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CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACT2~ I GIN A l
From:
James Funk, Director
Subject:
Resolution approving a Park Dedication
and Improvement Agreement with GFR
Homes Enterprises, Inc. for the
dedication and improvement of a 4-acre
park located on the southeast comer of
Irvington Avenue and Chestnut Avenue.
Dept:
Development Services
Date:
February 6, 2006
File No: TR 16443, 16795, 17329, and 17812
MCC Date: February 21, 2006
Synopsis of Previous Council Action:
June 21, 2004 Adopted Resolution No 2004-07 approving the Final Tract Map for Tentative Tract Map
No. 16443 located at the south side of Belmont Avenue between Magnolia Avenue and
Chestnut Avenue.
Recommended Motion:
Adopt Resolution.
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Contact Person: James Funk, Director
Phone:
5357
Snpporting data attached: Staff Report, . . Resolution,
& Agreement (Attachment 1), Exhibits A-I - A-3 Ward: 5
FUNDING REQUIREMENTS: Amount: $ 643,000
Source: Waiver of Park Construction and Building Permit Fees
Account Description:
Finance:
Council Notes: :J,n{)b - ~ g
Agenda Item No. ---1--10
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CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
Staff Report
Subiect:
Resolution approving a Park Dedication and Improvement Agreement (Agreement) with GFR
Homes Enterprises, Inc. (Developer) for the dedication and improvement of a 4-acre park located
on the southeast comer of Irvington Avenue and Chestnut Avenue.
Summary:
The Developer is proposing the dedication of properties valued in excess of $143,000 and
proposing park and recreation improvements valued in excess of $500,000 for a total value
(guaranteed by the Developer to the City) in excess of $643,000. The Developer is requesting
credits against park, building and plan check fees in the amount of $643,000 for dedication of
land for a 4-acre park and installation of recreation improvements for the park.
Back2round:
1. On June 17, 2003, the Planning Commission approved Tentative Tract Map No. 16443 to
subdivide 43.82 acres parcel into 127 single-family residential lots with lots ranging from a
minimum lot size of 10,800 square feet to a maximum of 12,031 square feet. The project
included dedication of a 4-acre park site located along the south side of Irvington Avenue
and a 30-foot equestrian trail easement along the eastern property line. The residential
portion of the project site is located on the south side of Belmont Avenue between Magnolia
A venue and Chestnut Avenue in the RL, Residential Low land use district. The proposed
park site is located on the south side ofIrvington Avenue, west side of Chestnut Avenue, and
north side of Cable Creek. Its land use designation is PP, Public Park.
2. On June 21,2004 the Mayor and Common Council adopted Resolution 2004-207 approving
the Final Map for Subdivision Tract No. 16443 located at south side of Belmont Avenue
between Magnolia Avenue and Chestnut Avenue, accepting the public dedications as set
forth on said map; and authorizing execution of the standard form of agreement for the
improvements in said subdivision, with time for performance specified.
3. In accordance with the tract map layout, among other requirements for Tract Map No. 16443,
the following design components were made part of the development requirements:
"Dedicate a minimum of 3.98 developable land suitable for recreation park located
along the southern portion of the proposed tract to the City. Prior to the final map
recordation, the parkland area shall be free and clear of all environmental issues. The
Developer/owner shall prepare an Initial Study in compliance with CEQA
requirements to determine whether the parkland site has habitat, such as coastal sage
scrub or alluvial fan sage scrub, that could support endangered species".
4. The Mayor and Common Council have approved the final tract map for Tentative Tract Map
No. 16443. However, the dedicated park site is in need of improvements. If the Mayor and
Common Council approve the Agreement, in an amount not less than $500,000 would be
constructed by the Developer for additional credit of $500,000.
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CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
Staff Report
5. GFR's Residential Projects: Tract Map No. 16443 is being developed with 127 single-family
homes. Tract Map No. 16795 is proposed to be developed with 54 single-family homes.
Tract Map No. 17329 is proposing to developed with 94 single-family homes. Tract Map
No. 17812 is proposed to be developed with 73 single-family homes. GFR Enterprises, Inc.
intends to develop additional residential projects in Verdemont Heights and the city during
the next 12 years.
6. In the event the proposed Park Agreement is approved, the Developer shall be credited
(relived of the requirement to pay) an amount not to exceed $643,000 in park fees and
various building fees described below towards the Developer's required payments of said
fees applicable to Tentative Tract Nos. 16796, 16795, and other residential tracts developed
by Developer (hereafter collectively known as "Projects"). The City's maximum obligation
to credit the Developer shall not exceed $643,000. In the event said fees levied on the
projects do not exceed $643,000 during the term of the proposed Agreement, the City shall
not reimburse or credit the difference to the Developer.
7. In the event the proposed Park Agreement is approved and executed by all parties, Fees the
Developer shall be relieved of the requirement to pay are identified as Park Construction
Fees, Building Issuance Fees, Building Valuation (Building Permit) Fees, Building Plan
Check Fees, Building Plan Check Model Fees, Plumbing Plan Check Fees, Electrical Plan
Check Fees, Mechanical Plan Check Fees, and Building Inspection Fees (collectively, the
Fees).
8. Term of Agreement with GFR Homes Enterprises, Inc. (the Developer): Unless earlier
terminated as provided in this Agreement, this Agreement for granting credits will
commence on the date of adoption (effective date) by the Mayor and Common Council and
terminate 12 years after commencement.
9. The Developer shall pay a minimum of $500,000 to third parties in auditable payments to
install improvements to the park site. The Developer shall submit receipts and/or other
evidence verifying said expenditures to the City Engineer and Parks, Recreation and
Community Services Director for confirmation of Developer's expenditures. Verification
may include receipts, certification of payments, and certification of costs submitted by a
licensed civil engineer and/or licensed landscape architect.
10. The Developer shall secure the required permits for improvements to the park site. The City
shall not charge the Developer the cost of plan check and inspection of the improvements to
the park site.
11. GFR Homes Enterprises, Inc. Credit to Value Ratio: The Developer is proposing to receive
credits not to exceed $643,000 in exchange for $643,000 of park improvements. GFR's ratio
of requested credits to land and improvements value is $1 of credits for $1 of land and
improvements value.
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CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
Staff Report
12. Comparison of City's Park Agreement with WL Covenant 88 Associates, LLC (now known
as John Laing Homes): For value and credit comparison purposes, on June 6, 2004, the City
Council approved an agreement with WL Covenant 88 Associates, LLC for the Developer to
dedicate a site valued in excess of $480,000 and make approximately $319,420 of
improvements to Verdemont Heights Hilltop Park for credits against various park, building
and plan check fees totaling $433,200 for 88 homes, or credits averaging $4,923 per
dwelling. WL Covenant 88 Associates, LLC's ratio of credits to the land dedication and
improvements value is $1 of credits for $1.85 ofland and improvements value.
13. Comparison of City's Park Agreement with Watson and Associates: The total value of
Watson's land dedication and improvements is a minimum of $4,899,500. Watson is
requesting credits totaling $1,775,000. Watson's ratio of requested credits to land and
improvements value is $1 of credit for $2.76 of land and improvements value.
Financial Impact:
The City is foregoing $143,000 in park construction fees for a park site valued in excess of
$143,000. In addition, the City will be waiving $500,000 in park construction, building plan
check, electrical plan check, plumbing plan check, mechanical plan check, building issuance,
building permit, and planning review plan check fees in exchange for improvements to the park
to be made by the Developer for $500,000 in park improvements.
The total value of the parkland and improvements is estimated to exceed $643,000.
The total amount of the fees to be waived shall not exceed $643,000.
Recommendation:
Adopt Resolution.
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RESOLUTION NO.
RESOLUTION OF TilE .\IA YOR AND COI\Il\lON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE 1\1 A YOR TO EXECUTE AN AGREEMENT
WITH GFR ENTERPRISES, INC. FOR THE DEDICATION AND nIPRO\'E!VIENT OF
A 4-ACRE PARK AT THE SOUTHLAST CORNER OF IRVINGTON AVENUE AND
CHESTNUT AVENUE.
BE IT RESOLVED BY THE IVIA YOR AND COMMON COUNCIL OF THE CITY
OF SAN BER.NARDlNO AS FOLLOWS:
SECTION 1. THAT THE MAYOR is hereby authorized to execute the Park Dedication
and Improvements Agreement (see Attachmcnt "1" and incorporated herein) with GFR
Enterprises, Inc., relative to a park site dedication and park improvements located on the
southeast corner of Irvington Avenue and Chestnut Avenue.
SECTION 2. This Agreement shall not take effect or become operative until fully
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authorized and shall not be implied from any act or course of conduct of any party.
17 SECTION 3. This resolution is rescinded if the parties to the Agreement fail to
18 execute it within sixty (60) days of the passage of the resolution.
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ND, J (p
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1 RESOLUTION...AUTHORIZING THE MAYOR TO EXECUTE AN
2 AGREEMENT WITH GFR ENTERPRISES, INC. FOR THE DEDICATION AND
IMPROVEMENT OF A 4-ACRE PARK AT THE SOUTHEAST CORNER OF
3 IRVINGTON AVENUE AND CHESTNUT AVENUE.
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I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bel11ardino at a meeting thereof. held
7 011 the clay of ~. 2U06. by the following vote, to wit:
8 Coullcil Members: AYES N:\ YS ABST.\I\J r\l3SE\T
9 ESTRADA
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12 MC GINNIS
13 DERRY
14 KELLEY
15 JOHNSON
16 Me CAMMACK
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LONGVILLE
City Clerk
The foregoing resolution is hereby approved this
day of . 2006.
Judith Valles. Mayor
City of San Bel11ardino
23 Approved as to
24 fonn and legal content:
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Attachment 1
PARK DEDICATION AND IlVII'RO\'E'\IE'\'T AGREEMENT
This Park Dedication and Improvement Agreement ("Agreement") is entered into effective
,2006 between the City of San Bernardino, a Municipal Corporation and
Charter City ("City") and GFR Enterprises, Inc., which together with certain assignees and/or
affiliated entities established for the express purpose of creating the developments described below,
or any of them (collectively and individually, "Developer") .
RECIT ALS
I. On June 21, 2004 the Mayor and Common Council adopted Resolution No. 2004-07 approving
the Final Map for Tentative Tract Map No. 16443 to allow residential development at the south
side of Belmont A venue between Magnolia A venue and Chestnut Avenue. Tract Map No. ] 6443
contains ]27 single-family residential lots. Each lot has a minimum lot size of ]0,800 square
feet.
2. Tentative Tract Map No. 16443 committed the Developer to dedicate approximately 4-acres of
land to the City of San Bernardino to be used as a locll public park. The fair markct valuc of tilc
proposed 4-acre site proposed to be developed as a public park is estimated to exceed $143,000
based on the Developer's purchase price of the site of the proposed park and the opinion of the
City's Real Propel1y Ofticial. The park site contains two parcels identified on Exhibit "An as
Assessor Parcel Nos. 261-18-03 and 261-66-66.
3. The Developer is processing additional tentative tract maps for residential development.
including Tentative Tract Map Nos. 16795, 17329, and 17812.
4. The City has established various development impact fees to offset the cost of development of
City infrastructure, and has established building plan check fees, building inspection fees, and
public works inspection fees to offset the cost of providing these services.
5. Development of the park site would benefit the Deve]oper of the residential projects if the park
was under construction, nearing completion, or completed while sale of the dwellings were
underway. The City would benefit and time would be saved if the Developer installed and
constructed the park Improvements now rather than having the park site be developed at a future
date.
OPERATIVE PROVISIONS
I. Term: Unless earlier ternlinated as provided in this Agreement, this Agreement shall commence
on the Effective Date and tenninate 12 years after commencement of this Agreement.
2. Desiv:n and Construction of Improvements: Improvements to the park site shall be made by the
Page I 02/17/06
Developer in accordance with the plans and specifications approved by the City Engineer and
the Parks, Recreation and Community Services Director. Developer shall use its best reasonable
efforts to complete the Improvements ('"Improvements") in accordance with the plans and
specifications prepared or caused to be prepared by the Developer and approved by the City
Engineer and the Parks, Recreation and Community Services Director. In the event a vehicle
parking lot is constructed and completed in the park site by the Developer in accordance with
construction plans approved by the City Engineer, said vehicle parking lot shall be considered
an Improvement. In the event parkway irrigation and landscape are constructed and completed
in parkway(s) abutting the park site in accordance with plans approved by the City Engineer, said
irrigation and landscape shall be considered an Improvement. In the event perimeter walls are
constructed and completed in the park site by the Developer in accordance with construction
plans approved by the City Engineer, said walls shall be considered an Improvement.
3. Coordination and Completion of Improvements: The Improvements to the park sitc s1131I he
coordinated with thc City and completed prior to March 1,2007.
4. Permits: The Developer shall secure the required pcrmits lor Improvements to the park site. The
City shall not charge the Developer the cost of pi an check and inspection of the Improvements
to the park site.
5. Site Dedication: The 4-acre site of the proposed park is illustrated in Exhibit "A" to the
Agreement. The site shall be dedicated to the City free and clear of liens prior to the City's
acceptance of Improvements.
6. Credits: In the event the Improvements to the park site are completed to the satisfaction of the
City Engineer and in compliance with the temlS of this Agreement, the Developer shall be
considered in compliance with requirements for receiving credits (relieved from the requirement
to pay) for Park Construction Fees, Building Issuance Fees, Building Valuation (Building
Pennit) Fees, Building Plan Check Model Fees, Plumbing Plan Check Fees, Electrical Plan
Check Fees, Mechanical Plan Check Fees, Building Plan Check Fees, and Building Inspection
Fees ('"Fees") in the amount of $643,000 for the dedication of the site and construction of the
Improvements to the park. Developer shall be relieved from the requirement to pay said fees
commencing onlhe effective date of this Agreement.
7. Total Amount of Credits: Thc total amount of said credits granted to the Developer shall be
$643,000 for dedication of the park site and the installation, construction, and completion of
Improvements to the park site.
8. Term of Credit Obligation: The City's obligation, under this Agreement, to credit the Developer
for the completed Improvements shall continue for a period of twelvc (12) years from the
Effective Date of this Agreement, unless the obligation is sooner satisfied by credit in the full
amount of $643,000 to the Developer under this Agreement. After such twelve-year period or
credit in full, whichever occurs first, the City's obligation to credit the Developer shall terminate.
Page 2 02/17/06
9. Shortfall of Credits: The City's maximum obligation to credit the Developer shall not exceed
$643,000. In the event Park Construction Fees and other City fees levied on the development
of the Projects does not exceed $643,000 during the term of this Agreement, the City shall not
reimburse or credit the di fference to the Developcr.
10. Proiects: The Developer shall be credited an amount not to exceed $643,000 in Fees towards the
Dcveloper's (or Developcr's builder(s) required paymcnts of said Fecs applicable lu Tentatin:
Tract I\os. 16443, 16795, 17329, 17812 and other residential projects located in the City of San
Bcrnardino and developed by Devcloper (hereafter collectively known as "Projects").
II. Fees in Excess of Ci-edits: In the event Fees levied on the Developer's residential Projects exceed
5643,000 during the term of this Agreement, the City shall not reimburse or credit the difference
to the Deve]oper. The Developer shall be responsible and shall pay to the City any Fees levied
on the development of the property, which exceed $643,000.
12. Bids and Contracts: Developer shall be solely responsible for securing appropriate bids and
awarding the contract for construction and installation ofImprovements in compliance with all
applicable federal, state and local laws. Developer shall defend, indemnify and hold City and
their elected officials, officers, agents and employecs free and ham11ess from any and all claims,
actions or liability whatsoever, including attorney's fees and court costs, arising out of or in
connection with Developer's construction of the Improvements.
13. Auditable Payments to Third Parties: The Developer shall pay a minimum of $500,000 to third
parties in auditab]e payments to install and construct Improvements to the park site. Thc
installation and construction of Improvements shall be in confom1ance with a park improvement
plan prepared or caused to be prepared by Developer and approved by the City Engineer and
Park. Rccreation and Community Services Director. The Developer shall submit receipts and/or
other evidence verifying said expenditures for installation and construction ofImprovements /to
the City Engineer and Parks, Recreation and Community Services Director for confinnation of
Deve]oper's expenditures. Verification may include receipts, certification of payments, and
cetiification of costs submitted by a licensed civil engineer and/or licensed landscape architect.
14. Inspection: The City shall have the right at all times to inspect the construction of the
Improvements and all other Improvements to the street right-of-way and abutting property to
measure compliance with approved City plans and specifications, and standards of the City
Engineer.
15. Miti gation Monitorin2, Pro~ram: In its construction of the Improvements, the Developer will
adhere to the Mitigation Monitoring Program established for Map 16443 and the proposed park
site.
16. Indemni fication:
a) With respect to the Developer's perfonnance as provided in this Agreement. the
Developer shall defend, indemnify and hold the City and its elected officials, officers
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and employees free and harmless from any loss, cost or liability (including, without
limitation, liability from injury to persons, including wrongful death and \\orker's
compensation claims or damage to property) arising from or related to (i) any
obligation of the Developer which arises from the development of the park site
including, without limitation, obligations for the payment of money for material or
labor, (ii) any failure on the part of the Developer to take any action which it is
required to take as provided in the Agreement, (iii) any action taken by the Developer
which it is prohibited from taking as provided in the Agreement, (iv) any willful or
negligent act or omission of the Developer, or (v) any legal challenge to the City's
actions in approving or implementing this Agreement.
b) Included in the scope of the foregoing indemnification will be all damages and claims
for damages which are suffered or alleged to have been suffered by reason of the
matters which are subject to the applicable indemnification and all of the associated
legal fees and court costs (but not intemal costs). Without limiting the effect of the
foregoing, the Developer will have the right to defend against any claim with respect
to which it is indemnifying the City, using legal counsel of its choice. The City will
cooperate \\ith the Developer and will give the Developer its full support in
connection with any claim with respect to which the Developer is indemni fying the
City.
c) Developer shall require all persons doing work on grading, including their contractors
and subcontractors, to obtain and maintain insurance of the types and in the amounts
described below in a foml and with carriers satisfactory to City.
1. Commercial General Liability Insurance: Occurrence version commercial general
liability insurance or equivalent form with a limit of not less than $1,000,000 each
occurrence shall be maintained. If such insurance contains a general aggregate limit,
it shall apply separately to this Agreement or be no less than two times the occurrence
limit. Such insurance shall:
i) Name City, its elected officials, officers, employees and agents as
additional insureds with respect to perfomlance of this Agreement. The
coverage shall contain no special limitations on the scope of its protection
afforded to the above-listed insureds.
ii) Be primary with respect to any insurance or self-insurance programs
covering City, its elected officials, officers, employees and agents.
iii) Contain standard separation of insureds provisions.
") Business Automobile Liability Insurance: Business automobile liability insurance or
equivalent foml with a limit of not less than $500,000 each accident shall be
maintained. Such insurance shall include coverage for owned, hired, and non-owned
automobiles.
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3. Workers Compensation Insurance: Workers compensation insurance with statutory
limits and employers liability insurance with limits of not less than $1,000,000 each
accident shall be maintained.
4. Other Insurance Requirements: Developer shall:
(i) Prior to taking any actions under this Agreement, fumish City with
properly executed certificates of insurance which shall clearly l:vidence all
insurance required in this Section and provide that such insurance shall not
be modified or canceled, without the prior written consent of the City.
17. Prevailin!!; Wa!!;es: Developer is aware of the requirements of California Labor Code Sections
Inu et. ~., which require the payment of prevailing wage rates for De\'eloper's contracts with
its contractor(s) to construct the Improvements in accordance with a public works contract as
defined in Sections 1720 and 1720.2 of the California Labor Code. The Developer and City
agree that the park site is not a part of the development of the abutting street rights-of-way and
abutting private property. The Developer agrees thalthe Improvements in the park site shall be
deemed a "public works project" as defined in the California Labor Code. The Developer shall
pay and cause its subcontractors to pay prevailing wage for the Improvements within the park
site. Developer agrees to defend, indemnify and hold City, its elected officials, officers, and
agents harnlless from any claim or liability including, without limitation, attorney's fees and
court costs, arising from any failure or alleged failure to comply with these provisions of the
California Labor Code.
18. Contractor Licenses: All work performed on the Improvements shall be done only by contractors
licensed in the State of California and holding business licensees in the City of San Bernardino,
and quali fied to perform the type of work required.
19. Acceptance of Work: Upon completion of the Improvements to the satisfaction of City, the
Improvements and the park site in the ownership of the Developer shall be presented to the San
Bernardino Common Council for dedication and acceptance, and for authorization to file a
Notice of Completion. The Common Council may accept the Improvements ifit detellllincs that
the Improvements were constructed in accordance with the approved plans, speci fications and
contract documents that they operate satisfactorily, and that all other requirements of the
Agreement have been satisfied. Upon acceptance of the Improvements, Developer shall assign
to City all of Developer's rights and remedies, including warranties, as set forth in the approved
contract documents that City would have had if City itself had engaged Developer's contractor
to construct the Improvements.
20. Liability for Work Prior to Formal Acceptance: Until the Common Council has formally
accepted the Improvements, Developer shall be solely responsible for all damage to the work
caused by or arising out of Developer's or its contractor's or subcontractor's negligent acts or
omissions, and for all damages or injuries to any person or property at the work site caused by
or arising out of Developer's or its contractor's or subcontractor's negligent acts or omissions,
except damage or injury due to the negligence of City, its agents or employees.
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21. Guarantee: Developer shall post a WalTanty bond for the entire site In form and content
acceptable to the City, guarantee all work and materials for the Improvements to be free from all
defects due to faulty materials or workmanship It)!" :! period of one (I) year atkr ihl' dale lli'
formal acceptance of the work by City.
22. Record Drawings: Prior to acceptance of the Improvements by the Common Council, Developer
shall provide City with three (3) copies of record drawings with certification as to accuracy and
completeness by an engineer licensed in the State of California. The City shall not be
responsible for insuring the completeness and accuracy of the record drawings.
23. Ownership of the Improvements: From and after acceptance of the Improvements by fonnal
action of the Common Council, ownership ofthe Improvements shall be vested exclusively in
City,
24. Default by Developer: If the Developer fails to perform any of its obligations as provided in the
Agreement and fails to cure its nonperfornlance within 30 days after notice of nonperformance
is given by the City, then the Developer shall be in default and the City shall have all remedies
which are available to it at law or in equity; provided, however that if the nature of Developer's
failure to comply or perfornl is such that it cannot reasonable be cured within 30 days, then the
Developer will not be in default ifit immediately Cl1mmcnces and therealkr diligcmi:, l\Jllliuuc::.
to cure its failure.
25, Default by City: If the City fails to perform any of its obligations as provided in the Agreement
and fails to cure its nonperformance within 30 days after notice of nonperformance is given by
the Developer, then the City shall be in default and the Developer shall have all remedies which
are available to it at law or in equity; provided, however that if the nature of City's t~lilure to
perform is such that it cannot reasonable be cured within 30 days, then the City shall not be in
default if it immediately commences and thereafter diligently continues to cure its failure.
26. Negation of Agency Joint Venture or Partnership: The parties acknowledge that in entering into
this Agreement: they are acting as independent entities and not as agents of the other in any
respect. The parties hereby renounce the existence of any form of joint venture or partnership
among or between them and agree that nothing in this Agreement will be construed as making
them joint ventures or partners.
27. Notices and Other Communications: All notices or other communications which are required or
pellllitted 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:
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CITY
Ci ty of San Bernardino
300 North D Street
San Bernardino, CA 92418
Attn: Director of Development Services
DEVELOPER
GFR Enterprises, Inc.
434 N. Second Avenue
Upland, CA 91786
Addresses, to which notices or other communications may be delivered, may be changed
from time to time by written notice, which is given as provided in this par<lgraph 2'.
28. Estoppel Certificates: At the request of either party, the other party will, within 10 days, certify
in writing that, to the best of its knowledge, (a) this Agreement has not been amended or
modified, except as expressly provided in that estoppel certificate and (b) no default in the
performance of the requesting party's obligations as provided in this Agreement exists, except
as is expressly provided in that estoppel certificate.
29. Applicable Law: This Agreement will be construed and enforced as provided in California law.
30. Superscding State or Federal Law: If any state or federal law or regulation which is enacted or
adopted after the Effective Date 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 that 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 CJCCLmencc of any other circumstance \vhich removes the effect of the same on
this Agreement, the provisions of the 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 tenninate.
3 I. 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.
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32. 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.
33. Para~raph Headin~s: The paragraph 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.
34. Construction: In all cascs, 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.
35. Survival: Each and every covenant in this Agreement shall survive the execution and delivery
of this Agreement for the benefit of the parties.
36. 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.
37. Severabilitv: Every provision of this Agreement is and shall be construed to be a separate and
independent covenant. Without limiting the effect of paragraph 30, 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 the
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.
38. Covenant of Good Faith: In exercising their rights and in perfonning their obligations as
provided in this Agreement, the parties shall cooperate with one another in good faith, so the
intent of this Agreement can be attained.
39. Counterparts: This Agreement may bc 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.
40. lncomoration of Recitals: The "Recitals" in this Agreement are material and are incorporated by
reference as though fully set forth hereof.
41. Exhibit: The Exhibits to this Agreemcnt arc incorporated by reference as though fully set forth
herein.
Page 8 02/17/06
42. Amendmcnt: No amendment or waiver of any tem1 of this Agreement shall be binding on theCity
unless and until it has bcen approved and executed by the City, or on the Developer unless and
until it has been executcd by the Dcveloper.
43. Assignmcnt: This Agrecment shall not be assigncd without the written consent of the parties
hereto, and any assignment without such writtcn consent shall be void and ineffective.
44. Time of Essence: Time is of the essence of this Agreement.
SIGNATURES FOLLOW
Page 9 02/17/06
PARK DEDICATION AND IMPROVEMENT AGREEMENT
CITY OF SAN BERNARDINO
By
Judith Valles, Mayor
ATTEST:
By:
Rachel Clark, City Clerk
APPROVED AS TO FORM
AND LEGAL CONTENT:
James F. Penman, City Attorney
By iltflf/v II Oil:tl<<J
DEVELOPER
GFR Enterprises, Inc.
By:
Name:
Title:
/ /
/ /
10
': Exhibit A-I
CITY OF SAN BERNARDINO PROJECT: T.T.M No. 16443
PLANNING DIVISION
LoeA TION MAP
LAND USE DISTRICTS HEARING DATE: 6/17/03
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopte9): ';-/1-- J ( 0 b Item # ~ I (P Resolution # ~ () ~ .-'.5 3
Vote: Ayes fo Nays Abstain Absent Jx'1
Change to motion to amend original documents 0
Companion Resolutions
NulVVoid After: days /
Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0
PUBLISH 0
POST 0
RECORDW/COUNTY 0
By:
Date Sent to Mayor: Yr s, rD (0
Date of Mayor's Signature: ,,/,/)7' vi:>
Date ofClerk/CDC Signature:
Reso. Log Updated: V
Seal Impressed: ~
Reso. # on Staff Report C1
Date Memo/Letter Sent for Signature:
1" Reminder Letter Sent:
Date Returned:
2'd Reminder Letter Sent:
Not Returned: 0
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985,8234,655,92-389):
Yes
~..
No By
NO/BY-
- -
No~y_
NO~
- -
No_~ By_
Yes
Yes
Yes
Yes
Copies Distributed to:
Animal Control
City Administrator
City Attorney
Code Compliance
Development Services
Others:
o
V,
~
EDA
V Information Services 0
Parks & Recreation 0
Police Department 0
0 Public Services 0
0 Water Department 0
Facilities
Finance
Fire Department
Human Resources
Notes:
Ready to File: _
Date:
Revised 12/18/03
.
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
February 28, 2006
TO:
James Funk, Director
Development Services Department
FROM:
Eileen Gomez, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2006-58
At the Mayor and Common Council meeting of February 21,2006, the City of San Bernardino
adopted Resolution No. 2006-58 - Resolution authorizing the Mayor to execute an agreement
with GFR Enterprises, Inc. for the dedication and improvement of a 4-acre park at the southeast
corner of Irving ton Avenue and Chestnut Avenue.
Attached are one (I) original agreement and three (3) duplicate original agreements. Please
obtain signatures in the appropriate locations and return the ORIGINAL agreement to the City
Clerk's Office as soon as possible, to my attention. Please keep the fully executed copies for
your records and for the other party.
Please be advised that the resolution and contract will be null and void if not executed
within sixty (60) days, or by Thursday, April 20, 2006.
If you have any questions, please do not hesitate to contact me at ex!. 3206. Thank you.
Eileen Gomez
Senior Secretary
ge receipt of the above mentioned documents.
r
Signed:
Date:
Please sign and return