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HomeMy WebLinkAbout2001-259 , 1 2 3 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. 2001-259 RESOLUTION APPROVING A MEMORANDUM OF UNDERSTANDING REGARDING A COST SHARING AGREEMENT WITH G. F. R. ENTERPRISES FOR DEBRIS BASIN IN TRACT NO. 12958. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor and Common Council find that the proposed Memorandum of Understanding Regarding Tract No. 12958 Debris Basin Cost Sharing, located on Lot 39 of Tract No. 12958, together with the provisions for their design and improvements, is consistent with the General Plan of the City of San Bernardino. SECTION 2. The Mayor is hereby authorized on behalf of the City to execute said Memorandum of Understanding, attached as Exhibit 1 and incorporated herein, by and between the City of San Bernardino and G.F.R. Enterprises. Said improvements are specifically described and shown on Drawings approved and on file in the Development Services Department of the City of San Bernardino. SECTION 3. This Resolution is rescinded if the parties to the Memorandum of Understanding fail to execute it within sixty (60) days of the passage of this Resolution. III I I I III III III III III III 2001-259 1 RESOLUTION APPROVING A MEMORANDUM OF UNDERSTANDING 2 REGARDING A COST SHARING AGREEMENT WITH G. F. R. ENTERPRISES FOR DEBRIS BASIN IN TRACT NO. 12958. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a joint reg. meeting thereof, held on the 6 20thdayof August ,2001, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT x x x x ~ x x 17 18 19 20 21 (2~ h. CLvJc CitYeerk The foregoing resolution is hereby approved this C'''"d day of August ,200!. 22 lU--. Approved as to 23 Form and legal content: 24 JAMES F. PENMAN, City Attorney 25 L 26 By: -:r f~ 1110 27 28 III . .' ". IRV 13707 v2 2001-259 MEMORANDUM OF UNDERSTANDING RE [TRACT 12958 DEBRIS BASIN COST SHARING] BY AND BETWEEN THE CITY OF SAN BERNARDINO AND G.F.R. ENTERPRISES Dated: August 20 , 2001 I" '" ,------ -- 2001-259 MEMORANDUM OF UNDERSTANDING RE TRACT 12958 DEBRIS BASIN COST SHARING THIS MEMORANDUM OF UNDERSTANDING ("Memorandum"), dated for reference purposes as indicated on the cover page, is hereby entered into by and between the CITY OF SAN BERNARDINO, a public body, corporate and politic (the "CITY") and G.F.R. ENTERPRISES, a California corporation ("GFR") as follows. RECITALS WHEREAS, on Or about February 18, 1999, GFR acquired title to twenty-six (26) lots of Tract 12958 which are mOre particularly described as Lots 28, 29, 33, 34, 35, 36, 37, 38, 39, 40, 41,42,50,51,52,53,54,57,77,91,100,101,102,110,111, and 112 of Tract 12958 in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 215 of maps, pages 40 through 45, inclusive, in the office of the County Recorder of said County ("Subject Parcels"), and WHEREAS, on November 16, 1999, GFR obtained Development Permit Type III No. 99-19 which incorporated a set of Standard Requirements and a letter of clarification from the CITY's Engineering Department dated November 16, 1999 (collectively the "Development Permit") from the CITY for the development of twenty-six (26) single family homes on the Subject Parcels located along Shandin Drive, Shandin Circle, Canyon Terrace Drive, and Big Canyon Court in the City of San Bernardino ("Project"), and WHEREAS, the Development Permit required GFR to construct a drainage system, adequate to mitigate preexisting runoff, in back of lots 38, 39, and 40 (which was subsequently changed to lots 37, 38, and 39 by agreement of the Parties) prior to issuance of building permits for these three lots, and WHEREAS, GFR and the CITY have agreed that the preexisting runoff has been affected by activities of the CITY in the area tributary to the location of the required drainage system, and WHEREAS, GFR desires to obtain building permits for lots 37, 38, and 39, and the parties desire that GFR construct the required drainage system and share the cost thereof with the CITY, NOW, THEREFORE, in consideration of the promises made and recited herein, the Parties do hereby enter into this Memorandum setting forth the terms under which GFR and the CITY will share the cost of the required drainage system as follows: OPERATIVE PROVISIONS 1. Debris Basin Meets Requirement. The Parties agree that the drainage system required by the Development Permit is a debris basin and related structures ("Debris Basin") as IRV 13707 v2 I ,'. 2001-259 shown on the plans which are incorporated herein by reference as Exhibit "A". The CITY agrees to accept construction of the Debris Basin in satisfaction of the applicable conditions of the Development Permit. The CITY agrees to issue building permits (provided all other applicable requirements are met) for lots 37, 38, and 39, upon execution of this Memorandum by the Parties. The city agrees to waive all fees for any permit required to construct the Debris Basin. 2. Debris Basin Construction. GFR agrees to procure the design and construction services for the Debris Basin and to diligently pursue construction of the Debris Basin to completion within three (3) months from and after the Effective Date of this Memorandum. GFR shall provide the CITY with true and correct copies of all contracts, requests for information, change orders, as-built drawings, and other construction related documents, including all contractor invoices, bills, charges, and all evidences of payment to the Contractor by GFR. 3. Debris Basin Cost. The Parties have estimated the total cost to design and construct the Debris Basin to be Seventy Thousand Dollars and No Cents $70,000.00, hereinafter the "Estimated Cost". The Parties will establish the final cost of the Debris Basin within thirty (30) days from and after completion of construction and final inspection by the CITY. The final cost of the Debris Basin shall be the total cost of the design and construction of the Debris Basin as reflected in engineer and contractor invoices, bills, and charges to GFR, which directly relate to the Debris Basin, and which have been approved and paid by GFR. This shall be known as the "Final Cost". This Final Cost shall be subject to the approval of the City Engineer. 4. Cost Sharing. The Parties agree to share the cost of the Debris Basin as follows: 4.1 Advance of Construction Costs. GFR shall advance such costs as are reasonably necessary to initiate and complete the design and construction of the Debris Basin, subject to reimbursement of a portion of these costs from the CITY as provided in this Memorandum. 4.2 Deposit. Within thirty (30 days from and after the Effective Date of this Memorandum, the CITY shall deposit an amount equal to fifty percent (50%) of the Estimated Cost into a designated account with the CITY. 4.3 Reimbursement. GFR shall be entitled to seek periodic reimbursement from the funds on deposit with the CITY for its actual costs incurred in the design and construction of the Debris Basin. Concurrently with GFR making payment on any engineer's or contractor's invoice which is directly related to the Debris Basin, GFR shall provide the CITY with a copy of the invoice, a copy of the documents evidencing GFR's payment of such invoice, and GFR's request for reimbursement. The request for reimbursement shall indicate the percentage of the contract that is complete, the amount of retention, the amount actually paid by GFR, and the amount of reimbursement sought. GFR shall be entitled to receive reimbursement for fifty percent (50%) of the amount actually paid by GFR as evidenced by the documents provided with the request. Contract retention amounts shall be reimbursed to GFR by the CITY after GFR makes final payment to the contractor. The City shall make all such reimbursement to IRV 13703 v2 2 2001-259 GFR within fifteen (15) days of receipt of a complete request from GFR. All requests for reimbursement shall be directed to the CITY as follows: City of San Bernardino Development Services Department Attn: City Engineer 300 North "D" Street San Bernardino, California 92418-0001 Fax: (909) 384-5080 4.4. Final Cost. Within fifteen (15) days after determination of the Final Cost as provided in section "3." [Debris Basin Cost], GFR shall provide the CITY with an accounting of the Final Cost, including the total contract price, additions and deletions of the contract price, the total amount paid by GFR, the total amount received by GFR as reimbursement, and a request for final reimbursement. In the event that the Final Cost does not exceed the Estimated Cost by more than ten percent (10%), then the CITY shall make final reimbursement to GFR within fifteen (15) days from and after receipt of the request for final reimbursement. In the event that the Final Cost exceeds the Estimated Cost by more than ten percent (10%), then the CITY shall make final reimbursement within thirty (30) days from and after receipt of the request for final reimbursement. 5. Indemnitv. GFR hereby agrees to indemnify, defend with counsel reasonably acceptable to the CITY, and hold the CITY and its officials, officers, employees, and agents harmless from and against any liability, claim, damage, cost, proceedings (whether judicial or administrative), lien, or judgment, arising from or in any way related to GFR's performance under this Memorandum. 6. Insurance. GFR shall not commence work under this Agreement until GFR shall have obtained all insurance required under this paragraph, and such insurance shall have been approved by City Attorney as to form, amount and carrier, nor shall GFR allow any contractor or subcontractor to commence work on his contract or subcontract until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved. All requirements herein provided shall appear either in the body of the insurance policies Or as endorsements and shall specifically bind the insurance carrier. 6.1. Workers' Compensation InsurancelEmplover's Liabilitv Insurance. GFR shall maintain, during the life of this Agreement, Workers' Compensation and Employer's Liability Insurance for all GFR's employees employed at the site of improvement, and, in case any work is sublet, GFR shall require any contractor or subcontractor similarly to provide Workers' Compensation Insurance and Employer's Liability Insurance for all contractor's or subcontractor's employees, unless such employees are covered by the protection afforded by GFR. In case any class of employees engaged in work under this Agreement at the site of the project is not protected under any Workers' Compensation Law, GFR shall provide, and shall cause each contractor and subcontractor to provide, adequate insurance for the protection of employees not otherwise protected. GFR shall indemnify City for any damage resulting to it from failure of either GFR or any contractor or subcontractor to take out of maintain such msurance. IRV 13707 v2 3 2001-259 6.2. Public Liability and Property Damal!e Insurance. GFR shall take out and maintain, during the life of this Agreement, such public liability and property damage insurance as shall insure City, its elective and appointive boards, commissions, officers, agents and employees, GFR and any contractor or subcontractor performing work covered by this Agreement from claims for damages for personal injury (as defined hereunder), including death, as well as from claims for property damage or product liability which may arise from GFR's or any contractor's or subcontractor's operations hereunder, whether such operations be by GFR or any contractor or subcontractor, or by anyone, including, without limitation, agents, employees or independent contractors, directly Or indirectly employed by either GFR or any contractor or subcontractor, and the amounts of such insurance shall be as follows: 6.2.1. Public Liabilitv Insurance. In an amount not less than One Million Dollars ($1,000,000.00) for injuries, including, but not limited to, death, to anyone person, and, subject to the same limit for each person, in an amount not less than One Million Dollars ($1,000,000.00) on account of anyone occurrence; Product Liability Insurance coverage should be part of the Public Liability Insurance; 6.2.2. Property Damal!e InSUrance. In an amount not less than One Million Dollars ($1,000,000.00) for damage to the property of each person on account of anyone occurrence. . In the event that any of the aforesaid insurance policies provided for in this paragraph 6 insures any entity, person, board or commission other than those mentioned in this paragraph, such policy shall contain a standard from of cross-liability endorsement, insuring on such policy City, its elective and appointive boards, commissions, officers, agents and employees, GFR and any contractor or subcontractor performing work covered by this Agreement. 6.2.3. Tail Coveral!e. Insurance coverage, albeit for public liability or property damage, shall be written, if possible, on an "occurrence" form rather than a "claims made" policy. If the insurance policy is written on a "claims made" policy, then additional coverage, entitled "tail coverage," must be purchased to cover a period of one (1) year from completion of the project. All subcontractors must and shall comply with the same insurance provisions as the contractor(s) and subdivider(s). 6.2.4. Personal Iniury -- Defined. As used herein, the term "personal injury" shall be defined as a hurt or damage to one's person including, without limitation, damage to health, cuts, bruises, broken limbs and/or bones, or the like, disabilities or impairments, including aggravation of existing injuries, or invasion of personal rights, including libel or slander, criminal conversation, malicious prosecution, false imprisonment and mental suffering. 7. Evidence of InSurance. GFR and contractor shall furnish City, concurrently with the execution hereof, with satisfactory evidence of the insurance required, and evidence that City is named and endorsed on the policy as an additional insured. GFR and contractor shall also provide City with evidence that each carrier will be required to give City at least ten (10) days fRY 13707 v2 4 2001-259 prior written notice of the cancellation Or reduction in coverage of any policy during the effective period ofthis Agreement. 8. General Terms and Conditions. The following general terms and conditions shall apply to this Memorandum: 8.1. Assil!nment. GFR shall not assign any rights or privileges created under this Memorandum without the prior written consent of the CITY. 8.2. Amendment. This Memorandum may only be amended by the written consent of all of the parties to this Memorandum. 8.3. Authoritv. The individuals executing this Memorandum on behalf of GFR represent and warrant that they have the legal power, right, and actual authority to bind GFR to the terms and conditions set forth in this Memorandum. 8.4. Entire Memorandum. This Memorandum constitutes the entire agreement between the parties and supersedes all agreements, representations, warranties, statements, promises and/or understandings, whether oral or written, with respect to the subject matter hereof and no party shall be bound by any such representation, statement, promise or understanding not specifically set forth in this Memorandum. 8.5. Governinl! Law. This Memorandum shall be construed and governed in accordance with the laws of the State of California, 8.6. Severability. In the event that any of the provisions, or portions thereof, of this Memorandum are held to be unenforceable Or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby. 8.7. Non-Liabilitv of CITY Official and Emulovees. No board member, official, consultant, attorney, or employee of the CITY shall be personally liable to GFR, Or any successor or assignee, or any person claiming under or through them, in the event of any default by the CITY or for any amount which may become due to GFR or to its successor or assignee or for any obligations arising under this Memorandum. 8.8. No Third Party Beneficiaries. This Memorandum, its terms, conditions, and covenants are for the sole and exclusive benefit of the CITY and GFR. No other parties Or entities are intended to be, or shall be considered, a beneficiary of the performance of any of the parties' obligations under this Memorandum. 8.9. Interuretation. CITY and GFR acknowledge that this Memorandum is the product of mutual arms-length negotiation and drafting and each represents and warrants to the other that it has been represented by legal counsel in the negotiation and drafting of this Memorandum. Accordingly, the rule of construction which provides that ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Memorandum. In any action or proceeding to interpret or enforce this Memorandum, the finder of fact may refer to such extrinsic evidence not in direct IRV 13707 v2 5 ,'. I " 2001-259 conflict with any specific provision of this Memorandum to determine and give effect to the intention of the parties hereto. 8.10 Counterpart Originals. This Memorandum may be executed in duplicate originals, each of which is deemed to be an original. 8.11 Effective Date of Memorandum. This Memorandum shall not become effective until the date it has been executed by the duly authorized representatives of GFR and has been approved and executed by the Mayor of the CITY. IN WITNESS WHEREOF, the parties hereto have executed this Memorandum on the date and year first -above written. CITY OF SAN BERNARDINO ATTEST: &---- By: S to Form and Legal Content By: Q~h\~ Rac~ Clark City Clerk By, ~ 9~ J es F. Penman City Attorney G.F.R. ENTERPRISES By: (3~~ Richard F. Herrera, resident By: ;z~~ /ZuU./ Felizardo Robles, Jr. Secretary ITreasurer IRV 13703 v2 6 " 2001-259 EXHIBIT "A" PLAN OF DEBRIS BASIN EXHIBIT" A" IRV 13707 v2 A-I