Loading...
HomeMy WebLinkAbout38-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Meeting Date: December 20, 2010 Subject: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE FIRST AMENDMENT TO THE LEASE AGREEMENT WITH THE YMCA OF THE EAST VALLEY ORIGINALLY AUTHORIZED BY RESOLUTION NO. 2005-222. From: James F. Penman City Attorney Dept: CITY ATTORNEY Date: December 14,2010 Synopsis of Previous Council Action: June 20, 2005: Resolution No. 2005-222 authorized execution of Five Year Lease with YMCA of the East Valley Recommended motion: Approve Resolution. F 'l- f~,- Contact person: Diane C. Roth, Sf. Ass't. City Attorney Phone: 5355 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: Agenda Item No. 3. 8 1,;J....:J-tJ - eJPI 0 F:\ROTH\RESOS\P&R YMCA Lease Amend ReA. wpd STAFF REPORT Council Meeting Date: December 20, 2010 TO: FROM: DATE: AGENDA: Mayor and Common Council City Attorney's Office December 14,2010 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE FIRST AMENDMENT TO THE LEASE AGREEMENT WITH THE YMCA OF THE EAST VALLEY ORIGINALL Y AUTHORIZED BY RESOLUTION NO. 2005-222. The YMCA ofthe East Valley ("YMCA") currently leases from the City the property at 808 East 21 S( Street in Perris Hill Park for a five-year term at $1 per year. The lease is set to expire on December 31,2010. This resolution would extend the lease for an additional 60 days with no other changes in the terms of the lease. F:\ROTH\RESOS\P&R YMCA Lease Amend Staff Rpt.wpd 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE FIRST AMENDMENT TO THE LEASE 3 AGREEMENT WITH THE YMCA OF THE EAST VALLEY ORIGINALLY AUTHORIZED BY RESOLUTION NO. 2005-222. 4 5 WHEREAS, on June 20, 2005, by Resolution No. 2005-222, the Mayor and Common 6 Council Authorized the execution of a Lease with the YMCA of the East Valley ("the YMCA") for 7 property located at 808 East 21 sl Street in Perris Hill Park ("the Lease"); and, 8 WHEREAS, on June 23, 2005, the City and the YMCA entered into the Lease; and, 9 WHEREAS, the Lease became effective on January 1, 2006, and is set to expire on 10 December 31, 2010; and, 11 WHEREAS, the parties wish to extend the Lease for an additional 60-day term; 12 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 13 OF SAN BERNARDINO AS FOLLOWS: 14 SECTION 1. The City Manager is hereby authorized and directed to execute the First 15 Amendment to the Lease Agreement between the City of San Bernardino and the YMCA of the East 16 Valley, a copy of which is attached hereto and incorporated herein as Exhibit "A." 17 SECTION 2. Inasmuch as the parties have agreed to extend the Lease for an additional 60- 18 day term, the new termination date of the Lease, as amended, is March 1, 2011 19 SECTION 3. The authorization to execute the Amendment is rescinded ifit is not executed 20 by both parties and returned to the City Clerk within 60 days of the passage of this Resolution. 21 III 22 III 23 III 24 25 26 27 28 F:IROTHIRESOS\P&R YMCA Lease Amendment.wpd Page 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE FIRST AMENDMENT TO THE LEASE 2 AGREEMENT WITH THE YMCA OF THE EAST VALLEY ORIGINALLY AUTHORIZED BY RESOLUTION NO. 2005-222. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof, held on the _day 6 of , 2010, by the following vote, to wit: 7 COUNCIL MEMBERS: AYES 8 MARQUEZ 9 DESJARDINS 10 BRINKER 11 SHORETT 12 KELLEY 13 JOHNSON 14 MC CAMMACK 15 16 17 NAYS ABSTAIN ABSENT Rachel Clark, City Clerk 18 The foregoing Resolution is hereby approved this _ day of ,2010. 19 20 21 PATRICK J. MORRIS, Mayor City of San Bernardino 22 Approved as to form: 23 JAMES F. PENMAN, City Attorney 24 Byr 1. f~ 25 26 27 28 F:IROTHIRESOS\P&R YMCA Lease Amendment.wpd Page 2 FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN YMCA OF THE EAST VALLEY AND CITY OF SAN BERNARDINO For Use of 808 E. 21st Street in Perris Hill Park WHEREAS, the City of San Bernardino ("City") and the YMCA of the East Valley ("YMCA") have an Agreement for lease of the premisses at 808 E. 2pl Street in Perris Hill Park, which expires on December 31,2010, term ("the Lease"), approved by Resolution No. 2005-222; and, WHEREAS, a copy of the Lease is attached hereto marked Attachment 1 and incorporated herein as though set forth in full herein; and, WHEREAS, the Parties wish to amend the Lease to extend it for an additional60-day term; NOW, THEREFORE, the parties agree to amend the following paragraph in the Agreement to read as follows: "3. TERM: The term of this Lease shall be extended 60 days, commencing on January 1, 2011, and terminating on March 1, 2011. Lessor and Lessee shall have the right to extend the term of this Lease for one (1) additional term of five (5) years, by mutual consent. Each renewal term shall be on the terms and conditions set forth herein. In the event the Lessee decides not to extend this Lease, then Lessee shall notify the Lessor in writing of Lessee's intention not to extend this Lease at least thirty (30) days prior to the expiration of this renewal term (March 1, 2011)." THE PARTIES FURTHER AGREE that all other terms and conditions of the Lease shall remain the same. This Amendment is effective on January 1, 2011. IN WITNESS THEREOF, the parties have executed this Agreement as set forth below. Dated: ,2010 Dated: ,2010 CITY OF SAN BERNARDINO YMCA OF THE EAST VALLEY Charles McNeely, City Manager Approved as to form: James F. Penman, City Attorney EXHIBIT "A" FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN YMCA OF THE EAST VALLEY AND CITY OF SAN BERNARDINO For Use of808 E. 21st Street in Perris Hill Park WHEREAS, the City of San Bernardino ("City") and the YMCA of the East Valley ("YMCA") have an Agreement for lease of the premisses at 808 E. 21 st Street in Perris Hill Park, which expires on December 31, 2010, term ("the Lease"), approved by Resolution No. 2005-222; and, WHEREAS, a copy of the Lease is attached hereto marked Attachment 1 and incorporated herein as though set forth in full herein; and, WHEREAS, the Parties wish to amend the Lease to extend it for an additional60-day term; NOW, THEREFORE, the parties agree to amend the following paragraph in the Agreement to read as follows: "3. TERM: The term of this Lease shall be extended 60 days, commencing on January 1,2011, and terminating on March 1,2011. Lessor and Lessee shall have the right to extend the term of this Lease for one (1) additional term of five (5) years, by mutual consent. Each renewal term shall be on the terms and conditions set forth herein. In the event the Lessee decides not to extend this Lease, then Lessee shall notify the Lessor in writing of Lessee's intention not to extend this Lease at least thirty (30) days prior to the expiration of this renewal term (March 1, 2011)." THE PARTIES FURTHER AGREE that all other terms and conditions of the Lease shall remain the same. This Amendment is effective on January 1,2011. IN WITNESS THEREOF, the parties have executed this Agreement as set forth below. Dated: ,2010 Dated: ,2010 CITY OF SAN BERNARDINO YMCA OF THE EAST VALLEY Charles McNeely, City Manager Approved as to form: James F. Penman, City Attorney L7.~ () 2005-222 ORIGINAL LEASE This Lease Agreement entered into this '].'lJ~ day of rl d1Jb> by. and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and the YMCA OF THE EAST V ALLEY, a California nonprofit public benefit corporation, hereinafter referred to as "Lessee", WITNESSETH WHEREAS, Lessor has certain property located at 808 E. 2151 Street, City of San Bernardino, County of San Bernardino, State of California located in Perris Hill Park, and described as follows: All that portion of Lots 5 and 6, Block 40 of the Rancho San Bernardino, as per plat recorded in Book 7 of Maps, Page 2, records of the County Recorder of San Bernardino County, more particularly described as follows: Commencing at the intersection of the center line of 21 sl Street and the centerline of San Gabriel Street; thence Easterly along the center line of 21 sl Street a distance of 9 feet; thence Northerly and parallel to the Northerly prolongation of the center line of San Gabriel Street a distance of 44 feet to the true point of beginning; thence continuing Northerly along a line 9 feet East of and parallel to the Northerly prolongation of said line a distance of 450 feet; thence Easterly and parallel to the center line of 21 sl Street a distance of 126 feet; thence in a Southeasterly direction a distance of 470 feet, more or less, to a point on a line 44 feet North of and parallel to the easterly prolongation, of the center line of the 21 sl Street, said point being 272 feet East of San Gabriel Street; thence Westerly and parallel to the Easterly prolongation of the center feet to the true point of beginning. And generally depicted on the plat attached as Exhibit" I". NOW, THEREFORE, the parties hereto agree as follows: 1. Premises: Lessor does hereby lease to Lessee and Lessee does hereby lease from Lessor, a portion of the facility located at 808 East 21 st Street, San Bernardino, CA. iJirllCHjJ1ElJT "I I~ J " . 2005-222 2. Use: The site may be used by Lessee solely and exclusively for recreational, cultural and educational purposes for the benefit of the members of Lessee and the residents of the City of San Bernardino, without discrimination as to race, color, creed or religion and for no other purposes whatsoever. 3. Term: The term of this Lease shall be five (5) years, commencing on the date both Lessor and Lessee have executed said Lease ("commencement date"). Lessor and Lessee shall have the right to extend the term of this Lease for one (1) additional term of five (5) years, by mutual consent. Each renewal term shall be on the terms and conditions set forth herein. In the event the Lessee decides not to extend this Lease, then Lessee shall notify the Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior to the expiration of the first five (5) year term or any renewal term. 4. Payment: In consideration for this lease, Lessee shall pay Lessor the sum of one dollar ($1.00) per year for each and every year of the term of this Lease, payable on the 15th day of January, commencing January 15, 2006, and thereafter on or before the 15th day of January of each and every year of the term of this Lease. Payments shall be directed to: City of San Bernardino Real Property Section 300 North "D" Street San Bernardino, CA 92418 -2- 2005-222 S. Use Restrictions: Lessee shall use the facility as a YMCA and related uses and for no other purpose. Lessee shall be open to the public a minimum of 220 days per year. 6. Maintenance and Inspections: Lessee shall, at Lessee's own cost and expense, keep and maintain all improvements hereinafter constructed on the Premises in good condition and repair, and shall use all reasonable precaution to prevent waste, damage or injury to the Premises. The City shall, at any reasonable time, have the right to go upon the Premises upon seventy-two (72) hour prior notice to Lessee, and inspect and examine the same relative to such maintenance and upkeep. Such inspections shall be conducted in the accompaniment of a YMCA employee or authorized representative. Lessee shall be responsible for maintaining the facility in compliance with all City codes and for keeping the facility in good repair for the duration of the lease. Compliance with said codes shall be determined by the appropriate City officers and employees. Lessee shall make no improvements to the facility without City's approval. All signage shall be subject to City approval. 7. Utilities: Lessee shall have the right to install utilities, at the Lessee's expense, and to improve the present utilities on or near the Premises, subject to the City's approval. Lessee shall pay for all electricity, gas, water, telephone service, and all other services and utilities, including service installation fees and charges for such utilities used by Lessee during the term of this Agreement. 8. Liability Insurance: Lessee agrees to procure and maintain in force during the term of this Agreement and any extension, at its own expense, the following insurance in companies approved by the City, - 3 - 2005-222 adequate to protect against liability for damage claims arising in or around the leased premises; (1) Commercial General Liability with limits of five million dollars ($5,000,000.00) per occurrence, (2) Automobile Liability with a combined single limit of one million dollars ($1,000,000.00) per accident, and (3) Worker's Compensation Insurance as required by law and Employers' Liability with limits of one million dollars ($1,000,000.00) per occurrence. Lessee shall provide to the City, a certificate of insurance and an additional insured endorsement which provides: (a) On the Commercial General Liability policy that the City of San Bernardino is named as an additional insured for the acts or omissions of Lessee. (b) The certificates will include the insurance company name, policy number, period of coverage, and the amount of insurance. (c) That the Real Property Section of the City of San Bernardino must be given notice in writing at least thirty (30) days prior to cancellation, material change, or refusal to renew the policy. Copies of said policies shall be mailed or delivered to the Development Services Department/Real Property Section upon commencement date. 9. Indemnification: Except to the extent of the negligence or willful misconduct of The City or its agents, boards, officers, employees, representatives or contractors, Lessee shall defend, indemnify, and hold harmless the City, its agents, boards, officers, employees, representatives, or contractors against any and all claims, suits, damages for personal injury, including death, property damage, demands, loss or liability of any kind or nature arising from the City's approval of this Agreement or from Lessee's operations under this Agreement. 10. Taxes/Possessory Interest: (a) Lessee recognizes and understands that this Agreement may create a possessory interest subject to property taxation, and that the Lessee may be subject to the payment of - 4 - 2005-222 property taxes levied on such interest. Lessee agrees to, and shall hold harmless, the City from any and all liability for any such taxes due by virtue of the leased facilities. (b) The City warrants that it has full right, power and authority to execute this Agreement. The City further warrants that Lessee shall have quiet enjoyment of the Premises during the term of this Agreement or any renewal thereof. 11. Compliance With Laws: Lessee shall not violate any applicable law of the City, State or Federal governments in conducting its operations under this Agreement. 12. No Sublease or Assignment: Lessee shall not sublet the premises, or any part thereof, or assign this Agreement, without The City's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Lessee may assign or sublet this Agreement to any subsidiaries, corporate affiliate or successor legal entities of Lessee, or any purchaser of all, or substantially all, of Lessee's stock or assets; provided, however, within thirty (30) days of such assignment or sublet, Lessee shall provide written notification to the City stating the name, address, contact person and any other pertinent information regarding said corporate affiliate or purchaser. Said written notification shall be sent to the City at the address specified in Section 19 - Notices. 13. Relocation: The City shall, in good faith, use its best efforts to fully accommodate and allow the continuing use of the facility or suitable facility. In the event the City determines that the facility is needed for (a) the construction, completion, repair, relocation or maintenance of a City project; or (b) protection and preservation of public health and safety, the City shall provide Lessee with written notice to relocate that Site. Within six (6) months of receipt of a notice from City, or within such shorter period of time determined by the City if reasonably necessary, the City may - 5 - 2005-222 require Lessee, at its sole cost and expense, to relocate and/or remove the Facilities and repair and restore the public right-of-way and utilities. If the facility is damaged or destroyed, the City shall use its best efforts to locate a suitable substitute site for Lessee to relocate its Facilities or to place temporary facilities. The suitability of any substitute site shall be subject to Lessee's prior written consent, which consent shall not be unreasonably withheld. 14. Default: Either party shall have the right to terminate this Agreement, and upon the effective date of such termination, the City shall have the right of immediate occupancy of the Premises in the event the other party violates any of this Agreement's terms or conditions, and such violation is not corrected within thirty (30) days after written notice is sent by the non-breaching party. Such termination shall not relieve either party from liability for damages for breach of this Agreement or for injury to the Premises. 15. Environmental: The City represents that the Premises have not been used for the generation, storage, treatment or disposal of hazardous substances, hazardous materials or hazardous wastes. In addition, The City represents that no hazardous materials, hazardous substances, hazardous wastes, pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude oil or any fraction or derivative thereof) or underground storage tanks are located on or near the Premises. Notwithstanding any other provision of this Agreement, Lessee relies upon the representations stated herein as material inducement for entering into this Agreement. Lessee shall not bring any hazardous materials onto the Premises except for those contained in its back-up power batteries (lead-acid batteries) and common materials used in telecommunications operations, e.g., cleaning solvents. Lessee shall treat all hazardous materials brought auto Premises by it in accordance with all federal, state and local laws and regulations. - 6 - . 2005-222 16. Amendment: This Agreement may be amended or modified only by written agreement signed by both parties. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or provisions. If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 17. Termination: This Agreement may be terminated by mutual consent of the Lessor and Lessee within a thirty (30) day written notification by either party. 18. Miscellaneous: (a) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (b) This Agreement shall be governed under the laws of the State of California. (c) The prevailing party in any legal action to enforce any provision of this Agreement shall be entitled to recover from the losing party all attorneys' fees and court costs, including appeals if any, in connection with that action. The costs, salary, and expenses of the City Attorney and members of his office in connection with that action, shall be considered as attorney's fees for the purpose of this Agreement. (d) This Agreement constitutes the entire Agreement and understanding between the parties and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments to this Agreement must be in writing and executed by both parties. - 7 - 2005-222 19. Notices: All notices given in connection with this Agreement shall be in writing and delivered in person or sent by overnight carrier or certified mail, postage prepaid, addressed as follows: THE CITY City of San Bernardino Development Services/Real Property 300 North "D" Street San Bernardino, CA 92418 YMCA OF THE EAST V ALLEY YMCA of the East Valley 16 E. Olive Avenue Redlands, CA 92373 20. Covenants: There are no covenants or warranties other than those expressed in this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set forth at the beginning of this Agreement. ATTEST: ~.BERNARDINO, / / K~ elWLR ~11~~~~~, ~~ YMCA OF THE EAST V ALLEY, a Califoi)~~m ~~_._. Approved as to form And legal content By; &rIdi1 By: JAMES F. PENMAN, City Attorney - 8 - . 2005-222 ," . ". ",j .~ :a!" . ~CJ' ... 5, .~ , . . SP' '" ~ @u. -@ ~ @} 4li III , it '" z.. ~ @ ~Qt~ ~_::1 !\liw -i It a -? EXHIBIT 1 @ @, z.s..' @ :.-..... OA i.\!J ~ ........... @) -'.. ..... ".'r. " . .;. 'i; " '( lD @:: :,.. ~ " ~ J'~:U' ... ... , ~ a'" Ne. \::!J-. ~ ~ """3' ~_ -- . " :~...~; '.~, el.W 'q.~ ..: ,~ ; .' I o",JQ"~ ~ ;,.. :, 'f. ~i m "(I) '~ Q . I\) :s I g" '" .:a..