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HomeMy WebLinkAbout2004-0951 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 27 O RESOLUTION NO. 2004-95 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH WATSON & ASSOCIATES FOR GRADING OF CAMPUS PARKWAY BETWEEN KENDALL DRIVE AND NORTHPARK BOULEVARD. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. THAT THE MAYOR is hereby authorized to execute the Grading Agreement (see Attachment "1" incorporated herein) with Watson & Associates relative to grading of Campus Parkway between Kendall Drive and Northpark Boulevard. Such Agreement shall be effective only upon being fully executed by all parties. SECTION 2. This Agreement shall not take effect or become operative until fully signed and executed by the parties and no party shall be obligated hereunder until the time of such full execution. No oral agreement, amendments, modifications or waivers are intended or authorized and shall not be implied from any act or course of conduct of any party. SECTION 3. This resolution is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of the resolution. //I 2004-95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 21 22 23 24 25 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH WATSON & ASSOCIATES FOR GRADING OF CAMPUS PARKWAY BETWEEN KENDALL DRIVE AND NORTHPARK BOULEVARD. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 5th day of April , 2004, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x LONGVILLE x MC GINNIS x DERRY x x KELLEY JOHNSON x MC CAMMACK x The foregoing resolution is hereby approved this Approved as to form and legal content: JAMES F. PENMAN, C 28I I I Cit Clerk April 12004. h Valles, Mayor of San Bernardino 2004-95 Attachment "I" GRADING AGREEMENT This Grading Agreement ("Agreement") is entered into effective April 5 , 2004, between the City of San Bernardino, a Municipal Corporation, ("City") and Watson & Associates, a California Corporation ("Developer"). RECITALS 1. On June 2, 2003, the Developer entered into an Agreement with the City of San Bernardino Redevelopment Agency to purchase real property ("University Park") in the municipal limits of the City, which is depicted and more particularly described as Exhibit "A. 2. The Developer intends to use its reasonable best efforts to develop the University Park property as a quality residential project, a quality shopping center which will contain stores, shops and restaurants, and an office/technology business park. 3. The City has adopted the San Bernardino Development Code ("Code") establishing various development impact fees to offset the cost of development of City infrastructure. 4. On May 6, 2003, the Planning Commission approved Tentative Tract Map No. 16509 and Conditional Use Permit No. 03-06, the Developer's proposal to subdivide approximately 117 acres into 158 lots (including two easement areas proposed to be reserved for the City of San Bernardino Municipal Water Department) for development of 153 single family homes with said residential development abutting a portion of Campus Parkway. 5. As a condition of approval to Tentative Tract Map No. 16509 and Conditional Use Permit No. 03-06, the Planning Commission required the Developer to contribute $35,000 toward the cost of off -site "fair share" improvements based on the Traffic Impact Analysis, and required the Developer to pay a Traffic Systems Fee in the amount of $40,833 for the 153 single family homes to be constructed as part of University Park. 6. In an additional condition of approval to Tentative Tract Map No. 16509 and Conditional Use Permit No. 03-06, and subject to the approval of an Agreement by the Mayor and Common Council, the Planning Commission allowed the Developer to provide engineering design, soil and compaction, and grading of the entire right-of-way for Campus Parkway from Kendall Drive to Northpark Boulevard, estimated to cost in excess of $411,000, in exchange for a credit (relieved of the requirement to pay) in an amount not to exceed $275,000, which includes the above mentioned Fair Share Traffic Improvements Fee of $35,000, the Traffic Systems Fee of $40,833, and any future Fair Share Traffic Impact Fees and Traffic Systems Fees, which may result from future commercial development of the remaining 22 acres of University Park, provided the Developer conducts and completes the following: a.) Redesigns the existing plans for the alignment of Campus Parkway at its approach to Northpark Boulevard to connect with CSUSB's planned street (extension of Campus 2004-95 Attachment " 1 " Parkway) proposed to be located to the northeast of Northpark Boulevard, which will result in an estimated cost savings of $5,000 to the City; b.) Provides soil and compacts said soil in accordance with the above mentioned redesign to connect Campus Parkway with CSUSB's planned street proposed to be located to the northeast of Northpark Boulevard, which will result in an estimated cost savings of $50,000 to the City; and c.) Grades the entire right-of-way for Campus Parkway from Kendall Drive to Northpark Boulevard at the same time the Developer grades the abutting residential project site, which will result in an estimated cost savings to the City of approximately $356,000 in the cost of grading Campus Parkway. 7. On October 7, 2003, the Planning Commission approved a minor revision to Tentative Map No. 16509. The minor revision established the subdivision as follows: three lots totaling 4.19 acres (and not a part of the residential subdivision containing approximately 128.85 acres) to be retained for water storage and wells by the City of San Bernardino Municipal Water Department; one lot containing 6.98 acres of future Campus Parkway right-of-way to be dedicated to the City; one lot containing 2.38 acres to be dedicated to the City for a neighborhood park; three open space lots (including the SCE easement lot) containing 25.97 acres to be dedicated to the City for water recharge facilities, natural and sculptured open space, and open space and trails; one lot containing 0.21 acre for Northpark Blvd. right-of-way and landscape open space to be dedicated to the City; and, the remaining developable land of 93.31 acres. Of the remaining 93.31 acres, approximately 21.63 acres are in seven lots reserved for future development, and approximately 71.68 acres are in street rights -of -way and the lot areas of the proposed 153 single family single homes. The revised Tentative Map contains 160 "numbered lots" to be held in private ownership. The remaining lots intended for public ownership are identified as "lettered lots" (Lots A through L) or illustrated as street right-of-way. IN CONSIDERATION of the mutual covenants and conditions, which are provided in this Agreement, the parties agree as follows: OPERATIVE PROVISIONS 1. Term: Unless earlier terminated as provided in this Agreement, this Agreement will commence on the Effective Date and will continue until 12 years from the Effective Date. 2. Design and Construction of Improvements: Developer shall use its best reasonable efforts to complete the redesign of Campus Parkway, importation of fill, compaction of fill, and grading of all portions Campus Parkway between Kendall Drive and Northpark Boulevard (hereafter collectively referred to as "Improvements") to the specifications and standards of the City Engineer on or prior to August 18, 2004, subject to extension for force majeure including, without limitation, inclement weather, unavailability of labor or materials, and other causes beyond the sole control of Developer. The Developer shall pay City for the inspection of said Improvements. The plans and specifications, design, 2- 2004-95 Attachment "1" construction and installation of the Improvements shall be subject to the review and approval of the City Engineer in his/her sole discretion. 3. Permits: The Developer shall secure and pay the cost of all required permits. The City shall not reimburse the Developer the cost of securing the permits or the costs of permit fees. 4. Coordination of Grading: The Improvements to Campus Parkway shall be coordinated and completed at the time of grading by the Developer of the residential portion of University Park abutting Campus Parkway. 5. Credits: In the event the Improvements are completed to the satisfaction of the City Engineer and in compliance with the terms of this Agreement, the Developer shall be credited towards the payment of development impact fees in an amount not to exceed $275,000 in Fair Share Traffic Improvement Fees and Traffic Systems Fees, including the required Fair Share Traffic Improvement Fee of $35,000 and the Traffic Systems Fee of $40,833 for the residential portion of University Park, and including any future Fair Share Traffic Impact Fees and Traffic System Fees which may be required as a result of future commercial development of the remaining approximately 117-acres of the property. 6. Total Amount of Credits: The total amount of said Credits granted to the Developer shall not exceed $275,000. 7. Term of Credit Obligation: The City's obligation, under this Agreement, to credit the Developer for the completed Improvements shall continue for a period of twelve (12) years from the Effective Date of this Agreement, unless the obligation is sooner satisfied by credit in the full amount of $275,000 due and owing to the Developer under this Agreement. After such twelve-year period or credit in full, whichever occurs first, the City's obligation to credit the Developer shall terminate. 8. Shortfall of Credits: The City's maximum obligation to credit the Developer shall not exceed $275,000. In the event Fair Share Traffic Improvement Fees and Traffic Systems Fees levied on the development of the property does not exceed $275,000 during the term of this Agreement, the City shall not reimburse or credit the difference to the Developer. 9. Fees in Excess Credits: In the event Fair Share Traffic Improvement Fees and Traffic Systems Fees levied on the development of the property exceed $275,000 during the term of this Agreement, the City shall not reimburse or credit the difference to the Developer. The Developer shall be responsible and shall pay to the City any Fair Share Traffic Improvement Fees and Traffic Systems Fees levied on the development of the property, which exceed $275,000. 10. Bids and Contracts: Developer shall be solely responsible for securing appropriate bids and awarding the contract for construction and installation of the Improvements in compliance with all applicable federal, state and local laws. - 3 - 2004-95 Attachment "1" 11. Inspection: The City shall have the right at all times to inspect the construction of the Improvements and all other improvements to the street right-of-way and abutting property to measure compliance with approved City plans and specifications, and standards of the City Engineer. 12. Mitigation Monitoring Program: In its construction of the Improvements, the Developer will adhere to the Mitigation Monitoring Program established for Campus Parkway and University Park. 13. Indemnification: a) With respect to the Developer's performance as provided in this Agreement, the Developer shall defend, indemnify and hold the City and the Economic Development Agency and their officials, officers and employees free and harmless from all claims, causes of action, damages, costs and liability (including, without limitation, liability arising from injury to persons, including wrongful death and worker's compensation claims, and damage to property) arising from or related to this Agreement, the Improvements, or Developer's performance under this Agreement, except as to claims, causes of action, damages, or costs caused by the sole active negligence or intentional acts of City. b) Included, without limitation, in the scope of the foregoing indemnification will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject to the applicable indemnification and all of the associated attorneys fees and court costs. Without limiting the effect of the foregoing, the Developer shall have the right to defend against any claim with respect to which it is indemnifying the City, using legal counsel of its choice. The City shall cooperate with the Developer and shall give the Developer its full support in connection with any claim with respect to which the Developer is indemnifying the City. c) Developer shall require all persons doing work on the Improvements, including their contractors and subcontractors, to obtain and maintain insurance of the types and in the amounts described below and in a form and with carriers satisfactory to City. 1. Commercial General Liability Insurance: Occurrence version commercial general liability insurance or equivalent form with a limit of not less than $1,000,000 each occurrence shall be maintained. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two times the occurrence limit. Such insurance shall: i) Name City and the Economic Development Agency, their elected officials, officers, employees and agents as additional insureds -4- 2004-95 Attachment "I" with respect to performance of this Agreement. The coverage shall contain no special limitations on the scope of its protection afforded to the above -listed insureds. ii) Be primary with respect to any insurance or self-insurance programs covering City or the Economic Development Agency, their elected officials, officers, employees and agents. iii) Contain standard separation of insureds provisions. 2. Business Automobile Liability Insurance: Business automobile liability insurance or equivalent form with a limit of not less than $500,000 each accident shall be maintained. Such insurance shall include coverage for owned, hired, and non -owned automobiles. 3. Workers' Compensation Insurance: Workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 each accident shall be maintained. 4. Other Insurance Requirements: Developer shall: i) Prior to taking any actions under this Agreement, furnish City with properly executed certificates of insurance which shall clearly evidence all insurance required in this Section and provide that such insurance shall not be canceled without the prior written consent of the City. 14. Prevailing Wages: Developer is aware of the requirements of California Labor Code Sections 1770 et. sec., which require the payment of prevailing wage rates for Developer's contracts with its contractor(s) to construct the Improvements in accordance with a public works contract as defined in Sections 1720 and 1720.2 of the California Labor Code. The Developer and City agree that Campus Parkway is not a part of the development of the abutting private property, and is not a part of University Park. The Developer agrees that the Improvements in the proposed right-of-way of Campus Parkway shall be deemed a "public works project" as defined in the California Labor Code. The Developer shall pay and cause its subcontractors to pay prevailing wage for the Improvements within Campus Parkway. 15. Contractor Licenses: All work performed on the Improvements shall be done only by contractors licensed in the State of California and holding business licensees in the City of San Bernardino, and qualified to perform the type of work required. 16. Acceptance of Work: Upon completion of the Improvements to the satisfaction of City, the Improvements and the Campus Parkway right-of-way in the ownership of the Developer shall be presented to the San Bernardino Common Council for dedication and acceptance, and for authorization to file a Notice of Completion. The Common Council - 5 - 2004-95 Attachment "I" may accept the Improvements if it determines that the Improvements were constructed in accordance with the approved plans, specifications and contract documents, that they operate satisfactorily, and that all other requirements of the Agreement have been satisfied. Upon acceptance of the Improvements, Developer shall assign to City all of Developer's rights and remedies, including warranties, as set forth in the approved contract documents that City would have had if City itself had engaged Developer's contractor to construct the Improvements. 17. Liability for Work Prior to Formal Acceptance: Until the Common Council has formally accepted the Improvements, Developer shall be solely responsible for all damage to the work caused by or arising out of Developer's or its contractor's or subcontractor's negligent acts or omissions, and for all damages or injuries to any person or property at the work site caused by or arising out of Developer's or its contractor's or subcontractor's negligent acts or omissions, except damage or injury due to the negligence of City, its agents or employees. 18. Guarantee: Developer shall post a warranty bond for the entire site in form and content acceptable to the City, guarantee all work and materials for the Improvements to be free from all defects due to faulty materials or workmanship for a period of one (1) year after the date of formal acceptance of the work by City. 19. Record Drawings: Prior to acceptance of the Improvements by the Common Council, Developer shall provide City with three (3) copies of record drawings with certification as to accuracy and completeness by an engineer licensed in the State of California. The City shall not be responsible for insuring the completeness and accuracy of the record drawings. 20. Ownership of the Improvements: From and after acceptance of the Improvements and the dedication and acceptance of Campus Parkway right-of-way by formal action of the Common Council, ownership of the Improvements and street right-of-way shall be vested exclusively in City. 21. Default by Developer: If the Developer fails to perform any of its obligations as provided in the Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by the City, then the Developer shall be in default and the City shall have all remedies which are available to it at law or in equity; provided, however that if the nature of Developer's failure to comply or perform is such that it cannot reasonable be cured within 30 days, then the Developer will not be in default if it immediately commences and thereafter diligently continues to cure its failure. 22. Default by City: If the City fails to perform any of its obligations as provided in the Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by the Developer, then the City shall be in default and the Developer shall have all remedies which are available to it at law or in equity; provided, however that if the nature of City's failure to perform is such that it cannot reasonable be -6- 2004-95 Attachment "I" cured within 30 days, then the City shall not be in default if it immediately commences and thereafter diligently continues to cure its failure. 23. Negation of Agency Joint Venture or Partnership: The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Agreement shall be construed as making them joint ventures or partners. 24. Notices and Other Communications: All notices or other communications which are required or permitted to be given to the parties shall be in writing and shall be given either by personal service or by mailing the same certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY City of San Bernardino 300 North D Street San Bernardino, CA 92418 Attn: Director of Development Services DEVELOPER Watson & Associates 101 Main Street Seal Beach, CA 90740 If any such notice or other communication is given by personal delivery, then it shall be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it shall be deemed given as of the date of receipt or rejection. Addresses, to which notices or other communications may be delivered, may be changed from time to time by written notice, which is given as provided in this Paragraph 24. 25. Applicable Law: This Agreement shall be construed and enforced as provided in California law. 26. Superseding State or Federal Law: If any state or federal law or regulation which is enacted or adopted after the Effective Date or any other action of any governmental entity which is not under the City's control, prevents or precludes compliance with any provision of this Agreement, then that provision of this Agreement shall be modified or suspended only to the extent and for the time necessary to achieve compliance with that law, regulation or other governmental action and the remaining provisions of this Agreement shall continue in full force and effect and the parties shall negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental -7- 2004-95 Attachment "I" action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of the Agreement shall be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, shall terminate. 27. Venue: Any legal action with respect to this Agreement shall be brought in San Bernardino County Superior Court or in the United States District Court for the Central District of California. 28. Attorneys' Fees: If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in that action shall be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with that action. The costs, salaries and expenses of the City Attorney, and members of his office, in connection with that action shall be considered as attorneys' fees for the purpose of this Agreement. 29. Paragraph Headings: The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 30. Construction: In all cases, the language in this Agreement shall be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 31. Survival: Each and ever covenant in this Agreement shall survive the execution and delivery of this Agreement for the benefit of the parties. 32. Calendar Periods: All references in this Agreement to "years", quarters", "months", and "days" will be deemed to be references to calendar years, quarters, months, and days. 33. Severability: Every provision of this Agreement is and shall be construed to be a separate and independent covenant. Without limiting the effect of Paragraph 26, if any provision of this Agreement or the application of the same is, to any extent, found to be invalid or unenforceable, then the remainder of this Agreement or the application of that provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected by the same and that provision of this Agreement shall be valid and shall be enforced to the extent permitted by the law and the parties shall negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 34. Covenant of Good Faith: In exercising their rights and in performing their obligations as provided in this Agreement, the parties shall cooperate with one another in good faith, so the intent of this Agreement can be attained. 2004-95 Attachment "I" 35. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed to be an original for all purposes and all such counterparts shall constitute one and the same agreement. 36. Incorporation of Recitals: The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth herein. 37. Exhibits: The Exhibits to this Agreement are incorporated by reference as though fully set forth herein. 38. Amendment: No amendment or waiver of any term of this Agreement shall be binding on the City unless and until it has been approved by the City and has become effective, or on the Developer unless and until it has been executed by the Developer. 39. Assignment: This Agreement shall not be assigned without the written consent of the parties hereto, and any assignment without such written consent shall be void and ineffective. 40. Time of Essence: Time is of the essence of this Agreement. SIGNATURES FOLLOW 9- 2004-95 Attachment "1" GRADING AGREEMENT CITY CITY OF SAN BERNARDINO ATTEST: By: � u a lb, Rach6LUlark, City Clerk APPROVED AS TO FORM AND LEGAL CONTENT: By: c-z-z-� r es F. Penman, City Attorney DEVELOPER Watson & Associates, A California Corporation By: Name: nzT-1 -*n4f S Title: �it Ala C�C�v�1S -10- At 2004-95 Exhibit "A" CITY OF SAN BERNARDINO PROJECT: TT 16509 PLANNING DIVISION CUP 03-06 LOCATION MAP LAND USE DISTRICTS HEARING DATE: 10/7/03