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HomeMy WebLinkAbout2006-332 , I : 1 2 RESOLUTION NO. 2006-332 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT 4 WITH PINE TRAILS PARTNERS, LLC, A CALIFORNIA LIMITED LIABILITY 5 COMPANY, FOR PINE AVENUE IMPROVEMENTS. 6 3 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. THAT THE MAYOR is hereby authorized to execute the Agreement (see 9 Exhibit "A" and incorporated herein) with Pine Trails Partners, LLC, A California Limited 10 Liability Company, for street improvements to Pine Avenue. Such Agreement shall be effective 11 only upon being fully executed by all parties. 12 SECTION 2. This Agreement shall not take effect or become operative until fully 13 signed and executed by the parties and no party shall be obligated hereunder until the time of 14 15 such full execution. No oral agreement, amendments, modifications or waivers are intended or authorized and shall not be implied from any act or course of conduct of any party. 16 17 18 19 III 20 III 21 22 SECTION 3. This resolution is rescinded if the parties to the Agreement fail to execUle it within sixty l60) days of the passage of the resolution. 23 24 25 26 27 28 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT 3 WITH PINE TRAILS PARTNERS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, FOR PINE AVENUE IMPROVEMENTS. 4 5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 6 7 on the 18th 8 Common Council of the City of San Bernardino at a j oint regular meeting thereof, held September , 2006, by the following vote, to wit: day of 9 Council Members: 10 11 12 AYES NAYS ABSTAIN ABSENT ESTRADA x BAXTER x VACANT 13 DERRY ---X- 14 15 16 JOHNSON 17 18 19 20 21 22 23 24 KELLEY x x MC CAMMACK ----X- Q~b.~ ~Clerk ,,\>\" The foregoing resolution is hereby approved thisd.O '"day of. September, 2006. Approved as to Form: 25 JAMES F. PENMAN, City Attorney 26 27 28 .~ 2006-332 EXHffiIT "A" PINE AVENUE IMPROVEMENTS AGREEMENT This Pine A"hue Street Improvements Agreement ("Agreement") is entered into effective / ~~ 0' , 2006 ("Effective Date") between the City of San Bernardino, a Municipa CorporatIOn and Charter City ("City") and Pme Trails Partners, LLC, a CalIfornia Limited Liability Company, together with certain assignees and/or affiliated entities established for the express purpose of creating the developments described below, or any of them (collectively and individually, "Developer"). RECITALS I. On September 3,2005, the Common Council ofthe City of San Bernardino ("City") approved the sale of certain property currently referred to as Tentative Tract No. 17716 ("Property") to 1. R. Watson Development Co., Inc and the assignment of rights to Pine Trails Partners, LLC pursuant to an approved form of purchase agreement ("Purchase Agreement"); and 2. On December 20, 2005, Pine Trails Partners, LLC acquired the Property in accordance with the terms of the Purchase Agreement and intends to develop 39 single family detached homes on the Property in accordance with Tentative Tract Map No. 17716; and 3. The Developer is proposing street improvements to Pine Avenue and portions of three streets intersecting Pine Avenue that do not abut property owned by the Developer; and 4. Completion of street improvements for Pine Avenue and portions of the three streets abutting the proposed public greenbelt would benefit the circulation system in the neighborhood and also improve the operations, maintenance, and usability of a future greenbelt or park; and 5. The cost ofthe proposed street improvements are proposed to be reimbursed to Developer out of the City's Measure I Funds from the 2007-2008 Capital Improvement Program; and 6. The City would benefit in the event the Developer installed the improvements to the streets now rather than delay the completion of the street improvements at a future, yet to be determined, date. In the event that the City approves this Agreement, the City would reimburse Developer $140,000 in return for the completion of necessary public improvements estimated to exceed $220,000 in value. OPERATIVE PROVISIONS I. Time for Commencement and Performance. The City hereby fixes the time for the completion of said work to be within 24 months from the effective date of this Agreement. 00628.006/17212.1 I , , ~--- 2006-332 EXHffiIT "A" 2. Time Extension. In the event good cause is shown therefor, the City Engineer of City may extend the time for completion of the improvements hereunder up to a maximum of 24 additional months. The City Engineer of City shall be the sole and final judge as to whether or not good cause has been shown to entitle Developer to an extension of time. 3. Improvements: The proposed improvements include design and construction of curb, gutter, and sidewalk on the east side of Pine Avenue extending from Belmont Avenue to Ohio Avenue; construction of curb, gutter, sidewalk, and associated street construction and paving extending for 100 feet along the north side of Belmont A venue and extending for 100 feet along the south side of Ohio A venue, and extending for 100 feet along both the north and south sides of Redwood Street from Pine Avenue (collectively known as "Improvements"). 4. Design and Construction ofImprovements: Developer shall use its best reasonable efforts to complete the Improvements in accordance with the plans and specifications as approved by the City Engineer. The plans and specifications for the Improvements shall be drafted by the Developer and shall be subject to the review and approval of the City Engineer in hislher sole discretion. 5. Coordination and Completion of Improvements: The Improvements shall be constructed and completed by the Developer and approved and accepted by the City Engineer prior to the final inspection and release of utilities by the Building Inspection Division for the last 8 houses in Tentative Tract No. 17716. Approval and acceptance of the improvement is subject to the City Engineer's sole discretion. 6. Permits: The Developer shall secure the required permits for Improvements. The City shall not charge the Developer fees for plan check, inspection and grading permits for Improvements. 7. Site Dedication: Improvements identified in this Agreement shall be dedicated to the City free and clear ofliens prior to City's acceptance of Improvements. 8. Reimbursements: In exchange for the design, installation, construction, and completion ofthe Improvements, the Developer shall be reimbursed $140,000 from Half(l/2) Cent Sales Tax (i.e. Measure I) Funds which will be allocated in the City's 2007-2008 Capital Improvement Program, provided the Developer has completed the Improvements to the satisfaction of the City Engineer and in compliance with the terms of this Agreement. In the event that Developer does not comply with the terms of this Agreement then the City shall not have the obligation to reimburse Developer. The City shall make payment ofreimbursements to the Developer within Sixty (60) days after City acceptance of the Improvements. 9. Term of Reimbursement Obligation: The City's obligation, under this Agreement, to reimburse Developer for the completion of the Improvements shall continue for a period of five (5) years from the Effective Date of this Agreement After such five-year period or reimbursement in full, whichever occurs first, the City's obligation to reimburse the Developer shall terminate. In the event that Developer elects not to proceed with the Improvements, then it shall not be entitled to the reimbursement described in this Agreement. 00628.006117212.1 2 2006-332 EXHIBIT "A" 10. Bids and Contracts: Developer shall be solely responsible for securing appropriate bids and awarding the contract(s) for construction and installation ofImprovements in compliance with all applicable federal, state and local laws. 11. Inspection: The City shall have the right at all times to inspect the construction of the Improvements to the street right-of-way and abutting Park to measure compliance with approved City plans and specifications, and standards of the City Engineer. 12. Indemnification: a. With respect to the Developer's performance as provided in this Agreement, the Developer shall 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 to persons, including death and worker's compensation claims or damage to property) arising from or related to (i) the design or construction of the Improvements including, without limitation, obligations for the payment of money for material or 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 act or omission of the Developer in performing its obligations under the Agreement, or (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 of 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 shall 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 shall cooperate with the Developer and shall give the Developer its full support in connection with any claim which the Developer is indemnifying the City. c. Developer shall require all persons doing work on Improvements, 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. (i) 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 during the term of this Agreement. 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 additional insureds with respect to performance ofthis Agreement. The coverage shall contain no special limitations on the scope of its protection afforded to the above-listed insureds. 00628.006/17212.1 3 2006-332 EXHffiIT"A" (2) Be primary with respect to any insurance or self- insurance programs covering City, its elected officials, officers, employees and agents. (3) Contain standard separation of insureds provisions. (ii) 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. (iii) Workers' Compensation Insurance: Workers' compensation insurance with statutory limits and employer's liability insurance with limits of not less than $1,000,000 each accident shall be maintained. (iv) Other Insurance Requirements: (1) Developer shall, 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, or materially altered without the prior written consent of the City. 13. Prevailing Wages: Developer is aware of the requirements of California Labor Code Sections 1770 et. seq., which require the payment of prevailing wage rates for Developer's contracts with its contractor( s) to construct the Improvements in accordance with a public works contract as defined in Sections 1720 and 1720.2 ofthe California Labor Code. The Developer shall pay and cause its subcontractors to pay prevailing wage for the construction of the Improvements. Developer agrees to defend, indemnify, and hold City, its elected officials, officers, and agents harmless from any claim or liability including, without limitation, attorney's fees and court costs, arising from any failure or alleged failure to comply with these provisions of the California Labor Code. 14. Contractor Licenses: All work performed on the Improvements shall be done only by contractors licensed in the State of California and holding business licensees in the City of San Bernardino, and qualified to perform the type of work required. 15. Acceptance of Work: Upon completion of the Improvements to the satisfaction of City, the Improvements shall be presented to the City Engineer for acceptance, and for authorization to file a Notice of Completion. The City Engineer shall accept the Improvements if he/she determines that the Improvements were constructed in accordance with the approved plans, specifications and contract documents, and that all other requirements of the Agreement have been satisfied. Upon acceptance of the 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 City itself engaged Developer's contractor to construct the Improvements. 16. Guarantee: Developer shall post a warranty bond for the entire site in form and content acceptable to the City, which will guarantee all work and materials for the Improvements 00628.006117212.1 4 2006-332 EXHIBIT "A" to be free from all defects due to faulty materials or workmanship for a period of one (1) year after the date of formal acceptance of the work by City. 17. Record Drawings: Prior to acceptance of the Improvements by the City Engineer, Developer shall provide City with three (3) copies of record drawings with certification as to accuracy and completeness by an engineer and/or landscape architect licensed in the State of California. The City shall not be responsible for insuring the completeness and accuracy of the record drawings. 18. Ownership ofthe Improvements: From and after acceptance of the Improvements by formal action of the City Engineer, ownership of the Improvements shall be vested exclusively in City. 19. Default bv Developer: Ifthe Developer fails to perform any of its obligations as provided in the Agreement and fails to cure its nonperformance within 30 days after written notice of nonperformance is given by the City, then the Developer shall be in default and the City shall 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 reasonably 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. 20. Default by 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 written notice of nonperformance is given by the Developer, then the City shall be in default and the Developer shall 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 reasonably be cured within 30 days, then the City shall not be in default ifit immediately commences and thereafter diligently continues to cure its failure. 21. Negation of Agency. 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. 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. 22. Notices and Other Communications: All notices or other communications which are required or permitted to be given to the parties shall be in writing and shall 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: Director of Development Services 00628.006117212.\ 5 2006-332 EXHIBIT "A" DEVELOPER Pine Trails Partners, LLC c/o J. R. Watson & Associates Development Co. 101 North Main Street, Suite A Seal Beach, CA 90740 Addresses, to which notices or other communications may be delivered, may be changed from time to time by written notice, which is given as provided in this paragraph 23. 23. 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 has not been amended or modified, except as expressly provided in that estoppel certificate and (b) 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. 24. Applicable Law: This Agreement will be construed and enforced as provided under California law. 25. 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 ofthis Agreement shall 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 shall continue in full force and effect and the parties shall 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 circumstanc.e which removes the effect of the same on this Agreement, the provisions of the Agreement shall 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, shall terminate. 26. Venue: Any legal action with respect to this Agreement shall be brought in San Bernardino County Superior Court or in the United States District Court for the Central District of California. 27. Attornevs' Fees: If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in that action shall be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with that action. The costs, salaries and expenses of the City Attorney, and members of his office, in connection with that action shall be considered as attorney's fees for the purpose of this Agreement. 28. 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. 00628.006/\72\2.\ 6 EXHIBIT "A" 2006-332 29. 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 the parties or their agents have participated in the preparation of this Agreement. 30. Survival: Each and ever covenant in this Agreement shall survive the execution and delivery of this Agreement for the benefit of the parties. 31. 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. 32. Severabilitv: Every provision of this Agreement is and shall be construed to be a separate and independent covenant. Without limiting the effect of paragraph 25, if any provision of this Agreement or the application of the same is, to any extent, 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 that provision of this Agreement shall be valid and shall be enforced to the extent 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. 33. Covenant of Good Faith: In exercising their rights and in performing their obligations as provided in this Agreement, the parties shall cooperate with one another in good faith, so the intent of this Agreement can be attained. 34. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 35. Incorporation of Recitals: The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth herein. 36. Amendment: No amendment or waiver of any term of the Agreement shall be binding unless in writing and until it has been approved and executed by the City and Developer. 37. 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. 38. Time of Essence: Time is of the essence of this Agreement. SIGNATURES FOLLOW 00628.006/17212.1 7 2006-332 EXHIBIT "A" PINE A VENUE IMPROVEMENTS AGREEMENT APPROVED AS TO FORM: James F. Penman, City Attorney 00628.006117212.1 CITY OF SAN BERNARDINO BY:~~ P trick Morris, ~ ATTEST: By:~~h.~ Ra hel Clark, City Clerk DEVELOPER Pine Trails Partners, LLC A California limited liability company By: J&J Pine Trails, LLC A California limited liability company Mana er Member B: 8 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of Califomia Of flJ(t ~... on~. Q111MtJ, beforeme?Q;~i\.(\QJ Ck1\lt~<t,.kl~\t Date \ B f~ra1'T1tle OfIioer(e.g.,'Jane ,NotaryPublic personally appeared '-J CL..((l~ . \oUU",56)'L.. , County of }ss, Name(s)of Signer(s) )i:tpersonally known to me o proved to me on the basis of satisfactory evidence I~ =~'-l -. ~_.~ ~ - - - ~~:::~~ to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. OPTIONAL Though the information below is not required by Jaw, it may prove valuable to persons refying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: ~. i +1 iJ..JiDfc Number of Pages: Signer(s) Other Than Named Above: Nfic-k MO(ri~J ~~\ Q.\o..(~( h~ ~ Capacity(ies) Claimed by Signer ..J(lJMQ.... e. VJ~;hlM Signer's Name: . Top of thumb here o Individual o Corporate Officer - Title(s): o Partner -)l7 Limited 0 General o Attorney-in-Fact o Trustee o Guardian or Conservator o Other: Signer Is Representing: (J qJ Pi r\ Q_ T~ LC.. C 1999 National Notary Association' 9350 De Solo Ave., P.o. Box 2402. Chatsworth, CA 91313-2402' www,nationalnotary.org Prod. No. 5907 Reordor.CeIlT~I.Freel-800-876-6827