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CITY OF SAN BERNARDINO _ REQUEST FOR COUNCILQR\~ t,~ A L
From: Lori Sassoon, Assistant City
Manager
Subject: Resolution of the Mayor and
Common Council of the City of San
Bernardino amending Resolution 2008-390,
which authorized the Lease Agreement by
and between the City of San Bernardino, the
County of San Bernardino and the High
Desert Partnership in Academic Excellence
Foundation, Inc, for property located at 503
East Central A venue, San Bernardino, CA.
Dept: City Manager's Office
Date: March 19,2009
Meeting date: April 6, 2009
Synopsis of Previous Council Action:
. October 6, 2008 - Resolution 2008-390 approving the Lease Agreement by and between the
City of San Bernardino, the County of San Bernardino and the High Desert Partnership in
Academic Excellence Foundation, Inc, for property located at 503 East Central Avenue, San
Bernardino, CA.
. September 15, 2008- Item was continued until October 6, 2008
. September 2, 2008 - Resolution 2008-340 ratifying the City Manager's execution of
Amendment No. I to the License and Indemnification Agreement.
. July 7,2008 - Resolution 2008-279 authorizing the execution of a License and
Indemnification Agreement by and between the City, the County of San Bernardino, and the
High Desert Partnership in Academic Excellence for property located at 503 East Central
Avenue.
Recommended motion:
Adopt resolution.
(JJ~
Signature
Contact person:
Lori Sassoon
Phone: 384-5122
Supporting data attached: Staff Report, Resolution and
Agreement
Ward: I
FUNDING REQUIREMENTS:
Amount: none
Source: (Acct. No.)
(Acct. Description)
~:>o
2=9-65
Finance:
Council Notes:
Agenda Item No. ~
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect:
Resolution of the Mayor and Common Council of the City of San Bernardino amending
Resolution 2008-390, which authorized a Lease Agreement by and between the City of San
Bernardino, the County of San Bernardino and the High Desert Partnership in Academic
Excellence Foundation, Inc, for property located at 503 East Central Avenue, San Bernardino,
CA.
Backeround:
On October 6, 2008, the Mayor and Common Council directed the City Manager to execute a
Lease Agreement between the City, County of San Bernardino and the High Desert Partnership
in Academic Excellence Foundation, Inc. for property and buildings used by the Norton Space
and Aeronautics Academy. The Lease Agreement was subsequently signed by the Chairman and
Clerk of the County of San Bernardino Board of Supervisors on December 16, 2008, and the
High Desert Partnership on January 13,2009. These three signatures exceeded the sixty (60) day
period allowed for execution of the Lease Agreement in Resolution 2008-390 (Attachment A).
Amending the authorization period in Resolution 2008-390 from sixty (60) days to two hundred
(200) days will provide for the timely execution of the Lease Agreement by all parties.
Fiscal Impact:
None.
Recommendation:
Adopt resolution.
Attachment "All
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RESOLUTION NO. 2008-390
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING THE LEASE AGREEMENT BY AND
BETWEEN THE CITY OF SAN BERNARDINO, THE COUNTY OF SAN
BERNARDINO, AND THE HIGH DESERT PARTNERSHIP IN ACADEMIC
EXCELLENCE FOUNDATION, INC., FOR PROPERTY LOCATED AT 503 EAST
CENTRAL AVENUE, SAN BERNARDINO, CA.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City Manager is hereby authorized and directed to execute on behalf
of the City, a Lease Agreement by and between the City of San Bernardino, the County of San
Bernardino and the High Desert Partnership in Academic Excellence Foundation, Inc. which
does business as the Norton Space and Aeronautics Academy, relating to certain real property
at 503 East Central Avenue, San Bernardino, CA. A copy of the Lease Agreement is attached
as Exhibit "A" and incorporated herein by reference.
SECTION 2. Authorization granted hereunder shall expire and be void and of no
further effect if the agreement is not executed by all parties and returned to the Office of the
City Clerk within sixty (60) days following the effective date of the resolution.
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2008-390
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING THE LEASE AGREEMENT BY AND
BETWEEN THE CITY OF SAN BERNARDINO, THE COUNTY OF SAN
BERNARDINO, AND THE HIGH DESERT PARTNERSHIP IN ACADEMIC
EXCELLENCE FOUNDATION, INC., FOR PROPERTY LOCATED AT 503 EAST
CENTRAL AVENUE, SAN BERNARDINO, CA.
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21 2008.
I HEREBY CERTIFY that the foregoing Resolution. IT%.!\: duly adopted by the Mayor and
Common Council of the City of San Bernardino at i~9g"h," meeting thereof, held on the
J1tiI day of OctohPT , 2008, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
ESTRADA x
-
BAXTER x
BRINKER x
DERRY x
KELLEY x
JOHNSON x
MCCAMMACK x
Q~ /';;1. ~
'-'
City Clerk
The foregoing resolution is hereby approved this 97JI
day of October
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J.Morris, a
San Bernardino
Approved as to
Form:
JAM
City
By:
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect:
Resolution of the Mayor and Common Council of the City of San Bernardino approving the Lease
Agreement by and between the City of San Bernardino, the County of San Bernardino and the High
Desert Partnership in Academic Excellence Foundation, Inc, for property located at 503 East Central
A venue, San Bernardino, CA.
Backl!round:
The City, County of San Bernardino, and the Norton Space and Aeronautics Academy (NSAA)
entered into a License and Indemnification Agreement on July 7, 2008, permitting the NSAA to
make the needed improvements to the former Mill Community Center, which is west of the former
Norton Air Force Base. In order to allow NSAA to commence school operations on August 25,
2008, the parties signed Amendment No. I to the License and Indemnification Agreement.
Although, the License and Indemnification Agreement expired on September 16, 2008, the
Agreement currently serves as an interim agreement from day to day, until a long-term lease
agreement between the City, County of San Bernardino and the NSAA is approved by Council.
The twenty-year Lease Agreement was to be approved by City Council on September 15, 2008;
however, several sections of the Lease Agreement omitted the word "City", when referencing both
the City and County. Revisions to the Lease Agreement by County Counsel to replace "County"
with "County and/or City", has been signed by NSAA. The original agreement was approved by the
County Board of Supervisors on September 9, 2008, and an amendment to the agreement fixing the
"City" omissions will be approved by the County Board of Supervisors within the next 60 days. The
term of the Lease Agreement is from June I, 2008 to May 31,2028.
Annual rent paid to the City and County by the NSAA for the 14.2 acres, including buildings, and
other improvements will be $1. The NSAA, at their sole cost, will maintain the location covered in
the lease, including all buildings, grounds, and other property improvements. The NSAA will not
make any structural or exterior improvement without the prior consent of the City and County and
will do so at their own cost. Furthermore, a list of mandatory improvements and modifications,
including the construction of a Head Start Facility, shall be made by the NSAA at their own cost.
Upon the termination of the Lease Agreement, the location shall be returned to the City and County
in good condition and all modular classroom structures will be removed.
The NSAA is run by the same consortium that created the Lewis Center for Education Research, a
school facility in Apple Valley supported by Congressman Jerry Lewis. The NSAA opened on
Monday, August 25, and began with 183 students. Up to 300 students will be accepted the first year
and the NSAA will add a grade level each year until the school is K-12.
Fiscal Imnact:
None
Recommendation:
Adopt resolution.
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RESOLUTION NO.
(cQ[PV
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AMENDING RESOLUTION 2008-390, WHICH
AUTHORIZED A LEASE AGREEMENT BY ANI) BETWEEN THE CITY OF SA!\
BERNARDINO, THE COUNTY OF SAN BERNARDINO, AND THE HIGH DESERT
PARTNERSHIP IN ACADEMIC EXCELLENCE FOUNDATION, INC., FOR
PROPERTY LOCA TEl) AT 503 EAST CENTRAL A VENUE, SAN BERNARDINO, CA.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION I. Resolution 2008-390. adopted on October 6. 2008. authorized and
directed the City Manager to execute on behalf of the City. a Lease Agreement by and between
the City of San Bernardino. County of San Bernardino and the High Desert Partnership in
Academic Excellence Foundation. Inc. which does business as thc Norton Space and
Aeronautics Academy. relating to certain real property at 503 East Central Avenue, San
Bernardino. CA. The Lease Agreement \vas subsequently signed by the Chairman and Clerk of
the County of San Bernardino Board of Supervisors on Deccmber 16, 2008, and the High
Desert Partnership in Academic Excellence Foundation. Inc. on January 13, 2009. These
signatures exceeded the sixty (60) day period allowed for execution of the Lease Agreement in
Resolution 2008-390. A copy of the fully executed Lease Agreement is attached as Exhibit
"A" and incorporated herein by reference.
SECTION 2. Section 2 of Resolution 2008-390 is hereby amended to read as follows:
"Authorization grantcd hereunder shall expire and be void and of no further effect if the
agreement is not executed by all parties and returned to the Oflice of the City Clerk within two
hundred (200) days following the effcctive datc of the resolution."
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AMENDING RESOLUTION 2008-390, WHICH
AliTHORIZED A LEASE AGREEMENT BY AND BETWEEN THE CITY OF SAN
BERNARDINO, THE COUNTY OF SAN BERNARDINO, AND THE HIGH DESERT
PARTNERSHIP IN ACADEMIC EXCELLENCE FOUNDATION, INC., FOR
PROPERTY LOCATED AT 503 EAST CENTRAL AVENUE, SAN BERNARDINO, CA.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a meeting thereot: held on the
_ Jay of . 2009. by the following vote. to wit:
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8 Council Membersi
AYES
NAYS
ABSTAIN ABSENT
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ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
MCCAMMACK
City Clerk
day of
The foregoing resolution is hereby approved this
2009.
23 Patrick J. Morris. Mayor
City of San Bernardino
24 Approved as to
Form:
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F. PENMAN.
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Attachment nAil
RESOLUTION NO. 2008-390
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING THE LEASE AGREEMENT BY AND
BETWEEN THE CITY OF SAN BERNARDINO, THE COUNTY OF SAN
BERNARDINO, AND THE HIGH DESERT PARTNERSHIP IN ACADEMIC
EXCELLENCE FOUNDATION, INC., FOR PROPERTY LOCATED AT 503 EAST
CENTRAL A VENUE, SAN BERNARDINO, CA.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION l. The City Manager is hereby authorized and directed to execute on behalf
of the City, a Lease Agreement by and between the City of San Bernardino, the County of San
Bernardino and the High Desert Partnership in Academic Excellence Foundation, Inc. which
does business as the Norton Space and Aeronautics Academy, relating to certain real property
at 503 East Central A venue, San Bernardino, CA. A copy of the Lease Agreement is attached
as Exhibit "A" and incorporated herein by reference.
SECTION 2. Authorization granted hereunder shall expire and be void and of no
further effect if the agreement is not executed by all parties and returned to the Office of the
City Clerk within sixty (60) days following the effective date of the resolution.
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2008-390
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING THE LEASE AGREEMENT BY AND
BETWEEN THE CITY OF SAN BERNARDINO, THE COUNTY OF SAN
BERNARDINO, AND THE HIGH DESERT PARTNERSHIP IN ACADEMIC
EXCELLENCE FOUNDATION, INC., FOR PROPERTY LOCATED AT 503 EAST
CENTRAL A VENUE, SAN BERNARDINO, CA.
I HEREBY CERTIFY that the foregoing Resolution.l'l~ duly adopted by the Mayor and
Common Council of the City of San Bernardino at ;~~g..' OT meeting thereof, held on the
-1>.tildayof Octoh<>r ,2008, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
ESTRADA X
-
BAXTER x
BRINKER X
DERRY X
KELLEY X
JOHNSON X
MCCAMMACK X
Q~ /0. ~
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City Clerk
The foregoing resolution is hereby approved this 91JI
day of October
2008.
J.Morris, a
San Bernardino
Approved as to
Form:
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect:
Resolution of the Mayor and Common Council of the City of San Bernardino approving the Lease
Agreement by and between the City of San Bernardino, the County of San Bernardino and the High
Desert Partnership in Academic Excellence Foundation, Inc, for property located at 503 East Central
Avenue. San Bernardino. CA.
Backl!roulld:
The City, County of San Bernardino, and the Norton Space and Aeronautics Academy (NSAA)
entered into a License and Indemnification Agreement on July 7, 2008, permitting the NSAA to
make the needed improvements to the former Mill Community Center, which is west of the former
Norton Air Force Base. In order to allow NSAA to commence school operations on August 25,
2008, the parties signed Amendment No. I to the License and Indemnification Agreement.
Although, the License and Indemnification Agreement expired on September 16, 2008, the
Agreement currently serves as an interim agreement from day to day, until a long-term lease
agreement between the City, County of San Bernardino and the NSAA is approved by Council.
The twenty-year Lease Agreement was to be approved by City Council on September 15, 2008;
however, several sections of the Lease Agreement omitted the word "City", when referencing both
the City and County. Revisions to the Lease Agreement by County Counsel to replace "County"
with "County and/or City", has been signed by NSAA. The original agreement was approved by the
County Board of Supervisors on September 9, 2008, and an amendment to the agreement fixing the
"City" omissions will be approved by the County Board of Supervisors within the next 60 days. The
term of the Lease Agreement is from June 1,2008 to May 31,2028.
Annual rent paid to the City and County by the NSAA for the 14.2 acres, including buildings, and
other improvements will be $1. The NSAA, at their sole cost, will maintain the location covered in
the lease, including all buildings, grounds, and other property improvements. The NSAA will not
make any structural or exterior improvement without the prior consent of the City and County and
will do so at their own cost. Furthermore, a list of mandatory improvements and modifications,
including the construction of a Head Start Facility, shall be made by the NSAA at their own cost.
Upon the termination of the Lease Agreement, the location shall be returned to the City and County
in good condition and all modular classroom structures will be removed.
The NSAA is run by the same consortium that created the Lewis Center for Education Research, a
school facility in Apple Valley supported by Congressman Jerry Lewis. The NSAA opened on
Monday, August 25, and began with 183 students. Up to 300 students will be accepted the first year
and the NSAA will add a grade level each year until the school is K-12.
Fiscal Imoact:
None
Recommendation:
Adopt resolution.
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COUNTY OF SAN BERNARDINO
LEASE AGREEMENT
TENANT:
THE HIGH DESERT PARTNERSHIP IN ACADEMIC
EXCELLENCE FOUNDATION, INC.
17500 Mana Road
Apple Valley, CA 92307
COUNTY:
COUNTY OF SAN BERNARDINO
Real Estate Services Department
825 East Third Street
San Bernardino, CA 92415-0832
CITY:
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92307
PREMISES:
503 East Central Avenue
San Bernardino, California
TERM OF LEASE:
Twenty (20) years
COMMENCEMENT DATE OF LEASE: June 1,2008
ANNUAL REVENUE: $1.00
COUNTY CONTRACT NUMBER:
DOCUMENT NUMBER AND REVISION DATE: No. 2109626 8/25/08
DATE TYPED: August 25,2008
2008-390
Exhibit "A"
2008-390
TABLE OF CONTENTS
PARAGRAPH
CAPTION
PAGE
1 PARTIES 1
2 PREMISES LEASED 1
3 TERM 1
4 CONSIDERATION 1
5 RETURN OF PREMISES 2
6 TAXES 2
7 USE 2
8 HEALTH, SAFETY & FIRE CODE REQUIREMENTS 2
9 SIGNS 2
10 MAINTENANCE 3
11 ALTERATIONS AND TENANT IMPROVEMENTS 4
12 FIXTURES 5
13 UTILITIES 5
14 HOLD HARMLESS 5
15 INSURANCE 5
16 DESTRUCTION OF PREMISES 7
17 COUNTY'S AND CITY'S ACCESS TO PREMISES 7
18 NOTICES 8
19 INCORPORATION OF PRIOR AGREEMENT 8
20 WAIVERS 9
21 AMENDMENTS 9
22 SUCCESSORS 9
23 SEVERABILITY 9
24 TIME OF ESSENCE 9
25 QUIET ENJOYMENT 9
26 PROVISIONS ARE COVENANTS & CONDITIONS 9
27 CONSENT 9
28 EXHIBITS 9
29 LAW 9
30 JURY TRIAL WAIVER 9
31 ATTORNEYS' FEES AND COSTS 10
32 VENUE 10
33 CAPTIONS, TABLE OF CONTENTS & COVER PAGE 10
34 SURVIVAL 10
35 BROKER'S COMMISSIONS 10
36 ESTOPPEL CERTIFICATES 10
37 SECURITY DEPOSIT 11
38 ASSIGNMENT AND SUBLETTING 11
39 TERMINATION 12
40 FORMER COUNTY AND CITY OFFICIALS 12
41 MISREPRESENTATIONS 13
42 DISCLOSURE 13
43 DEFAULT AND RIGHT TO TERMINATE 13
44 INTERPRETATIONS 17
45 ENTIRE AGREEMENT 17
46 AUTHORIZED SIGNATORS 17
2008-390
SIGNATURES
Exhibit "A" - Premises Description
Exhibit "B" - Premises Specifications
Exhibit "C" - List of Former County Officials
Exhibit "D" - Head Start Facility Specifications
2008-390
LEASE AGREEMENT
1. PARTIES: This lease is made between COUNTY OF SAN BERNARDINO
("COUNTY") and CITY OF SAN BERNARDINO ("CITY") jointly and severally as landlord,
and THE HIGH DESERT PARTNERSHIP IN ACADEMIC EXCELLENCE FOUNDATION,
INC. ("TENANT") as tenant, who agree as follows:
2. PREMISES LEASED: COUNTY and CITY lease to TENANT and TENANT
leases from COUNTY and CITY the 14.2 acres, that the TENANT will occupy upon build-
out of the improvements described herein, including buildings, real property and other
improvements, with parking spaces, including handicapped parking, at 503 East Central
Avenue, San Bernardino, California ("Premises"), as more particularly described in Exhibit
"A", Premises Description. The Premises expressly excludes all portions of the property
located at 503 East Central Avenue which will be solely occupied by the COUNTY and/or
CITY, such as park and playfield areas.
3. TERM: This lease shall commence on June 1, 2008, and continue
thereafter until May 31,2028 ("Term). In the event the Term commences prior to the date
specified for the commencement of the Term as a result of COUNTY and CITY making
the Premises available and TENANT's written acceptance of early possession of the
Premises, the ending date of the Term shall remain the same. The lease may be
extended upon mutual written agreement of the parties. In the event a party intends not
to pursue such an extension and allow the lease to expire after the initial Term, such party
shall provide written notice of such determination at least six (6) months prior to the
expiration of the Term.
4. CONSIDERATION: TENANT in consideration for the lease:
a. TENANT shall pay in advance to COUNTY, which shall administer
the terms of this Lease on behalf of both the COUNTY and CITY, the annual rental of
ONE DOLLAR and NO/100 Dollars ($1.00) per year for the full twenty year term of this
lease when the Term commences. The rent required under this lease shall supersede all
fees required under any prior license agreements with respect to the Premises between
the parties to this agreement.
b. The CITY shall retain the option to use the swimming pool facility
and area, and may close and demolish same at any time in its sole discretion.
c. It is understood and agreed that the COUNTY and CITY shall have
the right to joint use of the Premises subject to the agreement of all parties.
d. TENANT shall provide a guaranteed area for Head Start that meets
the then-current federal specifications for such a facility, a copy of the specifications in
effect at the time of this lease is set forth in Exhibit "0", Head Start Facility Specifications.
TENANT shall acknowledge that the current location / configuration of Head Start
facilities' meets said specifications. Concurrent with TENANT's construction of the
2008-390
improvements described in Exhibit "B" hereto, TENANT shall, at its own cost, make the
additional improvements to the Premises set forth in Exhibit "0" relating to construction of
a new Head Start educational facility ("Head Start Facility"). TENANT further warrants
and agrees that during the course of construction of the Head Start Facility, TENANT will
provide classrooms in a like kind and number to those already in use on the Premises by
the COUNTY's Head Start program, to accommodate the uninterrupted operation of
Head Start classes during construction of the new Head Start Facility.
5. RETURN OF PREMISES: The TENANT 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; and
remove any and all modular classroom structures which TENANT may place on the
Premises during TENANT's occupancy of the Premises.
6. TAXES: TENANT is currently a tax exempt entity and does not anticipate
incurring any tax liability as a result of this agreement. However, if applicable, TENANT
shall pay before delinquency any and all property taxes, assessments, fees, or charges,
including possessory interest taxes, which may be levied or assessed upon any personal
property, improvements or fixtures installed or belonging to TENANT and located within
the Premises. TENANT shall also pay all license or permit fees necessary or required by
law for the conduct of its operation. TENANT recognizes and understands that this lease
may create a possessory interest subject to property taxation and that the TENANT may
be subject to the payment of property taxes levied on such interest.
7. USE: This lease is limited to the purpose of a neighborhood educational
facility to accommodate school grades kindergarten through high school, to provide a
charter school educational facility on the portion of the Premises identified as the
Premises which is the subject of this Lease, and as further described in Exhibit "A" hereto.
TENANT shall not use the Premises for any other purpose.
8. HEALTH. SAFETY AND FIRE CODE REQUIREMENTS: As a condition
precedent to the existence of this lease, TENANT at its sole expense will ensure the
Premises meet the applicable requirements of the Health, Safety, Fire and Building
Codes, including any requirements for a notice of completion, certificate of occupancy
and the Americans with Disabilities Act ("ADA"). Should the. continued occupancy of the
leased Premises be in any way prejudiced or prevented due to changes in the ADA or the
Health, Safety or Fire Codes, the TENANT herein shall correct, update and comply with
said changes at TENANT's cost.
9. SIGNS: TENANT will display from the windows and/or marquee of the
Premises only such sign or signs as are not prohibited by law, and which are approved by
COUNTY and CITY.
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2008-390
10. MAINTENANCE:
a. TENANT at its sole and separate cost shall maintain in good
condition and within recognized industry standards all portions of the Premises used
and/or occupied by the TENANT, including but not limited to the following:
(1) 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;
(2) The electrical, plumbing, and sewage systems, including,
without limitation, those portions of the systems lying outside the Premises;
(3) Window frames, gutters, and downspouts on the building and
other improvements that are a part of the Premises;
(4) Air conditioner, heating and ventilating systems servicing the
Premises (additionally, air conditioning and heating filters are to be changed quarterly);
(5) The grounds, including all parking areas and outside lighting,
grass, trees, shrubbery and other flora, and;
(6) Interior maintenance and janitorial services.
b. TENANT shall have no obligation or responsibility to maintain or
otherwise repair any portion of the property located at 503 East Central Avenue that is
solely used or occupied by the COUNTY and/or CITY.
c. COUNTY and CITY at their cost shall repair the Premises if they are
damaged by acts or omissions of COUNTY or CITY or their authorized representatives.
d. TENANT shall have ten (10) days after notice from COUNTY or CITY
to perform its obligation under this paragraph, except that TENANT shall perform its
obligations immediately if the nature of the problem presents a material hazard or
emergency. Provided, however, if the nature and/or extent of TENANT's obligation is
such that more than ten (10) days are reasonably required to complete, then TENANT
shall not be in default if TENANT commences its obligation within said ten (10) day period
and thereafter diligently prosecutes its obligation to completion. If TENANT does not
perform its obligations within the time limitations in this paragraph, COUNTY and/or CITY
after notice to TENANT can perform the obligations and have the right to be reimbursed
for the sum COUNTY or CITY actually and reasonably expends (including charges for
COUNTY and/or CITY employees and equipment) in the performance of TENANT's
obligations. Any notice or demand concerning a material hazard or emergency may be
made orally, by telephone or otherwise, provided that written confirmation is given within
five (5) days after the oral notice or demand is made. Such confirmation shall be made
as provided in Paragraph 18, NOTICES.
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2008-390
11. ALTERATIONS. IMPROVEMENTS. AND ADDITION OF MODULAR
CLASSROOM UNITS TO THE PREMISES:
(a) TENANT shall not make any structural or exterior improvements or
alterations, or add modular classroom units to the Premises without the prior consent of
the COUNTY and CITY.
(b) TENANT, at its cost, agrees to make the improvements to the
Premises set forth in Exhibit "8", including the addition and installation of modular
classroom units on the Premises Specifications ("Improvements"). Notwithstanding the
provisions of Paragraph 4(d), when TENANT commences construction of facilities for
its primary program students (grades Kindergarten through Second), it will relocate the
COUNTY's head Start facilities to an alternate location at the same time. TENANT
acknowledges and agrees that upon the termination of this Lease, TENANT shall, at its
cost, remove any and all classroom modular units placed on the Premises during
TENANT's occupancy of the Premises.
(c) TENANT understands and agrees not to make any modifications to
the improvement plans and specifications as set forth in Exhibit "8", Premises
Specifications, without first obtaining approval in the form of an amendment to this Lease.
Any changes to these plans and specifications will be at the expense of the TENANT and
not the COUNTY or CITY.
(d) In the event TENANT contracts for the construction of any portion
of the Improvements set forth in Exhibit "8", Premises Specifications, TENANT shall
comply with the applicable portions of Labor Code Section 1720.2 and 1770 et seq.
regarding general prevailing wages.
(e) TENANT, at its sole expense, must provide all site plans (including
elevations of the building and details of the exterior finish), space design plans,
construction plans, and a complete set of the bid drawings and specifications to the
COUNTY and CITY. The bid drawings shall be on reproducible transparent vellum with
the architect's/engineer's professional stamp and signature, and also provided to
COUNTY and CITY on a compact disc-recordable (CD-R). The file format for the CD-R
copy shall be compatible with MS-DOS and AutoCAD 2002 software (.dwg file extension).
The specifications shall be submitted as a reproducible hardcopy and copied on a CD-R
with formats compatible with MS-DOS and Microsoft Word. TENANT agrees and
understands that it will construct on the Premises during the period immediately following
execution of this Lease, those Improvements shown on the space design and site plans
prepared by TENANT and approved by COUNTY and CITY. The Improvements shall be
constructed in accordance with Paragraph 8, HEALTH, SAFETY AND FIRE CODE
REQUIREMENTS, and Exhibits "8", Premises Specifications, and "0", Head Start Facility
Specifications.
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12. FIXTURES: TENANT shall have the right during the Term(s) of this lease to
install shelving and fixtures, and make interior, non-structural improvements or alterations
in the Premises. Such shelving, fixtures, improvements, and alterations shall remain the
property of the TENANT and may be removed by the TENANT during the Term(s) of this
lease or within a reasonable time thereafter, provided that the TENANT restores the
Premises to the condition as it existed at the commencement of this lease, reasonable
wear and tear excluded, or the TENANT in its sole discretion may elect to surrender all or
any part of such shelving, fixture, improvements and alterations to the COUNTY and
CITY, in which case TENANT shall have no duty to restore the Premises. Any such
election to surrender must be in writing and accepted by COUNTY and CITY to be
effective.
13. UTILITIES: TENANT shall furnish to the Premises and pay all service and
connection charges and related taxes for water, trash, sewer and all other utilities for the
areas used and/or occupied by the TENANT. The TENANT shall furnish and pay for its
own telephone service. TENANT shall have no obligation or responsibility to pay for any
such utilities for any portion of the property located at 503 East Central Avenue that is
solely used or occupied by the COUNTY and/or CITY.
14. HOLD HARMLESS: TENANT, COUNTY and CITY agree to indemnify,
defend and hold harmless the other party or parties, and its respective officers, agents,
volunteers and employees, from and against all liabilities (including without limitation all
claims, losses, damages, penalties, fines, and judgments, associated investigation and
administrative expenses, and defense costs, including but not limited to reasonable
attorney's fees, court costs and costs of alternative dispute resolution) regardless of
nature or type arising out of or resulting from the negligence or willful misconduct of the
indemnifying party or its respective officers, employees or agents. To the extent that
liability is caused by the active negligence or willful misconduct of an indemnified party,
the indemnification obligation shall be reduced in proportion to the indemnified party's
share of liability for its active negligence or willful misconduct, if any.
15. INSURANCE:
a. COUNTY and CITY are public entities and are self-insured.
b. Without in anyway affecting the indemnity herein provided and in
addition thereto, TENANT shall secure and maintain throughout the lease the following
types of insurance with limits as shown:
(1) Workers' Compensation: A program of Workers'
Compensation insurance or a state-approved Self-Insurance Program in an amount and
form to meet all applicable requirements of the Labor Code of the State of California,
including Employer's Liability with Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) limits, covering all persons providing services on behalf of the TENANT
and all risks to such persons under this agreement.
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If TENANT has no employees, it may certify or warrant to COUNTY and CITY that it
does not currently have any employees or individuals who are defined as "employees"
under the Labor Code and the requirement for Workers' Compensation coverage will be
waived by the COUNTY's and CITY's Risk Managers.
If TENANT is a non-profit corporation organized under California or Federal law,
volunteers for the TENANT are required to be covered by Workers' Compensation
insurance. If the COUNTY's and CITY's Risk Managers determine that there is no
reasonably priced coverage for volunteers, evidence of participation in a volunteer
insurance program may be substituted.
(2) Comprehensive General and Automobile Liability Insurance:
This coverage to include contractual coverage and automobile liability coverage for
owned, hired and non-owned vehicles. The policy shall have combined single limits for
bodily injury and property damage of not less than Five Million and 00/100 Dollars
($5,000,000.00).
(3) Fire Insurance: Standard fire and extended coverage
insurance, with vandalism and malicious mischief endorsements to the extent of at least
one hundred percent (100%) of the full replacement value of the Premises.
c. Additional Named Insured: All policies, except for the Workers'
Compensation, shall contain additional endorsements naming the COUNTY and CITY
and their officers, employees, agents and volunteers as additional named insureds with
respect to liabilities arising out of this agreement.
d. Waiver of Subrogation Rights: TENANT shall require the carriers of
the above required coverages to waive all rights of subrogation against the COUNTY and
CITY, their officers, employees, agents, volunteers, contractors and subcontractors.
e. Policies Primary and Non-Contributory: All policies required above
are to be primary and non-contributory with any insurance or self-insurance programs
carried or administered by the COUNTY and/or CITY.
f. Proof of Coverage: TENANT shall immediately furnish certificates of
insurance to the COUNTY and CITY, evidencing the insurance coverage, including
endorsements, above required prior to occupying the Premises and the commencement
of performance of services hereunder, which certificates shall provide that such insurance
shall not be terminated or expire without thirty (30) days written notice to the COUNTY
and CITY, and TENANT shall maintain such insurance from the time of occupancy and
commencement of performance of services hereunder until the completion of such
occupancy. Within sixty (60) days of the commencement of this agreement, the TENANT
shall furnish certified copies of the policies and all endorsements.
g. Insurance Review: The above insurance requirements are subject to
periodic review by the COUNTY and CITY. The COUNTY's and CITY's Risk Managers
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are authorized, but not required, to reduce or waive any of the above insurance
requirements with the prior written consent of the COUNTY and CITY whenever the Risk
Managers determine that any of the above insurance is not available, is unreasonably
priced, or is not needed to protect the interests of the COUNTY and CITY. In addition, if
the Risk Managers determine that heretofore unreasonably priced or unavailable types of
insurance coverage or coverage limits become reasonably priced or available, the Risk
Managers are authorized, but not required, to change the above insurance requirements
to require additional types of insurance coverage or higher coverage limits, provided that
any such change is reasonable in light of past claims against the COUNTY and CITY,
inflation, or any other item reasonably related to the COUNTY's and CITY's risk. Any
such reduction or waiver for the entire Term of the agreement and any change requiring
additional types of insurance coverage or higher coverage limits must be made by
amendment to this agreement. TENANT agrees to execute any such amendment within
thirty (30) days of receipt.
h. Failure to Have Insurance: In the event the COUNTY or CITY
receives a notice of cancellation concerning any of the required policies, or should
TENANT fail to have in effect the required coverage at any time during this lease,
COUNTY or CITY may give notice to TENANT to immediately suspend all TENANT
activities and/or notice to reinstate or acquire the affected coverage. Should TENANT fail
to reinstate or acquire the affected coverage within ten (10) days of COUNTY's or CITY's
notice to reinstate or acquire such coverage, COUNTY or CITY may either terminate the
lease, reinstate or acquire the affected coverage, and TENANT shall reimburse COUNTY
and/or CITY for the necessary cost at COUNTY's and CITY's option. If TENANT does
not reimburse COUNTY and/or CITY within ten (10) days after demand by COUNTY or
CITY, COUNTY and/or CITY shall have the right to withhold from future rent due the sum
COUNTY and/or CITY has expended until COUNTY and/or CITY is reimbursed in full.
i. Neither the COUNTY nor the CITY shall have liability for any
premiums charged for such coverage(s). The inclusion of COUNTY and CITY as
additional named insureds is not intended to and shall not make them a partner or joint
venturer with TENANT.
16. DESTRUCTION OF PREMISES: In the event of the destruction of the
Premises, which renders it incapable of its intended use as a school, the TENANT at its
discretion may terminate the lease, or subject to the mutual agreement of the parties
rebuild, reconstruct, or repair the damaged Premises.
17. COUNTY'S AND CITY'S ACCESS TO PREMISES: COUNTY and CITY
and their 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;
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b. To exercise any and all rights the COUNTY or CITY have under this
lease.
c. To serve, post, or keep posted any notices required by law;
d. To post "for sale" signs at any time during the Term, to post "for rent"
or "for lease" signs during the last three (3) months of the Term, prior to posting any such
signs, the COUNTY and/or CITY shall provide six (6) months written notice to the
TENANT of its intent to allow this agreement to expire as described in Section 3, above,
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.
COUNTY and CITY shall conduct their activities on the Premises as allowed
in this paragraph in a manner that will cause the least possible inconvenience,
annoyance, or disturbance to TENANT.
18. NOTICES: Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to the other party or any
other person, including notices under the California unlawful detainer statutes, shall be in
writing and either served personally or sent by prepaid, first-class mail. Any notice,
demand, request, consent, approval, or communication that either party desires or is
required to give to the other party shall be addressed to the other party at the address set
forth below. Either party may change its address by notifying the other party of the
change of address. Notice shall be deemed communicated two (2) COUNTY/CITY
working days from the time of mailing if mailed as provided in this paragraph.
TENANT's address:
High Desert Partnership in Academic
Excellence Foundation
17500 Mana Road
Apple Valley, CA 92307
COUNTY's address:
County of San Bernardino
Real Estate Services Department
825 East Third Street
San Bernardino, CA 92415-0832
CITY's address:
City of San Bernardino
City Manager
300 North "0" Street
San Bernardino, CA 92418-0001
19. INCORPORATION OF PRIOR AGREEMENT: This lease contains all ofthe
agreements of the parties hereto with respect to any matter covered or mentioned in this
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lease, and no prior agreement or understanding pertaining to any such matter shall be
effective for any purpose.
20. 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.
21. AMENDMENTS: No provision of this lease may be amended or added to
except by an agreement in writing signed by the parties hereto or their respective
successor in interest, expressing by its terms an intention to modify this lease.
22. SUCCESSORS: This lease shall inure to the benefit of and be binding
upon the heirs, executors, administrators, successors, and assigns of the parties hereto.
23. 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.
24. 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.
25. QUIET ENJOYMENT: Subject to the provisions of this lease and
conditioned upon performance of all the provisions to be performed by TENANT
hereunder, COUNTY and CITY shall secure to TENANT during the lease Term the quiet
and peaceful possession of the Premises and all right and privilege appertaining thereto.
26. 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.
27. CONSENT: Whenever consent or approval of either party is required that
party shall not unreasonably withhold or delay such consent or approval.
28. EXHIBITS: All exhibits referred to are attached to this lease and
incorporated by reference.
29. LAW: This lease shall be construed and interpreted in accordance with the
laws of the State of California.
30. JURY TRIAL WAIVER: COUNTY, CITY, and TENANT hereby waive their
respective right to trial by jury of any cause of action, claim, counterclaim or cross-
complaint in any action, proceeding and/or hearing brought by either COUNTY or CITY
against TENANT or TENANT against COUNTY or CITY on any matter whatsoever arising
out of, or in any way connected with, this lease, the relationship of COUNTY or CITY and
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TENANT, TENANT's use or occupancy of the Premises, or any claim of injury or damage,
or the enforcement of any remedy under any law, statute, or regulation, emergency or
otherwise, now or hereafter in effect.
31. ATTORNEYS' FEES AND COSTS: If any legal action is instituted to
enforce or declare any party's rights hereunder, each party, including the prevailing party,
must bear its own costs and attorneys' fees. This paragraph shall not apply to those
costs and attorneys' fees directly arising from any third party legal action against a party
hereto and payable under Paragraph 14, HOLD HARMLESS.
32 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.
33. 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.
34. SURVIVAL: The obligations of the parties which, by their nature, continue
beyond the Term of this lease, will survive the termination of this lease.
35. BROKER'S COMMISSIONS: TENANT is solely responsible for the
payment of any commissions to any broker who has negotiated or otherwise provided
services in connection with this lease.
36. 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 effect as modified, and stating the modifications. The certificate also shall state the
amount of minimum monthly rent, the dates to which the rent has been paid in advance,
the amount of any security deposit or prepaid rent, and that there are no uncured defaults
or specifying in reasonable detail the nature of any uncured default claimed. Failure to
deliver the certificate within thirty (30) days shall be conclusive upon the party requesting
the certificate and any successor to the party requesting the certificate, that this lease is in
full force and effect and has not been modified except as may be represented by the
party requesting the certificate, and that there are no uncured defaults on the part of the
party requesting the certificate. The estoppel certificate shall be in the form provided by
the COUNTY or CITY.
IIII
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37. SECURITY DEPOSIT:
Security deposits shall not be required.
38. ASSIGNMENT AND SUBLETTING:
a. TENANT shall not voluntarily assign or encumber its interest in this
lease or in the Premises or any options contained in this lease or sublease, all or any part
of the Premises, or allow any other person or entity (except TENANT's authorized
representatives) to occupy or use all or any part of the Premises, without first obtaining
COUNTY's and CITY's consent. Any assignment, encumbrance, or sublease without
COUNTY's and CITY's consent shall be voidable and, at COUNTY's or CITY's election,
shall constitute a default. No consent to any assignment, encumbrance, or sublease shall
constitute a further waiver of the provisions of this paragraph.
1. If TENANT is a partnership, a withdrawal or change, voluntary,
involuntary, or by operation of law, of any partner, or the dissolution of the partnership,
shall be deemed a voluntary assignment.
2. If TENANT consists of more than one person, a purported
assignment, voluntary, involuntary, or by operation of law, from one person to any other
shall be deemed a voluntary assignment.
3. If TENANT is a corporation, any dissolution, merger,
consolidation, or other reorganization of TENANT, or the sale or other transfer of a
controlling percentage of the capital stock of TENANT, or the sale of more than fifty
percent (50%) of the value of the assets of TENANT, shall be deemed a voluntary
assignment. The phrase "controlling percentage" means the ownership of, and the right
to vote, stock possessing more than fifty percent (50%) of the total combined voting
power of all classes of TENANT's capital stock issued, outstanding, and entitled to vote
for the election of directors. This paragraph shall not apply to corporations the stock of
which is traded through an exchange or over the counter.
b. TENANT immediately and irrevocably assigns to COUNTY and CITY,
as security for TENANT's obligations under this lease, all rent from any subletting of all or
a part of the Premises as permitted by this lease, and COUNTY and CITY, as assignee
and as attorney-in-fact for TENANT, or a receiver for TENANT appointed on COUNTY's
or CITY's application, may collect such rent and apply it toward TENANT's obligations
under this lease; except that, until the occurrence of an act of default by TENANT,
TENANT shall have the right to collect such rent.
c. Fifty percent (50%) of all rent received by TENANT from its
subtenants in excess of the rent payable by TENANT to COUNTY and CITY under this
lease shall be paid to COUNTY and CITY, or fifty percent (50%) of any sums to be paid
by an assignee to TENANT in consideration of the assignment of this lease or any option
herein shall be paid to COUNTY and CITY.
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d. If TENANT requests COUNTY or CITY to consent to a proposed
assignment or subletting, TENANT shall pay to COUNTY and CITY, whether or not
consent is ultimately given, COUNTY's and CITY's reasonable costs incurred in
connection with such request, including, but not limited to, reasonable attorney's fees.
e. No interest of TENANT in this lease shall be assignable by operation
of law (including, without limitation, the transfer of this lease by testacy or intestacy).
Each of the following acts shall be considered an involuntary assignment:
1 . If TENANT is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or institutes a proceeding under the Bankruptcy
Act in which TENANT is the bankrupt; or, if TENANT is a partnership or consists of more
than one person or entity, if any partner of the partnership or other person or entity is or
becomes bankrupt or insolvent, or makes an assignment for the benefit of creditors;
2. If a writ of attachment or execution is levied on this lease;
3. If, in any proceeding or action to which TENANT is a party, a
receiver is appointed with authority to take possession of the Premises.
f. An involuntary assignment shall constitute a default by TENANT and
COUNTY or CITY shall have the right to elect to terminate this lease, in which case this
lease shall not be treated as an asset of TENANT, unless the involuntary assignment is
cured as follows:
1. If a writ of attachment or execution is levied on this lease,
TENANT shall have ten (10) days in which to cause the attachment or execution to be
removed.
2. If any involuntary proceeding in bankruptcy is brought against
TENANT, or if a receiver is appointed, TENANT shall have sixty (60) days in which to
have the involuntary proceeding dismissed or the received removed.
3. Except as provided in 1 and 2 above, TENANT shall have no
right to cure any involuntary assignment.
39. TERMINATION: This lease may be terminated upon 60 days prior written
notice by any of the parties in the event that the TENANT should cease operating a
school on the Premises.
40.' FORMER COUNTY AND CITY OFFICIALS: TENANT agrees to provide or
has already provided information on former COUNTY and CITY administrative officials
(as defined below) who are employed by or represent TENANT. The information
provided includes a list of former COUNTY and CITY administrative officials who
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terminated COUNTY or CITY employment within the last five years and who are now
officers, principals, partners, associates or members of the business. The information
also includes the employment with or representation of TENANT. For purposes of this
provision, "COUNTY or CITY administrative official" is defined as a member of the Board
of Supervisors, Mayor or Council, or such officer's staff, COUNTY Administrative Officer
or CITY Manager, or member of such officer's staff, COUNTY or CITY department or
group head, assistant department or group head, or any employee in the Exempt Group,
Management Unit or Safety Management Unit. (See Exhibit "C", List of Former County
and City Officials.)
41. MISREPRESENTATIONS: If during the course of the administration of this
lease, the COUNTY or CITY determines that the TENANT has made a material
misstatement or misrepresentation or that materially inaccurate information has been
provided to the COUNTY or CITY, this lease may be immediately terminated. If this lease
is terminated according to this provision, the COUNTY and CITY is entitled to pursue any
available legal remedies.
42. DISCLOSURE: All information received by the COUNTY or CITY from any
source concerning this Lease, including the Lease itself, may be treated by the COUNTY
or CITY 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").
TENANT understands that although all materials received by the COUNTY or CITY in
connection with this contract are intended for the exclusive use of the COUNTY or CITY,
they are potentially subject to disclosure under the provisions of the Public Records Act.
In the event a request for disclosure of any part or all of any information which a TENANT
has reasonably requested COUNTY and/or CITY to hold in confidence is made to the
COUNTY and/or CITY, the COUNTY and/or CITY shall notify the TENANT of the request
and shall thereafter disclose the requested information unless the TENANT, within five (5)
days of receiving notice of the disclosure request, requests nondisclosure, provides the
COUNTY or CITY a legally sound basis for the nondisclosure, and agrees to indemnify,
defend, and hold the COUNTY and CITY harmless in any/all actions brought to require
disclosure. TENANT waives any and all claims for damages, lost profits, or other injuries
of any and all kinds in the event COUNTY or CITY fails to notify TENANT of any such
disclosure request and/or releases any information concerning the contract received from
the TENANT or any other source.
43. DEFAULT AND RIGHT TO TERMINATE:
a. Definitions. A "Default" by TENANT shall refer to any failure by
TENANT to observe, comply with or perform any of the terms, covenants, conditions or
rules applicable to TENANT under this Lease. The term "Breach" shall refer to the
occurrence of anyone or more of the following Defaults, and, where a grace period for
cure after notice is specified herein, the failure of TENANT to cure such Default prior to
the expiration of the applicable grace period:
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(i) TENANT's unexcused failure to conduct TENANT's
business at the Premises in accordance with the terms of this Lease including but not
limited to the failure to comply with the limitations of use of the Premises.
(ii) Vacating the Premises without the evident intention to
reoccupy same, an abandonment of the Premises, or notice of intent to abandon
Premises expressed in written notice.
(iii) TENANT's failure to make any payment of rent, or any other
monetary payment required to be made by TENANT hereunder as and when due, the
failure of TENANT to provide COUNTY and CITY with reasonable evidence of
insurance or surety bond required under this Lease, or TENANT's failure to fulfill any
obligation under this Lease which endangers or threatens life or property, where such
failure continues for a period of three (3) days, or such reasonable time as agreed by
COUNTY and CITY, following written notice thereof by or on behalf of COUNTY and
CITY to TENANT.
(iv) The failure by TENANT to provide COUNTY and CITY with
reasonable written evidence (in duly executed original form, if applicable) of any
documentation or information which COUNTY and CITY may reasonably require of
TENANT under the terms of this Lease, where any such failure continues for a period of
ten (10) days following written notice by or on behalf of COUNTY or CITY to TENANT.
(v) A Default by TENANT as to any of the other terms,
covenants, conditions or provisions of this Lease that are to be observed, complied with
or performed by TENANT where such Default continues for a period of thirty (30) days
after written notice thereof by or on behalf of COUNTY or CITY to TENANT; provided,
however, that if the nature of TENANT's Default is such that more than thirty (30) days
are reasonably required for its cure, then it shall not be deemed to be a Breach of this
Lease by TENANT if TENANT commences such cure within said thirty (30) day period
and thereafter continuously and diligently prosecutes such cure to completion.
(vi) A Default by TENANT as to the terms of any Approved
Encumbrance, where such Default continues for a period of thirty (30) days after written
notice thereof by or on behalf of COUNTY or CITY.
(vii) The occurrence of any of the following events: (a) the
making by TENANT of an assignment for the benefit of creditors; (b)TENANT's
becoming a "debtor" as defined in 11 U.S. Code Section 101 or any successor statute
thereto (unless, in the case of a petition filed against TENANT, the same is dismissed
within sixty (60) days); (c) the appointment of a trustee or receiver to take possession of
substantially all of TENANT's assets located at the Premises or of TENANT's interest in
this Lease, where possession is not restored to TENANT within thirty (30) days; or (d)
the attachment, execution or other judicial seizure of substantially all of TENANT'S
assets located at the Premises or of TENANT's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
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(viii) The discovery by COUNTY or CITY that any financial
statement of TENANT or of any guarantor, given to COUNTY or CITY by TENANT or
any guarantor, was materially false.
(ix) If the performance of TENANT's obligations under this
Lease is guaranteed: (a) the death of a Guarantor, (b) the termination of a Guarantor's
liability with respect to this Lease other than in accordance with the terms of such
guaranty, (c) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, or
(d) a Guarantor's refusal to honor the guaranty, and TENANT'S failure, within sixty (60)
days following written notice by or on behalf of COUNTY or CITY to TENANT of any
such event, to provide COUNTY or CITY with written alternative assurances of security,
which, when coupled with the then existing resources of TENANT, equals or exceeds
the combined financial resources of TENANT and the Guarantors that existed at the
time of execution of this Lease.
b. Remedies.
1. Other than when a different time or remedy is specifically
provided, such as for the payment of rent, if TENANT fails to perform any affirmative
duty or obligation of TENANT under this Lease within ten (10) days after written notice
to TENANT (or in case of an emergency, without notice), COUNTY or CITY may at its
option (but without obligation to do so), perform such duty or obligation on TENANT's
behalf, including, but not limited to, the obtaining of reasonably required, insurance
policies, or governmental licenses, permits or approvals. The costs and expenses of
any such performance by COUNTY or CITY shall be due and payable by TENANT to
COUNTY or CITY within ten (10) days of COUNTY's or CITY's demand.
2. In the event of a Breach of this Lease by TENANT (as
defined above), with or without further notice or demand, and without limiting COUNTY
or CITY in the exercise of any right or remedy which COUNTY or CITY may have by
reason of such Breach, COUNTY or CITY may:
(a) Terminate TENANT's right to possession of the
Premises by any lawful means, in which case this Lease and the term hereof shall
terminate and TENANT shall immediately surrender possession of the Premises to
COUNTY and CITY. In such event COUNTY and CITY shall be entitled to recover from
TENANT: (i) the worth at the time of the award of the unpaid rent which had been
earned at the time of termination; (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that the TENANT proves could have
been reasonably avoided; (iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the Term after the time of award exceeds the amount of
such rental loss that the TENANT proves could be reasonably avoided; and (iv) any
other amount necessary to compensate COUNTY and CITY for all the detriment
proximately caused by the TENANT's failure to perform its obligations under this Lease
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or which in the ordinary course of things would be likely to result therefrom, including,
but not limited to, the cost of recovering possession of the Premises, expenses of
reletting, including necessary renovation and alteration of the Premises, and that
portion of any leasing commission paid by COUNTY and CITY in connection with this
Lease and applicable to the unexpired term of this Lease. The worth at the time of
award of the amount referred to in provision (iii) of the immediately preceding sentence
shall be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco or the Federal Reserve Bank District in which the
Premises are located at the time of award plus one percent (1 %). COUNTY's and
CITY's attempt to mitigate damages caused by TENANT's Default or Breach of this
Lease shall not waive COUNTY's and CITY's right to recover damages under this
Paragraph. If termination of this Lease is obtained through the provisional remedy of
unlawful detainer, COUNTY and CITY shall have the right to recover in such
proceeding the unpaid rent and damages as are recoverable therein, or COUNTY and
CITY may reserve the right to recover all or any part thereof in a separate suit for such
rent and/or damages.
(b) Continue the Lease and TENANT's right to
possession in effect under California Civil Code Section 1951.4 after TENANT's Breach
and recover the rent as it becomes due, provided TENANT has the right to sublet or
assign, subject only to reasonable limitations. COUNTY and CITY and TENANT agree
that the limitations on assignment and subletting in this Lease are reasonable.
COUNTY's and CITY's maintenance of the Premises or efforts to relet the Premises, or
the appointment of a receiver to protect the COUNTY's and CITY's interest under this
Lease, shall not constitute a termination of the TENANT'S right to possession.
(c) Pursue any other remedy now or hereafter available
to COUNTY and CITY under the laws or judicial decisions of the State of California.
3. If, at any time TENANT is in default in monthly rent or fees
or any other provision for forty-five (45) days, or if TENANT defaults on any provision(s)
three (3) times within any twelve (12) consecutive months, COUNTY or CITY may
terminate this Lease on ten (10) days notice.
c. Survival of Indemnity Provisions. The expiration or termination
of this Lease and/or the termination of TENANT's right to possession shall not relieve
TENANT from liability under any indemnity provisions of this Lease as to matters
occurring or accruing during the Term or by reason of TENANT's occupancy of the
Premises.
d. Tenant's Personal Property. Immediately upon termination of this
Lease, TENANT covenants and agrees to remove all of TENANT's personal property,
machinery or fixtures from the Premises. If TENANT fails to remove any such personal
property, COUNTY or CITY may remove such personal property and place the same in
storage at the expense of TENANT and without liability to COUNTY or CITY for losses.
TENANT agrees to pay COUNTY or CITY for all expenses incurred by COUNTY or CITY
16
2008-390
in connection with the removal, and storage charges of TENANT's personal property,
including attorney's fees and court costs. Alternatively, COUNTY or CITY may at its
option and on not less than ten (10) days written notice to TENANT sell all or any part of
said personal property at public or private sale for such prices as COUNTY or CITY may
obtain. COUNTY or CITY shall apply the proceeds of any such sale to the amounts due
from TENANT under this Lease and to any expense incidental to such sale. Any surplus
arising from such sale shall be refunded to TENANT.
e. No Waiver by COUNTY or CITY. COUNTY's or CITY's receipt of
any rent or of any other sum of money paid by TENANT after the termination and
forfeiture of this Lease, or after the giving by COUNTY or CITY of any notice to effect
such termination, shall not waive the Default, reinstate, continue or extend the Term of
this Lease, or destroy or impair the efficacy of COUNTY's or CITY's notice of termination,
unless otherwise agreed in writing by COUNTY or CITY. COUNTY's and CITY's
acceptance of the keys to the Premises or any other act of the COUNTY or CITY or its
agents or employees during the Term of this Lease shall not be deemed to be an
acceptance or a surrender of the Premises, unless otherwise agreed in writing by
COUNTY and CITY.
44. INTERPRETATIONS: As this agreement was jointly prepared by both
parties, the language in all parts of this agreement shall be construed, in all cases,
according to its fair meaning, and not for or against either party hereto.
45. ENTIRE AGREEMENT: This agreement, including recitals, constitutes a
single, integrated contract, expressing the entire agreement and understanding of the
parties concerning the subject matter of this agreement, and this agreement supersedes
and replaces all prior understandings, negotiations, proposed agreements and
agreements, whether oral or written, express or implied.
46. AUTHORIZED SIGNATORS: The parties to this lease represent that the
signators executing this lease are fully authorized to enter into this agreement.
END OF LEASE TERMS.
17
COUNTY OF SAN BERNARDINO
p,", B~~~ ..
Board of Supervisors
Date:
Dte 1 8 ZOO8
CITY OF SAN BERNARDINO
/
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Lori Sassoon, Acting City Manager
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Date: ;:), 'I' ,1.1
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DENA SM
Board of
By:
Date:
2008-390
Exhibit "AII
THE HIGH DESERT PARTNERSHIP IN
ACADEMIC EXCELLENCE
FOUNDATION, INC.
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Approved as to form:
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JAMES F, PENMAN, City Attorney
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Approved as to Legal Form:
RUTH E, STRINGER, County Counsel
San Bernardino County, California
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2008-390
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2008-390
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2008-390
EXHIBIT "Cn
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 TENANT, the date the Official
entered TENANT's employment and/or representation.
OFFICIAL'S NAME:
REQUIRED INFORMATION
22
2008-390
EXHIBIT "D"
HEAD START FACILITY SPECIFICATIONS
CT = Ceramic Tile C = Carpet VT = Vinyl Flooring P = Paint
Room No.
Open office/Reception
Floor
CT
Walls
P
Comments
. Six duplex
. One ceiling fan
. 9' high ceiling with AP-2 acoustical
panels
. Panic bars on entrance doors to
lock after exit, keyed dead bolt on
outside, panic bars with key
operated mechanism for open and
closed positions
. County to provide lobby seating
P . 9' high ceiling with AP-2 acoustical
panels
. Three phones, one below counter
. 36" wide, 45" high reception
counter
Meeting/Training
Room
C
P
Two Adult Restrooms
CT
CT
P
. 9' high ceiling with AP-2 acoustical
panels
. Nine duplex
. Four phones, (1 at 42")
. Lockable doors to exterior with
panic hardware
. Two light switches with dimmers,
each controlling one half of the
room
. One white dry erase board, 4' x 8'
with tray
. Panic bars on entrance/exit door to
lock after exit, keyed dead bolt on
outside, panic bars with key
operated mechanism for open and
closed positions
. Lockable door to room
. One toilet
. One sink
. Sanitary napkin dispenser
23
Kitchen Storage
Play Equipment
Storage
Freezer Storage Area
Teacher Lounge
Kitchen
10 Classrooms
VT
VT
VT
VT
CT
VT
C
P
P
P
P
P
P
2008-390
. One duplex above sink with ground
fault interrupter
. Lockable doors
. One duplex
. Locking metal door to exterior,
panic hardware
. One duplex
. Locking double doors to outside
. 9' high smooth finish painted ceiling
. Three duplex
. 1-4 wire, single phase system with
220/240 V for freezer compressor &
110/115 V for door heater & freezer
door light. A dedicated circuit with
a disconnect box
. Two duplex with dedicated 20 amp
circuit for industrial refrigerator
. 9' high smooth finish painted ceiling
. Four duplex, one dedicated 20 amp
circuit for refrigerator with icemaker
. One phone at 42"
. Lockable door to exterior with panic
hardware
. 9' high smooth finish painted
gypsum ceiling
. One exhaust fan
. One stainless steel three tub sink,
one sink with garbage disposal
. One stainless steel hand wash sink
. Two-220V outlets for ovens
. One duplex on three dedicated
circuits, including one duplex above
triple sink
. 18' counter and cabinet with
rounded corners, 36" high cabinet
. 9' high ceilings with AP-2 acoustical
panels
. Seven duplex
. One phone at 42"
. One ceiling fan
24
Teacher Work Room
Children's Restroom
Communications
Room
Two Supervisor
Offices
Isolation Room
C
CT
VT
c
VT
P
CT
P
P
P
2008-390
. One sink with drinking fountain,
counter with cabinet
. Counter to be 22" from floor.
Adjustable shelves.
. Lockable door with panic hardware
on exit door(s) to playground
. Six duplex
. Three phone
. Lockable doors
. 14 children size toilets, max. height
11 "
. Two children's size urinal, max.
height 11"
. 16 children's size sinks, 22" height
. Toilet paper dispensers mounted
14" above floor
. Mirrors, shatterproof glass,
mounted over sinks, 229.5" bottom
edge to floor
. Privacy panels, sized for children
. Three duplex, one located 18"
below ceiling above door on
dedicated 20 amp circuit
. Two 4-plex, each on dedicated 20
amp circuit
. One phone at 42"
. Telephone Company Entrance
Cable
. :y.j" plywood painted with two coats
of fire-retardant white paint.
Plywood. shall be 4' by 8' high,
mounted vertical starting at floor
level
. Lockable door
. 9' high ceilings with AP-1 acoustical
panels
. Four duplex
. Two phones
. Lockable door
2S
Storage
VT
Hallway
VT
Custodial Room
VT
Adult Restroom
CT
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p
CT
2008-390
.
. One duplex
. Shelving
. Duplex (per code)
. Service/mop sink, Fiat #MSB 3624
or equivalent
. One exhaust fan
. One duplex with GFI
. Shelving
. One toilet (handicap)
. One sink (handicap)
. One sanitary napkin dispenser
. One duplex above sink with GFI'
. Lockable door
. One wall-mounted diaper changing
table
. See General Specifications for
complete restroom requirements
26
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