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HomeMy WebLinkAboutA4257 - PS CENTER II CERRITOS STREET IMPROVEMENT REIMBURSEMENT MO 6678 • P.S. Center II, L.P. Cerritos Rd Impr Reimbursement AGREEMENT #4257 M06678, 8-2-00 CITY OF PALM SPRINGS -- - - - --- - - CERRITOS ROAD IMPROVEMENT REIMBURSEMENT AGREEMENT THIS REIMBURSEMENT AGREEMENT (herein "Agreement") is made and entered into this 9°w` day of-,314 y ff0b' 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: \ E t P`.d' 'm u�f�/Orle k .li'i I0s2rm40S�000r CONTRACT SVCS AGR 8470402o07/19100 -1 of 8- WITH 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. 13 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. 1032/014084-0001 CONTRACT SVCS AGR S470402 a07/19/00 -2 of 8- WITH • 0. 33 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. hi 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 Aeainst 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 1032i0140840001 CONTRACT SVCS AGR S4704 02 07/19/0o -3 of 8- WITH 0 0 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 became 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. 1032i01409+0001 CONTRACT SVCS AGR 947UO2ao7n9ro0 -4 of 8- WITH 0 • 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] 103 2/01 4 0 8 4-0 0 01 CONTRACT SVCS AGR 84704.02 u07n9/00 -5 Of 8- WITH 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 CityCity M�� ATUTS,T: ass City Olerk �J APPROVED AS TO FORM: APPROVED RYTH2QWCoL I" RUTAN& TUCKER, LLP a"d .. k1r),4`t. 2ESt _ � 4� City Aft�y CONTRACTOR: SUREC, Inc., a California corporation, General Partn P.S. Center 1 �1. L.P. P �.Ee'�l�•.y.-�ae�.e By: � 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] I032/0I409+0001 CONTRACT SVCS AGR 8470402.07A9/00 -6 of 8- WITH CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT �'t'-= - - - - - �'�'��tirtiY'.crcrcrcry'�rkr_cy',�c�,�r�r,�'.crcrcr"crcrcrcrcrcrcrcrcrcr,�r,�r.�r.�r,Ftyr y� I State of California ss. County of Riverside On?onally P- o90V6, before me, Margot C. Desrosiers , Notary Public ,, Data Name and Title of Corccf�e g,"Jane Doe,Notary Pubhc') pe appeared-�N/�G G Jam/ ryt /YIc 2 5 T� S/AF/tF T Name(s)of Sl ar(s) R S,CF,y7E2�,L •,p ❑ personally known to me F 4 proved to me on the basis of satisfactory evidence to be the persori whose name(s) is/arm subscribed to the within instrument and acknowledged to me that he/ executed the same in his/ber415rr authorized capacity(•i,e:0, and that by his/ MARGOT C, DESROSIERS signature�t on the instrument the personO, or l Commission#1265938 Z the entity upon behalf of which the person Notary Public-Colifomia acted, executed the instrument. Riverside County MyComm.WresJun2,20134 WITNESS my hand and official seal. l � Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is 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. Description of Attached Document Title or Type of Document: I ) I' Document Date: Number of Pages: 7 Signer(s) Other Than Named Above: ,I Capacity(ies) Claimed by Signer l' Signer's Name: 'I ❑ Individual Top of Ihumb here ,I ❑ Corporate Officer—Title(s). ❑ Partner—❑ Limited ❑ GeneralI ❑ Attorney in Fact 'I ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing. I 01999 National Notary Association•9350 De Soto Ave,PO B x 24o2•Chatsworth,CA 91313-2402•www nalionalnotary org Prad No 5907 Reorder Call Toil Free 1 SW 876-6827 EXHIBIT "B" SCHEDULE OF PAYMENT 1. Contractor Obligated 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) 1032/01408 i-onoi TO CONTRACT SVCS AGR 84704 02 a07/19/00 -8 of 8- WITH 199490 ARTICLES OF INCORPORATION OF SUREC INC. E N D O R S E D F I L E D in the office of the Secretary of State of the state of caldornia ARTICLE I NOV 1 9 1996 NAME The name of the Corporation is Surec Inc. I Pn . BIl1 d�Idcu, Ser ai Sfaie 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". l ARTICLE V DIRECTORS' LIABILITY IABIT ITY AND INDEMNIFICATION 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 1996. QJ Daniel G. Summers, Incorporator 2 0/YIGIIV 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: jf IZ q(, 0 Daniel G. Summers, Incorporator � s ACTION BY WRITTEN CONSENT N44 OF THE BOARD OF DIRECTORS SUREC INC. IN LIEU OF FIRST MEETING The undersigned, constituting the entire Board of Directors of Surec 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. 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.