Loading...
HomeMy WebLinkAbout2008-016 1 2 RESOLUTION NO. 2008-16 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A BUILDING INSPECTION SERVICES 4 REIMBURSEMENT AGREEMENT WITH STATER BROS. MARKETS RELATED TO 5 THE CORPORATE OFFICE AND NORTON DISTRIBUTION CENTER. 6 7 3 WHEREAS, on October 17, 2005, the Mayor and Common Council approved Specific Plan Amendment No. 05-01, General Plan Amendment No. 05-08, Development Permit Type II 8 9 10 No. 04-49, and Tentative Parcel Map No. 17235 for the development of the Stater Bros. Markets Corporate Office and Norton Distribution Center. 11 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 12 13 SECTION 1. The City Manager is hereby authorized to execute the Building Inspection 14 Services Reimbursement Agreement (see Exhibit "A" attached and incorporated herein) with 15 Stater Bros. Markets for building inspection services. 16 17 18 19 20 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 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. 21 SECTION 3. This resolution is rescinded if the parties to the Agreement fail to 22 execute it within sixty (60) days of the passage of the resolution. 23 III 24 25 26 27 28 1 2 3 RESOLUTION... APPROVING A BUILDING INSPECTION SERVICES REIMBURSEMENT AGREEMENT WITH STATER BROS. MARKETS RELATED TO 4 THE CORPORATE OFFICE AND NORTON DISTRIBUTION CENTER. 5 6 7 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 22nd 8 9 10 day of Januarv , 2008, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x 11 BAXTER 12 BRINKER 13 DERRY 14 KELLEY 15 x x x x 16 JOHNSON 17 18 19 20 x MC CAMMACK x a~tJ.~ City 'clerk The foregoing resolution is hereby approved this M:nI day of January ,2008. 21 22 23 24 Approved as to Form: 25 JAMES F. PENMAN, City Attorney 26 27 .~ 28 2008-16 Exhibit A BUILDING INSPECTION SERVICES REIMBURSEMENT AGREEMENT This Building Inspection Services Reimbursement Agreement (this "Agreement") is entered into and shall be effective as of this 22nd day of January, 2008 by and between Stater Bros. Markets, a California corporation ("Stater") and City of San Bernardino, a California charter city (the "City"), established and existing pursuant to the constitution and laws of the State of California and the City charter. Stater and the City are referred to herein, individually, as a "Party" and, collectively, as the "Parties." Recitals A. Stater is completing the development of its corporate offices, warehouses and distribution facilities together with certain on-site and off-site improvements (collectively, the "Project") on approximately one hundred eighty (180) acres ofreal property located at the former Norton Air Force Base in the City ("Property"). The Project includes: two hundred twenty-two thousand two hundred fifty-five (222,255) square feet of corporate offices; a forty-five thousand (45,000) square foot bakery distribution complex; a forty-six thousand four hundred ninety-seven (46,497) square foot truck maintenance building; a forty-six thousand nine hundred eighty-four (46,984) square foot dispatch/returns building; a one million two hundred thirty- four thousand eight hundred forty-one (1,234,841) square foot dry grocery warehouse; and a seven hundred thousand thirteen (700,013) square foot refrigerated warehouse, totaling two million two hundred ninety-five thousand five hundred ninety (2,295,590) square feet. B. Once complete, the Project is expected to provide jobs for two thousand (2,000) employees, generate an annual payroll of over One Hundred Sixty-Five Million Dollars ($165,000,000.00) and cause a significant positive impact on the City economy. C. Recognizing the magnitude of the Project's positive impact on the City's economy, and how time-intensive the City's building inspection process can be, the mayor of the City ("Mayor ") and the common council of the City ("Common Council") authorized the City's staff to retain the services of an outside contractor ("Contractor") to provide dedicated full time building inspection services ("Services") for the development ofthe Project. During the past year, the Contractor has been providing Services for the Project and the City has compensated the Contractor for those Services with monies paid to the City by Stater. D. Stater has previously advanced to the City a total sum of One Hundred Sixty-Two Thousand Eight Hundred Fifty Dollars and Sixteen Cents ($162,850.16) to reimburse the City the actual costs the City incurred in compensating the Contractor for the Services the Contractor provided to the Project. E. The City expects to pay the Contractor an additional sum of One Hundred Thi11y-Six Thousand Eight Hundred Ninety-Seven Dollars ($ 136,897.00) to compensate the Contractor for Services necessary to complete the development of the Project including the sum of Twenty-Four Thousand Eight Hundred Ninety-Seven Dollars (524,897.00) for Services provided through November 15, 2007. F. Pursuant to the ternlS and conditions of this Agreement, the Parties desire that: (i) the City continue to cause the Contractor to provide the Services necessary to complete the development of the Project and (ii) Stater pay to the City an amount estimated to be One Hundred Thirty-Six Thousand Eight 2008-16 Hundred Ninety-Seven Dollars ($136,897.00) to reimburse the City for the actual costs the City incurs in compensating the Contractor for the Services necessary to complete the development of the Project. NOW, THERFORE, in consideration of the mutual covenants and agreements set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by each ofthe Parties, the Parties hereby agree as follows: Agreements I. Citv to Cause Contractor to Provide Services. The City shall cause the Contractor to provide the Services necessary to complete the development of the Project. In the event that the City and the Contractor enter into a written agreement concerning the Services to be provided by the Contractor, the City shall approve said agreement as expeditiously as possible so as to not interrupt any Services provided by the Contractor for the Project. The City shall control all aspects of any agreement between the City and the Contractor. Stater shall have no authority to direct the Contractor other than to provide suggestions to the City's staff as to the manner and scope in which the Services shall be undertaken. The City's senior building inspector ("Senior Building Inspector") shall monitor the work of the Contractor and assist in any problem resolution and code interpretation. The City shall cause the Contractor, on a semi-monthly basis, to provide invoices to the City showing services rendered by the Contractor and the costs associated with the Services based on a Contractor billing rate of Seventy Dollars ($70.00) per hour. During the term of this Agreement, the City shall cause the Contractor to maintain in effect insurance policies of comprehensive public, general, and automobile liability insurance, in the amount of One Million Dollars ($1,000,000.00) combined single limit, and shall file copies of said policies with the City's risk manager ("Risk Manager"). The policies shall name the City as an additional insured and shall provide for thirty (30) calendar days notification to the City if said policies are terminated or materially altered. 2. Citv to Provide Stater a Summary of Services Rendered and a Summary of Actual Costs Related Thereto. The development services department ofthe City ("Development Services Department") shall maintain a record of the Services provided by the Contractor and an accounting of the actual costs incurred by the City for the Services provided by the Contractor. The Development Services Department shall, on a monthly basis, provide to Stater a summary of the Services rendered by the Contractor and a summary of the actual costs incurred by the City for the Services provided by the Contractor. 3. Stater to Make Periodic Deposits into Trust Account to Fund Contractor Services. Stater shall periodically deposit into a trust account with the City certain sums mutually agreed upon by the Parties in order to fund the actual costs incurred by the City for the Services provided by the Contractor. The City shall not be required to cause the Contractor to proceed with any Services until such time as said funds are on deposit with the City. 4. Estimated Total Reimbursement Amount. The Parties acknowledge and agree that the Contractor working an average of a forty (40) hour work week at Seventy Dollars ($70.00) per hour, will cost approximately Two Thousand Eight Hundred Dollars ($2,800.00) per week. Based upon the anticipated completion timeframe, the Parties acknowledge and agree that the estimated total cost for the Services provided by the Contractor will be approximately Two Thousand Eight Hundred Dollars ($2,800.00) per week over a forty (40) week period totaling One Hundred Twelve Thousand Dollars ($ 112,000.00) to be paid in bi-weekly installments ofFivc Thollsand Six Hundred Dollars ($5,600.00). Both Parties acknowledgc that there may be a necd for Services that exceed a forty (40) hour work week, and the Parties agree that if sllch actual overtime costs for Serviccs are required, any additional overtime 2 S717.0(}o.Do~'s,{'iIY ofSJII BernJrdino,Slater . Reimbursement Agreementi 12-0.7-(7) 2008-16 costs agreed on between the Parties can be accounted for administratively, without the need to modify this Agreement. The estimated total amount to be reimbursed to the City by Stater under this Agreement is the sum of One Hundred Thirty-Six Thousand Eight Hundred Ninety-Seven Dollars ($136,897.00) which includes Twenty-Four Thousand Eight Hundred Ninety-Seven Dollars ($24,897.00) for Services incurred by the City through November 15, 2007 plus the sum of One Hundred Twelve Thousand Dollars ($112,000.00) specified above. 5. Term of Agreement. Stater anticipates that construction of the Project will be completed by October 31, 2008. This Agreement shall remain in effect until December 31, 2008 or until a Final Certificate of Occupancy is issued by the City, whichever is first. 6. Books and Records. Stater shall have access to and the right to examine the City's building inspection records and any financial records related to the Project. 7. Time of the Essence. Time is of the essence regarding this Agreement. 8. Indemnification. Each Party shall defend and indemnify the other Party and the other Party's directors, officers, employees, agents, and authorized volunteers from and against all claims, demands, or liability for damages arising out of the Party's performance of the terms of this Agreement where such liability is caused or claimed or alleged to be caused by the willful misconduct, sole negligence or active negligence of the Party or any person or organization for whom or which the Party is legally liable. 9. Authoritv. Each signatory of this Agreement represents that they are dully authorized to execute this Agreement on behalf of the Party for which such signatory executes this Agreement. Each Party represents that it has the appropriate legal authority to enter into this Agreement and to perform all obligations under this Agreement, including, but not limited to, the payment of dollar amounts to the other Party as required herein. 10. Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, except for its conflicts oflaw rules. Any suit, action or proceeding brought under the scope ofthis Agreement shall be brought and maintained to the extent allowed by law in the County of San Bernardino, California. II. Construction and Interpretation. This Agreement has been arrived at through negotiations and each Party has had a full and fair opportunity to revise the terms of this Agreement. As a result, the normal rule of construction that any ambiguities are to be resolved against the drafting Party shall not apply in the construction or interpretation of this Agreement. 12. Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any and all prior oral or written agreement, understanding, or representation relating to the subject matter of this Agreement. 13. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the successors and assigns of the respective Parties to this Agreement. No Party may assign its interests in or obligations under this Agreement without the written consent of the other Parties, which consent shall not be unreasonably withheld or delayed. 3 S717.000.. Du~s City of San l3ernJrdino;SI;ller - Reimbursemen! .\grcemcnl( J :!-O7-(7) 2008-16 14. Waivers. Waiver of any breach or default hereunder shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or of another provision of this Agreement and forbearance to enforce one or more of the remedies provided in this Agreement shall not be deemed to be a waiver of that remedy. 15. Compliance with Law. In performing their respective obligations under this Agreement, the Parties shall comply with and conform to all applicable laws, rules, regulations and ordinances. 16. Third Partv Beneficiaries. This Agreement shall not create any right or interest in any non- Party or in any member of the public as a third party beneficiary. 17. Notices. All notices, requests, demands or other communications required or permitted under this Agreement shall be in writing unless provided otherwise in this Agreement and shall be deemed to have been duly given and received on: (i) the date of service if served personally or served by facsimile transmission on the Party to whom notice is to be given at the address or addresses as provided below, (ii) the first day after mailing, if mailed or dispatched by Federal Express, United States Express Mail, or other similar overnight courier service, postage prepaid and addressed as provided below, or (iii) the third (3rd) business day after mailing if mailed to the Party to whom notice is to be given by first class mail, registered or certified, postage prepaid, addressed as follows: To Stater: Stater Bros. Markets 301 South Tippecanoe Avenue San Bernardino, CA 92408 (909)733-5000 (909)379-0450 (FAX) Attn: Chief Financial Officer With a copy to: Varner & Brandt LLP 3750 University Avenue, Suite 610 Riverside, CA 9250 I (951)274-7777 (951)274-7770 (FAX) Attn: Bruce D. Varner, Esq. To the City: City of San Bernardino 300 North "D" Street San Bernardino, CA 92401 (909)384-5122 (909)384-5138 (FAX) Attn: City Manager With a copy to: [signat"re page follows) 4 S71 7.l)()lll)oc~CiIY nf San lkrn,lTdilllliSlaler - Rciml1ursemelll Agreement( 1:!-O7-(7) ., . 2008-16 1N WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as ofthc date first above written. Attest: By: .Q~);;.~ Radlel Clark, City Clerk Approved as to Form: III STATER STATER BROS. MARKETS, a California corporation By: ~ _ J k H. Brown Its: C airman Ofthe-Board and Chief Executive Officer CITY CITY OF SAN BERNARDINO, a California ch er ci By: Its: 5 S7J f,()l)(i- Docs Citv elf San IkrnarJitlu'Slal':r - RcilllhuTSc111ent Agreemel1l( J2-07-(7)