HomeMy WebLinkAbout2014-317 1 RESOLUTION NO._2014-317_
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3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING STANDARD FORM OF AGREEMENT FOR
4 SUBDIVISION TRACT NO. 17699 (LOTS 1 THROUGH 24) MIXED USE
5 RESIDENTIAL AND OFFICE UNITS, LOCATED ON THE NORTH SIDE OF
CAMPUS PARKWAY SOUTH OF NORTH PARK BOULEVARD IN THE CG-2,
6 COMMERCIAL GENERAL ZONE, WITH FH II, LLC WITH TIME OF
PERFORMANCE SPECIFIED, AND AUTHORIZING RELEASE OF UNIVERSITY
PARK HOLDINGS, LLC FROM TERMS OF THE STANDARD FORM OF
8 AGREEMENT FOR SUBDIVISION TRACT NO. 17699 (LOTS 1 THROUGH 24) AS
APPROVED BY RESOLUTION NO. 2012-230.
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11 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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13 SECTION 1. The City Manager is hereby authorized and directed to execute the
14 standard form of agreement adopted by Resolution No. 90-427 with FH II, LLC a California
15 Limited Liability Company, for improvements in Subdivision Tract No. 17699 (Lots 1 through
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24) as are required by Title 19 of the San Bernardino Municipal Code and the California
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18 Subdivision Map Act. The time for performance is specified at 24 months. Said improvements
19 are specifically described and shown on drawings approved and on file in the Community
20 Development Department of the City of San Bernardino.
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SECTION 2. Standard Form of Agreement for Subdivision Tract No. 17699 as
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approved by Resolution No. 2012-230 dated September 04, 2012, with University Park
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24 Holdings, LLC, is hereby terminated by mutual consent of the City and University Park
25 Holdings, LLC.
26 SECTION 3. The City Clerk shall certify the approval and acceptance of the Mayor
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and Common Council as set forth in this Resolution.
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1 SECTION 4. This authorization to execute the Agreement is rescinded if the parties
2 to the Agreement fail to execute it within sixty (60) days of the passage of this Resolution.
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2014-317
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING STANDARD FORM OF AGREEMENT FOR SUBDIVISION
2 TRACT NO. 17699 (LOTS 1 THROUGH 24) MIXED USE RESIDENTIAL AND OFFICE
UNITS, LOCATED ON THE NORTH SIDE OF CAMPUS PARKWAY SOUTH OF NORTH
3 PARK BOULEVARD IN THE CG-2, COMMERCIAL GENERAL ZONE, WITH FH II, LLC
4 WITH TIME OF PERFORMANCE SPECIFIED, AND AUTHORIZING RELEASE OF
UNIVERSITY PARK HOLDINGS, LLC FROM TERMS OF THE STANDARD FORM OF
5 AGREEMENT FOR SUBDIVISION TRACT NO. 17699 (LOTS 1 THROUGH 24) AS
APPROVED BY RESOLUTION NO. 2012-230.
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7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a joint regular meeting thereof,
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held on the 18th day of August , 2014, by the following vote, to wit:
11 Council Members: AYES NAYS ABSTAIN ABSENT
12 MARQUEZ X
13 BARRIOS X
14 VALDIVIA X
15 SHORETT X
16 NICKEL X
JOHNSON X
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MULVIHILL X
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20 Georgeann1nna, Crt r lerk
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21 The foregoing resolution is hereby approved this / 0 _day of st , 2014.
22 c '2"
23 R. Carey Davi-, Mayor
24 City of San '.ernardino
Approved as to form:
25 Gary D. Saenz,
City Attorney
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27 By: � !A 1
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AGREEMENT
(Subdivision Improvements)
THIS AGREEMENT is made and entered into as of this 18th day of
August , 2014 , by and between the City of San Bernardino, a municipal
corporation, hereinafter referred to as "City," and FH II, LLC a California Limited
Liability Company, hereinafter referred to as "Subdivider."
RECITALS
A. WHEREAS, on September 04, 2012 the Mayor and Council of the City
adopted Resolution 2012-230 and approved the Final Map for Tract Map 17699
(hereinafter called "map") and the Standard Form Subdivision Improvements Agreement
with University Park Holdings, LLC, the original subdivider; and,
B. WHEREAS, University Park Holdings, LLC has conveyed its interest in
Tract 17699 to Subdivider, and University Park Holdings, LLC requests that the City
release it from its 2012 Subdivision Improvements Agreement; and,
C. WHEREAS, Subdivider has requested City approval of this Subdivision
Improvements Agreement (hereinafter called "Agreement") 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 subdivision, which Plans and Specifications are now on file in the Office of
the City Engineer of the City; and,
D. WHEREAS, the Mayor and Council has approved said map and accepted
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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 of the 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
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 the City 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 the City Engineer and
which are now on file in his office, and to the satisfaction of the 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;
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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
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
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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 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
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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, and such insurance shall have been approved by the City Attorney as to form,
amount and carrier, nor shall Subdivider allow any contractor or subcontractor to
commence work on the 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 Compensation Insurance/Employer's Liability Insurance.
Subdivider shall maintain, during the life of this Agreement, Worker's
Compensation Insurance and Employer's Liability Insurance for all
Subdivider's employees employed at the site of improvement, and, in case
any work is sublet, Subdivider shall require any contractor or
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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, 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
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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 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,
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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 or slander, malicious prosecution, false
imprisonment and 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, commissions, officers, agents, employees and servants free and harmless from
any and all liability losses, damages, claims, liens, demands and cause 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
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arising in favor of 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 claim,
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 damages and claims for damages of every kind suffered, or alleged to
have been suffered, by reason of any of the aforesaid operations referred
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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
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notified, City may, at its option, make the necessary repairs or replacements or perform
the necessary work, and Subdivider shall pay to the City the actual cost of such repairs
plus fifteen percent(15%).
16. Subdivider Not Agent of City. Neither Subdivider nor any of Subdivider's
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
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days after the serving upon of such notice of breach, does not give City written notice of
its intention to take over the performance of the contract, and does not commence
performance thereof within five days after notice to City of such election, City may take
over the work and prosecute the same to completion, by contract or by any other method
City may deem advisable, for the account and at the expense of Subdivider, and
Subdivider's surety shall be liable to City for any excess cost or damages occasioned City
thereby; and, in such event, City, without liability for so doing, may take possession of,
and utilize in completing the work, such materials, appliances, plant and other property
belonging to Subdivider as may be on the site of the work and necessary therefor.
20. Notices. All notices herein required shall be in writing, and delivered in
person or sent by registered mail,postage prepaid.
(a) Notices required to be given to City shall be addressed as follows:
City Manager
City Hall
300 North"D" Street
San Bernardino, CA 92418
(b) Notices required to be given to Subdivider shall be addressed as follows:
FH II, LLC a California Limited Liability Company
8300 Utica Avenue, Suite 300
Rancho Cucamonga CA 91730
(c) Notices required to be given to surety of Subdivider shall be addressed as
follows:
Insco Dico Group
2001 East Financial Way
Glendora CA 91741
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.
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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 on
the day and year first above written.
SUBDIVIDER
FH II, LLC A CALIFORNIA LIMITED LIABILITY COMPANY
By:
Name/Title: /Z,;`L,T / �f�=C )
CITY OF SAN BERNARDINO
BY: fir` *��%//':rrr�°
Alle marker, City Manager
ATTEST:
Georgeann anna, City Cl, k
Approved as to form:
Gary D. Saenz.
City Attorney
By: l Cu! -,'"
13
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189
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Description of Attached Document
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2014-317
STATE OF CALIFORNIA
COUNTY OF 31n SeXoctrakno
On /\u S-f 1 , O�7;before me,C1. — ft-I� 1� nooti rl l�l b1iL
J (here insert name and title of the fficer)
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subscribed to the within instrument and acknowledged to me that he/s) executed the same in
hisqr authorized capacity, and that by his/4r 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.
rihna"‘464'&"e""h4
G. LOVETT r
WITNESS my hand and official seal.
Commission # 1985218
Notary Public California
1; San Bernardino County
My Comm. Expires Jul 15,2016
Signature: poN,NeA:
(SEAL)