HomeMy WebLinkAbout1995-185
1
RESOLUTION NO.
95-185
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH HIGHLAND & BOULDER PARTNERS
3 RELATIVE TO UNDERGROUNDING UTILITIES ON HIGHLAND AVENUE AND
PIEDMONT DRIVE AT WAL'-MART DEVELOPMENT.
4
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
5 CITY OF SAN BERNARDINO AS FOLLOWS:
6 SECTION 1. The Mayor of the City of San Bernardino is
7 hereby authorized and directed to execute, on behalf of said
8 City, an Agreement with Highland & Boulder Partners relative to
9 undergrounding utilities on Highland Avenue and Piedmont Drive at
10 the Wal-Mart Development. A copy of said agreement is attached
11 hereto, marked Exhibit "A" and incorporated herein by reference
12 as fully as though set forth at length.
13
SECTION 2.
The agreement shall not take effect until
14 fully signed and executed by both parties. The City shall not be
15 obligated hereunder unless and until the agreement is fully
16 executed and no oral agreement relating thereto shall be implied
17 or authorized.
18 SECTION 3. This resolution is rescinded if the parties
19 to the agreement fail to execut.e it within ninety (90) days of
20 the passage of this resolution.
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5-18-95
RESO: 'AUTHORIZING EXECUTION OF AGREEMENT WITH HIGHLANQ & BOULDER
PARTNERS RELATIVE TO UNDERGROUNDING UTILITIES.
1 I HEREBY CERTIFY that the foregoing resolution was duly
2 adopted by the Mayor and Common Council of the City of San
3 Bernardino at a
4
5th day of
June
5 Council Members:
6 NEGRETE
7 CURLIN
8 HERNANDEZ
9 OBERHELMAN
10 DEVLIN
11 POPE-LUDLAM
12 MILLER
13
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15
16
17
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19
20
~r~lerk
The foregoing resolution is hereby approved this 111___
day of June
, 1995.
--;;;;;;';;>J1~t~
. Tom Minor, Mayor
Ci ty of San Bernardino
Approved as to form
and legal content:
21 James F. Penman
City Attorney
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AGREEMENT
THIS AGREEMENT made and entered into this ~ I ~I-- day of
~~, '1995, by and between Highland & Boulder
Partners, a California limited partnership, hereinafter referred to
as "Owner," and the City of San Bernardino, hereinafter referred to
as "City".
WHEREAS, the Shopping Center Owner has agreed to construct
piedmont Dri ve, between Highland Avenue and existing piedmont
Drive, including landscaping the easterly 25 feet of a former
Flood Control Easement Area on the west side of piedmont Drive,
between Highland Avenue and existing piedmont Drive ("Piedmont
Drive
Cut
Slope") ,
undergrounding
the
overhead
Southern
California Edison Company ("SCE"), General Telephone and Electric
("GTE") and Comcast facilities along Piedmont Drive ("Piedmont
Dri ve Overhead Facilities") and installing a traffic signal at
the intersection of piedmont Drive and Highland Avenue ("Piedmont
Drive Improvements"); and
WHEREAS, the Shopping Center Owner has agreed to assume
responsibility for maintenance of the landscaping on the piedmont
Drive Cut Slope; and
WHEREAS, the City and the Shopping Center Owner have had
differences regarding responsibility for undergrounding the SCE,
GTE and Comcast facilities along the north side of Highland
Avenue between piedmont Drive and Highway 30 ("Highland Avenue
Overhead Facilities"); and
WHEREAS, the City and the Shopping Center Owner have agreed
to equally divide a portion of the cost of undergrounding the
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Highland Avenue Overhead Facilities, on the terms and conditions
set forth herein.
NOW, THEREFORE, BE IT AGREED AS FOLLOWS:
1. THE CITY SHALL -
a. Make a diligent effort to, not later than
October 1, 1995, have the conduit and appurtenant
structures for SCE, GTE and Comcast utility
facilities installed, in accordance with plans and
specifications prepared by the applicable utility
companies for the Highland Avenue Overhead
Facilities, at the lowest possible cost, which is
presently estimated to be $77,881.90. If
requested by the Shopping Center Owner and
provided that the Shopping Center Owner's
performance can be adequately secured, the City
shall cooperate, to the extent permitted by
applicable law, in providing for the installation
of the above-mentioned conduit and appurtenant
structures by the Shopping Center Owner, as a
private project, but at the City's cost.
Within 30 days after (i) approval of this
Agreement by the City Council of the City and (ii)
execution of this Agreement by the Mayor of the
City, enter into a contract with SCE for cabling
the underground system for the Highland Avenue
Overhead Facilities and the piedmont Drive
Overhead Facilities, at the lowest possible cost,
which is presently estimated to be $131,810.90.
IO:\Gt86\OO8\MOU5.SB
b.
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c. Pay to SCE, GTE and Comcast the entire cost of
undergrounding
the
Highland
Avenue
Overhead
Facilities.
d.
subject
to
compliance
with
applicable
City
requirements, issue certificates of occupancy as
requested from time to time, by owners and/or
developers of improvements within the Highland
square Shopping Center, located on the north side
of Hi<:rhland Avenue, between Piedmont Drive and
Highway 30, notwithstanding that the Highland
Overhead
Facilities
or
the
piedmont
Drive
Improvements have not been completed.
2. THE SHOPPING CENTER OWNER SHALL -
a. At the earliest possible time, but not later than
April 30, 1995, cause construction of the piedmont
Drive Improvements to be completed.
The parties
acknowledge that the Shopping Center Owner shall
not be in default of this provision if it is
prevented
from performing
due
to
inclement
weather.
b. Assume responsibility as the Shopping Center Owner
for maintenance of the landscaping on the Piedmont
Drive Cut Slope.
c. The parties acknowledge that, as of the date of
this Agreement,
the conduit and appurtenant
structures for SCE, GTE and Comcast utility
facilities have been installed within the portion
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of piedmont Drive to be improved with the Piedmont
Drive Overhead Facilities.
d. Reimburse the City for the proportionate share of
SCE's cabling costs that relate to the piedmont
Drive Overhead Facilities, which reimbursement is
presently estimated to be $50,044.94.
Such
reimbursement shall be made 30 days from the
completion of work and invoice by the City.
e. Reimburse the City for one-half (1/2) of the
City's cost for installation of conduit and
appurtenant structures for the Highland Avenue
Overhead Facilities, which is presently estimated
to be $77,881.90, and for one-half (1/2) of SCE's
cabling cost for the Highland Avenue Overhead
Facilities, which is presently estimated to be
$81,765.96, in two (2) equal payments. The first
payment shall be in the amount of one-quarter
(1/4) of City's total costs for installation of
conduit and appurtenant structures,
and one-
quarter (1/4) of SCE's costs for cabling, and
shall be paid to the City no later than a date
which is six (6) months after the date of
completion of
such
conduit
and
appurtenant
structures,
for the Highland Avenue Overhead
Facilities
("Completion Date").
The second
payment shall be in the same amount as the first
payment, plus interest of 3% per annum on such
amount from and after the date of the first
4
AGREEMENT: UNDERGROUNDING UTILITIES AT WAL-MART
payment (as set forth above), and shall be paid to
the City no later than a date which is 12 months
after the Completion Date.
f. Provide either (i) a guaranty in the form attached as
Exhibit "A" and incorporated herein by reference, or
(ii) a bond and/or other collateral acceptable to the
City
in
its
reasonable
discretion,
to
secure
reimbursement by Owners to City of the amounts set
forth in the preceding sections "d" and "e".
Owner
shall have the right, in its sole discretion, to select
which of the alternative security devices identified in
clauses (i) and (ii) it wishes to provide.
Highland & Boulder Partners, a
California limited partnership
By: Highland Plaza, Inc., ire
general partner
DATED:
7~ J/- '15
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Crty of San Bernardino
~ 0- 3/-?
Vic Pres~dent
DATED:
/0 .T~) /99S-
Approved as to form
and legal content:
James F. Penman
City Attorney
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GUARANTY
The City of San Bernardino ("city") and Highland & Boulder
Partners ("Owners") have entered into that certain agreement which
provides in part that Highland & Boulder Partners shall reimburse
the city for a portion of the cost of undergrounding the Highland
Overhead Facilities (Agreement). This Agreement also provides that
Owners shall provide a guarantee to the city.
Recitals
A. Peter N. Doerken (Guarantor) is a principal of
the Owner and will significantly benefit by the execution by the
City of the Agreement.
B. The execution by the Guarantor of this Guaranty is a
condition but for which the City would not execute the Agreement.
In consideration of the execution of the Agreement, and of
other valuable consideration, receipt of which is acknowledged:
1. Guarantor guarantees to the City the. full and timely
payment of the reimbursement amounts as set forth in sections 2d
and 2e of the Agreement.
2. This Guaranty is unconditional and may be enforced
directly against the undersigned. No extensions, modifications or
changes to the Agreement shall release the undersigned or affect
this Guaranty in any way, and the undersigned waives notification
thereof.
3. The undersigned hereby waives all of the suretyship
provisions of the California civil Code sections 2788 through 2855.
4. Guarantor hereby waives and agrees not to assert or take
advantage of (a) any right to require the City to proceed against
the Owner, any other guarantor or surety or to pursue any other
remedy in the city's power before proceeding against the Guarantor,
(b) demand, protest, and notice which the city may be required to
provide to Owner under the Agreement.
5. Guarantor shall have no right of subrogation and waives
any right to enforce any remedy the city now has or may hereafter
have against the Owner, and any benefit of, and any right to
participate in any security now or hereafter held by city.
6. The obligations of Guarantor hereunder are independent of
the obligations of Owner or any other guarantor or surety and, in
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II.,
the event of default hereunder, a separate action or actions may be
brought and prosecuted against Guarantor (or any other guarantor)
whether or not OWner or any other guarantor or surety is joined
therein or a separate action or actions are brought against OWner
or any other guarantor or surety.
7. In the event of any litigation between City and Guarantor
arising out of this Guaranty, the prevailing party shall be
entitled to recover its reasonable costs and attorney's fees.
8. No provisions of this Guaranty can be waived nor can
Guarantor be released from the obligations hereunder except by a
writing duly executed by the City.
9. Guarantor agrees to pay all reasonable attorney's fees
and all other costs and expenses which may be incurred by City in
enforcing or attempting to enforce this Guaranty, whether the same
shall be enforced by suit or otherwise.
10. Guarantor hereby waives notice of any demand by the city,
as well as notice of any default by the Owner.
11. The city may assign this Guaranty. When so assigned,
Guarantor shall be bound as above to the assignees without in any
manner affecting Guarantor's liability hereunder.
12. This Guaranty shall remain in effect notwithstanding any
bankruptcy, reorganization or insolvency of the Owner or any
successor or assignee thereof or any disaffirmance by a trustee of
the Owner.
13. This Guaranty shall inure to the benefit of and bind the
successors and assigns of city and Guarantor.
14. Guarantor agrees that jurisdiction and venue with respect
to any matter pertaining to the Guaranty or acts or omissions
hereunder shall lie exclusively with the Superior Court of the
County of San Bernardino, State of California, in an appropriate
Municipal court of that county, or in the Federal District Court in
the Central District of California. Guarantor irrevocably waives
any and all defenses based revenue or forum non convenience.
15. The laws of the state of California shall govern the
interpretation and enforcement of this Guaranty.
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this
In witness whereof, the undersigned has executed this Guaranty
3/ T day of J t/ L Y
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PE'IER II). OOERKEN