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HomeMy WebLinkAbout2007-321 RESOLUTION NO. 2007-121 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT FOR SHARED USE OF THE RECREATION FACILITIES AT THE GALAXY BUILDING AND NORTON RECREATION CENTER FOR THE PERIOD AUGUST 1,2007 THROUGH JULY 31, 2009 AND RATIFYING ALL ACTION TAKEN BETWEEN AUGUST 1,2007 AND THE APPROVAL OF THE RESOLUTION. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized to execute a contractual agreement with the City of San Bernardino and the San Bemardino City Unified School District for shared use of the Galaxy Building and Norton Recreation Center, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2: The term of this agreement is August 1,2007 through July 31,2009 with the option of a one-year renewal; therefore, any action taken between August 1, 2007 and the date that this Resolution is executed is hereby ratified. SECTION 3. The authorization granted hereunder shall expire and be void and of no further effect if the agreement is not executed by both parties and returned to the office of the City Clerk within sixty (60) days following the effective date ofthe resolution. III III III III III III III ". '. . RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT FOR SHARED USE OF THE RECREATION FACILITIES AT THE GALAXY BUILDING AND NORTON RECREATION CENTER FOR THE PERIOD AUGUST 1,2007 THROUGH JULY 31, 2009 AND RATIFYING ALL ACTION TAKEN BETWEEN AUGUST 1,2007 AND THE APPROVAL OF THE RESOLUTION. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor joint and Common Council of the City of San Bernardino at a Tegul~T meeting thereof, held on the 6th day of August Council Members: AYES ESTRADA X BAXTER X X BRINKER DERRY X KELLEY X X V AN JOHNSON MC CAMMACK X - , 2007, by the following vote, to wit: NAYS ABSTAIN ABSENT C{--e1. { 1:J. C~, ..--Ie Rachel G. Clark, City Clerk The foregoing resolution is hereby approved this ~ day of August ,2007. Patric J. Morris, . f San Bernardino Approved as to form: B't1~ 2007-321 EXHIBIT "A" CONTRACTUAL AGREEMENT WHEREAS, the City of San Bernardino ("CITY") received title to certain real property from the United States of America by quit claim deed recorded March 17, 1995: and, WHEREAS, the CITY and San Bernardino City Unified School District ("S.B.C.U.S.D") and Public Safety Academy Charter School desire to enter into a contractual agreement for S.B.C.U.S.D. to use of a portion of the real property located at 1494 & 1554 E. Art Townsend Drive, Buildings 178 & 812, San Bernardino, California ("Premises"). NOW, THEREFORE, the parties agree as follows: 1. PREMISES: CITY hereby grants to S.B.C.U.S.D. the lease rights, hereinafter specified, to be exercised within the Premises, consisting of those portions of the following buildings: Building No. 178, commonly referred to as the Galaxy Building, including the following: use of the second floor, with the exception of one office totaling 582 square feet, stairs, emergency exit, ALL three first floor classrooms, two storage rooms and the windowed office area, totaling 10,009 square feet; Building No. 182, commonly referred to as the Norton Gym, including the following: gym, lobby, restrooms, and foyer area, totaling 10,639 square feet. Attached hereto and incorporated herein is Exhibit A, labeled "Premises," which depicts the lease areas and the facilities and equipment therein. 2. TERM: The term of this agreement shall be for a period of TWO years, commencing August 1, 2007, and end on July 31, 2009, with a one-year option to renew the contractual agreement with written mutual agreement of both CITY and S.B.C.U.S.D. 3. RENT: A rental fee of $4,000 will be charged monthly for the term of the lease agreement to be payable by the S.B.C.U.S.D. The rental fee will be payable to the "City of San Bernardino" by the first of each month. CITY will bill S.B.C.U.S.D. on a quarterly basis. S.B.C.U.S.D. shall reimburse CITY for 90% of all utility costs (e.g., water, electric, refuse and natural gas) for the Galaxy Building and 48% of the utility costs for Norton Recreation Center (Gymnasium use). See Section 12 Utilities within this Agreement. 4. RETURN OF PREMISES: The S.B.C.U.S.D. agrees that it will, upon any termination of this Agreement, return the Premises in as good condition and repair as the Premises now are or shall hereafter be put, reasonable wear and tear excepted. 5. TAXES: CITY shall pay all real property taxes, and general and special assessments levied and assessed against the Premises. 6. USE: The buildings shall be used by S.B.C.U.S.D. and CITY on an exclusive, common or scheduled basis as described below: a. The Galaxy Building will be used as follows: (1) S.B.C.U.S.D. shall have use of the Galaxy Building within the following areas: 4827-1712-4865.1 Second Floor Storage room Stairs Emergency Exit Storage room Windowed office area First Floor Classroom First Floor Classroom First Floor Classroom Page I ofS 6.425 sq. ft. 170 sq. ft. 149 sq. ft. 112 sq. ft. 173 sq. ft. 261 sq. ft. 1,144 sq. ft. 770 sq. ft. 805 sq. ft. 2007-321 Total = 10,000 square feet (2) The CITY will have exclusive rights of the following areas on the first floor: Kitchen area First floor office First floor office The Ballroom Total square footage = 408 sq. ft. 143 sq. ft. 137 sq. ft. 4,700 sq. ft. 5,388 square feet (3) S.B.C.U.S.D. will have joint use of the first floor common areas consisting of: Entry foyer Reception area Outside kitchen area Hallway area Restrooms Total square footage = 740 sq. ft. 1,034 sq. ft. 536 sq. ft. 167 sq. ft. 402 sq. ft. 2,879 square feet (4) The CITY will have control of the use of the "Ballroom". However, S.B.C.U.S.D. may use the "Ballroom" on a scheduled basis, by contacting the CITY first. CITY's usage may include weddings, receptions, business meetings and/or other uses by third parties. Citizens renting the "Ballroom" will be responsible for leaving it in the condition received and for removing all trash from the property. (5) S.B.C.U.S.D. will have exclusive use of the areas outlined in Section 6.a. subsections (1) and (3) for business purposes only, with the exception of one office for the Park and Recreation Staff which totals 582 square feet located on the second floor, Monday through Friday from 6:00 a.m. - 8:00 p.m. except for S.B.C.U.S.D. observed holidays. b. Gymnasium - 10,639 total square feet to be utilized as follows: (1) S.B.C.U.S.D. will have a right to use the gymnasium (9072 sq. ft.), the lobby area (848 sq. ft.), foyer (293 sq. ft.), and men's/woman's restrooms (426 sq. ft.), totaling 10,639 square feet. S.B.C.U.S.D. will have the right to use these facilities Monday through Friday from 1 :00 p.m. to 3:00 p.m., with the exception of CITY observed holidays. (2) CITY will have exclusive rights of these facilities at all other times. 7. HEALTH. SAFETY AND FIRE CODE REQUIREMENTS: CITY will insure the Premises meet the applicable requirements of the Health, Safety, Fire, and Building Codes for Public Buildings, including any requirements for a notice of completion, certificate of occupancy and the Americans with Disabilities Act ("ADA"). Should the continued occupancy of the Premises be in anyway prejudiced or prevented due to changes in the ADA, the Health, Safety, or Fire Codes for Public Buildings, the CITY herein shall correct, update and comply with said changes at CITY's cost. 8. SIGNS: S.B.C.U.S.D. will be permitted to display from the windows and/or marquee of the Premises only such sign or signs as are not otherwise prohibited by law. 9. MAINTENANCE: CITY, at its sole cost, shall maintain in good condition all portions of the Premises, including but not limited to the following: Page 2 of8 a. 4827-1712-4865.1 2007-321 (1) The structural parts of the building and other improvements that are a part of the Premises, which include the foundations, bearing and exterior walls (including glass and doors), subflooring, and roof; (2) The electrical, plumbing, and sewage systems, including, without limitation, those portions of the systems owned or controlled by the CITY lying outside the Premises; (3) Window frames, gutters, and downspouts on the building and other improvements that are a part of the Premises; (4) Air conditioning, heating and ventilating systems servicing the Premises, and; (5) Outside lighting, major irrigation repairs, tennis court nets and windscreens. (6) CITY, at its sole cost, shall repair the Premises if they are damaged by (1) causes over which S.B.C.U.S.D. has no control; (2) acts or omissions of CITY, or its authorized representatives. b. S.B.C.U.S.D., at its sole cost, shall be responsible for any and all routine maintenance in and around the Galaxy Building and the grounds of the Norton Recreation Center, including the parking lot areas, planter beds, entranceways, and lawn areas. These areas will also include, but not be limited to: (1) Exterior (A) Paint over graffiti as required. (B) Mow and edge lawns. (C) Weed flower & planter beds. (D) Sweep and/or blow sidewalks and all parking lots (E) Trim bushes and low hanging tree branches. (F) Clean windows. (G) Remove trash and leaves. (H) Make minor irrigation repairs and adjustments. (I) Remove dead/diseased plant materials, trees, shrubs and/or other vegetation. These items will be done on a set schedule at a minimum once per week. S.B.C.U.S.D. agrees to provide the CITY with a monthly maintenance schedule in writing by the 1 st working day of each month for said month (ex: Monday, September 3, 2007 for month of September 2007). Failure of S.B.C.U.S.D. to perform routine maintenance as noted within a 30-day cure date following notice by the CITY could be treated as a breach of contract, at the CITY's discretion. (2) Interior: Janitorial services/minor repairs which shall include, but are not limited to: 4827-1712-4865.1 Page 3 ofB 2007-321 (A) Vacuum rugs. (B) Clean and dust, mop floors. (C) Clean restrooms and provide janitorial supplies. (D) Remove trash. (E) Clean windows and walls. (F) Make minor repairs, e.g., unplugging a stopped toilet, and replacing light bulbs, which do not require ladders, and replacing grommets in a leaking faucet. The servicing of fire extinguishers. (G) The servicing ottire extinguishers. (H) Maintenance of burglar and fire alarm systems and the total costs thereof, including the provision of an atter-hours contact to the fire/alarm company dispatch. S.B.C.U.S.D. agrees to supply a 75% FTE (job classification - custodian) to maintain all of these items for the Galaxy Building. S.B.C.U.S.D. agrees to supply CITY with a weekly written work schedule of hours that this custodian is working on a weekly basis according to the following timellne (ex: provide a work schedule for work week of Monday, September 3, 2007 through Sunday, September 10,2007 by 4:00pm, Friday, August 31,2007). (3) Personal property shall be maintained by S.B.U.S.D. in the same condition as it was upon commencement of this agreement, reasonable wear and tear excluded. S.B.C.U.S.D. and CITY agree to inspect and indicate the condition of personal property upon commencement of this agreement. (4) S.B.C.U.S.D. may use supervised youth, such as those assigned hours of community service, for maintenance and janitorial work. (5) S.B.C.U.S.D. will make repairs if damages are due to (a) causes over which S.B.C.U.S.D. has control; (b) acts or omissions of S.B.C.U.S.D., or its authorized representatives; or (c) the direct result of S.B.C.U.S.D. use. 10. ALTERATIONS: S.B.C.U.S.D. shall not make any structural or exterior improvements or alterations to the Premises without CITY's written consent. Any such alterations made shall remain on and be surrendered with the Premises on expiration or termination of the agreement. 11. FIXTURES: S.B.C.U.S.D. shall have the right during the term(s) of this agreement to install shelving and fixtures, and make interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures, improvements, and alterations shall remain the property of the S.B.C.U.S.D. and may be removed by the S.B.C.U.S.D. during the term(s) of this agreement or within a reasonable time thereafter, provided that the S.B.C.U.S.D. restores the Premises to the condition as it existed at the commencement of this agreement, reasonable wear and tear excluded, or the S.B.C.U.S.D. in its sole discretion may elect to surrender all or any part of such shelving, fixture, improvements and alterations to the CITY, in which case S.B.C.U.S.D. will not be accountable for restoring the Premises. Any such election to surrender must be in writing, but need not be accepted by CITY to be effective. 12. UTILITIES: CITY shall furnish to the Premises and pay all service charges and related taxes for electricity, water, sewer, gas and trash services. CITY will determine the allocable cost per 4827-1712-4865.1 Page 4 of8 2007-321 square foot for both buildings for utility services on an annual basis. CITY will bill S.B.C.U.S.D. on a quarterly basis. S.B.C.U.S.D. shall reimburse CITY for 90% of all utility costs (Le. water, electrical, refuse and natural gas) for the Galaxy Building and 48% of the utility costs for the Norton Recreation Center (Gymnasium use). 13. HOLD HARMLESS: a. S.B.C.U.S.D. agrees to indemnify, defend (with counsel approved by CITY) and hold harmless the CITY, its authorized officers, agents, volunteers and employees from any and all claims, actions, losses, damages, and/or liability arising out of this lease from any cause whatsoever including the acts, errors or omissions of any person and for any costs of expenses incurred by the CITY on account of any claim therefore except where such indemnification is prohibited by law. b. CITY agrees to indemnify, defend (with Board approved by S.B.C.U.S.D.) and hold harmless the S.B.C.U.S.D., its authorized officers, agents, volunteers and employees from any and all claims, actions, losses, damages, and/or liability arising out of this agreement from any cause whatsoever including the acts, errors or omissions of any person and for any costs of expenses incurred by the S.B.C.U.S.D. on account of any claim therefore except where such indemnification is prohibited by law. 14. INSURANCE: CITY and S.B.C.U.S.D. acknowledges that each party is legally self- insured for Worker's Compensation up to statutory limits. The CITY is self-insured for comprehensive general liability and automobile liability, and each party shall provide a certificate of self-insurance to the other. The CITY and the S.B.C.U.S.D. accept such self-insurance as satisfying the premises liability insurance and workers' compensation requirements under the contract. 15. CITY'S DEFAULT: Except where another time limit is specifically provided, CITY shall be in default of this agreement if it fails or refuses to perform any material provisions of this agreement that it is obligated to perform if the failure to perform is not cured within ninety (90) days after notice of such default has been given by S.B.C.U.S.D. to CITY. If the default cannot be reasonably cured within ninety (90) days, CITY shall not be in default of this agreement if CITY commences to cure the default within the ninety- (90) day period and diligently and in good faith continues to cure the default. 16. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT REMEDIES ON CITY'S DEFAULT: S.B.C.U.S.D., at anytime after CITY is in default, can terminate this agreement or can cure the default at CITY's cost. IF S.B.C.U.S.D. at anytime, by reason of CITY's default, pays any sum or does any act that requires the payment of any sum, the sum paid by S.B.C.U.S.D. shall be due from CITY to S.B.C.U.S.D. within five (5) days of notice of such sum (including charges for S.B.C.U.S.D. employees and equipment), and if paid at a later date shall bear interest at the maximum rate the S.B.C.U.S.D. is permitted by law to charge from the date the sum is paid by S.B.C.U.S.D. until S.B.C.U.S.D. is reimbursed by CITY. 17. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT DEFAULT: The occurrence of anyone or more of the following events shall continue a default and breach of this agreement by S.B.C.U.S.D.: a. The vacating for more than ninety (90) consecutive days or abandonment of the Premises by S.B.C.U.S.D.. b. The failure by S.B.C.U.S.D. to perform any material provisions of this agreement to be performed by S.B.C.U.S.D. where such failure shall continue for a period of thirty (30) days after notice by CITY to S.B.C.U.S.D.; provided, however, that if the nature of S.B.C.U.S.D.'s default is such that more than thirty (30) days are reasonably required for its cure, then S.B.C.U.S.D. shall not be deemed to be in default if S.B.C.U.S.D. commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. The purpose of this Page 5 of8 4827-1712-4865.1 2007-321 notice requirement is to extend the notice requirements of the unlawful detainer statutes of California. 18. CITY'S REMEDIES ON S.B.C.U.S.D. DEFAULT: In the event of any material default by S.B.C.U.S.D. which is not cured by S.B.C.U.S.D., CITY may, at its election, terminate this agreement by giving S.B.C.U.S.D. thirty (30) days notice of termination. The purpose of this notice requirement is to extend the notice requirement of the unlawful detainer statutes of California. On termination of the agreement for default pursuant to this paragraph, CITY shall have the right to recover from S.B.C.U.S.D. Any amount plus court costs necessary to compensate the CITY for all detriment proximately caused by S.B.C.U.S.D.'s default which CITY proves could not have been reasonably avoided. 19. CITY'S ACCESS TO PREMISES: CITY and its authorized representatives shall have the right to enter the Premises at all reasonable times. 20. NOTICES a. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give the other party or any other person 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) S.B.C.U.S.D. working days from the time of mailing if mailed as provided in this paragraph. TO CITY: City of San Bernardino ATTN: Kevin Hawkins, Director Parks, Rec. & Community Services Department 547 North Sierra Way San Bernardino, CA 92410-4816 TO S.B.C.U.S.D.: San Bernardino City Unified School District ATTN: Mohammed Islam, Assistant Superintendent 777 N. "F" Street San Bernardino, CA 92410 21. PRIOR AGREEMENT: This agreement contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this agreement, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. 22. WAIVERS: No waiver by either party of any provisions of this agreement 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. 23. AMENDMENTS: No provision of this agreement may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successor in interest, expressing by it terms an intention to modify this agreement. 24. SUCCESSORS: This agreement shall insure to the benefit of and be binding upon the heirs, executors, administrators, successors, and assigns of the parties hereto. 25. SEVERABILITY: If any word, phrase, clause, sentence, paragraph, section, article, part or portion of this agreement 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 lease or any other portion thereof. 4827-1712-4865.1 Page 6 of8 ." 2007-321 26. TIME OF ESSENCE: Time is of the essence of each provision of this agreement, 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. 27. QUIET ENJOYMENT: Subject to the provisions of this agreement and conditioned upon performance of all the provisions to be performed by S.B.C.U.S.D. hereunder, CITY shall secure to S.B.C.U.S.D. during the agreement term the quiet and peaceful possession of the Premises and all right and privilege appertaining thereto. 28. 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. 29. CONSENT: Whenever consent or approval of either party is required that party shall not unreasonably withhold such consent or approval. 30. reference. EXHIBITS: All exhibits referred to are attached to this agreement and incorporated by 31. LAW: This agreement shall be construed and interpreted in accordance with the laws of the State of California. 32. VENUE: The parties acknowledge and agree that this agreement was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue for any action or claim brought by any party to this agreement will be in San Bernardino County. Each party hereby waives any law or rule of court, which would allow them to request or demand a change of venue. If any action or claim concerning this agreement is brought by any third party, the parties hereto agree to use their best efforts to obtain a change of venue to the Central District of San Bernardino County. 33. ATTORNEY'S FEES AND COSTS: If any legal action is instituted to enforce or declare any party's rights hereunder, each party, including the prevailing party, shall bear its own costs and attorney's fees. This paragraph shall not apply to those costs and attorney's fees directly arising from any third party legal action against a party hereto and payable under Paragraph 13, "HOLD HARMLESS", 34. RIGHT TO TERMINATE: The S.B.C.U.S.D. or CITY shall have the right to terminate this agreement at any time. S.B.C.U.S.D. or CITY shall give the other notice of any termination pursuant to this paragraph at least thirty (30) days prior to the date of termination. In the event either entity terminates this agreement pursuant to this paragraph, neither entity will be required to compensate the other entity except for that which is included in Paragraph 12, "UTILITIES". 35. CAPTIONS. TABLE of CONTENTS AND COVER PAGE: The paragraph captions, table of contents and the cover page of this lease shall have no effect on its interpretations. 36. SURVIVAL: The obligations of the parties which, by their nature, continue beyond the term of this lease, will survive the termination of this lease. 37. 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 it fair meaning, and not for or against either party hereto. END OF AGREEMENT TERMS. 4827-1712-4865.1 Page 7of8 2007-321 BERNARDINO NARDINO CITY UNIFIED SCHOOL ham mad Z. Islam A sistant Superintendent B siness and Finance X-CO"" 07 Dated: Title: City Manager Dated: f.fo7 SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE BOARD OF THE SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT. Attest: Xy: BY~ -b.~ - Assistant Superinten ent Title: City Clerk ~~'~IJ"r ~, Dated: Date: ~ -(0 -07 APPROVED AS TO FORM By: Dated: Dated: (Contractual Agreement Sen Bernardino City Unified School District and City of San Bernardino (Norton Recreation Center & Galaxy - As of July 16. 2007) , 4827-1712-4865.1 Page 8 of8