HomeMy WebLinkAbout35-Risk Management
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CITY OF SAN BERNAOINO - REQUEST FolOcouNCIL ACTION
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'.om: Victor Lorch
Director o~ Ri8lc Hanaqement
)ept: Risk Hanaqement
)m: September 20, 1990
Sub~: Subdivision Improvement Agreement
Amendment of Insurance and
Indemnification Provisions _
Resolution 84-8
..
iyllOf)lilof PrwiouI Council action:
On January 10, 1984, Council approved Resolution 84-8. Under Exhibit "A"
Section 12, sub-paraqraphs "A" and "B" pertaininq to Compensation Insurance
and Public Liability and Property Damaqe Insurance. Section 11, contained
the wordinq of the Hold Harmless Agreement.
~lCOmmendlcl motion:
Adept Reeolution.
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l;onUlCt penon:
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fupponing dIU! enachecI:
fUNDING REQUIREMENTS:
Victor Lorch
Phone:
384-5103
Ward:
Amount:
Source: (Acct. No.)
(Acct. Descriotionl
Finance:
,~unCi~ Notea:
~ '-0262
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Agenda I tern No --..::5...5
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FQa COUNCiL ACTiON
STAFF REPORT
Approval of tentative tract maps is routinely
conditioned upon installation of necessary public improvements.
Final maps cannot be rlecorded until all required public
improvements are completed, or acceptable surety filed to insure
their installation. In those instances where the final map is
recorded prior to installation of the public improvements, which
is the case for virtually all subdivisions, an agreement is
required to stipulate the terms and provisions under which the
improvements will be installed.
The same standard form agreement is used for virtually
every subdivision. Therefore, the standard form agreement was
approved by Resolution No. 84-8 on January 9, 1984. This
approval allowed the standard form agreement to be referred to in
future resolutions without being attached and included in the
Council Agenda backup.
The Risk Management Department and the City Attorney's
Office recently became concerned that the insurance coverage
stipulated in the standard form agreement was not sufficient in
relation to potential City liablility. At the time Resolution
84-8 was adopted, the Standard Form Agreement provided for a
Public Liability Insurance Policy of $100,000 per occurrence and
$300,000 aggregate and property damage insurance of $50,000.
There was no provision for product liability. In 1987, insurance
limits were increased to $500,000 aggregate on each request for
Council action to adopt a resolution for authorization to execute
each standard form agreement.
The City Attorney's Office requested the Director of
Risk Management to review the required coverage. After reviewing
the exposure to the City, the Director of Risk Management
recommended that the Public Liability and Property Damage Limits
be increased to $1,000,000. This limit is readily available in
the insurance industry and is consistent with the requirements of
surrounding cities.
The Building Industry Association has reviewed the
proposed increase in insurance coverage and has no objections.
We recommend that the proposed standard form agreement
for subdivisions be approved.
15.0264
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RESOLUTION NO.
RBSOLU'l'ION OF THE CI'l'Y OF SAN BBRNARDlNO ADOP'rING A NBIf STANDARD
FORM OF AGRBBMBNT FOR SUBDIVISION IMPROVEMBNTS AND REPEALING
RBSOLU'l'ION NO. 84-8.
WHEREAS, on January 10, 1984, the Mayor and Common Council
adopted Resolution No. 84-8 approvipg a standard form of
agreement for subdivision improvements, and
WHBRBAS, such subdivision improvement agreements are
agreements where subdividers or developers contract with the City
to complete various on-site and off-site improvements within the
subdivision, and
WHBRBAS, through use of the agreement for subdivision
improvements, developers provide adequate assurance to the City
that the improvements will eventually be completed in a form
satisfactory to the City, and
WHBRBAS, because of the City's increased exposure to
public liability and necessity to protect itself against third
party claims, it is necessary to amend the standard form
Subdivision Improvement Agreement,
NOW, THBRBFORB, BB IT RBSOLVBD BY THB MAYOR AND ~N
COUNCIL OF THE CITY OF SAN BBRNARDINO AS FOLLOWS:
SBCTION 1.
Implementation.
The new standard form
agreement for subdivision improvements, a copy of which is
annexed hereto and incorporated herein as Exhibit A, is hereby
approved. Future resolutions of the Mayor and Common Council may
authorize the Mayor to execute such standard form of agreement on
behalf of the City of San Bernardino in its standard form with
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BAS/ml/res.848
October 11, 1990
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RBSOLUTION OF THE CITY OF SAN BBRNARDINO ADOP'l'ING A NEW STANDARD
FORM OF AGRBBMBNT FOR SUBDIVISION IMPROVBMBNTS AND REPEALING
RESOLUTION NO. 84-8.
such modifications as are specifically mentioned in the
resolution without the necessity of the agreement being attached.
SBCTION 2. Resolution No. 84-8 and the Prior Standard Form
Subdivision Improvement Agreement are hereby repealed.
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BAS/ml/res.848
October 11, 1990
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RBSOLUTION OF THB CITY OF SAN BBRNARDINO ADOPTING A STANDARD
FORM OF AGRBEMENT FOR SUBDIVISION IMPROVEMENTS AND REPEALING
RESOLUTION NO 84-8.
I HEREBY CERTIFY that the foregoing was duly adopted by the
Mayor and Common Council of the City of San Bernardino at a
meeting thereof held on the
of
, 19
Council Members:
ESTRADA
REILLY
FLORES
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
day
, by the following vote, to wit:
AYES
NAYES
ABSTAIN
City Clerk
The foregoing resolution is hereby approved this
day of , 19
Approved as to form
and legal content:
JAMES F. PENMAN,
Ci ty A)t:torney ?
By: Y~?,I~
(I
BAS/ml/res.848
October 11, 1990
W.R. HOLCOMB, Mayor
City of San Bernardino
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AGREEMENT
(Subdivision Improvements)
THIS AGREEMENT is made and entered into as of this
day of
, 19____, by and between the CITY OF SAN
BERNARDINO, a MuniCipal Corporation, hereinafter referred to as
"City", and
, hereinafter
referred to as "Subdivider".
RECITALS
A. WHEREAS, Subdivider has presented to City for
approval a final subdivision map (hereinafter called "map")
entitled
and,
B. WHEREAS, the map has been filed with the City for
presentation to the City Council (hereinafter called "Council")
of the City for its approval, which map is hereby referred to and
incorporated herein; and,
C. WHEREAS, Subdivider has requested approval of the map
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,
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D. WHEREAS, Council has approved said map and accepted
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 18 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 said Engineer which, in his
opinion, are necessary or required to complete the work.
2. Work: Places Bod 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 City Engineer and
which are now on file in his office, and to the satisfaction of
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September 20, 1990
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said City Engineer.
3.
Work:
Time for Commencement and Performance.
City
hereby fixes the time for the completion of said work to be
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within
from the date hereof.
4. Time of Essence - Extension. Time is of the essence of
6 this Agreement; provided that, in the event good cause is shown
7 therefor, the City Engineer may extend the time for completion of
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the improvements hereunder.
Any such extension may be granted
9 without notice to the Subdivider's surety, and extensions so
10 granted shall not relieve the surety's liability on the bond to
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secure the faithful performance of this Agreement.
The City
12 Engineer shall be the sole and final judge as to whether or not
13 good cause has been shown to entitle Subdivider to an extension.
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5. Repairs and Replacements. Subdivider shall replace, or
16 all pipes and monuments shown on the map which have been
have replaced, or repair, or have repaired, as the case may be,
17 destroyed or damaged, and Subdivider shall replace, or have
18 replaced, repair, or have repaired, as the case may be, or pay to
19 the owner the entire cost of replacement or repairs, of any and
20 all property damaged or destroyed by reason of any work done
21 hereunder, whether such property be owned by the United States,
22 or any agency thereof, or the State of California, or any agency
23 or political subdivision thereof, or by the City, or by any
24 public or private corporation, or by any person whomsoever, or by
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any combination of such owners.
Any such repair or replacement
26 shall be to the satisfaction, and subject to the approval, of the
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City Engineer.
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6.
Ut~1ity Depos~ts - 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.
Perm~ts:
COmp1iance w~th Law.
Subdivider shall, at
Subdivider's 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 18 San Bernardino Municipal Code.
8.
Super~ntendence by Subd~v~der.
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.
Inspect~on by C~ty.
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 Secur~ty.
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%)
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September 20, 1990
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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
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 18 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.
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September 20,"1990
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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
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shall have been approved by City Attorney as to form, amount and
5 carrier, nor shall Subdivider allow any contractor or
6 subcontractor to commence work on his contract or subcontract
7 until all similar insurance required of the contractor or
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subcontractor shall have been so obtained and approved.
All
9 requirements herein provided shall appear either in the body of
10 the insurance policies or as endorsements and shall specifically
11 bind the insurance carrier.
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(a)
Workers 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 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
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September 20, 1990
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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 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 anyone person, and, subject to the same limit
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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 anyone 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, entitled "tail
coverage" must be purchased to cover a period of
one (1) year from completion of the project. All
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September 20, 1990
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subcontractors must and shall comply with the
same insurance provisions as the contractor(s)
and subdivider(s).
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(4) Personal Injury - Def:l.ned.
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, on invasion of
personal rights, including libel or slander
criminal conversation, malicious prosecution,
false imprisonment and mental suffering.
12.
Ev:l.dence of Insurance.
Subdivider and contractor
16 satisfactory evidence of the insurance required, and evidence
shall furnish City, concurrently with the execution hereof, with
17 that City is named and endorsed on the policy as an additional
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insured.
Subdivider and contractor shall also provide City with
19 evidence that each carrier will be required to give City at least
20 ten (10) days prior written notice of the cancellation or
21 reduction in coverage of any policy during the effective period
22 of this Agreement.
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13.
Hold Harm1ess/Indemn:l.f:l.cat:l.on.
Subdivider(s)/
24 Developer(s) hereby agree to and shall protect, defend, indemnify
25 and hold the City and its elective and appointive boards,
26 commissions, officers, agents, employees and servants free and
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harmless from any and all liability losses, damages, claims,
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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 arising in favor on 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 anyone of contractor or
Subdivider's contractors or subcontractors. Subdivider/Developer
shall investigate, handle, respond to, provide defense for and
defend any such claims, 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
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aforesaid hold harmless agreement, because of the
acceptance by City, or the 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 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.
16 This provision is not intended to create any cause of action in
17 favor of any third party against Subdivider/Developer or the City
18 or to enlarge in any way the Subdivider' s/Developer' s liability
19 but is intended solely to provide for indemnification of the City
20 from liability for damage or injuries to third persons or
21 property arising from SUbdivider/Developer's performance
22 hereunder.
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14.
Title to Improvements.
Title to, and ownership of,
24 all improvements constructed hereunder by Subdivider shall vest
25 absolutely in City, upon completion and acceptance of such
26 improvements by City.
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15.
Repa~r or Reconstruct~on of Defect~ve Work.
If,
within a period of one year after final acceptance of the work
performed under this Agreement, any structure or part of any
4 structure furnished and/or installed or constructed, or caused to
5 be installed or constructed by Subdivider, or any of the work
6 done under this Agreement, fails to fulfill any of the
7 requirements of this Agreement or the Specifications referred to
8 herein, Subdivider shall, without delay and without any cost to
9 City, repair or replace or reconstruct any defective or otherwise
unsatisfactory part or parts of the work or structure.
Should
11 Subdivider fail to act promptly or in accordance with this
12 requirement, or should the exigencies of the situation as
13 determined by the Ci ty in the exercise of its sole discretion
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require repair, replacement or reconstruction before the
Subdivider can be notified, City may, at its option, make the
16 necessary repairs or replacements or perform the necessary work,
17 and Subdivider shall pay to the City the actual cost of such
18 repairs plus fifteen percent (15%).
19
20 any of Subdivider's agents or contractors are, or shall be,
16. Subd~v~der Not Agent of C~ty. Neither Subdivider nor
21 considered to be agents of City in connection with the
22 performance of Subdivider's obligations under this Agreement.
23
17. Cost of Eng~eer~ng and IDSPeCt~on. Subdivider shall
24 pay to City the costs of all permit fees for all engineering
25 inspections and other services connected with the City in regard
26 to the subdivision. Said fees shall be paid prior to commencing
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any construction.
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18.
Not~ce 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
6 should be adjudged a bankrupt, or Subdivider should make a
7 general assignment for the benefit of Subdivider's creditors, or
8 if a receiver should be appointed in the event of Subdivider's
9 insblvency, or if Subdivider, or any of Subdivider's contractors,
10 subcontractors, agents or employees, should violate any of the
11 provisions of this Agreement, City Engineer or City Council may
12 serve written notice upon Subdivider and Subdivider's surety of
13 breach of this Agreement, or of any portion thereof, and default
14 of Subdivider.
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19.
Breach of Agreement: Performance by Surety or City.
16 In the event of any such notice , Subdivider's surety shall have
17 the duty to take over and complete the work and the improvement
18 herein specified; provided, however, that if the surety, within
19 five days after the serving upon of such notice of breach, does
20 not give City written notice of its intention to take over the
21 performance of the contract, and does not commence performance
22 thereof within five days after notice to City of such election,
23 City may take over the work and prosecute the same to completion,
24 by contract or by any other method City may deem advisable, for
25 the account and at the expense of Subdivider, and Subdivider's
26 surety shall be liable to City for any excess cost or damages
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occasioned City thereby; and, in such event, City, without
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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 Administrator
Ci ty Hall
300 North "0" Street
San Bernardino, California
92418
(b) Notices required to be given to Subdivider shall be
addressed as follows:
(c) Notices required to be given to surety of Subdivider
shall be addressed as follows:
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.
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.
III
BAS/mgl[Subdivimp.Agr] 14
September 20, 1990
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AGREEMENT FOR
NO. 84-8
SUBDIVISION
o
IMPROVEMENTS AND REPEALING
o
RESOLUTION
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
ATTEST:
CITY OF SAN BERNARDINO
By:
W.R. Holcomb, Mayor
City of San Bernardino
City Clerk
Approved as to form
and legal content:
SUBDIVIDER:
JAMES F. PENMAN,
City Attorney,
~ }-. le-z,:..""-!
By:
By:
INSTRUCTIONS
If the Subdivider is a corporation, the Agreement must be
executed in the corporate name and signed by the President or a
Vice-President and the Secretary or Assistant Secretary, and the
corporate seal affixed.
If the Subdivider is a partnership, it
must be signed by all partners.
If the Subdivider is an
18 indi vidual doing business under a fictitious name, it must be
19 signed by all persons having an interest in the business, and the
20
fictitious name must be signed also.
The Agreement must be
21 notarized.
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STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF
On this day of
me, the undersigned, a Notary
State, personally appeared
,19 ,before
Public in and for said County and
personally known to me (or proved to me on the basis of
satisfactory evidence to be the President, and
BASjmgl[Subdivimp.Agr] 15
September 20, 1990
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personally known to me (or proved to me on the basis of
satisfactory evidence) to be the
of the corporation that executed
the within instrument, and known
to me to be the persons who
executed the within instrument
on behalf of the corporation
therein named, and acknowledged
to me that such corporation
executed the same, pursuant to
its by-laws, or a resolution of
its Board of Directors.
WITNESS my hand and official seal.
Notary Signature
BAS/mgl[Subdivimp.Agr]
September 20, 1990
16
(This area for official seal.)