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HomeMy WebLinkAbout2014-341 1 RESOLUTION NO. 2014-341 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AN INDEMNITY AGREEMENT WITH THE 3 SAN BERNARDINO ASSOCIATED GOVERNMENTS RELATING TO THE PROPOSED VACATION OF A PORTION OF "I" STREET SOUTH OF RIALTO 4 AVENUE AND THOSE PORTIONS OF THE EAST-WEST ALLEYS AND ONE 5 NORTH-SOUTH ALLEY, BETWEEN RIALTO AVENUE AND 3RD STREET, TOGETHER WITH A PORTION OF 3" STREET BETWEEN "J" STREET AND "I" 6 STREET, AND A PORTION OF 3RD STREET AT THE INTERSECTION WITH "K" 7 STREET. 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 9 SECTION 1. The Mayor and Common Council of the City of San Bernardino hereby 10 11 approves an Indemnity Agreement with San Bernardino Associated Governments, acting in its 12 capacities as the San Bernardino County Transportation Commission and the San Bernardino 13 County Transportation Authority(SANBAG), in relation to the proposed vacation of a portion 14 of"I" Street south of Rialto Avenue and those portions of the east-west alleys and one north- 15 south alley, between Rialto Avenue and 3rd Street, together with a portion of 3rd Street 16 17 between "J" Street and "I" Street, and a portion of 3rd Street at the intersection with "K" 18 Street. 19 SECTION 2. The City Manager is hereby authorized and directed to execute on 20 behalf of the City said Indemnity Agreement, a copy of which is attached hereto and 21 incorporated herein as Exhibit "1". 22 23 SECTION 3. The authorization to execute the above-referenced Indemnity 24 Agreement is rescinded if the parties fail to execute it within ninety (90) days of the passage 25 of this Resolution. 26 /// 27 /// 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 1 SAN BERNARDINO APPROVING AN INDEMNITY AGREEMENT WITH THE SAN 2 BERNARDINO ASSOCIATED GOVERNMENTS RELATING TO THE PROPOSED VACATION OF A PORTION OF "I" STREET SOUTH OF RIALTO AVENUE AND 3 THOSE PORTIONS OF THE EAST-WEST ALLEYS AND ONE NORTH-SOUTH 4 ALLEY, BETWEEN RIALTO AVENUE AND 3RD STREET, TOGETHER WITH A PORTION OF 3RD STREET BETWEEN "J" STREET AND "I" STREET, AND A 5 PORTION OF 3RD STREET AT THE INTERSECTION WITH "K" STREET. 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 7 and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on 8 the 2nd day of September, 2014, by the following vote, to wit: 9 10 Council Members: AYES NAYS ABSTAIN ABSENT 11 MARQUEZ X 12 BARRIOS X 13 VALDIVIA X 14 SHORETT X 15 16 NICKEL X 17 JOHNSON X 18 MULVIHILL X 19 Georges Hanna, C Clerk 21 A 22 The foregoing resolution is hereby approved this b da of Septembe 2014. 23 24 R. CAREY D IS, Mayor 25 City of San : -rnardino 26 Approved as to form: GARY D. SAENZ, City Attorney 27 28 By. \ 1 EXHIBIT "1" 2 -Indemnity Agreement- 3 4 5 (See attached—3 pages) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2014-339 • INDEMNITY AGREEMENT This Indemnity Agreement ("Agreement") is made and entered into as of this 2ndday 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 0:14182 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. /// /// 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. 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