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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Lori Sassoon, Assistant City
Manager
Subject: Resolution of the Mayor and Common
Council of the City "of San Bernardino to ratify the
City Manager's execution of Amendment No. I to the
existing 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, for property
located at 503 East Central A venue, San Bernardino,
CA.
Dept: City Manager's Office
Date: August 20, 2008
Meeting date: September 2, 2008
Synopsis of Previous Council Action:
July 7,2008 - Resolution 2008-279 authorizing the execution of a License and Indemnification
Agreement by and between the City, the County of San Bernardino, and the High Desert
Partnership in Academic Excellence for property located at 503 East Central Avenue.
February 4, 2008 - Council received a presentation about the proposed Norton Space and
Aeronautics Academy.
April 21, 2008 - Council approved a fee waiver/reimbursement for Norton Space & Aeronautics
Academy for the establishment of a charter school at the Mill Center, located at 503 E. Central
Avenue
Recommended motion:
Adopt resolution.
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Signature
Contact person:
Lori Sassoon
Phone: 384-5122
Supporting data attached: Staff Report, Resolution
Original Agreement & Amendment
Ward: I
FUNDING REQUIREMENTS:
Amount: none
Source: (Ace!. No.)
(Ace!. Description)
Finance:
Council Notes:
~$O 2008 -.31'0
Agenda Item No. /2..
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect:
Resolution of the Mayor and Common Council of the City of San Bernardino to ratify the City
Manager's execution of Amendment No. I to the existing 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, for property located at 503
East Central Avenue, San Bernardino, CA.
Back!!:round:
The City, County of San Bernardino, and the Norton Space and Aeronautics Academy (NSAA)
entered into a License and Indemnification Agreement on July 7, 2008 (Attachment A). The
agreement, effective June I, 2008 through August 2008, provided the required indemnification to
the City and the County while NSAA began improvements to the Mill Center site located at 503
East Central Avenue.
The NSAA is run by the same consortium that created the Lewis Center for Education Research,
a school facility in Apple Valley supported by Congressman Jerry Lewis. Scheduled to open on
Monday, August 25, the NSAA will begin with 183 students. Up to 300 students will be
accepted the first year and the NSAA will add a grade level each year until the school is K-12.
The vision and goal of the NSAA is to reach the underserved population of residents in close
proximity to the former Norton Air Force Base. The advantage of the location near the former
Air Force base is the surrounding aeronautical and engineering businesses that have pledged
their support, offering partnerships that will enable underserved students to experience real-life
science. Students at the NSAA will also benefit from already established partnerships with
NASA, JPL, and the Lewis Center for Educational Research.
The License and Indemnification Agreement currently serves as an interim agreement until a
long-term lease agreement between the City, County of San Bernardino and the NSAA is
completed. The long-term lease agreement is being fmalized and will be on the agenda for
approval for the September 16, 2008 Council meeting. In the mean time, the NSAA is asking the
City and County to modify and extend the interim agreement until September 16, 2008. In order
to allow NSAA to commence school operations on August 25, 2008, the parties signed
Amendment No.1 to the License and Indemnification Agreement on August 22, 2008.
Amendment No.1 also increases comprehensive general and auto liability insurance coverage
from one million to five million dollars.
Fiscal ImDact:
None.
Recommendation:
Adopt resolution.
2008-279
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ORIGINAL
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LICENSE. INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
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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, Califomia (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 oommence 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 altemative 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. Reauired 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:
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(1) Workers' Comoensation: 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
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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 substiMed.
(2) Comorehensive General and Automobile Liabilitv
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 ofthis agreement.
d. Waiver of Subroaation Riahts: 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 Primary and Non-Contributorv: 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 Coveraae: 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
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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 fumish 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 addHional 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 conceming 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 acqu ire 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 ResDonsible 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.
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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/lnstallation (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 AII-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.
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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
Paul Biane
Chairman Board of Supervisors
THE HIGH DESERT PARTNERSHIP
IN ACADEMIC EXCELLENCE
FOUNDATION, INC.
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By: . . /f'
Title: ft:.. 1:7 ~
Date:
Date: ~ s- ~J>'
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CITY OF SAN BERNARDINO
Fred
Date: 7-'7?-CJJ'
SIGNED AND CERTIFIED THAT
A COPY OF THIS DOCUMENT
HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD
Dena Smith, Clerk of the
Rachel Clark. City Clerk
Board of Supervisors
City of San Bernardino
By:
Deputy
By:
Date:
III/
Date:
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2008-279
Approved as to Legal Form:
RUTH E. STRI NGER, County Counsel
San Bernardino County, California
By:
Alan L. Green, Deputy County Counsel
Date:
JAMES PENMAN, City Attorney
City of San Bernardino, California
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO TO RATIFY THE CITY MANAGER'S EXECUTION OF
AMENDMENT NO.1 TO THE EXISTING 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., FOR PROPERTY LOCATED AT
503 EAST CENTRAL A VENUE, SAN BERNARDINO, CA.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor and Common Council hereby ratifies the City Manager's
execution on August 22, 2008, on behalf of the City, of Amendment No. I to the 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 Amendment No. I to the
License and Indemnification Agreement is attached as Exhibit "A" and incorporated herein by
reference.
SECTION 2. On July 7, 2008, the Mayor and Common Council approved Resolution
No. 2008-279, which authorized execution of the above-referenced License and
Indemnification Agreement.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO TO RATIFY THE CITY MANAGER'S EXECUTION OF
AMENDMENT NO.1 TO THE EXISTING 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., FOR PROPERTY LOCATED AT
503 EAST CENTRAL A VENUE, SAN BERNARDINO, CA.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a meeting thereof, held on the
_ day of , 2008, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
BAXTER
BRINKER
DERRY
<:) 14 KELLEY
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JOHNSON
MCCAMMACK
City Clerk
The foregoing resolution is hereby approved this
day of
2008.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to
Form:
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AMENDMENT NO.1 TO LICENSE AND INDEMNIFICATION AGREEMENT
BY AND BETWEEN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, AND HIGH DESERT PARTNERSHIP IN ACADEMIC
EXCELLENCE FOUNDATION, INC.
This Agreement is entered into this 22nd day of August, 2008, by and between the
COUNTY OF SAN BERNARDINO ("COUNTY") , CITY OF SAN BERNARDINO ("CITY"), and
the HIGH DESERT PARTNERSHIP IN ACADEMIC EXCELLENCE FOUNDATION, INC.
("ACADEMY").
RECITALS
WHEREAS, on July 7, 2008, the COUNTY, CITY, and ACADEMY entered into a
License and Indemnification Agreement ("License") relating to that certain real
property at 503 East Central Avenue, San Bernardino, California (the "Premises");
WHEREAS, The ACADEMY intends to operate a charter school to be known as the
Norton Space and Aeronautics Academy on the Premises, with classes commencing
on August 25, 2008;
WHEREAS, COUNTY, the CITY, and ACADEMY intend to enter into a written lease
(the "Lease") of the Premises on or before September 16, 2008;
WHEREAS, the fair market value for the use of the Premises is FIVE THOUSAND
FIVE HUNDRED NO/100 DOLLARS ($5,500.00).
NOW THEREFORE, the COUNTY, CITY, and ACADEMY now desire to extend
terms of the License from the current expiration date of August 31, 2008 to
September 16, 2008.
AGREEMENT
In consideration of the mutual promises contained herein, the parties hereby amend
the License as follows:
1. Paragraph 3, Term, is amended to add the following:
a. The ACADEMY's use of the Premises shall be expanded to include all
purposes relating to the construction and operation of an educational facility on the
Premises to commence on August 25, 2008.
b. The term of the License shall be extended for a period of sixteen (16)
days, commencing September 1, 2008 and continue thereafter until September 16,
2008.
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C 2. Paragraph 5(b)(2), Insurance, is amended to increase the coverage of
comprehensive general and auto liability insurance to FIVE MILLION NO/100
DOLLARS ($5,000,000.00).
3. The ACADEMY shall pay to the COUNTY and CITY a license fee of FIVE
THOUSAND FIVE HUNDRED NO/100 DOLLARS ($5,500.00) for the period
September 1, 2008 through September 16, 2008, or until formal approval of the
Lease by the COUNTY, CITY, and ACADEMY.
4. All other provisions of the License are reaffirmed as originally stated.
5. The parties to this License represent that the signators executing this
document are fully authorized to enter into this agreement.
IN WITNESS THEREOF, the parties hereto have executed the Agreement on the
day and date first above written.
Dated:
,2008
COUNTY OF SAN BERNARDINO
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By:
DAVID SLAUGHTER
Director of Real Estate Services
County of San Bemardino
Dated: X;/~ 2.
,2008
THE HIGH DESERT PARTNERSHIP
IN ACADEMIC EXCELLENCE
FOUNDATION INC.
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By: ' "'7
RICK PIERCY
Dated:
~12'2-
,2008
City Manager
City of San Bernardino
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C ATTEST:
Rachel Clark, City Clerk
City of San Bernardino
Dena Smith, Clerk of the Board of Supervisors
County of San Bernardino
Approved as to form:
Ruth E. Stringer, County Counsel
:::unrzal1rlin) ~--. _
ALAN L. GREEN, Deputy County Counsel
James F. Penman, City Attorney
City of Sa Bernardino
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