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Home My WebLink About2008-279 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2008-279 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING EXECUTION OF A LICENSE AND INDEMNIFICATION AGREEMENT BY AND BETWEEN THE COUNTY OF SAN BERNARDINO, THE CITY OF SAN BERNARDINO AND THE HIGH DESERT PARTNERSHIP IN ACADEMIC EXCELLENCE FOUNDATION, INC., FOR PROPERTY LOCATED AT 503 EAST CENTRAL AVENUE, SAN BERNARDINO, CA. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and directed to execute on behalf of the City, a License and Indemnification Agreement by and between the City of San Bernardino, the County of San Bernardino and the High Desert Partnership in Academic Excellence Foundation, Inc. which does business as the Norton Space and Aeronautics Academy, relating to certain real property at 503 East Central Avenue, San Bernardino, CA. A copy of the License Agreement is attached as Exhibit "1" and incorporated herein by reference. SECTION 2. Authorization granted hereunder shall expire and be void and of no further effect if the agreement is not executed by all parties and returned to the office of the City Clerk within sixty (60) days following the effective date of the resolution. III III III III III III III 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2008-279 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING EXECUTION OF A LICENSE AND INDEMNIFICATION AGREEMENT BY AND BETWEEN THE COUNTY OF SAN BERNARDINO, THE CITY OF SAN BERNARDINO AND THE HIGH DESERT PARTNERSHIP IN ACADEMIC EXCELLENCE FOUNDATION, INC., FOR PROPERTY LOCATED AT 503 EAST CENTRAL AVENUE, SAN BERNARDINO, CA. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the joint Mayor and Common Council of the City of San Bernardino at a regular meeting thereof, held on the 7 th day of July Council Members: AYES NAYS ESTRADA x BAXTER X BRINKER x DERRY ~ KELLEY x JOHNSON x x MCCAMMACK , 2008, by the following vote, to wit: ABSTAIN ABSENT ~k.~ City Clerk The foregoing resolution tS hereby approved this _~_ day of July, 2008. , Pa ck J. Morris, r . y of San Bernardino Approved as to form: JAMES F. PENMAN, City Attorney Br7.P~ 2008-279 C (Q) (p1f LICENSE. INDEMNIFICATION AND HOLD HARMLESS AGREEMENT 1. PARTIES: In consideration for the mutual promises and covenants set forth herein, this License, Indemnification and Hold Harmless Agreement ("Agreement") is made by and between the COUNTY OF SAN BERNARDINO ("COUNTY") and CITY OF SAN BERNARDINO ("CITY") on the one hand, and THE HIGH DESERT PARTNERSHIP IN ACADEMIC EXCELLENCE FOUNDATION, INC. ("ACADEMY") on the other hand, who agree as follows: 2. LICENSE FOR ACCESS TO PREMISES: This Agreement shall constitute a license (the "License") from the COUNTY and CITY to the ACADEMY for the ACADEMY to enter upon those certain premises located at 503 East Central Avenue, San Bernardino, California (the "Premises"), and for the ACADEMY, at its cost, to make improvements to the Premises, including the addition and installation of modular classroom units on the Premises, and the construction of permanent classrooms and related educational facilities ("Improvements"). 3. TERM: The License under this Agreement shall commence on June 1, 2008, and continue thereafter until August 31,2008 ("Term"). 4. HOLD HARMLESS: ACADEMY, COUNTY, and CITY shall mutually indemnify, defend and hold harmless the other party or parties and its/their respective directors, officers, and employees from and against all liabilities (including without limitation all claims, losses, damages, penalties, fines, and judgments, associated investigation and administrative expenses, and defense costs, including but not limited to reasonable attorney's fees, court costs and costs of alternative dispute resolution) regardless of nature or type arising out of or resulting from the negligence or willful misconduct of the indemnifying party or its respective officers, employees or agents. To the extent that liability is caused by the active negligence or willful misconduct of an indemnified party, the indemnification obligation shall be reduced in proportion to the indemnified party's share of liability for its active negligence or willful misconduct, if any. 5. INSURANCE: a. COUNTY and CITY are public entities and are self-insured. b. Required Insurance: Without in anyway affecting the indemnity herein provided and in addition thereto, ACADEMY shall secure and maintain throughout the license the following types of insurance with limits as shown: (1) Workers' Compensation: A program of Workers' Compensation insurance or a state-approved Self-Insurance Program in an amount and form to meet all applicable requirements of the Labor Code of the 1 20P08821ALG:pjc 6/30/20084:54 PM "EXHIBIT 1" 2008-279 State of California, including Employer's Liability with Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) limits, covering all persons providing services on behalf of the ACADEMY and all risks to such persons under this agreement. If ACADEMY has no employees, it may certify or warrant to COUNTY and CITY that it does not currently have any employees or individuals who are defined as "employees" under the Labor Code and the requirement for Workers' Compensation coverage will be waived by the COUNTY's or CITY's Risk Managers. If ACADEMY is a non-profit corporation organized under California or Federal law, volunteers for the ACADEMY are required to be covered by Workers' Compensation insurance. If the COUNTY's or CITY's Risk Managers determine that there is no reasonably priced coverage for volunteers, evidence of participation in a volunteer insurance program may be substituted. (2) Comprehensive General and Automobile Liability Insurance: This coverage to include contractual coverage and automobile liability coverage for owned, hired and non-owned vehicles. The policy shall have combined single limits for bodily injury and property damage of not less than One Million and 00/100 Dollars ($1,000,000.00). (3) Fire Insurance: Standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements to the extent of at least one hundred percent (100%) of the full replacement value of the Premises. c. Additional Named Insured: All policies, except for the Workers' Compensation, shall contain additional endorsements naming the COUNTY and CITY and their officers, employees, agents and volunteers as additional named insureds with respect to liabilities arising out of this agreement. d. Waiver of SubroQation RiQhts: ACADEMY shall require the carriers of the above required coverages to waive all rights of subrogation against the COUNTY and CITY, their officers, employees, agents, volunteers, contractors and subcontractors. e. Policies Primarv and Non-Contributory: All policies required above are to be primary and non-contributory with any insurance or self- insurance programs carried or administered by the COUNTY and/or CITY. f. Proof of CoveraQe: ACADEMY shall immediately furnish certificates of insurance to the COUNTY and CITY, evidencing the insurance coverage, including endorsements, above required prior to occupying the Premises and the commencement of performance of services hereunder, which 2 20P0882/ALG:pjc 6/30/20084:54 PM 2008-279 certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the COUNTY and CITY, and ACADEMY shall maintain such insurance from the time of occupancy and commencement of performance of services hereunder until the completion of such occupancy. Within sixty (60) days of the commencement of this agreement, the ACADEMY shall furnish certified copies of the policies and all endorsements. g. Insurance Review: The above insurance requirements are subject to periodic review by the COUNTY and CITY. The COUNTY's and CITY's Risk Managers are authorized, but not required, to reduce or waive any of the above insurance requirements whenever the Risk Manager determines that any of the above insurance is not available, is unreasonably priced, or is not needed to protect the interests of the COUNTY and CITY. In addition, if the Risk Manager determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Risk Manager is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the COUNTY and CITY, inflation, or any other item reasonably related to the COUNTY's and CITY's risk. Any such reduction or waiver for the entire Term of the agreement and any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this agreement. ACADEMY agrees to execute any such amendment within thirty (30) days of receipt. h. Failure to Have Insurance: In the event the COUNTY or CITY receives a notice of cancellation concerning any of the required policies, or should ACADEMY fail to have in effect the required coverage at any time during this lease, COUNTY or CITY may give notice to ACADEMY to immediately suspend all ACADEMY activities and/or notice to reinstate or acquire the affected coverage. Should ACADEMY fail to reinstate or acquire the affected coverage within ten (10) days of COUNTY's and CITY's notice to reinstate or acquire such coverage, COUNTY and CITY may either terminate the lease, reinstate or acquire the affected coverage, and ACADEMY shall reimburse COUNTY and CITY for the necessary cost at COUNTY's and CITY's option. If ACADEMY does not reimburse COUNTY and CITY within ten (10) days after demand by COUNTY and CITY, COUNTY and CITY shall have the right to withhold from future rent due the sum COUNTY and CITY has expended until COUNTY and CITY are reimbursed in full. i. ACADEMY Responsible for all Insurance Premiums: Neither the COUNTY nor the CITY shall have liability for any premiums charged for such coverage(s). The inclusion of COUNTY and CITY as additional named insureds is not intended to and shall not make them a partner or joint venturer with ACADEMY. 3 20P0882/ALG:pjc 6/30/20084:54 PM 2008-279 j. Construction-Related Insurance: During all periods of construction, as referenced in Paragraph 2 herein, the ACADEMY shall require all parties, including contractors, subcontractors, architects, engineers and any others it hires or contracts with, whether for compensation or not, related to the ACADEMY's Improvements to the Premises, to provide insurance covering the contracted operations as specified in this Section 4, INSURANCE, Sub-parts a through i, above. In addition to those requirements, construction contracts shall have the following additional requirements: (1) Construction contracts for projects over one million ($1,000,000) and less than three million ($3,000,000) require limits of not less than three million ($3,000,000) in General Liability and Auto Liability coverage. Construction contracts for projects over three million ($3,000,000) and less than five million ($5,000,000) require limits of not less than five million ($5,000,000) in General Liability and Auto Liability coverage. Construction contracts for projects over five million ($5,000,000) require limits of not less than ten million ($10,000,000) in General Liability and Auto Liability. (2) Continuing Products/Completed Operations Liability Insurance with a limit of not less than five million ($5,000,000) for each occurrence for at least three years following substantial completion of the work on projects over one million ($1,000,000). (3) Course of Construction/Installation (Builder's Risk) property insurance providing all risk, including theft coverage for all property and materials to be used on the project. The insurance policy shall not have any coinsurance penalty. Coverage shall include any improvements on or about the Premises. ACADEMY shall provide or cause its contractors and subcontractors to provide Builders All-Risk Insurance covering all buildings and other improvements against loss or damage from the commencement of construction until completion. The Builders All-Risk Insurance shall be in an amount for the replacement value of the subject building and improvements and rental interruption, and endorsed for broad form property damage, breach of warranty, explosions, collapse, and underground hazards. The deductible amount shall not exceed five percent (5%) of the construction cost. (4) Professional Liability Insurance with limits of not less than two million ($2,000,000) per claim or occurrence and four million ($4,000,000) aggregate limits. (5) Environmental Liability Insurance with a combined single limit of not less than five million ($5,000,000) per claim or occurrence and a separate aggregate for the contract project. 4 20P08821ALG:pjc 6/30/20084:54 PM ---1--- ___________~~ 2008-279 The required additional insured endorsement shall protect the COUNTY and CITY without any restrictions. If insurance coverage is provided on a "claims made" policy, the "retroactive date" shall be shown and must be before the date of the start of the contracted work. The "claims made" insurance shall be maintained or "tail" coverage provided for a minimum of five (5) years after contract completion. 6. AUTHORIZED SIGNATORS: The parties to this Agreement represent that the signators executing this lease are fully authorized to enter into this agreement. COUNTY OF SAN BERNARDINO .~o ~.. Paul Biane Chainnan Board of SupelVisors THE HIGH DESERT PARTNERSHIP IN ACADEMIC EXCELLENCE FOUNDATION, INC. By ~&:?~ << Title: t',.... ~ Date: JUN 2 4 ZQQrj Date: 7)-'15- h,y.- / CITY OF SAN BERNARDINO Fred Date: 7'9--od" By: Rachel Clark, City Clerk SIGNED AND A COPY OF. HAS BEE CHAIRM Date: IIII .JlJhl ">i L../ud City of San Bemardino By:~h.~ Date: 7/ J 0/0 Y 5 20P08821ALG:pjc 6/30/20084:54 PM .' 2008-279 Approved as to Legal Form: RUTH E. STRINGER, County Counsel San Bernardino County, California By: at /~ )/l/~ ~- Alan L. Green, Deputy County Counsel Date: 7/:3/ID8 / ./ JAMES PENMAN, City Attorney City of San Bernardino, California D )7 {, 2d IF ( 6 20P0882/ALG:pjc 6/30/2008 4:54 PM