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HomeMy WebLinkAbout17-Development Services CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION From: James Funk, Director ORIGIN~t Resolution authorizing an Agreement with J. R. Watson Development Company for Grading of Campus Parkway between Kendall Drive and Northpark Boulevard. Dept: Development Services Date: 07/25/2003 File No.: MCC Date: August 18,2003 Synopsis of Previons Council Action: 7/10/00 Allocated $400,000 for street improvements of Pepper Linden (now known as Campus Parkway) from Kendall Drive to Northpark Blvd, and shared traffie analysis with CSUSB as part of the FY 2000/01 CIP Budget. 11/06/00 Mayor and Common Couneil approved a Memorandum of Understanding between the City of San Bernardino and CSUSB to conduct a traffic study. 11120/00 Mayor and Common Council approved authorization to execute Agreement with Korve Engineering, Inc. for Civil Engineering Services for street improvements of Pepper Linden (now known as Campus Parkway) from Kendall Drive to Northpark Blvd. 7/15/02 Mayor and Common Council approved the CIP Budget for FY 2002/03 and increased the allocation to $\00,700 for design, property acquisition, and partial construction for Phase I extension of Pepper Linden (now k IOwn as Campus Parkway) from Kendall Drive to Northpark Blvd. 5/19/03 Resolutions of Necessity were adopted for acquisition of three parcels relative to the extension of Pepper Linden Drive (now known as Campus Parkway). 5/19/03 The Negative Deelaration was adopted for street improvements to Pepper Linden Drive (now known as Campus Parkway) from Kendall Drive to Northpark Blvd. and installation of traffic signal at.Pepper Linden Drive and Kendall Drive. 6/02/2003 Redevelopment Agency adopted CDC/2003-20 - A Resolution of the Community Development Commission, as the governing body of the Redevelopment Agency, approving the purchase of certain property from the City of San Bernardino and the disposition of said property to I. R. Watson & Associates Development Co. and approving that certain Disposition and Development Agreement by and between the Redevelopment Agency and J. R. Watson & Associates Development Co.; and adopted Resolution No. 2003-120 - A Resolution of the Mayor and Common Council approving that certain Purchase and Sale Agreement by and between the City of San Bernardino and the Redevelopment Agency of the City of San Bernardino relating to property located at the northwest comer of University Parkway and Northpark Boulevard in the city of San Bernardino. Recommended motion: Adopt Resolution. -~~. Contact person: James Funk, Director Phone: 3328 Supporting data attached "t~ffRp.r()rt Rp....oll1firm Agrppmpnt Ward: , FUNDING REQUIREMENTS: Amount. Source: (Acct. No.) Agenda Item I 'l AL~ t 17 q I J-J03 (Acct. Description) Finance: M I Council Notes: CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT Subiect: Resolution authorizing an Agreement with J. R. Watson Development Company for Grading of Campus Parkway between Kendall Drive and Northpark Boulevard. Backl!round: On May 6, 2003, the Planning Commission approved a request to subdivide approximately 117 acres into 158 lots for development of 153 single family homes with a minimum lot size of 10,800 square feet, with said residential development abutting a portion of proposed Campus Parkway. On June 2, 2003, the Mayor and Common Council approved the purchase and sale agreement by and between the City of San Bernardino and the Redevelopment Agency of the City of San Bernardino relating to property located at the northwest comer of University Parkway and Northpark Boulevard. On the same date, the Community Development Commission approved the purchase of the site of the subject development from the City of San Bernardino and the disposition of said property to J. R. Watson & Associates Development Co., and approved a Disposition Agreement by and between the Redevelopment Agency of the City of San Bernardino and J. R. Watson & Associates Development Co. The Planning Commission's Conditions of Approval included, among several other requirements, the following: I) Fair Share Traffic Improvements Contribution: Based on the Traffic Impact Analysis, the Traffic Engineer has determined that the percentage of trip contribution identified in the analysis (9 - 11 %) shall be the basis for off-site fair share contribution. Therefore, the developer shall contribute 10 percent toward the cost of off-site improvements. The total fair share is $35,000.00. 2) Traffic Systems Fee: The Traffic Systems Fee to be collected from the developer/property owner for the 153 single-family homes is $40,833.00. 3) Traffic Fee Credits: Subject to the approval of an agreement by the Mayor and Common Council, the developer/property owner shall be credited (relieved of the requirement to pay) an amount not to exceed $275,000.00, including the above mentioned Fair Share Traffic Improvements Fee of $35,000.00 and the Traffic Systems Fee of $40,833.00, and including possible future Fair Share Traffic Impact Fees and Traffic System Fees (which may result from future commercial development of the remaining approximately 117-acres of the subject property), provided the developer/property owner conducts and completes the following: 2 a) Redesigns the existing plans for the alignment of Campus Parkway at its approach to Northpark Boulevard to make possible the ease of future connection with CSUSB's planned street (extension of Campus Parkway) proposed to be located to the northeast of Northpark Boulevard which would result in an estimated cost savings of $5,000.00 to the City; b) Provides soil and compacts said soil in accordance with the above mentioned redesign to make possible the connection with CSUSB's planned street proposed to be located to the northeast of Northpark Boulevard which would result in an estimated cost savings of $50,000.00 to the City; and c) Grades the entire right-of-way for Campus Drive from Kendall Drive to Northpark Boulevard at the time of grading the developer/property owner's abutting residential project site which will result in a savings to the City of approximately $356,000.00 in the cost of grading for Campus Parkway. 1 he trade-off of utilizing Traffic System fees for Campus parkway is consistent with the principle of using such fees for improvements to the greater/more regional transportation circulation system. Campus Parkway is a secondary arterial highway that has significantly greater impact and value to the City's overall circulation system than a local street. Campus Parkway is identified as part of the City's Circulation Element of the General Plan. Eventually, Campus Parkway will extend southwest to the 215 Freeway and beyond, connecting portions of the city northeast of the 215 Freeway to portions of the city southwest of the 215 Freeway. Plus, eventually Campus Parkway will extend east from Northpark Boulevard, around the backside of CSUSB, to Little Mountain Drive. The redesign of Campus Parkway at the expense of the developer/property owner, contribution of soil and compaction of said soil by the developer/property owner to make possible the construction of Campus Parkway to benefit CSUSB in accordance with the redesign of Campus Parkway, and the coordination and completion of grading by the developer/property owner of the entire right-of-way of Campus Parkway at the time of grading of the developer's residential project site will achieve the following: 1) Assist the mitigation of future increases in traffic resulting from the future expansion of CSUSB; 2) Reduce and/or eliminate possible undesirable impacts of separating the timing of grading of Campus Parkway and grading of the proposed residential project; 3) Speed completion of Campus Parkway for the benefit of the community, future residents ofthe project, and CSUSB students; 4) Expedite the benefit of the completed road to the public; 5) Eliminate the negative impact of noise caused by completion of grading of Campus Parkway after residents are occupying homes in University Parkway; 3 6) Hasten the expansion oftwo lanes of Campus Parkway to four lanes; 7) Help reduce construction activity and traffic from a possible significant effect on the environment to a less than significant impact; 8) Indirect reduction of safety hazards to vehicles, pedestrians, and bicyclists currently utilizing University Parkway; and 9) Significantly reduce the City's cost to construct Campus Parkway and related Northpark Boulevard improvements. The Acting City Engineer reviewed the work proposed to be performed by J. R. Watson & Associates Development Co. (on behalf of the City in the construction of Campus Parkway) and has confirmed that the savings to the City is estimated to significantly exceed $411,000 and could easily approach $630,100. Plus, if Watson conducts the work at the time of grading the adjacent site for residential development, the City would save staff time involved in the cost of bidding, contract administration, and construction oversight. 1. R. Watson & Associates would pay prevailing wage and file payroll records with the Development Services Department to allow appropriate verifications. City staff would remain responsible for inspection of the work and verification of prevailing wage. The FY 2002/03 CIP identified $508,000 for design, property acquisition, and partial road construction of Pepper Linden (now known as Campus Parkway). The total cost of the project (construction of a four-lane road extending from Kendall to Northpark) is estimated to be $1,600,000. The current sum in the FY 2002/03 CIP of $508,000, together with $300,000 p"oposed to be added as part of the FY 2003/04 CIP, plus soils importation and the grading valued in excess of $411,000, will make possible construction of a significant portion of the entire street now. The remaining improvements required to complete Campus Parkway are estimated to cost $381,000 ($1,600,000 minus $808,000 in CIP funds budgeted in FY 2002/03 and FY 2003/04, minus $411,000 in grading and soils expenses equals $381,000). The remaining $381,000 (plus a small contingency) is budgeted in the 5-year CIP in Fiscal Years 2004 through 2008. Phase I of construction would be a two-lane street in FY 2003/04, plus other related improvements as funds permit. If the Mayor and Common Council approved the proposed agreement offered by J. R. Watson & Associates Development Co., Watson would complete the grading for the entire length of the street. In summary, J. R. Watson & Associates Development Co. would redesign, provide soil and compaction, and grade Campus Parkway (work valued in excess of $400,000) in exchange for waivers of a Fair Share Traffic Improvement Fee of $35,000 and a Traffic System Fee of $40,833 (which are anticipated to have been paid in 2004), and the City foregoing as much as an additional $199,167 ($275,000 minus $35,000 minus $40,833 equals $199,167) in future fees (which are anticipated to be paid in the period from 2004 through 2012.) The dollar value ("gain") to the City is a minimum of $136,000 ($411,000 of improvements to be completed by J. R. Watson minus as much as $275,000 in fees equals $136,000). 4 Financial Impact: The City would save in excess of$411,000 (including soils importation and compaction costs) in grading Campus Parkway and crediting (relieve the developer of the requirement to pay in the future) an amount not to exceed $275,000 in Fair Share Traffic Improvement Fees and Traffic Systems Fees which may result from development of the property being sold by the Redevelopment Agency to J. R. Watson & Associates Development Co. Recommendation: Adopt Resolution. 5 1 2 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 3 OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN 4 AGREEMENT WITH J. R. WATSON DEVELOPMENT COMPANY & ASSOCIATES FOR GRADING OF CAMPUS PA~KWAY BETWEEN KENDALL DRIVE AND 5 NORTHPARK BOULEVARD. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 7 CITY OF SAN BERNARDINO AS FOLLOWS: 8 9 10 11 SECTION 1. THAT THE MAYOR is hereby authorized to execute the Agreement (see Attachment "I" and incorporated herein) with J. R. Watson Development Company & Associates relative to grading of Campus Parkway between Kendall Drive and Northpark Boulevard. Such Agreement shall be effective only upon being fully executed by all parties. 12 13 SECTION 2. This Amendment shall not take effect or become operative until fully 14 signed and executed by the parties and no party shall be obligated hereunder until the time of 15 such full execution. No oral agreement, amendments, modifications or waivers are intended or 16 authorized and shall not be implied from any act or course of conduct of any party. 17 18 SECTION 3. This resolution is rescinded if the parties to the Agreement fail to 19 execute it within sixty (60) days of the passage of the resolution. 20 III 21 III 22 23 24 25 26 27 28 1 RESOLUTION...AUTHORIZING THE MAYOR TO EXECUTE AN 2 AGREEMENT WITH J. R. WATSON DEVELOPMENT COMPANY & ASSOCIATES FOR GRADING OF CAMPUS PARKWAY BETWEEN KENDALL DRIVE AND 3 NORTHPARK BOULEVARD. 4 5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting thereof, 7 held on the 8 9 day of , 2003, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT 10 ESTRADA 11 LONGVILLE 12 MC GINNIS 13 DERRY 14 SUAREZ 15 16 ANDERSON 17 MC CAMMACK 18 19 20 21 22 23 City Clerk The foregoing resolution is hereby approved this day of ,2003. 24 Approved as to 25 form and legal content: Judith Valles, Mayor City of San Bernardino 26 JAMES F. PENMAN, 27 City Attorney 28 By: GRADING AGREEMENT This Grading Agreement ("Agreement") is entered into effective , 2003, between the City of San Bernardino, a Municipal Corporation, ("City") and J. R. Watson & Associates Development Co., a California Corporation ("Developer"). RECITALS 1. The City is authorized by its Municipal Code to enter into binding agreements for the development of real property in its municipal limits, with persons who have legal or equitable interests in that real property. 2. On June 2, 2003, the Developer entered into an Agreement with the City of San Bernardino Redevelopment Agency to purchase real property in the municipal limits of the city, which is depicted and more particularly described as Exhibit "A. 3. The Developer intends to use its reasonable best efforts to develop the University Park Property as a quality residential project, a quality shopping center which will contain stores, shops and restaurants, and an office/technology business park. 4. On May 6, 2003, the Planning Commission approved the Developer's request to subdivide approximately 117 acres into 158 lots for development of 153 (reduce by the developer to 151 after approval) of the lots with single family homes with said residential development abutting a portion of Campus Parkway. 5. The City has adopted the San Bernardino Development Code ("Code") establishing various development impact fees to offset the cost of development of city infrastructure. 6. As a condition to approval of Tentative Tract Map No. 16509 and Conditional Use Permit No. 03-06, the Planning Commission required the Developer to contribute $35,000 toward the cost of off-site "fair share" improvements based on the Traffic Impact Analysis, and required the Developer to pay a Traffic Systems Fee in the amount of $40,833 for the 151 single family homes to be constructed as part of University Park. 7. As a condition to approval of Tentative Tract Map No. 16509 and Conditional Use Permit No. 03-06, subject to the approval of the Mayor and Common Council, the Planning Commission required the Developer to provide engineering design, soil and compaction, and grade the entire right-of-way for Campus Parkway from Kendall Drive to Northpark Boulevard, estimated to cost in excess of$411,000, in exchange for a credit (relieved of the requirement to pay) in the amount not to exceed $275,000, including the above mentioned Fair Share Traffic Improvements Fee of $35,000 and the Traffic Systems Fee of$40,833, and including possible future Fair Share Traffic Impact Fees and Traffic Systems Fees (which may result from future commercial development of the remaining 22-acres of more of the subject property (known as University Park), provided the Developer conducts and completes the following: - I - ,6 a.) Redesign the existing plans for the alignment of Campus Parkway at its approach to Northpark Boulevard to make possible the ease of future connection with CSUSB's planned street (extension of Campus Parkway) proposed to be located to the northeast of Northpark Boulevard which would result in an estimated cost savings of $5,000 to the City; b.) Provides soil and compacts said soil in accordance with the above mentioned redesign to make possible the connection with CSUSB's planned street proposed to be located to the northeast of Northpark Boulevard which would result in an estimated cost savings of $50,000 to the City; and c.) Grades the entire right-of-way for Campus Drive from Kendall Drive to Northpark Boulevard at the time of grading the developer/property owner's abutting residential project site which will result in a savings to the City of approximately $356,000 in the cost of grading Campus Parkway. 8. The Developer has applied to the City for approval of this Agreement and the Common Council has conducted a public meeting with respect to this Agreement and has found that the provisions of this Agreement are consistent with the City's General Plan. On August 18, 2003, the Common Council adopted Resolution No. , which enacted this Agreement ("Enacting Resolution"), and the Enacting Resolution became effective on the date of its adoption ("Effective Date). 9. By adopting the Enacting Resolution, the Common Council has elected to exercise certain governmental powers at the present time rather than deferring those actions until an undetermined future date and has done so intending to bind the City and future Common Councils and intending to limit the City's future exercise of certain governmental powers. This Agreement has undergone extensive review by the City and the Common Council and has been found to be fair, just and reasonable and in the best interests of the citizens of the city and the public health, safety and welfare. IN CONSIDERATION of the mutual covenants and conditions, which are provided in this Agreement, the parties agree as follows: OPERATIVE PROVISIONS 1. Term: Unless earlier terminated as provided in this Agreement, this Agreement will commence on the Effective Date and will continue until 12 years from the Effective Date. 2. Design and Construction of Imorovements: Developer shall use its best reasonable efforts to complete the redesign of Campus Parkway, importation of soil, compaction of soil, and grading of all portions Campus Parkway between Kendall Drive and Northpark Boulevard to the specifications and standards of the City Engineer on or prior to August 18, 2004, subject to extension for force majeure including, without limitation, inclement weather, unavailability of labor or - 2 - .l~' materials, and other items beyond the sole controL of developer. The Developer shall be responsible for designing, construction, installing and providing for the inspection of the improvements. The City Engineer, prior to construction shall approve the plans and specifications for the work, and the design, construction and installation of the improvements shall be to the satisfaction of the City Engineer in his/her sole and reasonably exercised discretion. 3. Permits: The Developer shall secure and pay the cost of all required permits. The City shall not reimburse the Developer the cost of securing the permits or the costs of permit fees. 4. Coordination of Grading: The grading improvement s to Campus Parkway shall be coordinated and completed at the time of grading by the Developer of the residential portion of University Park abutting Campus Parkway. 5. Credits: In the event the grading improvements are completed to the satisfaction of the City Engineer and in compliance with the terms of this Agreement, the Developer shall be credited (relieved of the requirement to pay) an amount not to exceed $275,000 in Fair Share Traffic Improvement Fees and Traffic Systems Fees, including the required Fair Share Traffic Improvement Fee of $35,000 for the residential portion of University Park, and including possible future Fair Share Traffic Impact Fees and Traffic System Fees which may be required as a result of future commercial development of the remaining approximately 117 -acres of the property. 6. Total Amount of Credits: The total amount of the credits granted the Developer shall not exceed $275,000. 7. Term of Credit Obligation: The City's obligation, under this Agreement, to credit the Developer for the completed grading improvements shall continue for a period of twelve (12) years from the Effective Date of this Agreement, unless the obligation is sooner satisfied by credit in the full amount of $275,000 due and owing to the Developer under this Agreement. After such twelve-year period or credit in full, whichever occurs first, the credit process shall cease. 8. Shortfall of Credits: The City's maximum obligation to credit the Developer shall not exceed $275,000. In the event Fair Share Traffic Improvement Fees and Traffic Systems Fees levied on the development of the property does not exceed $275,000 during the term of this agreement, the City shall not reimburse or credit the difference to the Developer. 9. Fees in Excess Credits: In the event Fair Share Traffic Improvement Fees and Traffic Systems Fees levied on the development of the property exceed $275,000 during the term of this Agreement, the City shall not reimburse or credit the difference to the Developer. The Developer shall be responsible and shall pay to - 3 - 't-"'" the City any Fair Share Traffic Improvement Fees and Traffic Systems Fees levied on the development of the property, which exceed $275,000. 10. Bids and Contracts: Developer shall be solely responsible for securing appropriate bids and awarding the contract for construction and installation of the grading improvements in compliance with all applicable federal and state laws. Developer shall defend, indemnify and hold City, its elected officials, officers, agents and employees free and harmless from any and all claims, actions or liability whatsoever, including attorney's fees and court costs, arising out of or in connection with Developer's construction of the grading improvements. 11. Inspection: The City shall have the right at all times to inspect the construction of the grading improvements and all other improvements to the street right-of-way and abutting property to measure compliance with approved City plans and specifications, and standards of the City Engineer. 12. Mitigation Monitoring Program: In its construction of the grading improvements, the Developer will adhere to the Mitigation Monitoring Program established for Campus Parkway and University Park. 13. Indemnification: a) With respect to the Developer's performance as provided in this Agreement, the Developer will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which result from (I) any obligation of the Developer which arises from the development of the Campus Parkway right-of-way including, without limitation, obligations for the payment of money for material and labor, (ii) any failure on the part of the Developer to take any action which it is required to take as provided in the Agreement, (iii) any action taken by the Developer which it is prohibited from taking as provided in the Agreement, (iv) any claim which results from any willful or negligent act or omission of the Developer, and (v) any legal challenge to the City's actions in approving or implementing this Agreement. b) Included in the scope of the foregoing indemnification will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject to the applicable indemnification and all of the associated legal fees and court costs (but not internal costs). Without limiting the effect of the foregoing, the Developer will have the right to defend against any claim with respect to which it is indemnifying the City, using legal counsel of its choice. The City will cooperate with the Developer and will give the Developer its full support in connection with any claim with respect to which the Developer is indemnifying the City. -4- c) Developer shall require all persons doing work on grading, including their contractors and subcontractors, to obtain and maintain insurance of the types and in the amounts described below in a form and with carriers satisfactory to City. 1. Commercial General Liability Insurance: Occurrence version commercial general liability insurance or equivalent form with a limit of not less than $1,000,000 each occurrence shall be maintained. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two times the occurrence limit. Such insurance shall: i) Name City, its elected officials, officers, employees and agents as insureds with respect to performance of this Agreement. The coverage shall contain no special limitations on the scope of its protection afforded to the above-listed insureds. ii) Be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees and agents. iii) Contain standard separation of insureds provisions. Z. Business Automobile Liability Insurance: Business automobile liability insurance or equivalent form with a limit of not less than $500,000 each accident shall be maintained. Such insurance shall include coverage for owned, hired, and non-owned automobiles. 3. Workers' Compensation Insurance: Workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 each accident shall be maintained. 4. Other Insurance Reauirements: Developer shall: i) Prior to taking any actions under this Agreement, furnish City with properly executed certificates of insurance which shall clearly evidence all insurance required in this Section and provide that such insurance shall not be canceled, without the prior written consent of the City. 14. Prevailing Wages: Developer is aware of the requirements of California Labor Code Sections 1770 et. sea., which require the payment of prevailing wage rates for Developer's contracts with its contractor(s) to construct the grading improvements in accordance with a public works contract as defined in Sections 1720 and 1720.2 of the California Labor Code. The Developer and City agree that Campus Parkway is - 5 - -"'\,0',", not a part of the development of the development of the abutting property, not a part of University Park. The Developer agrees that the grading improvements in the proposed right-of-way of Campus Parkway shall be deemed a "public works contract" as defined in the California Labor Code. The Developer shall pay and cause its subcontractors to pay prevailing wage for the grading improvements within Campus Parkway. Developer agrees to hold City, its elected officials, officers, and agents harmless from any claim or liability including, without limitation, attorneys' fees and court costs, arising from any failure or alleged failure to comply with these provisions of the California Labor Code. 15. Contractor Licenses: All work performed on the grading improvements shall be done only by contractors licensed in the State of California and qualified to perform the type of work required. 16. Acceptance of Work: Upon completion of the grading improvements to the satisfaction of City, the grading improvements and the Campus Parkway right-of-way in the ownership of the Developer shall be presented to the San Bernardino Common Council for dedication and acceptance, and for authorization to file a Notice of Completion. The Common Council may accept the grading improvements if it determines that the grading improvements were constructed in accordance with the approved plans, specifications and contract documents that they operate satisfactorily, and that all other requirements of the Agreement have been satisfied. Upon acceptance of the grading improvements, Developer shall assign to City all of Developer's rights and remedies, including warranties, as set forth in the approved contract documents that City would have had if City itself had engaged Developer's contractor to construct the grading improvements. 17. Liability for Work Prior to Formal Acceptance: Until the Common Council has formally accepted the grading improvements, Developer shall be solely responsible for all damage to the work caused by or arising out of Developer's or its contractor's or subcontractor's negligence and for all damages or injuries to any person or property at the work site caused by or arising out of Developer's or its contractor's or subcontractor's negligence, except damage or injury due to the negligence of City, its agents or employees. 18. Guarantee: Developer shall post a warranty bond for the entire site in form and content acceptable to the City, guarantee all work and materials for the grading improvements to be free from all defects due to faulty materials or workmanship for a period of one (I) year after the date of formal acceptance of the work by City. 19. Record Drawings: Prior to acceptance of the grading improvements by the Common Council, Developer shall provide City with three (3) copies of record drawings with certification as to accuracy and completeness by an engineer licensed in the State of California. The City shall not be responsible for insuring the completeness and accuracy of the record drawings. -6- 20. Ownership of the Improvements: From and after acceptance of the grading improvements and the dedication of Campus Parkway right-of-way by formal action of the Common Council, ownership of the grading improvements and street right-of- way shall be vested exclusively in City. 21. Default bv Developer: If the Developer fails to perform any of its obligations as provided in the Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by the City, then the Developer will be in default and the City will have all remedies which are available to it at law or in equity; provided, however that if the nature of Developer's failure to comply or perform is such that it cannot reasonable be cured within 30 days, then the Developer will not be in default if it immediately commences and thereafter diligently continues to cure its failure. 22. Default bv City: If the City fails to perform any of its obligations as provided in the Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by the Developer, then the City will be in default and the Developer will have all remedies which are available to it at law or in equity; provided, however that if the nature of City's failure to perform is such that it cannot reasonable be cured within 30 days, then the City will not be in default if it immediately commences and thereafter diligently continues to cure its failure. 23. Negation of Agencv Joint Venture or Partnership: The parties acknowledge that in entering into this. Agreement, they are acting as independent entities and not as agents of the other in any respect of the other in any respect. The parties hereby renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint ventures or partners. 24. Notices and Other Communications: All notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY City of San Bernardino 300 North D Street San Bernardino, CA 92418 Attn: City Administrator Developer J. R. Watson & Associates Co. 101 Main Street Seal Beach, CA 90740 - 7 - +.,A_ If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt or rejection. Addresses, to which notices or other communications may be delivered, may be changed from time to time by a notice, which is given as provided in this paragraph 25. 25. Estoppel Certificates: At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as expressly provided in that estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement exists, except as is expressly provided in that estoppel certificate. 26. Applicable Law: This Agreement will be construed and enforced as provided in California law. 27. Superseding State or Federal Law: If any state or federal law or regulation which is enacted or adopted after the Effective Date or any other action of any governmental entity which is not under the City's control, prevents or precludes compliance with any provision of this Agreement, then that provision of this Agreement will be modified or suspended only to the extent and for the time necessary to achieve compliance with that law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of the Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 28.Venue: Any legal action with respect to this Agreement will be brought, at the Developer's election, in either San Bernardino County Superior Court or in the United States District Court fi)r the Central District of California. 29.Attornevs' Fees: If legal action is taken to enforce or interpret any provISIon of this Agreement, then the prevailing party in that action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with that action. 30.Paragraph Headings: The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 31. Construction: In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that - 8 - the parties or their agents have participated in the preparation {If this Agreement. Without limiting the effect of the foregoing, the parties acknowledge and agree that the City is restricted in its authority to limit its police power by contract and that the limitations in this Agreement are intended to reserve tot he City all of its police powers which cannot be so limited. This Agreement will be construed, contrary to its stated terms if necessary, to reserve to the City all police power that cannot be restricted by contract. 32. Survival: Each and ever covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties. 33. Calendar Periods: All references in this Agreement to "years", quarters", "months", and "days" will be deemed to be references to calendar years, quarters, months, and days. 34. Severabilitv: Every provision of this Agreement is and will be construed to be a separate and independent covenant. Without limiting the effect of paragraph 14, if any provision of this Agreement or the application of the same is, to any extend, found to be invalid or unenforceable, then the remainder of this Agreement or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and provision of this Agreement will be valid and will be enforced to the extend permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability . 35. Covenant of Good Faith: In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 36. Countemarts: This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 37. Incomoration of Recitals: The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between them and such facts will be incontestable in the event of any dispute between them with respect to such facts. Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. 38. Exhibits: The Exhibits to this Agreement are incorporated by reference as though fully set forth hereof. 39. Amendment: (a) No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved by the City and has become effective, or on the Developer unless and until it has been executed by the Developer. -9- 'tw: (b) The parties acknowledge that the passage of time may demonstrate that changes are necessary or appropriate with respect to the details of each party's performance as provided in this Agreement. Because the parties wish to retain flexibility with respect to the details of their performance, if and when the parties determine that changes are necessary or appropriate, they will unless otherwise required bylaw, effectuate those changes or adjustments through operating memoranda. After execution, each such operating memorandum will be attached to this Agreement as an addendum and will become part of this Agreement. No such operating memorandum will be deemed to be an amendment of this Agreement. 40. Assignment: This Agreement shall not be assigned without the written consent of the parties hereto, and any assignment without such written consent shall be void and ineffective. 41. Time of Essence: Time is of the essence of this Agreement. 42. Recordation: No later than 10 days after the Effective Date of this Agreement, the Developer will, at its cost, record this Agreement in the Official Records of the San Bernardino County Recorder. SIGNATURES FOLLOW - 10- CITY CITY OF SAN BERNARDINO By: Mayor ATTEST: By: City Clerk APPROVED AS TO FORM AND LEGAL CONTENT: By: City Attorney DEVELOPER 1. R. Watson & Associates Development Co., A California Corporation By. President - II - ...