forms provided to process EFT payments. 3.4 Indemnification and Insurance. 3.4.1 Indemnification a. Pursuant to Government Code Section 895.4, each PARTY ("Indemnitor") shall indemnify, defend (with counsel reasonably approved by Indemnitee), and hold harmless each of the other PARTIES, the COUNTY, and each of their authorized officers, employees, agents and volunteers (each an "Indemnitee," collectively, "Indemnitees") from and against any and all claims, actions, losses, damages, and/or liability arising out of the acts or omissions of Indemnitor, or its authorized officers, employees, agents and volunteers, under this Agreement. 3.4.2 Insurance a. Waiver of Subrogation Rights — If not self -insured REDLANDS shall require the carriers of required coverage to waive all rights of subrogation against the DISTRICT, COUNTY, its officers, employees, agents, volunteers, contractors, and subcontractors. All general or auto liability insurance coverage provided shall not prohibit REDLANDS and their employees or agents from waiving the right of subrogation prior to a loss or claim. Revised Page 5 of 10 REDLANDS hereby waive all rights of subrogation against the DISTRICT and/or COUNTY, except for the gross negligence of DISTRICT and COUNTY, its officers, employees, agents, volunteers, contractors, and subcontractors. b. Self -Insurance — The PARTIES are authorized self -insured public entities for purposes of Professional Liability, General Liability, Automobile 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 the performance of the terms, conditions, or obligations of this AGREEMENT. 3.5 Default Provisions. A. REDLANDS will be in default under this AGREEMENT If any of the following occur: a. Material breaches of the AGREEMENT, or any supplement or amendment to it. b. Making any false warranty, representation, or statement with respect to this AGREEMENT. c. Failure to make any remittance required by this AGREEMENT. d. Failure to submit timely progress reports. e. Failure to routinely invoice the DISTRICT. Should an event of default occur, the DISTRICT shall provide written notice of default to REDLANDS and shall give REDLANDS at least ninety (90) calendar days to cure the default from the date the notice is sent via first-class mail to REDLANDS; provided, however, that if the nature of the default is such that the same cannot reasonably be cured within a ninety (90) day period, REDLANDS shall not be deemed in default if it diligently commences such cure within such period and thereafter diligently proceed to rectify and cure said default as soon as possible. If REDLANDS fails to cure the default within the time prescribed by the DISTRICT, the DISTRICT may do any of the following: 1. Terminate any obligation to make future payments to REDLANDS. 2. Terminate the AGREEMENT. 3. Take any other action that it deems necessary to protect its interest. S. The DISTRICT will be in default under this AGREEMENT if any of the following occur: a. Material breaches of the AGREEMENT, or any supplement or amendment to it. b. Making any false warranty, representation, or statement with respect to this AGREEMENT. c. Failure to make any undisputed payment required by this AGREEMENT. Should an event of default occur, REDLANDS shall provide written notice of default to the DISTRICT and shall give the DISTRICT at Least ninety (90) calendar days to cure the default from the date the notice is sent via first-class mail to the DISTRICT; provided, however, that if the nature of the default is such that the same cannot reasonably be cured within a ninety (90) day period, DISTRICT shall not be deemed in default if it diligently commences such cure within such period and thereafter diligently proceed to rectify and cure said default as soon as possible. If the DISTRICT fails to cure the default within the time prescribed by REDLANDS, REDLANDS may do any of the following: 1. Terminate the AGREEMENT. 2. Take any other action that it deems necessary to protect its interest. 3.6 If, upon opening of bids for the PROJECT submitted, the bids indicate a cost overrun of no more than 25% of the estimated construction cost, REDLANDS may award the contract(s), notwithstanding any provision herein to the contrary, after a written concurrence from DISTRICT. Revised Page 6 of 10 3.7 If, upon opening of bids for the PROJECT, bids indicate the actual cost of the PROJECT will exceed either 25% of the estimated cost of construction or the available funding, PARTIES shall endeavor to agree upon an alternative course of action. If, after thirty (30) days, an alternative course of action is not mutually agreed upon in writing, this AGREEMENT shall be deemed to be terminated by mutual consent. 3.8 This AGREEMENT shall inure to the benefit of and be binding upon the successors and assigns of the PARTIES. 3.9 If the performance by any PARTY of any part of this AGREEMENT is prevented, hindered or delayed by any reason beyond the control of the PARTY whose performance is so affected, and this effect cannot be overcome by due diligence, the PARTY affected is excused from performance to the extent that performance is necessarily prevented, hindered or delayed, during the continuance of the happening or event, and this AGREEMENT is suspended so long as and to the extent that the cause prevents or delays that PARTY's performance. The PARTY claiming to be affected shall give written notice to the other PARTIES within a reasonable time after the happening of the cause which they contend affects their performance. None of the PARTIES shall be liable for failure or delay of fulfilling their obligations if hindered or prevented by acts of God, fire, strikes, earthquakes, pandemic, and flooding. 3.10 The PARTIES acknowledge that final PROJECT costs may ultimately exceed current estimates of PROJECT costs. Any additional PROJECT costs resulting from increase bid prices or change orders (but not unforeseen conditions or requested additional work by a PARTY which are addressed in Section 3.11 below) over the estimated total PROJECT cost shall be borne by REDLANDS as provided in Exhibit A. Notwithstanding the foregoing, the DISTRICT's share of the PROJECT cost shall not exceed $2,150,000 under any circumstances unless a written amendment to this AGREEMENT is approved by the DISTRICT's Board. 3.11 If a PARTY requests additional work that is beyond the scope of the original PROJECT, said work will be paid solely by the PARTY requesting the work. 3.12 In the event that change orders are required during the course of the PROJECT, said change orders must be in writing and approved by the PARTIES within two (2) working days of submittal. If working conditions do not allow two working days for a written approval, then PARTIES agree to work diligently to come up with a speedy resolution in the field. 3.13 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 workdays, unless expressly stated otherwise. 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. 3.14 No supplement, modification, or amendment of this AGREEMENT shall be binding unless executed in writing and signed by all PARTIES. 3.15 All notices, approvals, consents, or other documents required or permitted under this AGREEMENT shall be in writing and, except as otherwise provided herein, shall be effective upon personal delivery or three days after deposit in the United States mail, certified, with first class postage fully prepaid, addressed as follows: City of Redlands Municipal Utilities and Engineering Dept. 35 Cajon St. Ste. 15A Redlands, CA 92374 Attn: Gerard Nepomuceno, P.E. San Bernardino County Flood Control District, Room 122 825 East Third Street San Bernardino, CA 92415 Attn: Michael Fam, P.E. Revised Page 7 of 10 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 This AGREEMENT shall be governed by the laws of the State of California. 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. Any dispute or action to enforce any obligation under this AGREEMENT shall be filed and resolved in the appropriate Superior Court in the County of San Bernardino, California. In the event of litigation arising from this AGREEMENT, each PARTY to the AGREEMENT shall bear its own costs, including attorney's fees, except as provided for in Section 3.4.1. 3.18 Except with respect to the PARTIES' operation, maintenance and indemnification obligations contained herein, this AGREEMENT shall terminate upon the completion of the PROJECT and final payment by the DISTRICT to REDLANDS. 3.19 This AGREEMENT contains the entire AGREEMENT of the PARTIES with respect to the subject matter hereof, and supersedes all other prior negotiations, understandings, or contracts. This AGREEMENT may only be modified in writing, signed by all PARTIES. 3.20 Time is of the essence for each and every provision of this AGREEMENT. 3.21 This AGREEMENT may be cancelled upon thirty (30) days written notice of any PARTY, provided however, that no PARTY may cancel this AGREEMENT without cause after REDLANDS awards contract(s) to construct the PROJECT. 3.22 The Recitals preceding the terms of this AGREEMENT are incorporated into the terms hereof by this reference and constitute constructive terms of this AGREEMENT. 3.23 This AGREEMENT may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same agreement. The PARTIES shall be entitled to sign and transmit an electronic signature of this AGREEMENT (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each PARTY providing electronic signature agrees to promptly execute and deliver to the other party an original signed AGREEMENT upon request. Revised Page 8 of 10 By ► IN WITNESS WHEREOF, this AGREEMENT has been fully executed on behalf of the DISTRICT and REDLANDS by their duly authorized officers, effective as of the last date hereunder written. CITY OF REDLAN (Print or type namf co oraijbn, comppny, contractor etc.) n orized (Au signature - sigh in blue ink) Name Eddie Tejeda Title Dated: (Print or type name of person signing contract) Mayor Address (Print or Type) 35 Cajon Street P.O. Box 3005 (Mailing) Redlands, CA 92373 Approved as to Le ai\For Th ITY Attorney Date / !I Attested by the CITY Clerk The 21TY Clerk Date 2- Revised Page 9 of 10 SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT 1; a{:1,'•'t1m Dawn Rowe, Chair, Board of Supervisors Dated: -EB 2 7 MI' SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEETO THE CHAIRMAN OF TH FOR COUNTY USE ONLY Approved as to Legal Form Sop�A� Deputy Counsel Date February 13, 2024 Reviewed for Contract Compliance n / Reviewed/Approved by District Andy Silao, P.E. Date 0 / .� ('l. cJ fi Noel Castillo, Chief Flood Control Engineer Date Revised Page 10 of 10 EXH "A" CITY OF REDLANDS DRAINAGE IMPROVEMENTS TRIPLE REINFORCED BOX CULVERT, LOCATED ON MISSION CHANNEL AT THE INTERSECTION OF CALIFORNIA STREET AND REDLANDS BOULEVARD, TO BE CONCURRENTLY CONSTRUCTED WITH THE WIDENING OF THE NORTHWEST PORTION OF CALIFORNIA STREET, IN THE CITY OF REDLANDS DESCRIPTION TOTAL COST OF PROJECT* DISTRICT SHARE* CITY OF REDLANDS SHARE* TRIPLE REINFORCED BOX CULVERT WITH . WIDENING OF CALIFORNIA STREET $4,300,000 $2,150,000 $2,150,000 50% 50% *IN THE EVENT THE TOTAL ACTUAL COST OF THE PROJECT IS LESS THAN $4,300,000, THE DISTRICT AND CITY OF REDLANDS SHARE WILL BE 50% AND 50%, RESPECTIVELY. *IN THE EVENT THE TOTAL ACTUAL COST OF THE PROJECT IS MORE THAN $4,300,000, AND AGREED UPON BY BOTH PARTIES, THE DISTRICT AND REDLANDS SHARE WILL COVER EXCESS COSTS 50% AND 50%, RESPECTIVELY. EXH "B" CITY OF REDLANDS DRAINAGE IMPROVEMENTS TRIPLE REINFORCED BOX CULVERT, LOCATED ON MISSION CHANNEL AT THE INTERSECTION OF CALIFORNIA STREET AND REDLANDS BOULEVARD, TO BE CONCURRENTLY CONSTRUCTED WITH THE WIDENING OF THE NORTHWEST PORTION OF CALIFORNIA STREET, IN THE CITY OF REDLANDS DISTRICT* PAYMENT SCHEDULE Fiscal Year Maximum Payment Amount FY 24-25 $2,150,000 TOTAL $2,150,000 *FY24/25 - FIRST REIMBURSEMENT PAYMENT TO BE MADE UPON FIRST QUARTERLY INVOICE RECEIVED PURSUANT TO SECTION 2.1. *THE DISTRICT DOES RESERVE THE RIGHT TO AMEND THE REIMBURSEMENT SCHEDULE SHOULD THE EXPECTED FUNDING NOT BE AVAILABLE.