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ORIGINAL
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From:
Valerie C. Ross, Director
Subject:
Resolution approving an Agreement with
Pine Trails Partners, LLC, a California
Limited Liability Company for Pine
A venue Improvements.
Dept:
Development Services
Date:
September 5, 2006
MCC Date:
September 18, 2006
Synopsis of Previous Council Action:
11/1012004 Mayor and Common Council adopted Resolution No. 2004-306 approving Final Map for Subdivision Tract
No. 16509, Unit 1, located on the northwest side of Northpark Boulevard between University Parkway and Devil Creek
Flood Control Channel.
03/07/2005 Mayor and Common Council adopted Resolution No. 2005-59 for formation of the Northpark Boulevard and
Campus Parkway area Landscape Maintenance Assessment District No. 1036.
03/16/2005 Mayor and Common Council approved the Final Maps of Units 2 and 3 of Tract No. 16509 and approved
Standard Form of Agreements for Subdivision Tract Nos. 16509-2 and 3 with University Park, LLC.
09/06/2005 Mayor and Common Council approved the Final Maps of Units 4 and 5 of Tract No. 16509 and approved
Standard Form of Agreements for Subdivision Tract Nos. 16509-4 and 5 with University Park, LLC.
02121/06 Mayor and Common Council adopted Resolution No. 2006-59 approving a Parks Dedication and Improvements
Agreement with J. R. Watson & Associates Development Co. for the dedication ofland for Chancellors Park, Westridge
Park, Regency Park, and Improvements to Chancellors Park, Westridge Park, Regency Park, Art Colony Park, Collegian
Park, and Pine A venue Greenbelt Park,
08/07/06 Mayor and Common Council adopted the 5-Year Capital Improvement Program (CIP) for 2006/07-2010/11.
Recommended Motion:
Adopt Resolution.
Mike Grubbs, Engineering Manager
Phone:
Contact Person:
5179
Supporting data attached:
Staff Report; Attachments;
Reso & Agreement
Ward:
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FUNDING REQUIREMENTS:
Amount:
$ 140000
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Sonrce: M"'.'lT" T (1 /? ""nt .,1". t,y) [uncl (FY ?007/OR)
Acct. Description: SS07-26 "Widen Pine Avenue from Belmont Ave
to Ohio Ave (Reimbursement)"
Finance:
Conncil Notes:
Rfso, J-Dr; h~ ~J~
Agenda Item NO.1!i..--
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CITY OF SAN BERNARDINO REOUEST FOR COUNCIL ACTION
STAFF REPORT
Subject:
Resolution approving an Agreement with Pine Trails Partners, LLC, a California Limited
Liability Company for Pine Avenue Improvements.
Background:
J. R. Watson & Associates Development Co. has entered into a Parks Dedication and
Improvements Agreement for development of six parks, including 2.2 acres known as Pine
Greenbelt Park abutting the east side of Pine Avenue. Pine Trails Partners, LLC ("Developer") of
which J. R. Watson is the managing partner, is developing the Greenbelt Park and adjacent Tract
No 17716. In addition to the improvements to the park site, it would be desirable to have the
street improvements to Pine Avenue installed prior to the improvements to the park site.
Currently, there is no funding identified in the City's Capital Improvement Program for Pine
Avenue improvements and the City has not established a schedule or identified a source of funds
for making improvements to this segment of Pine Avenue.
Engineering Manager/Field Engineer Michael Grubbs estimates the cost for the City to cause the
necessary and proposed street improvements, including curbs, gutter, sidewalks, and street
construction improvements, would exceed $220,000. The Developer is proposing street
improvements to Pine A venue and portions of three streets intersecting Pine A venue that do not
abut property owned by the Developer. The Developer desires to offer an incentive for the City
to expedite the improvements that would enhance the Pine Greenbelt Park. The Developer is
offering to construct the desired street improvements in exchange for reimbursement of $140,000
from the FY 2007/08 Capital Improvement Budget. Staff is proposing to use Measure I (I/2-cent
sales tax) funds for the reimbursement because it will be a capacity enhancing improvement.
Completion of street improvements for Pine Avenue and three streets abutting the proposed
public greenbelt park would not only benefit the circulation system in the neighborhood but also
improve the operations, maintenance, and usability of the future parks.
Financial Impact:
Design and construction of the project will be accomplished entirely by and at the expense of
Pine Trails Partners. Staff anticipates that the Developer will complete the widening of Pine
Avenue during FY 2006/07. However, reimbursement from the City in the fixed amount of
$140,000 will not become due until approval of the FY 07/08 CIP budget and acceptance of the
work.
The City will add $140,000 in Measure I (1/2 cent sales tax) funds to the Capital Improvement
Program in FY 2007/08 in Project No. SS07-26 "Widen Pine Avenue from Belmont Avenue to
Ohio Avenue (Reimbursement)" to reimburse the developer for this work. A placeholder and
detail page have been added to the 5- Y ear Capital Improvement Program for FY 2006/07 -
2010/11.
All engineering design of the widening will be completed by and at the expense of the Developer
and not reimbursed by the City. However, plan check and inspection fees will not be charged. tt
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CITY OF SAN BERNARDINO REOUEST FOR COUNCIL ACTION
STAFF REPORT (Continued)
Recommendation:
Adopt Resolution,
Attachments:
"1" - Tentative Tract Map No. 17716
"2" - Cost Estimate Spreadsheet
"3" - Letter from Pine Avenue Partners, LLC (dated August 9, 2006)
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TENTATIVE TRACT MAP NO. 17716
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BELMONT A VENUE
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Attachment "2"
Cost Estimate for Pine Avenue widening from Belmont Avenue to Ohio Avenue
Cost Comparison Pine Avenue Wldenlna Citv Estimate vs. Developer Estimate
27.Jul-06
Cltv Cltv Developer Developer
Item Quantitv Unit Item Description Cost/Unit Amount Cost/Unit Amount
1 1 LS Clearing& Grubbing 18,000.00 $ 18,000 5,000.00 $ 5,000
2 1 LS Mobilization 18,000.00 $ 18,000 5,000.00 $ 5,000
3 1 LS Traffic Control 9,000.00 $ 9,000 9,000.00 $ 6,000
4 1 LS Stripping 2,500.00 $ 2,500 2,500.00 $ 2,500
5 132 TN AC Pavement 2.5 in 84.00 $ 11,103 48.00 $ 6,345
6 207 TN Aggregate Base 4 in 32.53 $ 6,734 18.45 $ 3,819
7 1,270 LF Curb & Gutter 8 in 15.00 $ 19,050 15.00 $ 19,050
8 7,620 SF Sidewalk 4.00 $ 30,480 4.00 $ 30,480
9 1 EA Handicap Ramp 1,325.00 $ 1,325 1,325.00 $ 1,325
10 2 EA Street Light 4,300.00 $ 8,600 4,300.00 $ 8,600
11 847 SY Cold Mill ex ac 1.5 IN 30.00 $ 25,410 20.00 $ 16,940
12 68 TN Overlay Pavement 1.5 In 84.00 $ 5,712 48.00 $ 3,264
13 1 EA Lower manhole to Grade 10,000.00 $ 10,000 10,000.00 $ 10,000
14 1 EA Verizon Vault 5,000.00 $ 5,000 5,000.00 $ 5,000
15 1 EA Cable Vault 5,000.00 $ 5,000 5,000.00 $ 5,000
Subtotal $ 175,914 $ 128,323
Contigencies $ 20,000 $ 12,000
Engineering $ 10,000
Construction Inspection and Administration $ 20,000
GRAND TOTAL $ 226,000 $ 140,000
Attachment "3"
Pine Trails Partners, LLC
333 S. Hope Street, Suite 3600
Los Angeles, CA 90071
tel: (213) 229-2868; fax: (213) 229-2870
August 9,2006
Via Facsimile
Michael Grubbs
Acting Chief Engineer
City of San Bernardino
300 N. "0" Street, 3rd Floor
San Bernardino, CA 92418
Re: Tract Number 17716
Dear Mr. Grubbs:
In connection with the referenced Tract we are pleased to be able to agree to complete the
widening of the east side of Pine Street from Ohio south to Be]mont on the tenus indicated in
that certain proposed agreement entitled Pine Improvement Agreement. We appreciate the
willinguess of the City of San Bernardino, subject to the approval of the City Engineer and other
terms and conditions of approval, to reimburse the developer for $ ]40,000 representing a portion
of the costs required to perfonu this work. Watson & Associates will spend at least $140,000 on
the street improvements. The City's estimate for the work was $220,000.
Very truly yours,
~
] rIes M. Shumaker
Pine Trails Partners, LLC
cc: James R. Watson
Chuck J. Diamond
Ben Steckler
00628.001117889.1
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(Co~y
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT
4 WITH PINE TRAILS PARTNERS, LLC, A CALIFORNIA LIMITED LIABILITY
5 COMPANY, FOR PINE AVENUE IMPROVEMENTS.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS;
SECTION 1. THAT THE MAYOR is hereby authorized to execute the Agreement (see
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9 Exhibit "A" and incorporated herein) with Pine Trails Partners, LLC, A California Limited
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Liability Company, for street improvements to Pine Avenue. Such Agreement shall be effective
only upon being fully executed by all parties.
SECTION 2. This Agreement shall not take effect or become operative until fully
signed and executed by the parties and no party shall be obligated hereunder until the time of
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such full execution. No oral agreement, amendments, modifications or waivers are intended or
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authorized and shall not be implied from any act or course of conduct of any party.
SECTION 3. This resolution is rescinded if the parties to the Agreement fail to
execute it within sixty (60) days of the passage of the resolution.
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ND. F-I
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT
3 WITH PINE TRAILS PARTNERS, LLC, A CALIFORNIA LIMITED LIABILITY
COMPANY, FOR PINE AVENUE IMPROVEMENTS.
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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
meeting thereof, held
on the day of
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9 Council Members:
10 ESTRADA
11 BAXTER
, 2006, by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
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24 Approved as to Form:
Patrick J. Morris, Mayor
City of San Bernardino
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25 JAMES F. PENMAN,
City Attorney
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EXHIDIT "A"
PINE AVENUE
IMPROVEMENTS AGREEMENT
This Pine Avenue Street Improvements Agreement ("Agreement") is entered into effective
,2006 ("Effective Date") between the City of San Bernardino, a
Municipal Corporation and Charter City ("City") and Pine Trails Partners, LLC, a California
Limited Liability Company, 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").
RECITALS
I. On September 3, 2005, the Common Council of the City of San Bernardino
("City") approved the sale of certain property currently referred to as Tentative Tract No. 17716
("Property") to J. R. Watson Development Co., Inc and the assignment of rights to Pine Trails
Partners, LLC pursuant to an approved form of purchase agreement ("Purchase Agreement");
and
2. On December 20, 2005, Pine Trails Partners, LLC acquired the Property in
accordance with the terms of the Purchase Agreement and intends to develop 39 single family
detached homes on the Property in accordance with Tentative Tract Map No. 17716; and
3. The Developer is proposing street improvements to Pine Avenue and portions of
three streets intersecting Pine Avenue that do not abut property owned by the Developer; and
4. Completion of street improvements for Pine Avenue and portions of the three
streets abutting the proposed public greenbelt would benefit the circulation system in the
neighborhood and also improve the operations, maintenance, and usability of a future greenbelt
or park; and
5. The cost of the proposed street improvements are proposed to be reimbursed to
Developer out of the City's Measure I Funds from the 2007-2008 Capital Improvement
Program; and
6. The City would benefit in the event the Developer installed the improvements to
the streets now rather than delay the completion of the street improvements at a future, yet to be
determined, date.
In the event that the City approves this Agreement, the City would reimburse
Developer $ I 40,000 in return for the completion of necessary public improvements estimated to
exceed $220,000 in value.
OPERATIVE PROVISIONS
1. Time for Commencement and Performance. The City hereby fixes the time for the
completion of said work to be within 24 months from the effective date of this Agreement.
00628.006/172121
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EXHIBIT "A"
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2. Time Extension. In the event good cause is shown therefor, the City Engineer of
City may extend the time for completion of the improvements hereunder up to a maximum of24
additional months. The City Engineer of City shall be the sole and final judge as to whether or
not good cause has been shown to entitle Developer to an extension of time.
3. Improvements: The proposed improvements include design and construction of
curb, gutter, and sidewalk on the east side of Pine Avenue extending from Belmont Avenue to
Ohio A venue; construction of curb, gutter, sidewalk, and associated street construction and
paving extending for 100 feet along the north side of Belmont A venue and extending for 100 feet
along the south side of Ohio Avenue, and extending for 100 feet along both the north and south
sides of Redwood Street from Pine Avenue (collectively known as "Improvements").
4. Design and Construction ofImprovements: Developer shall use its best
reasonable efforts to complete the Improvements in accordance with the plans and specifications
as approved by the City Engineer. The plans and specifications for the Improvements shall be
drafted by the Developer and shall be subject to the review and approval of the City Engineer in
his/her sole discretion.
5. Coordination and Completion of Improvements: The Improvements shall be
constructed and completed by the Developer and approved and accepted by the City Engineer
prior to the final inspection and release of utilities by the Building Inspection Division for the
last 8 houses in Tentative Tract No. 17716. Approval and acceptance of the improvement is
subject to the City Engineer's sole discretion.
.
6. Permits: The Developer shall secure the required permits for Improvements. The
City shall not charge the Developer fees for plan check, inspection and grading permits for
Improvements.
7. Site Dedication: Improvements identified in this Agreement shall be dedicated to
the City free and clear of liens prior to City's acceptance ofImprovements.
8. Reimbursements: In exchange for the design, installation, construction, and
completion of the Improvements, the Developer shall be reimbursed $140,000 from Half(l/2)
Cent Sales Tax (i.e. Measure I ) Funds which will be allocated in the City's 2007-2008 Capital
Improvement Program, provided the Developer has completed the Improvements to the
satisfaction of the City Engineer and in compliance with the terms of this Agreement. In the
event that Developer does not comply with the terms of this Agreement then the City shall not
have the obligation to reimburse Developer. The City shall make payment ofreimbursements to
the Developer within Sixty (60) days after City acceptance of the Improvements.
9. Term of Reimbursement Obligation: The City's obligation, under this Agreement,
to reimburse Developer for the completion of the Improvements shall continue for a period of
five (5) years from the Effective Date of this Agreement After such five-year period or
reimbursement in full, whichever occurs first, the City's obligation to reimburse the Developer
shall terminate. In the event that Developer elects not to proceed with the Improvements, then it
shall not be entitled to the reimbursement described in this Agreement.
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00628.006117212.1
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EXHIBIT "An
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10. Bids and Contracts: Developer shall be solely responsible for securing appropriate
bids and awarding the contract(s) for construction and installation of Improvements in
compliance with all applicable federal, state and local laws.
11. Inspection: The City shall have the right at all times to inspect the construction of
the Improvements to the street right-of-way and abutting Park to measure compliance with
approved City plans and specifications, and standards of the City Engineer.
12. Indemnification:
a. With respect to the Developer's performance as provided in this
Agreement, the Developer shall defend, indemnify and hold the City and its elected officials,
officers and employees free and harmless from any loss, cost or liability (including, without
limitation, liability arising from injury to persons, including death and worker's compensation
claims or damage to property) arising from or related to (i) the design or construction of the
Improvements 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 act or omission of the Developer in
performing its obligations under the Agreement, 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 the subject of the applicable indemnification and all of the associated
legal fees and court costs (but not internal costs). Without limiting the effect of the foregoing,
the Developer shall 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 shall cooperate with the
Developer and shall give the Developer its full support in connection with any claim which the
Developer is indemnifying the City.
c. Developer shall require all persons doing work on Improvements,
including their contractors and subcontractors, to obtain and maintain insurance of the types and
in the amounts described below in a form and with carriers satisfactory to City.
(i) 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 during the term of this Agreement. Ifsuch
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 performance ofthis Agreement. The coverage
shall contain no special limitations on the scope of its protection afforded to the above-listed
insureds.
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00628.006117212.1
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EXHIBIT "An
(2) Be primary with respect to any insurance or self-
. insurance programs covering City, its elected officials, officers, employees and agents.
(3) Contain standard separation of insureds provisions.
(ii) Business Automobile Liability Insurance: Business
automobile liability insurance or equivalent fonn with a limit of not less than $500,000 each
accident shal1 be maintained. Such insurance shal1 include coverage for owned, hired, and non-
owned automobiles.
(iii) Workers' Compensation Insurance: Workers' compensation
insurance with statutory limits and employer's liability insurance with limits of not less than
$1,000,000 each accident shall be maintained.
(iv) Other Insurance Requirements:
(l) Developer shal1, prior to taking any actions under
this Agreement, furnish City with properly executed certificates of insurance which shall clearly
evidence all insurance required in this Section and provide that such insurance shal1 not be
canceled, or material1y altered without the prior written consent of the City.
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13. Prevailing Wages: Developer is aware of the requirements of California Labor
Code Sections 1770 et. seq., which require the payment of prevailing wage rates for Developer'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
shal1 pay and cause its subcontractors to pay prevailing wage for the construction of the
Improvements. Developer agrees to defend, indemnify, and hold City, its elected officials,
officers, and agents hannless 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.
14. Contractor Licenses: All work perfonned 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 qualified to perfonn the type of work required.
15. Acceptance of Work: Upon completion of the Improvements to the satisfaction of
City, the Improvements shall be presented to the City Engineer for acceptance, and for
authorization to file a Notice of Completion. The City Engineer shal1 accept the Improvements if
he/she detennines that the Improvements were constructed in accordance with the approved
plans, specifications and contract documents, 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 City itself engaged Developer's contractor to construct the
Improvements.
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16. Guarantee: Developer shall post a warranty bond for the entire site in fonn and
content acceptable to the City, which will guarantee al1 work and materials for the Improvements
00628006/17212.1
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EXHIBIT "A"
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to be free from all defects due to faulty materials or workmanship for a period of one (1) year
after the date of formal acceptance of the work by City.
17. Record Drawings: Prior to acceptance of the Improvements by the City Engineer,
Developer shall provide City with three (3) copies ofrecord drawings with certification as to
accuracy and completeness by an engineer and/or landscape architect licensed in the State of
California. The City shall not be responsible for insuring the completeness and accuracy of the
record drawings.
18. Ownership of the Improvements: From and after acceptance of the Improvements
by formal action of the City Engineer, ownership of the Improvements shan be vested
exclusively in City.
19. Default bv Developer: If the Developer fails to perform any of its obligations as
provided in the Agreement and fails to cure its nonperformance within 30 days after written
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 perform is such that it cannot reasonably be
cured within 30 days, then the Developer will not be in default if it immediately commences and
thereafter diligently continues to cure its failure.
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20. Default bv 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 written 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 failure to perform is such that it cannot reasonably 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.
21. 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 win be construed
as making them joint ventures or partners.
22. Notices and Other Communications: All notices or other communications which
are required or permitted 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:
CITY
City of San Bernardino
300 North D Street
San Bernardino, CA 92418
Attn: Director of Development Services
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00628.U06l17212.1
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EXHIBIT "An
DEVELOPER
Pine Trails Partners, LLC
c/o J. R. Watson & Associates Development Co.
101 North Main Street, Suite A
Seal Beach, CA 90740
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 paragraph 23.
23. 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.
24. Applicable Law: This Agreement will be construed and enforced as provided
under California law.
25. Superseding 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 occurrence of any other circumstance which 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 terminate.
26. 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.
27. Attornevs' 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.
28. Paragraph Headings: 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.
00628.006117212.1
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EXHIBIT "An
29. Construction: In all cases, 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.
30. Survival: Each and ever covenant in this Agreement shall survive the execution
and delivery of this Agreement for the benefit of the parties.
31. 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.
32. Severability: Every provision of this Agreement is and shall be construed to be a
separate and independent covenant. Without limiting the effect of paragraph 25, ifany 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.
33. Covenant of Good Faith: In exercising their rights and in performing 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.
34. Counterparts: This Agreement may be 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.
35. Incorporation of Recitals: The "Recitals" in this Agreement are material and are
incorporated by reference as though fully set forth herein.
36. Amendment: No amendment or waiver of any term of the Agreement shall be
binding unless in writing and until it has been approved and executed by the City and Developer.
37. Assignment: This Agreement shall not be assigned without the written consent of
the parties hereto, and any assignment without such written consent shall be void and ineffective.
38. Time of Essence: Time is of the essence of this Agreement.
SIGNATURES FOLLOW
00628.00';;11212.1
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EXHIBIT "A"
PINE A VENUE IMPROVEMENTS AGREEMENT
CITY OF SAN BERNARDINO
By:
Patrick J. Morris, Mayor
A TrEST:
By:
Rachel Clark, City Clerk
APPROVED AS TO FORM:
James F. Penman, City Attorney
00628.0061172\2.\
./~
DEVELOPER
Pine Trails Partners, LLC
A California limited liability company
By: J&J Pine Trails, LLC
A California limited liability company
Manager and Member
By:
James R. Watson, Manager
8