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HomeMy WebLinkAbout2004-032I 2 0 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. 2004-32 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE UNDERGROUND UTILITY INSTALLATION REIMBURSEMENT AGREEMENT BY AND AMONG THE CITY OF SAN BERNARDINO, SBT PARTNERS LLC AND HOPKINS-HUB PHASE 2 LLC RELATIVE TO THE PRIVATE PROJECT COMPONENT OF THE CONSTRUCTION OF UNDERGROUND (DRY) UTILITIES AT TIPPECANOE AVENUE AND HARRIMAN PLACE EXTENSION WHEREAS, the City of San Bernardino, California (the "City") is a municipal corporation and charter city, duly organized and existing pursuant to the provisions of the constitution of the State of California; and WHEREAS, the City is prepared to award a contract to a contractor to install certain underground utility service infrastructure improvements pursuant to a public works contract with the City in order to service certain commercial development improvements adjacent to the public street right-of-way of Harriman Place and Tippecanoe Avenue (City No. 10682A), said commercial development project generally referred to as the "HUB Project"; and WHEREAS the City requires that the HUB Project developers SBT Partners LLC and Hopkins -HUB Phase 2 LLC (jointly, the "Developer") reimburse the City for the expense of awarding a contract to perform a portion of the underground utility service infrastructure improvements set forth as bid alternatives (the "Private Work") to the City's Public Works Contract No. 10682A; and WHEREAS, the City and the Developer mutually desire to enter into a reimbursement agreement to provide, among other things, a fair and equitable means to assure payment to the City of funds for its costs associated with the installation of the Private Work; and WHEREAS, it is appropriate for the Mayor and Common Council to take action with respect to entering into a reimbursement agreement with the Developer. NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS: Section 1. The above recitals are true and correct and incorporated herein by reference. HF/cj [UndagroundUbhty.Res1 1 2004-32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 P411 26 27 28 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE UNDERGROUND UTILITY INSTALLATION REIMBURSEMENT AGREEMENT BY AND AMONG THE CITY OF SAN BERNARDINO, SBT PARTNERS LLC AND HOPKINS-HUB PHASE 2 LLC RELATIVE TO THE PRIVATE PROJECT COMPONENT OF THE CONSTRUCTION OF UNDERGROUND (DRY) UTILITIES AT TIPPECANOE AVENUE AND HARRIMAN PLACE EXTENSION I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a it. reg. meeting thereof, held on the end day of February 2004, by the following vote, to wit: Council Members: AYES NAYS ESTRADA x LONGVILLE x MCGINNIS x DERRY x SUAREZ x ANDERSON x McCAMMACK x ABSTAIN ABSENT /') udA-k Rachel Clark, City Clerk The foregoing resolution is hereby approved this 5 n+ day of February 2004. Approved as to Form and legal content: JAMES F. PENMAN, City Attorney By: C/ HE/cj [Under�oundUtility.Res] 3 2004-32 Exhibit 1 UNDERGROUND UTILITY INSTALLATION REIMBURSEMENT AGREEMENT BY AND AMONG THE CITY OF SAN BERNARDINO, SBT PARTNERS LLC AND HOPKINS-HUB PHASE 2 LLC RELATIVE TO THE PRIVATE PROJECT COMPONENT OF THE CONSTRUCTION OF UNDERGROUND (DRY) UTILITIES AT TIPPECANOE AVENUE AND HARRIMAN PLACE EXTENSION THIS REIMBURSEMENT AGREEMENT (this "Agreement") is entered into as of February _, 2004, by and among the CITY OF SAN BERNARDINO, a charter city (the "City"), SBT Partners LLC, a California limited liability company, and Hopkins -HUB Phase 2 LLC, a California limited liability company (SBT Partners LLC and Hopkins -HUB Phase 2 LLC are jointly referred to herein as the "Developer"), with respect to the following facts: Recitals WHEREAS, the Developer is in the process of constructing certain commercial development improvements generally referred to as the "HUB Project" on property located within the boundaries of the City, more specifically described in the City's "Plans and Special Provisions No. 10682A"; and WHEREAS, the City has prepared certain plans for the construction and installation of certain underground utility infrastructure improvements (the "Public Work") within the public street right-of-way of Harriman Place and Tippecanoe Avenue near the intersection of Harriman Place and Tippecanoe Avenue which public street right-of-way abuts the property as depicted on the vicinity map attached as Exhibit `B" (the "Property"); and WHEREAS, in order to service the commercial development of the Property it is appropriate to install certain underground utility service infrastructure improvements (described herein as the "Private Work"), the cost of which is to be borne by the Developer concurrently with the installation of the Public Work; and WHEREAS, the City is prepared to award a contract to a single public works contractor who shall undertake the performance of both the Public Work and the Private Work pursuant to a public works contract with the City; and WHEREAS, as a condition to instructing the public works contractor who shall undertake the performance of the Public Work concurrently with the performance the Private Work, the City requires that the Developer reimburse the City for the expense of awarding a contract to perform the Private Work; and WHEREAS, the City and the Developer hereby enter into this Agreement to provide, among other things, a fair and equitable means to assure payment to the City of funds for its costs associated with the installation of the Private Work. 4849-7788-0720.2 1 2004-32 NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES CONTAINED IN THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES TO THIS AGREEMENT HEREBY AGREE, AS FOLLOWS: Section 1. City has received a bid in the amount of Two Hundred Sixteen Thousand Three Hundred Eighty Five Dollars ($216,385.00) from Irish Construction (the "Contractor") for the performance of the Private Work by the Contractor concurrently with the performance by the Contractor of the Public Work. Accordingly, Developer agrees to pay to City the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) (the "Deposit") for the performance of the Private Work by the Contractor subject to the City's award of a public works contract to the Contractor to perform both the Public Work and the Private Work. Developer shall pay the Deposit to the City within three (3) business days of the execution of this Agreement by the parties. The parties acknowledge that the Deposit includes a cost contingency for authorized Change Orders as further provided in Section 6. It is understood that Contractor is not a party to this Agreement. Section 2. In recognition of the recitals above and subject to the terms and conditions of this Agreement, the City hereby agrees to cause the Contractor to perform the Private Work in accordance with the public works contract specifications set forth in Exhibit "A" (the "Private Work Specifications"). The Private Work shall be performed by the Contractor in a good and workmanlike manner, and furthermore, the Private Work shall be performed as a "public work" as that term is defined in the Labor Code, to which prevailing wages shall apply. Section 3. The Developer hereby grants permission to the Contractor, and the principals, employees and subcontractors of the Contractor, to enter the Property and to conduct certain on -site evaluations of the Property as well to perform the excavation and installation work relating to the Private Work. Prevailing wages shall apply in the event any new and/or separate contracts between Developer and Contractor are necessary or required for the extension of underground utility service infrastructure improvements from the Private Work onto the Property. Section 4. Effective upon execution hereof, the Developer shall fully indemnify, protect, hold harmless, and defend (with counsel selected by the City) City and the Redevelopment Agency of the City of San Bernardino and the officers, boards, commissions, agents and employees of each of them (collectively, the "City Entities"), from and against all Indemnified Liabilities (as defined below) to the extent and in the proportion that such Indemnified Liabilities are proximately caused by the activities conducted at, on, under or about the Property by the Contractor; provided, however, such indemnity shall not apply to the extent that such Indemnified Liabilities are caused by the active negligence or willful misconduct of City Entities. The term Indemnified Liabilities shall include all claims (including third party claims for injury or death to persons or damages to or loss of property), costs, damages (including consequential damages), fines, judgments, penalties, losses, expenses and reasonable attorneys' fees. City shall promptly notify the Developer, in writing, of any claim for which City Entities, or any of them, seeks indemnification. 4849-778"72 z 2 2004-32 Section 5. City makes no representations or warranties of any kind to the Developer regarding the engineering design of the Private Work. In no event shall City be liable for any consequential, economic, speculative and/or punitive damages arising from or in connection with the engineering design specifications for the Private Work. Notwithstanding the foregoing, nothing in this Agreement shall be construed to limit the liability of any person or party responsible for creating the engineering design specifications for the Private Work. Section 6. The Developer shall have no authority to direct the Public Work or the Private Work or to issue instructions to the Contractor or the City relating to the performance of either the Public Work or the Private Work. Notwithstanding the foregoing, the City shall instruct the Contractor to respond to specific inquiries by the Developer's construction representative identified in Section I I.B., relating to the Contractor's performance of the Private Work. The City shall on a best efforts basis consider any written request or recommendation of the Developer for a change order to be issued by the City to the Contractor relating to the Private Work. Any change in the Private Work must be authorized by written change order signed by the City in its reasonable discretion and the Contractor or by written construction change directive signed by the City or its representative, which authorization shall not be unreasonably conditioned, withheld or delayed. Developer agrees that any increase in the cost of the Private Work caused by any authorized change order or change in the Private Work shall be paid by the Developer within thirty (30) days of invoice (in the event such increase results in the cost of the Private Work exceeding the amount of the Deposit as provided in Section 1). Cost savings or other credit to the City from a change in the Private Work, as determined by the City, shall be refunded to Developer upon the completion of the Private Work. Section 7. Representations and Warranties of SBT Partners LLC A. SBT Partners LLC is a duly organized and validly existing limited liability company created under the laws of the state of California. SBT Partners LLC has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein, and to consummate the transactions that are the subject of this Agreement. The person executing this Agreement on behalf of SBT Partners LLC has power, right and authority to bind SBT Partners LLC. B. SBT Partners LLC has taken all requisite action and obtained all requisite consents in connection with (i) entering into this Agreement, and (ii) the consummation of the transactions that are the subject of this Agreement. No consent of any other person or entity to the execution of this Agreement by SBT Partners LLC is required. C. This Agreement is valid and legally binding upon SBT Partners LLC and enforceable in accordance with its terms. D. Neither the execution of this Agreement nor the consummation of the transactions that are the subject of this Agreement shall result in a breach of or constitute a default under any agreement, document, instrument or other obligation to which SBT Partners LLC is a party or by which SBT Partners LLC may be bound, or under any law, statute, ordinance, rule, 4849-7788-6720.2 3 2004-32 governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to SBT Partners LLC. Section 8. Representations and Warranties of Hopkins -HUB Phase 2 LLC A. Hopkins -HUB Phase 2 LLC is a duly organized and validly existing limited liability company created under the laws of the state of California. Hopkins -HUB Phase 2 LLC has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein, and to consummate the transactions that are the subject of this Agreement. The person executing this Agreement on behalf of Hopkins -HUB Phase 2 LLC has power, right and authority to bind Hopkins -HUB Phase 2 LLC. B. Hopkins -HUB Phase 2 LLC has taken all requisite action and obtained all requisite consents in connection with (i) entering into this Reimbursement Agreement, and (ii) the consummation of the transactions that are the subject of this Reimbursement Agreement. No consent of any other person or entity to the execution of this Reimbursement Agreement by Hopkins -HUB Phase 2 LLC is required. C. This Agreement is valid and legally binding upon Hopkins -HUB Phase 2 LLC and enforceable in accordance with its terms. D. Neither the execution of this Agreement nor the consummation of the transactions that are the subject of this Agreement shall result in a breach of or constitute a default under any agreement, document, instrument or other obligation to which Hopkins -HUB Phase 2 LLC is a party or by which Hopkins -HUB Phase 2 LLC may be bound, or under any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to Hopkins -HUB Phase 2 LLC. Section 9. Representations and Warranties of City A. City is a duly organized and validly existing charter city operating under the laws of the state of California. City is authorized to enter into both this Agreement and the separate public works construction contract with the Contractor for the performance of the Public Work and the Private Work, and to consummate the transactions that are the subject of this Agreement. The person executing this Agreement on behalf of City has power, right and authority to bind City. B. This Agreement is not binding on the City, until signed by the authorized representatives of the Developer, approved by the Common Council of the City, approved as to form and legal content by the City Attorney of the City, and executed by the Mayor of the City. C. Subject to Section 9.B., this Agreement is valid and legally binding upon City and enforceable in accordance with its terms. 4849-778"720.2 4 2004-32 D. City covenants that any and all amounts received pursuant to Section 1 of this Agreement shall be expended solely for the installation and construction of the Private Work, and amounts received and unexpended shall be refunded to Developer in accordance with Section 6 herein. Section 10. If a dispute arises between the parties to this Agreement, the parties hereto agree to use the following procedure to resolve such dispute, prior to pursuing other legal remedies: A. A meeting shall be held promptly between the parties that will be attended by individuals with decision -making authority, who will attempt in good faith to negotiate a resolution of the dispute. B. If the parties are unsuccessful in resolving the dispute under A., above, either party may initiate litigation upon forty-five (45) days advanced written notice to the other party. C. If any party should bring an action against the other(s) to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, as determined by a court of competent jurisdiction in said proceeding. For the purposes of this Agreement the words "reasonable attorneys' fees" mean and include the salaries, benefits and costs (allocated on an hourly basis) of lawyers employed by the Office of City Attorney of the City of San Bernardino who may provide legal services to the City hereunder. Section 11. A. Any notice required or permitted to be given pursuant to this Agreement shall be given in writing and shall be deemed given on the date when it is personally served on the party to be served or transmitted by FAX and its receipt confirmed by telephone or on the third day following deposit with the United States Postal Service for delivery by certified or registered mail, postage prepaid and addressed, as follows: To the Developer: SBT Partners LLC 13 Corporate Plaza Suite 200 Newport Beach, California 92660 To the Developer: Hopkins -HUB Phase 2 LLC 13 Corporate Plaza Suite 200 Newport Beach, California 92660 To the City: City of San Bernardino Development Services Department Public Works Division 300 North "D" Street San Bernardino, California 92418 4849-7788-6720.2 5 2004-32 B. For the purposes of this Agreement, each party hereto shall designate the following individual to serve as construction project representative for such party: For the Developer: Stephen C. Hopkins for SBT Partners LLC For the Developer: Stephen C. Hopkins for Hopkins - HUB Phase 2 LLC For the City: James Funk, Director of Development Services Section 12. The parties hereto acknowledge that this Agreement was negotiated and entered into in California. The parties hereto expressly agree that this Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California. Section 13. If any term or provision of this Agreement or the application thereof to any person or circumstance shall be deemed invalid or unenforceable by a court, the remainder of this Agreement, or the application of such term or provision or portion thereof to persons or circumstances, other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Section 14. No waiver of any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension of the time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act. Section 15. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. This Agreement is not assignable by the Developer, without the prior written consent of the City. Section 16. This Agreement (including the Exhibit attached hereto) contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the parties. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall constitute a single instrument. The parties do not intend to confer any benefit hereunder on any person, firm or corporation other than the parties hereto. Section 17. Headings at the beginning of each section, paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to sections are to this Agreement. All exhibits referred to in this Agreement are attached and incorporated by this reference. In the event the date on which 4849-7788fi720.2 6 2004-32 the City or the Developer is required to take any action under the terms of this Agreement is not a business day, the action shall be taken on the next succeeding business day. IN WITNESS WHEREOF, the City and the Developer execute this AGREEMENT as of the dates set forth below next to the signatures of their authorized representatives, as follow: Dated: `4 Dated: Z 2.15(C4 Dated: a S (lo Approved as to form and legal content JAMES F. PENMAN City Attorney By: 4849-778M720.2 7 DEVELOPER SBT Partners LLC By: Name: DEVELOPER Hopkins-H Phase 2 LLC By: Name: CITY City of San Bernardino Lm 2004-32 EXHIBIT "A" Private Work Specifications VERIZON, underground (dry) utilities, per marked up Plan No. 10373, C4-C7 (Project No. 10682A) Clearing and grubbing, unclassified excavation and unclassified fill ADELPHIA, per Borban Cable Engineering Plan (Project No. 10682A) Clearing and grubbing, unclassified excavation and unclassified fill All Plans and Special Provisions No. 10682A 4849-778M72U 2004-32 F .. Exhibit "B" City of San Bernardino, California Department of Public Works, Division of Engineering File No. 1.7246—UTL W.O. No. 7246 DWG. No. 10682 VICINITY MAP FOR UNDERGROUND (DRY) UTILITIES ALONG LAUREL WOOD DRIVE REALIGNMENT 6W E DUPS ST SO BERA1MAV aXF ras , 3 lI�EITLI'r f1SOLINE VICINITY M_ AP N.T.