HomeMy WebLinkAbout2014-3391
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 2014-339
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING AN INDEMNITY AGREEMENT WITH THE
SAN BERNARDINO ASSOCIATED GOVERNMENTS RELATING TO THE
PROPOSED VACATION OF A PORTION OF "I" STREET SOUTH OF RIALTO
AVENUE AND THOSE PORTIONS OF THE EAST -WEST ALLEYS AND ONE
NORTH -SOUTH ALLEY, BETWEEN RIALTO AVENUE AND 3' STREET,
TOGETHER WITH A PORTION OF 3" STREET BETWEEN "J" STREET AND "I"
STREET, AND A PORTION OF 3RD STREET AT THE INTERSECTION WITH "K"
STREET.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor and Common Council of the City of San Bernardino hereby
approves an Indemnity Agreement with San Bernardino Associated Governments, acting in its
capacities as the San Bernardino County Transportation Commission and the San Bernardino
County Transportation Authority (SANBAG), in relation to the proposed vacation of a portion
of "I" Street south of Rialto Avenue and those portions of the east -west alleys and one north -
south alley, between Rialto Avenue and 3rd Street, together with a portion of 3rd Street
between "J" Street and "I" Street, and a portion of 3rd Street at the intersection with "K"
Street.
SECTION 2. The City Manager is hereby authorized and directed to execute on
behalf of the City said Indemnity Agreement, a copy of which is attached hereto and
incorporated herein as Exhibit "I".
SECTION 3. The authorization to execute the above -referenced Indemnity
Agreement is rescinded if the parties fail to execute it within ninety (90) days of the passage
of this Resolution.
111
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING AN INDEMNITY AGREEMENT WITH THE SAN
BERNARDINO ASSOCIATED GOVERNMENTS RELATING TO THE PROPOSED
VACATION OF A PORTION OF "I" STREET SOUTH OF RIALTO AVENUE AND
THOSE PORTIONS OF THE EAST -WEST ALLEYS AND ONE NORTH -SOUTH
ALLEY, BETWEEN RIALTO AVENUE AND 3RD STREET, TOGETHER WITH A
PORTION OF 3RD STREET BETWEEN "J" STREET AND "P' STREET, AND A
PORTION OF 3RD STREET AT THE INTERSECTION WITH "K" STREET.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on
the 2nd day of September, 2014, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
MARQUEZ X
BARRIOS X
VALDIVIA X
SHORETT X
NICKEL X
JOHNSON X
MULVIHILL X
George4h Hanna, fy Clerk
The foregoing resolution is hereby approved this k �� day of Septembe-r 014.
R. CAREY D VIS, Mayor
City of San emardino
Approved as to form.
GARY D. SAENZ, City Attorney
B '��
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT "1"
-Indemnity Agreement -
(See attached — 3 pages)
2014-339
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and entered into as of this'nd day of
September , 2014, by and between the City of San Bernardino, a California Municipal Corporation
("City'), and the San Bernardino Associated Governments, acting in its capacities as the San
Bernardino County Transportation Commission and the San Bernardino County Transportation
Authority, a public agency existing under the laws of the State of California ("SANBAG"), with
reference and respect to the following facts and circumstances ("Recitals"):
A. SANBAG desires and seeks for City to vacate various portions of certain streets to assist
SANBAG in connection with the purposes of constructing, operating and/or facilitating the
construction and/or operation of the Downtown San Bernardino Passenger Rail Project
("Project");
B. The Project involves an approximately one mile extension of existing passenger rail service
from the Santa Fe Depot, located at 1170 West Third Street, to the San Bernardino Transit
Center, to be constructed at "E" Street and Rialto Avenue, in the City of San Bernardino, County
of San Bernardino, State of California.
C. Provided that SANBAG indemnifies City in connection with the vacation of portions of the
streets as requested or required by SANBAG for and/or in connection with the Project, City is
willing to move forward with such vacations on and subject to the terms of this Agreement.
Now, therefore, in consideration of the foregoing recitals, the covenants, agreements,
representations and/or warranties of the parties set forth in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by each party,
the parties do hereby agree as follows:
1. Vacation of Streets. City shall, promptly and immediately, take any and all action(s)
necessary and appropriate to vacate those portions of those streets shown on Exhibit A
attached hereto and incorporated herein by this reference (herein, the "Streets"), including
without limitation any and all action(s) customarily and/or usually performed by City in
connection with the vacation of any street, road or alley, as well as any and all action(s) that are
legally required for the same to be effective.
2. Indemnity. SANBAG shall, to the maximum extent permitted by law, indemnify, defend (with
counsel selected by SANBAG]) and hold City free and harmless of, from and against any and all
claims, demands, losses, liabilities, damages, costs and expenses, including without limitation
reasonable attorneys' fees, arising out of, resulting from or related to any action or proceeding
filed by any person or entity, served upon the City and relating to the vacation of the Streets,
provided that the litigation is pending in a court of competent jurisdiction within three hundred
sixty-five (365) days (that is, one (1) year) of the date City actually, fully and finally vacates the
Streets as provided in Section 1 of this Agreement.
3. Intentionally deleted.
4. Construction.
4.1 The parties acknowledge and agree that the parties have reviewed, and that each
party's counsel have reviewed or had an opportunity to review, this Agreement and that the
014182
2014-339
normal rule of construction, to the effect that any ambiguities are to be resolved against the
drafting party, shall not be employed in the interpretation of this Agreement or any exhibits,
amendments or attachments hereto.
4.2 If any portion of this Agreement is held invalid or inoperative, then, so far as is
reasonable and possible, the remainder of this Agreement shall be deemed valid and operative
and effect shall be given to the intent manifested by the portion held invalid or inoperative.
4.3 The failure by either party to enforce against the other any term or provision of this
Agreement shall be deemed not to be a waiver of such party's right to enforce against the other
party the same or any other term or provision.
4.4 Headings at the beginning of each Section are for information purposes only and
shall not be used to limit, expand or otherwise interpret the contents of such Section.
4.5 Each Section of this Agreement includes all Subsections thereof.
5. Attorneys' and Other Fees. Should either party institute any action or proceeding to enforce
or interpret this Agreement or any provision hereof, for damages by reason of any alleged
breach of this Agreement or any provision hereof, or for a declaration of rights hereunder, the
prevailing party in any such action or proceeding shall be entitled to receive from the other party
all costs and expenses, including reasonable attorneys' and other fees, actually incurred in good
faith by the prevailing party in connection with such action or proceeding. The term "attorneys'
and other fees" shall mean and include attorneys' fees, accountants' fees, and any and all
consultants and other similar fees incurred in connection with the action or proceeding and
preparations therefor. The term "action or proceeding" shall mean and include actions,
proceedings, suits, arbitrations, appeals and other similar proceedings. The term "attorney's
fees" shall include the costs, salaries, and expenses of the City's City Attorney and members of
his office.
6. Entire Agreement. This Agreement embodies the entire Agreement between the parties and
supercedes all prior agreements and understandings relating to the vacation and indemnity set
forth in and/or contemplated by this Agreement. This Agreement may be amended or
supplemented only by an instrument, in writing, executed by both parties.
7. Recitals. The Recitals set forth in paragraphs A, B and C above, immediately following the
preamble, are incorporated into this Agreement as if set forth in full in this Section 7.
8. Time of the Essence. The parties understand that time is of the essence, and that the City's
vacation of the streets as set forth in Exhibit A is a critical path item for SANBAG's Project.
WIA
C14182
2
2014-339
In witness whereof, the parties have executed this Agreement effective as of the date first set
forth above in this Agreement.
CITY:
CITY OF SANBERNARDINO,
a California Municipal Corporation
Allen P er,
City Manager
C14182
3
SANBAG.
SAN BERNARDINO ASSOCIATED
GOVERNMENTS, a public agency existing
under the laws of the State of California, acting
in its capacity as the San Bernardino County
Transportation Commission and the San
Bernardino County Transportation Authority
By:
Zmond WWolfe
cutive Director
APPROVED AS TO 4_EGAL FORM:
---4-1�een Monag an Teichert
General Counsel
Date: -7
2014-339
� 1 IIIIIIIIIIIII IIIIIIIII -
MT1, 11
gyrus 3
H I I I
m I I I I
I I I I
I I I I
I I I i
LU
I I I l
OZ (n V V I I I I
Q g 133Nts s
m W M� j QLiILL3
j mW R� §U) Q N
jl Q�
Qom? Q D
�o
3LVIMLALN1 Ill
aU
CLa J33ULS i
> I y
ZU.
_
1E ca
3 O o ----- o Q
II I
I W
I I o $ pI W
I Iv
a2 g
I
-----741
I I I
I I I I z
3Ad NONFL3A 1W -~+
ILI11 � H
a�
- � r
+ W
+ c
0
awe
L4