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From: James Funk, Director CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION Dept: Development Services Date: January 19, 2004 File: 1. 7246 - UTL-2 ORIGINAL Subject: Resolution approving the underground utility installation reimbursement agreement by and among the City of San Bernardino, SBT Partners LLC and Hopkins- Hub Phase 2, LLC relative to the private component of the construction of Underground (Dry) Utilities at Tippecanoe A venue and Harriman Place extension; authorization for the Director of Finance to amend the FY 2003/04 budget to transfer $98,000 from Account No. 126-369- 5504-7306 "Slurry Seal at Various Locations" to Account No. 126-369-5504-7377 "Harriman Place Realignment - Phase II A & B"; Resolution awarding contract to Irish Construction Corporation for Underground (Dry) Utilities at Tippecanoe Avenue and the Harriman Place Extension per Plan No. 10682A; and, Resolution awarding contract to Elite Bobcat Service, Inc. for the Widening of Tippecanoe Avenue and Harriman Place (Phase III) per Plan No. 10373 B. MCC Date: February 2, 2004 Synopsis of Previous Council Action: 06/16/03 Rejected all bids for Underground (Dry) Utilities along the Laurelwood Drive Realignment per Plan No. 10682. 07/07/03 Adopted resolution awarding contract to Holland-Lowe Construction, Inc. for Tippecanoe Avenue Widening and Laurelwood Drive (Phase II) per Plan No. 10373A and authorizing the Finance Director to budget funds for this project. Recommended Motion: I. Adopt Resolution approving the underground utility installation reimbursement agreement by and among the City of San Bernardino, SBT Partners LLC and Hopkins-Hub Phase 2, LLC relative to the private component of the construction of underground (dry) utilities at Tippecanoe Avenue and Harriman Place extension; and, 2. Authorize the Director of Finance to amend the FY 2003/04 budget to increase the project budget (242- 362-5504-7377) by $250,000 and revenue for reimbursed street construction (242-000-4945) by the same amount to reflect the developer Agreement approved in motion I; and, 3. Authorize the Director of Finance to amend the FY 2003/04 budget to transfer $98,000.00 from Account No. 126-369-5504-7306 "Slurry Seal at Various Locations" to Account No. 126-369-5504-7377 " Harriman Place Realignment -Phase II A & B"; and, 4. Adopt Resolution awarding the Underground (Dry) Utilities contract per Plan No. 10682A to Irish Construction; and, 5. Resolution awarding contract to Elite Bobcat Service, Inc. for the Widening of Tippecanoe Avenue and Harriman Place (Phase III) per Plan No. 10373 B. ~[~ Contact person: Mike Grubbs, Acting City Engineer Phone: 5179 Supporting data attached: Staff Report, Map & Resolution Ward: 3 FUNDING REQillREMENTS: Amount: $1,398,000.00 129-367-5504-7377- $150,000, 126-369-5504-7377-$98,000 Source: !A\;l;l. No.) 242-362-5504-7377-$900,000, Developer Funding-$250,000 Laurelwood Rear nment- Rosewood/ H rri Council Notes: ~ ~ 2004;- 37.... 2.L\04;- 33 L.ml\-3~ Agenda Item NO.11--- ,. . CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution approving the underground utility installation reimbursement agreement by and among the City of San Bernardino, SBT Partners LLC and Hopkins-Hub Phase 2, LLC relative to the private component of the construction of Underground (Dry) Utilities at Tippecanoe Avenue and Harriman Place extension; authorization for the Director of Finance to amend the FY 2003/04 budget to transfer $98,000 from Account No. 126-369-5504-7306 "Slurry Seal at Various Locations" to Account No. 126-369-5504-7377 "Harriman Place Realignment - Phase II A & B"; Resolution awarding contract to Irish Construction Corporation for Underground (Dry) Utilities at Tippecanoe Avenue and the Harriman Place Extension per Plan No. 10682A; and, Resolution awarding contract to Elite Bobcat Service, Inc. for the Widening of Tippecanoe Avenue and Harriman Place (Phase III) per Plan No. 10373 B. Background: Phase I of the realignment of Rosewood Drive from its intersection in a reversing curve to a new intersection at Tippecanoe Avenue and Laurelwood Drive was completed in May of 2003. The realigned street is now known as Harriman Place. Phase II which consists of improvements to the traffic signal and intersection at Tippecanoe Avenue and Harriman Place is currently under construction. Two additional contracts have been bid to complete this project and are ready for award. They are as follows: 1. Underl!round (Dry) Utilities at Tippecanoe and Harriman Place Extension The realignment and connection of Laurelwood Drive with Harriman Place has required the installation of a backbone utility system. The three (3) utilities that need to be installed in conjunction with the street improvement project are Southern California Edison, Verizon and Adelphia. To help facilitate the installation of these utility systems with the current construction of the street realignment, staff felt that it was necessary to coordinate these two activities. The timing of the construction work was the determining factor to advertise for bids, normally each utility would bid their work independently. City staff, in cooperation with EDA staff, successfully sought State Infrastructure Loan Bank funding in order to assist with financing of this very important project as part of the HUB project being undertaken by EDA in cooperation with the Inland Valley Development Agency and SBT Partners LLC jointly with Hopkins-HUB Phase 2 LLC, the Developer. Each stakeholder (EDA, Edison, Verizon, City of San Bernardino and the Developer) in the installation of the Underground (Dry) Utilities will be participating in the funding of this project. 2 ,"' \,' . CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report - Continued This project was advertised locally in the San Bernardino County Sun Newspaper, Construction Trend Newspaper, the City's web site, and with the San Bernardino Area Chamber of Commerce; the following companies responded: Name of Bidder City Basic Bid Edison Onlv Irish Construction Rosemead $115,200.00 Henkels & McCoy, Inc. San Dimas 139,830.00 Par Electrical Contractors, Inc. Fontana 146,980.00 VCI Telcom, Inc. Unland 178,034.00 Pouk & Steinle, Inc. Riverside 181,300.00 Dotv Bros. Equipment Co. Norwalk 217,313.00 Pete & Sons Constr., Inc. Riverside 250,000.00 Enl!ineer's Estimate 150,000.00 The bid documents provide that the City shall award the contract based on the lowest responsible bidder for the "Total Basic Bid." Therefore, in accordance with the bid documents, Irish Construction is the lowest responsible bidder at $115,200 for the basic bid. Irish Construction's bid for each schedule is as follows: Basic Bid Schedule "A" Schedule "B" Total Edison V erizon Adelphia Amount Irish Construction $115,200.00 $132,083.00 $84,302.00 $ 331,585.00 During budget planning the utility conduits were not expected to be needed. It was felt that the utility services could be fed from another direction. However, the Developer has advised that the underground conduit must be provided. This work must be completed prior to installation of the final paving on Harriman Place and Tippecanoe Avenue to avoid cutting the new paved street. Currently, the City has committed to fund the installation of the Southern California Edison underground conduit in accordance with the basic bid. The Developer proposes to enter into an Agreement with the City, whereby the Developer agrees to fund the shortfall for installing the underground conduits for Verizon and Adelphia as indicated in Schedule "A" and Schedule "B," above. Pursuant to said Agreement, the Developer would pay its share of the under-grounding contract, the basic bid amount plus a 15% contingency, within three business days of the execution of the Agreement by the parties. The costs to the Developer will be as follows: Schedule "A" - Verizon Schedule "B" -Adelphia Total $132,083.00 $ 84.302.00 $216,385.00 Contingencies (15%) Total Developer share $ 33.615.00 $250,000.00 3 ',' . CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report - Continued Plan and specifications for this project are complete and it is ready to be awarded. The estimated project costs are as follows: Item Cost Est. Cost Construction Cost $ 331.585.00 Contingencies $ 33,207.50 Design, Inspection, and Contract Administration $ 33,207.50 Total $ 398,000.00 2. Tippecanoe Avenne and Harriman Place (Phase I11l This contract is the third and last phase of a project to realign Laurelwood Drive (renamed to Harriman Place) and widen the west-side of Tippecanoe Avenue. Plan and specifications for Phase III are complete, bids have been received and the project is ready to be awarded. The project was advertised locally in the San Bernardino County Sun Newspaper, Construction Trend Newspaper, the City's web site, and with the San Bernardino Area Chamber of Commerce; the following companies responded: Name of Bidder Citv Amount of Bid Elite Bobcat Service, Inc. Corona $544,388.05 E.G.N. Construction, Inc. Uoland $586,783.25 Vance Corporation Rialto $665,791.00 Laird Construction Co., Inc. Rancho CUCamOnlIa $687,786.00 Elite Bobcat Service, Inc. of Corona is the lowest responsible bidder in the amount of $544,388.05. The estimated project costs, based on the Elite Bobcat's bid, are as follows: Item Cost Est. Cost Construction Cost $ 544,388.05 Continl!encies 52,806.00 Design, Inspection, and Contract Administration 52,805.95 Total $650,000.00 Phase III consists of the widening of the north side of Harriman Place and the widening of the west side of Tippecanoe Avenue, including curb & gutter, sidewalk, ADA accessibility ramps, traffic signal relocation and pavement widening. Dedication of approximately 10 feet of right-of-way for Tippecanoe Avenue is needed to complete the widening adjacent to In-n-Out Burger Restaurant. EDA is working with representatives of In-n- Out to revise access to their drive-thru and obtain the dedication. If the dedication cannot be obtained in a timely manner, then it may be necessary to eliminate widening of Tippecanoe Avenue adjacent to the In-n-Out Burger Restaurant from the contract. 4 . " . CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report - Continued Construction of Phase III is expected to start in March of 2004 and be completed by June of 2004, Financial Impact: The updated funding required for the remaining Phase II and Phase III of this project, based on actual bids, is as follows: Estimated Cost $ 350,000.00 $ 398,000.00 $ 650,000.00 $ 1,398,000.00 As part of the FY 2003/04 Capital Improvement Program, the Mayor and Common Council approved funding for the Laurelwood Realignment-Rosewood/HarrimaniLaurelwood project, consisting of a $900,000 no-interest loan from the Economic Development Agency (EDA) and $150,000 in 1/2-cent sales tax funds. This provides a total funding amount of $1,050,000 for completion of Phase II, Underground (Dry) Utilities, and Phase III of this project. Therefore, a total funding shortfall in the amount of $348,000 exists for the installation of dry utilities, of which the Developer will provide $250,000. The remaining funding gap in the amount of $98,000 is proposed to be closed by transferring that amount from Account No. 126-369-5504- 7306 "Slurry Seal at Various Locations." Slurry Seal funding can be increased by a like amount in FY 2004/05 in order to keep the Slurry Sealing program current. Recommendation: I. Adopt Resolution approving the underground utility installation reimbursement agreement by and among the City of San Bernardino, SBT Partners LLC and Hopkins-Hub Phase 2, LLC relative to the private component of the construction of underground (dry) utilities at Tippecanoe Avenue and Harriman Place extension; and, 2. Authorize the Director of Finance to amend the FY 2003/04 budget to increase the project budget (242-362-5504-7377) by $250,000 and revenue for reimbursed street construction (242-000- 4945) by the same amount to reflect the developer Agreement approved in motion 1; and, 3. Authorize the Director of Finance to amend the FY 2003/04 budget to transfer $98,000.00 from Account No. 126-369-5504-7306 "Slurry Seal at Various Locations" to Account No. 126-369- 5504-7377 " Harriman Place Realignment - Phase II A & B"; and, 4. Adopt Resolution awarding the Underground (Dry) Utilities contract to Irish Construction; and, 5. Resolution awarding contract to Elite Bobcat Service, Inc. for the Widening of Tippecanoe Avenue and Harriman Place (Phase III) per Plan No. 10373 B. 5 . City of San Bernardino, California Department of Public Works, Division of Engineering File No. 1.7246-UTL W.O. No. 7246 DWG. No. 10682 VICINITY MAP FOR UNDERGROUND (DRY) UTILITIES ALONG LAURELWOOD DRIVE REALIGNMENT E DL~ ST --.-.,- ::~;:... """:_'._._ .,- --: '"'~.;:~..RftJ- .,it!~~. ;~ "_,,,:-;1_:' 1:'_,...... '._ ~.......J ..~ -(;........ ~.. .~itt ~ _.wo :('.4 D ~,,,3 ~:: .. ~ ......:<'~.. ..... *.A ~t !;,.-.o~~,: ~ 8 ~ ... k':J .,.: !i - }~j' E !! . ,- z!! IS ..\\ ~, ";,.. ~ ... p. 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RESOLU~~ rv A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE UNDERGROUND UTILITY INST ALLA TION REIMBURSEMENT AGREEMENT BY AND AMONG THE CITY OF SAN BERNARDINO, SBT PARTNERS LLC AND HOPKINS-HUB PHASE 2 LLC RELATIVE TO THE PRIVATE PROJECT COMPONENT OF THE CONSTRUCTION OF UNDERGROUND (DRY) UTILITIES AT TIPPECANOE A VENUE AND HARRIMAN PLACE EXTENSION WHEREAS, the City of San Bernardino, California (the "City") is a municipal corporation and charter city, duly organized and existing pursuant to the provisions of the constitution of the State of California; and WHEREAS, the City is prepared to award a contract to a contractor to install certain underground utility service mfrastructure improvements pursuant to a public works contract with tne City in order to service certain commercial development improvements adjacent to the public street right-of-way of Harriman Place and Tippecanoe A venue (City No. I0682A), said commercial development project generally referreo to as the "HUB Project"; and WHEREAS the City requires that the HUB Project developers SBT Partners LLC and Hopkins-HUB Phase 2 LLC (jointly, the "DeveloI'er") reimburse the City for the expense of awarding a contract to perform a portion of the underground utility service infrastructure improvements set forth as bid alternatives (the "Private Work") to the City's Public Works Contract No. 10682A; and WHEREAS, the City and the Developer mutually desire to enter into a reimbursement agreement to provide, among other things, a fair and equitable means to assure payment to the City of fimds for its costs associated with the installation of the Private Work; and WHEREAS, it is appropriate for the Mayor and Common Council to take action with respect to entering into a relmfmrsement agreement with the Developer. NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS: 24 Section 1. 25 III The above recitals are true and correct and incorporated herein by reference. III III 28 III c;z 0 . /111- Z/2/0$/ HEJcj [UndergroundUtility,Res] 1 r . . e Section 2. 2 The Mayor and Common Council hereby approve the City entering into a reimbursement agreement with the Developer for the purpose of the Developer funding the 3 City's costs relative to costs associated with the installation of the Private Work, which reimbursement agreement is entitled "Underground Utility Installation Reimbursement 4 Agreement By and Among the City of San Bernardino, SBT Partners LLC and Hopkins- HUB Phase 2 LLC relatIve to the Private Project Component of the Construction Of 5 Underground (Dry) Utilities At Tippecanoe Avenue And Harriman Place Extension" (hereinafter the "Reimbursement Agreement", which is attached and incorporated herein as 6 Exhibit "I"). 7 Section 3. The Mayor and Common Council hereby approve the Reimbursement Agreement and authorize and direct the Mayor to execute the Reimbursement Agreement and any other documents required in order for the City to be funded its costs associated with the Private Work component of City Public Works Contract No. I0682A, as approved by the City 10 Attorney. 8 9 II /II 12 /II 13 e 14 15 16 17 18 19 20 21 22 23 24 25 26 e27 28 HFJcj{UndergroundUtility,Res] 2 I .. , .' e , A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE UNDERGROUND UTILITY 2 INST ALLA TION REIMBURSEMENT AGREEMENT BY AND AMONG THE CITY OF SAN BERNARDINO, SBT PARTNERS LLC AND HOPKINS-HUB PHASE 2 3 LLC RELATIVE TO THE PRIVATE PROJECT COMPONENT OF THE CONSTRUCTION OF UNDERGROUND (DRY) UTILITIES AT TIPPECANOE 4 A VENUE AND HARRIMAN PLACE EXTENSION 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a meeting thereof, , 2004, by the following vote, to wit: NAYS ABSTAIN ABSENT Rachel Clark, City Clerk 19 20 21 22 23 The foregoing resolution is hereby approved this day of 2004. Judith Valles, Mayor City of San Bernardino Approved as to 24 Form and legal content: 25 JAMES F. PENMAN, City Attorney 26 e7 28 HEJcj[UndergroundUtility.Res] 3 e e e Exhibit 1 UNDERGROUND UTILITY INSTALLATION REIMBURSEMENT AGREEMENT BY AND AMONG THE CITY OF SAN BERNARDINO, SBT PARTNERS LLC AND HOPKINS-HUB PHASE 2 LLC RELATIVE TO THE PRIVATE PROJECT COMPONENT OF THE CONSTRUCTION OF UNDERGROUND (DRY) UTILITIES AT TIPPECANOE AVENUE AND HARRIMAN PLACE EXTENSION THIS REIMBURSEMENT AGREEMENT (this "Agreement") is entered into as of February _, 2004, by and among the CITY OF SAN BERNARDINO, a charter city (the "City"), SBT Partners LLC, a California limited liability company, and Hopkins-HUB Phase 2 LLC, a California limited liability company (SBT Partners LLC and Hopkins-HUB Phase 2 LLC are jointly referred to herein as the "Developer"), with respect to the following facts: Recitals WHEREAS, the Developer is in the process of constructing certain commercial development improvements generally referred to as the "HUB Project" on property located within the boundaries of the City, more specifically described in the City's "Plans and Special Provisions No. 10682A"; and WHEREAS, the City has prepared certain plans for the construction and installation of certain underground utility infrastructure improvements (the "Public Work") within the public street right-of-way of Harriman Place and Tippecanoe Avenue near the intersection of Harriman Place and Tippecanoe Avenue which public street right-of-way abuts the property as depicted on the vicinity map attached as Exhibit "B" (the "Property"); and WHEREAS, in order to service the commercial development of the Property it is appropriate to install certain underground utility service infrastructure improvements (described herein as the "Private Work"), the cost of which is to be borne by the Developer concurrently with the installation of the Public Work; and WHEREAS, the City is prepared to award a contract to a single public works contractor who shall undertake the performance of both the Public Work and the Private Work pursuant to a public works contract with the City; and WHEREAS, as a condition to instructing the public works contractor who shall undertake the performance of the Public Work concurrently with the performance the Private Work, the City requires that the Developer reimburse the City for the expense of awarding a contract to perform the Private Work; and WHEREAS, the City and the Developer hereby enter into this Agreement to provide, among other things, a fair and equitable means to assure payment to the City of funds for its costs associated with the installation of the Private Work. 4849-7788-67202 I e e e NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES CONTAINED IN THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES TO THIS AGREEMENT HEREBY AGREE, AS FOLLOWS: Section I. City has received a bid in the amount of Two Hundred Sixteen Thousand Three Hundred Eighty Five Dollars ($216,385.00) from Irish Construction (the "Contractor") for the performance of the Private Work by the Contractor concurrently with the performance by the Contractor of the Public Work. Accordingly, Developer agrees to pay to City the sum of Two Hundred Fifty Thousand Dollars .($250,000.00) (the "Deposit") for the performance of the Private Work by the Contractor subject to the City's award of a public works contract to the Contractor to perform both the Public Work and the Private Work. Developer shall pay the Deposit to the City within three (3) business days of the execution of this Agreement by the parties. The parties acknowledge that the Deposit includes a cost contingency for authorized Change Orders as further provided in Section 6. It is understood that Contractor is not a party to this Agreement. Section 2. In recognition of the recitals above and subject to the terms and conditions of this Agreement, the City hereby agrees to cause the Contractor to perform the Private Work in accordance with the public works contract specifications set forth in Exhibit "A" (the "Private Work Specifications"). The Private Work shall be performed by the Contractor in a good and workmanlike manner, and furthermore, the Private Work shall be performed as a "public work" as that term is defined in the Labor Code, to which prevailing wages shall apply. Section 3. The Developer hereby grants permission to the Contractor, and the principals, employees and subcontractors of the Contractor, to enter the Property and to conduct certain on-site evaluations of the Property as well to perform the excavation and installation work relating to the Private Work. Prevailing wages shall apply in the event any new and/or separate contracts between Developer and Contractor are necessary or required for the extension of underground utility service infrastructure improvements from the Private Work onto the Property. Section 4. Effective upon execution hereof, the Developer shall fully indemnify, protect, hold harmless, and defend (with counsel selected by the City) City and the Redevelopment Agency of the City of San Bernardino and the officers, boards, commissions, agents and employees of each of them (collectively, the "City Entities"), from and against all Indemnified Liabilities (as defined below) to the extent and in the proportion that such Indemnified Liabilities are proximately caused by the activities conducted at, on, under or about the Property by the Contractor; provided, however, such indemnity shall not apply to the extent that such Indemnified Liabilities are caused by the active negligence or willful misconduct of City Entities. The term Indemnified Liabilities shall include all claims (including third party claims for injury or death to persons or damages to or loss of property), costs, damages (including consequential damages), fines, judgments, penalties, losses, expenses and reasonable attorneys' fees. City shall promptly notify the Developer, in writing, of any claim for which City Entities, or any of them, seeks indemnification. 4849-7788-6720.2 2 e e e Section 5. City makes no representations or warranties of any kind to the Developer regarding the engineering design of the Private Work. In no event shall City be liable for any consequential, economic, speculative and/or punitive damages arising from or in connection with the engineering design specifications for the Private Work. Notwithstanding the foregoing, nothing in this Agreement shall be construed to limit the liability of any person or party responsible for creating the engineering design specifications for the Private Work. Section 6. The Developer shall have no authority to direct the Public Work or the Private Work or to issue instructions to the Contractor or the City relating to the performance of either the Public Work or the Private Work. Notwithstanding the foregoing, the City shall instruct the Contractor to respond to specific inquiries by the Developer's construction representative identified in Section 1I.B., relating to the Contractor's performance of the Private Work. The City shall on a best efforts basis consider any written request or recommendation of the Developer for a change order to be issued by the City to the Contractor relating to the Private Work. Any change in the Private Work must be authorized by written change order signed by the City in its reasonable discretion and the Contractor or by written construction change directive signed by the City or its representative, which authorization shall not be umeasonably conditioned, withheld or delayed. Developer agrees that any increase in the cost of the Private Work caused by any authorized change order or change in the Private Work shall be paid by the Developer within thirty (30) days of invoice (in the event such increase results in the cost of the Private Work exceeding the amount of the Deposit as provided in Section I). Cost savings or other credit to the City from a change in the Private Work, as determined by the City, shall be refunded to Developer upon the completion of the Private Work. Section 7. Representations and Warranties ofSBT Partners LLC A. SBT Partners LLC is a duly organized and validly existing limited liability company created under the laws of the state of California. SBT Partners LLC has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein, and to consummate the transactions that are the subject of this Agreement. The person executing this Agreement on behalf of SBT Partners LLC has power, right and authority to bind SBT Partners LLC. B. SBT Partners LLC has taken all reqUIsIte action and obtained all reqUIsIte consents in connection with (i) entering into this Agreement, and (ii) the consummation of the transactions that are the subject of this Agreement. No consent of any other person or entity to the execution of this Agreement by SBT Partners LLC is required. C. This Agreement is valid and legally binding upon SBT Partners LLC and enforceable in accordance with its terms. D. Neither the execution of this Agreement nor the consummation of the transactions that are the subject of this Agreement shall result in a breach of or constitute a default under any agreement, document, instrument or other obligation to which SBT Partners LLC is a party or by which SBT Partners LLC may be bound, or under any law, statute, ordinance, rule, 4849.7788-<i720.2 3 e e e governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to SBT Partners LLC. Section 8. Representations and Warranties of Hook ins-HUB Phase 2 LLC A. Hopkins-HUB Phase 2 LLC is a duly organized and validly existing limited liability company created under the laws of the state of California. Hopkins-HUB Phase 2 LLC has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein, and to consummate the transactions that are the subject of this Agreement. The person executing this Agreement on behalf of Hopkins-HUB Phase 2 LLC has power, right and authority to bind Hopkins-HUB Phase 2 LLC. B. Hopkins-HUB Phase 2 LLC has taken all requisite action and obtained all requisite consents in connection with (i) entering into this Reimbursement Agreement, and (ii) the consummation of the transactions that are the subject of this Reimbursement Agreement. No consent of any other person or entity to the execution of this Reimbursement Agreement by Hopkins-HUB Phase 2 LLC is required. C. This Agreement is valid and legally binding upon Hopkins-HUB Phase 2 LLC and enforceable in accordance with its terms. D. Neither the execution of this Agreement nor the consummation of the transactions that are the subject of this Agreement shall result in a breach of or constitute a default under any agreement, document, instrument or other obligation to which Hopkins-HUB Phase 2 LLC is a party or by which Hopkins-HUB Phase 2 LLC may be bound, or under any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to Hopkins-HUB Phase 2 LLC. Section 9. Representations and Warranties ofCitv A. City is a duly organized and validly existing charter city operating under the laws of the state of California. City is authorized to enter into both this Agreement and the separate public works construction contract with the Contractor for the performance of the Public Work and the Private Work, and to consummate the transactions that are the subject of this Agreement. The person executing this Agreement on behalf of City has power, right and authority to bind City. B. This Agreement is not binding on the City, until signed by the authorized representatives of the Developer, approved by the Common Council of the City, approved as to form and legal content by the City Attorney of the City, and executed by the Mayor of the City. C. Subject to Section 9.B., this Agreement is valid and legally binding upon City and enforceable in accordance with its terms. 4849-7788-6720.2 4 e e e !' D. City covenants that any and all amounts received pursuant to Section I of this Agreement shall be expended solely for the installation and construction of the Private Work, and amounts received and unexpended shall be refunded to Developer in accordance with Section 6 herein. Section 10. If a dispute arises between the parties to this Agreement, the parties hereto agree to use the following procedure to resolve such dispute, prior to pursuing other legal remedies: A. A meeting shall be held promptly between the parties that will be attended by individuals with decision-making authority, who will attempt in good faith to negotiate a resolution of the dispute. B. If the parties are unsuccessful in resolving the dispute under A., above, either party may initiate litigation upon forty-five (45) days advanced written notice to the other party. C. If any party should bring an action against the other(s) to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, as determined by a court of competent jurisdiction in said proceeding. For the purposes of this Agreement the words "reasonable attorneys' fees" mean and include the salaries, benefits and costs (allocated on an hourly basis) of lawyers employed by the Office of City Attorney of the City of San Bernardino who may provide legal services to the City hereunder. Section II. A. Any notice required or permitted to be given pursuant to this Agreement shall be given in writing and shall be deemed given on the date when it is personally served on the party to be served or transmitted by FAX and its receipt confirmed by telephone or on the third day following deposit with the United States Postal Service for delivery by certified or registered mail, postage prepaid and addressed, as follows: To the Developer: SBT Partners LLC 13 Corporate Plaza Suite 200 Newport Beach, California 92660 To the Developer: Hopkins-HUB Phase 2 LLC 13 Corporate Plaza Suite 200 Newport Beach, California 92660 To the City: City of San Bernardino Development Services Department Public Works Division 300 North "D" Street San Bernardino, California 92418 4849-7788-6720.2 5 e e e B. For the purposes of this Agreement, each party hereto shall designate the following individual to serve as construction project representative for such party: For the Developer: For the Developer: For the City: Stephen C. Hopkins for SBT Partners LLC Stephen C. Hopkins for Hopkins - HUB Phase 2 LLC James Funk, Director of Development Services Section 12. The parties hereto acknowledge that this Agreement was negotiated and entered into in California. The parties hereto expressly agree that this Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California. Section 13. If any term or provision of this Agreement or the application thereof to any person or circumstance shall be deemed invalid or unenforceable by a court, the remainder of this Agreement, or the application of such term or provision or portion thereof to persons or circumstances, other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by Jaw. Section 14. No waiver of any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension of the time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act. Section 15. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. This Agreement is not assignable by the Developer, without the prior written consent of the City. Section 16. This Agreement (including the Exhibit attached hereto) contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the parties. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall constitute a single instrument. The parties do not intend to confer any benefit hereunder on any person, firm or corporation other than the parties hereto. Section 17. Headings at the beginning of each section, paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to sections are to this Agreement. All exhibits referred to in this Agreement are attached and incorporated by this reference. In the event the date on which 4849-7788-6720.2 6 e e e the City or the Developer is required to take any action under the terms of this Agreement is not a business day, the action shall be taken on the next succeeding business day. IN WITNESS WHEREOF, the City and the Developer execute this AGREEMENT as of the dates set forth below next to the signatures of their authorized representatives, as follow: DEVELOPER SBT Partners LLC Dated: By: Name: DEVELOPER Hopkins-HUB Phase 2 LLC Dated: By: Name: CITY City of San Bernardino Dated: By: Judith Valles, Mayor Approved as to form and legal content JAMES F. PENMAN City Attorney 4849.7788-6720.2 7 e e e .. EXHIBIT "A" Private Work Specifications 1. VERIZON, underground (dry) utilities, per marked up Plan No. 10373, C4-C7 (Project No. 10682A) Clearing and grubbing, unclassified excavation and unclassified fill 2. ADELPHIA, per Borban Cable Engineering Plan (Project No.1 0682A) Clearing and grubbing, unclassified excavation and unclassified fill 3. All Plans and Special Provisions No. I0682A 4849-7788-6720.2 8 Exhibit "B" City of San Bernardino, California Department of Public Works, Division of Engineering File No. 1.7246-UTL W.O. No. 7246 DWG. No. 10682 VICINITY MAP FOR UNDERGROUND (DRY) UTILITIES ALONG LAURELWOOD DRIVE REALIGNMENT '.;c. 60f'" ",'l ..'~ c'LM'S S' l -. ,. ',~'~' S4N 8m_ItrI.;'-",,",. &:J/f CiI6 _;;'~', ~~'J':' L -~>~,,:'::;,\;;'!.i~~:--'" ':i:.... ~ '; ~ ~ "".,.. ~. ~ :!~ ~;.'-:.~_:,~~ ~ ~ '4 "." .. s. " - E e .- z!' · '5 t<5F!T.:'.Ll-f ! 1:: ~_ 1-,"- ... -, - n.DI > ~ !j , ':'IOLlIoE ~ 607 to ! !i .' ~.f>A ~ " . " ~ ... ~ <_, Ii ,. - a!!'" - ~ , - ':CO...U:'.'f :::.: :2- 1(: 'Jt.f '" :!.;.,~ = I- :=:. ~. . .-, -:.::~ ~ ,-~~ :. ~,~~ .' I, - . CI >~;:~..: ~ -.: l {.( OJECT CATI l tAktT ST l ""-D. sr: '" !!! >> -< .".- ~ '" ., E GCLU'l s~ BKI~ ['I~ .. . ~~ ~.4RI't!"~ . -./ (' ""... :: c- < 1t.:'SF:r'hl"-:-,. IN ~ . ~;""I['SCN i. I~ ~ ST ~u ....~t:~._~I.~ " COl<5T~t.._S~, .' ~Ji~ ,-J , ". - . _. . (;.~-1" __d:_ ii -w: ; !.1J.. "'" - r: ;';'.Ci:.."i<<< ; ~ ......... 1;.. ~ ., ,-s " I. . , ~~':. ~.iF .,:'~., ." ~- , :l' . . ;... ~c::>.":'. o_ j "".... i ~ - ''':" .. ~ .. " (' ""P.f"'~l ",I ... ;;; ;~ j:: 2~~ {: 5' E ~ C.';~OLl"E ( sr ~ ~ o :z: '::2001 Thomas Bros. Maps .... ,... ;::\.,e VICINITY MAP. N. T. s. .' e e 1 2 3 4 5 6 7 8 9 10 11 12 13 14 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AWARDING A CONTRACT TO IRISH CONSTRUCTION CORPORATION FOR UNDERGROUND (DRY) UTILITIES AT TIPPECANOE A VENUE AND HARRIMAN PLACE EXTENSION PER PLAN NO. l0682A. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. Irish Construction Corporation, 2641 River Avenue, Rosemead, CA 91770, is the lowest responsible bidder for Underground (Dry) Utilities at Tippecanoe Avenue and Harriman Place extension. A contract is awarded accordingly to said bidder in a total amount of $331,585.00, with a contingency amount of $33,207.50, but such award shall be effective only upon being fully executed by both parties. All other bids, therefore, are hereby rejected. The Mayor is hereby authorized and directed to execute said contract on behalf of the City; a copy of the contract is on file in the office of the City Clerk and incorporated herein 15 by reference as fully as though set forth at length. 16 17 SECTION 2. This contract and any amendment or modifications thereto shall not take 18 effect or become operative until fully signed and executed by the parties and no party shall be 19 obligated hereunder until the time of such full execution. No oral agreements, amendments, 20 modifications or waivers are intended or authorized and shall not be implied from any act or . 21 course of conduct of any party. 22 23 SECTION 3. This resolution is rescinded if the parties to the contract fail to execute it 24 within sixty (60) days of passage of the resolution. 25 III 26 e III 27 28 /78 1 z/zIDI . . . e e 1 2 3 4 5 6 7 8 9 10 11 12 RESOLUTION... AWARDING A CONTRACT TO IRISH CONSTRUCTION CORPORATION FOR UNDERGROUND (DRY) UTILITIES AT TIPPECANOE AVENUE AND HARRIMAN PLACE EXTENSION PER PLAN NO. l0682A. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the_day of ,2004, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT Council Members: ESTRADA LONGVILLE MC GINNIS DERRY SUAREZ 13 14 ANDERSON 15 MC CAMMACK 16 17 18 19 20 City Clerk day of ,2004. The foregoing resolution is hereby approved this 21 22 Judith Valles, Mayor City of San Bernardino 23 Approved as to form and legal content: 24 James F. Penman City Attorney 25 26 By L :J./~..- - e 27 110 . 28 2 e e 1 2 3 .. 5 6 7 8 9 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AWARDING A CONTRACT TO ELITE BOBCAT SERVICE, INC. FOR TIPPECANOE A VENUE WIDENING (PHASE III) AND HARRIMAN PLACE WIDENING (PHASE III) PER PLAN NO. 10373 B. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. Elite Bobcat Service, Inc., 1320 E. Sixth Street, Suite 100, Corona, CA 92879-1700, is the lowest responsible bidder for Tippecanoe A venue Widening (Phase III) and 10 11 Harriman Place Widening (Phase III) per Plan No. 10373 B. A contract is awarded 12 accordingly to said bidder in a total amount of $544,388.05, with a contingency amount of 13 $52,806.00, but such award shall be effective only upon being fully executed by both parties. All other bids, therefore, are hereby rejected. The Mayor is hereby authorized and directed to City Clerk and incorporated herein by reference as fully as though set forth at length. SECTION 2. This contract and any amendment or modifications thereto shall not take effect or become operative until fully signed and executed by the parties and no party shall be obligated hereunder until the time of such full execution. No oral agreements, amendments, 21 22 modifications or waivers are intended or authorized and shall not be implied from any act or 23 course of conduct of any party. 24 SECTION 3. This resolution is rescinded if the parties to the contract fail to execute it 25 within sixty (60) days of passage of the resolution. 26 e III 27 III 28 1 !7C! Z!Z/{Y/ r , . . CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: February 5, 2004 TO: Michael Grubbs, Acting City Engineer FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2004-32 At the Mayor and Common Council meeting of February 2, 2004, the City of San Bernardino adopted Resolution 2004-32 - Resolution approving the underground utility installation reimbursement agreement by and among the City of San Bernardino, SBT Partners LLC and Hopkins-HUB Phase 2 LLC relative to the private project component of the construction of underground (dry) utilities at Tippecanoe Avenue and Harriman Place extension. Attached is one (1) original agreement. Please obtain signatures in the appropriate location and return the original agreement to the City Clerk's Office as soon as possible, to my attention. If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you. Michelle Taylor Senior Secretary I hereby acknowledge receipt of the above mentioned documents. Signed: Date: Please sign and return ~-~ r CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: March 4, 2004 TO: Mary Freiberg, Senior Admin. Ops. Supervisor FROM: Michelle Taylor, Senior Secretary RE: Resolution 2004-32 - SBT Partners LLC and Hopkins-HUB Phase 2 LLC CC: Veronica Martinez, Senior Secretary Attached is a fully executed copy of the agreement with SBT Partners LLC and Hopkins-HUB Phase 2 LLC. The original agreement is on file in the City Clerk's Office. If you have any questions, please call me at ext. 3206. .., CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: February 5, 2004 TO: Leslie Crawford, Engineering Assistant I FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2004-33 At the Mayor and Common Council meeting of February 2, 2004, the City of San Bernardino adopted Resolution 2004-33 - Resolution awarding a contract to Irish Construction Corporation for underground (dry) utilities at Tippecanoe Avenue and Harriman Place extension, per Plan No. J0682A. I am providing you with one certified copy of Resolution 2004-33 and four (4) sets of original bound contracts. Please obtain signatures where indicated and return one fully executed original contract to the City Clerk's office as soon as possible. Please be advised that the resolution and contract will be null and void if not executed within 60 days, or by April 2, 2004. If you have any questions, please do not hesitate to contact me at ex!. 3206. Thank you. Signed: e above mentioned documents. I hereby ac Please sign and return. Date: J' . . T CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: February 5, 2004 TO: Leslie Crawford, Engineering Assistant I FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2004-34 At the Mayor and Common Council meeting of February 2, 2004, the City of San Bernardino adopted Resolution 2004-34 - Resolution awarding a contract to Elite Bobcat Service, Inc., for Tippecanoe Avenue widening (Phase III) and Harriman Place widening (Phase III), per Plan No. 10373 B. I am providing you with one certified copy of Resolution 2004-34 and four (4) sets of original bound contracts. Please obtain signatures where indicated and return one fully executed original contract to the City Clerk's office as soon as possible. Please be advised that the resolution and contract will be null and void if not executed within 60 days, or by April 2, 2004. If you have any questions, please do not hesitate to contact me at ex!. 3206. Thank you. Signed: e recei~;iOft~bOVe mentioned documents. ) Please sign and return. Date: l Taylor Mi From: Sent: To: Subject: r Taylor_Mi Monday, March 29, 2004 8:08 AM Crawford_Le Contracts Good morning, Leslie, What is the status of the contracts with Irish Construction and Elite Bobcat? Thanks and have a blessed day! Michelle Taylor Sr. Secretary, City derk's Office (909)384-5002, ext. 3206 TAYLOR..- M!@)SBGTY.oRG 1 , <4. ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM 'W)L\~33 Meeting Date (Date Adopted): L- z-oY Item # 110 Resolution # Vote: Ayes 1- ~ Nays g- Abstain &- Change to motion to amend original documents 0 Companion Resolutions Absent c;;. NulIIVoid After: 100 days I ~ Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: W PUBLISH 0 POST 0 RECORD W/COUNTY 0 By: Date Sent to Mayor: 'l-Lj -0'-{ Date of Mayor's Signature: ;) -$ '01 Date of ClerklCDC Signature: '~- S -6~1 Date MemolLetter Sent for Signature: I" Reminder Letter Sent: Reso. Log Updated: Seal Impressed: g- B-- ::J - S- -0 '-I Date Returned: --5- G.-tI-f Not Returned: 0 2nd Reminder Letter Sent: Yes ./' Yes Yes Yes Yes No By No L- By No ~ By No -oL- By No / B Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): Copies Distributed to: Animal Control 0 City Administrator 0 City Attorney ~ Code Compliance 0 Development Services 0' Others: Notes: [<()Uf\') C(Y\..~ EDA o o ~ o o Information Services 0 Parks & Recreation 0 Police Department 0 Public Services 0 Water Department 0 Facilities Finance Fire Department Human Resources 3 Ready to File: _ Date: Revised 12/18/03 I " ~ t' . . ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM 2COL\ - 3L\ Meeting Date (Date Adopted): 2..- c cH Item # I f) C-- Resolution # Vote: Ayes (-'I Nays B Abstain c.r- Absent ~ Change to motion to amend original documents D Companion Resolutions Null/Void After: &D days 1 4.2:-0'-\ Resolution # On Attachments: D Note on Resoluti.on of attachment stored separately: a- PUBLISH D POST D RECORD W/COUNTY D By: Date Sent to Mayor: 2.:- --{- 0'--/ Date of Mayor's Signature: :;J. S -09 Date ofClerk/CDC Signature: ;)-5-0--( Date MemolLetter Sent for Signature: I" Reminder Letter Sent: Reso. Log Updated: Seal Impressed: Cd-- Q/ j-s'aLI Date Returned: l.{-(,-Ot{ 2nd Reminder Letter Sent: Not Returned: D YesL Yes Yes Yes Yes Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): Copies Distributed to: Animal Control D City Administrator D City Attorney ff Code Compliance D Development Services ff Others: No By No ~ By No...L By No ./ By No / B EDA D Facilities D Finance W Fire Department D Human Resources D Information Services D Parks & Recreation D Police Department D Public Services D Water Department D 3 Notes: . r', ~]'{1f)9 Com-iZAcr Ready to File: _ Date: Revised 12/18/03