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HomeMy WebLinkAbout1990-427
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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
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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
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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
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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,
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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 / / /
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BAS/ml/res.848
October 11, 1990
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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6 Subdivision Improvement Agreement are hereby repealed.
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BAS/ml/res.848
October 11, 1990
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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
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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:
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JAMES F. PENMAN,
Ci ty 1\)ttorney ')
By: r~""'~? J~'--,
/>
U
BAS/ml/res.848
October 11, 1990
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AGREEMENT
(Subdivision Improvements)
THIS AGREEMENT is made and entered into as of this
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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
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A.
WHEREAS, Subdivider has presented to City for
10 approval a final subdivision map (hereinafter called "map")
11 enti tled
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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,
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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,
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September 20, 1990
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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
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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:
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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.
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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
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September 20, 1990
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said City Engineer.
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3.
Work:
Time for Commencement and Performance.
City
3 hereby fixes the time for the completion of said work to be
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within
from the date hereof.
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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
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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
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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.
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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
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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.
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September 20, 1990
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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
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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
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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
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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.
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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
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23 work is in preparation.
10.
25 hereof, Subdivider shall furnish to City improvement security as
Contract Security.
Concurrently with the execution
26 follows:
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(a) An amount equal to at least one hundred percent (100%)
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September 20, 1990
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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
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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.
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September 20,'1990
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11. Subdivider's Insurance. Subdivider shall not commence
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work under this Agreement until Subdivider shall have obtained
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all insurance required under this paragraph, and such insurance
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shall have been approved by City Attorney as to form, amount and
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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
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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.
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(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
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September 20, 1990
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protection of employees not otherwise protected.
Subdivider shall indemnify City for any damage
resulting to it from failure of either Subdivider or
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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
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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
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coverage should be part of the Public Liability
Insurance;
(2) Property Damage Insurance. In an amount not less
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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
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September 20, 1990
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subcontractors must and shall comply with the
same insurance provisions as the contractor(s)
and subdivider(s).
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(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
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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.
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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,
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September 20, 1990
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liens, demands and cause of action of every kind and character
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including, but not limited to, the amounts of judgments,
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penalties, interests, court costs, attorney's/legal fees, and all
4 other expenses incurred by the City arising in favor on any
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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
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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:
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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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September 20, 1990
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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
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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.
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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.
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September 20, 1990
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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
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
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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%).
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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.
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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.
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September 20, 1990
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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
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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
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AGREEMENT FOR SUBDIVISION IMPROVEMENTS AND REP~ALING RESOLUTION
ยท NO:. 84-8
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
ATTEST:
CITY OF SAN BERNARDINO
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By:
W.R. Holcomb, Mayor
City of San Bernardino
City Clerk
Approved as to form
and legal content:
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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
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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
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21 notarized.
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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
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September 20, 1990
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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.
Notary Signature
BASjmgl[Subdivimp.Agr]
September 20, 1990
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(This area for official seal.)