COOPERATION AND REIMBURSEMENT AGREEMENT
BETWEEN THE CITIES OF CHINO AND CHINO HILLS REGARDING
THE CHINO HILLS PARKWAY PAVEMENT REHABILITATION PROJECT
This Cooperation and Reimbursement Agreement (“Agreement”) is entered into this 6th day of February, 2024 (“Effective Date”) between the City of Chino Hills (“Chino Hills”) and the City of Chino (“Chino”). For purposes of this Agreement, Chino and Chino Hills may be referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Two segments of Chino Hills Parkway (“CHP”) are in need of pavement rehabilitation and associated work. One segment consists of that portion of CHP located between Chino Hills’ northwest city boundary and the intersection of CHP and Carbon Canyon Road (hereinafter, “Segment 1”). All of Segment 1 lies within the boundaries of Chino Hills. The other segment consists of that portion of CHP located between SR 71 and Monte Vista Avenue (hereinafter, “Segment 2”). The boundary separating Chino and Chino Hills lies roughly along the centerline of CHP between SR 71 and Monte Vista Drive. Accordingly, the northern portion of Segment 2 lies within the boundaries of Chino and the southern portion lies within the boundaries of Chino Hills.
B. The Chino Hills Parkway Pavement Rehabilitation Project (the “Project”) will consist generally of the following scope of work: Within Segment 1 and the portion of Segment 2 located in Chino Hills, the project will involve pavement rehabilitation, ADA ramp upgrades to meet current standards, installation of new video detection equipment where not currently installed, and restriping.
With the portion of Segment 2 located in Chino, the project will involve pavement rehabilitation, new ADA compliant ramps and sidewalk, installation of new video detection equipment where not currently installed, and restriping.
C. Because the bulk of the Project will be located within Chino Hills, Chino Hills will act as the lead agency and will be responsible for CEQA compliance and managing and directing all aspects of the Project, including (i) retaining a qualified engineering consultant to design the Project, (ii) retaining a qualified general contractor through a competitive bidding process held in accordance with applicable law, and (iii) managing the construction contract, and (iv) overseeing construction of the Project through completion.
D. The Parties wish to divide the Project costs in an equitable fashion. Because Segment 1 is located entirely in Chino Hills, all Project costs associated with Segment 1 will be the responsibility of Chino Hills. Because Segment 2 straddles the cities’ boundaries, the design consultant will be directed to specify the location (Chino or Chino Hills) of each Project component within Segment 2, and the bid documents will require each bidder to assign the costs of each Project component in Segment 2 to the city within which the work will be completed. The Parties have agreed to share the costs associated with Project design and CEQA compliance in the proportion specified herein.
E. The Parties endeavor to have the Project design completed by April 2024, to have the CEQA process completed by April 2024, to have the competitive bidding process completed by July 2024, and to have construction commence by Summer 2024.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged and accepted, the Parties agree as follows:
1. Purpose. The purpose of this Agreement is to define the relative roles of Chino and Chino Hills with respect to the Project and to establish terms and conditions for the allocation and reimbursement of Project costs.
2. City of Chino Hills’ Responsibilities.
2.1. Chino Hills is responsible for retaining a qualified consulting engineer to design the Project. To this end, Chino Hills has contracted with BKF Engineering, Inc. (“BKF”), an engineering firm that both Parties agree is qualified to provide design services for the Project. In its agreement with BKF, Chino Hills will require BKF to specify the location (Chino or Chino Hills) of each Project component within Segment 2 in a manner that will allow Chino Hills to provide, where appropriate, separate line items in the bid documents to ensure that the costs associated with work completed in each city are distinctly identified and accounted for. In the event the Parties do not agree on an allocation indicated by BKF, the Parties agree to meet and confer in good faith in order to arrive at a mutually agreeable allocation before proceeding. Chino Hills is responsible for paying BKF in full pursuant to the terms of the consulting agreement. Chino will share in the cost of the design consultant as set forth below.
2.2. Chino Hills is solely responsible for obtaining any and all required permits and will serve as lead agency for purposes of the California Environmental Quality Act.
2.3. Chino Hills is responsible for retaining a qualified general contractor through a competitive bidding process held in accordance with applicable law. Chino Hills will prepare the bid documents in a manner that requires separate line-item bids for Project components within Segment 2 that are entirely within, and will become the sole property and responsibility of, the City of Chino (e.g., the new ADA compliant ramps and sidewalk, the new video detection equipment, and restriping within Chino’s public right-of-way). Chino Hills will consult with Chino in the course of preparing the Project specifications and bid package and will not release a Notice Inviting Bids until and unless the Parties have agreed on the form of the Project specifications and bid package. Chino Hills will require the general contractor to name Chino as additional insured on all policies of insurance required to be kept and maintained by the contractor pursuant to its agreement with Chino Hills and will further require that all such policies provide Chino with 30 days’ notice prior to any cancellation of coverage.
2.4. Chino Hills is responsible for managing the construction contract and overseeing Project construction through completion. In the event that any change order(s) is/are requested with respect to any component of the Project located entirely within Chino’s public right-of-way, Chino Hills will consult with Chino’s designated representative in formulating a response. In the event that any change order(s) is/are requested with respect to any portion of the Project that straddles the public rights-of-way of both cities, Chino Hills will consult with Chino’s designated representative in formulating a response; however, in such cases, Chino Hills will have the sole decision-making authority with respect to the requested change order and Chino agrees to be responsible for its proportional share of any related cost increases.
2.5. Chino Hills will pay the consulting engineer and the Project general contractor in accordance with the terms of their respective contracts. Chino Hills will then invoice Chino for any of those costs that are assigned to Chino pursuant to this Agreement.
2.6. Chino Hills agrees to indemnify, defend, and hold harmless Chino, and its elected and appointed officials, agents, employees, attorneys, and volunteers from and against all claims, suits, demands, obligations, losses, damages (including, without limitation, damage to property and injuries to or death of persons, and including punitive or exemplary damages, and lost profits), liabilities, expenses (including legal fees, expenses of litigation, court costs, and reasonable costs of investigation), and causes of action of every kind whatsoever, whether based in contract, tort, statute, common law, strict liability, administrative law, or otherwise, which are claimed in any way to result from, arise out of, or are connected with Chino Hills’ performance of its duties, actions or obligations under this Agreement, or Chino Hills’ breach of any of the terms, conditions, representations or covenants in this Agreement. Chino Hills will require its consultants or contractors to indemnify Chino and Chino Hills as to any claims, suits, demands, obligations, losses, damages, liability, expenses, or causes of action that arise out of or are connected with the negligence or willful misconduct of such consultant or contractor retained by the City of Chino Hills to perform work on the Project. The obligations under this subparagraph shall survive termination or expiration of this Agreement.
3. Chino’s Responsibilities.
3.1. Chino will cooperate in good faith with Chino Hills during the preparation of the Project specifications and bid package. Chino’s approval of the same will not unreasonably be withheld.
3.2. Chino understands and agrees that Chino Hills will pay the consulting engineer and the Project general contractor in accordance with the terms of their respective contracts. Chino Hills will then invoice Chino for any of those costs that are assigned to Chino pursuant to this Agreement. Chino agrees to reimburse Chino Hills for all such costs within 30 calendar days of the date of the invoice.
3.3. Chino agrees to indemnify, defend, and hold harmless Chino Hills, and its elected and appointed officials, agents, employees, attorneys, and volunteers from and against all claims, suits, demands, obligations, losses, damages (including, without limitation, damage to property and injuries to or death of persons, and including punitive or exemplary damages, and lost profits), liabilities, expenses (including legal fees, expenses of litigation, court costs, and reasonable costs of investigation), and causes of action of every kind whatsoever, whether based in contract, tort, statute, common law, strict liability, administrative law, or otherwise, which are claimed in any way to result from, arise out of, or are connected with Chino’s performance of its duties, actions or obligations under this Agreement, or Chino’s breach of any of the terms, conditions, representations or covenants in this Agreement. It is expressly understood that this indemnity obligation does not apply to or extend to any claims, suits, demands, obligations, losses, damages, liability, expenses, or causes of action that arise out of or are connected with the negligence or willful misconduct of any consultant or contractor retained by the Chino Hills to perform work on the Project. The obligations under this subparagraph shall survive termination or expiration of this Agreement.
4. Cost Sharing and Reimbursement. The Parties agree to share the costs associated with the Project as follows:
4.1. CEQA. Chino Hills will act as the lead agency and will be responsible for preparing the required CEQA documentation, if any. Chino Hills may, in its discretion, engage the services of a professional consultant for this purpose.
Chino agrees that it will be responsible for 13.5% of all costs incurred by Chino Hills in connection with the CEQA process. City of Chino Hills’ staff time will be billed at the all-in rate indicated on the City of Chino Hills’ most recently approved rate schedule. Consultant fees will be billed at the invoiced cost.
4.2. Design Fees. Chino Hills will retain a professional design consultant to design the Project. Chino agrees that it will be responsible for 13.5% of all professional fees and costs charged by BKF in connection with the Project’s design. Chino will not be responsible for reimbursing Chino Hills for any staff time incurred in connection with the Project’s design.
4.3. Construction Costs.
4.3.1. Chino Hills is responsible for 100% of the cost of constructing all Project components within Segment 1 and those components of the Project in Segment 2 that are located entirely within Chino Hills’ public right-of- way. The latter components include, without limitation, upgrades to ADA ramps to meet current standards, new video detection equipment, and restriping.
4.3.2. Chino is responsible for 100% of the cost of constructing all Project components in Segment 2 that are located entirely within Chino’s public right-of-way. These components include, without limitation, new ADA compliant ramps and sidewalk, new video detection equipment, and restriping.
4.3.3. The Parties understand and agree that the boundary line separating the two cities does not completely coincide with the centerline of Chino Hills Parkway between SR 71 and Monte Vista Avenue. Therefore, costs associated with pavement rehabilitation along that segment of Chino Hills Parkway will be split according to the relative percentage of ownership as determined by BKF, the consulting engineer.
4.4. Project Management. Chino Hills’ staff will be responsible for construction management. The Parties agree to share these staff costs in the following proportion: Chino Hills will be responsible for 86.5% of the costs and Chino will be responsible for 13.5% of the costs. Chino Hills’ staff costs will be billed through to Chino at the current all-in hourly rate for each respective employee.
Chino Hills is responsible for maintaining records of staff time incurred in connection with Project management duties, which records will include (i) the name of the staff person performing the work, (ii) the date of the work performed, (iii) a brief description of the work performed, and (iv) the amount of time, in tenths of an hour increments, spent on the work. These records will be provided to Chino together with the associated invoices for staff time reimbursement.
Project management includes, for example, the following duties: construction project management, administrative management, submittal reviews, and the processing of requests for information and change orders. Project management does not include inspections services. All inspections conducted with respect to the Project will be conducted at the expense of Chino Hills. Unless otherwise agreed to by the Parties in writing, Project management costs will not exceed ten percent of the Project’s construction costs.
4.5. Payment of Project Costs and Reimbursement. Chino Hills is responsible for paying its own staff for time devoted to preparing the CEQA documentation required for the Project, if any, together will all invoices from professional consultants retained to provide CEQA-related services. In addition, Chino Hills is responsible for paying its own staff for time devoted to Project-related construction management. Chino Hills is also responsible for paying all invoices from the consulting engineer and the contractor retained to construct the Project.
Chino Hills will periodically invoice Chino for Chino’s share of the above- referenced costs as they are incurred. Chino must reimburse Chino Hills for all such costs within 30 calendar days of the date of the invoice.
5. Warranty of Project Work. To the extent that the contractor retained by Chino Hills is required to warranty all or any portion of its work, Chino Hills will ensure that the agreement between Chino Hills and the contractor identifies Chino as a third-party beneficiary of those warranties and authorizes Chino to make and enforce warranty claims with respect to those items of the work that are
located entirely within Chino’s public right-of-way. Chino Hills may, upon request of Chino, make and enforce warranty claims on behalf of Chino for items of work that are located entirely within Chino’s public right-of-way; however, Chino Hills is not obligated to make or enforce any such claims on behalf of Chino.
6. Good Faith Cooperation. The Parties agree to cooperate in good faith in the planning and implementation of the Project.
General Provisions
7. Recitals. Both Parties warrant that the above Recitals are true and correct.
8. Resolution of Disputes. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the County of San Bernardino before three arbitrators. Any arbitration arising out of or related to this Agreement shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules. The prevailing party in any dispute shall be entitled to recover its reasonable attorneys’ fees and costs. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
9. Notices. Unless otherwise provided herein, all notices required to be given pursuant to this Agreement must be given in writing and delivered in person with acknowledged receipt, by overnight courier for next business day delivery with signature required, or by certified mail, return receipt requested, and sent to the intended recipient at the address set forth below:
To City of Chino: To City of Chino Hills:
City of Chino City of Chino Hills
Attn: Public Works Director Attn: City Engineer
13220 Central Avenue 14000 City Center Drive
Chino, CA 91710 Chino Hills, CA 91709
Email: [email protected] Email: [email protected]
Any notice delivered or sent as provided above will be deemed to have been properly made on the same day it is hand delivered (even if such delivery is refused), on the first business day after delivery to an overnight courier service with instructions for deliver on the next business day, or the third business day after being deposited in the U.S. Mail, certified with return receipt requested. Either party to this Agreement may change its address for notices hereunder by providing notice of such change to the other party in the manner set forth above.
10. Governing Law. The Parties hereby agree that this Agreement is to be governed under the laws of the State of California and construed according to its plain meaning as if drafted by both Parties.
11. Attorneys’ Fees. In any proceeding brought to enforce, confirm, modify or vacate an award in arbitration, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
12. Waiver. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with other terms and provisions contained in this Agreement.
13. Severability. Should any provision of this Agreement be determined to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
14. No Third-Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto, and the Parties hereto expressly disclaim any such third-party benefit.
15. Successors and Assigns. The terms, conditions, and provisions of this Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns.
16. Further Cooperation. The Parties agree to execute, acknowledge if appropriate, and deliver any and all documents and cooperate in performing any and all acts in any commercially reasonable manner as may be necessary to carry out the intent of this Agreement as set forth in the Recitals and implement the terms and conditions of this Agreement.
17. Complete Agreement and Amendment. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces any and all prior negotiations and agreements between the Parties, whether written or oral. This Agreement may be amended only by written instrument signed by both Parties.
18. Electronic Signatures and Counterparts. Any Party may execute this Agreement using an “electronic signature,” as that term is defined in California Civil Code Section 1633.2, or a “digital signature,” as defined by California Government Code Section 16.5. An electronic or digital signature will have full legal effect and enforceability. This Agreement may be executed in counterparts (signatures may be by facsimile or electronic mail), each of which is hereby declared to be an original.
All, however, shall constitute but one and the same Agreement.
19. Force Majeure. Upon written notice by a Party, the respective duties and obligations of the Parties will be suspended for the time period that performance by the Party is prevented or substantially impeded by workforce strikes, riots, fire, flood, war, terrorism, governmental action, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, or acts of God.
20. Term. This Agreement shall remain in effect until the fourth anniversary after the Notice of Completion of the Project is filed with the County. The Parties’ respective indemnification obligations shall survive expiration or termination of this Agreement.
[Signatures on following page]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.
CITY OF CHINO HILLS CITY OF CHINO
By: By:
Peter J. Rogers, Mayor Eunice Ulloa, Mayor
APPROVED AS TO FORM:
By: By:
Mark D. Hensley, City Attorney Fred Galante, City Attorney
ATTEST:
By: __________________________________ By: __________________________________ City Clerk City Clerk