Loading...
HomeMy WebLinkAboutCDC/2004-45 (See Companion Resolutions 2004-371, CDC/2004-44) 1 RESOLUTION NO. CDC/2004-45 2 3 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE REDEVELOPMENT GRANT AGREEMENT WITH THE NATIONAL ORANGE SHOW EVENTS CENTER FOR THE ARROWHEAD AVENUE IMPROVEMENTS 4 5 6 7 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 Redevelopment Agency of the City of San Bernardino ("Agency") is a public body, corporate and politic, organized and existing under the California Community Redevelopment Law (the "CRL"); the CRL is found at Health and Safety Code Section 33000, et seq.; and 8 9 10 11 12 13 14 WHEREAS, the Community Development Commission of the City of San Bernardino (the "Commission") is the governing board of the Agency; and 15 16 WHEREAS, the Agency, together with the City, desires that necessary street, landscaping and infrastructure improvements be made to Arrowhead A venue near the location of the National Orange Show Events Center (the "Orange Show") in order to address conditions of visual blight due to the absence of curb, gutter and sidewalk and the lack of any landscaping (the "Project"); and 17 18 19 20 21 WHEREAS the County of San Bernardino ("County") has entered into an agreement with the City dated as of November , 2004 (the "County Agreement"), whereby the 22 23 County agrees to contribute an amount not to exceed $64,000 to the City upon invoice for certain costs of materials for the completion of the Project; and WHEREAS, the Agency concurrently desires to provide for the advance of up to an additional $64,000 of Agency funds to the Orange Show for materials for the Project (the "Agency Grant"), which Agency Grant, together with the County contribution will provide for a total of $128,000 in total funding toward materials to be purchased for the Project; and 24 25 26 27 28 4811-0471-7824.14811-0471-7824.1 1 P:\Agendas\Resolutions\Resolutions\2004\04-11-01 Arrowhead Ave Grant Agnnt. CDC Reso_doc CDCj2004-45 1 WHEREAS, the Agency seeks to enter into an agreement setting forth the terms under which it shall advance such $64,000 Agency Grant to the Orange Show; and WHEREAS, it is appropriate for the Commission to take action with respect to approving and entering into such a Redevelopment Grant Agreement with the Orange Show. NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS FOLLOWS: 2 3 4 5 6 7 Section 1. The above recitals are true and correct and incorporated herein by 8 reference. 9 Section 2. The Commission hereby approves the Agency entering into a Redevelopment Grant Agreement with the Orange Show for the purpose of purchasing and procuring materials by the Orange Show to be used for the Project, subject to the conditions and restrictions set forth in said Redevelopment Grant Agreement which is entitled "Redevelopment Grant Agreement (National Orange Show Events CenterlArrowhead Avenue Street Improvements)" (the "Grant Agreement"). Section 3. The Commission hereby approves the Grant Agreement and authorizes and directs the Agency Chairperson to execute the Grant Agreement and any other documents 10 11 12 13 14 15 16 required thereby. 17 Section 4. This Resolution shall take effect upon adoption. The Agency Assistant 18 Secretary shall certify the adoption of this Resolution. 19 /II 20 1/1 21 /II 22 /II 23 /II 24 /II 25 1/1 /II 26 /II 27 /II 28 4811-0471-7824.14811-0471-7824.1 2 P:\Agendas\Resolutions\Resolutions\2004\04-11-01 Arrowhead Ave. Grant Agrmt. CDC ResQ,doc CDC/2004-45 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE REDEVELOPMENT GRANT AGREEMENT WITH THE NATIONAL ORANGE SHOW EVENTS CENTER FOR THE ARROWHEAD AVENUE IMPROVEMENTS 2 3 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 6 Community Development Commission of the City of San Bernardino at a 7 meeting thereof, held on the 15 th day of November, 2004, by the following vote, to wit: 8 9 Commission Members Ayes Nays 10 ESTRADA X 11 LONGVILLE X - 12 MCGINNIS X 13 DERRY X - 14 KELLEY X 15 JOHNSON -X- 16 MC CAMMACK X 17 Abstain Absent 18 tj;;:z/ / / Secretar 19 20 21 The foregoing resolution is hereby approved this ~~_ day of November ,2004. 26 Approved as to Form and Legal Content: 22 23 24 25 27 28 By: ~~ S p~(" le\ ~I C~""'s~J 4811-0471-7824.14811-0471-7824.1 3 P:\Agendas\Resolutions\Resolutions\2004\04-ll-Ol Arrowhead Ave. Grant Agrmt. CDC Reso.doc CDC/2004-45 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO REDEVELOPMENT GRANT AGREEMENT (National Orange Show Events Center/Arrowhead Avenue Improvements) THIS REDEVELOPMENT GRANT AGREEMENT (this "Grant Agreement") is made this 15 day of November, 2004, by and between the National Orange Show, a State agency (the "Grantee"), and the Redevelopment Agency of the city of San Bernardino, a public body corporate and politic, pursuant to Health and Safety Code Sections 33000, et seq. (the "Agency"), with respect to the following facts: RECITALS WHEREAS, that portion of Arrowhead Avenue that is situated near the location of the National Orange Show Events Center (the "Orange Show") is a visual blight due to the absence of curb, gutter and sidewalk on the east side of said street, the absence of sidewalk on the west side of said street and the lack of any landscaping on either side of Arrowhead Avenue; and WHEREAS, the Agency desires that the necessary street improvements, specifically the construction of a sidewalk on the west side of Arrowhead Avenue, the construction of curb, gutter and sidewalk on the east side of Arrowhead A venue, and the installation of a green belt or other suitable landscaping treatments on both sides of Arrowhead Avenue, be made in order to address these conditions (the "Project"), with the general location of the Project being depicted on attached Exhibit "A"; and WHEREAS, the County of San Bernardino (the "County") has entered into an agreement with the City whereby the County agrees to contribute an amount not to exceed $64,000 to the City upon receipt of appropriate invoices for certain costs of construction materiais : : furtherance ofthe completion of the Project, which agreement is dated as ofNovember~, 2004 (the "County Agreement"); and WHEREAS, concurrently with the execution and delivery of the County Agreement, the Agency desires to provide grant of funds for the remittance of not to exceed $64,000 of additional funds of the Agency to the Grantee for the purchase or procurement of materials for the Project, which Agency grant, together with the County contribution will provide for a total of $128,000 in County and Agency funding towards materials to be purchased or procured for the Project, and the Agency has committed for cash flow purposes to assist the Grantee with the interim payment of Project costs for materials acquired by the advance of an additional $64,000 for the periodic payment of invoices received as by the Grantee for materials purchased by the Grantee prior to the completion of the Project and the submission of the invoices to the County pursuant to the County Agreement; and WHEREAS, the Agency seeks to set forth the terms and conditions pursuant to which the Agency shall advance said funds to the Grantee to assure that both the Agency funds and the funds to be obtained pursuant to the County Agreement are properly used and applied in furtherance of the Project. 4815-2414-8224.1 1 P'lAgcndaslAgrcemcnts-AmendmcntslAgrnts-Amend 2004\04-11-15 Gr.lnl All'cemcnl EDA Ontnge Show(2) I. doe CDCj2004-45 NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE GRANTEE AND THE AGENCY HEREBY AGREE, AS FOLLOWS: Section 1. Recitals. The Recitals of this Grant Agreement are true and correct and are incorporated herein by this reference. The information and facts set forth in the Recitals are material to this Grant Agreement. Section 2. Aeencv Grant: County Grant. (a) The Agency shall provide the Grantee with, and the Grantee hereby agrees to receive, not to exceed a maximum of $64,000.00 from the Agency as a grant from Agency sources of funds (the "Agency Grant") for construction materials to be purchased or procured in furtherance of the Project by the Grantee, subject to the conditions and restrictions set forth in this Grant Agreement. The Agency Grant shall not be increased under any circumstances notwithstanding any increase costs for materials and supplies or costs overruns with respect to the costs of implementation of the Project which may exceed the anticipated Project cost amount of $261,468.75 as estimated in Section 3.3 of the County Agreement. (b) In addition to the Agency Grant as specified in subsection (a) above, the Agency has entered into a certain agreement with the City of San Bernardino whereby the funds which are to be administered by the City in an amount not to exceed $64,000.00 (the "County Grant") pursuant to the County Agreement shall also be made available by the Agency to the Grantee for use by the Grantee in the purchase and procurement of materials required in furtherance of the Project. The Grantee has reviewed the County Agreement and is aware of the provisions thereof, and the Grantee further covenants and agrees to comply with all aspects of the County Agreement as the same pertains to the use of the County Grant in furtherance of the payment of a portion of the costs of the Project. In the event the County should refuse to payor reimburse th County Grant funds to the City and/or the Agency for the ultimate use and disposition by th.. Grantee, neither the City nor the Agency shall have any liability whatsoever for any refusal of the County to disburse the County Grant funds if the reason for such refusal pertains to the manner in which materials for the Project were purchased or procured or for any other irregularity alleged by the County in the manner in which the Project was undertaken by the Grantee. (c) The Agency Grant proceeds shall be disbursed by the Agency from time to time to either the Grantee or directly to material suppliers in accordance with invoices submitted to the Grantee for the purchase or procurement of materials for the Project. No portion of the Agency Grant proceeds shall be disbursed to the Grantee prior to the submittal to the Agency of an invoice by the Grantee that either has been paid by the Grantee or is required to be paid by the Grantee in accordance with the terms of such invoice. The Agency Grant proceeds shall be used and applied solely in the manner to either reimburse the Grantee for expenditures incurred and paid by the Grantee for the purchase or procurement of materials for the Project or the direct payment by the Agency to the material suppliers as specified on each invoice. (d) The County Grant proceeds shall only be disbursed by the County upon the receipt by the Agency of an invoice from the Grantee for the purchase or procurement of materials for the Project which invoice shall be forwarded by the Agency to the City for the City to then 4815-2414-8224.1 2 PolAgendaslAg=m<nts-AmcndmenlS\AgnTU.Amend 2004104-11-15 Grant Ag=ment EDA Orange Sbow(2) 1.doc CDC/2004-45 forward to the County for disbursement of the County Grant proceeds in accordance with the County Agreement upon the completion of the Project as specified in Section 1.2 of the County Agreement. However, the Agency agrees to advance its own funds in an amount not to exceed $64,000 in a manner substantially similar to that as provide in subsection (c) above upon receipt of periodic invoices from the Grantee prior to the completion of the Project and prior to the conditions set forth in the County Agreement having been satisfied for the disbursement of the County Grant. Section 3. Use of Grant Funds: Restrictions. (a) The Grantee covenants that it shall expend the Agency Grant funds and the County Grant funds solely for the purchase or procurement of materials such as concrete and irrigation supplies and materials for the Project, consisting of the following: (I) construction of a sidewalk on the west side of Arrowhead A venue commencing at Mill Street (in the vicinity of the Fire Station) and continuing south connecting with existing sidewalks at Orange Show Gate No.9, (2) the construction of curb, gutter and sidewalk improvements on the east side of Arrowhead Avenue commencing south of Esperanza Street continuing south and connecting with existing sidewalks one block south of Central Avenue, and (3) the installation of a green belt on both sides of Arrowhead Avenue to include the planting and installation of grass, orange trees and associated irrigation systems. The Grantee agrees that the Agency Grant proceeds and the County Grant proceeds shall not be used for any purposes other than those as set forth herein. In the event that the Grantee has been dissolved or otherwise ceases to exist, this Grant Agreement shall thereafter have no further force and effect and nothing contained herein shall thereafter be binding upon the Agency or the Grantee. The Grantee shall adhere to all purchasing procurement policies and practices that are applicable to the Grantee as a State agency pursuant to California law for the undertaking of a construction activity such as the Project on a public right-of-way within Arrowhead Avenue. It is recognized that the Grantee intends to contract with various general contractors and trade labor organizations to provide labor and equipment necessary for the completion of the Project in addition to the purchase or procurement of the materials with the proceeds of the Agency Grant funds and the County Grant funds. None of the proceeds of either the Agency Grant or the County Grant shall be used or applied for the payment of any labor or equipment costs, but such proceeds shall be used and applied solely for the purchase or procurement of materials subject to such documentation as may be reasonably required by the County, the City and the Agency as a condition precedent to the disbursement of any portion of the Agency Grant and the County Grant. (b) Upon the completion of the Project by the Grantee, the Grantee shall provide the Agency with a Notice of Completion stating the amount of the entire Project costs and a summary of the use and application ofthe Agency Grant funds and the County Grant funds. The Agency reserves the right to audit any and all expenditures associated with the use and application of the Agency Grant funds and County Grant funds at its sole cost and expense. In the event there are any irregularities in the use of such funds, the Grantee shall then be obligated to reimburse the Agency for all costs associated with such audit in addition to the amount of any Agency Grant funds or County Grant funds that were not expended in accordance with the requirements of this Grant Agreement or the County Agreement. (c) Neither the County, the Agency nor the City shall be responsible for any Project costs for labor or materials or for alleged non-compliance by the Grantee with any provisions of State law with respect to the undertaking of the Project within a City public right-of-way. The 4815-2414-8224.1 3 p,IAgcndas\Agreemcnls-Amendmcnts\Agmn-Amc1ld 2004\04-11-15 Granl Al!'eemcnl BDA Orange Show(2)I.doc CDC/2004-45 Grantee shall defend and hold hannless the County, the City and the Agency from all costs and expenses with respect to all work performed and materials acquired in furtherance ofthe Project. (d) All proceeds of the Agency Grant and the County Grant shall be used on or before one (1) year from and after the date of this Grant Agreement. Failure or inability of the Grantee to so use and apply such proceeds in furtherance of the Project by such date shall relieve the Agency of any further duty or obligation under this Grant Agreement to provide for any further disbursements ofthe Agency Grant and/or of the County Grant. Section 4. Al!encv Cooperation; Role of City. The Agency agrees that it shall cooperate with the City with respect to the Grantee obtaining any and all necessary inspections, surveys and permits related to the Project. The Grantee recognizes that Arrowhead Avenue is a City public right-of-way and as such the City has the sole authority to issue licenses and permits and to approve construction plans and designs for all aspects of the Project that are intended to be located within the City public right-of-way in Arrowhead Avenue. The Grantee may enter into any other separate agreement for any additional construction related services that the Grantee may seek from the City independent of what is provided in this Agreement. The Grantee further agrees to construct and install or cause to be constructed and installed all aspects ofthe Project in accordance with City approved plans and specifications. Section 5. Maintenance Oblil!ations for Landscapinl! Improvements; Insurance. (a) In consideration of the receipt of the Agency Grant, the Grantee hereby agrees that it shall be solely responsible for the maintenance, care and replacement of all landscaping materials, trees, irrigation systems and other similar improvements that are installed within the public right-of- way comprising the Project to be undertaken by the Grantee pursuant to this Grant Agreement within Arrowhead Avenue. Such maintenance obligation on the part of the Grantee shall extend until the parties to this Grant Agreement provide otherwise by written agreement, and such obligation as incurred by the Grantee pursuant to this Grant Agreement shall be enforceable by the Agency or the City as against the Grantee. The Agency or the City may obtain such remedies to enforce this maintenance obligation including specific performance and damages as may be awarded by a court in the event the Grantee should fail to fulfill any obligations required by this Section. The Grantee agrees and shall further defend, indemnify and hold hannless both the City and the Agency from all claims arising from any matters related to the maintenance obligation of the Grantee and the location, replacement, operation and maintenance of all landscaping materials and irrigation systems installed within the public right-of-way of Arrowhead Avenue which comprise the Project. (b) The Grantee agrees to defend and protect the Agency and the City of San Bernardino, their governing boards, commissions, agents, officers, employees and authorized representatives, against all claims and liability for death, injury, loss and damage resulting from the Grantee's actions in connection with the Agency Grant and the Project during the construction phase thereof, including, thereafter, the ongoing maintenance of the landscaping areas, and shall secure and maintain insurance, as described below. No disbursement of the Agency Grant shall be paid to the Grantee, until the Grantee provides the required policies and/or certificates evidencing the insurance required by this Grant Agreement to the Agency/City and the Agency/City through the Chairperson/Mayor approve such evidence of insurance. The Grantee shall pay any deductibles and self-insured retentions under all insurance policies in satisfaction of the terms of this Grant Agreement. 4815-2414-8224.1 4 P:\Agendasl.A8feemcnts-Amcndmcnts\AgnT<s-Amend 2004104-11-15 Gnlnt Ag=mcnl EDA Orange Show(2)1.doc CDC/2004-45 A. Workers' Compensation Insurance Requirement: The Grantee shall submit written proof that the Grantee is insured against liability for workers' compensation in accordance with the provisions of section 3700 of the Labor Code. By executing this Grant Agreement, the Grantee makes the following certification, required by section 1861 of the Labor Code: "The undersigned representatives of the Grantee are aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and the Grantee will comply with such provisions before commencing the performance of the work anticipated under the Grant Agreement." (1) The Grantee shall require each contractor and sub- contractor to provide workers' compensation coverage for all of such contractor's or sub- contractor's employees, unless the employees of the contractor or sub-contractor are covered by workers' compensation insurance provided by the Grantee. If any class of employees engaged in work or services performed in connection with the Project is not covered by Labor Code Section 3700, the Grantee shall provide and/or require each contractor or sub-contractor to provide adequate workers' compensation insurance covering such employees. B. Liability and Permanent Insurance Requirements: (1) The Grantee shall maintain in full force and effect, at all times during the term of this Grant Agreement and while the Grantee retains the maintenance obligations for the landscaping and irrigation systems within the public right-of-way of Arrowhead Avenue, the following insurance: (a) Commercial General Liability Insurance coverage, including, but not limited to, Premises-Operations, Contractual Liability Insurance (specifically concerning the indemnity provisions of this Grant Agreement), Products-Completed Operations Hazards, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of the construction of the Project and/or the Grantee's operation and maintenance of the Project. Said insurance coverage shall have minimum limits for Bodily Injury and Property Damage liability of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. (b) If the Grantee hires a consultant to provide design services, such as architectural or engineering services in connection with the Project, the Grantee shall require such consultant to provide Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, the performance of such design services, with limits of not less than ONE MILLION DOLLARS ($1,000,000). C. During the construction of the Project, the Grantee shall require that all contractors performing work on the Project maintain the following insurance coverage at all times during the performance of said work: 4815-2414-8224.1 5 P,lAgendaslAgreemems.Amendrncnts\AgmU-Amend 2004104-11-1 S Granl Agreement EDA Orange Show(2) I doc CDC/2004-45 (1) Builder's Risk Insurance to be written on an All Risk Completed Value form, in an aggregate amount equal to 100% of the completed insurable value of the Project, including materials to be acquired and installed within the public right-of-way of Arrowhead Avenue. (2) Commercial General Liability Insurance with limits of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate to protect the Grantee during the construction of the Project from claims involving bodily injury and/or death and damage to the property of others. D. The Commercial General Liability Insurance required in sub- paragraph B., above, shall include an endorsement naming the Agency and the City of San Bernardino, their board members, and their officials, officers, agents, and employees as additional insureds for liability arising out of this Grant Agreement and any operation related to this Grant Agreement. E. If any of the insurance coverage required under this Grant Agreement is written on a claims-made basis, such insurance policy shall provide an extended reporting period continuing through the period of time that the Grantee continues to have the obligation to maintain the landscaping as shall be constructed within the public right-of-way of Arrowhead Avenue. F. Receipt of evidence of insurance that does not comply with the above requirements shall not constitute a waiver of the insurance requirements of this Grant Agreement. G. The above stated insurance coverage shall be maintained by tne Grantee or its contractors, as required by the terms of this Grant Agreement, until the completion of all of the Grantee's obligations under this Grantee Agreement, including the continuing maintenance obligation for the landscaping and the irrigation systems, and shall not be reduced, modified, or canceled without thirty (30) days' prior written notice to the Agency and City. Also, phrases such as "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall not be included in the cancellation wording of any Certificates of Insurance or any coverage for the Agency/City, their board members, officials, agents, and employees. The Grantee shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits are exhausted or upon insolvency ofthe insurer that issued the policy. H. All insurance to be obtained and maintained by the Grantee under this Grant Agreement shall be issued by a company or companies listed in the current "Best's Key Rating Guide, Property/Casualty" publication with a minimum of a "B+NII" rating and be a California admitted insurance company. I. If the Grantee is or becomes self-insured, during the term of this Grant Agreement, the Grantee shall provide coverage equivalent to the insurance coverages and endorsements required above. The Agency/City will not accept such coverages unless the Agency/City through the official action of their governing body determine, in their sole 4815-2414-8224.1 6 P;\Agendas\Agreements-Amendmencs\AgrnU-Amend 2004\04.11.) S Grant Agreement EDA Orange Show(2) I.doc CDC/2004-45 discretion and by written acceptance, that the coverage proposed to be provided by the Grantee is equivalent to the above-required coverages. A determination by the Agency/City that proposed self-insurance coverage is not equivalent to require coverages will be communicated to the Grantee in writing by the Agency/City, along with the reasons for such determination. J. All insurance obtained and maintained by the Grantee in satisfaction of the requirements of this Grant Agreement shall be primary to and not contributing to any other insurance maintained by the Agency/City. K. Insurance coverage in the minimum amounts set forth in this Grant Agreement shall not be construed to relieve the Grantee of any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the Agency/City from taking such other actions as are available to them under any other provision of this Grant Agreement or otherwise at law. L. Failure by the Grantee to maintain all insurance required by this Grant Agreement in effect at all times shall be an Event of Default by the Grantee. The Agency/City, at their sole option, may exercise any remedy available to it in connection with such an Event of Default. Additionally, the Agency/City may purchase such required insurance coverage and the Agency/City shall be entitled to immediate payment from the Grantee for any premiums and associated costs paid by the Agency/City for such insurance. Any election by the Agency/City not to purchase insurance for the Grantee shall not relieve the Grantee of its obligation to obtain and maintain the insurance coverage required by this Grant Agreement. Section 6. Time of Essence. Time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof and failure to timely perform any of the terms, conditions, obligations or provisions hereof by either party shall constitute a material breach of and a default under this Grant Agreement by the party so failing to perform. Section 7. No Waiver. Failure to exercise any right the Agency may have or be entitled to, in the event of default by the Grantee hereunder, shall not constitute a waiver of such right or any other right, in the event of a subsequent default by the Grantee. Section 8. Events of Default. a. By Agency. Failure or refusal of the Agency to disburse the Agency Grant proceeds or the County Grant proceeds, as set forth herein, shall constitute a default by the Agency other than if such failure or refusal to disburse is for cause as shall be stated in writing by the Agency delivered to the Grantee. b. By Grantee. Failure to use the Agency Grant proceeds and the County Grant proceeds in the manner and for the purposes as set forth herein and for failure of the Grantee to fulfill all maintenance oblations and insurance required pursuant to Section 5 hereof. c. By Either Party. Failure or delay by either party to perform any material term or provision of this Grant Agreement shall constitute a default under this Grant Agreement; provided, however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within thirty (30) calendar days after 4815-2414-8224.1 7 H~cendasIAjveemenls-AmendmcnlslAgmu.Amend 2004\04-11-15 Grant Ag<eement EDA OnonCc Show(2) I.doe CDC/2004-45 receipt of written notice specifying such default and diligently pursues such cure, correction or remedy to completion, such party shall not be deemed to be in default hereunder. d. Notice of Default. The party that may claim that a default has occurred shall give written notice of default to the party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice as specified herein. e. Rights and Remedies. Any failure or delay by a party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. Except with respect to rights and remedies expressly declared to be exclusive in this Grant Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. f. Breach. In the event that a default of either party may remain uncured for more than thirty (30) calendar days following written notice, as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the party who is not in default shall be entitled to terminate this Grant Agreement by serving written notice of such termination on the other party. g. Additional Rights and Remedies of Parties. Upon default by the Grantee: (i) the Agency shall be released from any further obligations under this Grant Agreement; provided, however, that the Agency shall not be released from its obligation to remit any and all advances as may have been previously submitted by the Grantee to the Agency for payment under this Grant Agreement and to which such default does not apply, and (ii) the Agency may seek appropriate legal or equitable relief. Upon a default by the Agency, the Grantee may institute any proceeding at law or in equity to enforce the obligations of the Agency under this Agreement. In any action arising under this Agreement among the parties hereto, the prevailing party or parties shall be entitled to reimbursement from the other party or parties of all costs and expenses, including reasonable attorney's fees, in bringing such action. If either party hereto files any action or brings any action or proceeding against the other arising out of this Grant Agreement, or is made a party to any action or proceeding brought by the any other person or governmental agency, then as between the Grantee and the Agency, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the Court in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Grant Agreement shall be considered as "attorney fees" for purposes of this Section. Section 9. Further Assurances. The Grantee shall execute any further documents consistent with the terms of this Grant Agreement, including documents in recordable form, as the Agency shall from time-to-time deem necessary or appropriate to effectuate its purposes in entering into this Grant Agreement and making the Agency Grant and the County Grant. 4815-2414-8224.1 8 P,lAgendas\Aaf=nenls.AmendmenulAgnro..Amcnd 2004\04-11.15 Gnlnt Aareemen' EDA Orange Show(2)Ldoc CDCj2004-45 Section 10. Governinl! Law. The Grantee hereby agrees to comply with all ordinances, rules and regulations of the Agency and the County for the use and disbursement of the Agency Grant and the County Grant. Nothing in this Grant Agreement is intended to be, nor shall it be deemed to be, a waiver of any City ordinance, rule, or regulation or other applicable provisions of State law. This Grant Agreement shall be governed by the laws of the State of California. Any legal action brought under this Grant Agreement must be instituted in the Superior Court of the County of San Bernardino, San Bernardino District, State of California, or in the Federal District Court in the Central District of California. Section 11. Amendment of Grant Al!reement. No modification, rescission, waiver, release or amendment of any provision of this Grant Agreement shall be made except by a written agreement executed by the Grantee and the Agency and duly approved by the governing bodies of each such party. Section 12. No Assil!nment of Grant Al!reement Bv Grantee. The Grantee may not assign or transfer any portion of this Grant Agreement, without the prior express written consent of the Agency, which consent may be given or withheld at the sole discretion of the Agency. No assignment of the Agency Grant, the County Grant or this Grant Agreement shall be permitted under any circumstances. Section 13. Notices. Any notices, requests or approvals given under this Grant Agreement from one party to another may be personally delivered, delivered by nationally recognized overnight delivery service or deposited with the United States Postal Service for mailing, postage prepaid, registered or certified mail, return receipt requested to the following address: To Grantee: National Orange Show 689 South "E" Street San Bernardino, CA 92405 Attn: General Manager To Agency: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attn: Agency Chairperson with a copy to: Lewis Brisbois Bisgaard & Smith LLP 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Attention: Timothy J. Sabo Phone: (909) 387-1130 Fax:: (909) 387-1138 Communications delivered personally or by nationally recognized overnight delivery service shall be effective upon such delivery. Communications sent by United States Mail shall be effective on the third business day following their deposit for mailing with the United States 4815-2414-8224.1 9 P:\Agendas\Agreements.Amendments\Agmts-Amend 2004\04-11-15 Grant Agreement EOA Orange Show(2) t.doc CDC/2004-45 Postal Service. Either party may change its address for notice by giving written notice thereof to the other party. Section 14. Attornev's Fees and Costs. If any action is instituted to enforce payment or performance under this Grant Agreement, the parties hereby agree that the prevailing party shall be entitled to all costs and all attorneys' fees incurred by such prevailing party in enforcing this Grant Agreement. As further provided in Section 7.g. hereof, the costs, salary and expenses of the City Attorney and members of his office in enforcing this Grant Agreement shall be considered as "attorney fees" for purposes of this Section 14 and said Section 7.g. and for all other purposes under this Grant Agreement. Section 15. Partial Invaliditv. If any term or provision or portion of this Grant Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Grant 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 Grant Agreement shall be valid and enforced to the fullest extent permitted by law. Section 16. No Intent to Create Third Partv Beneficiaries. The parties intend that the rights and obligations under this Grant Agreement shall benefit and burden only the parties hereto, and do not intend to create any rights in, or right of action to or for the use or benefit of any third party, including any governmental agency, which is not one of the parties to this Grant Agreement. Section 17. Entire A2reement. This Grant Agreement (including all Exhibits attached hereto) is the final expression of, and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. This Grant Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein. This Grant 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. Section 18. Construction. Headings at the beginning of each Section are solely for the convenience of the parties and are not a part of this Grant Agreement. Whenever required by the context of this Grant Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Grant 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 Grant Agreement. All exhibits referred to in this Grant Agreement are attached hereto and incorporated herein by this reference. Section 19. Counterparts. This Agreement may be executed in one or more counterparts, each of which will constitute an original and all of which together shall constitute a single instrument. 4815-2414-8224.1 10 P,\AgendulAgreemenls-AmcndmcntslAgmu-Amcnd 2004\04-11-15 Grant Agreemenl EOA Onong< Show(2)l.doc CDC/2004-45 IN WITNESS WHEREOF, the National Orange Show and the Redevelopment Agency of the City of San Bernardino executed this Grant Agreement as of the dates written next to the signatures of their duly authorized representatives, below. Date: / / / A q /0<1 . Date: 11/:<''1/01 I Date: I~ I 4815-2414-8224.1 GRANTEE National Orange Show a State Agency Secretary AGENCY P:\Agendas\AgJ<ements-AmcndmentslAgmts-Amend 2004\04-11-15 Grant Ag=ment EDA Orange Show(2) I.doc 11 CDC/2004-45 EXHIBIT "A" GENERAL LOCATION OF THE PROJECT 4815-2414-8224.1 2 P,lAgendas\AiJ=nenls-Amcndmcn"\Agrmls-Amcnd 2004\04-11-15 Grant Agreement EDA Orange Show(2) I.doc CDC 2004-45 City of San Bernardino, California Department of Public Works, Division of Engineering VICINITY MAP STREET IMPROVEMENTS ON ARROWHEAD A VENUE FROM HUFF ST TO HILLCREST AVE w 607 TENNIS ~- 0 100 LN 0 ,0 ::< ~\ is ; ! I , "'I C 100 '" ;;Sl :J1'i ~L~_~Rt! E ProNEER ~ J 1;---700 ~I VICINITY MAP N. T. s.