HomeMy WebLinkAboutR30- Economic Development Agency CITY OF SAN BERNARDINO ORIGINAL
ECONOMIC DEVELOPMENT AGENCY
FROM: Emil A.Marzullo SUBJECT: Reimbursement Agreement between the City and
Interim Executive Director the Redevelopment Agency of the City of San
Bernardino for the Off-Site Drainage and
Appurtenant Work at the intersection of Highland
DATE: January 29,2010 and Central Avenues (TELACU Housing - San
Bernardino IV, Inc., Senior Housing Project -
IVDA Redevelopment Project Area)
Synopsis of Previous Commission/Council/Committee Action(s):
On January 7, 2010, Redevelopment Committee Members Johnson and Brinker unanimously voted to recommend that the Mayor
and Common Council and the Community Development Commission consider this action for approval.
-------------------------------------------------------------------------------- ---------
Recommended Motion(s):
(Mayor and Common Council)
Resolution of the Mayor and Common Council of the City of San Bernardino approving and authorizing the City
Manager to execute the Reimbursement Agreement between the City of San Bernardino 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, Senior Housing Project-IVDA Redevelopment Project Area)
(Community Development Commission)
Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the
Interim Executive Director of the Redevelopment Agency of the City of San Bernardino to execute the Reimbursement
Agreement between the City of San Bernardino 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, Senior Housing Project-IVDA Redevelopment Project Area)
Robert Eisenbeisz,City Engineer and
Contact Person(s): Musibau Arogundade,Project Manager Phone: (909)663-1044
Project Area(s): IVDA Ward(s): 4"
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s)0 Map(s)❑Letter(s)
FUNDING REQUIREMENTS: Amount: $ 200,000 Source: 2009-2010/2013-2014 Capital Improvement Plan
Budget Authority: Storm Drains Fund-Account#:248-368-5504-7477
Signature: Fiscal Review:
Emil A.Marzullo,Interim Executive Director uss JesusQ&tLn' Administrative Services Director
Commission/Council Notes: 9fFSO�ax�r o1U/O-33 G�L�G+ 20/O-
P6Sendu\Cou DevCommission\CDC 2010\02-1610 TELACU Senior Housing W-Rm.bmumentAg m. tSRdo COMMISSION MEETING AGENDA
Meeting Date: 02/16/2010
Agenda Item Number: �3�
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
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)
BACKGROUND:
TELACU Housing — San Bernardino IV, Inc. ("TELACU"), senior housing project is a 90-unit
complex for seniors 62 years of age and older on the property located on the southeast corner of
Highland and Central Avenues consisting of approximately 3.4 acres (the "Site"). An Aerial Map of
the Site is attached as Exhibit "A". The project is currently under construction and will be owned and
managed by TELACU.
The Site is being developed into a three-story senior citizen housing complex with a community center
of which 89 of the units will be one-bedroom with living room, kitchen and bathroom containing
approximately 540 square feet. There will also be a two-bedroom manager's unit on the premises
("Project"). The Project will contain plush and ample landscaping around the building with a water
fountain at the corner of Highland and Central Avenues. It will also contain a common multi-purpose
kitchen, library, laundry room, storage space, an attractive lobby/foyer and offices. The Site Plan
prepared by Gregory Villanueva Architects is attached as Exhibit`B."
On February 18, 2009, the Planning Commission approved the Development Code Amendment No.
08-01 and Conditional Use Permit No. 08-28, to move the Project forward to development. On April
20, 2009, the Mayor and Common Council approved the Planning Commission's recommendation to
approve the Development Code Amendment by amending Chapter 19.06 of the Development Code
relative to Senior Housing and Congregate care housing.
On February 19, 2008,the Mayor and Common Council of the City of San Bernardino ("Council") and
the Community Development Commission of the City of San Bernardino ("Commission") approved
the $3.2 million HOME Funds loan with a forgiveness provision for the Project in the 2008 HOME
Funds Loan and Grant Development Agreement ("2008 Loan and Grant Agreement"). Since the
approval of the 2008 Loan and Grant Agreement, TELACU was informed by the City Development
Services Department that utilities would be required to be relocated from Highland Avenue to Central
Avenue and be installed underground. In addition, the City's impact and permit fee increase went into
effect in January 2009. The net effect of these changes has created an additional cost of$2,868,244.
The original Project estimated cost was $15.5 million. As of June 4, 2009, the new estimated Project
cost is $18,368,244.
In order to meet this funding gap, TELACU allocated $136,375 in deferred Developer fees for the
Project and received an additional $1,829,393 in HUD Section 202 Funds leaving a gap of$902,476 to
be met by the Agency. The $902,476 was authorized and approved by the Council and the
Commission on July 6, 2009, as Amendment No. 1 to the 2008 Loan and Grant Agreement.
PAAgendaa\Comm Dw Commuaioo\CDC 2010\02-1610 rcr sCU Senior Housing N-Mmburxmptt ASreemem Sk. COMMISSION MEETING AGENDA
Meeting Date: 02/16/2010
Agenda Item Number: ;?-30
Economic Development Agency Staff Report
TELACU IV Reimbursement Agreement—Off-Site Drainage and Appurtenant Work
at the intersection of Highland and Central Avenues
Page 2
On July 18, 2009, a new City Development fee rate went into effect and since TELACU had not pulled
the off-site construction permit prior to the new fee rate going into effect, an additional cost estimated
at $174,000 for street and lane closure monitoring for approximately sixty (60) days was added to the
project. The additional cost will be covered by the City from the Capital Improvement Program (CIP)
— Storm Drain Funds. A total of $374,000 is available and budgeted in the approved 2009/2010 -
2013/2014 CIP budget for the Highland and Central Avenues storm drain project.
CURRENT ISSUE:
The new estimated Project budget of $18.4 million includes land costs, construction costs,
development and architectural fees, and off-site improvements (storm drains, undergrounding of
utilities and street improvements). Through several consultation meetings with the City Engineer, it
was understood that the City would contribute up to $200,000 from the 2009/2010-2013/2014 CIP
approved budget-Storm Drain Funds towards the off-site improvements. This is because TELACU is
assisting the City in the completion of a planned project within the Capital Improvement Program. The
proposed Reimbursement Agreement with the City will ensure that the Agency is reimbursed up to
$200,000, a portion of the off-site improvement cost. The $200,000 will be returned to the Federal
HOME Program CHDO Funds as "program income" for reuse in providing future affordable housing
units.
ENVIRONMENTAL IMPACT:
The requested action is categorically exempt pursuant to Class 32 Section 15332 of the California
Environmental Quality Act(CEQA) Guidelines.
FISCAL IMPACT:
The City will reimburse the Agency up to $200,000 to be returned to the Agency's HOME and CHDO
Grant Program Funds for reuse as "program income"to provide future affordable housing units.
RECOMMENDATION:
That the Community Development Commission adopts the attached Resolutions.
e0000i -
Emil A. Marzullo,Interim Executive Director
P:Wgen s\Comm De Commission\CDC 2010\02-1610 TELACU Seni"HousingIV-ReimbursementAg meMSR.d COMMISSION MEETING AGENDA
Meeting Date: 02/16/2010
Agenda Item Number: P-30
Exhibit "A"
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COPY
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
3 OF SAN BERNARDINO APPROVING AND AUTHORIZING THE CITY
4 MANAGER OF THE CITY OF SAN BERNARDINO TO EXECUTE THE
REIMBURSEMENT AGREEMENT BETWEEN THE CITY AND THE
5 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FOR
6 THE OFF-SITE DRAINAGE AND APPURTENANT WORK AT THE
INTERSECTION OF HIGHLAND AND CENTRAL AVENUES (TELACU
7 HOUSING - SAN BERNARDINO IV, INC., SENIOR HOUSING PROJECT -
8 IVDA REDEVELOPMENT PROJECT AREA)
9 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 staff's 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 6_�v
P l,erxleraes olutiansUtemlutionsQ010W2-16-10 nLACU Senior Housi�IV-Reimbursement Ageemem MCC Reso.doc 9 3o
I 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 Avenues; 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
25
26
27
28
2
P.UgendasVteaolutionsVtesaWtion3�2010b3-1610 TELACU Smior Hanim IV-Aeimbwem�nu Ageemml MCC Rm dm
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING AND AUTHORIZING THE CITY
2 MANAGER OF THE CITY OF SAN BERNARDINO TO EXECUTE THE
3 REIMBURSEMENT AGREEMENT BETWEEN THE . CITY AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FOR
4 THE OFF-SITE DRAINAGE AND APPURTENANT WORK AT THE
INTERSECTION OF HIGHLAND AND CENTRAL AVENUES (TELACU
5 HOUSING - SAN BERNARDINO IV, INC., SENIOR HOUSING PROJECT -
6 IVDA REDEVELOPMENT PROJECT AREA)
7 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 meeting
9 thereof, held on the day of 2010, by the following vote to wit:
10
Council Members: Ayes Nays Abstain Absent
11 ESTRADA _
12 BAXTER
13 BRINKER —_ —
(� 14 SHORETT
`�✓ _
15 KELLEY
16 JOHNSON
17 MC CAMMACK —
18
19
20 Rachel G. Clark, City Clerk
21 The foregoing Resolution is hereby approved this day of 2010.
22
23
Patrick J. Morris,Mayor
24 City of San Bernardino
25
26 Approved as to Form:
27
By. r� PJv
28 Jame F. Pciunan, City Attorney
3
P.VgendasVesolutionsVesolutions @0IM2-I6-10 TE CU Senior Housing IV- { ,bursemenl Agreement MCC Reso doo
EXHIBIT "A"
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 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 Avenues; 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 staff's 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 Staff's cost of street and lane closure, monitoring, traffic control, inspections and other
related fees; and
1
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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. Obligations of the Agency. 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. Obligations 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 staffs 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
Staff's 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. Prevailing Wages. 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
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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, 3`d 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
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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 in
California law.
13. Supersedin¢ 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. Attorneys 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 Headings. 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
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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 Beneficiary. Neither the Developer nor any other third party is a party
to or beneficiary of this Agreement and shall have no rights hereunder.
5
P'.VsgendasWgeMa AnachmemsWVnda AlmLhmtma\Agrmss-AmeM 2010602-16-10 TE ACU I V O65ia Drainage Re.mb.,semem Agrml.-0 City doc
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: By:
Charles McNeely, City Manager
Approved as to Form:
By:
James F. Penman, City Attorney
AGENCY
Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
Date: By:
Emil A. Marzullo, Interim Executive Director
Approved as to Form:
By:
Timothy J. Sa , Agency Counsel
6
P:V,eWnMSenda Aonch.w Agenda Au.chmems\Agrmts-Amend 201 M-1610 TFL CU IV O&-Sim O mge Reimh.m Agrmt.with City.d.
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 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 Avenues; 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 staff's 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 Staff's cost of street and lane closure, monitoring, traffic control, inspections and other
related fees; and
1
P Wgendas\Agenda Attachments\Agenda Auechmmts\Agrmis-Amend 2010`M-1610 TELACU IV Off-Site Aainge Reimburwment Agrmi.with CbyAm
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. Obligations of the Agency. 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.
r^ 3. Obligations of the City. The City shall:
V (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
Staff s 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. Prevailing Wages. 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\Agm¢-Amcnd 20IW2-1610 TELACU IV Off-Site Onivge Mimb.m A,m .xkh City.do.
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, 3`d 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\Agendas\Agetda Anachments\Agenda Atmchmems\Agrmts-Amend 20IM-ISIDT ACU IV OR-Site13,6.e Reimb.,e Agm.wbb CYY.duc
Addresses to which notices or other communications may be delivered may be changed
from time-to-time by written notice.
I
12. Applicable Law. This Agreement will be construed and enforced as provided in
California law.
13. Superseding 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. Attorneys 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 Headings. 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:Wge kft-&AUVAmemsV.ra At4rh.U\Agms-A 20IM4&10T ACU IV Off-Sde Dnim Mmbureeme ASM with Ciy.dm
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 Beneficiary. Neither the Developer nor any other third party is a party
to or beneficiary of this Agreement and shall have no rights hereunder.
5
P Wgendas\Aeenda AnachmemsWpnda Anachmems\Agrmts-Amend 2010\0216-10 TELACU IV OR-Site Draimge Reimbureemem Agrmt.with City.dae
ai
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: By:
Charles McNeely, City Manager
Approved as to Form:
By: ( —'-
James F. P nman, City Attorney
AGENCY
`r Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
Date: By:
Emil A. Marzullo, Interim Executive Director
Approved as to Form:
By:
Timothy J. Sab ,Agency Counsel
6
P.\Agendas\Agenda AnmhmentMgeMa Atmchmems\AgrmisAmend 2010\02-1610 TELACU IV OR-Site Drainage Reimbursement Agrmt.with City.doc
I RESOLUTION NO.
2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
3 THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
4 AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE THE REIMBURSEMENT AGREEMENT BETWEEN THE CITY
5 AND THE AGENCY FOR THE OFF-SITE DRAINAGE AND
6 APPURTENANT WORK AT THE INTERSECTION OF HIGHLAND AND
CENTRAL AVENUES (TELACU HOUSING - SAN BERNARDINO IV, INC.,
7 SENIOR HOUSING PROJECT IVDA REDEVELOPMENT PROJECT
AREA)
8
9 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
1
P Mg ndw\ mlutions\Rewlutiom\20 I U2-1610 TELACU SeNm Having IV.Reimburumem Agrt stwi CDC Rew.d
1 improvement cost; and
2 WHEREAS, the balance of the $174,000 in the CIP budget will be used by the City to pay
3 Staff's cost of street and lane closure, monitoring, traffic control, inspections and other related fees;
4 and
5 WHEREAS, the Agency has charged the Developer with the responsibilities of obtaining all
6 of the required permits and procuring all the necessary services needed to complete the off-site
7 drainage and appurtenant work at the intersection of Highland and Central Avenues; and
8 WHEREAS, the Project is exempt from the National Environmental Policy Act ("NEPA")
9 under 24 CFR 58.35 and the California Environmental Quality Act ("CEQA"), pursuant to Section
10 15332, in-fill development, and no further environmental document is required pursuant to Section
11 15168 of the CEQA Guidelines.
12 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
13 OF SAN BERNARDINO DOES HEREBY RESOLVE,DETERMINE AND ORDER,AS FOLLOWS:
14 Section 1. The Commission approves and authorizes the Interim Executive Director of
15 the Redevelopment Agency of the City of San Bernardino ("Agency") or designee are authorized to
16 execute the Reimbursement Agreement as attached hereto as Exhibit "A" by and between the City
17 and the Agency for the off-site Drainage and Appurtenant Work at the Intersection of Highland and
18 Central Avenues and to make any necessary non-substantive changes as may be approved by
19 Agency Counsel, provided such changes do not increase the Agency's financial contribution to the
20 Project.
21 Section 2. The Commission makes a finding that the Project is exempt from NEPA
22 under 24 CFR 58.35 and CEQA, pursuant to Section 15332 of the CEQA Guidelines, constitutes an
23 in-fill development, and no further environmental document is required pursuant to Section 15168
24 of the CEQA Guidelines.
25 Section 3. This Resolution shall take effect from and after its date of adoption by this
26 Commission.
27
28
2
P Ugendn Anolutions Aesolutions2010t02-1610 MLAQI Senior Housing Iv-Reimburxmem Agreemrnt CDC Reso dm
I RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
2 THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
3 AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE THE REIMBURSEMENT AGREEMENT BETWEEN THE CITY
4 AND THE AGENCY FOR THE OFF-SITE DRAINAGE AND
APPURTENANT WORK AT THE INTERSECTION OF HIGHLAND AND
5 CENTRAL AVENUES (TELACU HOUSING - SAN BERNARDINO IV, INC.,
SENIOR HOUSING PROJECT - IVDA REDEVELOPMENT PROJECT
6 AREA)
7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
8 Development Commission of the City of San Bernardino at a meeting
9 thereof,held on the day of 2010,by the following vote to wit:
10 Commission Members: Ayes Nays Ab Abse nt
11 ESTRADA
12 BAXTER
13 BRINKER
14 SHORETT —
15 KELLEY —
16 JOHNSON —
17 MC CAMMACK —
18
19
Secretary
20
21 The foregoing Resolution is hereby approved this day of . 2010.
22
23
Patrick J. Morris, Chairperson
24 Community Development Commission
of the City of San Bernardino
25
26 Approved as to Form:
27
By:
28 Agency Co nsel
3
P TELACUS.io,Homing IV-Reimbursement A�mCDC Rew.doc
EXHIBIT "A"
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 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 Avenues; 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 staff's 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 Staff's cost of street and lane closure, monitoring, traffic control, inspections and other
related fees; and
p Ugemla gcM A=hmcmr�gei aAt Och t.t ,g a_A.e 2010=-1&101 ACUIVOfi Site DraiW,Aeimburu Ag.mi Cgdo
EXH BIT "A"
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. Obligations of the Agency. 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. Obligations of the City. The City shall:
(a) Upon completion of the Project and final approval of the Project by the City, the
City shall provide the Developer with a notice stating that the Project is complete.
Upon receipt of such notice by the Developer, the Agency shall request payment
from the City of the Costs for the Project ("Cost Notice")equal to the dollar amount
set forth in this Section. Within sixty (60) calendar days after receipt of the Cost
Notice, the City shall pay the Agency the full 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 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. 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.
4. Standards for Construction. Tl:e 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. Prevailing Waaes. Pursuant to the L %4E Agreement, the Developer is aware of the
requirements or both Federal wage rats E :nd California Labor Code Section 1770, which
require the payj dent of prevailing wage tes for public work contracts with contractors to
construct the Pi,ject in accordance w'.. a public works contract as defined in Sections
P.\A,e s'A M.Art.6.e.tU, a An.h...WAgmtt-A eM 3010\T CU IV Of- Dnimge MMbM=em Agmt with City Ax
EXHIBIT "A"
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. Upon completion of the Project to the satisfaction of the City, the
City will file a Notice of Completion with the understanding that all other 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 or any
subcontractor's negligent acts or omissions, nor for any damages or injuries to any person
or property at the work site.
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, 3`d 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
Addresses to which notices or other communications may be delivered may be changed
from time-to-time by written notice.
P UgenduV.geMe Anachme Mpnda Ana menta\AI to-Amend 7010\TELACU IV OR--Site P nW Re btmmm AgM with City doc
EXHIBIT "A"
12. Applicable Law. This Agreement will be construed and enforced as provided in
California law.
13. Superseding 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.
15. Attorneys 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 Headings, The Section headings of this Agreement are for convenience only
and are not a part of and are not intended to govem, 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".
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
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EXHIBIT "A"
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 Beneficiary. The Developer is not a party to this Agreement and has no
rights hereunder.
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EXHIBIT "A"
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: By:
Charles McNeely, City Manager
Approved as to Form:
By:
James F. Penman, City Attorney
AGENCY
Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
Date: By:
Emil A. Marzullo, Interim Executive Director
Approved as to Form:
By:
Timothy J. Sab , Agency Counsel
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I
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
DATE: February 22, 2010
TO: Lorraine Wyche, Economic Development Agency
FROM: Margaret Fedor, Executive Assistant to the City Clerk
RE: Transmitting Documents for Signature—Resolution No. 2010-33
At the Mayor and Common Council meeting of February 16, 2010, the City of San Bernardino
adopted 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 (TELACUHousing—San Bernardino IV, Senior Housing Project
-IVDA Redevelopment Project Area).
Attached are one (1) original agreement and two (2) duplicate agreements to be executed. Please
obtain signatures in the appropriate locations and return the ORIGINAL agreement to Margaret
Fedor in the City Clerk's Office as soon as possible. Retain one agreement for your records and
forward the remaining agreements to the appropriate party.
Thank you.
I here cknowledge receipt of the above mentioned documents.
Si ed:
PLEASE SIGN AND RETURN
Date: , - `