HomeMy WebLinkAbout2006-146
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RESOLUTION NO. 2006-146
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE MAYOR TO SIGN A LEASE
AGREEMENT WITH THE COUNTY OF SAN BERNARDINO REAL ESTATE
SERVICES FOR OFFSITE OFFICE SPACE ON BEHALF OF THE SAN
BERNARDINO POLICE DEPARTMENT.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor and Common Council of the City of San Bernardino
authorizes the Mayor to execute a lease agreement between the City of San Bernardino Police
Department and the County of San Bernardino Real Estate Services, authorizing the San
Bernardino Police Department to sublease 1700 square feet of office space from the County of
San Bernardino to house the San Bernardino Police Department Vice and Narcotics Unit.
SECTION 2. That the Mayor and Common Council authorize the Director of Finance
to fund the lease through the budget accounts outlined in the staffreport.
SECTION 3. The authorization to execute the above referenced lease agreement is
rescinded ifit is not executed within sixty (60) days of the passage of this resolution.
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2006-146
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE MAYOR TO SIGN A LEASE AGREEMENT
WITH THE COUNTY OF SAN BERNARDINO REAL ESTATE SERVICES, FOR
OFFSITE OFFICE SPACE ON BEHALF OF THE SAN BERNARDINO POLICE
DEPARTMENT.
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5, I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
6 I Common Council of the City of San Bernardino at a j t. regular meeting thereof, held on the
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15th dayof
May
, 2006, by the following vote, to wit:
Council Members
Abstain
Absent
Ayes Nays
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X
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X
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ESTRADA
BAXTER
McGINNIS
DERRY
KELLEY
JOHNSON
McCAMMACK
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20 The foregoing resolution is hereby approved this /'i?-th day of _ May
,2006.
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24 Approved as to Form:
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FOR COUNTY USE ONL Y
FAS
fx New Vendor Code Dept. Contract Number
I- Change SC A
Cancel
County Department Dept. Orgn. TENANT's License No.
Real Estate Services Department
County Department Contract Representative Telephone Total Contract Amount '
David H. SlauQhter, Director 387-7813
Contract Type
o Revenue D Encumbered o Unencumbered 0 Other:
If not encumbered or revenue contract type, provide reason:
Commodity Code Contract Start Date Contract End Date Original Amount Amendment Amount
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
AM RNT RNT , 200 2905 , N32191
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
, ,
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
, ,
Project Name Estimated Payment Total by Fiscal Year
SAN BERNARDINO - Sheriff FY Amount 110 FY Amount 110
808 E. Mill SI. - Sublease
- -
- -
Contract type 2( d) - -
County of San Bernardino
CONTRACT TRANSMITTAL
CITY City of San Bernardino Police Department
Federal 10 No. or Social Security No.
CITY's Representative
Mitch Kimball
Address P.O. Box 1559, San Bernardino, CA 92402-1559
Phone (909) 754-0013
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This Sub-Lease is for a period of fifteen (15) months. SUb-leas~d\s'~premises consist of 1,700 gross
square feet of offices. Rental is $1.30 per square foot fuU~l'l~rv,~ross.
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CITY shaU provide its own telephone services ~d;se6\)ri~: '
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Nature of Contract:
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Presented to BOS for Signature
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County Counsel
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Date
Date
Date
Auditor/Controller-Recorder Use Onlv
o Contract Database 0 FAS
Input Date Keyed By
COUNTY OF SAN BERNARDINO
SUB-LEASE AGREEMENT
CITY:
CITY OF SAN BERNARDINO POLICE DEPARTMENT
P.O. Box 1559
San Bernardino, CA 92402-1559
COUNTY:
COUNTY OF SAN BERNARDINO
Public and Support Services Group
Real Estate Services Department
825 East Third Street
San Bernardino, CA 92415-0832
SUB-PREMISES: 808 E. Mill Street
San Bernardino, CA 92415
TERM OF SUB-LEASE: Fifteen (15) months with one (1) three-year option
COMMENCEMENT DATE OF SUB-LEASE: April 1 , 2006
REVENUE PER MONTH: $2,210.00
COUNTY CONTRACT NUMBER:
DOCUMENT NUMBER AND REVISION DATE: No. 196637.04 8/05/05
DATE TYPED: OS/28/06
PARAGRAPH
TABLE OF CONTENTS
CAPTION
PAGE
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PARTIES
SUB-PREMISES SUB-LEASED
TERM
RENT
RETURN OF SUB-PREMISES
OPTION TO EXTEND TERM
TAXES
USE
HEALTH, SAFETY & FIRE CODE REQUIREMENTS
SIGNS
MAINTENANCE
ALTERATIONS
FIXTURES
UTILITIES
HOLD HARMLESS
INSURANCE
DESTRUCTION OF SUB-PREMISES
COUNTY'S ACCESS TO SUB-PREMISES
NOTICES
INCORPORATION OF PRIOR AGREEMENT
WAIVERS
AMENDMENTS
SUCCESSORS
SEVERABILITY
TIME OF ESSENCE
QUIET ENJOYMENT
PROVISIONS ARE COVENANTS & CONDITIONS
CONSENT
EXHIBITS
LAW
RESERVED
ATTORNEYS' FEES AND COSTS
VENUE
CAPTIONS, TABLE OF CONTENTS & COVER PAGE
SURVIVAL
BROKER'S COMMISSIONS
ESTOPPEL CERTIFICATES
SECURITY DEPOSIT
ASSIGNMENT AND SUBLETTING
TERMINATION
FORMER COUNTY OFFICIALS
MISREPRESENTATIONS
DISCLOSURE
DEFAULT AND RIGHT TO TERMINATE
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Table of Contents
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HOLDING OVER
INTERPRETATIONS
ENTIRE AGREEMENT
AUTHORIZED SIGNATORS
SIGNATURES
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Exhibit "A" - Sub-Premises Description
Exhibit "8" - List of Former County Officials
SUB-LEASE AGREEMENT
WHEREAS, the County of San Bernardino ("COUNTY") currently leases
approximately 19,586 square feet of space ("Premises") from East Mill Street, Ltd.
("LANDLORD") under COUNTY Contract No. 2000-223, ("Lease"); and,
WHEREAS, the COUNTY wishes to Sub-Lease a portion of the Premises of the
Lease to the City of San Bernardino ("CITY") for use by its Police Department.
NOW, THEREFORE, in consideration of mutual covenants and conditions, the
parties hereto agree as follows:
1. PARTIES: This is a Sub-Lease ("Sub-Lease") made between the
COUNTY, as sub-landlord, and the CITY, as sub-tenant. This Sub-Lease is subject to
the Lease and CITY shall take no action in violation of the terms and conditions of the
Lease.
2. PREMISES SUBLEASED: COUNTY sub-leases to CITY approximately
1,700 square feet within the Premises and adequate parking located at 808 E. Mill
Street, San Bernardino, California ("Sub-Premises"), as described in Exhibit "A", Sub-
Premises Specifications.
3. TERM: This Sub-Lease shall commence on April 1, 2006 and continue
thereafter until June 30, 2007 ('Term). In the event the Term commences prior to the
date specified for the commencement of the Term as a result of COUNTY making the
Sub-Premises available and CITY's written acceptance of early possession of the Sub-
Premises, the ending date of the Term shall remain the same. Rent for any partial month
shall be prorated based on the actual number of days in the month.
4. RENT: CITY shall pay to COUNTY the monthly rental of Two Thousand
Two Hundred ten and 00/100 Dollars ($2,210.00) in advance on the first day of each
month, commencing when the Term commences, continuing during the Term. All rent
shall be paid to COUNTY at the address to which notices to COUNTY are given.
5. RETURN OF PREMISES: The CITY agrees that it will, upon any
termination of this Sub-Lease, return the Sub-Premises in as good condition and repair as
the Sub-Premises now are or shall hereafter be put; reasonable wear and tear excepted.
6. OPTION TO EXTEND TERM: COUNTY gives CITY the option to extend
the term of the Sub-Lease on the same provisions and conditions, excluding the
monthly rent, for one (1) three-year period ("extended term") following expiration of the
initial Term, by CITY giving notice of its intention to exercise the option to COUNTY at
least 180 days prior to the expiration of the Term. This option is valid only if the
COUNTY, in its sole discretion, exercises its three-year option to extend under the
Lease with LANDLORD.
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7. TAXES: CITY shall pay before delinquency any and all property taxes,
assessments, fees, or charges, including possessory interest taxes, which may be levied
or assessed upon any personal property, improvements or fixtures installed or belonging
to CITY and located within the Sub-Premises. CITY shall also pay all license or permit
fees necessary or required by law for the conduct of its operation. CITY recognizes and
understands that this Sub-Lease may create a possessory interest subject to property
taxation and that the CITY may be subject to the payment of property taxes levied on such
interest.
8. USE: This Sub-Lease is limited to the normal functions of the CITY's Police
Department for auxiliary office space and will not be open to the public. CITY shall not use
the Sub-Premises for any other purpose.
9. HEALTH. SAFETY AND FIRE CODE REQUIREMENTS: As a condition of
this Sub-Lease, CITY at its sole expense will ensure the Sub-Premises meet the
applicable requirements of the Health, Safety, Fire and Building Codes, including any
requirements for a notice of completion, certificate of occupancy and the Americans with
Disabilities Act ("ADA"), for its intended use. Should the continued occupancy or use of
the Sub-Premises be in any way prejudiced or prevented due to changes in the ADA or
the Health, Safety, Fire or Building Codes, the CITY herein shall correct, update and
comply with said changes at CITY's cost, or the CITY, in its sole discretion, may terminate
this Sub-Lease.
10. SIGNS: CITY will display from the windows and/or marquee of the Sub-
Premises only such sign or signs as are not prohibited by law, and which are approved by
COUNTY.
11. MAINTENANCE:
a. CITY at its cost shall maintain in good condition portions of the Sub-
Premises to COUNTY's reasonable satisfaction.
b. CITY shall have ten (10) days after notice from COUNTY to perform
its obligation under this paragraph, except that CITY shall perform its obligations
immediately if the nature of the problem presents a material hazard or emergency.
Provided, however, if the nature and/or extent of CITY's obligation is such that more than
ten (10) days are reasonably required to complete, then CITY shall not be in default if
CITY commences its obligation within said ten (10) day period and thereafter diligently
prosecutes its obligation to completion. If CITY does not perform its obligations within the
time limitations in this paragraph, COUNTY after notice to CITY can perform the
obligations and have the right to be reimbursed for the sum it actually and reasonably
expends (including charges for COUNTY employees and equipment) in the performance
of CITY's obligations. Any notice or demand concerning a material hazard or emergency
may be made orally, by telephone or otherwise, provided that written confirmation is given
within five (5) days after the oral notice or demand is made. Such confirmation shall be
made as provided in Paragraph 19, NOTICES.
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12. ALTERATIONS: CITY shall not make any structural or exterior
improvements or alterations to the Sub-Premises without COUNTY's consent. Any such
alterations made shall remain on and be surrendered with the Sub-Premises on
expiration or termination of the Sub-Lease.
13. FIXTURES: CITY shall have the right during the Term(s) of this Sub-Lease
to install shelving and fixtures, and make interior, non-structural improvements or
alterations in the Sub-Premises. Such shelving, fixtures, improvements, and alterations
shall remain the property of the CITY and may be removed by the CITY during the
Term(s) of this Sub-Lease or within a reasonable time thereafter, provided that the CITY
restores the Sub-Premises to the condition as it existed at the commencement of this
Sub-Lease, reasonable wear and tear excluded, or the CITY in its sole discretion may
elect to surrender all or any part of such shelving, fixture, improvements and alterations to
the COUNTY, in which case CITY shall have no duty to restore the Sub-Premises. Any
such election to surrender must be in writing and accepted by COUNTY to be effective.
14. UTILITIES: COUNTY shall furnish and pay for all utilities to the Sub-
premises, except that CITY shall furnish to the Sub-Premises and pay for its own
telephone service.
15. HOLD HARMLESS:
a. The CITY agrees to indemnify, defend (with counsel approved by
COUNTY) and hold harmless the COUNTY and its officers, employees, agents and
volunteers from any and all claims, actions, losses, damages, and/or liability arising out
of its obligations under this Sub-Lease. The CITY's indemnification obligation shall
survive the COUNTY's tenancy. The insurance provisions in Paragraph 16,
INSURANCE, shall not be interpreted in a manner that limits the indemnification
obligation.
b. COUNTY agrees to indemnify and hold harmless the CITY, its
officers, agents, volunteers from any and all claims, actions or losses, damages, and/or
liability resulting from the COUNTY's negligent acts or omissions which arise from the
COUNTY's performance of its obligations under this Sub-Lease.
c. In the event the COUNTY and/or the CITY is found to be
comparatively at fault for any claim, action, loss or damage which results from their
respective obligations under this Sub-Lease, the COUNTY and/or CITY shall indemnify
the other to the extent of its comparative fault.
d. Furthermore, if the COUNTY or CITY attempts to seek recovery from
the other for Workers Compensation benefits paid to an employee, the COUNTY and
CITY agree that any alleged negligence of the employee shall not be construed against
the employer of that employee.
16. INSURANCE:
a. COUNTY is a public entity and is self-insured.
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b. Without in anyway affecting the indemnity herein provided and in
addition thereto, CITY shall secure and maintain throughout the Sub-Lease the following
types of insurance with limits as shown. CITY may comply with these insurance
requirements thru a State approved self-insurance program:
(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 State of California,
including Employer's Liability with Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) limits, covering all persons, including volunteers, providing services on
behalf of the CITY and all risks to such persons under this agreement.
(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 entire Premises.
c. Additional Named Insured: All policies, except for the Workers'
Compensation, shall contain additional endorsements naming the COUNTY, the
LANDLORD and their officers, employees, agents and volunteers as additional named
insured with respect to liabilities arising out of this agreement.
d. Waiver of Subrogation Rights: CITY shall require the carriers of the
above required coverages to waive all rights of subrogation against the COUNTY, the
LANDLORD, their officers, employees, agents, volunteers, contractors and
subcontractors.
e. Policies Primary 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 or LANDLORD.
f. Proof of Coverage: CITY shall immediately furnish certificates of
insurance to COUNTY, evidencing the insurance coverage, including endorsements,
above required prior to occupying the Sub-Premises and the commencement of
performance of services hereunder, which certificates shall provide that such insurance
shall not be terminated or expire without thirty (30) days written notice to the COUNTY,
and CITY 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 CITY shall furnish certified
copies of the policies and all endorsements.
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g. Insurance Review: The above insurance requirements are subject to
periodic review by the COUNTY. The COUNTY's Risk Manager is 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. 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, inflation, or
any other item reasonably related to the COUNTY'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.
CITY agrees to execute any such amendment within thirty (30) days of receipt.
h. Failure to Have Insurance: In the event COUNTY receives a notice
of cancellation concerning any of the required policies, or should CITY fail to have in
effect the required coverage at any time during this Sub-Lease, COUNTY may give notice
to CITY to immediately suspend all CITY activities and/or notice to reinstate or acquire
the affected coverage. Should CITY fail to reinstate or acquire the affected coverage
within ten (10) days of COUNTY's notice to reinstate or acquire such coverage, COUNTY
rnay either terminate the Sub-Lease, reinstate or acquire the affected coverage, and CITY
shall reimburse COUNTY for the necessary cost at COUNTY's option. If CITY does not
reimburse COUNTY within ten (10) days after demand by COUNTY, COUNTY shall have
the right to withhold from future rent due the sum COUNTY has expended until COUNTY
is reimbursed in full.
i. COUNTY shall have no liability for any premiums charged for such
coverage(s). The inclusion of COUNTY and LANDLORD as additional named insured is
not intended to and shall not make either or them a partner or joint venturer with CITY.
17. DESTRUCTION OF SUB-PREMISES:
a. If during the Term of this Sub-Lease, any casualty renders twenty-
five percent (25%) or less of the floor space of the Sub-Premises unusable for the
purpose intended, COUNTY shall commence restoration of the Sub-Premises within sixty
(60) days of notice of the casualty and shall thereafter complete restoration of the Sub-
Premises within a reasonable time. If COUNTY does not commence the restoration
obligations of this subparagraph within the time limitation set forth, CITY may thereafter
terminate this Sub-Lease by written notice to COUNTY at any time prior to COUNTY
commencing restoration.
b. If during the Term of this Sub-Lease, any casualty renders more than
twenty-five percent (25%) but less than fifty percent (50%) of the floor space of the Sub-
Leased Sub-Premises unusable for the purpose intended, COUNTY, in its sole discretion,
may either commence restoration of the Sub-Premises within ninety (90) days of notice of
the casualty and shall thereafter complete restoration of the Sub-Premises within a
reasonable time, or COUNTY may terminate this Sub-Lease by written notice to CITY. If
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COUNTY does not commence the restoration obligations of this subparagraph within the
time limitation set forth, CITY may thereafter terminate this Sub.Lease by written notice to
COUNTY at any time prior to COUNTY commencing restoration.
c. If during the Term of the Sub-Lease, any casualty renders fifty
percent (50%) or more of the floor space of the Sub.Leased Sub.Premises unusable for
the purpose intended, this Sub-Lease shall be terminated as of the date of the casualty.
If the Sub-Lease is terminated pursuant to this subparagraph, CITY shall have a
reasonable time to vacate the Sub.Premises and shall not be required to pay rent during
the reasonable time required to vacate the Sub.Premises.
d. In the event there is a destruction of a portion of the Sub. Leased
Sub.Premises as set out in paragraphs "a" or "b" above, there shall be an abatement or
reduction of the rent between the date of destruction and the date of completion of
restoration or the date of termination of this Sub-Lease, whichever comes first. The
abatement or reduction of the rent shall be in the percentage as the percentage of
unusable floor space. Unusable floor space for the purpose of calculating the percentage
of rent abatement or reduction shall include not only that floor space which is rendered
unusable for the purpose intended by the casualty itself, but any additional floor space
which is not usable for the purpose intended because of restoration or similar activities.
e. In the event there is a destruction of a portion of the Sub.Leased
Sub.Premises as set out in paragraphs "a" or "b" above, and the Sub-Lease is not
terminated because of such destruction, CITY agrees to pay to COUNTY any and all
insurance proceeds received for said destruction for COUNTY use in the restoration of
the Sub.Premises.
f. In the event COUNTY is required to restore the Sub.Premises as
provided in this paragraph, COUNTY shall restore, at it's expense, any structural or
exterior improvements or alterations to the Sub.Premises made by CITY pursuant to
Paragraph 11 , ALTERATIONS, of this Sub-Lease, but shall not have to restore any
shelving, fixtures, or interior nonstructural improvements or alteration made by the CITY
pursuant to Paragraph 12, FIXTURES, of this Sub-Lease.
g. It is the purpose and intent of this paragraph to determine who shall
bear the initial responsibility for restoration of the Sub-Premises in the event of any such
destruction and not to determine the party responsible for the ultimate costs of such
restoration.
18. COUNTY'S ACCESS TO SUB-PREMISES: COUNTY and its authorized
representatives shall have the right to enter the Sub-Premises at all reasonable times for
any of the following purposes:
a. To determine whether the Sub-Premises are in good condition;
b. To do any necessary maintenance and to make any restoration to
the Sub-Premises that COUNTY has the right or obligation to perform.
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c. To serve, post, or keep posted any notices required by law;
d. To post "for sale" signs at any time during the Term, to post "for rent"
or "for lease" signs during the last three (3) months of the Term, and;
e. To show the Sub-Premises to prospective brokers, agents, buyers,
tenants, lenders or persons interested in an exchange, at any time during the Term.
COUNTY shall conduct its activities on the Sub-Premises as allowed in this
paragraph in a manner that will cause the least possible inconvenience, annoyance, or
disturbance to CITY.
19. NOTICES: Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to the other party or any
other person, including notices under the California unlawful detainer statutes, shall be in
writing and either served personally or sent by prepaid, first-class mail. Any notice,
demand, request, consent, approval, or communication that either party desires or is
required to give to the other party shall be addressed to the other party at the address set
forth below. Either party may change its address by notifying the other party of the
change of address. Notice shall be deemed communicated two (2) COUNTY working
days from the time of mailing if mailed as provided in this paragraph.
CITY's address:
City of San Bernardino Police Department
P.O. Box 1559
San Bernardino, CA 92402-1559
COUNTY's address:
County of San Bernardino
Real Estate Services Department
825 East Third Street
San Bernardino, CA 92415-0832
20. INCORPORATION OF PRIOR AGREEMENT: This Sub-Lease contains all
of the agreements of the parties hereto with respect to any matter covered or mentioned
in this Sub-Lease, and no prior agreement or understanding pertaining to any such matter
shall be effective for any purpose.
21. WAIVERS: No waiver by either party of any provisions of this Sub-Lease
shall be deemed to be a waiver of any other provision hereof or of any subsequent
breach by either party of the same or any other provisions.
22. AMENDMENTS: No provision of this Sub-Lease may be amended or
added to except by an agreernent in writing signed by the parties hereto or their
respective successor in interest, expressing by its terms an intention to modify this Sub-
Lease.
23. SUCCESSORS: This Sub-Lease shall inure to the benefit of and be
binding upon the heirs, executors, administrators, successors, and assigns of the parties
hereto.
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24. SEVERABILITY: If any word, phrase, clause, sentence, paragraph,
section, article, part or portion of this Sub-Lease is or shall be invalid for any reason, the
same shall be deemed severable from the remainder hereof and shall in no way affect or
impair the validity of this Sub-Lease or any other portion thereof.
25. TIME OF ESSENCE: Time is of the essence of each provision of this Sub-
Lease which specifies a time within which performance is to occur. In the absence of any
specific time for performance, performance may be made within a reasonable time.
26. QUIET ENJOYMENT: Subject to the provisions of this Sub-Lease and
conditioned upon performance of all the provisions to be performed by CITY hereunder,
COUNTY shall secure to CITY during the Sub-Lease Term the quiet and peaceful
possession of the Sub-Premises and all right and privilege appertaining thereto.
27. PROVISIONS ARE COVENANTS AND CONDITIONS: All provisions,
whether covenants or conditions, on the part of either party shall be deemed to be both
covenants and conditions.
28. CONSENT: Whenever consent or approval of either party is required that
party shall not unreasonably withhold or delay such consent or approval.
29. EXHIBITS: All exhibits referred to are attached to this Sub-Lease and
incorporated by reference.
30. LAW: This Sub-Lease shall be construed and interpreted in accordance
with the laws of the State of California.
31. RESERVED:
32. ATTORNEYS' FEES AND COSTS: If any legal action is instituted to
enforce or declare any party's rights hereunder, each party, including the prevailing party,
must bear its own costs and attorneys' fees. This paragraph shall not apply to those
costs and attorneys' fees directly arising from any third party legal action against a party
hereto and payable under Paragraph 14, HOLD HARMLESS.
33. VENUE: The parties acknowledge and agree that this Sub-Lease was
entered into and intended to be performed in San Bernardino County, California. The
parties agree that the venue for any action or clairn brought by any party to this Sub-
Lease will be the Superior Court of California, County of San Bernardino, San
Bernardino District. Each party hereby waives any law, statute (including but not limited
to Code of Civil Procedure section 394), or rule of court that would allow them to
request or demand a change of venue. If any third party brings an action or claim
concerning this Sub-Lease, the parties hereto agree to use their best efforts to obtain a
change of venue to the Superior Court of California, County of San Bernardino, San
Bernardino District.
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34. CAPTIONS. TABLE OF CONTENTS AND COVER PAGE: The paragraph
captions, table of contents and the cover page of this Sub-Lease shall have no effect on
its interpretations.
35. SURVIVAL: The obligations of the parties which, by their nature, continue
beyond the Term of this Sub-Lease, will survive the termination of this Sub-Lease.
36. BROKER'S COMMISSIONS: CITY is solely responsible for the payment of
any commissions to any broker who has negotiated or otherwise provided services in
connection with this Sub-Lease.
37. ESTOPPEL CERTIFICATES: Each party within thirty (30) days after notice
from the other party, shall execute and deliver to other party, in recordable form, a
certificate stating that this Sub-Lease is unmodified and in full force and effect, or in full
force and effect as modified, and stating the modifications. The certificate also shall state
the amount of minimum monthly rent, the dates to which the rent has been paid in
advance, the amount of any security deposit or prepaid rent, and that there are no
uncured defaults or specifying in reasonable detail the nature of any uncured default
claimed. Failure to deliver the certificate within thirty (30) days shall be conclusive upon
the party requesting the certificate and any successor to the party requesting the
certificate, that this Sub-Lease is in full force and effect and has not been modified except
as may be represented by the party requesting the certificate, and that there are no
uncured defaults on the part of the party requesting the certificate. The estoppel
certificate shall be in the form provided by the County of San Bernardino.
38. SECURITY DEPOSIT: There is no security deposit in this Sub-Lease.
39. ASSIGNMENT AND SUBLETTING: CITY shall not voluntarily assign or
encumber its interest in this Sub-Lease or in the Sub-Premises or any options
contained in this Sub-Lease or Sub-Lease, all or any part of the Sub-Premises, or allow
any other person or entity (except CITY's authorized representatives) to occupy or use
all or any part of the Sub-Premises.
40. TERMINATION: Either party may terminate this Sub-Lease by giving the
other party sixty (60) days prior notice of the termination.
41. FORMER COUNTY OFFICIALS: CITY agrees to provide or has already
provided information on former COUNTY administrative officials (as defined below) who
are employed by or represent CITY. The information provided includes a list of former
COUNTY administrative officials who terminated COUNTY employment within the last
five years and who are now officers, principals, partners, associates or members of the
business. The information also includes the employment with or representation of CITY.
For purposes of this provision, "COUNTY administrative official" is defined as a member
of the Board of Supervisors or such officer's staff, COUNTY Administrative Officer or
member of such officer's staff, COUNTY department or group head, assistant department
or group head, or any employee in the Exempt Group, Management Unit or Safety
Management Unit. (See Exhibit "B", List of Former County Officials.)
9
42. MISREPRESENTATIONS: If during the course of the administration of this
Sub-Lease, the COUNTY determines that the CITY has made a material misstatement or
misrepresentation or that materially inaccurate information has been provided to the
COUNTY, this Sub-Lease may be immediately terminated. If this Sub-Lease is
terminated according to this provision, the COUNTY is entitled to pursue any available
legal remedies.
43. DISCLOSURE: All information received by the COUNTY from any source
concerning this Sub-Lease, including the Sub-Lease itself, may be treated by the
COUNTY as public information subject to disclosure under the provisions of the California
Public Records Act, Governrnent Code section 6250 et seq. (the "Public Records Act").
CITY understands that although all materials received by the COUNTY in connection with
this contract are intended for the exclusive use of the COUNTY, they are potentially
subject to disclosure under the provisions of the Public Records Act. In the event a
request for disclosure of any part or all of any information which a CITY has reasonably
requested COUNTY to hold in confidence is made to the COUNTY, the COUNTY shall
notify the CITY of the request and shall thereafter disclose the requested information
unless the CITY, within five (5) days of receiving notice of the disclosure request,
requests nondisclosure, provides COUNTY a legally sound basis for the nondisclosure,
and agrees to indemnify, defend, and hold the COUNTY harmless in any/all actions
brought to require disclosure. CITY waives any and all claims for damages, lost profits, or
other injuries of any and all kinds in the event COUNTY fails to notify CITY of any such
disclosure request and/or releases any information concerning the contract received from
the CITY or any other source.
44. DEFAULT AND RIGHT TO TERMINATE:
a. Definitions. A "Default" by CITY shall refer to any failure by CITY
to observe, comply with or perform any of the terms, covenants, conditions or rules
applicable to CITY under the Lease or this Sub-Lease. The term "Breach" shall refer to
the occurrence of anyone or more of the following Defaults, and, where a grace period
for cure after notice is specified herein, the failure of CITY to cure such Default prior to
the expiration of the applicable grace period:
(1) CITY's unexcused failure to conduct CITY's business at the
Sub-Premises in accordance with the terms of this Sub-Lease including but not limited
to the failure to comply with the limitations of use of the Sub-Premises.
(2) Vacating the Sub-Premises without the evident intention to
reoccupy same, an abandonment of the Sub-Premises, or notice of intent to abandon
Sub-Premises expressed in written notice.
(3) CITY's failure to make any payment of monthly rent, or any
other monetary payment required to be made by CITY hereunder as and when due, the
failure of CITY to provide COUNTY with reasonable evidence of insurance or surety
bond required under this Sub-Lease, or CITY's failure to fulfill any obligation under this
Sub-Lease which endangers or threatens life or property, where such failure continues
10
for a period of three (3) days, or such reasonable time as agreed by COUNTY, following
written notice thereof by or on behalf of COUNTY to CITY.
(4) The failure by CITY to provide COUNTY with reasonable
written evidence (in duly executed original form, if applicable) of any documentation or
information which COUNTY may reasonably require of CITY under the terms of this
Sub-Lease, where any such failure continues for a period of ten (10) days following
written notice by or on behalf of COUNTY to CITY.
(5) A Default by CITY as to any of the other terms, covenants,
conditions or provisions of this Sub-Lease that are to be observed, complied with or
performed by CITY where such Default continues for a period of thirty (30) days after
written notice thereof by or on behalf of COUNTY to CITY; provided, however, that if the
nature of CITY's Default is such that more than thirty (30) days are reasonably required
for its cure, then it shall not be deemed to be a Breach of this Sub-Lease by CITY if
CITY commences such cure within said thirty (30) day period and thereafter
continuously and diligently prosecutes such cure to completion.
(6) A Default by CITY as to the terms of any Approved
Encumbrance, where such Default continues for a period of thirty (30) days after written
notice thereof by or on behalf of COUNTY;
b. Remedies.
(1) Other than when a different time or remedy is specifically
provided, such as for the payment of rent, if CITY fails to perform any affirmative duty or
obligation of CITY under this Sub-Lease within ten (10) days after written notice to CITY
(or in case of an emergency, without notice), COUNTY may at its option (but without
obligation to do so), perform such duty or obligation on CITY's behalf, including, but not
limited to, the obtaining of reasonably required, insurance policies, or governmental
licenses, permits or approvals. The costs and expenses of any such performance by
COUNTY shall be due and payable by CITY to COUNTY within ten (10) days of
COUNTY's demand.
(2) In the event of a Breach of this Sub-Lease by CITY (as
defined above), with or without further notice or demand, and without limiting COUNTY
in the exercise of any right or remedy which COUNTY may have by reason of such
Breach, COUNTY may:
(i) Terminate CITY's right to possession of the Sub-
Premises by any lawful means, in which case this Sub-Lease and the term hereof shall
terminate and CITY shall immediately surrender possession of the Sub-Premises to
COUNTY. In such event COUNTY shall be entitled to recover from CITY: (i) the worth
at the time of the award of the unpaid rent which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the unpaid rent
which would have been earned after termination until the time of award exceeds the
amount of such rental loss that the CITY proves could have been reasonably avoided;
(Hi) the worth at the time of award of the amount by which the unpaid rent for the
11
balance of the Term after the time of award exceeds the amount of such rental loss that
the CITY proves could be reasonably avoided; and (iv) any other amount necessary to
compensate COUNTY for all the detriment proximately caused by the CITY's failure to
perform its obligations under this Sub-Lease or which in the ordinary course of things
would be likely to result therefrom, including, but not limited to, the cost of recovering
possession of the Sub-Premises, expenses of reletting, including necessary renovation
and alteration of the Sub-Premises, and that portion of any leasing commission paid by
COUNTY in connection with this Sub-Lease and applicable to the unexpired term of this
Sub-Lease. The worth at the time of award of the amount referred to in provision (iii) of
the immediately preceding sentence shall be computed by discounting such amount at
the discount rate of the Federal Reserve Bank of San Francisco or the Federal Reserve
Bank District in which the Sub-Premises are located at the time of award plus one
percent (1%). COUNTY's attempt to mitigate damages caused by CITY's Default or
Breach of this Sub-Lease shall not waive COUNTY's right to recover damages under
this Paragraph. If termination of this Sub-Lease is obtained through the provisional
remedy of unlawful detainer, COUNTY shall have the right to recover in such
proceeding the unpaid rent and damages as are recoverable therein, or COUNTY may
reserve the right to recover all or any part thereof in a separate suit for such rent and/or
damages.
(ii) Continue the Sub-Lease and CITY's right to
possession in effect under California Civil Code Section 1951.4 after CITY's Breach
and recover the rent as it becomes due, provided CITY has the right to sublet or assign,
subject only to reasonable limitations. COUNTY and CITY agree that the limitations on
assignment and subletting in this Sub-Lease are reasonable. COUNTY's maintenance
of the Sub-Premises or efforts to relet the Sub-Premises, or the appointment of a
receiver to protect the COUNTY's interest under this Sub-Lease, shall not constitute a
termination of the CITY'S right to possession.
(iii) Pursue any other remedy now or hereafter available
to COUNTY under the laws or judicial decisions of the State of California.
(3) If, at any time CITY is in default in monthly rent or fees or
any other provision for forty-five (45) days, or if CITY defaults on any provision(s) three
(3) times within any twelve (12) consecutive months, COUNTY may terminate this Sub-
Lease on ten (10) days notice.
c. Survival of Indemnity Provisions. The expiration or termination
of this Sub-Lease and/or the termination of CITY's right to possession shall not relieve
CITY from liability under any indemnity provisions of this Sub-Lease as to matters
occurring or accruing during the Term or by reason of CITY's occupancy of the Sub-
Premises.
d. CITY's Personal Property. Immediately upon termination of this
Sub-Lease, CITY covenants and agrees to remove all of CITY's personal property,
machinery or fixtures from the Sub-Premises. If CITY fails to remove any such personal
property, COUNTY may remove such personal property and place the same in storage at
the expense of CITY and without liability to COUNTY for losses. CITY agrees to pay
12
COUNTY for all expenses incurred by COUNTY in connection with the removal, and
storage charges of CITY's personal property, including attorney's fees and court costs.
Alternatively, COUNTY may at its option and on not less than ten (10) days written notice
to CITY sell all or any part of said personal property at public or private sale for such
prices as COUNTY may obtain. COUNTY shall apply the proceeds of any such sale to
the amounts due from CITY under this Sub-Lease and to any expense incidental to such
sale. Any surplus arising from such sale shall be refunded to CITY.
e. No Waiver by County. COUNTY's receipt of any rent or of any
other sum of money paid by CITY after the termination and forfeiture of this Sub-Lease,
or after the giving by COUNTY of any notice to effect such termination, shall not waive the
Default, reinstate, continue or extend the Term of this Sub-Lease, or destroy or impair the
efficacy of COUNTY's notice of termination, unless otherwise agreed in writing by
COUNTY. COUNTY's acceptance of the keys to the Sub-Premises or any other act of the
COUNTY or its agents or employees during the Term of this Sub-Lease shall not be
deemed to be an acceptance or a surrender of the Sub-Premises, unless otherwise
agreed in writing by COUNTY.
45. HOLDING OVER: If the CITY continues in possession of the Sub-
Premises after the expiration of the Term or after any termination of this Sub-Lease prior
to the expiration of the Term, and if said occupancy is with the consent of the COUNTY,
then CITY shall be deemed to be holding the Sub-Premises on a month-to-month
tenancy subject to all the provisions of this Sub-Lease.
46. INTERPRETATIONS: As this agreement was jointly prepared by both
parties, the language in all parts of this agreement shall be construed, in all cases,
according to its fair meaning, and not for or against either party hereto.
47. ENTIRE AGREEMENT: This agreement, including recitals, constitutes a
single, integrated contract, expressing the entire agreement and understanding of the
parties concerning the subject matter of this agreement, and this agreement supersedes
and replaces all prior understandings, negotiations, proposed agreements and
agreements, whether oral or written, express or implied.
* * * * * *
* * * * * *
* * * * * *
******
13
48. AUTHORIZED SIGNATORS: The parties to this Sub-Lease represent that
the signators executing this Sub-Lease are fully authorized to enter into this agreement.
END OF SUBLEASE TERMS.
CITY: CITY OF SAN BERNARDINO
BY:~~
P tri J. orris
Title: Mayor
Date:
Date: mf2J J~, !l(;()(o
Approved as to Legal Form:
BY~~
Attest:
BY:~ );.~
Ra hel Clark
RONALD D. REITZ, County Counsel
San Bernardino County, California
Title: City Clerk
--
Date: ~ I 'i I Z () 0 ~
Date: J .~ /- ,/C
APPROVED AS TO FORM
JAMES F. PENMAN
City Attorney
Byr ).~
Date: ~ /2 2.-#6 ,
/
14
EXHIBIT "A"
Sub-Premises Description
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PREMISES LEASED
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EXHIBIT "B"
LIST OF FORMER COUNTY OFFICIALS
INSTRUCTIONS: List the full name of the former COUNTY Administrative
Official, the title/description of the Official's last position with the COUNTY, the
date the Official terminated COUNTY employment, the Official's current
employment and/or representative capacity with the CITY, the date the Official
entered CITY's employment and/or representation.
OFFICIAL'S NAME:
REQUIRED INFORMATION