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CITY OF SAN BERNARDINO - REOUEST FOR COUNCIL ACTION
Dept: Development Services
Subject: Resolution approving the final
map for Tentative Tract No.
14112 - located northeasterly of
the intersection of Foothill Drive
and Sterling Avenue.
From: Valerie C. Ross, Director
Date: April 23, 2008
File No: 11.03; TR 14112
MCC Date: October 20, 2008
Synopsis of Previous Council Action:
[See Staff Report]
Recommended Motion:
Adopt Resolution.
'/ceJ4 fer
Valerie C. Ross
Contact Person:
T Nnn Parker Senior Civil Eng:ineer
Phone:
5110
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Supporting data attached:
Staff Report, Reso & Map
Ward:
FUNDING REQUIREMENTS:
Amount:
N/A
Source (Acct. No.) N/A
(Acct. Description) N/A
Council Notes:
Finance:
&50 2o()P-..3<?8
Agenda Item No. ~
If)- 20.09
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Subject:
Approval of the final map for Tentative Tract No. 14112 - located northeasterly of the
intersection of Foothill Drive and Sterling Avenue.
Background:
On November 7,1990, the Planning Commission approved Tentative Tract No. 14112, a 55-lot,
single family, residential subdivision.
On May 18, 1994, the Planning Commission authorized an extension of the time limit for
approval of the tentative tract map. An automatic two-year extension was granted according to
the provisions of Section 66452.11 of the Subdivision Map Act, which extended the approval
date to May 18, 1996. An additional extension was granted according to the provisions of
Section 66452.13 of the Subdivision Map Act, extending the approval date to May 18, 1998.
The Planning Commission approved the final extension, extending the tentative map to May 18,
1999.
The Developer/owner requested that staff schedule Tentative Tract 14112 for final map approval
by the Mayor and Common Council for the meeting of May 17, 1999. Because the final map and
subdivision securities had not been submitted as of the date of the meeting, the Mayor and
Common Council approved a motion to continue the Resolution approving the final map to
August 16, 1999.
On each of the dates listed below, the Mayor and Common Council approved a motion to
continue the Resolution approving the final map to the corresponding date listed below:
Date of Action
August 16, 1999
December 7, 1999
March 6, 2000
June 5, 2000
September 5, 2000
December 4, 2000
March 5, 2001
June 4, 2001
September 4,2001
December 3, 2001
March 4, 2002
June 3, 2002
December 2, 2002
Continued to
December 7,1999
March 6, 2000
June 5, 2000
September 5, 2000
December 4, 2000
March 5, 2001
June 4,2001
September 4, 2001
December 3, 2001
March 4, 2002
June 3, 2002
December 2, 2002
January 21, 2003
Date of Action
January 21, 2003
May 21, 2003
August 18, 2003
November 17, 2003
May 17,2004
November 17, 2004
May 16,2005
November 15, 2005
May 15, 2006
November 6, 2006
May 21, 2007
November 6, 2007
May 19,2008
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Continued to
May 19, 2003
August 18, 2003
November 17, 2003
May 17,2004
November 17,2004
May 16, 2005
November 15, 2005
May 15,2006
November 6, 2006
May 21, 2007
November 6, 2007
May 19,2008
November 17,2008
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT - Continued
The Final Map of Tract Map No. 14112 has been reviewed and found to be substantially in
compliance with the approved Tentative Map and the Subdivision Map Act. Therefore, staff
recommends that the Final Map for Tract Map No. 14112 be approved. The subdivider, Sterling
Heights, LLC, has posted bonds to guarantee the construction of the public improvements within
the tract.
Financial Impact:
There is no financial impact to the City.
Recommendation:
Adopt Resolution.
Attachments:
"A" Location Map
"B" Resolution
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LOCA TION OF
TRACT MAP NO. 14112
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VICINITY MAP
NO SCALE
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CITY OF SAN BERNARDINO
DEVELOPMENT SERVICES DEPARTMENT
REAL PROPERTY SECTION
-TRACT MAP NO. 14112-
FOOTHILL DRIVE & STERLING AVENUE
~ indicates un-incorporated areas within City's
~ Sphere of Influence
Created by: Ryan Sandoval
Date: 9/30/08
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RESOLUTION NO.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO APPROVING THE FINAL MAP FOR TRACT MAP NO. 14112,
3 LOCATED NORTHEASTERLY OF THE INTERSECTION OF FOOTHILL DRIVE
AND STERLING AVENUE, ACCEPTING THE PUBLIC DEDICATIONS AS SET
4 FORTH ON SAID MAP; AND AUTHORIZING EXECUTION OF THE STANDARD
FORM OF AGREEMENT FOR THE IMPROVEMENTS IN SAID SUBDIVISION,
5 WITH TIME FOR PERFORMANCE SPECIFIED.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
7 OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The Mayor and Common Council find that proposed Tract Map No. 14112,
9 a fifty-six lot single-family residential subdivision, located northeasterly of the intersection of
10 Foothill Drive and Sterling Avenue, together with the provisions for their design and
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improvement, is consistent with the General Plan of the City of San Bernardino.
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SECTION 2. The City Manager of the City of San Bernardino is authorized on behalf of
14 said City to execute the standard form Subdivision Improvement Agreement with Sterling
15 Heights, LLC, attached and incorporated herein as Exhibit A, for the improvements in said Tract
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Map as are required by Title 19 of the San Bernardino Municipal Code and the California
Subdivision Map Act. The time for performance is as specified in the Agreement. Said
improvements are specifically described and shown on Drawings approved and on file in the
office of Development Services of the City of San Bernardino.
SECTION 3. The Final Map of said Tract Map is hereby approved and the City of San
Bernardino hereby accepts as public property all dedications within the subdivision as shown on
said Final Map for streets, alleys (including access rights), drainage and other public easements.
As a condition precedent to approval of the Final Map, the Subdivider shall first execute the
agreement referenced in Section 2 hereof for the improvements within said subdivision.
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2 RESOLUTION. . . APPROVING THE FINAL MAP FOR TRACT MAP NO.
14112, LOCATED NORTHEASTERLY OF THE INTERSECTION OF FOOTHILL
3 DRIVE AND STERLING A VENUE, ACCEPTING THE PUBLIC DEDICATIONS AS
SET FORTH ON SAID MAP; AND AUTHORIZING EXECUTION OF THE
4 STANDARD FORM OF AGREEMENT FOR THE IMPROVEMENTS IN SAID
5 SUBDIVISION, WITH TIME FOR PERFORMANCE SPECIFIED.
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The City Clerk shall certify approval and acceptance of the Mayor and Common
8 Council as set forth in this Resolution.
9 SECTION 4. This Resolution is rescinded if the parties to the agreement fail to execute
10 it within sixty (60) days of the passage of this Resolution.
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6 Common Council of the City of San Bernardino at a
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RESOLUTION . . . APPROVING THE FINAL MAP FOR TRACT MAP NO.
4112, LOCATED NORTHEASTERLY OF THE INTERSECTION OF FOOTHILL
RIVE AND STERLING AVENUE, ACCEPTING THE PUBLIC DEDICATIONS AS
ET FORTH ON SAID MAP; AND AUTHORIZING EXECUTION OF THE
TANDARD FORM OF AGREEMENT FOR THE IMPROVEMENTS IN SAID
UBDIVISION, WITH TIME FOR PERFORMANCE SPECIFIED.
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
meeting thereof,
held on the
day of
, 2008, by the following v.ote, to wit:
Council Members:
AYES
NAYS
ABST AIN
ABSENT
ESTRADA
BAXTER
12 BRINKER
13 DERRY
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KELLEY
JOHNSON
MC CAMMACK
City Clerk
The foregoing resolution is hereby approved this
day of , 2008.
Patrick 1. Morris, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
City Attorney
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By: (
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Exhibit "A"
AGREEMENT
(Subdivision Improvements)
THIS AGREEMENT is made and entered into as of this day of
, 2008, by and between the CITY OF SAN BERNARDINO, a Municipal
Corporation, hereinafter referred to as "City," and Sterling Heights, LLC, hereinafter referred
to as "Subdivider."
RECITALS
A. WHEREAS, Subdivider has presented to City for approval a final subdivision
map (hereafter called "map") entitled Tract No. 14112; and,
B. WHEREAS, the map has been filed with the City for presentation to the City
Council (hereinafter called "Council") of the City for its approval, which map is hereby
referred to and incorporated herein; and,
C. WHEREAS, Subdivider has requested approval of the map prior to the
construction and completion of improvements, including all streets, highways or public ways
and public utility facilities which are a part of, or appurtenant to, the subdivision (hereinafter
called "subdivision") designated in the map, all in accordance with, and as required by, the
Plans and Specifications for all or any of said improvements in, appurtenant to, or outside the
limits of the subdivision, which Plans and Specifications are now on file in the Office of the
City Engineer of the City; and,
D. WHEREAS, Council has approved said map and accepted the dedications
therein offered, or some thereof, on condition that Subdivider first enter into and execute this
Agreement with the City; and,
E. WHEREAS, This Agreement is executed pursuant to the provisions of the
Subdivision Map Act of the State of California and Title 19 San Bernardino Municipal Code.
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NOW THEREFORE, for and in consideration of the approval of the map and of the
acceptance of the dedications, or some thereof, therein offered and in 'order to insure
satisfactory performance by Subdivider of Subdivider's obligations under said Subdivision
Map Act and said Ordinance, the parties agree as follows:
1. Performance of Work. Subdivider will do and perform, or cause to be done
and performed, at Subdivider's own expense, in a good and workmanlike manner, and furnish
all required materials, all to the satisfaction of the City Engineer of City, the work and
improvements within (and/or without) the subdivision to complete the improvements in
accordance with the Plans and Specifications on file as hereinbefore specified, or with any
changes required or ordered by said Engineer which, in his opinion, are necessary or required
to complete the work.
2. Work: Places and Grades to be Fixed bv Engineer. All of said work is to be
done at the places, of the materials, in the manner, and at the grades, all as shown upon the
Plans and Specifications therefor, heretofore approved by City Engineer and which are now
on file in his office, and to the satisfaction of said City Engineer.
3. Work: Time for Commencement and Performance. City hereby fixes the time
for the completion of said work to be within 24 months from the date hereof.
4. Time of Essence - Extension. Time is of the essence of this Agreement;
provided that, in the event good cause is shown therefor, the City Engineer may extend the
time for completion of the improvements hereunder. Any such extension may be granted
without notice to the Subdivider's surety, and extensions so granted shall not relieve the
surety's liability on the bond to secure the faithful performance of this Agreement. The City
Engineer shall be the sole and final judge as to whether or not good cause has been shown to
entitle Subdivider to an extension.
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5. Repairs and Replacements. Subdivider shall replace, or have replaced, or
repair. or have repaired, as the case may be, all pipes and monuments shown on the map
which have been destroyed or damaged, and Subdivider shall replace, or have replaced,
repair, or have repaired, as the case may be, or pay to the owner the entire cost of replacement
or repairs, of any and all property damaged or destroyed by reason of any work done
hereunder, whether such property be owned by the United States, or any agency thereof, or
the State of California, or any agency or political subdivision thereof, or by the City, or by
any public or private corporation, or by any person whomsoever, or by any combination of
such owners. Any such repair or replacement shall be to the satisfaction, and subject to the
approval, of the City Engineer.
6. Utilitv Deposits - Statement. Subdivider shall file with the City Clerk, prior to
the commencement of any work to be performed within the area delineated on the map, a
written statement signed by Subdivider, and each public utility corporation involved, to the
effect that Subdivider has made all deposits legally required by such public utility corporation
for the connection of any and all public utilities to be supplied by such public utility
corporation within the Subdivision.
7. Permits: Compliance with Law. Subdivider shall, at Subdivider's expense,
obtain all necessary permits and licenses for the construction of such improvements, give all
necessary notices and pay all fees and taxes required by law. Subdivider shall comply with all
provisions of the Subdivision Map Act and Title 19 San Bernardino Municioal Code.
8. Superintendence bv Subdivider. Subdivider shall give personal
superintendence to the work on said improvement, or have a competent foreman or
superintendent, satisfactory to the City Engineer on the work at all times during progress, with
authority to act for Subdivider.
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9. Inspection bv Citv. Subdivider shall at all times maintain proper facilities and
provide safe access for inspection by City to all parts ofthe work and to the shops wherein the
work is in preparation.
10. Contract Securitv. Concurrently with the execution hereof, Subdivider shall
furnish to City improvement security as follows:
(a) An amount equal to at least one hundred percent (100%) of the total estimated
cost of the improvements and acts to be performed as security for the faithful
performance of this Agreement;
(b) An amount equal to at least fifty percent (50%) of the total estimated cost of
the improvements and acts to be performed as security for the payment of all
persons performing labor and furnishing materials in connection with this
Agreement; and,
(c) An amount equal to at least twenty-five percent (25%) of the total estimated
cost ofthe improvements and acts to be performed as security for the guarantee
and warranty of the work for a period of one (I) year following the completion
and acceptance thereof against any defective work or labor done, or defective
materials furnished.
As a part of the obligation guaranteed by the security and in addition to the
face amount of the security, there shall be included costs and reasonable
expenses and fees, including reasonable attorney's fees, incurred by City in
successfully enforcing the obligation secured. The type of security furnished
shall be in the form of bonds, deposits or letters of credit as provided in Title
19 San Bernardino Municipal Code, and the type shall be at the option of and
subject to the approval of the City Engineer and the City Attorney.
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11. Subdivider's Insurance. Subdivider shall not commence work under this
Agreement until Subdivider shall have obtained all insurance required under this paragraph,
and such insurance shall have been approved by City Attorney as to form, amount and carrier,
nor shall Subdivider allow any contractor or subcontractor to commence work on his contract
or subcontract until all similar insurance required of the contractor or subcontractor shall have
been so obtained and approved. All requirements herein provided shall appear either in the
body of the insurance policies or as endorsements and shall specifically bind the insurance
carner.
(a) Worker's Compensation Insurance/Emplover's Liability Insurance.
Subdivider shall maintain, during the life of this Agreement, Worker's
Compensation Insurance and Employer's Liability Insurance for all
Subdivider's employees employed at the site of improvement, and, in case any
work is sublet, Subdivider shall require any contractor or subcontractor
similarly to provide Worker's Compensation Insurance and Employer's
Liability Insurance for all contractor's or subcontractor's employees, unless
such employees are covered by the protection afforded by Subdivider. In case
any class of employees engaged in work under this Agreement at the site of the
project is not protected under any Worker's Compensation Law, Subdivider
shall provide, and shall cause each contractor and subcontractor to provide,
adequate insurance for the protection of employees not otherwise protected.
Subdivider shall indemnify City for any damage resulting to it from failure of
either Subdivider or any contractor or subcontractor to take out or maintain
such insurance.
(b) Public Liability and Propertv Damage Insurance. Subdivider shall take out and
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maintain, during the life of this Agreement, such public liability and property
damage insurance as shall insure City, its elective and appointive boards,
commissions, officers, agents and employees, Subdivider and any contractor or
subcontractor performing work covered by this Agreement from claims for
damages for personal injury, (as defined hereunder), including death, as well as
from claims for property damage or product liability which may arise from
Subdivider's or any contractor's or subcontractor's operations hereunder,
whether such operations be by Subdivider or any contractor or subcontractor,
or by anyone, including, without limitation, agents, employees or independent
contractors, directly or indirectly employed by either Subdivider or any
contractor or subcontractor, and the amounts of such insurance shall be as
follows:
(1) Public Liability Insurance. In an amount not less than One Million
Dollars ($1,000,000.00) for injuries, including, but not limited to,
death, to anyone person, and, subject to the same limit for each person,
in an amount not less than One Million Dollars ($1,000,000.00) on
account of anyone occurrence; Product Liability Insurance coverage
should be part of the Public Liability Insurance;
(2) Propertv Damage Insurance. In an amount not less than One Million
Dollars ($1,000,000.00) for damage to the property of each person on
account of anyone occurrence.
In the event that any of the aforesaid insurance policies provided for in this
Paragraph II insures any entity, person, board or commission other than those
mentioned in this paragraph, such policy shall contain a standard form of
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cross-liability endorsement, insuring on such policy City, its elective and
appointive boards, commissions, officers, agents and employees, Subdivider
and any contractor or subcontractor performing work covered by this
Agreement.
(3) Tail Coverage. Insurance coverage, albeit for public liability or
property damage, shall be written, if possible, on an "occurrence" form
rather than a "claims made" policy. If the insurance policy is written
on a "claims made" policy, then additional coverage, entitled "tail
coverage" must be purchased to cover a period of one (I) year from
completion of the project. All subcontractors must and shall comply
with the same insurance provisions as the contractor(s) and
subdivider(s).
Evidence of Insurance.
Subdivider and contractor shall furnish City,
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concurrently with the execution hereof, with satisfactory evidence of the insurance required,
and evidence that City is named and endorsed on the policy as an additional insured.
Subdivider and contractor shall also provide City with evidence that each carrier will be
required to give City at least ten (10) days prior written notice ofthe cancellation or reduction
in coverage of any policy during the effective period of this Agreement.
13. Hold Harmless/Indemnification. Subdivider(s)/Developer(s) hereby agree to
and shall protect, defend, indemnify and hold the City and its elective and appointive boards,
commissions, officers, agents, employees and servants free and harmless from any and all
liability, losses, damages, claims, liens, demands and causes of action of every kind and
character including, but not limited to, the amounts of judgments, penalties, interests, court
costs, attorney' s/Iegal fees, and all other expenses incurred by the City arising in favor of any
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party, including claims, liens, debts, demands for lost wages or compensation, personal
injuries, including employees of the City, death or damages to property (including property of
the City) and without limitation by enumeration, all other claims or demands of every
character occurring or in any way incident to, in connection with or arising directly or
indirectly, (including from the negligent performance by its officers, employees, agents) from
the terms of this Agreement, including, but not limited to, City's approval of the Final Map
for Tract No. 14112, whether such operations/incidents are caused by contractor, Subdivider
or any of contractor/Subdivider's subcontractors, contractors or by anyone or more persons
directly or indirectly employed by or acting as agent for contractor, Subdivider, or anyone of
contractor or Subdivider's contractors or subcontractors. Subdivider/Developer shall
investigate, handle, respond to, provide defense for and defend any such claims, demand, or
suit at the sole expense of the Subdivider/Developer even if the claim or claims alleged are
groundless, false or fraudulent. Subdivider agrees to, and shall, defend City, its 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 the aforesaid
operations, provided as follows:
(a) That City does not, and shall not, waive any rights against Subdivider which it
may have by reason of the aforesaid hold harmless agreement, because of the
acceptance by City, or by deposit with City by Subdivider, or any of the
insurance policies described in Paragraph II hereof.
(b) That the aforesaid hold harmless agreement by Subdivider shall apply to all
damages and claims for damages of every kind suffered, or alleged to have
been suffered, by reason of any of the aforesaid operations referred to in this
paragraph, regardless of whether or not City has prepared, supplied or
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approved of Plans and/or Specifications for the subdivision, or regardless of
whether or not such insurance policies shall have been determined to be
applicable to any of such damages or claims for damages.
This provision is not intended to create any cause of action in favor of any third party against
Subdivider/Developer or the City or to enlarge in any way the Subdivider'slDeveloper's
liability but is intended solely to provide for indemnification of the City from liability for
damage or injuries to third persons or property arising from SubdividerlDeveloper's
performance hereunder.
14. Title to Imorovements. Title to, and ownership of, all improvements
constructed hereunder by Subdivider shall vest absolutely in City, upon completion and
acceptance of such improvements by City.
15. Reoair or Reconstruction of Defective Work. If, within a period of one year
after final acceptance of the work performed under this Agreement, any structure or part of
any structure furnished and/or installed or constructed, or caused to be installed or constructed
by Subdivider, or any of the work done under this Agreement, fails to fulfill any of the
requirements of this Agreement or the Specifications referred to herein, Subdivider shall,
without delay and without any cost to City, repair or replace or reconstruct any defective or
otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act
promptly or in accordance with this requirement, or should the exigencies of the situation as
determined by the City in the exercise of its sole discretion require repair, replacement or
reconstruction before the Subdivider can be notified, City may, at its option, make the
necessary repairs or replacements or perform the necessary work, and Subdivider shall pay to
the City the actual cost of such repairs plus fifteen percent (15%).
16. Subdivider Not Agent of City. Neither Subdivider nor any of Subdivider's
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agents or contractors are, or shall be, considered to be agents of City in connection with the
performance of Subdivider's obligations under this Agreement.
17. Cost of Engineering and Inspection. Subdivider shall pay to City the costs of
all permit fees for all engineering inspections and other services connected with the City in
regard to the subdivision. Said fees shall be paid prior to commencing any construction.
18. Notice of Breach and Default. If Subdivider refuses or fails to obtain
prosecution of the work, or any severable part thereof, with such diligence as will insure its
completion within the time specified, or any extensions thereof, or fails to obtain completion
of said work within such time, or if the Subdivider should be adjudged a bankrupt, or
Subdivider should make a general assignment for the benefit of Subdivider's creditors, or if a
receiver should be appointed in the event of Subdivider's insolvency, or if Subdivider, or any
of Subdivider's contractors, subcontractors, agents or employees, should violate any of the
provisions of this Agreement, City Engineer or City Council may serve written notice upon
Subdivider and subdivider's surety of breach of this Agreement, or of any portion thereof, and
default of Subdivider.
19. Breach of Agreement: Performance bv Surety or Citv. In the event of any such
notice, Subdivider's surety shall have the duty to take over and complete the work and the
improvement herein specified; provided, however, that if the surety, within five days after the
service of such notice of breach, does not give City written notice of its intention to take over
the performance of the contract, and does not commence performance thereof within five days
after notice to City of such election, City may take over the work and prosecute the same to
completion, by contract or by any other method City may deem advisable, for the account and
at the expense of Subdivider, and Subdivider's surety shall be liable to City for any excess
cost or damages occasioned City thereby; and, in such event, City, without liability for so
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doing, may take possession of, and utilize in completing the work, such materials, appliances,
plant and other property belonging to Subdivider as may be on the site of the work and
necessary therefor.
20. Notices. All notices herein required shall be in writing, and delivered In
person or sent by registered mail, postage prepaid.
(a) Notices required to be given to City shall be addressed as follows:
City Manager
City Hall
300 North "D" Street
San Bernardino, CA 92418
(b) Notices required to be given to Subdivider shall be addressed as follows:
Sterling Heights, LLC
Clo Richard J. Battaglia, Manager
3366 Via Lido
Newport Beach, CA 92663
(c) Notices required to be given to surety of Subdivider shall be addressed as
follows:
International Fidelity Insurance Company
Cheryl Ripley
Santa Rosa, CA
Provided that any party or the surety may change such address by notice in writing to the
other party, and, thereafter, notices shall be addressed and transmitted to the new address.
21. Successors Bound. This Agreement shall be binding upon and inure to the benefit of
each of the parties and their respective legal representatives, successors, heirs and assigns.
II
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
By:
SUBDIVIDER:
Sterling Heights, LLC, a California Limited
Liability Company
CITY OF SAN BERNARDINO
Mark Weinberg, Interim City Manager
City of San Bernardino
By:
ATTEST:
Richard J. Battaglia, Manager
City Clerk
Approved as to form:
JAMES F. PENMAN,
City Attorney,
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INSTRUCTIONS
If the Subdivider is a corporation, the Agreement must be executed in the corporate
name and signed by the President or a Vice-President and the Secretary or Assistant
Secretary, and the corporate seal affixed. If the Subdivider is a partnership, it must be signed
by all partners. If the subdivider is an individual doing business under a fictitious name, it
must be signed by all persons having an interest in the business, and the fictitious name must
be signed also. The Agreement must be notarized.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
a
Notary
20_,
Public,
before me,
personally
On this
day of
appeared
personally know to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed tot he within instrument and acknowledged to me
that hlshe/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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Signature
(This area for official seal.)
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AGREEMENT
(Subdivision Improvements)
THIS AGREEMENT is made and entered into as of this day of
, 2008, by and between the CITY OF SAN BERNARDINO, a Municipal
Corporation, hereinafter referred to as "City," and Sterling Heights, LLC, hereinafter referred
to as "Subdivider."
RECITALS
A. WHEREAS, Subdivider has presented to City for approval a final subdivision
map (hereafter called "map") entitled Tract No. 14112; and,
B. WHEREAS, the map has been filed with the City for presentation to the City
Council (hereinafter called "Council") of the City for its approval, which map is hereby
referred to and incorporated herein; and,
C. WHEREAS, Subdivider has requested approval of the map pnor to the
construction and completion of improvements, including all streets, highways or public ways
and public utility facilities which are a part of, or appurtenant to, the subdivision (hereinafter
called "subdivision") designated in the map, all in accordance with, and as required by, the
Plans and Specifications for all or any of said improvements in, appurtenant to, or outside the
limits of the subdivision, which Plans and Specifications are now on file in the Office of the
City Engineer of the City; and,
D. WHEREAS, Council has approved said map and accepted the dedications
therein offered, or some thereof, on condition that Subdivider first enter into and execute this
Agreement with the City; and,
E. WHEREAS, This Agreement is executed pursuant to the provisions of the
Subdivision Map Act of the State of California and Title 19 San Bernardino Municioal Code.
NOW THEREFORE, for and in consideration of the approval of the map and of the
acceptance of the dedications, or some thereof, therein offered and in order to insure
satisfactory performance by Subdivider of Subdivider's obligations under said Subdivision
Map Act and said Ordinance, the parties agree as follows:
I. Performance of Work. Subdivider will do and perform, or cause to be done
and performed, at Subdivider's own expense, in a good and workmanlike manner, and furnish
all required materials, all to the satisfaction of the City Engineer of City, the work and
improvements within (and/or without) the subdivision to complete the improvements in
accordance with the Plans and Specifications on file as hereinbefore specified, or with any
changes required or ordered by said Engineer which, in his opinion, are necessary or required
to complete the work.
2. Work: Places and Grades to be Fixed bv Engineer. All of said work is to be
done at the places, of the materials, in the manner, and at the grades, all as shown upon the
Plans and Specifications therefor, heretofore approved by City Engineer and which are now
on file in his office, and to the satisfaction of said City Engineer.
3. Work: Time for Commencement and Performance. City hereby fixes the time
for the completion of said work to be within 24 months from the date hereof.
4. Time of Essence - Extension. Time is of the essence of this Agreement;
provided that, in the event good cause is shown therefor, the City Engineer may extend the
time for completion of the improvements hereunder. Any such extension may be granted
without notice to the Subdivider's surety, and extensions so granted shall not relieve the
surety's liability on the bond to secure the faithful performance of this Agreement. The City
Engineer shall be the sole and final judge as to whether or not good cause has been shown to
entitle Subdivider to an extension.
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5. Repairs and Replacements. Subdivider shall replace, or have replaced, or
repair, or have repaired, as the case may be, all pipes and monuments shown on the map
which have been destroyed or damaged, and Subdivider shall replace, or have replaced,
repair, or have repaired, as the case may be, or pay to the owner the entire cost of replacement
or repairs, of any and all property damaged or destroyed by reason of any work done
hereunder, whether such property be owned by the United States, or any agency thereof, or
the State of California, or any agency or political subdivision thereof, or by the City, or by
any public or private corporation, or by any person whomsoever, or by any combination of
such owners. Any such repair or replacement shall be to the satisfaction, and subject to the
approval, of the City Engineer.
6. Utilitv Deposits - Statement. Subdivider shall file with the City Clerk, prior to
the commencement of any work to be performed within the area delineated on the map, a
written statement signed by Subdivider, and each public utility corporation involved, to the
effect that Subdivider has made all deposits legally required by such public utility corporation
for the connection of any and all public utilities to be supplied by such public utility
corporation within the Subdivision.
7. Permits: Compliance with Law. Subdivider shall, at Subdivider's expense,
obtain all necessary permits and licenses for the construction of such improvements, give all
necessary notices and pay all fees and taxes required by law. Subdivider shall comply with all
provisions of the Subdivision Map Act and Title 19 San Bernardino Municipal Code.
8. Superintendence bv Subdivider. Subdivider shall give personal
superintendence to the work on said improvement, or have a competent foreman or
superintendent, satisfactory to the City Engineer on the work at all times during progress, with
authority to act for Subdivider.
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9. Inspection bv City. Subdivider shall at all times maintain proper facilities and
provide safe access for inspection by City to all parts of the work and to the shops wherein the
work is in preparation.
10. Contract Securitv. Concurrently with the execution hereof, Subdivider shall
furnish to City improvement security as follows:
(a) An amount equal to at least one hundred percent (100%) of the total estimated
cost of the improvements and acts to be performed as security for the faithful
performance of this Agreement;
(b) An amount equal to at least fifty percent (50%) of the total estimated cost of
the improvements and acts to be performed as security for the payment of all
persons performing labor and furnishing materials in connection with this
Agreement; and,
(c) An amount equal to at least twenty-five percent (25%) of the total estimated
cost of the improvements and acts to be performed as security for the guarantee
and warranty of the work for a period of one (I) year following the completion
and acceptance thereof against any defective work or labor done, or defective
materials furnished.
As a part of the obligation guaranteed by the security and in addition to the
face amount of the security, there shall be included costs and reasonable
expenses and fees, including reasonable attorney's fees, incurred by City in
successfully enforcing the obligation secured. The type of security furnished
shall be in the form of bonds, deposits or letters of credit as provided in Title
19 San Bernardino Municipal Code, and the type shall be at the option of and
subject to the approval of the City Engineer and the City Attorney.
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II. Subdivider's Insurance. Subdivider shall not commence work under this
Agreement until Subdivider shall have obtained all insurance required under this paragraph,
and such insurance shall have been approved by City Attorney as to form, amount and carrier,
nor shall Subdivider allow any contractor or subcontractor to commence work on his contract
or subcontract until all similar insurance required of the contractor or subcontractor shall have
been so obtained and approved. All requirements herein provided shall appear either in the
body of the insurance policies or as endorsements and shall specifically bind the insurance
carner.
(a) Worker's Compensation Insurance/Employer's Liability Insurance.
Subdivider shall maintain, during the life of this Agreement, Worker's
Compensation Insurance and Employer's Liability Insurance for all
Subdivider's employees employed at the site of improvement, and, in case any
work is sublet, Subdivider shall require any contractor or subcontractor
similarly to provide Worker's Compensation Insurance and Employer's
Liability Insurance for all contractor's or subcontractor's employees, unless
such employees are covered by the protection afforded by Subdivider. In case
any class of employees engaged in work under this Agreement at the site of the
project is not protected under any Worker's Compensation Law, Subdivider
shall provide, and shall cause each contractor and subcontractor to provide,
adequate insurance for the protection of employees not otherwise protected.
Subdivider shall indemnify City for any damage resulting to it from failure of
either Subdivider or any contractor or subcontractor to take out or maintain
such insurance.
(b) Public Liability and Property Damage Insurance. Subdivider shall take out and
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maintain, during the life of this Agreement, such public liability and property
damage insurance as shall insure City, its elective and appointive boards,
commissions, officers, agents and employees, Subdivider and any contractor or
subcontractor performing work covered by this Agreement from claims for
damages for personal injury, (as defined hereunder), including death, as well as
from claims for property damage or product liability which may arise from
Subdivider's or any contractor's or subcontractor's operations hereunder,
whether such operations be by Subdivider or any contractor or subcontractor,
or by anyone, including, without limitation, agents, employees or independent
contractors, directly or indirectly employed by either Subdivider or any
contractor or subcontractor, and the amounts of such insurance shall be as
follows:
(I ) Public Liability Insurance. In an amount not less than One Million
Dollars ($1,000,000.00) for injuries, including, but not limited to,
death, to anyone person, and, subject to the same limit for each person,
in an amount not less than One Million Dollars ($1,000,000.00) on
account of anyone occurrence; Product Liability Insurance coverage
should be part of the Public Liability Insurance;
(2) Property Damage Insurance. In an amount not less than One Million
Dollars ($1,000,000.00) for damage to the property of each person on
account of anyone occurrence.
In the event that any of the aforesaid insurance policies provided for in this
Paragraph 11 insures any entity, person, board or commission other than those
mentioned in this paragraph, such policy shall contain a standard form of
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cross-liability endorsement, insuring on such policy City, its elective and
appointive boards, commissions, officers, agents and employees, Subdivider
and any contractor or subcontractor performing work covered by this
Agreement.
(3) Tail Coverage. Insurance coverage, albeit for public liability or
property damage, shall be written, if possible, on an "occurrence" form
rather than a "claims made" policy. If the insurance policy is written
on a "claims made" policy, then additional coverage, entitled "tail
coverage" must be purchased to cover a period of one (I) year from
completion of the project. All subcontractors must and shall comply
with the same insurance provisions as the contractor(s) and
subdivider(s).
12. Evidence of Insurance. Subdivider and contractor shall furnish City,
concurrently with the execution hereof, with satisfactory evidence of the insurance required,
and evidence that City is named and endorsed on the policy as an additional insured.
Subdivider and contractor shall also provide City with evidence that each carrier will be
required to give City at least ten (10) days prior written notice of the cancellation or reduction
in coverage of any policy during the effective period of this Agreement.
13. Hold Harmless/Indemnification. Subdivider(s)/Developer(s) hereby agree to
and shall protect, defend, indemnify and hold the City and its elective and appointive boards,
commissions, officers, agents, employees and servants free and harmless from any and all
liability, losses, damages, claims, liens, demands and causes of action of every kind and
character including, but not limited to, the amounts of judgments, penalties, interests, court
costs, attomey's/Iegal fees, and all other expenses incurred by the City arising in favor of any
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party, including claims, liens, debts, demands for lost wages or compensation, personal
injuries, including employees of the City, death or damages to property (including property of
the City) and without limitation by enumeration, all other claims or demands of every
character occurring or in any way incident to, in connection with or arising directly or
indirectly, (including from the negligent performance by its officers, employees, agents) from
the terms of this Agreement, including, but not limited to, City's approval of the Final Map
for Tract No. 14112, whether such operations/incidents are caused by contractor, Subdivider
or any of contractor/Subdivider's subcontractors, contractors or by anyone or more persons
directly or indirectly employed by or acting as agent for contractor, Subdivider, or anyone of
contractor or Subdivider's contractors or subcontractors. Subdivider/Developer shall
investigate, handle, respond to, provide defense for and defend any such claims, demand, or
suit at the sole expense of the Subdivider/Developer even if the claim or claims alleged are
groundless, false or fraudulent. Subdivider agrees to, and shall, defend City, its 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 the aforesaid
operations, provided as follows:
(a) That City does not, and shall not, waive any rights against Subdivider which it
may have by reason of the aforesaid hold harmless agreement, because of the
acceptance by City, or by deposit with City by Subdivider, or any of the.
insurance policies described in Paragraph II hereof.
(b) That the aforesaid hold harmless agreement by Subdivider shall apply to all
damages and claims for damages of every kind suffered, or alleged to have
been suffered, by reason of any of the aforesaid operations referred to in this
paragraph, regardless of whether or not City has prepared, supplied or
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approved of Plans and/or Specifications for the subdivision, or regardless of
whether or not such insurance policies shall have been determined to be
applicable to any of such damages or claims for damages.
This provision is not intended to create any cause of action in favor of any third party against
Subdivider/Developer or the City or to enlarge in any way the Subdivider'sIDeveloper's
liability but is intended solely to provide for indemnification of the City from liability for
damage or injuries to third persons or property arising from SubdividerIDeveloper's
performance hereunder.
14. Title to Improvements. Title to, and ownership of, all improvements
constructed hereunder by Subdivider shall vest absolutely in City, upon completion and
acceptance of such improvements by City.
15. Repair or Reconstruction of Defective Work. If, within a period of one year
after final acceptance of the work performed under this Agreement, any structure or part of
any structure furnished and/or installed or constructed, or caused to be installed or constructed
by Subdivider, or any of the work done under this Agreement, fails to fulfill any of the
requirements of this Agreement or the Specifications referred to herein, Subdivider shall,
without delay and without any cost to City, repair or replace or reconstruct any defective or
otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act
promptly or in accordance with this requirement, or should the exigencies of the situation as
determined by the City in the exercise of its sole discretion require repair, replacement or
reconstruction before the Subdivider can be notified, City may, at its option, make the
necessary repairs or replacements or perform the necessary work, and Subdivider shall pay to
the City the actual cost of such repairs plus fifteen percent (15%).
16. Subdivider Not Agent of City. Neither Subdivider nor any of Subdivider's
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agents or contractors are, or shall be, considered to be agents of City in connection with the
performance of Subdivider's obligations under this Agreement.
17. Cost of Engineering and Inspection. Subdivider shall pay to City the costs of
all permit fees for all engineering inspections and other services connected with the City in
regard to the subdivision. Said fees shall be paid prior to commencing any construction.
18. Notice of Breach and Default. If Subdivider refuses or fails to obtain
prosecution of the work, or any severable part thereof, with such diligence as will insure its
completion within the time specified, or any extensions thereof, or fails to obtain completion
of said work within such time, or if the Subdivider should be adjudged a bankrupt, or
Subdivider should make a general assignment for the benefit of Subdivider's creditors, or if a
receiver should be appointed in the event of Subdivider's insolvency, or if Subdivider, or any
of Subdivider's contractors, subcontractors, agents or employees, should violate any of the
provisions of this Agreement, City Engineer or City Council may serve written notice upon
Subdivider and subdivider's surety of breach of this Agreement, or of any portion thereof, and
default of Subdivider.
19. Breach of Agreement: Performance bv Surety or Citv. In the event of any such
notice, Subdivider's surety shall have the duty to take over and complete the work and the
improvement herein specified; provided, however, that ifthe surety, within five days after the
service of such notice of breach, does not give City written notice of its intention to take over
the performance of the contract, and does not commence performance thereof within five days
after notice to City of such election, City may take over the work and prosecute the same to
completion, by contract or by any other method City may deem advisable, for the account and
at the expense of Subdivider, and Subdivider's surety shall be liable to City for any excess
cost or damages occasioned City thereby; and, in such event, City, without liability for so
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doing, may take possession of, and utilize in completing the work, such materials, appliances,
plant and other property belonging to Subdivider as may be on the site of the work and
necessary therefor.
20. Notices. All notices herein required shall be in writing, and delivered in
person or sent by registered mail, postage prepaid.
(a) Notices required to be given to City shall be addressed as follows:
City Manager
City Hall
300 North "0" Street
San Bernardino, CA 92418
(b) Notices required to be given to Subdivider shall be addressed as follows:
Sterling Heights, LLC
C/o Richard 1. Battaglia, Manager
3366 Via Lido
Newport Beach, CA 92663
(c) Notices required to be given to surety of Subdivider shall be addressed as
follows:
International Fidelity Insurance Company
Cheryl Ripley
Santa Rosa, CA
Provided that any party or the surety may change such address by notice in writing to the
other party, and, thereafter, notices shall be addressed and transmitted to the new address.
21. Successors Bound. This Agreement shall be binding upon and inure to the benefit of
each of the parties and their respective legal representatives, successors, heirs and assigns.
II
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
CITY OF SAN BERNARDINO
By:
Mark Weinberg, Interim City Manager
City of San Bernardino
ATTEST:
City Clerk
Approved as to form:
JAMES F. PENMAN,
City Attorney,
I ~/?~ J ,(0~...~
SUBDIVIDER:
Sterling Heights, LLC, a California Limited
Liability Company
By:
Richard J. Battaglia, Manager
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INSTRUCTIONS
If the Subdivider is a corporation, the Agreement must be executed in the corporate
name and signed by the President or a Vice-President and the Secretary or Assistant
Secretary, and the corporate seal affixed. If the Subdivider is a partnership, it must be signed
by all partners. If the subdivider is an individual doing business under a fictitious name, it
must be signed by all persons having an interest in the business, and the fictitious name must
be signed also. The Agreement must be notarized.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
a
Notary
20_,
Public,
before me,
personally
On this
day of
appeared
personally know to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed tot he within instrument and acknowledged to me
that h/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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(This area for official seal.)
Notary Signature
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