Loading...
HomeMy WebLinkAbout2010-292 1 2 RESOLUTION NO. 2010-292 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACTUAL AGREEMENT BETWEEN 3 THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT FOR SHARED USE OF THE RECREATION F ACILITIES AT 4 THE GALAXY BUILDING AND NORTON RECREATION CENTER FOR ONE YEAR 5 AUGUST 1,2010 THROUGH JULY 31,2011 WITH FOUR OPTIONAL SINGLE YEAR RENEWALS. 6 7 8 9 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager is hereby authorized to execute the contractual agreement with the City of San Bernardino and the San Bernardino City Unified School District 10 11 12 13 14 15 16 17 18 19 20 21 III 22 III 23 III 24 III 25 26 27 28 III 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; and SECTION 2: The term of this agreement is August 1, 2010 through July 31,2011 with the option of four, one-year renewals; therefore, any action taken between August 1, 2010 and the date that this Resolution is executed is hereby ratified.; 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 sixty (60) days following the effective date of the resolution. III III 1 RESOLUTION NO. 2010-292 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACTUAL AGREEMENT BETWEEN 3 THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT FOR SHARED USE OF THE RECREATION FACILITIES AT 4 THE GALAXY BUILDING AND NORTON RECREATION CENTER FOR ONE YEAR 5 AUGUST 1,2010 THROUGH JULY 31, 2011 WITH FOUR OPTIONAL SINGLE YEAR RENEWALS. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j oint regular Meeting, thereof, held on the 7th day of September ,2010, by the following vote to wit: COUNCIL MEMBERS AYES MARQUEZ x DESJARDINS x BRINKER x SHORETT x KELLEY x JOHNSON x MCCAMMACK ABSENT NAYS ABSTAIN x a~h.~ Rachel G. Clark, City Clerk The foregoing resolution is hereby approved this q-r,,;... day of ~~ptember ,2010. Approved as to Form: . , s fl~cfcJ Lo..",se! 2010-292 Exhibit A AGREEMENT BETWEEN PUBLIC SAFETY ACADEMY AND CITY OF SAN BERNARDINO FOR USE OF 1494 AND 1554 E. ART TOWNSEND DRIVE 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 the PUBLIC SAFETY ACADEMY (PSA) desire to renew a Contractual Agreement for use of 1494 and 1554 E. Art Townsend Drive, Buildings 178 & 812, NOW, THEREFORE, the parties agree as follows: 1. PREMISES: CITY hereby grants to PSA the lease rights, hereinafter specified, to be exercised within the Premises, consisting of those portions of the buildings, Building No. 178, commonly referred to as the Galaxy Building located at 1494 E. Art Townsend Drive, and Building No. 182, commonly referred to as the Norton Recreation Center located at 1554 E. Art Townsend Drive. 2. TERM: The term of this agreement shall be for a period of one (1) year, commencing August 1, 2010 with four I-year options to renew with mutual written agreement by both parties. 3. RENT / UTILITIES: A rental fee of $7,500 will be charged monthly for the term of the lease agreement to be payable by PSA. The rental fee will be payable to the CITY by the first of each month. The monthly rental fee shall be inclusive of all internal service charges costs (i.e. water, electric, refuse and natural gas, sewer, and refuse) for the Galaxy Building and Norton Recreation Center. CITY will bill PSA on a quarterly basis. PSA shall also continue to pay the cost of the existing burglar/fire alarm system for the Galaxy and Norton Buildings. 4. RETURN OF PREMISES: PSA 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 PSA and CITY on an exclusive, common or scheduled basis as described below: a. The Galaxy Building will be used as follows: Exhibit "A" Page 1 of 11 2010-292 Exhibit A areas: (1) PSA shall have exclusive use of the Galaxy Building, following Entire Second Floor Stairs Emergency Exit Outside Kitchen Area First Floor Storage Room Windowed Office Area First Floor Classroom First Floor Classroom First Floor Classroom Total 7,007 sq. ft. 149 sq. ft. 112 sq. ft. 536 sq. ft. 170 sq. ft. 261 sq. ft. 1,144 sq. ft. 770 sq. ft. 805 sq. ft. 10,954 sq. ft. (2) The CITY will have exclusive use of the following rooms on the first floor: Kitchen Area Kitchen Storage Room Total 408 sq. ft. 173 sq. ft. 581 sq. ft. (3) CITY and PSA shall have joint use of the first floor common areas as follows: Entry/Foyer Reception Area Hallway Area First Floor Windowed Office Restrooms Total 740 sq. ft. 1,034 sq. ft. 167 sq. ft. 137 sq. ft. 402 sq. ft. 2,480 sq. ft. (4) CITY shall have exclusive control of the use of the Ballroom, with the following exception. PSA may utilize the westernmost third of the Ballroom as a classroom Monday through Friday during the hours 7:00 a.m. to 2:00 p.m. The classroom shall be portable to accommodate CITY uses as needed, said accommodation to be made by PSA. PSA shall repair or replace and maintain the folding partition door that separates the westernmost third from the remainder of the Ballroom. CITY's usage may include weddings, receptions, business meetings and/or other uses by third parties. Whichever party has use of the area shall leave it clean and in its original condition prior to the other party's use thereof. b. The Norton Recreation Center Page 2 of 11 2010-292 Exhibit A (1) PSA shall have exclusive use of the following areas to serve as classroom space for academy students. Northwest Classroom Northwest Classroom Fitness Room Weight Room PE Office Total 660 sq. ft. 861 sq. ft. 2,047 sq. ft. 760. sq. ft. 186 sq. ft. 4,514 sq. ft. (2) PSA shall have the right to use the following areas, Monday through Friday during the hours 7:00 a.m. to 3:00 p.m. with the exception of CITY observed holidays: Gymnasium Lobby Men' s/Women' s Restrooms Total 9,072 sq. ft. 848 sq. ft. 426 sq. ft. 10,346 sq. ft. (3) CITY shall have exclusive use of the areas in Paragraph 6 (b) (2) above, at all other times and: Storage room 634 sq. ft C. PSA shall have exclusive use of the Pool and Shower facilities directly north of the Galaxy Building for future classroom use as may be required by PSA to accommodate growth in student emollment. D. PSA will be responsible for repairing or replacing any damaged or missing items from the weight room and fitness room. E. PSA may, at its own option and expense, place modular units to serve as classroom space in the vacant lot between the Galaxy Building and the Racquetball Courts. Any and all permit acquisition and installation of utility lines are the sole responsibility of the PSA. Upon termination of this Agreement, PSA shall remove said modules at its own expense and leave the property in the same condition as it was at the time the modules were placed there. F. CITY shall maintain first right to facilitate and manage all rentals of the Norton Gymnasium and Galaxy Ballroom. (1) CITY shall supervise regular rentals of the Galaxy Ballroom and Norton Gymnasium. Page 3 of 11 2010-292 G. ASSIGNMENT: PSA shall not assign, sublet or lease any part or portion of this Agreement without the prior written approval of CITY. 7. HEALTH. SAFETY AND FIRE CODE REQUIREMENTS: CITY shall assure the Premises meet the applicable requirements for 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: PSA will display from windows and/or marquee of the Premises, only such signs that are not prohibited by law. 9. MAINTENANCE: a. CITY at its cost shall maintain in good condition all portions of the Premises, including but not limited to the following: (1) The structural parts of the buildings and other improvements that are a part of the Premises, which include the foundations, bearing and exterior walls (including exterior glass and doors), sub-flooring, and roof; (2) Electrical, plumbing, and sewage systems, including, without limitation, those portions of the systems owned or controlled by the CITY lying outside the Premises, specifically structured to the street; (3) Window frames, gutters and downspouts on the buildings that are part of the Premises; (4) Air Conditioning, heating and ventilating systems lying outside the Premises; (5) Outside lighting, major irrigation repaIrs, tennis court nets and windscreens; (6) CITY at its cost shall repair the Premises if they are damaged by (1) causes over which PSA has no control; (2) acts or omissions of CITY, or its authorized representatives. (7) CITY will conduct monthly inspections of the facility and provide a weekly audit form to PSA noting any areas of concern. Page 4 of 11 . . I. 2010-292 Exhibit A b. PSA, at its cost shall be responsible for any and all routine maintenance in and around the Galaxy and Norton Buildings throughout the calendar year, independent of specific use, to include the parking lot areas, planter beds, entranceways, and lawn areas. These areas will also include, but not be limited to: (1) Exterior These items should be done on a set schedule at a minimum of once per week. PSA agrees to provide the CITY with a monthly maintenance schedule in writing by l5t working day of each month for said month. Failure of PSA to perform routine maintenance as noted within a 30-day cure date following notice by the CITY, could be terms for contract default. (A) Paint over graffiti as required (B) Mow and edge lawns (C) Weed flower and 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. 2. Interior: Janitorial services/minor repairs, which shall include, but are not limited to: (A) Vacuum rugs (B) Clean and dust, mop floors (C) Clean Restrooms and locker rooms (D) Provide janitorial supplies (E) Remove trash (F) Clean windows and walls (G) Repair inside plumbing, replace inside lighting (H) Repair inside electrical (I) Servicing of fire extinguishers (J) Clean & maintain ventilating system inside the Premises (K) Maintenance of burglar/fire alarm systems and the total costs thereof, including the provision of an after-hours contact to the fire/alarm dispatch. PSA agrees to supply a custodian to maintain all of these items for the Galaxy and Norton Buildings. PSA agrees to provide the CITY with a monthly custodial schedule in writing by l5t working day of each Page 5 of 11 2010-292 Exhibit A month for said month. Failure of PSA to perform routine custodial services as noted within a 30-day cure date following notice by the CITY, could be terms for contract default. 3. CITY property shall be maintained by PSA in the same condition as it was upon commencement of this Agreement, reasonable wear and tear excluded. PSA and CITY agree to inspect and indicate the condition of property upon commencement of this agreement. 4. PSA will make repairs if damages are by (a) causes over which PSA has control; (b) acts or omissions of PSA, or its authorized representatives; (c) direct result ofPSA use. 10. ALTERATIONS: PSA 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 this agreement. 11. FIXTURES: PSA shall have the right during the term(s) of this agreement, to install shelving and fixtures, make interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures, improvements, and alterations shall remain the property of the PSA and may be removed by PSA during the term(s) of this agreement or within a reasonable time thereafter, provided PSA restores the Premises to the condition as it existed at the commencement of this agreement, reasonable wear and tear excluded, or PSA 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 PSA will not be accountable for restoring the Premises. Any such election to surrender must be in writing, but not be accepted by CITY to be effective. 12. KEYS: For joint use areas, CITY will maintain master key control. For exclusive areas, PSA will maintain master key control. PSA is required to submit to CITY, a copy of exclusive area keys within 48 hours of any changes. CITY must be in possession of keys for all rooms. 13. UTILITIES: CITY shall furnish to the Premises and pay all service charges and related taxes for electricity, water, sewer, gas and trash services. The monthly rental fee shall be inclusive of all internal service charges costs (i.e. water, electric, refuse and natural gas, sewer, and refuse) for the Galaxy Building and Norton Recreation Center. 14. HOLD HARMLESS: a. PSA 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 Page 6 of 11 2010-292 Exhibit A incurred by the CITY on account of any claim thereof except where such indemnification is prohibited by law. b. CITY agrees to indemnify, defend (with board approved by PSA) and hold harmless PSA, 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 PSA on account of any claim thereof except where such indemnification is prohibited by law. 15. INSURANCE: CITY and PSA 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 PSA accept such self-insurance as satisfying the Premises liability insurance and worker's compensation requirements under the contract. 16. 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 PSA 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 (909) day period and diligently and in good faith continues to cure the default. 17. PSA REMEDIES ON CITY'S DEFAULT: PSA at anytime after CITY is in default, can terminate this agreement or can cure the default at CITY's cost. If PSA 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 PSA shall be due from CITY to PSA within five (5) day notice of such sum (including charges for PSA employees and equipment), and if paid at a later date shall bear interest at the maximum rate PSA is permitted by law to charge from the date the sum is paid by PSA until PSA is reimbursed by CITY. 18. PSA DEFAULT: The occurrence of anyone or more of the following events shall constitute a default and breach of this agreement by PSA: a. The vacating for more than ninety (90) consecutive days or abandonment of the Premises by PSA. b. The failure by PSA to perform any material provisions of this agreement to be performed by COUNTY where such failure shall continue for a period of thirty (30) days after notice by CITY to PSA; provided, however, that if the nature of PSA's default is such that more than thirty (30) days are reasonably required for its cure, PSA shall not be deemed to be in default if PSA commences said cure within said thirty (30) day Page 7 of 11 2010-292 Exhibit A period and thereafter diligently prosecutes such core to completion. The purpose of this notice requirement is to extend the notice requirements of the unlawful detainer statutes of California. 19. CITY'S REMEDIES ON PSA DEFAULT: In the event of any material default by PSA which is not cured by PSA, CITY may, at its election, terminate this agreement by giving PSA 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 PSA only any amount, and court costs, necessary to compensate CITY for all detriment proximately caused by PSA's default which CITY proves could not have been reasonably avoided. 20. CITY'S ACCESS TO PREMISES: CITY and its authorized representatives shall have the right to enter the Premises at all reasonable times. 21. 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 the other party or any other person shall be addressed to the other party at the address below. Either party may change its address by notifying the other party ofthe change in address. Notice shall be deemed communicated two (2) PSA working days from the time of mailing if mailed as provided in this paragraph. CITY's address: City of San Bernardino A TTN: Kevin Hawkins, Director Parks, Recreation & Community Services Department 1350 S. "E" St. San Bernardino, CA 92408 PSA address: Public Safety Academy ATTN: Mike Davis, Chief Financial Officer 1494 Art Townsend Drive. San Bernardino, CA 92408 22. INCORPORATION OF 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. Page 8 of 11 2010-292 Exhibit A 23. 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. 24. AMENDMENTS: No provision of this agreement may be amended or added to except by an agreement in writing signed by both parties hereto or their respective successor in interest, expressing by it terms an intention to modify this agreement. 25. SUCCESSORS: This agreement shall insure to the benefit of and be binding upon the heirs, executors, administrators, successors, and assigns of the parties hereto. 26. 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. 27. 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. 28. QUIET ENJOYMENT: Subject to the conditions of this agreement and conditioned upon performance of all the provisions to be performed by PSA hereunder, CITY shall secure to PSA during the agreement term the quiet and peaceful possession of the Premises and all right and privilege appertaining hereto. 29. PROVISIONS AND COVENANTS AND CONDITIONS: All provlSlons, whether covenants or conditions, on the part of either party shall be deemed to be both covenants and conditions. 30. CONSENT: Whenever consent or approval of either party is required, that party shall not unreasonably withhold such consent or approval. 31. EXHIBITS: All exhibits referred to are attached to this agreement and incorporated by reference. 32. LAW: This agreement shall be construed and interpreted in accordance with the laws of the State of California. 33. 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 Page 9 of 11 2010-292 Exhibit A their best efforts to obtain a change of venue to the Central District of San Bernardino County. 34. 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 fees. This paragraph shall not apply to those costs and attorney fees directly arising from any third party legal action against a party hereto and payable under ~aragraph 13, "HOLD HARMLESS". 35. RIGHT TO TERMINATE: PSA or CITY shall have the right to terminate this agreement at any time. PSA 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", 36. 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. 37. SURVIVAL: The obligations of the parties which, by their nature, continue beyond the term of this lease, will survive the termination of this lease. 38. 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 Page 10 of 11 2010-292 Exhibit A AGREEMENT BETWEEN PUBLIC SAFETY ACADEMY AND CITY OF SAN BERNARDINO FOR USE OF 1494 AND 1554 E. ART TOWNSEND DRIVE PUBLIC SAFETY ACADEMY CITY OF SAN BERNARDINO Mike Davis, Chief Financial Officer, Public Safety Academy By: Charles McNeeley City Manager Dated: Dated: Approved as to form and legal content: JAMES F. PENMAN,~ S~::~f"C:v~ ,p! BY:C~ Page 11 of 11 2010-292 AGREEMENT BETWEEN PUBLIC SAFETY ACADEMY AND CITY OF SAN BERNARDINO FOR USE OF 1494 AND 1554 E. ART TOWNSEND DRIVE 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 the PUBLIC SAFETY ACADEMY (PSA) desire to renew a Contractual Agreement for use of 1494 and 1554 E. Art Townsend Drive, Buildings 178 & 812, NOW, THEREFORE, the parties agree as follows: 1. PREMISES: CITY hereby grants to PSA the lease rights, hereinafter specified, to be exercised within the Premises, consisting of those portions of the buildings, Building No. 178, commonly referred to as the Galaxy Building located at 1494 E. Art Townsend Drive, and Building No. 182, commonly referred to as the Norton Recreation Center located at 1554 E. Art Townsend Drive. 2. TERM: The term of this agreement shall be for a period of one (1) year, commencing August 1, 2010 with four I-year options to renew with mutual written agreement by both parties. 3. RENT / UTILITIES: A rental fee of $7,500 will be charged monthly for the term of the lease agreement to be payable by PSA. The rental fee will be payable to the CITY by the first of each month. The monthly rental fee shall be inclusive of all internal service charges costs (i.e. water, electric, refuse and natural gas, sewer, and refuse) for the Galaxy Building and Norton Recreation Center. CITY will bill PSA on a quarterly basis. PSA shall also continue to pay the cost of the existing burglar/fire alarm system for the Galaxy and Norton Buildings. 4. RETURN OF PREMISES: PSA 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 PSA and CITY on an exclusive, common or scheduled basis as described below: a. The Galaxy Building will be used as follows: Page 1 of 11 EXHIBIT "A" 2010-292 areas: (1) PSA shall have exclusive use of the Galaxy Building, following Entire Second Floor Stairs Emergency Exit Outside Kitchen Area First Floor Storage Room Windowed Office Area First Floor Classroom First Floor Classroom First Floor Classroom Total 7,007 sq. ft. 149 sq. ft. 112 sq. ft. 536 sq. ft. 170 sq. ft. 261 sq. ft. 1,144 sq. ft. 770 sq. ft. 805 sq. ft. 10,954 sq. ft. (2) The CITY will have exclusive use of the following rooms on the first floor: Kitchen Area Kitchen Storage Room Total 408 sq. ft. 173 sq. ft. 581 sq. ft. (3) CITY and PSA shall have joint use of the first floor common areas as follows: Entry/Foyer Reception Area Hallway Area First Floor Windowed Office Restrooms Total 740 sq. ft. 1,034 sq. ft. 167 sq. ft. 137 sq. ft. 402 sq. ft. 2,480 sq. ft. (4) CITY shall have exclusive control of the use of the Ballroom, with the following exception. PSA may utilize the westernmost third of the Ballroom as a classroom Monday through Friday during the hours 7:00 a.m. to 2:00 p.m. The classroom shall be portable to accommodate CITY uses as needed, said accommodation to be made by PSA. PSA shall repair or replace and maintain the folding partition door that separates the westernmost third from the remainder of the Ballroom. CITY's usage may include weddings, receptions, business meetings and/or other uses by third parties. Whichever party has use of the area shall leave it clean and in its original condition prior to the other party's use thereof. b. The Norton Recreation Center Page 2 of 11 2010-292 (1) PSA shall have exclusive use of the following areas to serve as classroom space for academy students. Northwest Classroom Northwest Classroom Fitness Room Weight Room PE Office Total 660 sq. ft. 861 sq. ft. 2,047 sq. ft. 760. sq. ft. 186 sq. ft. 4,514 sq. ft. (2) PSA shall have the right to use the following areas, Monday through Friday during the hours 7:00 a.m. to 3:00 p.m. with the exception of CITY observed holidays: Gymnasium Lobby Men's/Women's Restrooms Total 9,072 sq. ft. 848 sq. ft. 426 sq. ft. 10,346 sq. ft. (3) CITY shall have exclusive use of the areas in Paragraph 6 (b) (2) above, at all other times and: Storage room 634 sq. ft C. PSA shall have exclusive use of the Pool and Shower facilities directly north of the Galaxy Building for future classroom use as may be required by PSA to accommodate growth in student emollment. D. PSA will be responsible for repairing or replacing any damaged or missing items from the weight room and fitness room. E. PSA may, at its own option and expense, place modular units to serve as classroom space in the vacant lot between the Galaxy Building and the Racquetball Courts. Any and all permit acquisition and installation of utility lines are the sole responsibility of the PSA. Upon termination of this Agreement, PSA shall remove said modules at its own expense and leave the property in the same condition as it was at the time the modules were placed there. F. CITY shall maintain first right to facilitate and manage all rentals of the Norton Gymnasium and Galaxy Ballroom. (1) CITY shall supervise regular rentals of the Galaxy Ballroom and Norton Gymnasium. Page 3 of11 2010-292 G. ASSIGNMENT: PSA shall not assign, sublet or lease any part or portion of this Agreement without the prior written approval of CITY. 7. HEALTH. SAFETY AND FIRE CODE REQUIREMENTS: CITY shall assure the Premises meet the applicable requirements for 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: PSA will display from windows and/or marquee of the Premises, only such signs that are not prohibited by law. 9. MAINTENANCE: a. CITY at its cost shall maintain in good condition all portions of the Premises, including but not limited to the following: (1) The structural parts of the buildings and other improvements that are a part of the Premises, which include the foundations, bearing and exterior walls (including exterior glass and doors), sub-flooring, and roof; (2) Electrical, plumbing, and sewage systems, including, without limitation, those portions of the systems owned or controlled by the CITY lying outside the Premises, specifically structured to the street; (3) Window frames, gutters and downspouts on the buildings that are part of the Premises; (4) Air Conditioning, heating and ventilating systems lying outside the Premises; (5) Outside lighting, major irrigation repalfS, tennis court nets and windscreens; (6) CITY at its cost shall repair the Premises if they are damaged by (1) causes over which PSA has no control; (2) acts or omissions of CITY, or its authorized representatives. (7) CITY will conduct monthly inspections of the facility and provide a weekly audit form to PSA noting any areas of concern. Page 4 of 11 2010-292 b. PSA, at its cost shall be responsible for any and all routine maintenance in and around the Galaxy and Norton Buildings throughout the calendar year, independent of specific use, to include the parking lot areas, planter beds, entranceways, and lawn areas. These areas will also include, but not be limited to: (1) Exterior These items should be done on a set schedule at a minimum of once per week. PSA agrees to provide the CITY with a monthly maintenance schedule in writing by 1 st working day of each month for said month. Failure of PSA to perform routine maintenance as noted within a 3D-day cure date following notice by the CITY, could be terms for contract default. (A) Paint over graffiti as required (B) Mow and edge lawns (C) Weed flower and 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. 2. Interior: Janitorial services/minor repairs, which shall include, but are not limited to: (A) Vacuum rugs (B) Clean and dust, mop floors (C) Clean Restrooms and locker rooms (D) Provide janitorial supplies (E) Remove trash (F) Clean windows and walls (G) Repair inside plumbing, replace inside lighting (H) Repair inside electrical (1) Servicing of fire extinguishers (J) Clean & maintain ventilating system inside the Premises (K) Maintenance of burglar/fire alarm systems and the total costs thereof, including the provision of an after-hours contact to the fire/alarm dispatch. PSA agrees to supply a custodian to maintain all of these items for the Galaxy and Norton Buildings. PSA agrees to provide the CITY with a monthly custodial schedule in writing by 1 st working day of each Page 5 of 11 2010-292 month for said month. Failure of PSA to perform routine custodial services as noted within a 30-day cure date following notice by the CITY, could be terms for contract default. 3. CITY property shall be maintained by PSA in the same condition as it was upon commencement of this Agreement, reasonable wear and tear excluded. PSA and CITY agree to inspect and indicate the condition of property upon commencement of this agreement. 4. PSA will make repairs if damages are by (a) causes over which PSA has control; (b) acts or omissions of PSA, or its authorized representatives; (c) direct result of PSA use. 10. ALTERATIONS: PSA 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 this agreement. 11. FIXTURES: PSA shall have the right during the term(s) of this agreement, to install shelving and fixtures, make interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures, improvements, and alterations shall remain the property of the PSA and may be removed by PSA during the term(s) of this agreement or within a reasonable time thereafter, provided PSA restores the Premises to the condition as it existed at the commencement of this agreement, reasonable wear and tear excluded, or PSA 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 PSA will not be accountable for restoring the Premises. Any such election to surrender must be in writing, but not be accepted by CITY to be effective. 12. KEYS: For joint use areas, CITY will maintain master key control. For exclusive areas, PSA will maintain master key control. PSA is required to submit to CITY, a copy of exclusive area keys within 48 hours of any changes. CITY must be in possession of keys for all rooms. 13. UTILITIES: CITY shall furnish to the Premises and pay all service charges and related taxes for electricity, water, sewer, gas and trash services. The monthly rental fee shall be inclusive of all internal service charges costs (i.e. water, electric, refuse and natural gas, sewer, and refuse) for the Galaxy Building and Norton Recreation Center. 14. HOLD HARMLESS: a. PSA 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 Page 6 of 11 2010-292 incurred by the CITY on account of any claim thereof except where such indemnification is prohibited by law. b. CITY agrees to indemnify, defend (with board approved by PSA) and hold harmless PSA, 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 PSA on account of any claim thereof except where such indemnification is prohibited by law. 15. INSURANCE: CITY and PSA 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 PSA accept such self-insurance as satisfying the Premises liability insurance and worker's compensation requirements under the contract. 16. 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 PSA 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 (909) day period and diligently and in good faith continues to cure the default. 17. PSA REMEDIES ON CITY'S DEFAULT: PSA at anytime after CITY is in default, can terminate this agreement or can cure the default at CITY's cost. If PSA 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 PSA shall be due from CITY to PSA within five (5) day notice of such sum (including charges for PSA employees and equipment), and if paid at a later date shall bear interest at the maximum rate PSA is permitted by law to charge from the date the sum is paid by PSA until PSA is reimbursed by CITY. 18. PSA DEFAULT: The occurrence of anyone or more of the following events shall constitute a default and breach of this agreement by PSA: a. The vacating for more than ninety (90) consecutive days or abandonment of the Premises by PSA. b. The failure by PSA to perform any material provisions of this agreement to be performed by COUNTY where such failure shall continue for a period of thirty (30) days after notice by CITY to PSA; provided, however, that if the nature of PSA's default is such that more than thirty (30) days are reasonably required for its cure, PSA shall not be deemed to be in default if PSA commences said cure within said thirty (30) day Page 7 of 11 2010-292 period and thereafter diligently prosecutes such core to completion. The purpose of this notice requirement is to extend the notice requirements of the unlawful detainer statutes of California. 19. CITY'S REMEDIES ON PSA DEFAULT: In the event of any material default by PSA which is not cured by PSA, CITY may, at its election, terminate this agreement by giving PSA 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 PSA only any amount, and court costs, necessary to compensate CITY for all detriment proximately caused by PSA's default which CITY proves could not have been reasonably avoided. 20. CITY'S ACCESS TO PREMISES: CITY and its authorized representatives shall have the right to enter the Premises at all reasonable times. 21. 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 the other party or any other person shall be addressed to the other party at the address below. Either party may change its address by notifying the other party of the change in address. Notice shall be deemed communicated two (2) PSA working days from the time of mailing if mailed as provided in this paragraph. CITY's address: City of San Bernardino ATTN: Kevin Hawkins, Director Parks, Recreation & Community Services Department 1350 S. "E" St. San Bernardino, CA 92408 PSA address: Public Safety Academy ATTN: Mike Davis, Chief Financial Officer 1494 Art Townsend Drive. San Bernardino, CA 92408 22. INCORPORATION OF 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. Page 8 of 11 2010-292 23. 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. 24. AMENDMENTS: No provision of this agreement may be amended or added to except by an agreement in writing signed by both parties hereto or their respective successor in interest, expressing by it terms an intention to modify this agreement. 25. SUCCESSORS: This agreement shall insure to the benefit of and be binding upon the heirs, executors, administrators, successors, and assigns of the parties hereto. 26. 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. 27. 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. 28. QUIET ENJOYMENT: Subject to the conditions of this agreement and conditioned upon performance of all the provisions to be performed by PSA hereunder, CITY shall secure to PSA during the agreement term the quiet and peaceful possession of the Premises and all right and privilege appertaining hereto. 29. PROVISIONS AND COVENANTS AND CONDITIONS: All provIsIOns, whether covenants or conditions, on the part of either party shall be deemed to be both covenants and conditions. 30. CONSENT: Whenever consent or approval of either party is required, that party shall not unreasonably withhold such consent or approval. 31. EXHIBITS: All exhibits referred to are attached to this agreement and incorporated by reference. 32. LAW: This agreement shall be construed and interpreted in accordance with the laws of the State of California. 33. 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 Page 9 of 11 2010-292 their best efforts to obtain a change of venue to the Central District of San Bernardino County. 34. 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 fees. This paragraph shall not apply to those costs and attorney fees directly arising from any third party legal action against a party hereto and payable under Paragraph 13, "HOLD HARMLESS". 35. RIGHT TO TERMINATE: PSA or CITY shall have the right to terminate this agreement at any time. PSA 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". 36. 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. 37. SURVIVAL: The obligations of the parties which, by their nature, continue beyond the term of this lease, will survive the termination of this lease. 38. 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 Page 10 of11 2010-292 AGREEMENT BETWEEN PUBLIC SAFETY ACADEMY AND CITY OF SAN BERNARDINO FOR USE OF 1494 AND 1554 E. ART TOWNSEND DRIVE PUBLIC SAFETY ACADEMY ~~".'.." ./~-"' ..... " ...' .f!:'.. _",9'0- , L / " .....C;:, . ....""- -. Mike Davis, Chief Financial Officer, Public Safety Academy Dated: 9... LB -20 i 0 Approved as to form: By: \~U 'Special Co sel Page 11 of 11 arles McNeeley City Manager Dated: 9-/~/()