C THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY Contract Number
SAP Number
San Bernardino County
Department Contract Representative
Telephone Number
Project
Arrow Route Sewer Main Project
Contractor
City of Fontana
Contractor Representative
Matthew C. Ballantyne, City Manager
Telephone Number
(909) 350-7600
Contract Term
Original Contract Amount
Amendment Amount
Total Contract Amount
Cost Center
Grant Number (if applicable)
IT IS HEREBY AGREED AS FOLLOWS:
Cooperative Agreement No. ________
By and Between
City of Fontana And San Bernardino County
For arrow route Sewer Main Project
Recitals
WHEREAS, San Bernardino County (“COUNTY”) intends to fund and cause the construction of a 17,945 lineal foot sewer main in the unincorporated Fontana area to run along Arrow Route from Ilex Avenue to Beech Avenue, Beech Avenue from Arrow Route to Foothill Avenue, and Cherry Avenue from Arrow Route to Foothill Avenue with all required manholes, appurtenances and tie-ins to an existing sewer main at Ilex Avenue (“PROJECT”) in collaboration with the City of Fontana (“CITY”) (COUNTY and CITY are also sometimes each referred to herein as “Party” and collectively referred to herein as “Parties”); and WHEREAS, the PROJECT will be comprised of phases, the first of which consists of the construction of a sewer main along Arrow Route beginning at Ilex Avenue to Cherry Avenue with all required manholes, appurtenances and a tie-in at Ilex Avenue to an existing sewer main (“Phase 1”) as more fully illustrated and attached hereto as Exhibit A. Future phase(s) consist of the construction of a sewer main along Arrow Route from Cherry Avenue to Beech Avenue, Beech Avenue from Arrow Route to Foothill Avenue, and Cherry Avenue from Arrow Route to Foothill Avenue with all required manholes, appurtenances and tie-ins to Phase 1 sewer main and (“Future Phase(s)”) as more fully illustrated and attached hereto as Exhibit B; and WHEREAS, COUNTY shall be responsible for funding the construction of the PROJECT at COUNTY’s sole cost and expense, and shall undertake the bidding and cause the construction of the PROJECT, through its Department of Public Works – Special Districts; and WHEREAS, CITY shall produce the design of the PROJECT and ensure all environmental documentation and compliance in accordance with applicable law, which design and environmental compliance shall be at the CITY’s sole cost; and WHEREAS, COUNTY has identified funding for Phase 1 of the construction of the PROJECT for approximately 7,700 linear feet along Arrow Route beginning at Ilex Avenue to Cherry Avenue; and WHEREAS, COUNTY will proceed with the construction of Phase 1 of the PROJECT in accordance with the terms and conditions of this Cooperative Agreement (“AGREEMENT”); and WHEREAS, COUNTY intends to bid the construction of Phase 1 with Future Phase(s) included as additive bid items, such that if bids received for the construction of both Phase 1 and Future Phase(s) fall within identified funding parameters and are determined to be in the public interest, COUNTY may award the construction contract for both Phase 1 and Future Phase(s) as part of a single construction contract where this AGREEMENT will be amended to reflect the same; and WHEREAS, if funding availability or public interest considerations at the time of receiving bids for Phase 1 construction do not allow for the inclusion of Future Phase(s), COUNTY may bid and award the construction of Future Phase(s) separately at a later date, once additional funding becomes available, and at such time the Parties will amend this AGREEMENT accordingly; and WHEREAS, COUNTY may proceed with the construction of Future Phase(s) of the PROJECT as additional funding becomes available; and WHEREAS, when additional funding becomes available for the construction of Future Phase(s) of the PROJECT, the PARTIES intend to amend this AGREEMENT, by written amendment, to reflect the Parties’ plans for construction for Future Phase(s), the remainder of the PROJECT; and WHEREAS, the Parties wish to enter into this AGREEMENT for the design and construction of the PROJECT and to define the respective roles and responsibilities of the Parties throughout the phases of the PROJECT; and WHEREAS, the PROJECT will not include the removal of private residents' septic systems and connection of private residents to the newly constructed sewer main lines; and WHEREAS, private residents will pay the necessary fees required by CITY, to CITY, to connect to the sewer main and COUNTY will not receive any fees or costs related to such; and WHEREAS, following the COUNTY’s completion of construction of Phase 1 and the CITY’s acceptance of Phase 1, as set forth herein, CITY shall assume all responsibilities, obligations, and costs for the maintenance, operation, and administration of Phase 1.
NOW, THEREFORE, IT IS MUTUALLY AGREED as follows:
COUNTY AGREES TO:
Coordinate and assist CITY with advertising, outreach, and promoting community engagement for any informational community meetings and outreach to local residents and provide a qualified representative to answer resident questions on behalf of COUNTY regarding the PROJECT.
Review and approve CITY’s PROJECT plans and specifications and not unreasonably withhold, condition or delay review of the PROJECT plans and specifications. Nothing contained in this Agreement serves to allocate the risk or place the burden upon the Parties as to responsibility for the design, plans and specifications of the PROJECT.
Provide no-cost COUNTY encroachment permits to the CITY for any work in the COUNTY’s right-of-way as it relates to the PROJECT. County shall obtain no-cost CITY encroachment permits from the CITY for any work performed within the CITY’s right-of-way and sewer permits for the construction of Phase 1 of the sewer main to finalize construction of Phase 1.
Advertise, award, and administer the construction of Phase 1 of the PROJECT in accordance with the California Public Contract Code, and all other applicable State laws, including, but not limited to, the California Civil and Labor Codes, including but not limited to the payment of prevailing wages. COUNTY shall be responsible for managing and overseeing construction of Phase 1 of the PROJECT until completion and shall ensure that Phase 1 of the PROJECT is built pursuant to the CITY’s plans and specifications.
Require all contractors and vendors working on the PROJECT to have appropriate and adequate insurance coverage for the mutual protection and benefit of the Parties. All policies, except for the Workers’ Compensation, Errors and Omissions and Professional Liability policies, shall contain additional endorsements naming the CITY and COUNTY and their officers, employees, agents and volunteers as additional insureds with respect to liabilities arising out of the performance of services thereunder. The additional insured endorsement shall not limit the scope of coverage for the CITY and COUNTY to vicarious liability but shall allow coverage for the CITY to the full extent provided by the policy. Such additional insured coverage shall be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2020.11 85.
COUNTY shall include the CITY as an indemnitee in all construction contracts let by the COUNTY for the PROJECT.
COUNTY shall (1) name the CITY as an express third-party beneficiary in all of the construction contracts relating to the PROJECT, (2) require the contractor(s) to provide Performance and Payment Bonds for the PROJECT in an amount not less than 100% of the amount of the PROJECT which bonds shall name the CITY as an obligee, and (3) include the CITY and COUNTY as an additional insured on all insurance provided by the contractor(s) for the PROJECT, as set forth in Section 1.5 above. The Payment and Performance Bonds shall be delivered to CITY prior to the commencement of any work on PROJECT.
Permit CITY inspectors, at CITY’s sole expense, to conduct inspections and review of Phase 1 of the PROJECT construction in coordination with the COUNTY. Upon COUNTY’s request for inspection, CITY shall promptly coordinate with COUNTY to schedule a CITY inspection.
Include CITY in construction meetings, if and when such meetings are held, and in related communications on Phase 1 of the PROJECT progress, and to consult with CITY on critical issues relative to Phase 1 of the PROJECT.
Provide a qualified representative who shall have the authority to discuss and attempt to resolve issues concerning the PROJECT with the CITY.
In the event that a Request for Information (“RFI”) is received during the course of the PROJECT which may require the CITY and its design consultant’s input, copies of RFIs will be delivered by fax or email to CITY, who will review and respond within seven business (7) days of issuance by COUNTY. If CITY fails to respond within this timeframe, COUNTY may respond and proceed with the PROJECT.
Provide adequate inspection of all items of work performed under the construction contract with COUNTY’s contractor or subcontractors for the PROJECT and maintain all source documents, books, and records connected with performance under this AGREEMENT for a minimum of five (5) years from the date of the final completion and acceptance of PROJECT. COUNTY shall provide CITY with access to the aforementioned documents and materials during the course of this Agreement upon request of the CITY.
Provide to the CITY, upon completion of PROJECT, or upon the conclusion of any final phase of the PROJECT, one (1) electronic set of “Record Drawings” of the PROJECT, all items of work performed under the construction contract for the PROJECT, and all source documents, books and records connected with this Agreement.
Assume the sole cost and expense of any COUNTY review, construction, action, approval, or activity performed by COUNTY for the PROJECT.
Notify the CITY upon Phase 1 of PROJECT completion and seek CITY’s written acceptance of Phase 1 of the PROJECT.
CITY AGREES TO:
Act as the Lead Agency for the following: approval and environmental documentation (“PA&ED”), design and engineering (“PS&E”), California Environmental Quality Act (“CEQA”) review and compliance for the PROJECT.
Conduct outreach to local residents and provide a qualified representative to answer resident questions regarding the PROJECT.
Provide the CITY-approved PROJECT plans and specifications to the COUNTY on or before December 31, 2024.
Confirm in writing the CITY system inflow and capacity of Arrow Route Sewer and overall CITY sewer system may accept additional flows from PROJECT.
Provide no-cost CITY encroachment and sewer permits to the COUNTY for any work performed within the CITY’s right-of-way and on the CITY’s sewer system as it relates to Phase 1 of the PROJECT. Obtain no-cost COUNTY encroachment permits from COUNTY for any work to be performed within the COUNTY’s right-of-way as it relates to Phase 1 of the PROJECT.
Assume the sole cost and expense of any CITY review, inspection, action, approval, or activity performed by CITY for Phase 1 of the PROJECT.
Arrange for a qualified CITY representative to provide timely inspections of all items of construction of Phase 1 work in coordination with the COUNTY. Upon COUNTY’s request for inspection, CITY shall promptly coordinate with COUNTY to schedule a CITY inspection.
Assume all responsibilities, obligations, and costs for the maintenance, operation, and administration of Phase 1 of the PROJECT’s sewer main infrastructure following Phase 1 acceptance by CITY.
Provide a qualified representative who shall have the authority to offer technical assistance and expertise to COUNTY during the construction phase as needed, to discuss and attempt to resolve issues concerning Phase 1 of the PROJECT with the COUNTY and coordinate with COUNTY to ensure seamless transition of design to construction phase.
Obtain written authorization from Inland Empire Utility Agency (IEUA) for any connections to IEUA facilities at CITY’s sole cost.
The Parties understand that at this time the Local Agency Formation Commission (LAFCO) only requires submittal of this AGREEMENT. However, should LAFCO impose additional requirements, CITY shall be responsible for complying with LAFCO-imposed PROJECT requirements.
Accept Phase 1 of the PROJECT in writing to include Phase 1 sewer main into CITY sewer master system upon completion of construction by COUNTY after final inspection and acceptance of the construction thereof. If the CITY does not accept or reject Phase 1 in writing within sixty (60) business days of COUNTY’s notification of Phase 1 completion, the CITY shall be deemed to have accepted Phase 1 of the PROJECT.
IT IS MUTUALLY AGREED:
The Recitals are incorporated into the body of this AGREEMENT. This AGREEMENT will be effective on the date it is signed by both Parties (Effective Date). Except with respect to the PARTIES’ indemnification obligations contained herein, which shall survive the termination of this AGREEMENT, this AGREEMENT shall terminate five (5) years from the Effective Date unless extended by the PARTIES by written amendment or otherwise earlier terminated as set forth herein.
The COUNTY Director of Public Works may terminate this AGREEMENT on behalf of the COUNTY. This AGREEMENT may be terminated by either party, with or without cause, upon thirty (30) days advanced notice to the other party, provided, however, that the Parties may not terminate this AGREEMENT after COUNTY has awarded a contract to construct the PROJECT.
The CITY agrees to indemnify, defend (with counsel reasonably approved by the COUNTY) and hold harmless the COUNTY and its authorized officers, employees, agents, consultants and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of the negligent acts, errors or omissions of the CITY, its authorized officers, employees, agents, contractors, and consultants for any costs or expenses incurred by the COUNTY on account of any claim except where such indemnification is prohibited by law.
The COUNTY agrees to indemnify, defend (with counsel reasonably approved by the CITY) and hold harmless the CITY and its authorized officers, employees, agents, consultants and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of the negligent acts, errors or omissions of the COUNTY, its authorized officers, employees, agents, contractors, and consultants for any costs or expenses incurred by the CITY on account of any claim except where such indemnification is prohibited by law.
In the event the COUNTY and/or the CITY is found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this AGREEMENT, the COUNTY and the CITY shall indemnify the other to the extent of this comparative fault. Furthermore, if the COUNTY or CITY attempts to seek recovery from the other for Workers’ Compensation benefits paid to an employee, the COUNTY and CITY agree that any alleged negligence of the employee shall not be construed against the employer of that employee.
In the event of litigation arising from this AGREEMENT, each party to the AGREEMENT shall bear its own costs, including attorney(s) fees. This Section shall not apply to the costs or attorney(s) fees relative to indemnification obligations herein.
COUNTY and CITY 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.
This AGREEMENT shall be governed by the laws of the State of California. Any action or proceeding between CITY and COUNTY concerning the interpretation or enforcement of this AGREEMENT, or which arises out of or is in any way connected with this AGREEMENT or the PROJECT, shall be instituted and tried in the appropriate state court, located in the County of San Bernardino, California.
Time is of the essence for each and every provision of this AGREEMENT.
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 business days. The captions of the various articles and paragraphs are for convenience and ease or reference only, and do not define, limit, augment, or describe the scope, content, or intent of this AGREEMENT.
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.
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.
This AGREEMENT may be signed electronically and in counterparts, each of which shall constitute an original. The Parties shall be entitled to sign and transmit an electronic signature of the 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 an electronic signature agrees to promptly execute and deliver to the other party an original signed AGREEMENT upon request.
This AGREEMENT contains the entire agreement of the Parties with respect to subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. No supplement, modification, or amendment of this AGREEMENT shall be binding unless executed in writing and signed by all Parties. [Signatures on Next Page]
SAN BERNARDINO COUNTY
CITY OF FONTANA
By
Dawn Rowe, Chair, Board of Supervisors
(Authorized signature - sign in blue ink)
Dated:
Name
Matthew C. Ballantyne
SIGNED AND CERTIFIED THAT A COPY OF THIS
(Print or type name of person signing contract)
DOCUMENT HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD
Title
City Manager
Lynna Monell
Clerk of the Board of Supervisors
San Bernardino County
(Print or Type)
By
Dated:
Deputy
Attest by:
Germaine Key, City Clerk
Approved as to Form:
Ruben Duran, City Attorney
FOR COUNTY USE ONLY
Approved as to Legal Form
Reviewed for Contract Compliance
Reviewed/Approved by Department
Aaron Gest, Deputy County Counsel
Noel Mondragon, Division Manager
David Doublet, Assistant Director
Date
Date
Date
Revised 7/1/24 Page 6 of 7
Standard Contract Page 1 of 7
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