HomeMy WebLinkAbout18- Park, Recreation & Community Service CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL"AR I N A L
From: Kevin Hawkins, Director Subject: Resolution authorizing the City
Manager to execute a Lease Agreement with
Dept: Parks,Recreation& Community the County of San Bernardino for the lease
Services Department of a portion of the Delmann Heights
Community Center to be used for the Head
Date: July 27, 2009 Start Program.
M/CC Meeting Date: August 17, 2009
Synopsis of Previous Council Action:
Recommended Motion:
1) Adopt Resolution, and
2) Authorize the Director of Finance to include in the FY 09/10 Budget increased revenue
reimbursement in the amount of $36,720 ($22,860 in rental revenue and $13,860 in
estimated utilities reimbursement) in Account No. 001-000-4901.
Signature
Contact person: Robert Lennox Phone: 384-5031
Supporting data attached: swaag4rt_Rem. Aemement Ward: 6
FUNDING REQUIREMENTS: Amount: Lease revenue in the amount of$22,860 for the
first year of tern - September 1, 2009 through
August 31, 2010 - $23,544 for the second year,
and an estimated utilities reimbursement amount
of$13,860 per year.
Source: (Acct.No.) 001-000-4901
(Acct. Description)
Finance:
Council Notes: /\ 1rl sy Sao 9- '3 a o
Agenda Item No.
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
Resolution of the Mayor and Common Council authorizing the City Manager to execute a Lease
Agreement with the County of San Bernardino for the lease of a portion of the Delmann Heights
Community Center to be used for the Head Start Program.
Background:
The City has operated a Head Start Preschool Program at the Delmann Heights Community
Center for the past thirty-two years. The school began with one class of 15 children, and it has
operated with a student enrollment of sixty children during recent years. The City's Head Start
Program curriculum has included music, language arts, math and science. In addition, healthy
meals and snacks were provided to the students.
The City has staffed and operated the Head Start Program at the Delmann Heights Community
Center, as a Delegate Agency, in a successful collaboration between the City of San Bernardino
Parks, Recreation and Community Services Department and the San Bernardino County
Preschool Services Department(SBCPSD). During the most recent program year, changes to the
Federal program have been implemented, which will require a significant allocation of City
resources in order to maintain compliance. As such, it is deemed prudent that the Preschool
Services Department assume the program directly under the San Bernardino County Head Start
Program umbrella.
In response to the City's budgetary realities, the Parks, Recreation and Community Services
Department has successfully negotiated an Agreement with the San Bernardino County
Preschool Services Department for use of facilities previously utilized by the City's Head Start
Program at the Delmann Heights Community Center (the Community Center operations at the
Delmann Heights Facility are contracted by the Boys and Girls Club). As a term of tenancy, the
SBCPSD would assume facility operator responsibility for the areas that have been utilized by
the Head Start Program, and release the City from its Delegate Agency role and associated
personnel and administrative oversight.
The proposed Agreement serves to minimize job loss, while preserving the highest quality of
services to the public at the facility. SBCPSD will hire existing City preschool grant personnel at
comparable rates to supervise and operate the County's Delmann Heights Head Start Program.
The County will pay a rental fee at a rate of$22,860 for the initial year, and $23,544 for the
second year of the term. In addition, 36% of the cost of utilities at the Delmann Heights facility
(water, electric, natural gas, refuse and building maintenance) will be funded by the County. The
estimated amount of utilities reimbursement is $13,860 annually.
The proposed Agreement is of mutual benefit to both the City and the SBCPSD.
Financial Impact:
The Agreement will provide $22,860 in additional rental revenue during the first year, and
$23,544 during the second year of the initial two-year term. Additionally, the County will
reimburse the City 36%of the cost of the utilities at the shared contractor facility. These
amounts will be included in the FY 2009-2010 Budget.
Recommendation:
Adopt Resolution and authorize the Director of Finance to include in the FY 09-10 Budget
increased revenue reimbursement in the amount of$36,720 ($22,860 rental revenue and $13,860
in estimated utilities reimbursement) in Account No. 001-000-4901.
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1
RESOLUTION NO. COPY
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
3 LEASE AGREEMENT WITH THE COUNTY OF SAN BERNARDINO FOR THE
LEASE OF A PORTION OF THE DELMANN HEIGHTS COMMUNITY CENTER TO
4 BE USED FOR THE HEAD START PROGRAM.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. That the City Manager is hereby authorized to execute a Lease Agreement with
8 the County of San Bernardino for the lease of a portion of the Delmar Heights Community
9 Center to be used for the Head Start Program, a copy of which is attached hereto, marked
10 Exhibit"A"and incorporated herein by reference as fully as though set forth at length: and
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12 SECTION 3. That the authorization granted hereunder shall expire and be void and of
13 no further effect if the agreement is not executed by both parties and returned to the office of
14 the City Clerk within ninety (90) days following the effective date of the resolution.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
LEASE AGREEMENT WITH THE COUNTY OF SAN BERNARDINO FOR THE
3 LEASE OF A PORTION OF THE DELMANN HEIGHTS COMMUNITY CENTER TO
BE USED FOR THE HEAD START PROGRAM.
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 and Common Council of the City of San Bernardino at a meeting thereof, held
7
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on the day of 2009, by the following vote, to wit:
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 ESTRADA
11 BAXTER
12 BRINKER
13 SHORRET
14 KELLEY
15
16 VAN JOHNSON
17 MC CAMMACK
18
19 Rachel G. Clark, City Clerk
20 The foregoing resolution is hereby approved this day of 2009.
21
22
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form:
24
25 By:
26 J es F. Penman, City Attorney
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FOR COUNTY USE ONLY
New Vendor Code Contract Number
wt"O Change
Cancel FSTT
County Deparmtent Dept. Orgn. Contractor's License No.
Real Estate Services Department
County Department Contract Representative Telephone Total Contract Amount
County of San Bernardino avid H.-Slaughter, Director 909 387-7813 $
F A S Contract Type
❑ Revenue ❑ Encumbered ❑ Unencumbered ❑ Other:
CONTRACT TRANSM ITT A If not encumbered or revenue contract type,provide reason:
Commodity Code Contract Start r Contract End E Original Amou Amendment Attn
Fui Dep Organizati App Obj/Rev Soun GRC/PROJ/JOB Amount
Fui Dep Organizatio App Obj/Rev Soun GRC/PROJ/JOB Amount
$
Fui Dep Organizatio Ap Obj/Rev Sour GRC/PROJ/JOB Amount
Project Name Estimated Payment Total by Fiscal Year
SB-PSD F1 Amoun FY Amnia
2969 Flores Street
car Rp,, rrlinn r•A
CONTRACTOR City of San Bernardino
Federal ID No. or Social Security No.
^ontractor's Representative Robert Lennox,Parks,Recreation&Cormnunity Services Department
Address 201-A N."E"Street, Suite 103, San Bernardino,CA 92401 Phone (909)38405931
Nature of Contract: (Briefly describe the general terms of the contract) This Lease Agreement is for a period of two(2)years with five
one-year options to extend. Leased Premises consist of 2,160 square feet of classroom and office space and 256 square feet of
playground area. Monthly rent is $1,905($0.88/sq. ft./month)modified gross.
City to provide all exterior maintenance and all utilities. County shall provide all interior maintenance and reimburse City for 36%of
the cost of utilities for the entire Community Center for the first year of the initial term Thereafter, County's prorata share of utilities
will not exceed the prior year's costs by more than three percent(3%).
(Attach this transmittal to all contracts not prepared on the "Standard Contract"form)
Approved as to Legal Form(sign in blue ink) Reviewed as to Contract Compliance Presented to BOS for Signature
► ► �
County Counsel Department Head
Date Dale
Date
Auditor/Controller-Recorder Use On.
❑Contract Database ❑FAS
Input Date Keyed By Exhibit "A"
' Revised 1/13/2009
COUNTY OF SAN BERNARDINO
LEASE AGREEMENT
CITY: CITY OF SAN BERNARDINO
Parks, Recreation &Community Services Department
201-A N. "E" Street, Suite 103
San Bernardino, CA 92401
COUNTY: COUNTY OF SAN BERNARDINO
Real Estate Services Department
825 East Third Street
San Bernardino, CA 92415-0832
ADDRESS: 2969 Flores Street
San Bernardino, CA
TERM OF LEASE: Two (2)years with five (5) one-year option(s)
COMMENCEMENT DATE OF LEASE: September 1, 2009
COST PER SQUARE FOOT: S.88, modified gross
COUNTY CONTRACT NUMBER:
REV: 7/7/07 (110568.13)
TYPED: 6/18/09
TABLE OF CONTENTS
PARAGRAPH CAPTION PAGE
1 PARTIES 1
2 PREMISES LEASED 1
3 TERM 1
4 RENT 1
5 EXPANSION OF RENTAL SPACE 1
6 OPTION TO EXTEND TERM 1
7 RETURN OF PREMISES 2
8 HOLDING OVER 2
9 TAXES 2
10 USE 2
11 HEALTH, SAFETY &FIRE CODE REQUIREMENTS 2
12 SIGNS 2
13 MAINTENANCE 2
14 ALTERATIONS 3
15 FIXTURES 4
16 UTILITIES 4
17 HOLD HARMLESS 4
18 INSURANCE SPECIFICATIONS 4
19 DESTRUCTION OF PREMISES 6
20 CITY'S DEFAULT 7
21 COUNTY'S REMEDIES ON CITY'S DEFAULT 7
22 COUNTY'S DEFAULT 8
23 CITY'S REMEDIES ON COUNTY'S DEFAULT 8
24 CITY'S ACCESS TO PREMISES 9
25 NOTICES 9
26 ASSIGNMENT 10
27 INCORPORATION OF PRIOR AGREEMENT 10
28 WAIVERS 10
29 AMENDMENTS 10
30 SUCCESSORS 10
31 SEVERABILITY 10
32 TIME OF ESSENCE 11
33 QUIET ENJOYMENT 11
34 PROVISIONS ARE COVENANTS & CONDITIONS 11
35 CONSENT 11
36 EXHIBITS 11
37 LAW 11
38 VENUE 11
39 REMEDIES: WAIVER 11
40 ATTORNEYS'FEES AND COSTS 11
42 COUNTY'S RIGHT TO TERMINATE LEASE 11
43 CITY'S IMPROVEMENTS 12
44 CAPTIONS, TABLE OF CONTENTS &COVER PAGE 12
Table of Contents
Page-2-
45 SURVIVAL 12
45 FORMER COUNTY OFFICIALS 12
46 ESTOPPEL CERTIFICATES 12
47 HAZARDOUS SUBSTANCES 12
48 PUBLIC RECORDS DISCLOSURE 13
49 CONDITION OF PREMISES 14
50 CONDEMNATION ' 14
51 MATERIAL MISREPRESENTATION 15
52 INTERPRETATIONS 15
53 COUNTERPARTS 15
54 AUTHORIZED SIGNATORS 16
Exhibit "A", List of Former County Officials
Exhibit "B", Estoppel Certificate
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LEASE AGREEMENT
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1. PARTIES: This Lease Agreement ("Lease") is made between City of San Bernardino
("CITY"), and the County of San Bernardino ("COUNTY"), who agree as follows:
2. PREMISES LEASED: CITY leases to COUNTY and COUNTY leases from CITY 2,160
square feet of building/classroom space encompassing all existing Head Start program and office space
in the Delmann Heights Community Center and 256 square feet of playground area, real property, and
other improvements, with parking, including handicapped parking, located at 2969 Flores Street, San
Bernardino, CA("Premises").
3. TERM:
a. Initial Term. The Lease's initial term ("Initial Term") shall commence on September 1,
2009 ("Commencement Date") and end on August 31, 2011 ("Ending Date").
b. Early Access. CITY shall allow the COUNTY early access ("Early Access") to the
Premises at any time prior to the Commencement Date for the purpose of the COUNTY or its
representatives installing communications equipment, modular furniture, alarms and such other items
that the COUNTY may reasonably desire.
4. RENT:
a. COUNTY shall pay to CITY the following monthly rental payments in arrears on the
last day of each month, commencing when the term commences, continuing during the term:
September 1, 2009 thru August 31, 2010 - monthly payments of$1,905.00.
September 1, 2010 thru August 31, 2011 - monthly payments of$1,962.00.
b. Rent for any partial month shall be prorated based on the actual number of days of the
month. CITY shall accept all rent and other payments from COUNTY under this Lease via electronic
funds transfer (EFT) directly deposited into the CITY's designated checking or other bank account.
CITY shall promptly comply with directions and accurately complete forms provided by COUNTY
required to process EFT payments.
5. EXPANSION OF RENTAL SPACE:
There is no expansion space available in this Lease.
6. OPTION TO EXTEND TERM:
a. CITY gives COUNTY the option to extend the term of the Lease on the same provisions
and conditions, except for the monthly rent, for five (5) one-year periods ("extended terms") following
expiration of the Initial Term, by COUNTY giving notice of its intention to exercise the option to CITY
prior to the expiration of the preceding term or during any holding over pursuant to Paragraph 8,
HOLDING OVER The rent for each extended term shall be adjusted by good faith negotiation of the
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adjusted by good faith negotiation of the parties to the fair market rental rate then prevailing based upon
the rental rates of comparable leased property in San Bernardino County.
7. RETURN OF PREMISES: The COUNTY agrees that it will, upon any termination of this
Lease, return the Premises in as good condition and repair as the Premises now are or shall hereafter be
put; reasonable wear and tear excepted.
8. HOLDING OVER: In the event the COUNTY shall hold over and continue to occupy the
Premises with the consent of the CITY, expressed or implied, the tenancy shall be deemed to be a
tenancy from month-to-month upon the same terms and conditions, including rent, as existed and
prevailed at the time of the expiration of the term of this Lease.
9. TAXES: CITY shall pay all real property taxes, and general and special assessments levied and
assessed against the Premises.
10. USE: COUNTY shall occupy and use the Premises during the term hereof exclusively for the
Head Start Program.
11. HEALTH, SAFETY AND FIRE CODE REQUIREMENTS• As a condition precedent to
the existence of this Lease, CITY, at its sole expense will ensure the Premises meet the applicable
requirements of all Health, Safety, Fire and Building Codes, statutes, regulations and ordinances for
public and governmental buildings, including any requirements for a notice of completion, certificate of
occupancy, California Title 24 requirements and the Americans with Disabilities Act ("ADA").
Specifically, CITY must ensure there is an accessible path of travel from public transportation to the
Premises pursuant to Title 24. Additionally, CITY warrants that any improvements on or in the
Premises which have been constructed or installed by CITY or with CITY's consent or at CITY's
direction shall comply with all applicable covenants or restrictions of record and applicable Codes,
statutes, regulations and ordinances in effect on the Commencement Date. CITY also warrants to
COUNTY that CITY has no knowledge of any claim having been made by any governmental agency
that a violation or violations of applicable Codes, statutes, regulations, or ordinances exist with regard
to the Premises as of the Commencement Date. Should the continued occupancy of the Premises be in
any way prejudiced or prevented due to changes in the ADA or the Health, Safety, Fire and Building
Codes, statutes, regulations or ordinances for public and governmental buildings, the CITY shall
correct, update and comply with said changes at CITY's cost.
12. SIGNS: COUNTY will display from the windows and/or marquee of the Premises only such
sign or signs as are not prohibited by law.
13. MAINTENANCE:
a. CITY at its cost shall perform such inspections, maintenance and repairs as are necessary
to ensure that all portions of the Premises, including but not limited to the following, are at all times in
good repair and safe condition:
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(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;and,
(2) The electrical, plumbing, and sewage systems, including, without limitation,
those portions of the systems owned or controlled by CITY lying outside the Premises; and,
(3) Window frames, gutters, and downspouts on the building and other
improvements that are a part of the Premises; and,
(4) Heating, ventilation and air conditioning(HVAC) systems servicing the Premises
including changing heating and air-conditioning filters every four(4) months.
(5) The grounds, including all parking areas and outside lighting, grass, trees,
shrubbery and other flora; and,
(6) COUNTY, at its cost, shall provide janitorial services, keep the interior of the
Premises in a clean and orderly condition, reasonable wear and tear excluded, and undertake minor
maintenance of the interior Premises such as unstoppage of toilets and changing of light bulbs and
servicing of the fire extinguisher or any other fire suppression equipment attached to the facility.
b. Without in any way affecting CITY's duty to inspect, maintain and repair the Premises
and regardless of whether any specific notice of need for maintenance or repair is provided to CITY by
the COUNTY, the COUNTY may request specific maintenance or repairs. Any such request may be
made orally, by telephone or otherwise. If, COUNTY gives notice to CITY of a condition requiring
maintenance or repairs, CITY shall use its best efforts to diligently commence the performance of its
maintenance or repair obligations within a reasonable time of receiving such notice. In the case of an
emergency, whether or not COUNTY has given notice to CITY, CITY shall immediately perform its
obligations, COUNTY can perform the obligations and have the right to be reimbursed for the sum
COUNTY actually and reasonably expends (including charges for COUNTY employees and
equipment) in the performance of CITY's obligations. If CITY fails to reimburse COUNTY as required
by this paragraph, COUNTY shall have the right to withhold from future rent due the sum COUNTY
has paid until COUNTY is reimbursed in full for the sum. The remedies set forth in this paragraph are
in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this
Lease. COUNTY shall forward to CITY receipts and/or documentation supporting the amount
withheld.
14. ALTERATIONS: Upon thirty (30) days' notice to the CITY and with the CITY's written
consent, COUNTY may place modular units to serve as office and classroom space, or modify existing
building structures at the Center, but solely at the expense of COUNTY. Any and all permit acquisition
and installation of utility lines are the sole responsibility of the COUNTY. Upon termination of this
Lease, COUNTY shall remove said modules at its own expense and leave this property in the same
condition it was at the time such modules were placed there, unless the parties mutually agree to retain
the modules on the site.
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15. FIXTURES: COUNTY shall have the right during the term(s)of this lease to install shelving
and fixtures, to include but not limited to, exterior playground equipment and make interior,non-
structural improvements or alterations in the Premises. Such shelving, fixtures,playground equipment,
improvements, and alterations shall remain the property of the COUNTY and may be removed by the
COUNTY during the term(s) of this lease or within a reasonable time thereafter,provided that the
COUNTY restores the Premises to the condition as it existed at the commencement of this lease,
reasonable wear and tear excluded, or the COUNTY in its sole discretion may elect to surrender all or
any part of such shelving, fixture, improvements and alterations,however excluding exterior
playground equipment, to the LANDLORD, in which case COUNTY shall have not duty to restore the
Premises. Any such election to surrender must be in writing,but need not be accepted by LANDLORD
to be effective.
16. UTILITIES: CITY shall furnish to the Premises and COUNTY shall pay all service charges
and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities.
COUNTY shall reimburse CITY for its prorata share of the cost of utilities for the Delmann Heights
Community Center,which is 36% for the first year of the initial term. Thereafter, COUNTY's prorata
share of utilities will not exceed the prior year's costs by more than three percent(3%). COUNTY shall
furnish and pay for its own security, vending machines and telephone service including pay telephones.
17. HOLD HARMLESS:
a. CITY agrees to defend, indemnify and hold harmless the COUNTY, its officers, agents
and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from
CITY's negligent acts or omissions arising from the CITY's performance of its obligations under this
Lease.
b. COUNTY agrees to defend, indemnify and hold harmless the CITY, its officers, agents
and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from
COUNTY's negligent acts or omissions arising from the COUNTY's performance of its obligations
under this Lease.
C. In the event the COUNTY and/or the CITY is found to be comparatively at fault for any
claim, action, loss or damage which results from their respective obligations under this Lease, the
COUNTY and/or CITY shall indemnify the other to the extent of its comparative fault.
d. Furthermore, if the COUNTY or CITY attempts to seek recovery from the other for
Workers Compensation benefits paid to an employee, the COUNTY and CITY agree that any alleged
negligence of the employee shall not be construed against the employer of that employee.
18. INSURANCE SPECIFICATIONS:
a. CITY and COUNTY are both self-insured public entities for purposes of professional
liability, general liability and workers' compensation.
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b. Subcontractor Insurance Requirements. The Parties agree to require all parties or
subcontractors, including architects or others it hires or contracts with related to the performance of this
contract ("Subcontractors") to provide insurance covering the contracted operation with the following
limits and naming the Parties as additional insureds. The hiring Party agrees to monitor and review all
such coverage and assumes all responsibility ensuring that such coverage is provided as required here.
(1) Workers' Compensation/Employers Liability - A program of Workers'
Compensation insurance or state-approved, self-insurance program in an amount and form to meet all
applicable requirements of the Labor Code of the State of California, including Employer's Liability
with $250,000 limits covering all persons including volunteers providing services under this Lease.
(2) Commercial/General Liability Insurance — General Liability Insurance covering
all operations performed by or on behalf of the Subcontractor providing coverage for bodily injury and
property damage with a combined single limit of not less than One Million Dollars ($1,000,000), per
occurrence. The policy coverage shall include:
(a) Premises operations and mobile equipment.
(b) Products and completed operations.
(c) Broad form property damage (including completed operations).
(d) Explosion, collapse and underground hazards
(e) Personal injury
(f) Contractual liability
(g) $2,000,000 general aggregate limit.
(3) Automobile Liability Insurance—Primary insurance coverage shall be written on
ISO Business Auto coverage form for all owned, hired and non-owned automobiles or symbol 1 (any
auto). The policy shall have a combined single limit of not less than One Million Dollars ($1,000,000)
for bodily injury and property damage,per occurrence.
If the Subcontractor is transporting one or more non-employee passengers in the use of
this lease, the automobile liability policy shall have a combined single limit of Two Million Dollars
($2,000,000) for bodily injury and property damage per occurrence.
If the Subcontractor owns no autos, a non-owned auto endorsement to the General
Liability policy described above is acceptable.
(4) Umbrella Liability Insurance —An umbrella (over primary) or excess policy may
be used to comply with limits or other primary coverage requirements. When used, the umbrella policy
shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a
"dropdown" provision providing primary coverage for any liability not covered by the primary policy.
The coverage shall also apply to automobile liability.
Y (5) If the Subcontractor performs any construction of the Premises, the contractor
shall also procure and maintain coverages as follows:
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i. For construction contracts for projects over One Million Dollars
($1,000,000) and less than Three Million Dollars ($3,000,000) require limits of not less than Three
Million Dollars in General Liability and Auto coverage.
ii. For construction contracts for projects over Three Million Dollars
($3,000,000) and less than Five Million Dollars ($5,000,000) require limits of not less than Five
Million Dollars($5,000,000) in General Liability and Auto coverage.
iii. For construction contracts for projects over Five Million Dollars
($5,000,000) and less than Ten Million Dollars ($10,000,000) require limits of not less than Ten
Million Dollars($10,000,000) in General Liability and Auto coverage.
iv. Course of Construction/Installation (Builder's Risk) property insurance
providing all risk, including theft coverage for all property and materials to be used on the project. The
insurance policy shall not have any coinsurance penalty.
(6) Additional Insured — All policies, except for the Workers' Compensation, shall
contain endorsements naming the CITY and COUNTY and their officers, employees, agents and
volunteers as additional insureds with respect to liabilities arising out of the use under this lease
hereunder. The additional insured endorsements shall not limit the scope of coverage for the CITY or
COUNTY to vicarious liability but shall allow coverage for the CITY and COUNTY to the full extent
provided by the policy. Such additional insured coverage shall be at least as broad as Additional
Insured(Form B) endorsement form ISO, CG 2010.11 85.
(7) Waiver of Subrogation Rights —The Parties shall require the carriers of required
coverages to waive all rights of subrogation against the Parties, their officers, employees, agents,
volunteers, contractors and subcontractors. All general or auto liability insurance coverage provided
shall not prohibit the Parties and their employees or agents from waiving the right of subrogation prior
to a loss or claim. The Parties hereby waive all rights of subrogation against the other Party.
(8) Policies Primary and Non-Contributory — All policies required herein are to be
primary and non-contributory with any insurance or self-insurance programs carried or administered by
the Parties.
19. DESTRUCTION OF PREMISES:
a. During the term of this Lease, if any casualty, other than resulting from COUNTY's use
of the Premises, renders a portion of the Premises unusable for the purpose intended, then CITY shall,
at CITY's expense, restore the Premises and repair any damages caused by such casualty as soon as
reasonably possible and this Lease shall continue in full force and effect. If CITY does not commence
the restoration of the Premises in a substantial and meaningful way within thirty(30) days following the
CITY's receipt of written notice of the casualty, or should CITY fail to diligently pursue completion of
the restoration of the Premises, or if the time required to restore the Premises is estimated to exceed
ninety (90) days, COUNTY may, at its option, terminate this Lease immediately upon written notice to
may, at its option, terminate this Lease immediately upon written notice to the CITY. If COUNTY
elects to terminate this Lease pursuant to this provision, COUNTY shall be discharged of all future
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of all future obligations under this Lease.
b. In the event there is a destruction of a portion of the Premises as set out in
subparagraph a above, there shall be an abatement or reduction of the rent between the date of
destruction and the date of completion of restoration or the date of termination of this Lease, whichever
comes first. The abatement or reduction of the rent shall be in proportion to the degree to which
COUNTY's use of the Premises is impaired.
C. In the event CITY is required to restore the Premises as provided in this paragraph,
CITY shall restore, at CITY's expense, any structural or exterior improvements or alterations to the
Premises made by COUNTY pursuant to Paragraph 14, ALTERATIONS, of this Lease, but shall not
be responsible for restoring any shelving, fixtures, or interior nonstructural improvements or alteration
made by the COUNTY pursuant to Paragraph 15, FIXTURES, of this Lease.
d. If any casualty resulting from COUNTY's use of the Premises renders the Premises
unusable for the purposes intended, then COUNTY shall, at COUNTY's expense, restore the Premises
and repair any damages caused by such casualty as soon as reasonably possible and this Lease shall
continue in full force and effect.
e. It is the purpose and intent of this paragraph to determine who shall bear the initial
responsibility for restoration of the Premises in the event of any such destruction and not to determine
the party ultimately responsible for the costs of such restoration.
20. CITY'S DEFAULT: Except where another time limit is specifically provided, CITY shall be
in default of this Lease if CITY fails or refuses to perform any material provisions of this Lease and
such failure or refusal to perform is not cured within thirty (30) days following CITY's receipt of
written notice of default from COUNTY. If the default cannot reasonably be cured within thirty (30)
days, CITY shall not be in default of this Lease if CITY commences to cure the default within the thirty
(30) day period and diligently and in good faith continues to cure the default.
21. COUNTY'S REMEDIES ON CITY'S DEFAULT: COUNTY, at anytime after CITY is in
default, can terminate this Lease immediately upon written notice to CITY or can cure the default at
CITY's cost. If COUNTY at any time, by reason of CITY's default, pays any sum or does any act that
requires the payment of any sum (including charges for COUNTY's employees and equipment), the
sum paid by COUNTY shall be due from CITY to COUNTY within thirty(30) days of notice of such
sum, and if paid at a later date shall bear interest at the maximum rate the:COUNTY is permitted by
law to charge from the date the sum was paid by COUNTY until COUNTY is reimbursed by CITY. If
CITY fails to reimburse COUNTY as required by this paragraph, COUNTY shall have the right to
withhold from future rent due the sum COUNTY has paid until COUNTY is reimbursed in full forth
sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any
manner limit other remedies set forth in particular paragraphs of this Lease.
22. COUNTY'S DEFAULT: The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by COUNTY:
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a. The vacating for more than thirty(30) consecutive days or abandonment of the Premises
by COUNTY.
b. The failure by COUNTY to perform any material provisions of this Lease to be
performed by COUNTY, including the payment of rent, where such failure shall continue for a period
of thirty (30) days after notice by CITY to COUNTY; provided, however, that if the nature of
COUNTY's default is such that more than thirty (30) days are reasonably required for its cure, then
COUNTY shall not be deemed to be in default if COUNTY commences such cure within said thirty
(30) day period and thereafter diligently prosecutes such cure to completion. The purpose of this notice
requirement is to extend the notice requirements of the unlawful detainer statutes of California.
23. CITY'S REMEDIES ON COUNTY'S DEFAULT:
a. In the event of any default by COUNTY, which is not cured by COUNTY, CITY may, at
its election, terminate this Lease by giving COUNTY thirty (30) days notice of termination. The
purpose of this notice requirement is to extend the notice requirement of the unlawful detainer statutes
of California. On termination of the Lease for default pursuant to this paragraph, CITY shall have the
right to recover from COUNTY only the following amounts for any and all damages, which may be the
direct or indirect result of such default:
(1) The worth, at the time of the award, of the unpaid rent that has been earned at the
time of termination of this Lease; and,
(2) The worth, at the time of the award, of the amount by which the unpaid rent that
would have been earned after the date of termination of this Lease until the time of award exceeds the
amount of the loss of rent that CITY proves could not have been reasonably avoided; and,
(3) The worth, at the time of the award, of the amount by which the unpaid rent for
the balance of the term after the time of award exceeds the amount of the loss of rent that CITY proves
could not have been reasonably avoided; and,
(4) Any other amount necessary to compensate CITY for all detriment proximately
caused by COUNTY's default which CITY proves could not have been reasonably avoided.
(5) "The worth, at the time of the award," as used in subparagraphs a(1) and a(2)
of this paragraph, is to be computed by allowing interest at the maximum rate COUNTY is permitted
by law to charge. "The worth, at the time of the award," as referred to in subparagraph a(3) of this
paragraph, is to be computed by discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of the award, plus one percent (M).
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b. Notwithstanding subparagraph a, above, on any termination of the Lease for default
pursuant to this paragraph, the amount CITY shall have the right to recover from COUNTY for any and
all damages which may be the direct or indirect result of such default shall not exceed the amount CITY
would have been entitled to receive had the COUNTY terminated the Lease under Paragraph 41,.
RIGHT TO TERMINATE LEASE.
24. CITY'S ACCESS TO PREMISES: CITY and its authorized representatives shall have the
right to enter the Premises at all reasonable times for any of the following purposes:
a. To determine whether the Premises are in good condition; and,
b. To do any necessary maintenance and to make any restoration to the Premises that CITY
has the right or obligation to perform; and,
C. To serve, post, or keep posted any notices required by law; and,
d. To post "for sale" signs at any time during the term, to post "for rent" or "for Lease"
signs during the last three (3) months of the term; and,
e. To show the Premises to prospective brokers, agents, buyers, tenants, lenders or persons
interested in an exchange, at any time during the term.
CITY shall conduct its activities on the Premises as allowed in this paragraph in a manner that will
cause the least possible inconvenience, annoyance,or disturbance to COUNTY.
25. NOTICES:
a. Any notice, demand, request, consent, approval, or communication that either party
desires or is required to give to the other party or any other person shall be in writing and either served
personally or sent by prepaid, first-class mail to the address set forth below. Either party may change its
address by notifying the other party of the change of address. Notice shall be deemed communicated
five calendar days from the time of mailing if mailed as provided in this paragraph.
CITY's address: City of San Bernardino
Parks, Recreation & Community Services Department
201-A North "E" Street, Suite 103
San Bernardino, CA 92401
COUNTY's address: County of San Bernardino
Real Estate Services Department
825 East Third Street, Room 207
San Bernardino, CA 92415-0832
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26. ASSIGNMENT.
a. COUNTY shall not voluntarily or by operation of law assign, transfer, sublet or
encumber all or any party of the COUNTY's interest in this Lease without the CITY's prior written
consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall
constitute a breach of this Lease and cause the termination of this Lease. Regardless of CITY's
consent, no subletting or assignment shall release COUNTY of its obligation to perform all other
obligations to be performed by COUNTY hereunder for the term of this Lease.
In. If, at any time after the COUNTY accepts the Premises, the CITY assigns or transfers a
controlling interest of its rights in the Premises to a third party, CITY must notify COUNTY of its
action at least fifteen (15) COUNTY working days prior to completing any such action. The new
owner must provide COUNTY with evidence of completion of such action. The parties shall
immediately execute an amendment to this Lease stating the change of ownership of the Premises.
(1) Within fifteen (15) COUNTY working days of completing any action which
affects a change in the ownership of the Premises, the new owner must provide COUNTY evidence of
obtaining insurance in compliance with Paragraph 18,INSURANCE SPECIFICATIONS.
27. INCORPORATION OF PRIOR AGREEMENT: This Lease contains all of the agreements
of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior
agreement or understanding pertaining to any such matter shall be effective for any purpose.
28. WAIVERS: No waiver by either party of any provisions of this Lease shall be deemed to be a
waiver of any other provision hereof or of any subsequent breach by either party of the same or any.
other provisions.
29. AMENDMENTS: No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successor in interest, expressing by
its terms an intention to modify this Lease.
30. SUCCESSORS: This Lease shall inure to the benefit of and be binding upon the heirs,
executors, administrators, successors, and assigns of the parties hereto.
31. SEVERABILITY: If any word, phrase, clause, sentence, paragraph, section, article, part or
portion of this Lease is or shall be invalid for any reason, the same shall be deemed severable from the
remainder hereof and shall in no way affect or impair the validity of this Lease or any other portion
thereof.
32. TIME OF ESSENCE: Time is of the essence of each provision of this Lease which specifies a
time within which performance is to occur. In the absence of any specific time for performance,
performance may be made within a reasonable time.
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33. QUIET ENJOYMENT: Subject to the provisions of this Lease and conditioned upon
performance of all the provisions to be performed by COUNTY hereunder, CITY shall secure to
COUNTY during the Lease term the quiet and peaceful possession of the Premises and all right and
privilege appertaining thereto.
34. PROVISIONS ARE COVENANTS AND CONDITIONS: All provisions, whether
covenants or conditions, on the part of either party shall be deemed to be both covenants and
conditions.
35. CONSENT: Whenever consent or approval of either party is required that party shall not
unreasonably withhold, condition or delay such consent or approval.
36. EXHIBITS: All exhibits referred to are attached to this Lease and incorporated by reference.
37. LAW: This Lease shall be construed and interpreted in accordance with the laws of the State of
California.
38. VENUE: The parties acknowledge and agree that this Lease was entered into and intended to be
performed in San Bernardino County, California. The parties agree that the venue for any action or
claim brought by any party to this Lease will be the Superior Court of California, County of San
Bernardino, San Bernardino District. Each party hereby waives any law, statute (including but not
limited to Code of Civil Procedure section 394), or rule of court that would allow them to request or
demand a change of venue. If any third party brings an action or claim concerning this Lease, the parties
hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California,
County of San Bernardino, San Bernardino District.
39. REMEDIES: WAIVER: All remedies available to either party for one or more breaches by the
other party are and shall be deemed cumulative and may be exercised separately or concurrently without
waiver of any other remedies. The failure of either party to act in the event of a breach of this Lease by the
other shall not be deemed a waiver of such breach or a waiver of future breaches unless such waiver shall
be in writing and signed by the party against whom enforcement is sought.
40. ATTORNEYS' FEES AND COSTS: If any legal action is instituted to enforce or declare any
party's rights hereunder, each party, including the prevailing party, must bear its own costs and
attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from
any third party legal action against the COUNTY, including such costs and attorneys' fees payable
under Paragraph 17, HOLD, HARMLESS, Paragraph 47, HAZARDOUS SUBSTANCES, and
Paragraph 48, PUBLIC RECORDS DISCLOSURE.
41. RIGHT TO TERMINATE LEASE: This Lease may be terminated at any time by ninety(90)
days written notice by either party. In the event COUNTY terminates this Lease pursuant to this
paragraph, the CITY shall have the right to receive from COUNTY only the rent which will have been
earned at the date of termination of this Lease.
42. CITY'S IMPROVEMENTS: There are no improvements being constructed by the CITY
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43. CAPTIONS, HEADINGS, TABLE OF CONTENTS AND COVER PAGE: The paragraph
captions,table of contents and the cover page of this Lease shall have no effect on its interpretations.
44. SURVIVAL: The obligations of the parties that, by their nature, continue beyond the term of
this Lease,will survive the termination of this Lease.
45. FORMER COUNTY OFFICIALS: CITY agrees to provide or has already provided
information on former COUNTY administrative officials (as defined below) who are employed by or
represent CITY. The information provided includes a list of former COUNTY administrative officials
who terminated COUNTY employment within the last five years and who are now officers, principals,
partners, associates or members of the business. The information should also include the employment
and/or representative capacity and the dates these individuals began employment with or representation
of your business. For purposes of this provision, "COUNTY administrative official" is defined as a
member of the Board of Supervisors or such officer's staff, COUNTY Administrative Officer or
member of such officer's staff, COUNTY department or group head, assistant department or group
head, or any employee in the Exempt Group, Management Unit or Safety Management Unit. (See
Exhibit"A,"List of Former County Officials.)
46. ESTOPPEL CERTIFICATES: Each party within thirty (30) days after notice from the other
party, shall execute and deliver to other party, in recordable form, a certificate stating that this Lease is
unmodified and in full force and effect, or in full force and 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 as shown in Exhibit `B,"Estoppel Certificate.
47. HAZARDOUS SUBSTANCES:
a. CITY hereby represents and warrants that, to the best of CITY's knowledge, information
and belief: (i) the Premises have not been exposed to Hazardous Substances and are presently free of
all Hazardous Substances; (ii) neither the CITY nor any of the other current tenants, if any, on the
property of which the Premises forms a part is in violation or subject to an existing, pending or
threatened investigation by any governmental authority under any applicable federal, state or local law,
regulation, ordinance or other legislation pertaining to air, water, or soil quality or the handling,
transportation, storage, treatment, usage or disposal of Hazardous Substances; (iii) any handling,
transportation, storage, treatment or use of toxic or Hazardous Substances to date has been in
compliance with applicable laws; and (iv) no reportable use has occurred on the Premises to date, and
the soil, groundwater and vapor on or under the Premises is free of Hazardous Substances as of the
Commencement Date.
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b. CITY shall indemnify,protect, defend and hold COUNTY, its agents and employees and
the Premises, harmless from and against any and all losses and/or damages, liabilities,judgments, costs,
claims, expenses, penalties, including attorneys' and consultant's fees, arising out of or involving the
existence of any Hazardous Substances located in, about or under the Premises prior to the
Commencement Date of this Lease. Additionally, the issuance of an urder by any governmental
authority directing the CITY or any of CITY's other tenants or licensees on the property of which the
Premises forms a part to cease and desist any illegal action in connection with a Hazardous Substance,
or to remediate a contaminated condition caused by the CITY or any person acting under CITY's direct
control and authority is a breach of this Contract, and CITY shall be responsible for all costs and
expenses of complying with such order, including any and all expenses imposed on or incurred by
COUNTY in connection with or in response to such order. CITY's obligations under this paragraph
shall include, but shall not be limited to, the effects of any contamination or injury to person, property
or the environment created or suffered by COUNTY, and the cost of investigation, removal,
remediation, restoration and/or abatement thereof. CITY's obligations under this provision shall
survive the expiration or early termination of this Lease. No termination, cancellation or release
agreement entered into by COUNTY and CITY shall release CITY from its obligations under this Lease
with regard to Hazardous Substances unless specifically agreed to by COUNTY in writing.
C. For the purposes of this paragraph, the following definitions shall apply:
(1) "Hazardous Substance," as used in this Lease, shall mean any product, substance
or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in
combination with other materials expected to be on the Premises, is either @ potentially injurious to the
public health, safety or welfare, the environment or the Premises; (ii)regulated or monitored by any
governmental authority; or(iii) a basis for potential liability of CITY or COUNTY under any applicable
statute or common law theory.
(2) "Reportable use" shall mean (i) the installation or use of any above- or below-
ground storage tank; (ii) the generation, possession, storage, use, transportation or disposal of a
Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration
or business plan is required to be filed with any governmental authority and/or (iii) the presence at the
Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a
notice be given to persons entering or occupying the Premises or neighboring properties.
(3) The term "applicable requirements" shall be deemed to refer to all applicable
laws, covenants or restrictions of record,building codes, regulations and ordinances.
48. PUBLIC RECORDS DISCLOSURE: All information received by the CITY or COUNTY
concerning this Lease, including the Lease itself, may be treated as public information subject to
disclosure under the provisions of the California Public Records Act, Government Code Section 6250 et
sec.. (the"Public Records Act'). The Parties understand that although all materials received in connecti on
with this Lease are intended for the exclusive use of the parties, they are potentially subject to disclosure
under the provisions of the Public Records Act.
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49. CONDITION OF PREMISES: CITY shall deliver the Premises to COUNTY clean and free
of debris on the Commencement Date and warrants to COUNTY that the plumbing, electrical systems,
fire sprinkler system, lighting, air conditioning and heating systems and loading doors, if any, in the
Premises shall be in good operating condition on the Commencement Date.
50. CONDEMNATION: If the Premises or any portion thereof are taken under the power of
eminent domain or sold under the threat of the exercise of said power (all of which are herein called
"condemnation"), this Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs. If more than ten percent (10%) of the floor
area of the Premises, or more than twenty-five percent (25%) of the portion of the Common Areas or
that portion of the Premises designated for COUNTY's parking, is taken by condemnation, COUNTY
may, at COUNTY's option, to be exercised in writing within thirty (30) days after CITY shall have
given COUNTY written notice of such taking (or in the absence of such notice, within thirty (30) days
after the condemning authority shall have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. If COUNTY does not terminate this Lease in accordance
with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises
remaining, except that the rent shall be reduced in the same proportion as the rentable floor area of the
Premises taken bears to the total rentable floor area of the Premises. No reduction of rent shall occur if
the condemnation does not apply to any portion of the Premises. COUNTY shall be entitled to receive
the following amounts of any award for the taking of all or any part of the Premises under the power of
eminent domain or any payment made under threat of the exercise of such power: (a) one hundred
percent (100%) of any amount attributable to any excess of the market value of the Premises for the
remainder of the Lease Term over the present value as of the Termination Date of the Rent payable for
the remainder of the Lease Term (commonly referred to as the "bonus value" of the Lease); and (b)
COUNTY shall have the right to make a separate claim in the Condemnation proceeding for: (i) The
taking of the amortized or undepreciated value of any trade fixtures or leasehold improvements owned
by COUNTY that COUNTY has the right to remove at the end of the Lease term and that COUNTY
elects not to remove; (ii) Reasonable removal and relocation costs for any trade fixtures or leasehold
improvements that COUNTY has the right to remove and elects to remove (if Condemnor approves of
the removal); (iii) Loss of goodwill; (iv) Relocation costs under Government Code section 7262, the
claim for which COUNTY may pursue by separate action independent of this Lease; and(v) Any other
amount in addition to the foregoing that the COUNTY is allowed under condemnation law. COUNTY
shall have the right to negotiate directly with Condemnor for the recovery of the portion of the Award
that COUNTY is entitled to under subparagraph (b) of this paragraph. In the event that this Lease is
not terminated by reason of such condemnation, CITY shall repair any damage to the Premises caused
by such condemnation authority pursuant to Paragraph 13, MAINTENANCE, and Paragraph 19,
DESTRUCTION OF PREMISES.
51. MATERIAL MISREPRESENTATION: If during the course of the administration of this
lease, a party determines that the other party has made a material misstatement or misrepresentation or
that materially inaccurate information has been provided to the party, this Lease may be immediately
terminated. If this Lease is terminated according to this provision, the terminating party is entitled to
pursue any available legal remedies.
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52. INTERPRETATIONS: As this Lease was jointly prepared by both parties, the language in all
parts of this Lease shall be construed, in all cases, according to its fair meaning, and not for or against
either party hereto.
53. COUNTERPARTS: This Lease maybe executed by the parties in counterparts, and when any
one or more copies of this Lease have been executed by all of the parties, this Lease shall be effective,
and all such copies shall be deemed and construed to be one agreement.
r * * * rr
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LEASE AGREEMENT
COUNTY OF SAN BERNARDINO—CITY OF SAN BERNARDINO
54. AUTHORIZED SIGNATORS: Both parties to this Lease represent that the signators
executing this document are fully authorized to enter into this Lease.
END OF LEASE TERMS.
COUNTY OF SAN BERNARDINO CITY:
By:
Gary C. Ovitt, Chairman, Board of Supervisors Charles McNeely, City Manager
Date: Date:
SIGNED AND CERTIFIED THAT
A COPY OF THIS DOCUMENT
,.+ HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD APPROVED AS TO rORM:
DENA M. SMITH, Clerk of the Board of JAMES F. PENMAN, City Attorney
Supervisors
By:
By:
Deputy
Date:
Approved as to Legal Form:
RUTH E. STRINGER, County Counsel
San Bernardino County, California
By:
Deputy
Date:
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EXHIBIT "A"
LIST OF FORMER COUNTY OFFICIALS
INSTRUCTIONS: List the full name of the former COUNTY Administrative Official, the
title/description of the Official's last position with the COUNTY, the date the Official terminated
COUNTY employment, the Official's current employment and/or representative capacity with
the CITY, the date the Official entered CITY's employment and/or representation.
OFFICIAL'S NAME: REQUIRED INFORMATION
2
EXHIBIT "B" - ESTOPPEL CERTIFICATE
Date:
To:
Re:
(address) (city)
The undersigned("County") hereby certifies as follows:
1. County is in possession of California (the
'Premises"). County leases the Premises under a written Lease Agreement dated , 20_,
Lease Agreement No. (the "Lease"), wherein County is the lessee or tenant, and
, ("Owner") is the lessor or CITY.
2. The Lease is in full force and effect and has not been amended, supplemented or
changed, except as follows:
3. The term of the Lease commenced on 20 is scheduled to
expire 20—. County has no right or option to renew or extend the term of the Lease
except as to the following: (__) -year options.
4. County's current monthly rental is $ _, payable on the last day of each month.
5. County currently has no security deposit with Owner.
6. County is not in default under the terms of the Lease and no condition exists which, with
the passage of time or the giving of notice, or both, would constitute such a default. To the best of
County's knowledge, Owner is not in default under the terms of the Lease, and no condition exists
which, with the passage of time or the giving notice, or both, would constitute such a default.
7. County hereby certifies that the foregoing is true and correct.
By:
Director
Real Estate Services Department
1