HomeMy WebLinkAbout2009-314
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RESOLUTION NO. 2009-314
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO RESCINDING RESOLUTION 2009-300, AND AUTHORIZING
THE CITY MANAGER TO EXECUTE A REVISED LEASE AGREEMENT WITH
THE COUNTY OF SAN BERNARDINO FOR THE LEASE OF A PORTION OF THE
DELMANN HEIGHTS COMMUNITY CENTER TO BE USED FOR THE HEAD
ST ART PROGRAM.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That Resolution 2009-300 is hereby rescinded; and
SECTION 2. That the City Manager is hereby authorized to execute a revised Lease
Agreement with the County of San Bernardino for the lease of a portion of the Delmann
Heights Community Center to be used for the Head Start Program, a copy of which is attached
hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at
length; and
SECTION 3. That 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 ninety (90) days following the effective date of the resolution.
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2009-314
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO RESCINDING RESOLUTION 2009-300, AND AUTHORIZING
2 THE CITY MANAGER TO EXECUTE A REVISED LEASE AGREEMENT WITH
THE COUNTY OF SAN BERNARDINO FOR THE LEASE OF A PORTION OF THE
3 DELMANN HEIGHTS COMMUNITY CENTER TO BE USED FOR THE HEAD
START PROGRAM.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 joint
and Common Council of the City of San Bernardino at a regular
meeting thereof, held
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on the 8th
day of September
,2009, by the following vote, to wit:
Council Members: AYES
ESTRADA X
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BAXTER X
X
BRINKER
SHORRET X
KELLEY X
VAN JOHNSON X
MC CAMMACK X
NA YS ABSTAIN ABSENT
C?,~ k. UaJ
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Rachel G. Clark. City Clerk
The foregoing resolution is hereby approved this 9m day of September ,2009.
Morris, Ma
an Bernardino
Approved as to form:
FAS
f- New Vendor Code Dcpt. o~r03~er
f- Change SC
Cancel
County Department Dept. Orgo. Contractor's License No.
Real Estate Services Department
County Department Contract Representative T e1ephane Total Contract Amount
David H. Slauqhter, Director (909) 387-7813 $
o Encumbered Contract Type
o Revenue D Unencumbered D Other:
If not encumbered or revenue contract type, provide reason:
Commodity Code Contract Start Date Contract End Dale Original Amount Amendment Amount
$
Fund Dept. Organization Appr. Obj/Rcv Source GRC/PROJ/JOB No. Amount
. $
Fund Dept. Organization Appr. ObjlRev Source GRCIPROJ/JOB No. Amount
$
Fund Dcpt. Organization Appr. ObjlRev Source GRC/PROJ/JOB No. Amount
$
Project Name Estimated Payment Total by Fiscal Year
SB-PSD FY Amount lID FY Amount 110
2969 Flores Strcet
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(;;;'~n P.,..rn",r,linn r^ - -
2009-314
FOR COUNTY USE ONL Y
O-RTGINAL
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County of San Bernardino
CONTRACT TRANSMITTAL
CONTRACTOR City of San Bernardino
FederallD No. or Social Securily No.
Contractor's Representative Robert Lennox, Parks, Recreation & Community Services Department
Address 201-A N. "E" Street, Suite 103, San Bernardino. CA 92401
Phone
(909) 38405931
Nature of Contract: (Briefly describe the general terms of the contract) This Lease Agreement is for a period of two (2) years
with five one-year options to extend. Leased Premises consist of 2, I 60 square feet of classroom and office space and256
square feet of playground area. Monlhly rent is $1,905 ($O.88/sq. ft.lmonth) modified gross.
City to provide all exterior maintenance and all utitities. County shall provide all interior maintenance and reimburse City for
36% of the cost of utilities for the entire Community Center for the first year of the initial tenn. Thereafter, County's prorata
share of utilities will not exceed the prior year's costs by more than three percent (3%).
~ SC0f~na1ur{;,
County Counsc
paqe..
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Date
(Attach this transmittal to all contracts not prepared on the "Standard ContractUfarm.)
Approved as to Legal Foml (sign in blue ink)
Reviewed as to Contract Compliance
Date
Date
Auditor/Controller-Recorder Use Onl
o Contract Database 0 FAS
Input Date Keyed By
EXHIBIT "A"
Revised 1/13/2009
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2009-314
COUNTY OF SAN BERNARDINO
LEASE AGREEMENT
CITY:
CITY OF SAN BERNARDINO
Parks, Recreation & Community Services Department
20l-A N. "E" Street, Suite 103
San Bernardino, CA 9240 I
COUNTY:
COUNTY OF SAN BERNARDINO
Real Estate Services Department
825 East Third Street
San Bernardino, CA 92415-0832
ADDRESS:
2969 Flores Street
San Bernardino, CA
TERM OF LEASE: Two (2) years with five (5) one-year option(s)
COMMENCEMENT DATE OF LEASE: September 9,2009
COST PER SQUARE FOOT: $0.88, modified gross
COUNTY CONTRACT NUMBER: OC\ -lQ30
REV: 7/7/07 (110568.13)
TYPED: 6/18/09
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2009-314
TABLE OF CONTENTS
PARAGRAPH CAPTION
I PARTIES
2 PREMISES LEASED
3 TERM
4 RENT
5 EXPANSION OF RENTAL SPACE
6 OPTION TO EXTEND TERM
7 RETURN OF PREMISES
8 HOLDING OVER
9 TAXES
10 USE
11 HEALTH, SAFETY & FIRE CODE REQUIREMENTS
12 SIGNS
13 MAINTENANCE
14 ALTERATIONS
15 FIXTURES
16 UTILITIES
17 HOLD HARMLESS
18 INSURANCE SPECIFICATIONS
19 DESTRUCTION OF PREMISES
20 CITY'S DEFAULT
21 COUNTY'S REMEDIES ON CITY'S DEFAULT
22 COUNTY'S DEFAULT
23 CITY'S REMEDIES ON COUNTY'S DEFAULT
24 CITY'S ACCESS TO PREMISES
25 NOTICES
26 ASSIGNMENT
27 INCORPORATION OF PRIOR AGREEMENT
28 WAIVERS
29 AMENDMENTS
30 SUCCESSORS
31 SEVERABILITY
32 TIME OF ESSENCE
33 QUIET ENJOYMENT
34 PROVISIONS ARE COVENANTS & CONDITIONS
35 CONSENT
36 EXHIBITS
37 LAW
38 VENUE
39 REMEDIES: WAIVER
40 ATTORNEYS' FEES AND COSTS
42 COUNTY'S RIGHT TO TERMINATE LEASE
43 CITY'S IMPROVEMENTS
44 CAPTIONS, TABLE OF CONTENTS & COVER PAGE
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2009-314
Table of Contents
Page -2-
45 SURVIVAL 12
45 FORMER COUNTY OFFICIALS 12
46 ESTOPPEL CERTIFICATES 12
47 HAZARDOUS SUBSTANCES 12
48 PUBLIC RECORDS DISCLOSURE 13
49 CONDITION OF PREMISES 14
50 CONDEMNATION 14
51 MATERIAL MISREPRESENTATION 15
52 INTERPRETATIONS 15
53 COUNTERPARTS 15
54 USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF
2009 FUNDS AND REQUIREMENTS 16
55 SCHEDULE OF EXPENDITURE OF FEDERAL A WARDS 16
56 AUTHORIZED SIGNA TORS 17
Exhibit "A", List of Former County Officials
Exhibit "B", Estoppel Certificate
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2009-314
LEASE AGREEMENT
I. PARTIES: This Lease Agreement ("Lease") is made between City of San Bernardino
("CITY"), and the County of San Bernardino ("COUNTY"), who agree as follows:
2. PREMISES LEASED: CITY leases to COUNTY and COUNTY leases from CITY
2,160 square feet of building/classroom space encompassing all existing Head Start program and
office space in the Delmann Heights Community Center and 256 square feet of playground area,
real property, and other improvements, with parking, including handicapped parking, located at
2969 Flores Street, San Bernardino, CA ("Premises").
3. TERM:
a. Initial Term. The Lease's initial term ("Initial Term") shall commence on
September 9,2009 ("Commencement Date") and end on August 31, 2011 ("Ending Date").
b. Early Access. CITY shall allow the COUNTY early access ("Early Access") to
the Premises at any time prior to the Commencement Date for the purpose of the COUNTY or its
representatives installing communications equipment, modular furniture, alarms and such other
items that the COUNTY may reasonably desire.
4. RENT:
a. COUNTY shall pay to CITY the following monthly rental payments in arrears on
the last day of each month, commencing when the term commences, continuing during the term:
September 9,2009 thru September 30,2009 - prorated payment of$I,397.00.
October 1,2009 thru August 31,2010 - monthly payments of$I,905.00
September I, 2010 thru August 31, 2011 - monthly payments of $1 ,962.00
b. Rent for any partial month shall be prorated based on the actual number of days of
the month. CITY shall accept all rent and other payments from COUNTY under this Lease via
electronic funds transfer (EFT) directly deposited into the CITY's designated checking or other
bank account. CITY shall promptly comply with directions and accurately complete forms
provided by COUNTY required to process EFT payments.
5. EXPANSION OF RENTAL SPACE:
There is no expansion space available in this Lease.
6. OPTION TO EXTEND TERM:
a. CITY gives COUNTY the option to extend the term of the Lease on the same
provisions and conditions, except for the monthly rent, for five (5) one-year periods ("extended
terms") following expiration of the Initial Term, by COUNTY giving notice of its intention to
exercise the option to CITY prior to the expiration of the preceding term or during any holding
over pursuant to Paragraph 8, HOLDING OVER. The rent for each extended term shall be
2009-314
adjusted by good faith negotiation of the parties to the fair market rental rate then prevailing
based upon the rental rates of comparable leased property in San Bernardino County.
7. RETURN OF PREMISES: The COUNTY agrees that it will, upon any termination of
this Lease, return the Premises in as good condition and repair as the Premises now are or shall
hereafter be put; reasonable wear and tear excepted.
8. HOLDING OVER: In the event the COUNTY shall hold over and continue to occupy
the Premises with the consent of the CITY, expressed or implied, the tenancy shall be deemed to
be a tenancy from month-to-month upon the same terms and conditions, including rent, as
existed and prevailed at the time of the expiration of the term of this Lease.
9. TAXES: CITY shall pay all real property taxes, and general and special assessments
levied and assessed against the Premises.
10. USE: COUNTY shall occupy and use the Premises during the term hereof exclusively
for the Head Start Program.
11. HEALTH. SAFETY AND FIRE CODE REOUlREMENTS: As a condition
precedent to the existence of this Lease, CITY, at its sole expense will ensure the Premises meet
the applicable requirements of all Health, Safety, Fire and Building Codes, statutes, regulations
and ordinances for public and governmental buildings, including any requirements for a notice of
completion, certificate of occupancy, California Title 24 requirements and the Americans with
Disabilities Act ("ADA"). Specifically, CITY must ensure there is an accessible path of travel
from public transportation to the Premises pursuant to Title 24. Additionally, CITY warrants that
any improvements on or in the Premises which have been constructed or installed by CITY or
with CITY's consent or at CITY's direction shall comply with all applicable covenants or
restrictions of record and applicable Codes, statutes, regulations and ordinances in effect on the
Commencement Date. CITY also warrants to COUNTY that CITY has no knowledge of any
claim having been made by any governmental agency that a violation or violations of applicable'
Codes, statutes, re!,'Illations, or ordinances exist with regard to the Premises as of the
Commencement Date. Should the continued occupancy of the Premises be in any way
prejudiced or prevented due to changes in the ADA or the Health, Safety, Fire and Building
Codes, statutes, regulations or ordinances for public and governmental buildings, the CITY shall
correct, update and comply with said changes at CITY's cost.
12. SIGNS: COUNTY will display from the windows and/or marquee of the Premises only
such sign or signs as are not prohibited by law.
13. MAINTENANCE:
a. CITY at its cost shall perform such inspections, maintenance and repairs as are
necessary to ensure that all portions of the Premises, including but not limited to the following,
are at all times in good repair and safe condition:
(I) The structural parts of the building and other improvements that are a part
of the Premises, which structural parts include the foundations, bearing and exterior walls
(including glass and doors), subflooring, and roof; and,
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2009-314
(2) The electrical, plumbing, and sewage systems, including, without
limitation, those portions of the systems owned or controlled by CITY lying outside the
Premises; and,
(3) Window frames, gutters, and downspouts on the building and other
improvements that are a part of the Premises; and,
(4) Heating, ventilation and air conditioning (HV AC) systems servicing the
Premises including changing heating and air-conditioning filters every four (4) months.
(5) The grounds, including all parking areas and outside lighting, grass, trees,
shrubbery and other flora; and,
(6) COUNTY, at its cost, shall provide janitorial services, keep the interior of
the Premises in a clean and orderly condition, reasonable wear and tear excluded, and undertake
minor maintenance of the interior Premises such as unstoppage of toilets and changing of light
bulbs and servicing of the fire extinguisher or any other fire suppression equipment attached to
the facility.
b. Without in any way affecting CITY's duty to inspect, maintain and repair the
Premises and regardless of whether any specific notice of need for maintenance or repair is
provided to CITY by the COUNTY, the COUNTY may request specific maintenance or repairs.
Any such request may be made orally, by telephone or otherwise. If, COUNTY gives notice to
CITY of a condition requiring maintenance or repairs, CITY shall use its best efforts to diligently
commence the performance of its maintenance or repair obligations within a reasonable time of
receiving such notice. In the case of an emcrgency, whether or not COUNTY has given notice to
CITY, CITY shall immediately perform its obligations, COUNTY can perform the obligations
and have the right to be reimbursed for the sum COUNTY actually and reasonably expends
(including charges for COUNTY employees and equipment) in the performance of CITY's
obligations. If CITY fails to reimburse COUNTY as required by this paragraph, COUNTY shall
have the right to withhold from future rent due the sum COUNTY has paid until COUNTY is
reimbursed in full for the sum. The remedies set forth in this paragraph are in addition to and do
not in any manner limit other remedies set forth in particular paragraphs of this Lease.
COUNTY shall forward to CITY receipts and/or documentation supporting the amount withheld.
14. ALTERATIONS: Upon thirty (30) days' notice to the CITY and with the CITY's
written consent, COUNTY may place modular units to serve as office and classroom space, or
modifY existing building structures at the Center, but solely at the expense of COUNTY. Any
and all permit acquisition and installation of utility lines are the sole responsibility of the
COUNTY. Upon termination of this Lease, COUNTY shall remove said modules at its own
expense and leave this property in the same condition it was at the time such modules were
placed there, unless the parties mutually agree to retain the modules on the site.
15. FIXTURES: COUNTY shall have the right during the term(s) of this lease to install
shelving and fixtures, to include but not limited to, exterior playground equipment and make
interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures,
playground equipment, improvements, and alterations shall remain the property of the COUNTY
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2009-314
and may be removed by the COUNTY during the term(s) of this lease or within a reasonable time
thereafter, provided that the COUNTY restores the Premises to the condition as it existed at the
commencement of this lease, reasonable wear and tear excluded, or the COUNTY in its sole
discretion may elect to surrender all or any part of such shelving, lixture, improvements and
alterations, however excluding exterior playground equipment, to the LANDLORD, in which
case COUNTY shall have not duty to restore the Premises. Any such election to surrender must
be in writing, but need not be accepted by LANDLORD to be effective.
16. UTILITIES: CITY shall furnish to the Premises and CITY shall pay all service charges
and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities.
COUNTY shall reimburse CITY for its prorata share of the cost of utilities for the Delmann
Heights Community Center, which is 36% during the first year of the initial term. Thereafter,
COUNTY's 36% prorata share of all utility costs will not exceed the prior year's costs by more
than three percent (3%). COUNTY shall furnish and pay for its own security, vending machines
and telephone service including pay telephones.
17. HOLD HARMLESS:
a. CITY agrees to defend, indemnify and hold harmless the COUNTY, its officers,
agents and volunteers from any and all claims, actions, or losses, damages and/or liability
resulting from CITY's negligent acts or omissions arising from the CITY's performance of its
obligations under this Lease.
b. COUNTY agrees to defend, indemnify and hold harmless the CITY, its officers,
agents and volunteers from any and all claims, actions, or losses, damages and/or liability
resulting from COUNTY's negligent acts or omissions arising from the COUNTY's performance
of its obligations under this 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
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 Irom the other
for Workers Compensation benefits paid to an employec, the COUNTY and CITY agree that any
alleged negligence of the employee shall not be construed against the employer of that employee.
18. INSURANCE SPECIFICATIONS:
a. CITY and COUNTY are both self-insured public entities for purposes of
professional liability, general liability and workers' compensation.
b. Subcontractor Insurance Requirements. The Parties a/,'fee to require all parties or
subcontractors, including architects or others it hires or contracts with related to the performance
of this contract ("Subcontractors") to provide insurance covering the contracted operation with
the following limits and naming the Parties as additional insureds. The hiring Party agrees to
monitor and review all such covcrage and assumes all responsibility ensuring that such coverage
is provided as required here.
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(1) Workers' Compensation/Employers Liability - A program of Workers'
Compensation insurance or 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 $250,000 limits covering all persons including volunteers providing
services under this Lease.
(2) Commercial/General Liability Insurance - General Liability Insurance
covering all operations performed by or on behalf of the Subcontractor providing coverage for
bodily injury and property damage with a combincd single limit of not less than One Million
Dollars ($1,000,000), per occurrence. The policy coverage shall include:
(a) Premises operations and mobile equipment.
(b) Products and completed operations.
(c) Broad form property damage (including completed operations).
(d) Explosion, collapse and underground hazards
(e) Personal injury
(t) Contractual\iability
(g) $2,000,000 general aggregate limit.
(3) Automobile Liability Insurance - Primary insurance coverage shall be
written on ISO Business Auto coverage form for all owned, hired and non-owned automobiles or
symbol 1 (any auto). The policy shall have a combined single limit of not less than One Million
Dollars ($1,000,000) for bodily injury and property damage, per occurrence.
If the Subcontractor is transporting one or more non-employee passengers in the
use of this lease, the automobile liability policy shall have a combined single limit of Two
Million Dollars ($2,000,000) for bodily injury and property damage per occurrence.
If the Subcontractor owns no autos, a non-owned auto endorsement to the General
Liability policy described above is acceptable.
(4) Umbrella Liability Insurance - An umbrella (over primary) or excess
policy may be used to comply with limits or other primary coverage requirements. When used,
the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising
injury and shall include a "dropdown" provision providing primary coverage for any liability not
covered by the primary policy. The coverage shall also apply to automobile liability.
(5) If the Subcontractor performs any construction of the Premises, the
contractor shall also procure and maintain coverages as follows:
i. For construction contracts for projects over One Million Dollars
($1,000,000) and less than Three Million Dollars ($3,000,000) require limits of not less than
Three Million Dollars in General Liability and Auto coverage.
ii. For construction contracts for projects over Three Million Dollars
($3,000,000) and less than Five Million Dollars ($5,000,000) require limits of not less than Five
Million Dollars ($5,000,000) in General Liability and Auto coverage.
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111. For construction contracts for projects over Five Million Dollars
($5,000,000) and less than Ten Million Dollars ($10,000,000) require limits of not less than Ten
Million Dollars ($10,000,000) in General Liability and Auto coverage.
iv. Coursc 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.
(6) Additional Insured - All policies, except for the Workers' Compensation,
shall contain endorsements naming the CITY and COUNTY and their officers, employees,
agents and volunteers as additional insureds with respect to liabilities arising out of the use under
this lease hereunder. The additional insured endorsements shall not limit the scope of coverage
for the CITY or COUNTY to vicarious liability but shall allow coverage for the CITY and
COUNTY to the full extent provided by the policy. Such additional insured coverage shall be at
least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.11 85.
(7) Waiver of Subrogation Rights - The Parties shall require the carriers of
required coverages to waive all rights of subrogation against the Parties, their officers,
employees, agents, volunteers, contractors and subcontractors. All general or auto liability
insurance coverage provided shall not prohibit the Parties and their employees or agents from
waiving the right of subrogation prior to a loss or claim. The Parties hereby waive all rights of
subrogation against the other Party.
(8) Policies Primarv and Non-Contributorv - All policies required herein are
to be primary and non-contributory with any insurance or self-insurance proh'Tams carried or
administered by the Parties.
19. DESTRUCTION OF PREMISES:
a. During the term of this Lease, if any casualty, othcr than resulting from
COUNTY's use of the Premises, renders a portion of the Premiscs unusable for the purpose
intended, then CITY shall, at CITY's expense, restore the Premises and repair any damages
caused by such casualty as soon as reasonably possible and this Lease shall continue in full force
and effect. If CITY does not commence the restoration of the Premises in a substantial and
meaningful way within thirty (30) days following the CITY's receipt of written notice of the
casualty, or should CITY fail to diligently pursue completion of the restoration of the Premises,
or if the time required to restore the Premises is estimated to exceed ninety (90) days, COUNTY
may, at its option, terminate this Leasc immediately upon written notice to the CITY. If
COUNTY elects to terminate this Lease pursuant to this provision, COUNTY shall be discharged
of all future obligations under this Leasc.
b. In the event there is a destruction of a portion of the Premises as set out in
subparagraph a above, there shall be an abatement or reduction of the rent between the date of
destruction and the date of completion of rcstoration or the date of termination of this Lease,
whichever comes first. The abatement or rcduction of the rent shall be in proportion to the
degree to which COUNTY's use of the Prcmises is impaired.
c. In the event CITY is required to restore thc Premises as provided in this
paragraph, CITY shall restore, at CITY's expense, any structural or exterior improvements or
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alterations to the Premises made by COUNTY pursuant to Paragraph 14, ALTERATIONS, of
this Lease, but shall not be responsible for restoring any shelving, fixtures, or interior
nonstructural improvements or alteration made by the COUNTY pursuant to Paragraph IS,
FIXTURES, of this Lease.
d. If any casualty resulting from COUNTY's use of the Premises renders the
Premises unusable for the purposes intended, then COUNTY shall, at COUNTY's expense,
restore the Premises and repair any damages caused by such casualty as soon as reasonably
possible and this Lease shall continue in full force and effect.
e. It is the purpose and intent of this paragraph to determine who shall bear the
initial responsibility for restoration of the Premises in the event of any such destruction and not
to determine the party ultimately responsible for the costs of such restoration.
20. CITY'S DEFAULT: Except where another time limit is specifically provided, CITY
shall be in default of this Lease if CITY fails or refuses to perform any material provisions of this
Lease and such failure or refusal to perform is not cured within thirty (30) days following CITY's
receipt of written notice of default from COUNTY. If the default cannot reasonably be cured
within thirty (30) days, CITY shall not be in default of this Lease if CITY commences to cure the
default within the thirty (30) day period and diligently and in good faith continues to cure the
default.
21. COUNTY'S REMEDIES ON CITY'S DEFAULT: COUNTY, at anytime after CITY
is in default, can terminate this Lease immediately upon written notice to CITY or can cure the
default at CITY's cost. If COUNTY at any time, by reason of CITY's default, pays any sum or
does any act that requires the payment of any sum (including charges for COUNTY's employees
and equipment), the sum paid by COUNTY shall be due from CITY to COUNTY within thirty
(30) days of notice of such sum, and ifpaid at a later date shall bear interest at the maximum rate
the COUNTY is pennitted by law to charge from the date the sum was paid by COUNTY until
COUNTY is reimbursed by CITY. If CITY fails to reimburse COUNTY as required by this
paragraph, COUNTY shall have the right to withhold from future rent due the sum COUNTY
has paid until COUNTY is reimbursed in full for the sum and interest on it. The remedies set
forth in this paragraph are in addition to and do not in any manner limit other remedies set forth
in particular paragraphs of this Lease.
22. COUNTY'S DEFAULT: The occurrence of anyone or more of the following events
shall constitute a default and breach of this Lease by COUNTY:
a. The vacating for more than thirty (30) consecutive days or abandonment of the
Premises by COUNTY.
b. The failure by COUNTY to perform any material provisions of this Lease to be
performed by COUNTY, including the payment of rent, where such failure shall continue for a
period of thirty (30) days after notice by CITY to COUNTY; provided, however, that if the
nature of COUNTY's default is such that more than thirty (30) days are reasonably required for
its cure, then COUNTY shall not be deemed to be in default if COUNTY commences such cure
within said thirty (30) day period and thereafter diligently prosecutes such cure to completion.
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The purpose of this notice requirement is to extend the notice requirements of the unlawful
detainer statutes of California.
23. CITY'S REMEDIES ON COUNTY'S DEFAULT:
a. In the event of any default by COUNTY, which is not cured by COUNTY, CITY
may, at its election, terminate this Lease by giving COUNTY 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 Lease for default pursuant to this
paragraph, CITY shall have the right to recover from COUNTY only the following amounts for
any and all damages, which may be the direct or indirect result of such default:
(I) The worth, at the time of the award, of the unpaid rent that has been
earned at the time of termination of this Lease; and,
(2) The worth, at the time of the award, of the amount by which the unpaid
rent that would have been earned after the date of termination of this Lease until the time of
award exceeds the amount of the loss of rent that CITY proves could not have been reasonably
avoided; and,
(3) The worth, at the time of the award, of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of the loss of rent that
CITY proves could not have been reasonably avoided; and,
(4) Any other amount necessary to compensate CITY for all detriment
proximately caused by COUNTY's default which CITY proves could not have been reasonably
avoided.
(5) "The worth, at the time of the award," as used in subparagraphs a(l) and
a(2) of this paragraph, is to be computed by allowing interest at the maximum rate COUNTY is
permitted by law to charge. "The worth, at the time of the award," as referred to in
subparagraph a(3) of this paragraph, is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one
percent (I %).
b. Notwithstanding subparagraph a, above, on any termination of the Lease for
default pursuant to this paragraph, the amount CITY shall have the right to recover from
COUNTY for any and all damages which may be the direct or indirect result of such default shall
not exceed the amount CITY would have been entitled to receive had the COUNTY terminated
the Lease under Paragraph 41, RIGHT TO TERMINATE LEASE.
24. CITY'S ACCESS TO PREMISES: CITY and its authorized representatives shall have
the right to enter the Premises at all reasonable times for any of the following purposes:
a. To determine whether the Premises are in good condition; and,
b. To do any necessary maintenance and to make any restoration to the Premises that
CITY has the right or obligation to perform; and,
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c.
To serve, post, or keep posted any notices required by law; and,
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 Premises to prospective brokers, agents, buyers, tenants, lenders or
persons interested in an exchange, at any time during the term.
CITY shall conduct its activities on the Premises as allowed in this paragraph in a manner that
will cause the least possible inconvenience, annoyance, or disturbance to COUNTY.
25. NOTICES:
a. 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 shall be in writing and
either served personally or sent by prepaid, first-class mail to 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 five calendar days from the time of mailing if mailed as provided in
this paragraph.
CITY's address: City of San Bernardino
Parks, Recreation & Community Services Department
201-A North "E" Street, Suite 103
San Bernardino, CA 92401
COUNTY's address: County of San Bernardino
Real Estate Services Department
825 East Third Street, Room 207
San Bernardino, CA 92415-0832
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26. ASSIGNMENT.
a. COUNTY shall not voluntarily or by operation of law assign, transfer, sublet or
encumber all or any party of the COUNTY's interest in this Lease without the CITY's prior
written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void
and shall constitute a breach of this Lease and cause the termination of this Lease. Regardless of
CITY's consent, no subletting or assignment shall release COUNTY of its obligation to perform
all other obligations to be performed by COUNTY hereunder for the term of this Lease.
b. If, at any time after the COUNTY accepts the Premises, the CITY assigns or
transfers a controlling interest of its rights in the Premises to a third party, CITY must notity
COUNTY of its action at least fifteen (15) COUNTY working days prior to completing any such
action. The new owner must provide COUNTY with evidence of completion of such action.
The parties shall immediately execute an amendment to this Lease stating the change of
ownership of the Premises.
(I) Within fifteen (15) COUNTY working days of completing any action
which affects a change in the ownership of the Premises, the new owner must provide COUNTY
evidence of obtaining insurance in compliance with Paragraph 18, INSURANCE
SPECIFICATIONS.
27. INCORPORATION OF PRIOR AGREEMENT: This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreement or understanding pertaining to any such matter shall be effective for any
purpose.
28. WAIVERS: No waiver by either party of any provisions of this 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.
29. AMENDMENTS: No provision of this Lease may be amended or added to except by an
a!,'I'eement in writing signed by the parties hereto or their respective successor in interest,
expressing by its terms an intention to modity this Lease.
30. SUCCESSORS: This Lease shall inure to the benefit of and be binding upon the heirs,
executors, administrators, successors, and assigns of the parties hereto.
31. SEVERABILITY: If any word, phrase, clause, sentence, paragraph, section, article, part
or portion of this 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 Lease or any
other portion thereof.
32. TIME OF ESSENCE: Time is of the essence of each provision of this 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.
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33. OUlET ENJOYMENT: Subject to the provisions of this Lease and conditioned upon
performance of all the provisions to be performed by COUNTY hereunder, CITY shall secure to
COUNTY during the Lease term the quiet and peaceful possession of the Premises and all right
and privilege appertaining thereto.
34. 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.
35. CONSENT: Whenever consent or approval of either party is required that party shall not
unreasonably withhold, condition or delay such consent or approval.
36. EXHIBITS: All exhibits referred to are attached to this Lease and incorporated by
reference.
37. LAW: This Lease shall be construed and interpreted in accordance with the laws of the
State of California.
38. VENUE: The parties acknowledge and agree that this Lease 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 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 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.
39. REMEDIES: WAIVER: All remedies available to either party for one or more breaches by
the other party are and shall be deemed cumulative and may be exercised separately or concurrently
without waiver of any other remedies. The failure of either party to act in the event of a breach of
this Lease by the other shall not be deemed a waiver of such breach or a waiver of future breaches
unless such waiver shall be in writing and signed by the party against whom enforcement is sought.
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40. 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 the COUNTY, including such costs and
attorneys' fees payable under Paragraph 17, HOLD HARMLESS, Paragraph 47,
HAZARDOUS SUBSTANCES, and Paragraph 48, PUBLIC RECORDS DISCLOSURE.
41. RIGHT TO TERMINATE LEASE: This Lease may be terminated at any time by
ninety (90) days written notice by either party. In the event COUNTY terminates this Lease
pursuant to this paragraph, the CITY shall have the right to receive from COUNTY only the rent
which will have been earned at thc date of termination of this Lease.
42. CITY'S IMPROVEMENTS: There are no improvements being constructed by the
CITY
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43. CAPTIONS. HEADINGS. 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.
44. SURVIVAL: The obligations of the parties that, by their nature, continue beyond the
term of this Lease, will survive the termination of this Lease.
45. 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 providcd 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 should also include the employment and/or representative capacity and the dates
these individuals began employment with or representation of your business. 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 "A, "List of
Former County Officials.)
46. 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 Lease is unmodified and in full force and effect, or in full force and cffect 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 Lease is in full force and cffect 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 as shown
in Exhibit "B," Estoppel Certificate.
47. HAZARDOUS SUBSTANCES:
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a. CITY hereby represents and warrants that, to the best of CITY's knowledge,
information and belief: (i) the Premises have not been exposed to Hazardous Substances and are
presently free of all Hazardous Substances; (ii) neither the CITY nor any of the other current
tenants, if any, on the property of which the Premises forms a part is in violation or subject to an
existing, pending or threatened investigation by any governmental authority under any applicable
federal, state or local law, re!,'1Ilation, ordinance or other legislation pertaining to air, water, or
soil quality or the handling, transportation, storage, treatment, usage or disposal of Hazardous
Substances; (iii) any handling, transportation, storage, treatment or use of toxic or Hazardous
Substances to date has been in compliance with applicable laws; and (iv) no reportable use has
occurred on the Premises to date, and the soil, groundwater and vapor on or under the Premises is
free of Hazardous Substances as of the Commencement Date.
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b. CITY shall indemnify, protect, defend and hold COUNTY, its agents and
employees and the Premises, harmless from and against any and all losses and/or damages,
liabilities, judgments, costs, claims, expenses, penalties, including attorneys' and consultant's
fees, arising out of or involving the existence of any Hazardous Substances located in, about or
under the Premises prior to the Commencement Date of this Lease. Additionally, the issuance of
an order by any governmental authority directing the CITY or any of CITY's other tenants or
licensees on the property of which the Premises forms a part to cease and desist any illegal action
in connection with a Hazardous Substance, or to remediate a contaminated condition caused by
the CITY or any person acting under CITY's direct control and authority is a breach of this
Contract, and CITY shall be responsible for all costs and expenses of complying with such order,
including any and all expenses imposed on or incurred by COUNTY in connection with or in
response to such order. CITY's obligations under this paragraph shall include, but shall not be
limited to, the effects of any contamination or injury to person, property or the environment
created or suffered by COUNTY, and the cost of investigation, removal, remediation, restoration
and/or abatement thereof. CITY's obligations under this provision shall survive the expiration or
early termination of this Lease. No termination, cancellation or release agreement entered into by
COUNTY and CITY shall release CITY from its obligations under this Lease with regard to
Hazardous Substances unless specifically agreed to by COUNTY in writing.
c. For the purposes of this paragraph, the following definitions shall apply:
(1) "Hazardous Substance," as used in this Lease, shall mean any product,
substance or waste whose presence, use, manufacture, disposal, transportation, or release, either
by itself or in combination with other materials expected to be on the Premises, is either (i)
potentially injurious to the public health, safety or welfarc, the environment or the Premises;
(ii) regulated or monitored by any governmental authority; or (iii) a basis for potential liability of
CITY or COUNTY under any applicable statute or common law theory.
(2) "Reportable use" shall mean (i) the installation or use of any above- or
below-ground storage tank; (ii) the generation, possession, storage, use, transportation or disposal
of a Hazardous Substance that requires a permit from, or with respect to which a report, notice,
registration or business plan is required to be filed with any governmental authority and/or (iii)
the presence at the Premises of a Hazardous Substance with respect to which any Applicable
Requirements requires that a notice be given to persons entering or occupying the Premises or
neighboring properties.
(3) The term "applicable requirements" shall be deemed to refer to all
applicable laws, covenants or restrictions of record, building codes, regulations and ordinances.
48. PUBLIC RECORDS DISCLOSURE: All information received by the CITY or
COUNTY concerning this Lease, including the Lease itself, may be treated as public information
subject to disclosure under the provisions of the California Public Records Act, Government Code
Section 6250 et seq. (the "Public Records Act"). The Parties understand that although all materials
received in connection with this Lease are intended for the exclusive use of the parties, they are
potentially subject to disclosure under the provisions of the Public Records Act.
49.
free
CONDITION OF PREMISES: CITY shall deliver the Premises to COUNTY clean and
of debris on the Commencement Date and warrants to COUNTY that the plumbing,
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electrical systems, fire sprinkler system, lighting, air conditioning and heating systems and
loading doors, if any, in the Premises shall be in good operating condition on the Commencement
Date.
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50. CONDEMNATION: If the Premises or any portion thereof are taken under the power
of eminent domain or sold under the threat of the exercise of said power (all of which are herein
called "condemnation"), this Lease shall tenninate as to the part so taken as of the date the
condemning authority takes title or possession, whichever first occurs. If more than ten percent
(10%) of the floor area of the Premises, or more than twenty-five percent (25%) of the portion of
the Common Areas or that portion of the Premises designated for COUNTY's parking, is taken
by condemnation, COUNTY may, at COUNTY's option, to be exercised in writing within thirty
(30) days after CITY shall have given COUNTY written notice of such taking (or in the absence
of such notice, within thirty (30) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes such possession.
If COUNTY does not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining, except that the rent
shall be reduced in the same proportion as the rentable floor area of the Premises taken bears to
the total rentable floor area of the Premises. No reduction of rent shall occur if the condemnation
does not apply to any portion of the Premises. COUNTY shall be entitled to receive the
following amounts of any award for the taking of all or any part of the Premises under the power
of eminent domain or any payment made under threat of the exercise of such power: (a) one
hundred percent (100%) of any amount attributable to any excess of the market value of the
Premises for the remainder of the Lease Term over the present value as of the Termination Date
of the Rent payable for the remainder of the Lease Term (commonly referred to as the "bonus
value" of the Lease); and (b) COUNTY shall have the right to make a separate claim in the
Condemnation proceeding for: (i) The taking of the amortized or undepreciated value of any
trade fixtures or leasehold improvements owned by COUNTY that COUNTY has the right to
remove at the end of the Lease term and that COUNTY elects not to remove; (ii) Reasonable
removal and relocation costs for any trade fixtures or leasehold improvements that COUNTY has
the right to remove and elects to remove (if Condemnor approves of the removal); (iii) Loss of
goodwill; (iv) Relocation costs under Government Code section 7262, the claim for which
COUNTY may pursue by separate action independent of this Lease; and (v) Any other amount in
addition to the foregoing that the COUNTY is allowed under condemnation law. COUNTY shall
have the right to negotiate directly with Condemnor for the recovery of the portion of the A ward
that COUNTY is entitled to under subparagraph (b) of this paragraph. In the event that this
Lease is not terminated by reason of such condemnation, CITY shall repair any damage to the
Premises caused by such condemnation authority pursuant to Paragraph 13, MAINTENANCE,
and Paragraph 19, DESTRUCTION OF PREMISES.
51. MATERIAL MISREPRESENTATION: If during the course of the administration of
this lease, a party determines that the other party has made a material misstatement or
misrepresentation or that materially inaccurate information has been provided to the party, this
Lease may be immediately terminated. If this Lease is terminated according to this provision, the
terminating party is entitled to pursue any available legal remedies.
52. INTERPRET A TIONS: As this Lease was jointly prepared by both parties, the language
in all parts ofthis Lease shall be construed, in all cases, according to its fair meaning, and not for
or against either party hereto.
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53. COUNTERPARTS: This Lease may be executed by the parties in counterparts, and
when anyone or more copies of this Lease have been executed by all of the parties, this Lease
shall be effective, and all such copies shall be deemed and construed to be one agreement.
54. USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 FUNDS
AND REQUIREMENTS: This Contract may be funded in whole or in part with funds provided
by the American Recovery and Reinvestment Act of 2009 ("ARRA"), signed into law on
February 17, 2009. Section 1605 of ARRA prohibits the use of recovery funds for a project for
the construction, alteration, maintenance or repair of a public building or public work (both as
defined in 2 CFR 176.140) unless all of the iron, steel and manufactured goods (as defined in 2
CFR 176.140) used in the project are produced in the United States. A waiver is available under
three limited circumstances: (i) Iron, steel or relevant manufactured goods are not produced in
the United States in sufficient and reasonable quantities and of a satisfactory quality; (ii)
Inclusion of iron, steel or manufactured goods produced in the United States will increase the
cost of the overall project by more than 25 percent; or (iii) Applying the domestic preference
would be inconsistent with the public interest. This is referred to as the "Buy American"
requirement. Request for a waiver must be made to the County for an appropriate determination.
Section 1606 of ARRA requires that laborers and mechanics employed by contractors and
subcontractors on projects funded directly by or assisted in whole or in part by and through the
Federal Government pursuant to ARRA shall be paid wages at rates not less than those prevailing
on projects of a character similar in the locality as determined by the Secretary of Labor in
accordance with the Davis-Bacon Act (40 U .S.c. 31). This is referred to as the "wage rate"
requirement.
.
The above described provisions constitute notice under ARRA of the Buy American and wage
rate requirements. Contractor must contact the County contact if it has any questions regarding
the applicability or implementation of the ARRA Buy American and wage rate requirements.
Contractor will also be required to provide detailed information regarding compliance with the
Buy American requirements, expenditure of funds and wages paid to employees so that the
County may fulfill any reporting requirements it has under ARRA. The information may be
required as frequently as monthly or quarterly. Contractor agrees to fully cooperate in providing
information or documcnts as requested by the County pursuant to this provision. Failure to do so
will be deemed a default and may result in the withholding of payments and termination of this
Contract.
Contractor may also be required to register in the Central Contractor Registration (CCR)
database at http://www.ccr.gov and may be required to have its subcontractors also register in the
same database. Contractor must contact the County with any questions regarding registration
requirements.
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55. SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS: In addition to the
requirements described in "Use of ARRA Funds and Requirements," proper accounting and
reporting of ARRA expenditures in single audits is required. Contractor agrees to separately
identify the expenditures for each grant award funded under ARRA on the Schedule of
Expenditures of Federal A wards (SEF A) and the Data Collection Form (SF-SAC) required by the
Office of Management and Budget Circular A-133, "Audits of States, Local Governments, and
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Nonprofit Organizations." This identification on the SEFA and SF-SAC shall include the
Federal award number, the Catalog of Federal Domestic Assistance (CFDA) number, and amount
such that separate accountability and disclosure is provided for ARRA funds by Federal award
number consistent with the recipient reports required by ARRA Section 1512 (c). In addition,
Contractor agrees to separately identifY to each subcontractor and document at the time of sub-
contract and at the time of disbursement of funds, the Federal award number, any special CFDA
number assigned for ARRA purposes, and amount of ARRA funds. Contractor may be required
to provide detailed information regarding expenditures so that the County may fulfill any
reporting requirements under ARRA described in this section. The information may be required
as frequently as monthly or quarterly. Contractor agrees to fully cooperate in providing
information or documents as requested by the County pursuant to this provision. Failure to do so
will be deemed a default and may result in the withholding of payments and termination of this
Contract.
* * * * *
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2009-314
LEASE AGREEMENT
'.
COUNTY OF SAN BERNARDINO - CITY OF SAN BERNARDINO
56. AUTHORIZED SIGNATORS: Both parties to this Lease represent that the signators
executing this document are fully authorized to enter into this Lease.
END OF LEASE TERMS.
COUNTY OF SAN BERNARDINO
e
an, Board of Supervisors
Gary C. Ovitt, Ch
D~te~Uli 2 5 20
SIGNED AND CERTIFIED THAT
A COPY OF THIS DOCUMENT
HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD
DENA M. SMITH
Supervisors
By:
Approved as to Legal Form:
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RUTH E. STRINGER, County Counsel
:: ?I7Z C'lirs:~
-
Deputy
Date: 8/?/OQ
CITY:
Date:
9// Sloe;
.
APPROVED AS TO FORM:
JAMES F. PENMAN, City Attorney
.;J~
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2009-314
EXHIBIT "A"
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:
REOUlRED INFORMATION
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2009-314
EXHIBIT "B" - ESTOPPEL CERTIFICATE
Date:
To:
Re:
(address)
(city)
The undersigned ("County") hereby certifies as follows:
I. County is in possession of
California (the "Premises"). County leases the Premises under a written Lease Agreement dated
, 20_, Lease Agreement No. (the "Lease"), wherein County is the
lessee or tenant, and , ("Owner") is the lessor or CITY.
2. The Lease is in full force and effect and has not been amended, supplemented or
changed, except as follows:
3. The term of the Lease commenced on , 20 , and is scheduled
to expire , 20_. County has no right or option to renew or extend the term of the
Lease except as to the following: <-) -year options.
4.
month.
County's current monthly rental is $
, payable on the last day of each
5. County currently has no security deposit with Owner.
6. County is not in default under the terms of the Lease and no condition exists
which, with the passage of time or the giving of notice, or both, would constitute such a default.
To the best of County's knowledge, Owner is not in default under the terms of the Lease, and no
condition exists which, with the passage of time or the giving notice, or both, would constitute
such a default.
7. County hereby certifies that the foregoing is true and correct.
By:
Director
Real Estate Services Department
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