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HomeMy WebLinkAbout2010-033 1 2 3 4 5 6 7 8 9 l' ('NOTE: ,COMPANION RESOLUTION CDC/2010-6) RESOLUTION NO. 2010-33 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE CITY MANAGER OF THE CITY OF SAN BERNARDINO TO EXECUTE THE REIMBURSEMENT AGREEMENT BETWEEN THE CITY AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FOR THE OFF -SITE DRAINAGE AND APPURTENANT WORK AT THE INTERSECTION OF HIGHLAND AND CENTRAL AVENUES (TELACU HOUSING - SAN BERNARDINO IV, INC., SENIOR HOUSING PROJECT - IVDA REDEVELOPMENT PROJECT AREA) WHEREAS, on February 19,2008, the Community Development Commission of the City of ) 10 San Bernardino ("Commission") approved the 2008 HOME Funds Loan and Grant Agreement (the 11 "HOME Funds Agreement") by and between the Agency and TELACU Senior Housing - San 12 Bernardino IV, Inc., a California non-profit corporation ("Developer"), for the development of a 90- 13 unit Senior Housing Complex on the southeast comer of Highland and Central Avenues; and 14 WHEREAS, as a condition of approval of the development of the Senior Housing Project, 15 the Developer is required to mitigate the on- and off-site drainage issues along Highland A venue 16 east of Central Avenue in front of the Project site and perform appurtenant work at the intersection 17 of Highland and Central Avenues; and 18 WHEREAS, the City has budgeted $374,000 in the 2009-2010/2013-2014 Capital 19 Improvement ("CIP") Funds to mitigate the off-site drainage along Highland Avenue east of Central 20 Avenue and to perform appurtenant work at the intersection of Highland and Central Avenues; and 21 WHEREAS, the mitigation of the off-site drainage and performance of appurtenant work 22 will be hereinafter referred to as the "Project"; and 23 WHEREAS, an estimated additional engineering fee of $174,000 for City staffs salary for 24 monitoring street and lane closure, traffic control, permit, inspection and other related fees have 25 been added to the Project cost as a result of the City Engineering fee increases which were adopted 26 and went into effect on July 18, 2009; and 27 WHEREAS, the City will reimburse the Agency an amount of up to $200,000 from 28 $374,000 of the funds in the CIP budget to off-set the $2.4 million Agency's cost of the off-site improvement cost; and 1 P:lAgendaslResolutionslResolutions\2010\02-16-1O TELACU Senior Housing IV - Reimbursement Agreement MCC Rese.doc 2010-33 1 WHEREAS, the balance of the $174,000 in the CIP budget will be used by the City to pay 2 Staffs cost of street and lane closure, monitoring, traffic control, inspections and other related fees; 3 and 4 WHEREAS, the Agency has charged the Developer with the responsibilities of obtaining all 5 of the required permits and procuring all the necessary services needed to complete the off-site 6 drainage and appurtenant work at the intersection of Highland and Central A venues; and 7 WHEREAS, the Project is exempt from the California Environmental Quality Act 8 ("CEQA"), pursuant to Section 15332, in-fill development, and no further environmental document 9 is required pursuant to Section 15168 of the CEQA Guidelines. 10 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 11 BERNARDINO DOES HEREBY RESOLVE, DE1ERMINE AND ORDER, AS FOLLOWS: 12 Section 1. The Mayor and Common Council approves and authorizes the City Manager 13 of the City of San Bernardino to execute the Reimbursement Agreement as attached hereto as 14 Exhibit "A" by and between the City and the Redevelopment Agency of the City of San Bernardino 15 for the off-site Drainage and Appurtenant Work at the Intersection of Highland and Central Avenue 16 and to make any necessary non-substantive changes as may be approved by the City Attorney, 17 provided such changes do not increase the City's financial contribution to the Project. 18 Section 2. The Mayor and Common Council makes a finding that the Project is exempt 19 from CEQA, pursuant to Section 15332 ofthe CEQA Guidelines, constitutes an in-fill development, 20 and no further environmental document is required pursuant to Section 15168 of the CEQA 21 Guidelines. 22 Section 3. This Resolution shall take effect upon its adoption and execution in the 23 manner as required by the City Charter. 24 /II 25 /II 26 /II 27 1/1 28 /II 2 P:lAgendas\Resolutions\Resolutions\2010102-16-IO TELACU Senior Housing IV - Reimbursement Agreement MCC Reso.doc 1 2 3 4 5 6 7 2010-33 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE CITY MANAGER OF THE CITY OF SAN BERNARDINO TO EXECUTE THE REIMBURSEMENT AGREEMENT BETWEEN THE CITY AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FOR THE OFF-SITE DRAINAGE AND APPURTENANT WORK AT THE INTERSECTION OF HIGHLAND AND CENTRAL AVENUES (TELACU HOUSING - SAN BERNARDINO IV, INC., SENIOR HOUSING PROJECT - IVDA REDEVELOPMENT PROJECT AREA) I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 8 Common Council of the City of San Bernardino at a joint" rpE1I1Rr day of February ,2010, by the following vote to wit: 9 thereof, held on the 16th 10 Council Members: 11 ESTRADA 12 BAXTER 13 BRINKER 14 SHORETT 15 KELLEY 16 JOHNSON 17 MC CAMMACK 18 19 20 21 The foregoing Resolution is hereby approved this / tP/1I day of February 22 23 24 25 26 Approved as to Form: 27 '-L~lcl.vt\ _ 28 meeting Ayes Nays x x - x -.-1L x x x - Abstain Absent ~,~'c~ ,2010. 3 P:lAgendas\Resolutions\Resolutions\201 0102-16-10 TELACU Senior Housing IV - ~ ,bursement Agreement MCC Reso.doc 2010-33 EXHIBIT" A" NOTE: COMPANION RESOLUTION CDC/2010-6 EXHIBIT" A" 2010-33 REIMBURSEMENT AGREEMENT FOR THE OFF -SITE DRAINAGE AND APPURTENANT WORK AT THE INTERSECTION OF HIGHLAND AND CENTRAL AVENUES This Reimbursement Agreement for the Off-Site Drainage and Appurtenant Work at the Intersection of Highland and Central A venues (this "Agreement") is made and entered into on February 16, 2010, by and between the City of San Bernardino, a municipal corporation and Charter City (the "City"), and the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"). The City and the Agency are sometimes referred to herein as a "Party" or the "Parties." RECIT ALS WHEREAS, on February 19, 2008, the Community Development Commission of the City of San Bernardino ("Commission") approved the 2008 HOME Funds Loan and Grant Agreement (the "HOME Funds Agreement") by and between the Agency and TELACU Senior Housing-San Bernardino IV, Inc., a California non-profit corporation ("Developer"), for the development of a 90-unit Senior Housing Complex on the southeast comer of Highland and Central Avenues; and WHEREAS, as a condition of approval of the development of the Senior Housing Project, the Developer is required to mitigate the on- and off-site drainage issues along Highland Avenue east of Central Avenue in front of the Project site and perform appurtenant work at the intersection of Highland and Central Avenues; and WHEREAS, the City has budgeted $374,000 in the 2009-2010/2013-2014 Capital Improvement ("CIP") (SD04-15) funds to mitigate the off-site drainage along Highland Avenue east of Central Avenue and to perform appurtenant work at the intersection of Highland and Central A venues; and WHEREAS, the mitigation of the off-site drainage and performance of appurtenant work will be hereinafter referred to as the "Project"; and WHEREAS, an estimated additional engineering fee of $174,000 for City staffs salary for monitoring street and lane closure, traffic control, permit, inspection and other related fees have been added to the Project cost as a result of the City Engineering fee increases which were adopted and went into effect on July 18, 2009; and WHEREAS, the City will reimburse the Agency an amount of up to $200,000 out of the $374,000 funds in the CIP budget to offset the $2.4 million Agency's cost of the off-site improvement cost; and WHEREAS, the balance of the $174,000 in the CIP budget will be used by the City to pay Staffs cost of street and lane closure, monitoring, traffic control, inspections and other related fees; and 1 P:\AgendasIAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2010102-16-10 TELACU IV OfT-Site Drainage Reimbursement Agrmt. with City.doc 2010-33 WHEREAS, the Agency has charged the Developer with the responsibilities of obtaining all of the required permits and procuring all the necessary services needed to complete the off- site drainage and appurtenant work at the intersection of Highland and Central Avenues. NOW, THEREFORE, for the considerations described herein, the parties do hereby agree as follows: AGREEMENT 1. Costs. The term "Cost" or "Costs" refers to the costs and expenses incurred by the Agency in connection with the Project. 2. Oblie:ations of the Ae:ency. The Agency shall: (a) Cause the Developer to obtain, all permits necessary to construct the Project and to make payment of all permit fees. (b) Cause the Developer to install the Project according to the approved plans using qualified contractors licensed by the State of California for this type of work and in accordance with the California Labor Code Section 1770 relating to payment of prevailing wage rates. (c) Receive final approval by the City for the completed construction work. 3. Oblie:ations of the City. The City shall: (a) Upon completion of the Project and final approval of the Project by the City as described herein, the City shall provide the Developer with the appropriate Notice of Completion for the Project. Upon receipt of such notice by the Developer, the Agency shall request payment from the City of the Costs for the Project ("Cost Notice"). Within sixty (60) calendar days after receipt of the Cost Notice, the City shall pay the Agency the amount due as set forth in the Cost Notice not to exceed $200,000. (b) An estimated additional engineering fee of $174,000 for City staff s salary for monitoring street and lane closure, traffic control, permit, inspection, and other related fees, has been added to the project cost as a result of the City Engineering fee increases which were adopted and went into effect on July 18, 2009. The balance of the $174,000 funds in the CIP budget will be used by the City to pay Staffs cost of street and lane closure, monitoring, traffic control, inspections and other related fees. There will be no cost associated to the Developer or the Agency for these services. 4. Standards for Construction. The construction ofthe Project will be in accordance with approved project plans and specifications, City policies and requirements, and the standard plans and specifications for public works construction (Green Book). 5. Prevailine: Wae:es. Pursuant to the HOME Funds Agreement, the Developer is aware of the requirements of both Federal wage rates and California Labor Code Section 1770, 2 P:lAgendas\Agenda AttachmentslAgenda Attachments\Agrmts-Amend 20 I 0\02-16-1 0 TELACU IV Off-Site Drainage Reimbursement Agrmt. with City.doc 2010-33 which require the payment of prevailing wage rates for public work contracts with contractors to construct the Project in accordance with a public works contract as defined in Sections 1720 and 1720.2 of the California Labor Code. The Developer has acknowledged that the Project shall be deemed a "public works project" as defined in the California Labor Code. The Developer shall be responsible to pay and cause its subcontractors to pay prevailing wage rates for the Project. 6. Contractor Licenses. All work performed on the Project shall be performed only by contractors licensed in the State of California and holding business licenses in the City of San Bernardino and qualified to perform the type of work required. 7. Acceptance of Work. The City shall file a Notice of Completion at such time as it determines that all requirements of this Agreement have been satisfied. 8. Liability for Work Prior to Formal Acceptance. The City shall not be responsible for any damage to the work caused by or arising out of the Developer's, subcontractor's, or any third party's negligent acts or omissions, nor for any damages or injuries to any person or property at the work site prior to the City's formal acceptance. 9. Record Drawings. Prior to acceptance of the Project by the City, the City shall have received three (3) copies of record drawings with certification as to the accuracy and completeness by an engineer licensed in the State of California. The City shall not be responsible for ensuring the completeness and accuracy of the record drawings. 10. Ownership of the Improvements. From and after acceptance of the Project by formal action of the Council, ownership of the Project shall be vested exclusively in the City. 11. 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: If to the City: City of San Bernardino Department of Development Services Attention: Valerie Ross, Director 300 North "D" Street 3rd Floor , San Bernardino, CA 92418 Phone: (909) 384-5057 Fax: (909) 384-5080 If to the Agency: Redevelopment Agency of the City of San Bernardino Attention: Emil A. Marzullo, Interim Executive Director 201 North "E" Street, Suite 301 San Bernardino, CA 92401 Phone: (909) 663-1044 Fax: (909) 888-9413 3 P:IAgendaslAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2010102-16-10 TELACU IV OIl-Site Drainage Reimbursement Agrmt. with City.doc 2010-33 Addresses to which notices or other communications may be delivered may be changed from time-to-time by written notice. 12. Applicable Law. This Agreement will be construed and enforced as provided m California law. 13. Supersedine: State or Federal Law. If any state or federal law or regulation which is enacted or adopted after the effective date of this Agreement 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 such provision of this 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 circumstance which removes the effect of the same on this Agreement, the provisions of this 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. 14. 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, Eastern Division. 15. 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. 16. Section Headine:s. The Section 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. 17. 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. 18. Survival. Each and every covenant in this Agreement shall survive the execution and delivery of this Agreement for the benefit of the Parties. 19. 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 unless specifically stated as "business days". 4 P:lAgendas\Agenda AttachmentslAgenda Attachments\Agrmts-Amend 2010\02-16-10 TELACU IV Off-Site Drainage Reimbursement Agrml with City.doc 2010-33 20. Severability. Every provision of this Agreement is and shall be construed to be a separate and independent covenant. 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 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. 21. 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. 22. Incorporation of Recitals. The "Recitals" in this Agreement are material and are incorporated herein by reference. 23. Amendment. No amendment or waiver of any term of this Agreement shall be binding on the City unless and until it has been approved by the Council and executed by the City Manager, or on the Agency unless and until it has been approved by the Commission and executed by the Interim Executive Director of the Agency. 24. 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. 25. Time of Essence. Time is of the essence on this Agreement. 26. Agreement Termination. This Agreement will terminate upon the earlier of: (a) the completion and acceptance of the Project pursuant to Section 9 above and payment by the City to the Agency in the full amount of $200,000 or (b) two (2) years from and after the date of execution of this Agreement if no work on the Project has commenced within two (2) years after such date of execution of this Agreement. 27. No Third Party Beneficiarv. Neither the Developer nor any other third party is a party to or beneficiary of this Agreement and shall have no rights hereunder. /II /II /II /II /II /II /II 5 P:lAgendas\Agenda AttachmentslAgenda Attachments\Agrmts-Amend 2010\02-16-10 TELACU IV Off-Site Drainage Reimbursement Agrmt. with City.doc 2010-33 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the date written above by their duly authorized officers on their behalf. CITY City of San Bernardino, a municipal corporation and Charter City Date: e>?//c:f' ?O B Approved as to Form: B~~~~ AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Date:c? )J3);u By: Emil A. Marzullo, Interim Executive Director ~~ Approved as to Form: By:Q~ Timothy J. Sab , Agency Counsel 6 P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2010102-16-10 TELACU IV Off-Site Drainage Reimbursement Agrmt. with City.doc ('NOTE: .COMPANION RESOLUTION CDC/2010-6) 1 2 3 4 5 6 7 8 9 RESOLUTION NO. 2010-33 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE CITY MANAGER OF THE CITY OF SAN BERNARDINO TO EXECUTE THE REIMBURSEMENT AGREEMENT BETWEEN THE CITY AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FOR THE OFF-SITE DRAINAGE AND APPURTENANT WORK AT THE INTERSECTION OF HIGHLAND AND CENTRAL AVENUES (TELACU HOUSING - SAN BERNARDINO IV, INC., SENIOR HOUSING PROJECT - IVDA REDEVELOPMENT PROJECT AREA) WHEREAS, on February 19,2008, the Community Development Commission of the City of ) 10 San Bernardino ("Commission") approved the 2008 HOME Funds Loan and Grant Agreement (the 11 "HOME Funds Agreement") by and between the Agency and TELACU Senior Housing - San 12 Bernardino IV, Inc., a California non-profit corporation ("Developer"), for the development of a 90- 13 unit Senior Housing Complex on the southeast corner of Highland and Central Avenues; and 14 WHEREAS, as a condition of approval of the development of the Senior Housing Project, 15 the Developer is required to mitigate the on- and off-site drainage issues along Highland Avenue 16 east of Central Avenue in front of the Project site and perform appurtenant work at the intersection 17 of Highland and Central Avenues; and 18 WHEREAS, the City has budgeted $374,000 in the 2009-2010/2013-2014 Capital 19 Improvement ("CIP") Funds to mitigate the off-site drainage along Highland Avenue east of Central 20 Avenue and to perform appurtenant work at the intersection of Highland and Central Avenues; and 21 WHEREAS, the mitigation of the off-site drainage and performance of appurtenant work 22 will be hereinafter referred to as the "Project"; and 23 WHEREAS, an estimated additional engineering fee of $174,000 for City staffs salary for 24 monitoring street and lane closure, traffic control, permit, inspection and other related fees have 25 been added to the Project cost as a result of the City Engineering fee increases which were adopted 26 and went into effect on July 18,2009; and 27 WHEREAS, the City will reimburse the Agency an amount of up to $200,000 from 28 $374,000 of the funds in the CIP budget to off-set the $2.4 million Agency's cost of the off-site improvement cost; and 1 P:\Agendas\ResolutionslResolutions\2010\02-16-10 TELACU Senior Housing IV. Reimbursement Agreement MeC Reso.doc 2010-33 1 WHEREAS, the balance of the $174,000 in the CIP budget will be used by the City to pay 2 Staff s cost of street and lane closure, monitoring, traffic control, inspections and other related fees; 3 and 4 WHEREAS, the Agency has charged the Developer with the responsibilities of obtaining all 5 of the required permits and procuring all the necessary services needed to complete the off-site 6 drainage and appurtenant work at the intersection of Highland and Central A venues; and 7 WHEREAS, the Project is exempt from the California Environmental Quality Act 8 ("CEQA"), pursuant to Section 15332, in-fill development, and no further environmental document 9 is required pursuant to Section 15168 of the CEQA Guidelines. 10 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 11 BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 12 Section 1. The Mayor and Common Council approves and authorizes the City Manager 13 of the City of San Bernardino to execute the Reimbursement Agreement as attached hereto as 14 Exhibit "A" by and between the City and the Redevelopment Agency of the City of San Bernardino 15 for the off-site Drainage and Appurtenant Work at the Intersection of Highland and Central Avenue 16 and to make any necessary non-substantive changes as may be approved by the City Attorney, 17 provided such changes do not increase the City's financial contribution to the Project. 18 Section 2. The Mayor and Common Council makes a finding that the Project is exempt 19 from CEQA, pursuant to Section 15332 of the CEQA Guidelines, constitutes an in-fill development, 20 and no further environmental document is required pursuant to Section 15168 of the CEQA 21 Guidelines. 22 Section 3. This Resolution shall take effect upon its adoption and execution in the 23 manner as required by the City Charter. 24 /II 25 /II 26 1/1 27 /II 28 1/1 2 P:\Agendas\Resolutions\Resolutions\2010\02-16-10 TELACU Senior Housing IV - Reimbursement Agreement MCC Reso_doc 2010-33 1 2 3 4 5 6 7 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE CITY MANAGER OF THE CITY OF SAN BERNARDINO TO EXECUTE THE REIMBURSEMENT AGREEMENT BETWEEN THE CITY AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FOR THE OFF-SITE DRAINAGE AND APPURTENANT WORK AT THE INTERSECTION OF HIGHLAND AND CENTRAL AVENUES (TELACU HOUSING - SAN BERNARDINO IV, INC., SENIOR HOUSING PROJECT - IVDA REDEVELOPMENT PROJECT AREA) I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 8 Common Council of the City of San Bernardino at a joint' TPgnl ~T day of February ,2010, by the following vote to wit: meeting 9 thereof, held on the 16th 10 Council Members: 11 ESTRADA 12 BAXTER 13 BRINKER 14 SHORETT 15 KELLEY 16 JOHNSON 17 MC CAMMACK 18 19 Abstain Aves Navs x x - x ----1L x x x - Absent ~'~'C~ 20 21 The foregoing Resolution is hereby approved this /J?/1I day of February 22 23 ,2010. 24 25 26 Approved as to Form: 27 ~~lawt\ . Morris, May San Bernardino 28 F. Penman, City Attorney 3 P:\Agendas\Resolutions\ResolutionsI2010\02-16-IO TELACU Senior Housing IV. J< ,bursemenl Agreement MeC Reso,doc 2010-33 EXHIBIT "A" NOTE: COMPANION RESOLUTION CDCj2010-6 EXHIBIT" A" 2010-33 REIMBURSEMENT AGREEMENT FOR THE OFF-SITE DRAINAGE AND APPURTENANT WORK AT THE INTERSECTION OF HIGHLAND AND CENTRAL AVENUES This Reimbursement Agreement for the Off-Site Drainage and Appurtenant Work at the Intersection of Highland and Central Avenues (this "Agreement") is made and entered into on February 16, 2010, by and between the City of San Bernardino, a municipal corporation and Charter City (the "City"), and the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"). The City and the Agency are sometimes referred to herein as a "Party" or the "Parties." RECITALS WHEREAS, on February 19, 2008, the Community Development Commission of the City of San Bernardino ("Commission") approved the 2008 HOME Funds Loan and Grant Agreement (the "HOME Funds Agreement") by and between the Agency and TELACU Senior Housing-San Bernardino IV, Inc., a California non-profit corporation ("Developer"), for the development of a 90-unit Senior Housing Complex on the southeast corner of Highland and Central A venues; and WHEREAS, as a condition of approval of the development of the Senior Housing Project, the Developer is required to mitigate the on- and off-site drainage issues along Highland Avenue east of Central A venue in front of the Project site and perform appurtenant work at the intersection of Highland and Central Avenues; and WHEREAS, the City has budgeted $374,000 in the 2009-2010/2013-2014 Capital Improvement ("CIP") (SD04-1S) funds to mitigate the off-site drainage along Highland Avenue east of Central Avenue and to perform appurtenant work at the intersection of Highland and Central A venues; and WHEREAS, the mitigation of the off-site drainage and performance of appurtenant work will be hereinafter referred to as the "Project"; and WHEREAS, an estimated additional engineering fee of $174,000 for City staffs salary for monitoring street and lane closure, traffic control, permit, inspection and other related fees have been added to the Project cost as a result of the City Engineering fee increases which were adopted and went into effect on July 18,2009; and WHEREAS, the City will reimburse the Agency an amount of up to $200,000 out of the $374,000 funds in the CIP budget to offset the $2.4 million Agency's cost of the off-site improvement cost; and WHEREAS, the balance of the $174,000 in the CIP budget will be used by the City to pay Staffs cost of street and lane closure, monitoring, traffic control, inspections and other related fees; and 1 P\Agendas\Agenda Attachments\Agenda Auachments\Agrmts-Amend 20]0\02-16-10 TELACU IV OfT-Site Draill3.ge Reimbursement Agrmt. with City doc 2010-33 WHEREAS, the Agency has charged the Developer with the responsibilities of obtaining all of the required permits and procuring all the necessary services needed to complete the off- site drainage and appurtenant work at the intersection of Highland and Central Avenues. NOW, THEREFORE, for the considerations described herein, the parties do hereby agree as follows: AGREEMENT 1. Costs. The term "Cost" or "Costs" refers to the costs and expenses incurred by the Agency in connection with the Project. 2. ObIh!:ations of the Al!:encv. The Agency shall: (a) Cause the Developer to obtain, all permits necessary to construct the Project and to make payment of all permit fees. (b) Cause the Developer to install the Project according to the approved plans using qualified contractors licensed by the State of California for this type of work and in accordance with the California Labor Code Section 1770 relating to payment of prevailing wage rates. (c) Receive final approval by the City for the completed construction work. 3. ObIil!:ations of the City. The City shall: (a) Upon completion of the Project and final approval of the Project by the City as described herein, the City shall provide the Developer with the appropriate Notice of Completion for the Project. Upon receipt of such notice by the Developer, the Agency shall request payment from the City of the Costs for the Project ("Cost Notice"). Within sixty (60) calendar days after receipt of the Cost Notice, the City shall pay the Agency the amount due as set forth in the Cost Notice not to exceed $200,000. (b) An estimated additional engineering fee of $174,000 for City staff's salary for monitoring street and lane closure, traffic control, permit, inspection, and other related fees, has been added to the project cost as a result of the City Engineering fee increases which were adopted and went into effect on July 18, 2009. The balance of the $174,000 funds in the CIP budget will be used by the City to pay Staffs cost of street and lane closure, monitoring, traffic control, inspections and other related fees. There will be no cost associated to the Developer or the Agency for these services. 4. Standards for Construction. The construction of the Project will be in accordance with approved project plans and specifications, City policies and requirements, and the standard plans and specifications for public works construction (Green Book). 5. PrevaiIinl!: Wal!:es, Pursuant to the HOME Funds Agreement, the Developer is aware of the requirements of both Federal wage rates and California Labor Code Section 1770, 2 P:\Agendas\Agenda Attachments\Agenda Attachments\AgrmtS-Amend 2010\02-16-10 TELACU IV OIf-Site Drainage Reimbursement Agrmt. with City doc 2010-33 which require the payment of prevailing wage rates for public work contracts with contractors to construct the Project in accordance with a public works contract as defined in Sections 1720 and 1720.2 of the California Labor Code. The Developer has acknowledged that the Project shall be deemed a "public works project" as defined in the California Labor Code. The Developer shall be responsible to pay and cause its subcontractors to pay prevailing wage rates for the Project. 6. Contractor Licenses. All work performed on the Project shall be performed only by contractors licensed in the State of California and holding business licenses in the City of San Bernardino and qualified to perform the type of work required. 7. Acceptance of Work. The City shall file a Notice of Completion at such time as it determines that all requirements of this Agreement have been satisfied. 8. Liability for Work Prior to Formal Acceptance. The City shall not be responsible for any damage to the work caused by or arising out of the Developer's, subcontractor's, or any third party's negligent acts or omissions, nor for any damages or injuries to any person or property at the work site prior to the City's formal acceptance. 9. Record Drawinl!:s. Prior to acceptance of the Project by the City, the City shall have received three (3) copies of record drawings with certification as to the accuracy and completeness by an engineer licensed in the State of California. The City shall not be responsible for ensuring the completeness and accuracy of the record drawings. 10. Ownership of the Improvements. From and after acceptance of the Project by formal action of the Council, ownership of the Project shall be vested exclusively in the City. 11. 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: If to the City: City of San Bernardino Department of Development Services Attention: Valerie Ross, Director 300 North "D" Street, 3rd Floor San Bernardino, CA 92418 Phone: (909) 384-5057 Fax: (909) 384-5080 If to the Agency: Redevelopment Agency of the City of San Bernardino Attention: Emil A. Marzullo, Interim Executive Director 201 North "E" Street, Suite 301 San Bernardino, CA 92401 Phone: (909) 663-1044 Fax: (909) 888-94 \3 3 P:\Agendas\Agenda Attachments\Agenda Attachmenls\Agrmts-Amend 2010\02-16-10 TELACU IV Off-Sile Drainage Reimbursement Agrml. with City.doc 2010-33 Addresses to which notices or other communications may be delivered may be changed from time-to-time by written notice. 12. Applicable Law. This Agreement will be construed and enforced as provided 10 California law. 13. Supersedinl!: State or Federal Law. If any state or federal law or regulation which is enacted or adopted after the effective date of this Agreement 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 such provision of this 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 circumstance which removes the effect of the same on this Agreement, the provisions of this 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. 14. 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, Eastern Division. 15. 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. 16. Section Headinl!:s. The Section 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. 17. 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. 18. Survival. Each and every covenant in this Agreement shall survive the execution and delivery of this Agreement for the benefit of the Parties. 19. 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 unless specifically stated as "business days". 4 P:\Agendas\Agenda Attachments\Agenda Attathments\Agrmts-Amend 2010\02-16-10 TELACU IV Off-Site Drainage Reimbursement Agrmt. with City_doc 2010-33 20. Severability. Every provision of this Agreement is and shall be construed to be a separate and independent covenant. 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 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. 21. Countemarts. 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. 22. Incorporation of Recitals. The "Recitals" in this Agreement are material and are incorporated herein by reference. 23. Amendment. No amendment or waiver of any term of this Agreement shall be binding on the City unless and until it has been approved by the Council and executed by the City Manager, or on the Agency unless and until it has been approved by the Commission and executed by the Interim Executive Director of the Agency. 24. Assie:nment. 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. 25. Time of Essence. Time is of the essence on this Agreement. 26. Ae:reement Termination. This Agreement will terminate upon the earlier of: (a) the completion and acceptance of the Project pursuant to Section 9 above and payment by the City to the Agency in the full amount of $200,000 or (b) two (2) years from and after the date of execution of this Agreement if no work on the Project has commenced within two (2) years after such date of execution of this Agreement. 27. No Third Party Beneficiarv. Neither the Developer nor any other third party is a party to or beneficiary of this Agreement and shall have no rights hereunder. 1/1 /II /II /II 1/1 /II /II 5 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2010\02-16-10 TELACU IV Off-Site Drainage Reimbursement Agrmt. with City.doc 2010-33 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the date written above by their duly authorized officers on their behalf. CITY City of San Bernardino, a municipal corporation and Charter City Date: =<~c:f' PO B Approved as to Form: B~)2bJ James F. P nman, City Attorney AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Date: or );3 /;u By: Emil A. Marzullo, Interim Executive Director ~~'V- Approved as to Form: By: C/~~ Timothy J. Sab ,Agency Counsel 6 P\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2010\02-16-]0 TELACU IV Off-Site Drainage Reimbursement Agrmt. with City.doc