HomeMy WebLinkAbout8/2/2000 - STAFF REPORTS (14) DATE: August 2, 2000
TO: City Council
FROM: City Engineer
APPROVE CERRITOS ROAD IMPROVEMENT REIMBURSEMENT AGREEMENT
RECOMMENDATION:
That the City Council approve the Cerritos Road Improvement Reimbursement
Agreement between the City of Palm Springs and P.S. Center II, L.P.
BACKGROUND:
City staff has prepared a reimbursement agreement to secure payment for
construction of Cerritos Road improvements between Vista Chino Road and
Sandalwood Drive, between the Albertson's Shopping Center and the Vista Chino
retention basin. This section of Cerritos Road will be constructed as part of City
Project 99-20, scheduled for Council consideration and award by a separate
agenda item.
Construction of a portion of this section of Cerritos Road is the obligation of the
adjacent developer, P.S. Center II, L.P., as a condition of approval of Planned
Development District 227 for the existing community shopping center. The
obligation to construct their portion of Cerritos Road was postponed until the
developer began construction of the second phase of the shopping center, when
exceeding 90,000 square feet of commercial space.
The first phase of the shopping center is nearly complete, and it is expected that
the developer will exceed 90,000 square feet within the shopping center with its
next development application. Concurrently, staff has moved forward with City
Project 99-20 to construct the City's portion of Cerritos Road, which is located on
City property adjacent to the Vista Chino retention basin.
In light of the timing of City Project 99-20 and the developer's impending obligation
to construct its portion of Cerritos Road, staff extended to the developer the
opportunity to partner with the City in the construction of Cerritos Road. In this
way,the entire portion of Cerritos Road could be constructed at one time, providing
cost and time savings to the City and the developer.
In orderto facilitate the construction of the developer's obligated improvements,the
City Attorney prepared the attached reimbursement agreement that will secure
advance payment from the developer for the cost of those improvements, which
include construction of curb,gutter,sidewalk and asphalt concrete paving along the
developer's side of Cerritos Road.
I
Utilizing the bid prices from the apparent low bidder of City Project 99-20, Matich
Corporation, staff has received advance payment in the amount of $13,099.90
from the developer for construction of its share of the Cerritos Road improvements.
DAVID J. BARAKIAN
City Engineer
APPROVED:
i y Manager
ATTACHMENTS:
1. Minute Order
2. Reimbursement Agreement
REVIEWED BY DEP10F FINANCE
CITY OF PALM SPRINGS
CERRITOS ROAD
IMPROVEMENT REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT (herein "Agreement") is made and entered
into this _ day of July 2000, by and between the CITY OF PALM SPRINGS, a municipal
corporation, (herein "City") and P.S. CENTER II, L.P. (herein "Contractor").
WHEREAS, Cerritos Road is a collector street, designated on the City of Palm Springs
General Plan; and
WHEREAS, Cerritos Road is located adjacent to commercial property owned and
developed, or to be developed, by Contractor; and
WHEREAS, Cerritos Road is unimproved in the area adjacent to the commercial
property owned and developed, or to be developed, by Contractor; and
WHEREAS, as a condition of approval of the Planned Development District (PD-227)
for a community shopping center (Case No. 5.0631) located on the property owned by
Contractor and to be developed by Contractor, Contractor is obligated to construct, or provide for
the construction of specified improvements of the Cerritos Road; and
WHEREAS, for the benefit, in part of PD-227, the City has initiated City Project 99-20 to
construct the portion of Cerritos Road adjacent to the commercial property owned and
developed, or to be developed, by Contractor; and
WHEREAS, in order to fulfill its obligation to construct, or provide for the construction
of specified improvements of the Cerritos Road, Contractor has agreed, and hereby agrees to
provide payment to the City for the full costs of constructing the Cerritos Street improvements to
which Contractor is obligated as specified in PD-227 and related City Planning documents, as
well as pay a construction management and inspection fee; and
WHEREAS, in order to fulfill its obligation to construct, or provide for the construction
of specified improvements of the Cerritos Road, Contractor agrees that all payments to which
Contractor is obligated, as specified in this Agreement, shall be made in advance of, and in one
lump sum, the execution of the Contract awarded to the prevailing bidder as determined by the
City; and
WHEREAS, Contractor agrees that the determination and selection of the prevailing
bidder shall be at the sole and exclusive determination of the City; and
NOW, THEREFORE, the parties agree as follows:
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1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services
In compliance with all of the terms and conditions of this Agreement, the Contractor shall
perform its obligations as set forth in the "Scope of Services" attached hereto as Exhibit "A" and
incorporated herein by reference. Contractor warrants that its obligations set forth in the Scope
of Services will be performed in a timely and satisfactory manner.
1.2 Compliance With Law.
All work and services rendered hereunder shall be provided in accordance with all
ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local
governmental agency of competent jurisdiction.
1.3 Licenses, Permits. Fees and Assessments
Contractor or the selected construction contractor shall obtain at its sole cost and expense
such licenses, permits and approvals as may be required by law for the performance of the
services required by this Agreement.
2.0 ADVANCE PAYMENT TO CITY: SUM
2.1 Agreement Sum
As set forth in Exhibit "A", Contractor agrees that it shall pay the City the difference
between Bid Schedule C and Alternative Bid Schedule C, as determined by reference to the bid
schedules submitted by the lowest, responsive prevailing bidder, as determined and accepted by
the City.
The method and timing of the payment amount is discussed and set forth in Exhibits "A"
and 'B".
3.0 COORDINATION OF WORK
3.1 Representative of Contractor.
Daniel G. Summers, President of SUREC, Inc., a general partner of Contractor, is hereby
designated as being the principal and representative of Contractor authorized to act in its behalf
with respect to the obligations specified herein and make all decisions in connection therewith.
3.2 Contract Officer,
The City Engineer is hereby designated as being the representative the City authorized to
act in its behalf with respect to the work and services specified herein and make all decisions in
connection therewith ("Contract Officer"). The City Manager of City shall have the right to
designate another Contract Officer by providing written notice to Contractor.
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3.3 Prohibition Against Subcontracting or Assignment.
Contractor shall not contract with any entity to perform in whole or in part the obligations
required hereunder without the express written approval of the City. Neither this Agreement nor
any interest herein may be assigned or transferred, voluntarily or by operation of law, without the
prior written approval of City. Any such prohibited assignment or transfer shall be void.
4.0 TERM
4.1 Term.
Unless earlier terminated in accordance with Section 4.2 below, this Agreement shall
continue in full force and effect until the completion of the portion of the Cerritos Road that is
subject to Bid Schedule C and Alternative Bid Schedule C.
4.2 Termination,
The City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault
of the Contractor, the period of notice may be a shorter time as may be determined by the
Contract Officer. In addition, Contractor may terminate this Agreement, with or without cause,
before the condition in PD-227 requiring Contractor to perform the obligations under this
Agreement becomes effective and upon sixty (60) days written notice to the City. In the event of
termination by the City, the City shall be entitled to retain only that portion of the advance
payment covering the value of the work product actually completed at the time of the effective
date of termination. In the event of termination by Contractor as provided hereunder, the City
shall be entitled to retain only that portion of the advance payment covering the value of the
work product actually completed at the time of the effective date of termination in addition to
any termination costs charged by the contractor performing the work, and an amount sufficient to
cover all costs associated with the City having to obtain a new contractor. To this end, in the
event of termination by the Contractor, the City shall reimburse to Contractor the amount equal
to the difference between the advance payment set forth in Exhibit "A", and the value of the
work product actually completed at the time of the effective date of termination excluding the
aforementioned termination costs and costs associated with having to obtain a new contractor,
but reimbursement shall be made only after City obtains a replacement contractor. In the event
of termination without cause pursuant to this section, the terminating party need not provide the
non-terminating party with any opportunity to cure.
5.0 MISCELLANEOUS
5.1 Covenant Against Discrimination
Contractor covenants that, by and for itself, its heirs, executors, assigns and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry in the performance of this Agreement. Contractor shall take
affirmative action to ensure that applicants are employed and that employees are treated during
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employment without regard to their race, color, creed, religion, sex, marital status, national
origin or ancestry.
5.2 Non-liability of City Officers and Employees,
No officer or employee of the City shall be personally liable to the Contractor, or any
successor in interest, in the event of any default or breach by the City or for any amount which
may become due to the Contractor or to its successor, or for breach of any obligation of the terms
of this Agreement.
5.3 Conflict of Interest.
No officer or employee of the City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which effects his financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly, interested, in violation of any
State statute or regulation. The Contractor warrants that it has not paid or given and will not pay
or give any third party any money or other consideration for obtaining this Agreement.
5.4 Notice.
Any notice, demand, request, document, consent, approval, or communication either
party desires or is required to give to the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail, in the case of the City, to the City
Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box
2743, CA 92263-2743, and in the case of the Contractor, to the person at the address designated
on the execution page of this Agreement.
5.5 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply.
5.6 Integration; Amendment
It is understood that there are no oral agreements between the parties hereto affecting this
Agreement and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties, and none shall be
used to interpret this Agreement with the exception of City land use and planning documents
relating to PD-227 and Case No. 5.0631. Such City planning documents may be used to
determine the scope of Contractor's obligations and are hereby incorporated by reference for that
limited purpose. This Agreement may be amended at any time by the mutual consent of the
parties by an instrument in writing.
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5.7 Severability.
In the event that part of this Agreement shall be declared invalid or unenforceable by a
valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability
shall not affect any of the remaining portions of this Agreement which are hereby declared as
severable and shall be interpreted to carry out the intent of the parties hereunder unless the
invalid provision is so material that its invalidity deprives either party of the basic benefit of their
bargain or renders this Agreement meaningless.
5.8 Waiver.
No delay or omission in the exercise of any right or remedy by a nondefaulting party on
any default shall impair such right or remedy or be construed as a waiver. A party's consent to or
approval of any act by the other party requiring the party's consent or approval shall not be
deemed to waive or render unnecessary the other party's consent to or approval of any
subsequent act. Any waiver by either party of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this Agreement
5.9 Attorneys' Fees
If either party to this Agreement is required to initiate or defend or made a party to any
action or proceeding in any way connected with this Agreement, the prevailing party in such
action or proceeding, in addition to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorney's fees, whether or not the matter proceeds to
judgment.
5.10 Corporate Authority_
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such
party is duly organized and existing, (ii) they are duly authorized to execute and deliver this
Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound.
END—SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the date first written above.
CITY:
CITY OF PALM SPRINGS,
a municipal corporation
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
City Attorney
CONTRACTOR:
SUREC, Inc., a California corporation General
Partn P.S. Center II L.P.
By: aq
V
Name: Daniel G. Summers
Title: President
By:
Name:
Title:
Address: 535 Cowper Street, 2nd Floor
Palo Alto, CA 94301
Tel: (650) 614-9251
END OF SIGNATURES]
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
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On a o�ott6, before me, Margot C. Desrosiers . No ary Pnhlic
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Riverside County
Q0MVComnn.BW0resJun2,20D4 WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
II. OPTIONAL
Though the information below 1s not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
it Description of Attached Document
Title or Type of Document:
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EXHIBIT "A"
SCOPE OF SERVICES
1. The Project: The project consists of those improvements to the Cerritos Road required to
be constructed by Contractor as specified in PD-227 and Case No. 5.0631. The required
improvements include, but are not limited to, sidewalk, curb, gutter, and asphalt concrete
paving for the portion of Cerritos Road that is adjacent to the Contractor's development
which is the subject of PD-227 and Case No. 5.0631.
2. City to Obtain Bids for the Project: For the purpose of determining the cost of the
improvements required to be paid by Contractor, the City shall simultaneously advertise
the project with two (2) bid schedules. The first shall be designated Bid Schedule C
which shall seek bids for the construction of one hundred percent (100%) of Cerritos
Road, including both the City's and Contractor's obligated portion as set forth in PD-227
and Case No 5.0631. The second shall be designated as Alternative Bid Schedule C
which shall seek bids only for the construction of the City's obligated portion of Cerritos
Road.
3. Contractor Obligated to Pay Difference Between Bid Schedule C and Alternative Bid
Schedule C: To fulfill its obligations to construct or provide for the construction of the
specified Cerritos Road improvements, Contractor shall pay the City the difference
between Bid Schedule C and Alternative Bid Schedule C, as bid by the lowest responsive
bidder accepted by the City, This payment shall be made in accordance with the schedule
of payment set forth in Exhibit "B"
4. Contractor Obligated to Pay Management Fee: In addition to the payment obligation
specified in section 3 of Exhibit "A", Contractor shall pay a management and
construction inspection fee equal to ten percent (10%) of the difference between Bid
Schedule C and Alternative Bid Schedule C, as determined by referencing the bids
accepted by the City.
ID
EXHIBIT"B" (Page I of 1)
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EXHIBIT "B"
SCHEDULE OF PAYMENT
1. Contractor Obli"ated to Make a Single Advance Payment: Once the City has selected a
general contractor (following the bid process) to construct the Cerritos Road
improvements, the City shall notify the Contractor in writing of the difference between
Bid Schedule C and Alternative Bid Schedule C. Within 10 calendar days following the
receipt of such notice, Contractor shall provide a single lump sum payment equal to the
difference between Bid Schedule C and Alternative Bid Schedule C (the "difference")
plus ten percent (10%) of the difference to the City
EXHIBIT "B" (Page 1 of 1) II
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1994980
ARTICLES OF INCORPORATION
OF
SUREC INC.
ENDORSED
F I L E D
In the office of the Secretary of SIGie
of the State of California
ARTICLE I NOV 1 9 1996
NAME (�
The name of the Corporation is Surec Inc. 3�P
81L_ Iti <+, Sep e't�r� ei Cf?ie
ARTICLE II
PURPOSES
The purpose of the Corporation is to engage in any lawful act or activity for which
a corporation may be may be organized under the General Corporation Law of California
other than the banking business, the trust company business or the practice of a
profession permitted to be incorporated by the California Corporations Code.
ARTICLE III
INITIAL AGENT FOR SERVICE OF PROCESS
The name and address in the State of California of the Corporation's initial agent
for service of process are Daniel G. Summers, 535 Cowper Street, Second Floor, Palo
Alto, California 94301.
ARTICLE IV -
STOCK
The total number of shares which this Corporation is authorized to issue is ten
thousand (10,000), all of the same class, designated "Common Stock".
1 JAIZ
ARTICLE V
DI F TOR ' LLA,BI ITY AND IN MNiFI ATION OF AGENTS
The liability of the directors of the corporation for monetary damages shall be
eliminated to the fullest extent permissible under California law.
The corporation is authorized to provide indemnification of agents (as defined in
Section 317 of the California Corporations Code) through bylaw provisions, agreements
with agents, vote of shareholders or disinterested directors or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the California Corporations Code,
subject only to the applicable limits set forth in Section 204 of the California
Corporations Code with respect to actions for breach of duty to the corporation and its
shareholders.
Any amendment, repeal or modification of any provision of this Article V shall
not adversely affect any right or protection of a director or officer of the corporation
existing at the time of such amendment, repeal or modification.
IN WITNESS WHEREOF, the undersigned incorporator has executed these
Articles of Incorporation on November_I_- , 1996.
Daniel G. Summers, Incorporator
2 qr9/3
ORIGIN
AL
ACTION BY WRITTEN CONSENT
OF THE SOLE INCORPORATOR
OF
SUREC INC
The undersigned, being the sole incorporation named in the Articles of
Incorporation of Surec Inc., a California corporation, does hereby consent to and
approve the adoption of the following resolution pursuant to Section 210 of the
California Corporation Code.
BE IT RESOLVED, that the following
person is hereby elected as the director
of this Corporation:
Daniel G. Summers
Date:
0
Daniel G. Summers, Incorporator
9rf/y
�ACTION BY WRITTEN CONSENT Nq
OF
THE BOARD OF DIRECTORS
SUREC INC.
IN LIEU OF FIRST MEETING
The undersigned, constituting the entire Board of Directors of Surcc Inc., a
California corporation, in accordance with Section 307(b) of the California Corporations
Code, without the formality of convening a meeting, do hereby consent to and adopt the
following resolutions. It is the undersigned intent that this consent be executed in lieu of,
and constitute, the first or organizational meeting of the Board of Directors, which
consent shall be filled by the Secretary of the corporation with the minutes of the meeting
of the Board of Directors.
WHEREAS, the Articles of Incorporation of the corporation are filed here with.
RESOLVED, that the Secretary of the corporation is hereby directed to
insert the certified copy of the Articles of Incorporation in the corporation's minute book.
RESOLVED FURTHER,that all the acts of the sole incorporation of the
corporation in forming and organizing the corporation are hereby approved, ratified, and
adopted as valid and binding acts of the corporation; and
RESOLVED FURTHER, that the corporation, to the full extent permitted
by law, indemnify the sole incorporator against any and all damages, costs, and injury
sustained in connection with the formation and organization of the corporation.
941s'
BYLAWS
WHEREAS, a form of bylaws for the corporation (attached hereto) has been
reviewed by the directors.
RESOLVED, that the bylaws attached hereto are hereby adopted as the
bylaws of this corporation.
RESOLVED FURTHER, that the Secretary of the corporation is hereby
authorized and directed to execute a certificate of the adoption of such bylaws to insert
the bylaws so certified in the minute book of this corporation and to see that a copy of
such bylaws, similarly certified, is kept at the corporation's principal office.
ELECTION OF OFFICERS
WHEREAS, the bylaws provide for the election of officers of the corporation by
the Board of Directors.
RESOLVED, that the following persons are hereby elected to the office
indicated after the name of each to serve until their successors are elected and qualified:
Daniel G. Summers President
Daniel G. Summers Secretary
Daniel G. Summers Treasurer
RESOLVED FURTHER,that the Treasurer shall be the chief financial
officer of the corporation.
1410
MINUTE ORDER NO.
APPROVING THE CERRITOS ROAD IMPROVEMENT
REIMBURSEMENT AGREEMENT BETWEEN THE CITY
OF PALM SPRINGS AND P.S. CENTER 11, L.P.
I HEREBY CERTIFY that this Minute Order approving the Cerritos Road Improvement
Reimbursement Agreement between the City of Palm Springs and P.S. Center 11, L.P., was
approved by the City Council of the City of Palm Springs, California, in a meeting thereof held on
the 2Id day of August, 2000.
PATRICIA A. SANDERS
City Clerk