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HomeMy WebLinkAbout2005-152 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 3 OF SAN BERNARDINO AUTHORIZING THE MAYOR TO APPROVE AN AGREEMENT WITH WL COVENANT 88 ASSOCIATES, LLC, A DELAWARE 4 LIMITED LIABILITY COMPANY, FOR THE DEDICATION AND IMPROVEMENT 5 OF A 4.7-ACRE PARK (VERDEMONT HEIGHTS HILLTOP PARK) AT THE NORTHEASTERLY CORNER OF PALM AVENUE AND IRVINGTON AVENUE. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 RESOLUTION NO. 2005-152 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 Attachment" 1" and incorporated herein) WL Covenant 88 Associates, LLC, a Delaware Limited Liability Company, relative to a park site dedication and park improvements located at the northeasterly corner of Palm Avenue and Irvington Avenue in the Verdemont area. Such Agreement shall be effective only upon being fully executed by all parties. SECTION 2. This Amendment 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 such full execution. No oral agreement, amendments, modifications or waivers are intended or 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 This resolution is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of the resolution. 21 22 23 III 24 25 26 27 28 III 2005-152 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j t. adj. regular meeting thereof, held on the 16th day of June , 2005, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x LONGVILLE x MC GINNIS x 14 DERRY x 15 KELLEY 16 17 18 19 x JOHNSON ~ MC CAMMACK x 20 21 22 23 24 Approved as to 25 form and legal content: 26 27 28 C1" Cl~k .. pu~ The foregoing resolution is hereby approved this ,)&ii day of ~__, 2005. alles, Mayor of San Bernardino JAMES F. PENMAN, City Attorney 2005-152 ORIGiNAL. Attachment 1 VERDEMONT HEIGHTS HILLTOP PARK DEDICATION AND IMPROVEMENT AGREEMENT This Verdemont Heights Hilltop Park Improvements Agreement ("Agreement") is entered into effective ~ J-o ,2005 ("Effective Date") between the City of San Bernardino, a Municipal C rporatlOn and Charter CIty ("CIty) and WL Covenant 88 ASSOCIates, LLC, A Delaware Limited Liability Company ("Developer"). RECITALS 1. On September 15,2003, the applicant at the time of request, CDI - San Bernardino, requested and the Mayor and Common Council adopted General Plan Amendment No. 02-11, Tentative Tract Map No. 16457 and Tentative Tract Map No. 15940 to allow residential developments at the northwest and northeast comers of Palm and Irvington Avenues. 2. Tentative Tract Map No. 15940 subdivided 13.73 acres into 41 single-family residential lots with a minimum lot size of 10,800 square feet. Tentative Tract Map No. 16457 subdivided 22.89 acres into 47 single-family residential lots with a minimum lot size of 10,800 square feet and committed to dedicating approximately 4.7 acres of remaining land to the City of San Bernardino to be used as a local park. 3. As a condition of approval of Tentative Tract Map No. 15940 and Tentative Tract Map No. 16457, the Planning Commission and City Council required the Developer to dedicate said park land identified as Lot "A" in Tentative Tract Map No. 16457 ("Park"). 4. At the request ofthe property owner and Developer, the Mayor and Common Council approved the final tract maps on April 18, 2005. 5. The fair market value of Lot "A" is estimated to exceed $480,000 based on the Developer's purchase price of the property and the opinion of the City's Real Property Official. 6. The City has adopted the San Bernardino Development Code ("Code") establishing 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 these services. 7. Development ofthe Park would benefit the Developer 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 ifthe Developer installed the Park improvements now rather than having the Park developed at a future, yet to be determined, date. OPERATIVE PROVISIONS 1. Term: This Agreement granting credits (relieved ofthe requirement to pay) ("Credits") to Developer against the payment of Park Construction Fees, Plan Check Fees, Building Issuance Fees and Building Permit Fees ("Fees") will commence on the Effective Date. HE.ar{Verdemont.Park.AgreementJohnLaing1.ver.2] _ 1 _ 2005-152 2. Design and Construction of Improvements: Developer shall use its best reasonable efforts to complete the improvements to the Park described on Exhibit A ("Improvements") along with the estimated value of the Improvements. The plans and specifications for the Improvements are attached as Exhibit B and show the plans for the design, construction and installation of the Improvements which shall be subject to the review and approval of the City Engineer in his/her sole discretion. 3. Permits: The Developer shall secure the required permits for Improvements to the Park. The City shall not charge the Developer the cost of plan check and inspection. 4. Coordination of Improvements: The Improvements to the Park shall be coordinated with the City and completed on or prior to February 1, 2006. 5. Credits: In the event the Improvements to the Park are completed to the satisfaction of the City Engineer and in compliance with the terms of this Agreement, the Developer shall be considered in compliance with requirements for Credits and shall be entitled to Credits (a) for Park and Recreation Construction Fees in the amount of$123,200 and (b) for other Fees in the amount of $31 0,000. See Exhibit C. 6. Total Amount of Credits: The total amount of said credits granted to the Developer shall be $433,200 for dedication ofthe Park land and the installation and completion of Improvements. 7. Term of Credit Obligation: The City's obligation, under this Agreement, to provide the Credits to the Developer shall continue for a period of twelve (12) years from the Effective Date of this Agreement, unless the obligation is sooner satisfied by the Developer's use ofthe Credits in the full amount of$433,200. After such twelve-year period or credit in full, whichever occurs first, the City's obligation to provide the Credits to Developer shall terminate. 8. Shortfall of Credits: The amounts of the Credits shall not exceed $433,200. In the event Fees do not exceed $433,200 during the term ofthis Agreement, the City shall not reimburse or credit the difference to the Developer. 9. Fees in Excess Credits: In the event Fees exceed $433,200 during the term of this Agreement, the City shall not reimburse or credit the difference to the Developer. The Developer shall be responsible and shall pay to the City any Fees levied on the development of the property, which exceed $433,200. 10. Bids and Contracts: Developer shall be solely responsible for securing appropriate bids and awarding the contract for construction and installation of Improvements in compliance with all applicable federal, state and local laws. Developer shall defend, indemnify and hold City and their elected officials, officers, agents and employees free and harmless from any and all claims, actions or liability whatsoever, including HE.ar[Verdemont.Park.AgreemenUohnLaing1.ver.2] _ 2 _ 2005-152 attorney's fees and court costs, arising out of or in connection with Developer's construction of the Improvements. 11. Inspection: The City shall have the righfat 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. 12. Mitigation Monitoring Program: In its construction of the Improvements, the Developer will adhere to the Mitigation Monitoring Program established for the Tract Map No. 16457. 13. 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 hannless from any loss, cost or liability (including, without limitation, liability arising from injury to persons, including wrongful death and worker's compensation claims or damage to property) which result from (i) any obligation of the Developer which arises from the development ofthe Park 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 ofthe matters which are the subject to the applicable indemnification and all ofthe associated legal fees and court costs (but not internal 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 with the Developer and will give the Developer its full support in connection with any claim with respect to which the Developer is indemnifying the City. c) Developer shall require all persons doing work on the Improvements, including final grading, 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. 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 performance of this Agreement. HE.ar[Verdemont.Park.AgreementJohnLaing1.ver.2] _ 3 _ 2005-152 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. 2. Business Automobile Liabilitv Insurance: Business automobile liability insurance or equivalent form 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. 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, furnish City with properly executed certificates of insurance which shall clearly evidence all insurance required in this Section and provide that such insurance shall not be amended or canceled, without the prior written consent of the City. 14. 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 and City agree that the Park (identified as Lot A on Tract Map No. 16457) is not a part ofthe development ofthe abutting street rights-of-way and abutting private property. The Developer agrees that the Improvements in the Park 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. Developer agrees to hold City, its elected officials, officers, and agents harmless from any claim or liability including, without limitation, attorneys' fees and court costs, arising from any failure or alleged failure to comply with these provisions ofthe California Labor Code. IS. 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 qualified to perform the type of work required. 16. Acceptance of Work: Upon completion of the Improvements to the satisfaction of City, the Improvements and the Park right-of-way 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 if it determines that the Improvements were constructed in accordance HE.ar[Verdemont.Park.AgreementJohnLaing1.ver.2] _ 4 _ 2005-152 with the approved plans, specifications 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. 17. Liabilitv 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. 18. Guarantee: Developer shall post a warranty 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 for a period of one (1) year after the date of formal acceptance of the work by City. 19. 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. 20. Ownership of the Improvements: From and after acceptance of the Improvements by formal action of the Common Council, ownership of the Improvements shall be vested exclusively in City. 21. 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 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 reasonable 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. 22. Default bv Citv: 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 failure to perform is such that it cannot reasonably be cured within 30 days, then the City shall not be in default ifit immediately commences and thereafter diligently continues to cure its failure. 23. Negation of Agencv 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 HE.ar[Verdemont.Park.AgreementJohnLaing1.ver.2] _ 5 _ 2005-152 venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint ventures or partners. 24. 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 DEVELOPER WL Covenant 88 Associates, LLC 255 East Rincon Street, Suite 100 Corona, CA 92879-1330 If any such notice or other communication is given by personal delivery, then it shall be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it shall be deemed given as of the date of receipt or rejection. 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 24. 25. 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. 26. Applicable Law: This Agreement will be construed and enforced as provided in California law. 27. 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 orprec1udes 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. HE.ar[Verdemont.Park.AgreemenWohnLaing1.ver.2] _ 6 _ 2005-152 28. 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. 29. 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. 30. 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. 31. 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 ofthis Agreement. 32. Survival: Each and ever covenant in this Agreement shall survive the execution and delivery of this Agreement for the benefit of the parties. 33. 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. 34. Severabilitv: Every provision of this Agreement is and shall be construed to be a separate and independent covenant. Without limiting the effect of paragraph 27, 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 ofthis 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. 35. 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. 36. Countemarts: 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. 37. Incomoration of Recitals: The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between them and such facts will be incontestable in the event of any dispute between them with respect to such facts. Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. 38. Exhibits: The Exhibits to this Agreement are incorporated by reference as though fully set forth herein. HE.ar[Verdemont.Park.AgreemenUohnLaing1.ver.2] _ 7 _ 2005-152 39. Amendment: (a) No amendment or waiver of any term of this Agreement shall be binding on the City unless and until it has been approved by the City and has become effective, or on the Developer unless and until it has been executed by the Developer. (b) The parties acknowledge that the passage of time may demonstrate that changes are necessary or appropriate with respect to the details of each party's performance as provided in this Agreement. Because the parties wish to retain flexibility with respect to the details of their performance, if and when the parties determine that changes are necessary or appropriate, they will unless otherwise required by law, effectuate those changes or adjustments through operating memoranda. After execution, each such operating memorandum will be attached to this Agreement as an addendum and will become part of this Agreement. No such operating memorandum will be deemed to be an amendment of this Agreement. 40. 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. 41. Time of Essence: Time is of the essence ofthis Agreement. SIGNATURES FOLLOW HE.ar[Verdemont.Park.AgreemenWohnLaing1.ver.2) _ 8 _ 2005-152 ATTACHMENT 1 VERDEMONT HEIGHTS HILLTOP PARK DEDICATION AND IMPROVEMENT AGREEMENT CITY CITY OF SAN BERNARDINO ATTEST: ,(~- " By: J(o.rJJiQ c)0At Rachel Clark,. City Clerk bi~~~~Jllt~CONfENT James F. Penman, City Attorney - DEVELOPER WL Covenant 88 Associates, LLC QJ) (lL By: Name:_L-mda \fa \'Ie. Title: S'(. ~(O-f'f* rrJar, HE.ar[Verdemont.Park.AgreemenWohnLaing1] 9 , 2005-152 Exhibit C PLAN CHECK AND INSPECTION FEE ESTIMATE FOR TRACTS 15940 AND 16457 Tract # PLAN 1 Plan 2 Plan 3 Plan 4 15940 TOTAL Bldg. PIC $ 907.85 $1,109.94 $1,135.43 $1,14399 Electrical PIC $147.00 $181.83 $188.50 $189.94 Plumbing PIC $117.00 $117.00 $129.00 $129.00 Mechanical PIC $33.00 $33.00 $33.00 $42.00 Bldg. Issuance $1500 $15.00 $15.00 $15.00 Strong Motion $0.00 $0.00 $0.00 $0.00 (State Fee Removed) Fire PIC $0.00 $000 $0.00 $0.00 (Fire Plan Check Fee Removed) Bldg Permit $986.00 $1,21350 $1,23800 $1,24500 Planning PIC $48.00 $48.00 $48.00 $48.00 Sub Total $2,253.85 $2,718.27 $2,786.93 $2,812.93 $10,571.98 (Full Plan Check) Model PIC .$1,630.39 $1,949.70 $2,047.93 $2,067.79 $7,695.81 (Model Plan Check) Model Quantity 11 10 10 12 43 Sub Total $17,934.29 $27,182.70 $27,869.30 $33,755.16 $106,741.45 Total $21,829.53 $31,860.67 $32,714.16 $38,647.88 $125,052.24 (Full and Model) 16457 Bldg. PIC $907.85 $1,10994 $1,135.43 $1,143.99 Electrical PIC $147.00 $181.83 $188.50 $189.94 Plumbing PIC $117.00 $117.00 $129.00 $129.00 Mechanical PIC $33.00 $33.00 $33.00 $42.00 Bldg. Issuance $15.00 $15.00 $15.00 $15.00 Strong Motion $0.00 $0.00 $0.00 $000 Fire PIC $0.00 $0.00 $0.00 $0.00 Bldg Permit $986.00 $1,21350 $1,238.00 $1,245.00 Planning PIC $48.00 $48.00 $48.00 $48.00 Sub Total $2,253.85 $2,718.27 $2,786.93 $2,812.93 $10,571.98 (Full Plan Check) Model PIC $1,630.39 $1,949.70 $2,04793 $2,067.79 $7,695.81 (Model Plan Check) Model Quantity 9 9 9 10 37 Sub Total $14,673.51 $17,547.30 $18,431.37 $20,677.90 $71,330.08 Total $18,566.75 $22,224.27 $23,275.23 $25,568.62 $89,634.87 (Full and Model) Plan Check Total $214,687.11 (Total for 88 homes) Park & Recreation $1,988.20 $2,634.95 $2,703.20 $2,729.85 $10,05620 (Per Plan) 15940 $21,870.20 $26,349.50 $27,032.00 $32,758.20 $108,009.90 Model $994.10 $2,63495 $2,70320 $2,729.85 $9,062.10 16457 $17,893.80 $23,71455 $24,328.80 $27,298.50 $93,23565 Model $994.10 $2,634.95 $2,703.20 $2,72985 $9,062.10 Park/Rec Total $219,369.75 (Total for 88 homes) Grand Total $434,056.86 (PIC and PkJRec) The fees represented in this estimate do not include expeditious plan check fees. ..