HomeMy WebLinkAbout2012-284 2012-284
AGREEMENT
(Subdivision Improvements)
THIS AGREEMENT is made and entered into as of this 2_101,, day of
mw , 2012, by and between the CITY OF SAN BERNARDINO, a Municipal
Corporation, hereinafter referred to as "City," and University Park Promenade &Shops. LLC,
a California Limited Liability Company 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. 17703-1; 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.
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
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day and year first above written.
ATTEST: CITY qv SAN BERNARDINO
-, Byy /' +L(cA `�'��t��'4
City C1-4( ! Andrea Travis-Miller,
Interim City Manager
Approved as to form: City of San Bernardino
SUBDIVIDER:
JAMES F. PENMAN,
City Attorney,
By:
By
By:
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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 by 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.
•
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
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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. Utility 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 by 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.
9. Inspection by 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
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work is in preparation.
10. Contract Security. 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 improvement 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 (1) 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.
11. Subdivider's Insurance. Subdivider shall not commence work under this
Agreement until Subdivider shall have obtained all insurance required under this paragraph,
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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
carrier.
(a) Worker's Com•ensation Insurance/Em•lo er's Liabilit 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
maintain, during the life of this Agreement, such public liability and property
damage insurance as shall insure City, its elective and appointive boards,
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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 any one 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 any one 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 any one 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
cross-liability endorsement, insuring on such policy City, its elective and
appointive boards, commissions, officers, agents and employees, Subdivider
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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 (1) year from
completion of the project. All subcontractors must and shall comply
with the same insurance provisions as the contractor(s) and
subdivider(s).
(4) Personal Injury —Defined. As used herein, the term "personal injury"
' shall be defined as a hurt or damage to one's person including, without
limitation, damage to health, cuts, bruises, broken limbs and/or bones,
or the like, disabilities or impairments, including aggravation of
existing injuries, or invasion of personal rights, including libel, slander,
malicious prosecution, false imprisonment or mental suffering.
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,
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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/legal fees, and all other expenses incurred by the City arising in favor on any
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, whether such operations/incidents are caused by contractor,
Subdivider or any of contractor/Subdivider's subcontractors, contractors or by any one or
more persons directly or indirectly employed by or acting as agent for contractor, Subdivider,
or any one 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 11 hereof.
(b) That the aforesaid hold harmless agreement by Subdivider shall apply to all
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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
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's/Developer'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 Subdivider/Developer'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
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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
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 by Surety or City. 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
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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
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, California 92418
(b) Notices required to be given to Subdivider shall be addressed as follows:
University Park,LLC
101 Main Street, Suite A
Seal Beach, CA 90740
(c) Notices required to be given to surety of Subdivider shall be addressed as
follows:
L 'L' wI Vl$UYance, (0ri+-9aw.A
0-1610 Y1 Kou.A■
-. u\;4 -) rN 2112'7—
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
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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.
See attached Notary Acknowledgement
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
•
State of California
County of Orange
On November 28,2012 Before me,Janice Wall,Notary Public,personally appeared
James R.Watson,who proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that he executed the same in
his authorized capacity,and that by his signature on the Instrument the person,or the entity upon behalf
of which the person 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.
JANICE WALL
Comml�don # 1869800
V:-161� '' ' Notary ptrbllc • Callf.fr"
/ Orange county
c `- Comm. Expife.Atia 29, 2013
Signature (�
•l�/�
Signat •e of Notary Public
Place Notary seal Above
OPTIONAL
Description of Attached document
Title or Type of Document: Subdivision improyements Agreement
Document Date:, November 28. 2012 Number of Pages: 13
Signers(s)other than Named Abovei Andrea Travis-Miller Interim City Manager San Bernardion
James F.Penman,City Attorney.and City Clerk
Capacity Claimed by Signer
Signer's name: James R.Watson
X Individual
_ X__Managing Member
Member
Signer is Representing: University parks Promenade&Shops.LLC
2012-284
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT •
State of California
County of Orange
On November 29,2012 Before me,Janice Wall,Notary Public,personally appeared
Judy Rodriguez Watson,who proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that she executed the
same in her authorized capacity,and that by her signature on the Instrument the person,or the
entity upon behalf of which the person 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.
JAN$CE WALL
CommisilQn # 18 990(0
/Wow public • fom Io
r^r f OfWipa County
Signature • Comm. Expkrs'Mg 29, 2013.
S:nature, Notary Public
Place Notary seal Above
OPTIONAL
Description of Attached document
Title or Type of Document:, Subdivision improvements Agreement
Document Date: November 29. 2012 Number of Pages: 13
Signers(s) other than Named Above: Andrea Travis-Miler ! erim City Manager San Bernardion
James F. Penman.City Attorney.and City Clerk . James R Watson
Capacity Claimed by Signer
Signer's name: Judy Rodriguez Watson
X Individual
Managing Member
X Member
Signer is Representing: University parks Promenade&Shops. LLC
•