HomeMy WebLinkAbout1992-5341
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5341
RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
WITH HIGHLAND & BOULDER PARTNERS, A CALIFORNIA LIMITED
PARTNERSHIP, RELATING TO REIMBURSEMENT FOR DESIGN OF HIGHLAND
AVENUE IMPROVEMENTS (WAL-MART).
BE IT RESOLVED BY THE COMMUNITY DEVELOPMENT COMMISSION,
ACTING ON BEHALF OF THE ECONOMIC DEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1.
The Chairman of the Community Development
Commission of the City of San Bernardino is hereby authorized and
directed to execute, on behalf of said City, an Agreement with
10 Highland & Boulder Partners, a California Limited Partnership,
11 relating to reimbursement for design of Highland Avenue
12 improvements (Wal-Mart), a copy of which Agreement is attached
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hereto, marked Exhibit "A," and incorporated herein by reference
as fully as though set forth at length.
SECTION 2.
This agreement shall not take effect until
fully signed and executed by all parties. The City shall not be
obligated hereunder unless and until the agreement is fully
executed and no oral agreement relating thereto shall be implied
or authorized.
SECTION 3.
The authorization to execute the above-
referenced agreement is rescinded if the parties to the agreement
fail to execute
resolution.
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8-13-92
it within sixty (60) days of the passage of this
RESO: AUTHORIZING EXECUTION OF AN AGREEMENT WITH HIGHLAND &
BOULDER PARTNERS.
1 I HEREBY CERTIFY that the foregoing resolution was duly
2 adopted by the Community Development Commission of the City of
3 San Bernardino at a Regular
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8 day of September
5 Commission Members:
6 ESTRADA
7 REILLY
8 HERNANDEZ
9 MAUDSLEY
10 MINOR
11 POPE-LUDLAM
meeting thereof, held on the
, 1992, by the following vote, to-wit:
AYES
NAYS
ABSTAIN
ABSENT
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x
x
x
x
x
x
~y
enneth . Henderson
The foregoing resolution is hereby approved this 8
September
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Approved as to form
and legal content:
By~I4J
./ Agenc ounsel -
, 1992.
omb, Chairman
Communlty Development
Commission of
City of San Bernardino
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18 recorded
19 Gatlin/Doerken Development assigned all
20 Development Agreement No.
21 Highland & Boulder Partners assumed all of Gatlin/Doerken
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24 91-02 provides that the "City" will install the public
25 improvements on Highland Avenue set forth in Sa, Sb, and Sc
26 of said provision, and further provides that the "City" may
27 allow
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EXHIBIT "A"
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REIMBURSEMENT AGREEMENT
WAL-MART SITE HIGHLAND AVENUE IMPROVEMENTS
This
Reimbursment
Agreement,
hereinafter
called
"Agreement," is entered into effective
1992,
bet\'leen
the
Ci ty of San Bernardino,
a municipal
corporation, hereinafter called "City," and Highland & Boulder
Partners, a California limited partnership, as the assignee of
Gatlin/Doerken Development, and collectively referred to herein
9 as "Developer."
RECITALS
A.
The
"City" and Gatlin/Doerken DevelopmenL-previously
entered into Development Agreement No. 91-02, which ~rovides for
the development of approximately 24.27 acres of real property
located on the north side of Highland Avenue at its intersection
with Boulder Avenue ("Highland/Boulder Property").
Pursuant
to
Assignment
an
and
Assumption
Agreement
June
S ,
1992,
under
Document
No.
92-238370,
its
rights
under
91-02 to Highland & Boulder Partners:
Development's obligations under Development Agreement No. 91-02.
B.
Operative Provision No. S of Development Agreement No.
Gatlin/Doerken
Development
to
plans
and
prepare
specifications for the Highland Avenue public improvements and to
install these improvements.
C. Operative provision No. S provides that in the event
that the "Ci ty" allows Gatlin/Doerken Development to prepare
plans and specifications for the Highland Avenue public
improvements and to install those improvements, then the "City"
and "Developer" will enter into such agreements as may be
necessary to facilitate timely payment or reimbursement by the
"City" for the direct and indirect cost of preparation and
9 approval of the plans and specifications and for the installation
-10 ~f the Highland Avenue improvements.
11 NOW, THEREFORE, the two parties agree, as follows:
DEVELOPER AGREES:
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I. To provide plans and specifications signed by a
registered California Civil Engineer for Public Improvements on
Highland Avenue as identified in operative provision Sa, Sb and
Sc of Development Agreement No. 91-02: and
2. To make all corrections or revisions as necessary to
obtain approval from the "City" and Caltrans.
CITY AGREES:
1. To reimburse the "Developer" for one hundred percent
(100%) of the actual cost, estimated in the amount of $60,000.00,
incurred for design of the Highland Avenue improvements as set
Sb, and Sc of Development
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forth in operative provision Sa,
Agreement No. 91-02.
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2 work listed below:
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perform any of its obligations as provided in this Agreement and
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b)
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d)
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2.
To construct, or cause to be constructed, items of
Item of Work
Order of Magnitude
Cost Estimate
a)
Highland Avenue Street
Improvements, including
Street Lights
$ 330,000
Traffic Signal at inter-
section of Highland and
Boulder
$ 105,000
c)
Storm Drain in Highland Avenue
$ 215,000
$ 60,000
Landscape~ Highland Avenue
Median and north parkway
(10' wide)
e)
Inspectio~ and Contract _-
Administration
$
30,000
$
740,000
3.
To provide expedited plan checking services through
"City's"
Engineering
Division
coordinate
and
expedited
plan
checking through Caltrans' permit section.
D.
OTHER MATTERS:
1.
Default
by
Developer.
If the Developer
fails
to
fails to cure its nonperformance within 30 days after notice of
nonperformance is given by the City, then the Developer will be
in default and the City will have all remedies which are
available to it at law or in equity; provided, however, that if
the nature of Developer's failure to comply or perform is such
that it cannot reasonably be cured wi thin 30 days, then the
Developer will not be in default if it immediately commences and
thereafter diligently continues to cure its failure.
2.
Default by City.
If the City fails to pay any
reimbursement to the Developer, within 30 days after receipt of
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1 any progress billing from the Developer or his/her authorized
2 representative, then the City will be in default and the
3 Developer will have all of the remedies which are available to it
4 at law or in equity. If the City fails to perform any obligation
5 as provided in this Agreement and fails to cure its non-
6 performance wi thin 30 days after notice of nonperformance is
7 given by the Developer, then the City will be in default and the
8 Developer will have all of the remedies which are available to it
9 at law or in equity; provided, however, that if the nature of
-10 City's failure to perform is such that it cannot reasonable be
11 cured within 30 days, then the City w11 not be in default if it
12 immediately commences and thereafter diligently continues to cure
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13 its failure.
14 3. Permi tted Delays. Wi thout limiting the effect of
15 paragraph No.1, the Developer will be excused from performance
16 of its obligations as provided in this Agreement during any
17 period of delay which is caused by matters which are not within
18 the Developer's reasonable control; including, without
19 limitation, casualty; acts of God; civil commotion; war;
20 insurrection; riots; strikes; walkouts; picketing or other labor
21 disputes, except that neither the Developer nor its contractors
22 or subcontractors will be required to settle any labor dispute on
23 terms other than those which are satisfactory to them in their
24 sole discretion; market factors; unavoidable shortages of
25 materials or supplies; damages to work in progress by reason of
26 fire, flood, earthquake or other casualty; litigation which
27 prohibits or delays any aspect of the development of the Shopping
28 Center; initiatives or referenda; moratoria; acts or the failure
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1 to act of the City or any other public or governmental agency or
2 entity (except that acts or the failure to act of the City shall
3 not excuse performance by the City); unanticipated restrictions
4 which are imposed or mandated by governmental entities or
5 enactment of conflicting City, County, State or Federal laws,
6 regulations or judicial decisions. The Developer will promptly
7 notify the City of any permitted delay as soon as it is possible
8 after it has ascertained such delay and the term of this
9 Agreement will be extended by the period of such delay.
-10- _ 4. Indemnification:
11 (a) With respect to the Developer's performance as
12 provided in this Agreement, the Developer will defend, indemnify
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13 and hold the City and its elected officials, officers and
14 employees free and harmless from any loss, cost or liability
15 (including, without limitation, liability arising from injury or
16 damage to persons or property, including wrongful death and
17 worker's compensation claims) which result from (i) any
18 obligation of the Developer which arises from the Development of
19 the Highland-Boulder Property, including, without limitation,
20 obligations for the payment of money for material and labor, (ii)
21 any failure on the part of the Developer to take any action which
22 it is required to take as provided in this Agreement, (iii) any
23 action taken by the Developer which it is prohibited from taking
24 as provided in this Agreement, (iv) any claim which results from
25 any willful or negligent act or omission of the Developer and (v)
26 any legal challenge to the City's actions in approving or
27 implementing this Agreement.
28 (b) Included in
the
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the
foregoing
scope
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1 indemnification will be all damages and claims for damages which
2 are suffered or alleged to have been suffered by reason of the
3 matters which are the subject to the applicable indemnification
4 and all of the associated legal fees and court costs (but not
5 internal costs). Wi thout limiting the effect of the foregoing,
the Developer will have the right to defend against any claim
with respect to which it is indemnifying the City, using legal
counsel of its choice.
The
City will cooperate with the
Developer and will give the Developer its full support in
connection with any claim with respect to which the Developer is
indemnifying the City.
5. This Agreement does not release any party from its
obligations under Development Agreement No. 91-02.
6.
Notices and Other Communications:
All notices or
other communications which are required or permitted to be given
to the parties will be in writing and will be given either by
personal service or by mailing the same by certified or
registered mail, postage prepaid, return receipt requested, or
overnight mail delivery service, addressed as follows:
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AGREEMENT: WAL-MART SITE HIGHLAND AVENUE IMPROVEMENTS
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15 ATTEST:
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17 Secretary
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19 Approved as to form
and legal content:
CITY
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
Attn: City Administrator
DEVELOPER
Highland & Boulder Partners
12625 High Bluff Drive
Suite 304
San Diego, California 92130
Attn: Franklin C. Gatlin, III
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Highland Plaza, Inc.
11835 Olympic Boulevard
Suite 975
West Los Angeles, CA 90064
Attn: Peter W. Doerken
COMMUNITY DEVELOPMENT
COMMISSION OF
CITY OF SAN BERNARDINO
By
W. R. Holcomb, Chairman
DEVELOPER
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Highland & Boulder Partners,
a California limited
partnership
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By: HIGHLAND PLAZA, INC.
a California corporation
Agency Counsel
By:
APPROVED AS TO FORM AND
LEGAL CONTENT:
GRESHAM, VARNER, SAVAGE,
NOLAN & TILDEN
By
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