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2 RESOLUTION NO.
3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH CENTRAL CITY COMPANY FOR FINANCIAL
4 PARTICIPATION IN THE IMPROVEMENT OF INTERIOR PUBLIC AREAS OF THE
CENTRAL CITY MALL AND GRANTING A LICENSE FOR ENTRY UPON THE
5 PUBLIC AREA FOR PURPOSES OF CONSTRUCTING SUCH IMPROVEMENTS.
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
7 CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1.
The Mayor of the City of San Bernardino is
9 hereby authorized and directed to execute. on behalf of said
10 City, an Agreement ,with the Central City Company, relating to the
11 City's financial participation in the improvement of the public
12 areas of the Central City Mall and granting a license for entry
13 upon those public areas under the control of the City for
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purposes of constructing such improvements.
A copy of the
15 Agreement is attached hereto, marked Exhibit "A" and incorporated
16 herein by this reference as fully as though set forth at length
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SECTION 2. This Agreement shall not take affect until
18 fully signed and executed by both parties. The City shall not be
19 obligated hereunder unless and until the Agreement is fully
20 executed and no oral agreement relating thereto shall be implied
21 or authorized.
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RESO: AUTHORIZING l'iR EXECUTIOrnF AGREEMENT WITH CENTRAL O:-V
COMPANY FOR FINANCr'):,L" PARTICIPAT~N IN THE IMPROVEMENT OF INTERI
PUBLIC AREAS OF THE CENTRAL CITY MALL AND GRANTING LICENSE FO~
ENTRY UPON THE PUBLIC AREA
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino, at a
meeting held on the
. 19__, by the following vote, to wit:
day
of
AYES:
Council Members
NAYS:
ABSENT:
City Clerk
The foregoing resolution is hereby approved this
day of
, 19__
Evlyn Wilcox. Mayor
City of San Bernardino
Approved as to form
an legal content:
71e
Attorney
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July 29, 1988
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AGREEMENT RE:
FINANCIAL PARTICIPATION IN THE IMPROVEMENT OF THE
INTERIOR PUBLIC AREAS OF THE CENTRAL CITY MALL AND LICENSE
FOR ENTRY UPON THE PUBLIC AREAS FOR PURPOSES OF
CONSTRUCTING SUCH IMPROVEMENTS
THIS AGREEMENT is entered into this day of
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1988.
by and between the CITY OF SAN
BERNARDINO. a municipal corporation. referred to as "City". and
CENTRAL CITY COMPANY. a joint venture between CTC Company, a
California Partnership, and Central City Associates, a California
Joint Venture, referred to as "CCC".
RECITALS
WHEREAS. pursuant to that Lease Agreement (Lease) entered
into on June 10, 1968, by City and the Redevelopment Agency of
the City of San Bernardino, City maintains and operates the
interior public areas of the Central City Mall as described in
Exhibit "C" to Lease; and,
WHEREAS, City and CCC desire to take joint action to make
improvements, as hereinafter described, to such interior public
areas;
NOW. THREFORE, it is agreed as follows:
1. Improvements. CCC agrees to make certain improvements
to the interior City public areas of the Central City Mall.
including new and improved skylights and other improvements as
more specifically set forth in drawings designated as "Interior
Renovation Improvements" (drawings), bearing date of May 12.
1988. on file with the City Department of Public
Works/Engineering Department.
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2. Sharing of Cost. City hereby agrees to contribute the
maximum sum of $73,500.00 towards the cost of such work of
improvement.
In further consideration of this agreement. CCC shall not
be required by City to pay more than $500.00 for any building or
inspection permits related to construction to be completed
hereunder.
CCC hereby agrees to expend such sums as are necessary to
complete the work described in the drawings referred to above.
CCC hereby agrees to expend not less than the sum of
approximately $350,000, towards the completion of the project.
3. Execution of the Work.
a. CCC shall at all times be responsible for
the execution and completion of the work required
hereunder.
City, through its Public Works/Engineer
or his designee, shall have the right to approve the
completed work to insure that it does not
substantially change the design, layout or
arrangement of the mall for the uses and purposes
specified in paragraph 4 of the Lease.
Where such
work is not approved, CCC agrees to undertake the
correction of the work and to complete the work in
such a manner as shall meet the approval of the
Public Works/Engineer, or his designee.
b. CCC and its agents and subcontractors are
independent contractors under this Agreement.
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Nothing contained herein shall be construed as
changing that relationship. vis-a-vis the City.
Such right of approval as is required hereunder shall
be exercised only in such manner as is not
inconsistent with the status of CCC, its agents and
contractors as independent contractors.
4. License Granted. City grants a license to CCC to enter
upon the property maintained and operated by the City within the
interior of the Central City Mall and to there make the
improvements described in paragraph 1 above. City further hereby
grants to CCC a license to enter upon such other premises as the
City maintains and operates at the Central City Mall for the
purpose of the movement and storage of workers, equipment and
materials related to the work contemplated herein.
A license
and permission is also granted to CCC to make such minor changes
in the roof and adjacent structures of the Central City Mall as
are determined to be necessary for the proper construction and
future maintenance of the improvements covered by this Agreement.
These licenses are subject to any conditions as shall hereafter
be imposed by the City Engineer or the Director of the Building
and Safety Department of City.
5. Construction. CCC agrees to construct the improvements
in accordance with above-referenced drawings on file in the
office of the Director of Public Works/City Engineer. No
alterations or changes in the drawings shall be made without
first receiving City's written approval through its Public
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works/Engineer or his designee.
6.
Rules and Regulations.
CCC shall observe all rules,
regulations, ordinances and enactments of City and all applicable
statutes of the State of California in installing or maintaining
the improvements.
7. Relocation. Should City ever determine a need to make
public improvements in the area covered by this Agreement, CCC
agrees to cooperate with the City in all reasonable requests for
revision of the improvements as necessary to accommodate the
City's reasonable needs.
8. Liability Insurance.
A. CCC agrees to procure and maintain in force
during the term of this Agreement and any extension,
at its expense. public liability insurance in
companies and through brokers approved by City.
adequate to protect against liability resulting from,
arising out of, or in any way connected with, the
construction of the improvements as referred to
herein, in a minimum amount of at least $1,000,000
combined single limit.
CCC shall provide to City's
Risk Management Division a certificate of insurance
and an additional insured endorsement which provides:
1) The City of San Bernardino is an
additional insured.
2) The insurance company name, policy
number, period of coverage and the amount
of insurance.
3) That the City Clerk of the City of San
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Bernardino must be given notice in writing
at least 30 days prior to cancellation.
material change or refusal to renew the
policy.
4) That CCC's insurance will be primary to
any coverage the City of San Bernardino may
have in effect.
B.
Contractors.
CCC shall include the
following provisions in any agreement with any
contractor or subcontractor performing any work
contemplated herein:
1) The Contractor shall furnish the City
a policy of liability insurance in which
the City is named as an additional insured
with the Contractor.
Notwithstanding any
inconsistent statement in the pOlicy or any
subsequent endorsement attached thereto,
the City shall be named as an additional
insured covering the Work, whether
liability is attributable to the Contractor
or the City.
The policy shall insure the City. its
officers, employees and agents while acting
within the scope of their duties on the
Work, against all claims arising out of or
in.connection with the Work.
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The coverage shall provide the following
minimum limits:
Bodily Injury
.$250,000 each person
$500.000 each
occurrence
$500,000 aggregate products
and completed operations
Property Damage
$100,000 each occurrence
$250,000 aggregate
A combined single limit policy with
aggregate limits in the amount of
$1,000,000 will be considered equivalent to
the required minimum limits.
The Contractor shall save, keep and
hold harmless the City, its officers and
agents from all damages, costs or expenses
in law or equity that may at any time arise
or be set up because of damages to
property. or of personal injury received by
reason of or in the course of performing
work. which may be caused by any willful or
negligent act or omission by the
Contractor, any of the Contractor's
employees, or any Subcontractor.
The City
will not be liable for any accident, loss
or damage.
All liability insurance policies shall
bear an endorsement or shall have attached
a rider whereby it is provided that. in the
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event of expiration or proposed
cancellation of such policies for any
reason whatsoever, the City shall be
notified by registered mail return receipt
requested. giving a sufficient time before
the date thereof to comply with any
applicable law or statute, but in no event
less than 30 days before
expiration or
cancellation is effective.
The cost of this insurance shall be
included in the Contractor's Bid.
2) Before execution of the Contract, the
Contractor shall file with CCC and City the
following signed certification:
"I am 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 I will comply with
such provisions before commencing
the performance of the work of
this contract."
The Contractor shall also comply with
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Section 3800 of the Labor Code by securing,
paying for, and maintaining in full force
and effect for the duration of the
contract, complete Workers' Compensation
Insurance, and shall furnish a Certificate
of Insurance to the CCC and City before
execution of the Contract.
The City. its
officers, or employees, will not be
responsible for any claims in law or equity
occasioned by failure of the Contractor or
CCC to comply with this paragraph.
All compensation insurance policies
shall bear an endorsement or shall have
attached a rider whereby it is provided
that, in the event of expiration or
proposed cancellation of such policies for
any reason whatsoever, the City shall be
notified by registered mail not less than
30 days before expiration or cancellation
is effective.
3)
Designation of Sub-contractors.
In
compliance with the provisions of Section
4100-4108 of the Public Constracts Code of
the State of California, and any amendments
thereof. each bidder shall set forth below
the name and location of each sub-
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contractor who will perform work or labor
or render service to the Contractor.
TRADE
SUB-CONTRACTOR
CITY
LICENSE NO. CLASSIFICATION
4)
Payment of Prevailing Wage Rate.
The
contractor and all subcontractors shall pay
each craft or workman employed on this
project not less than the prevailing wage
rates specified in Resolution No. 12846 of
the Mayor and Common Council of the City of
San Bernardino.
The Engineer shall have
the right to interview any craft or workman
on the project site in order to verify
payment of prevailing wage rates in
accordance with Resolution No. 12846.
5)
Payroll Records.
The Contractor's
attention is directed to the following
provisions of Labor Code Section 1776
(stats. 1978. Ch. 1249).
The Contractor
shall be responsible for the compliance
with these provisions by his
subcontractors.
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(a) The Contractor and all
subcontractors shall keep an
accurate payroll record, showing
the name, address, social
security number. work
classification, straight time and
overtime hours worked each day
and week. and the actual per diem
wages paid to each journeyman,
apprentice, worker, or other
employee employed by him or her
in connection with the public
work.
(b) The payroll records
enumerated under subdivision (a)
shall be certified and shall be
available for inspection at all
reasonable hours at the principal
office of the Contractor on the
following basis:
(1) A certified copy
of an employee's
payroll record shall be
made available for
inspection or furnished
to such employee or his
or her authorized
regresentative on
request.
(c) Each Contractor shall file a
certified copy of the records
enumerated in subdivision (a)
with the Engineer on a weekly
basis. It will be the
Contractor's responsibility to
submit the records enumerated in
subdivision (a) for all of his
subcontractors, in addition to
his own employees. Failure to
submit the records enumerated in
subdivision (a) on a timely basis
shall constitute good and
sufficient reason for
withholding the partial payments
for work accomplished.
7.
Title of Property.
CCC acknowledges the title and
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paramount interest of City to the public property within the
interior of the Central City Mall as is described hereinabove
and agrees never to assail or resist City's title or interest
therein. CCC shall not obtain any interest in said property as a
result of the performance of any of its obligations hereunder
including the payment of any monies as required herein.
8.
Indemnification.
CCC shall exercise its privileges
under any license hereby at its own risk.
CCC shall indemnify
and hold harmless ' City, its elective and appointive boards.
commissions, officers. agents and employees. from liability
resulting from. arising out of, or in any way connected with, the
construction contemplated herein, the occupation or use of the
public areas by CCC or its contractors, both during and after the
construction and installation of any improvements, including
claims resulting from the conduct of CCC. its employees,
invitees, guests or agents of CCC. or CCC's failure to perform
its promises in connection herewith. CCC shall defend City, its
elective and appointive boards. commissions, officers. agents and
employees from any suits or actions at law or in equity for
damages caused, or alleged to have been caused, by reason of any
of CCC's operations under this Agreement.
City shall not be
liable to CCC if CCC's occupation or use of the property is
hindered or disturbed.
9. Waiver. Waiver by City of any breach of any provision
of this license does not waive any subsequent breach of the same
or any other provision.
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10. Notice. All notices relating to this agreement shall
be in writing and delivered in person or sent by certified mail,
postage prepaid, addressed as follows:
AS TO CITY:
AS TO CCC:
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418
Attn: Real Property Division
CENTRAL CITY COMPANY
295 Central City Mall
San Bernardino, CA 92401
11. Assignment. No assignment of this license by CCC, its
successors, legal representatives or assigns, or any subsequent
assignee, shall be binding upon City without the written consent
of City in each instance.
City shall not unreasonably withhold
its consent.
This license may be amended or modified
12.
Amendment.
only by written agreement signed by both parties.
13. Term. The term of this license shall b~ for a period
of one year, commencing August 1, 1988, and expiring on August
1, 1989, or at such time as the work to be performed hereunder is
determ~ned by the Public Works/Engineer to be completed,
whichever comes later.
Any license contained herin may be renewed upon written
agreement of the parties hereto, subject to such conditions as
may be agreed upon by the parties at the time of such renewal.
14.
Consideration.
Consideration for this license is as
set forth in Paragraph 2 above, relating to sharing of the cost
of improvements, and limitation on building fees.
15.
Maintenance.
Maintenance of the improvements,
provided pursuant to this agreement shall be as set forth in the
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Lease.
16. Free of Liens. CCC shall payor cause to be paid all
costs of construction, except as otherwise specifically provided
herein, and shall keep the property free and clear of any and
all claims arising out of the performance of work or furnishing
of materials for said construction and installation.
17.
possessory-. I n:tere3!!'
CCC rocognl ZOfl and understandn
that this license may create a possessory interest subject to
property taxation and that CCC may be subject to the payment of
property taxes levied on such interest. CCC agrees to and shall
hold harmless the City from any and all liability for any such
taxes.
18.
Conflict with Central City Mall.
Ci ty does not
warrant or make any representation concerning its full control
over the Central City Mall and its public areas. City is lessee
of such property by lease from the Redevelopment Agency of the
City of San Bernardino; in addition, City is a signatory with
numerous other parties to a reciprocal easement agreement,
covering the Central City mall.
The existence of each of these
documents is called to the attention of CCC.
Each is a public
record, duly recorded.
In the event any other party to either
the lease or the agreement claims or has any rights to or control
over or interest in the portion of the public areas covered by
this license, CCC shall hold City, its officers, agents and
employees, and the Redevelopment Agency of the City of San
Bernardino and the Community Development Commission, harmless
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from any claims, demands, suits or judgments arising from CCC's
occupancy of the portion of the public areas covered under this
license, or for interruption thereof. In the event this license,
or any portion thereof, should be determined to be void, illegal
or improper, for any reason whatever, or CCC's rights thereunder
are set aside through court action or otherwise, CCC shall have
no recourse against City, its officers, agent and employees.
19.
Entire Agreement.
This Agreement represents the
entire Agreement between the parties hereto and any amendments
and/or addenda shall be made in writing between the parties and
attached to this Agreement.
ATTEST:
CITY OF SAN BERNARDINO
City Clerk
BY:
Evlyn Wilcox, Mayor
CENTRAL CITY COMPANY,
a joint venture
BY: CTC Company
a California partnership
Approved as to form
and legal content:
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~/y Attorney
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BY:
General Partner
BY: Central City Associates
a California joint venture
BY:
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