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HomeMy WebLinkAbout1990-427 1 2 3 4 II " RESOLUTION NO. <?/)- t/ PI.. 7 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING A NEW STANDARD FORM OF AGREEMENT FOR SUBDIVISION IMPROVEMENTS AND REPEALING RESOLUTION NO. 84-8. WHEREAS, on January 10, 1984, the Mayor and Common Council 5 adopted Resolution No. 84-8 approving a standard form of 6 agreement for subdivision improvements, and 7 WHEREAS, such subdivision improvement agreements are 8 agreements where subdividers or developers contract with the City 9 to complete various on-site and off-site improvements within the 10 subdivision, and 11 WHEREAS, through use of the agreement for subdivision 12 improvements, developers provide adequate assurance to the City 13 that the improvements will eventually be completed in a form 14 satisfactory to the City, and 15 WHEREAS, because of the City's increased exposure to 16 public liability and necessity to protect itself against third 17 party claims, it is necessary to amend the standard form 18 Subdivision Improvement Agreement, 19 20 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 21 SECTION 1. Implementation. The new standard form 22 agreement for subdivision improvements, a copy of which is 23 annexed hereto and incorporated herein as Exhibit A, is hereby 24 approved. Future resolutions of the Mayor and Common Council may 25 authorize the Mayor to execute such standard form of agreement on 26 behalf of the City of San Bernardino in its standard form with 27 / / / 28 BAS/ml/res.848 October 11, 1990 1 1 2 3 4 5 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING A NEW STANDARD FORM OF AGREEMENT FOR SUBDIVISION IMPROVEMENTS AND REPEALING RESOLUTION NO. 84-8. such modifications as are specifically mentioned in the resolution without the necessity of the agreement being attached. SECTION 2. Resolution No. 84-8 and the Prior Standard Form 6 Subdivision Improvement Agreement are hereby repealed. 7 I I I 8 III 9 III 10 I I I 11 III 12 I I I 13 I I I 14 I I I 15 I I I 16 I I I 17 I I I 18 I I I 19 I I I 20 I I I 21 I I I 22 II I 23 I I I 24 I I I 25 I I I 26 I I I 27 I I I 28 BAS/ml/res.848 October 11, 1990 2 1 2 3 4 5 6 7 8 9 10 11 12 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING A STANDARD FORM OF AGREEMENT FOR SUBDIVISION IMPROVEMENTS AND REPEALING RESOLUTION NO 84-8. I HEREBY CERTIFY that the foregoing was duly adopted by the Mayor and Common Council of the City of San Bernardino at a _~_meeting of ~~, 19 9~ J5~ day thereof held on the , by the following vote, to wit: Council Members: AYES NAYES ABSTAIN ESTRADA v V REILLY FLORES 1/ MAUDSLEY v V' MINOR 13 POPE-LUDLAM 14 15 16 17 18 19 20 21 22 MILLER v ~~ffY City Cl k The foregoing reyo}ution is hereby approve~is / roc day of tPt:~tUl , 19 7'6. ' ./ / 23 Approved as to form and legal content: 24 25 26 27 28 JAMES F. PENMAN, Ci ty 1\)ttorney ') By: r~""'~? J~'--, /> U BAS/ml/res.848 October 11, 1990 3 _,,/U:'--! / ,~':) ~.'/' .-,--, '" 1 2 3 ,-'''t-';-'/',,-', '< i/ . -"if ,., -"J/"[N/,","" .;/' l! / AGREEMENT (Subdivision Improvements) THIS AGREEMENT is made and entered into as of this 4 5 6 day of , 19 , by and between the CITY OF SAN BERNARDINO, a Municipal Corporation, hereinafter referred to as "City", and , hereinafter 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") 11 enti tled 12 13 14 ; 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 24 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 27 Engineer of the City; and, 28 BAS/mgl[Subdivimp.Agr] 1 September 20, 1990 1 2 3 D. WHEREAS, Council has approved said map and accepted the dedications therein offered, or some thereof, on condition that Subdivider first enter into and execute this Agreement with 4 5 the City; and, E. WHEREAS, This Agreement is executed pursuant to the 6 provisions of the Subdivision Map Act of the State of California 7 and Title 18 San Bernardino Municipal Code. 8 NOW THEREFORE, for and in consideration of the approval of 9 the map and of the acceptance of the dedications, or some 10 thereof, therein offered and in order to insure satisfactory 11 performance by Subdivider of Subdivider's obligations under said 12 Subdivision Map Act and said Ordinance, the parties agree as 13 follows: 14 1. Performance of Work. Subdivider will do and perform, 15 or cause to be done and performed, at Subdivider's own expense, 16 in a good and workmanlike manner, and furnish all required 17 materials, all to the satisfaction of the City Engineer of City, 18 the work and improvements within (and/or without) the subdivision 19 to complete the improvements in accordance with the Plans and 20 Specifications on file as hereinbefore specified, or with any 21 changes required or ordered by said Engineer which, in his 22 opinion, are necessary or required to complete the work. 23 24 of said work is to be done at the places, of the materials, in 2. Work: Places and Grades to be Fixed by Engineer. All 25 the manner, and at the grades, all as shown upon the Plans and 26 Specifications therefor, heretofore approved by City Engineer and 27 which are now on file in his office, and to the satisfaction of 28 BAS/mgl[Subdivimp.Agr] 2 September 20, 1990 1 said City Engineer. 2 3. Work: Time for Commencement and Performance. City 3 hereby fixes the time for the completion of said work to be 4 within from the date hereof. 5 4. Time of Essence - Extension. Time is of the essence of 6 this Agreement; provided that, in the event good cause is shown 7 therefor, the City Engineer may extend the time for completion of 8 the improvements hereunder. Any such extension may be granted 9 without notice to the Subdivider's surety, and extensions so 10 granted shall not relieve the surety's liability on the bond to 11 secure the faithful performance of this Agreement. The City 12 Engineer shall be the sole and final judge as to whether or not 13 good cause has been shown to entitle Subdivider to an extension. 14 15 have replaced, or repair, or have repaired, as the case may be, 5. Repairs and Replacements. Subdivider shall replace, or 16 all pipes and monuments shown on the map which have been 17 destroyed or damaged, and Subdivider shall replace, or have 18 replaced, repair, or have repaired, as the case may be, or pay to 19 the owner the entire cost of replacement or repairs, of any and 20 all property damaged or destroyed by reason of any work done 21 hereunder, whether such property be owned by the United States, 22 or any agency thereof, or the State of California, or any agency 23 or political subdivision thereof, or by the City, or by any 24 public or private corporation, or by any person whomsoever, or by 25 any combination of such owners. Any such repair or replacement 26 shall be to the satisfaction, and subject to the approval, of the 27 City Engineer. 28 BASjmgl[Subdivimp.Agr] 3 September 20, 1990 1 2 3 6. uti1ity Deposits - statement. Subdivider shall file with the City Clerk, prior to the commencement of any work to be performed within the area delineated on the map, a written 4 5 6 statement signed by Subdivider, and each public utility corporation involved, to the effect that Subdivider has made all deposits legally required by such public utility corporation for 7 8 9 the connection of any and all public utilities to be supplied by such public utility corporation within the Subdivision. 7. Permits: Compliance with Law. Subdivider shall, at 10 Subdivider's expense, obtain all necessary permits and licenses 11 for the construction of such improvements, give all necessary 12 13 14 15 notices and pay all fees and taxes required by law. Subdivider shall comply with all provisions of the Subdivision Map Act and Title 18 San Bernardino Municipal Code. 8. Superintendence by Subdivider. Subdivider shall give 16 personal superintendence to the work on said improvement, or have 17 a competent foreman or superintendent, satisfactory to the City 18 Engineer on the work at all times during progress, with authority 19 to act for Subdivider. 20 9. 21 maintain proper facilities and provide safe access for inspection Inspection by City. Subdivider shall at all times 22 by City to all parts of the work and to the shops wherein the 24 23 work is in preparation. 10. 25 hereof, Subdivider shall furnish to City improvement security as Contract Security. Concurrently with the execution 26 follows: 27 28 (a) An amount equal to at least one hundred percent (100%) BAS/mgl[Subdivimp.Agr] 4 September 20, 1990 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 J 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 7 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 24 Municipal Code, and the type shall be at the option of 25 and subject to the approval of the City Engineer and 26 the City Attorney. 27 III 28 BAS/mgl[Subdivimp.Agr] 5 September 20,'1990 J 1 11. Subdivider's Insurance. Subdivider shall not commence 2 work under this Agreement until Subdivider shall have obtained 3 all insurance required under this paragraph, and such insurance 4 shall have been approved by City Attorney as to form, amount and 5 carrier, nor shall Subdivider allow any contractor or 6 subcontractor to commence work on his contract or subcontract 7 until all similar insurance required of the contractor or 8 subcontractor shall have been so obtained and approved. All 9 requirements herein provided shall appear either in the body of 10 the insurance policies or as endorsements and shall specifically 11 bind the insurance carrier. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) Workers Compensation Insurance/Employer'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 BAS/mgl[Subdivimp.Agr] 6 September 20, 1990 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 protection of employees not otherwise protected. Subdivider shall indemnify City for any damage resulting to it from failure of either Subdivider or 4 5 6 any contractor or subcontractor to take out or maintain such insurance. (b) Public Liability and Property Damage Insurance. 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 subcontractor, 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 BASjmgl[Subdivimp.Agr] 7 September .20, 1990 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 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 4 5 6 coverage should be part of the Public Liability Insurance; (2) Property Damage Insurance. In an amount not less 7 8 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) Tail 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. I f 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 BASjmgl[Subdivimp.Agr] 8 September 20, 1990 7 8 9 10 11 12 13 14 1 2 3 subcontractors must and shall comply with the same insurance provisions as the contractor(s) and subdivider(s). 4 5 6 (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 and/or 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 15 shall furnish City, concurrently with the execution hereof, with 16 satisfactory evidence of the insurance required, and evidence 17 that City is named and endorsed on the policy as an additional 18 insured. Subdivider and contractor shall also provide City with 19 evidence that each carrier will be required to give City at least 20 ten (10) days prior written notice of the cancellation or 21 reduction in coverage of any policy during the effective period 22 of this Agreement. 23 13. Hold Harmless/Indemnification. Subdivider(s)/ 24 Developer(s) hereby agree to and shall protect, defend, indemnify 25 and hold the City and its elective and appointive boards, 26 commissions, officers, agents, employees and servants free and 27 harmless from any and all liability losses, damages, claims, 28 i BAS/mgl[Subdivimp.Agr] 9 September 20, 1990 1 liens, demands and cause of action of every kind and character 2 including, but not limited to, the amounts of judgments, 3 penalties, interests, court costs, attorney's/legal fees, and all 4 other expenses incurred by the City arising in favor on any 5 party, including claims, liens, debts, demands for lost wages or 6 compensation, personal injuries, including employees of the City, 7 death or damages to property (including property of the City) and 8 without limitation by enumeration, all other claims or demands of 9 every character occurring or in any way incident to, in 10 connection with or arising directly or indirectly, (including 11 from the negligent performance by its officers, employees, 12 agents) from the terms of this Agreement, whether such 13 operations/incidents are caused by contractor, Subdivider or any 14 of contractor/Subdivider's subcontractors, contractors or by any 15 one or more persons directly or indirectly employed by or acting 16 as agent for contractor, Subdivider, or anyone of contractor or 17 Subdivider's contractors or subcontractors. Subdivider/Developer 18 shall investigate, handle, respond to, provide defense for and 19 defend any such claims, demand, or suit at the sole expense of 20 the Subdivider/Developer even if the claim or claims alleged are 21 groundless, false or fraudulent. Subdivider agrees to, and 22 shall, defend City, its appointive boards, commissions, officers, 23 agents and employees from any suits or actions at law or in 24 equity for damages caused, or alleged to have been caused, by 25 reason of any of the aforesaid operations, provided as follows: 26 27 28 (a) That City does not, and shall not, waive any rights against Subdivider which it may have by reason of the BAS/mgl[Subdivimp.Agr] 10 September 20, 1990 7 8 9 10 11 12 1 2 3 aforesaid hold harmless agreement, because of the acceptance by City, or the deposit with City by Subdivider, or any of the insurance policies described 4 5 6 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 13 insurance policies shall have been determined to be 14 applicable to any of such damages or claims for 15 damages. 16 This provision is not intended to create any cause of action in 17 favor of any third party against Subdivider/Developer or the City 18 or to enlarge in any way the Subdivider's/Developer's liability 19 but is intended solely to provide for indemnification of the City 20 from liability for damage or injuries to third persons or 21 property arising from Subdivider/Developer's performance 22 hereunder. 23 14. Title to Improvements. Title to, and ownership of, 24 all improvements constructed hereunder by Subdivider shall vest 25 absolutely in City, upon completion and acceptance of such 26 improvements by City. 27 /// 28 BAS/mgl[Subdivimp.Agr] 11 September 20, 1990 1 2 3 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 4 structure furnished and/or installed or constructed, or caused to 5 be installed or constructed by Subdivider, or any of the work 6 done under this Agreement, fails to fulfill any of the 7 requirements of this Agreement or the Specifications referred to 8 herein, Subdivider shall, without delay and without any cost to 9 City, repair or replace or reconstruct any defective or otherwise 10 unsatisfactory part or parts of the work or structure. Should 11 Subdivider fail to act promptly or in accordance with this 12 requirement, or should the exigencies of the situation as 13 determined by the City in the exercise of its sole discretion 14 require repair, replacement or reconstruction before the 15 Subdivider can be notified, City may, at its option, make the 16 necessary repairs or replacements or perform the necessary work, 17 and Subdivider shall pay to the City the actual cost of such 18 repairs plus fifteen percent (15%). 19 16. Subdivider Not Agent of City. Neither Subdivider nor 20 any of Subdivider's agents or contractors are, or shall be, 21 considered to be agents of City in connection with the 22 performance of Subdivider's obligations under this Agreement. 23 17. Cost of Engineering and Inspection. Subdivider shall 24 pay to City the costs of all permit fees for all engineering 25 inspections and other services connected with the City in regard 26 to the subdivision. Said fees shall be paid prior to commencing 27 any construction. 28 BAS/mgl[Subdivimp.Agr] 12 September 20, 1990 ." 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 18. Notice of Breach and Default. If Subdivider refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extensions thereof, or fails to obtain completion of said work within such time, or if the Subdivider 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 occasioned City thereby; and, in such event, City, without BASjmgl[Subdivimp.Agr] 13 September 20, 1990 . . 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 liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Subdivider as may be on the site of the work and necessary therefor. 20. Notices. All notices herein required shall be in writing, and delivered in person or sent by registered mail, postage prepaid. (a) Notices required to be given to City shall be addressed as follows: City Administrator Ci ty Hall 300 North "D" Street San Bernardino, California 92418 (b) Notices required to be given to Subdivider shall be addressed as follows: (c) Notices required to be given to surety of Subdivider shall be addressed as follows: Provided that any party or the surety may change such address by notice in writing to the other party, and, thereafter, notices shall be addressed and transmitted to the new address. 21. Successors Bound. This Agreement shall be binding upon and inure to the benefit of each of the parties and their respective legal representatives, successors, heirs and assigns. III BAS/mgl[Subdivimp.Agr] 14 September 20, 1990 . 9 10 11 12 13 AGREEMENT FOR SUBDIVISION IMPROVEMENTS AND REP~ALING RESOLUTION ยท NO:. 84-8 1 2 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: CITY OF SAN BERNARDINO 4 5 6 By: W.R. Holcomb, Mayor City of San Bernardino City Clerk Approved as to form and legal content: 7 8 SUBDIVIDER: JAMES F. PENMAN, City Attorney, By: J-;?e~~ By: INSTRUCTIONS 14 executed in the corporate name and signed by the President or a If the Subdivider is a corporation, the Agreement must be 15 Vice-President and the Secretary or Assistant Secretary, and the 16 17 corporate seal affixed. If the Subdivider is a partnership, it must be signed by all partners. If the Subdivider is an 18 individual doing business under a fictitious name, it must be 20 19 signed by all persons having an interest in the business, and the fictitious name must be signed also. The Agreement must be 22 21 notarized. 23 24 25 26 STATE OF CALIFORNIA ) ) ss. ) COUNTY OF On this day of me, the undersigned, a Notary Public State, personally appeared ,19 ,before in and for said County and 27 personally known to me (or proved to me on the basis of satisfactory evidence to be the President, and 28 BASjmgl[Subdivimp.Agr] 15 September 20, 1990 .1 .' 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 I I 28 I I . 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. Notary Signature BASjmgl[Subdivimp.Agr] September 20, 1990 16 (This area for official seal.)