HomeMy WebLinkAbout1993-179
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RESOLUTION NO. 93-179
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A NEW AGREEMENT AND RELEASE OF THE EXISTING
3 AGREEMENT RELATING TO THE IMPROVEMENTS TO BE INSTALLED IN TRACT
NO. 10352-2, LOCATED ON THE NORTH SIDE OF NORTHPARK BOULEVARD,
4 EAST OF THE TERMINUS OF LITTLE MOUNTAIN DRIVE.
5 BE IT RESOJ"VED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1 :
The Mayor and Common Council find that
proposed Subdivision Tract No. 10352-2, located on the north side
of Northpark Boulevard, east of the terminus of Little Mountain
Drive,
with
provisions
together
the
for
its
design
and
improvements, is consistent with the General Plan of the City of
San Bernardino.
SECTION 2.
The Mayor of the City of San Bernardino is
authorized on behalf of said City to execute the standard form of
Resolution
No.
84-8 with OSBORNE
adopted by
agreement
DEVELOPMENT CORPORATION, for the improvements in said subdivision
tract as are required by Title 19 of the San Bernardino Municipal
Code and the California Subdivision Map Act, and release of
existing agreement with Griffith Homes.
Section 12 (b) (1) of
said Agreement
is hereby amended to require public liability
insurance in an amount of not less than $250,000 per person and
$500,000 per occurrence.
The time for performance is specified
at 24 months.
Said improvements are specifically described and
shown on Drawings approved and on file in the Office of the City
Engineer of the City of San Bernardino.
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5-13-93
RES 93-17 REqO: AUTHORIZING NEW AGREEMENT FOR SUBDIVISION TRACT NO. 10352-
2 (NORTHPARK BOULEVARD, EAST OF LITTLE MOUNTAIN DRIVE)
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SECTION 3. The Subdivider shall first execute the
2 agreement referenced in Section 2 hereof for the improvements
3 within said subdivision.
The City Clerk shall certify the
4 approval and acceptance of the Mayor and Common Council as set
5 forth in this resolution.
6 SECTION 4. This resolution is rescinded if the parties
7 to the agreement fail to execute it within sixty (60) days of the
8 passage of this resolution.
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RES 93-179
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RESO: AUTHORIZING NEW AGREEMENT FOR SUBDIVISION TRACT NO. 10352-
2 (NORTHPARK BOULEVARD, EAST OF LITTLE M'oUNTAIN DRIVE)
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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
regular
, 1993, by the following vote, to-wit:
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7th day of
June
5 Council Members:
6 NEGRETE
7 CURLIN
8 HERNANDEZ
9 OBERHELMAN
10 (VACANT)
11 POPE-LUDLAM
12 MILLER
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meeting thereof, held on the
AYES
NAYS
ABSTAIN
ABSENT
_1L-
x
_L-_
x
x
x
(~ . Ill) /
,~/&_. \..A:4<--/'r,-,
Rach Clark, City Clerk
hereby approved this \ h-t\'\
The foregoing resolution is
day of
;June
Approved as to form
and legal content:
James F. Penman
City Attorney
By Un/VI~ r. f~_
o
, 1993.
2~~
Tom Minor, Mayor
Ci ty of San Bernardino
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c:sz...~"':;>, \'\,\
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AGREEMENT '.
(Subdivision Improvements)
4 day
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'l'HIS AGREBMEN'l'
of ~""~~
is made and entered into as of this j~l1\
, 19';~ , by and between the CITY OF SAN
BERNARDINO, a Municipal Corporation, hereinafter referred to as
6 "City", and Northpark San Bernardino, Ltd.
7 referred to as "Subdivider".
8 RECITALS
9 A. WHEREAS, Subdivider has presented to City for
10 approval a final subdivision map (hereinafter called "map")
, hereinafter
11 entitled
TRAcr 110352-2, rms 11 through 45
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; and,
B.
WHEREAS, the map has been filed with the City for
15 presentation to the City Council (hereinafter called "Council")
16 of the City for its approval, which map is hereby referred to and
17 incorporated herein: and,
18 c. WHEREAS, Subdivider has requested approval of the map
19 prior to the construction and completion of improvements,
20 including all streets, highways or publiC ways and publiC utility
21 facilities which are a part of, or appurtenant to, the
22 subdivision (hereinafter called "subdivision") designated in the
23 map, all in accordance with, and as required by, the Plans and
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SpeCifications for all
or
any of said improvements
in,
25 appurtenant to, or outside the limits of subdivision, which Plans
26 and Specifications are now on file in the Office of the City
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Engineer of the City: and,
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September 20, 1990
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RES 93-179
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D.
WHEREAS, Council has approved said map and accepted
3 the dedications therein offered, or some thereof, on condition
4 that Subdivider first enter into and execute this Agreement with
5 the City; and,
6 E. WHEREAS, This Agreement is executed pursuant to the
7 provisions of the Subdivision Map Act of the State of California
8 and Title 18 San Bernardino Municipal Code.
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NOW THEREFORE, for and in consideration of the approval of
10 the map and of the acceptance of the dedications, or some
11 thereof, therein offered and in order to insure satisfactory
12 performance by Subdivider of Subdivider's obligations under said
13 Subdivision Map Act and said Ordinance, the parties agree as
14 follows:
1.
Performance of Work.
Subdivider will do and perform,
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16 or cause to be done and performed, at Subdivider's own expense,
17 in a good and workmanlike manner, and furnish all required
18 materials, all to the satisfaction of the City Engineer of City,
19 the work and improvements ~ithin (and/or without) the subdivision
20 to complete the improvements in accordance with the Plans and
21 Specifications on file as hereinbefore specified, or with any
22 changes required or ordered by said Engineer which, in his
23 opinion, are necessary or required to complete the work.
24 2. Work: Places and Grades to be F:lzed by Engineer. All
25 of said work is to be done at the places, of the materials, in
26 the manner, and at the grades, all as shown upon the Plans and
27 Specifications therefor, heretofore approved by City Engineer and
28 which are now on file in his office, and to the satisfaction of
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RES 93-179
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2 said City Engineer.
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3.
Work:
'rime for Commencement and Perfonnance. City
4 hereby fixes the time for the completion of said work to be
5 wi thin
6 4.
24 Months
from the date hereof.
'rime of Essence - Extension. Time is of the essence of
7 this Agreement; provided that, in the event good cause is shown
8 therefor, the City Engineer may extend the time for completion of
9 the improvements hereunder.
Any such extension may be granted
10 without notice to the Subdivider's surety, and extensions so
11 granted shall not relieve the surety's liability on the bond to
12 secure the faithful performance of this Agreement.
The City
13 Engineer shall be the sole and final judge as to whether or not
14 good cause has been shown to entitle Subdivider to an extension.
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5. Repairs and Replacements. Subdivider shall replace, or
16 have replaced, or repair, or have repaired, as the case may be,
17 all pipes and monuments shown on the map which have been
18 destroyed or damaged, and Subdivider shall replace, or have
19 replaced, repair, or have repaired, as the case may be, or pay to
20 the owner the entire cost of replacement or repairs, of any and
21 all property damaged or destroyed by reason of any work done
22 hereunder, whether such property be owned by the United States,
23 or any agency thereof, or the State of California, or any agency
24 or political subdivision thereof, or by the City, or by any
25 public or private corporation, or by any person whomsoever, or by
26 any combination of such owners. Any such repair or replacement
27 shall be to the satisfaction, and subject to the approval, of the
28 City Engineer.
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RES 93-179
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6.
Utility Deposits - Statement.
Subdivider shall file
3 with the City Clerk, prior to the commencement of any work to be
4 performed within the area delineated on the map, a written
5 statement signed by Subdivider, and each public utility
6 corporation involved, to the effect that Subdivider has made all
7 deposits legally required by such public utility corporation for
8 the conn~ction of any and all public utilities to be supplied by
9 such public utility corporation within the Subdivision.
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7.
Permits:
Compliance with Law.
Subdivider shall, at
11 Subdivider's expense, obtain all necessary permits and licenses
12 for the construction of such improvements, give all necessary
13 notices and pay all fees and taxes required by law.
Subdivider
14 shall comply with all provisions of the Subdivision Map Act and
15 Title 18 San Bernardino Municipal Code.
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8.
Subdivider shall give
Superintendence by Subdivider.
17 personal superintendence to the work on said improvement, or have
18 a competent foreman or superintendent, satisfactory to the City
19 Engineer on the work at all times during progress, with authority
20 to act for Subdivider.
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9.
Subdivider shall at all times
Inspection by City.
22 maintain proper facilities and provide safe access for inspection
23 by City to all parts of the work and to the shops wherein the
24 work is in preparation.
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10.
Concurrently with the execution
Contract Security.
26 hereof, Subdivider shall furnish to City improvement security as
27 follows:
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(a) An amount equal to at least one hundred percent (100%)
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of the total estimated cost of the improvement and
acts to be performed as security for the faithful
performance of this Agreement;
(b) An amount equal to at least fifty percent (50%) of the
total estimated cost of the improvements and acts to
be performed as security for the payment of all
persons performing labor and furnishing materials in
connection with this Agreement; and,
(c) An amount equal to at least twenty-five percent (25%)
of the total estimated cost of the improvements and
acts to be performed as security for the guarantee and
warranty of the work for a period of one (1) year
fOllowing the completion and acceptance thereof
against any defective work or labor done, or defective
materials furnished.
As a part of the obligation guaranteed by the
security and in addition to the face amount of the
security, there shall be included costs and reasonable
expenses and fees, including reasonable attorney's
fees, incurred by City in successfully enforcing the
obligation secured.
The type of security furnished
shall be in the form of bonds, deposits or letters of
credit as provided in Title 18 San Bernardino
Municipal Code, and the type shall be at the option of
and subject to the approval of the City Engineer and
the City Attorney.
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11. Subdivider's Insurance. Subdivider shall not commence
work under this Agreement until Subdivider 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 Subdivider allow any contractor or
subcontractor to commence work on his contract or subcontract
until all similar insurance required of the contractor or
9 subcontractor shall have been so obtained and approved. All
10 requirements herein provided shall appear either in the body of
11 the insurance pOlicies or as endorsements and shall specifically
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bind the insurance carrier.
(a)
Workers Compensation Insurance!Emp1oyer's Liability
Insurance. Subdivider shall maintain, during the life
of this Agreement, Worker's Compensation Insurance and
Employer's Liability Insurance for all Subdivider's
employees employed at the site of improvement, and, in
case any work is sublet, Subdivider shall require any
contractor or subcontractor similarly to provide
Worker's 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 Subdivider. In
case any class of employees engaged in work under this
Agreement at the site of the project is not protected
under any Worker's Compensation Law, Subdivider shall
provide, and shall cause each contractor and
subcontractor to provide, adequate insurance for the
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pro.tection of employees not otherwise protected.
Subdivider shall indemnify City for any damage
resulting to it from failure of either Subdivider or
any contractor or subcontractor to take out or
maintain such insurance.
7 (b) Public Liability and Property Damage Insurance.
8 Subdivider 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, Subdivider 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 Subdivider's or any contractor's
or subcontractor's operations hereunder, whether such
operations be by Subdivider or any contractor or
subcontractor, or by anyone, including, without
limitation, agents, employees or independent
contractors, directly or indirectly employed by either
Subdivider or any contractor or suboontractor, and the
amounts of such insurance shall be as follows:
(1) Public Liability 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
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for each person, in an' amount not less than One
Million Dollars ($1,000,000.00) on account of any
one occurrence; Product Liability Insurance
coverage should be part of the Public Liability
Insurance;
(2) Property Damage 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 11 insures any
entity, person, board or commission other than those
mentioned in this paragraph, such policy shall contain
a standard form of cross-liability endorsement,
insuring on such policy City, its elective and
appointive boards, commissions, officers, agents and
employees, Subdivider and any contractor or
subcontractor performing work covered by this
Agreement.
(3) Tai1 Coverage.
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
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subcontractors must and shall comply with the
same insurance provisions as the contractor(s)
and subdivider(s).
(4) Personal Injury - 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 andlor bones, or the like,
disabilities or impairments, including
aggravation of existing injuries, on invasion of
personal rights, including libel or slander
criminal conversation, malicious prosecution,
false imprisonment and mental suffering.
12.
Evidence of Insurance.
Subdivider and contractor
16 shall furnish City, concurrently with the execution hereof,with
17 satisfactory evidence of the insurance required, and evidence
18 that City is named and endorsed on the policy as an additional
19 insured. Subdivider and contractor shall also provide City with
20 evidence that each carrier will be required to give City at least
21 ten (10) days prior written notice of the cancellation or
22 reduction in coverage of any pOlicy during the effective period
23 of this Agreement.
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13.
Hold Harmless/Indemnification.
Subdivider(s)/
25 Deve10per(s) hereby agree to and shall protect, defend, indemnify
26 and hold the City and its elective and appointive boards,
27 commissions, officers, agents, employees and servants free and
28 harmless from any and all liability losses, damages, claims,
BAS/mg1[Subdivimp.Agr] 9
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RES 93-179
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2 liens, demands and cause of action of' every kind and character
3 including, but not limited to, the amounts of judgments,
4 penalties, interests, court costs, attorney's/legal fees, and all
5 other expenses incurred by the City arising in favor on any
6 party, including claims, liens, debts, demands for lost wages or
7 compensation, personal injuries, including employees of the City,
8 death or damages to property (including property of the City) and
9 without limitation by enumeration, all other claims or demands of
10 every character occurring or in any way incident to, in
11 connection with or arising directly or indirectly, (including
12 from the negligent performance by its officers, employees,
13 agents) from the terms of this Agreement, whether such
14 operationslincidents are caused by contractor, Subdivider or any
15 of contractorlSubdivider's subcontractors, contractors or by any
16 one or more persons directly or indirectly employed by or acting
17 as agent for contractor, Subdivider, or anyone of contractor or
18 Subdivider's contractors or subcontractors. SUbdivider/Developer
19 shall investigate, handle, respond to, provide defense for and
20 defend any such claims, demand, or suit at the sole expense of
21 the Subdivider/Developer even if the claim or claims alleged are
22 groundless, false or fraudulent.
Subdivider agrees to, and
23 shall, defend City, its appointive boards, commissions, officers,
24 agents and employees from any suits or actions at law or in
25 equity for damages caused, or alleged to have been caused, by
26 reason of any of the aforesaid operations, provided as follows:
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(a) That City does not, and shall not, waive any rights
against Subdivider which it may have by reason of the
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aforesaid hold harmless agreement, because of the
acceptance by City, or the deposit with City by
Subdivider, or any of the insurance pOlicies described
in Paragraph 11 hereof.
(b) That the aforesaid hold harmless agreement by
Subdivider shall apply to all damages and claims for
damages of every kind suffered, or alleged to have
been suffered, by reason of any of the aforesaid
operations referred to in this paragraph, regardless
of whether or not City has prepared, supplied or
approved of Plans and/or Specifications for the
subdivision, or regardless of whether or not such
insurance policies shall have been determined to be
applicable to any of such damages or claims for
damages.
17 This provision is not intended to create any cause of action in
18 favor of any third party against Subdivider/Developer or the City
19 or to enlarge in any way the Subdivider's/Developer's liability
20 but is intended solely to provide for indemnification of the City
21 from liability for damage or injuries to third persons or
22 property arising from SubdividerlDeveloper's performance
23 hereunder.
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14.
'1'itle 1:0 Improvements. Title to, and ownership of,
25 all improvements constructed hereunder by Subdivider shall vest
26 absolutely in City, upon completion and acceptance of such
27 improvements by City.
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15.
Repair or Reconstruction of Defective Work.
If,
within a period of one year after final acceptance of the work
performed under this Agreement, any structure or part of any
structure furnished andlor installed or constructed, or caused to
be installed or constructed by Subdivider, or any of the work
done under this Agreement, fails to fulfill any of the
requirements of this Agreement or the Specifications referred to
herein, Subdivider shall, without delay and without any cost to
City, repair or replace or reconstruct any defective or otherwise
unsatisfactory part or parts of the work or structure.
Should
Subdivider fail to act promptly or in accordance with this
requirement, or should the exigencies of the situation as
determined by the Ci ty in the exercise of its sole discretion
require repair, replacement or reconstruction before the
16 Subdivider can be notified, City may, at its option, make the
17 necessary repairs or replacements or perform the necessary work,
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and Subdivider shall pay to the City the actual cost of such
repairs plus fifteen percent (15%).
16.
Subdivider Not Agent of City.
Neither Subdivider nor
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any of Subdivider's agents or contractors are, or shall be,
22 considered to be agents of City in connection with the
23 performance of Subdivider's obligations under this Agreement.
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17. Cost of Engineering and Inspection. Subdivider shall
pay to City the costs of all permit fees for all engineering
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inspections and other services connected with the City in regard
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to the subdivision.
Said fees shall be paid prior to commencing
any construction.
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18. Notice of Breach and Defauit. If Subdivider refuses
3 or fails to obtain prosecution of the work, or any severable part
4 thereof, with such diligence as will insure its completion within
5 the time specified, or any extensions thereof, or fails to obtain
6 completion of said work within such time, or if the Subdivider
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should be adjudged a bankrupt, or Subdivider should make a
general assignment for the benefit of Subdivider's creditors, or
if a receiver should be appointed in the event of Subdivider's
insolvency, or if Subdivider, or any of Subdivider's contractors,
subcontractors, agents or employees, should violate any of the
provisions of this Agreement, City Engineer or City Council may
serve written notice upon Subdivider and Subdivider's surety of
breach of this Agreement, or of any portion thereof, and default
of Subdivider.
19. Breach of Agreement: Performance by Surety or City.
In the event of any such notice, Subdivider's surety shall have
the duty to take over and complete the work and the improvement
herein specified: provided, however, that if the surety, within
five days after the serving upon of such notice of breach, does
not give City written notice of its intention to take over the
performance of the contract, and does not commence performance
thereof within five days after notice to City of such election,
City may take over the work and prosecute the same to completion,
by contract or by any other method City may deem advisable, for
the account and at the expense of Subdivider, and Subdivider's
surety shall be liable to City for any excess cost or damages
28 occasioned City thereby: and, in such event, City, without
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2 liability for so doing, may take possession of, and utilize in
3 completing the work, such materials, appliances, plant and other
4 property belonging to Subdivider as may be on the site of the
5 work and necessary therefor.
6 20. Notices. All notices herein required shall be in
7 writing, and del i vered in person or sent by registered mail,
8 postage p~epaid.
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(a) Notices required to be given to City shall be
addressed as follows:
City Administrator
Ci ty Hall
300 North "0" Street
San Bernardino, California
92418
(b) Notices required to be given to Subdivider shall be
addressed as follows:
OSBCRNE DEVELOI'MENl' exIU'CRATIOO
22892 Mill Creek Drive, Laguna Hills, CA 92653
(c) Notices required to be given to surety of Subdivider
shall be addressed as follows:
INSCO DICO GROUP
17780 Fitch, Ste. 200, Irvine, CA 92714
22 Provided that any party or the surety may change such address by
23 notice in writing to the other party, and, thereafter, notices
24 shall be addressed and transmitted to the new address.
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21.
Successors Bound.
This Agreement shall be binding
26 upon and inure to the benefit of each of the parties and their
27 respective legal representatives, successors, heirs and assigns.
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ATTEST:
~/J , ()/ i
. 1v-C.J,..dj ~A---r^:.
6 Ci ty C rk
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B~VL/!t~
.lC r
TOM MINOR .. , Mayor
City of San Bernardino
Approved as to form
and legal content:
8
JAMES F. PENMAN,
9 Ci ty Attorney,
SUBDIVIDER:
I!CRTHPARK SAN BERNARDIOO, LTD.
m'~. D """""""no
> By: P~
B~. ,P~~.r
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By:
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INSTRUCTIONS
If the Subdivider is a corporation, the Agreement must be
15 executed in the corporate name and signed-by the President or a
16 Vice-President and the Secretary or Assistant Secretary, and the
17 corporate seal affixed.. If the Subdivider is a partnership, it
18 must be signed by all partners.
19
If the Subdivider is
an
individual doing business under a fictitious name, it must be
20 signed by all persons having an interest in the business, and the
21 fictitious name must be signed also.
22 notarized.
The Agreement must be
23
24 STATE OF CALIFORNIA
)
)
)
ss.
25 COUNTY OF OOANGE
On this 20th day of April , 19 93 , before
26 ~e, the undersigned, a Notary Public in and for said County and
27 ~tate, personally appeared RObert E. Osborne
28 J>ersonally known to me (or proved to me on the basis of
satisfactory evidence to be the President, ~
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RES 93-179
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personally known to me (or proved to me on the basis of
satisfactory evidence) to be the
of the corporation that executed
the within instrument, and known
to me to be the persons who
executed the within instrument
on behalf of the corporation
therein named, and acknowledged
to me that such corporation
executed the same, pursuant to
its by-laws, or a resolution of
its Board of Directors.
WITNESS my hand and official seal.
,: /~;lf:.:~<;1n(;:.=.
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.. OFFICIAL SEAL
" ~ ',Louisa Anderson
,"'IT) :. NOTARV PUBLIC CALIFORNIA
" ORANGE COUNTY
\ My Comrn. Elplres Sepl 26. Hl94
(This area for official seal.)
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BAS/mgl[Subdivimp.Agr] 16
September 20, 1990