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HomeMy WebLinkAbout1984-554 SAN BERNARDINO 54J33-011-2 RESOLUTION NO. 84-554 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING ACQUISITION AGREEMENT, PRELIMINARILY APPROVING ENGINEER'S REPORT, FIXING TIME AND PLACE FOR HEARING PROTESTS, DIRECTING PUBLICATION OF NOTICE AND DESIGNATING THE DIRECTOR OF PUBLIC WORKS/CITY ENGINEER TO ANSWER INQUIRIES (ASSESSMENT DISTRICT NO. 961) WHEREAS, this Mayor and Common Council have pre- vious1y adopted a Resolution of Intention, Resolution No. /4--'[;;;1, declaring their intention to take proceedings for the acquisition and installation of certain proposed improve- ments within an area of the City designated "Assessment District No. 961" under and pursuant to City Ordinance No. 3902, the Municipal Improvement Act of 1913, Division 12 of the Streets and Highway Code of the State of California; and WHEREAS, said Resolution of Intention authorized and directed the Engineer of Work to make and file with the City Clerk a report and writing (sometimes referred to as the "Engineer's Report"), as defined and described in such Municipal Improvement Act of 1913; and . 1 26-CI-JWB-402.9 12-18-84 (mt) SAN BERNARDINO 54333-011-2 WHEREAS, the Engineer of Work duly prepared and filed the Engineer's Report and has presented such Engineer's Report to this Mayor and Common Council. NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: Section 1. The recitals set forth above are true and correct. Section 2. That the Agreement for Acquisition of Improvements (Assessment District No. 961 - City of San Bernardino), in the form attached to this Resolution as Exhibit 1, is hereby approved and the Mayor is hereby au tho- rized and directed to sign such agreement for and on behalf of the City and the City Clerk is hereby authorized and directed to attest thereto. Section 3. The Engineer's Report referred to in the above Recitals be, and the same is, hereby preliminarily approved, and the City Clerk is directed forthwith to en- dorse the fact and date of such approval on the Engineer's 2 26-CI-JWB-402.9 12-18-84 (mt) SAN BERNARDINO 54333-011-2 Report and to file the Engineer's Report in the official records of her office. Section 4. Monday, the 21st day of January, 1985, at the hour of 11:00 a.m. in the Council Chambers, City Hall, 300 North "D" Street, San Bernardino, California, are hereby fixed as the time and place of hearing on said ap- proved Engineer's Report and said Resolution of Intention, and such hearing shall be held by this Mayor and Common Council. Section 5. The City Clerk is hereby authorized and directed forthwith to cause a notice of such hearing to be published once a week for two (2) successive weeks in The Sun, a newspaper of general circulation, published in the City, the first publication to be made at least fifteen (15) days before the date set for hearing of protests. Section 6. The City Clerk is hereby further di- rected forthwith to cause notices of such hearing to be mailed as provided in such Municipal Improvement Act of 1913, postage prepaid, to all persons owning real property proposed to be assessed to pay any part of the cost of said 3 26-CI-JWB-402.9 12-18-84 (mt) SAN BERNARDINO 54333-011-2 work, whose names and addresses appear on the last equalized assessment roll or as known to the City Clerk. Said mailing to be made at least fifteen (15) days before the date set for hearing of protests. Section 7. Such City Clerk is hereby further authorized and directed forthwith to cause notices of the passage of this Resolution to be conspicuously posted, as provided in such Municipal Improvement Act of 1913, on all open streets within Assessment District No. 961, at not more than three hundred (300) feet apart on each such street, but not less than three (3) in all, except that in the case where there are no such open streets, such notices shall be posted in three (3) conspicuous places within the Assessment District. Said posting to be made at least fifteen (15) days before the date set for hearing of protests. Section 8. If any section, paragraph, clause or provision of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforce- ability of such section, paragraph, clause or provision shall in no way affect any remaining provisions of this Resolution. 4 26-CI-JWB-402.9 12-18-84 (mt) SAN BERNARDIN'O 54333-011-2 Section 9. The Director of Public Works/City Engineer is hereby designated to answer inquiries regarding the protest proceedings. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at an adjourned regular meeting thereof, held on the 19th day of December, 1984, by the following vote, to wit: AYES: Councilmen Reilly, Hernandez. Marks. Quiel, Frazier, Strickler NAYS: None ABSENT: Council Member Castaneda ABSTAIN: ~///H/~h? /' i ty Clerk The foregoing resolution ~Rt~ day of December, 1984. this 5 26-CI-JWB-402.9 12-18-84 (mt) SAN BERNARDINO 54333-011-2 Approved as to form this day of , 1984: Citf~~ ~/ 6 26-C1-JWB-402.9 12-18-84 (mt) SAN BERNARDINO 54333-011-3 AGREEMENT FOR ACQUISITION OF IMPROVEMENTS (Assessment District No. 961 - City of San Bernardino) THIS AGREEMENT FOR ACQUISITION OF IMPROVEMENTS ("Agreement") is made and entered into this ~PtL day of December, 1984, by and between PARK CENTRE PROPERTIES, a California general partnership ("PCP"), Rancho Consultants Realty Fund IV, a California limited partnership ("RCRF"), and the CITY OF SAN BERNARDINO, a municipal corporation (the "C_i_ty"). PCP __~rr~LRCRF_..shall be- -collec~ely referred to as the "Company". Recitals A. On December 17, 1984, the Mayor and Common Council of the City adopted a Resolution of Intention, Resolution No. ??l-331 , declaring their intention to acquire and install the improvements (the "Improvements") described in Exhibit 1 and Exhibit 2 to such Resolution and for pro- ceedings for the assessment of benefited properties pursuant to the Municipal Improvement Act of 1913, Division 12 of the Streets and Highways Code of California (the "Code") and for 1 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 proceedings for the issuance of improvement bonds pursuant to the Improvement Bond Act of 1915, Division 10 of the Code, which proceedings (the "Proceedings") will be subject to and modified by the terms and provisions of Ordinance No. 3902 of the City. B. PCP constructed the Improvements described in Exhibit 1 to the Resolution of Intention pursuant to a Sub- division Agreement with the City dated July 11, 1983. C. The Director of Public Works/City Engineer will be the Engineer of Work for the Proceedings. D. The parties are entering into this Agreement to set forth the terms upon which the Improvements will be acquired by the City after they are constructed by the Company. NOW, THEREFORE, based upon the foregoing, and in consideration of the covenants, agreements, promises and undertakings contained in this Agreement, the parties agree as follows: 2 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 1. The acquisition price of the Improvements (which Improvements will be more particularly described in the Engineer's "as built" plans and installed pursuant to detailed specifications) to be acquired by City in the Pro- ceedings, shall be the total actual cost of constructing the Improvements, as set forth in a cost certificate or certifi- cates (the "Certificate" or "Certificates") to be made and filed by the Engineer of Work in the office of the City Clerk. 2. -The Cet-tificate of the-Engi-neer of--Wor1c-s"tla::t:r------- set forth the quantity of work performed, the unit cost of performing such work, and the resulting amount due and to be paid therefor, and shall be accompanied by a reproduced copy of the executed contract for doing such work. The amount shown on the Certificate as due and payable shall, after the Certificate has been approved by the Engineer of Work and the Mayor and Common Council of the City, be paid to the Company, or its assigns, from the Construction Fund for the Improvements to be created from the proceeds of bonds to be issued upon said assessments. 3 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 3. Ten percent (10%) of the amount shown on eaCh Certificate shall be withheld. If notice of acceptance of completion of said work is filed with the County Recorder within ten (10) days after the completion of the work, then upon acceptance by the Mayor and Common Council of the City of the Improvements to be owned and operated by City, said amounts shall be withheld until thirty-five (35) days after such notice is recorded. If such notice is not filed within said ten-day period, said amounts shall be withheld until ninety-five (95) days after such recordation. The amount so withheld shall be paid to the Company, or its assigns, after the expiration of said 35-day or 95-day period, as the case may be, provided no liens or stop notices against the work have been filed, as provided by law. 4. The cost of civil engineering and soils en- gineering in connection with the work being acquired shall be paid for upon statements issued to the City therefor by the Company and approved by the Engineer of Work. 5. Statements for City inspection shall be paid for upon certificates or statements therefor issued by the Engineer of Work; the City Treasurer's cost of printing and 4 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 servicing the bonds shall be paid upon demands issued by the Treasurer; statements for printing and advertising shall be paid for upon demands issued therefor by the City Clerk; and legal services shall be paid for upon statements therefor issued by bond counsel and the City Attorney. 6. All of said costs and expenses, including all incidental costs not heretofore mentioned, shall be paid solely from the proceeds of said assessments and sale of assessment bonds in the Proceedings and not otherwise, upon approval of the Mayor and Common Council. 7. Upon payment by the City of the actual cost of the Improvements as above provided, the Company shall execute and deliver to the City instruments of conveyance in form and substance acceptable to bond counsel, and the City shall be deemed to have acquired the Improvements upon their acceptance of such documents of conveyance. 8. The City and its authorized representatives shall at all times have access to all parts of the work, and to the shops wherein the work is in preparation for the purpose of inspection, and the Company shall at all times 5 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 maintain proper facilities and provide safe access for such inspection. All work done and all materials furnished shall be subject to the inspection of the Engineer of Work. 9. The City shall have the right to reject mate- rials and workmanship which are defective, or to require their correction. Rejected workmanship shall be promptly and satisfactorily corrected by the Company and rejected materials shall promptly be removed from the area where the work is being performed by the Company without cost to the City. 10. This Agreement does not abrogate the Subdivi- sion Agreement (referred to in Recital B above), nor affect in any way the right of the parties to enter into similar agreements as to any future subdivisions. 11. The right is reserved by the parties to make reasonable changes and modifications in the Improvements prior to their conveyance to the City in accordance with paragraph 7 above subject to the City and the Company approving such changes and modifications. 6 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 12. This Agreement (other than paragraph 8 here- of) shall not become effective until all of the Improvements have been completed in strict accordance with said plans and specifications and the Proceedings have been completed and bonds issued under the Improvement Bond Act of 1915, provid- ed that the Company may assign any proceeds to be received by it in connection with such issuance at any time prior to their payment. 13. The signatures of all parties to this Agree- ment are predicated upon the consummation of special assess- ment district proceedings providing for a sufficient assess- ment to pay the money herein agreed to be paid and also to pay all costs and expenses of said proceedings. 14. The City is signing this Agreement solely as agent for the property owners within the area of the assess- ment district and is assuming no direct liability for pay- ment of the moneys or the expenses of the acquisition and construction of the Improvements or of said incidental ex- penses and its only responsibility is that of conducting the special assessment Proceedings referred to in this Agree- mente 7 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 15. The City cannot pledge itself in advance that the assessment Proceedings will give the City jurisdiction to confirm the assessment and all terms and provisions of this Agreement are subject to the special assessment Proceedings being consummated and other moneys deposited by the Company. 16. The City is to pay sums to be paid pursuant to this Agreement only out of moneys in said special assess- ment district Proceedings and out of no other funds. 17. In the event of the bringing of any action or suit by any party against any other party or parties by reason of any breach of any of the terms of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to have and recover of and from the other party or parties all costs of suit, including reasonable attorneys' fees. 18. All notices or other communication required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by registered or cer- tified mail, return receipt requested, and if mailed, depos- 8 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 ited in the United States mail, postage prepaid, addressed to the person to receive such notice at the addresses set forth below and shall be deemed received upon personal delivery or actual receipt: To City: City of San Bernardino 300 North "0" Street San Bernardino, CA 92418 Attention: Director of Public Works/City Engineer To PCP: Park Centre Properties 1855 South Waterman Avenue San Bernardino, CA 92408 Attention: Mr. Douglas F. Golding To RCRF: Rancho Consultants Realty Fund IV 28636 Front Street Rancho California, CA 92390 Attention: Mr. James N. Senechal Notice of change of address shall be given by written notice in the manner set forth in this subparagraph. 19. In the event any portion of this Agreement shall be declared by any court of competent jurisdiction to be invalid, illegal or unenforceable, such portion shall be deemed severed from this Agreement, and the remaining parts shall remain in full force and effect, as fully as though such portion had never been part of this Agreement. 9 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 20. This Agreement may be executed in counter- parts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instru- mente 21. Whenever the context of this Agreement re- quires the same, the singular shall include the plural and the masculine shall include the feminine. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if all parties had prepared the same. This Agreement is executed and delivered in the State of California and shall be construed and enforced in accor- dance with, and governed by, the laws of the State of California. 22. No waiver of any of the terms of this Agree- ment shall be effective unless set forth in writing by the party making the waiver and delivered to the other parties and such waiver shall be effective only for the time and to the extent stated. No omission or act (other than the de- livery of the foregoing written waiver) by any party shall constitute or be deemed to constitute a waiver of any de- 10 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 fault in the performance of or breach of any agreement, duty, responsibility, representation, warranty or covenant of the other parties contained in this Agreement. 23. Except as otherwise expressly provided in this Agreement, the Company shall not assign or transfer this Agreement or any interest in this Agreement without the prior written consent of the City, and any such assignment or transfer without such written consent shall be null and void. Subject to the preceding sentence, this Agreement and the rights, duties and obligations of the parties shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 11 26-C2-JWB-402.2 12-17-84 (mt) SAN BERNARDINO 54333-011-3 . IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above. RANCHO CONSULTANTS REALTY FUND IV, a California limited partnership PARK CENTRE PROPERTIES, a California general partnership By its two general part~s: ~~L~~_ DANIEL LEE ~TEP NSON By its two general partners: TRI-CITY ASSOCIATES, a general partnership By a.r-~ ANIEL LEE STEP Its President ENSON ~.w,~ THEODORE W. DUTTON RANCHO CONSULTANTS FINANCIAL, INC., a California corporation ~. ES N. SENECHAL Secretary TIP GROUP, LIMITED, a California limited partnership GE 12 26-C2-JWB-402.2 12-17-84 (mt) . [SEAL] ATTEST: ~//4?/?~~~ / Clty Clerk Approved as to form this day of , 1984: ~~~ SAN BERNARDINO 54333-011-3 13 26-C2-JWB-402.2 12-17-84 (mt)