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HomeMy WebLinkAbout15- Parks, Recreation & Community Services CITY OF SAN BERNARDINO—REQUEST FOR COUNCILBRANAL From: Kevin Hawkins, Director Subject: Resolution rescinding Resolution No. 2009-300, and authorizing the City Dept: Parks, Recreation& Community Manager to execute a revised Lease Services Department Agreement with the County of San Bernardino for the lease of a portion of the Date: August 19, 2009 Delmann Heights Community Center to be used for the Head Start Program. M/CC Meeting Date: September 8, 2009 Synopsis of Previous Council Action: August 17, 2009 Resolution No. 2009-300 was adopted; resolution authorized execution of 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. Recommended Motions: 1. Adopt Resolution; and 2) Authorize the Director of Finance to amend the FY 2009-201 Parks & R creation budget as outlined in the staff report. Signa e Contact person: Robert Lennox Phone: 384-5031 Supporting data attached: Staff Report-Reso.& Apreement Ward: 6 FUNDING REQUIREMENTS: Amount: Lease revenue of approximately$22,500 for the first year of term - September 9,2009 through August 31, 2010; and, approximately $23,500 for the second year. Source: (Acct. No.) 001-000-4901 (Acct. Description) Finance: Council Notes: 41e'510 X00 9 3 /� Agenda Item No. 9-�-a9 CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the Mayor and Common Council of the City of San Bernardino rescinding Resolution 2009-300, and authorizing the City Manager to execute a revised Lease Agreement with the County of San Bernardino for the lease of a portion of the Delmann Heights Community Center to be used for the Head Start Program. Backeround• At the August 17, 2009 Council meeting, Resolution 2009-300 was adopted. Resolution No. 2009-300 authorized 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. Despite the fact that staff from the City and the County collaborated on the document that was presented to Council at their meeting on August 17`s, subsequent to that action, staff was notified by the County of San Bernardino that the lease was not acceptable, as written. Therefore, the attached Resolution rescinds Resolution 2009-300, and authorizes execution of a revised Lease Agreement with the County of San Bernardino As a result, the County has revised the Lease Agreement in the following manner: • Paragraph 3: TERM The commencement date of the Lease has been changed from September 1, 2009 to September 9, 2009. • Paragraph 4: RENT The amount of rent for the initial month has been prorated ($1,397.00) for the period of September 9, 2009 through September 30, 2009 in the revised Agreement; in the initial Lease Agreement,the rent for the initial month was $1,905.00. • Paragraph 16: UTILITIES Language was amended to clearly state that the City will pay the utilities at the Delmann Heights Community Center, and that the County will reimburse the City for its prorata share of the cost of utilities at the center, which is 36% during the first year of the initial term. • Paragraph 54: USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 FUNDS AND REQUIREMENTS• Additional language has been added pertaining to the use of American Recovery and Reinvestment Act of 2009 funds and requirements. • Paragraph 55: SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS: Language pertaining to Schedule of Expenditure of Federal Awards has been added. The revised Lease Agreement was submitted for consideration by the San Bernardino County Board of Supervisors at their meeting scheduled for August 25, 2009. Pursuant to the revised Lease Agreement, the County will pay a rental fee of approximately $22,500 for the initial year, and $23,500 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 $13,900 annually. The Lease Agreement, as revised, is of mutual benefit to both the City and the SBCPSD. Financial Impact: The agreement will provide approximately$22,500 (rounded) in additional rental revenue during the first year and $23,500 during the second year of the initial two-year term. This $22,500 in new revenue has already been included in the FY 2009-2010 budget balancing measures presented to the Mayor and Council on June 4, 2009. Additionally,the County will be responsible for 36% of utility costs at the center, which will result in savings up to $13,900 per year. This savings will free up existing funds previously budgeted for Parks&Recreation utilities to be used toward recreation program areas. Recommendation: 1) Adopt Resolution; and 2) Authorize the Director of Finance to amend the FY 2009-2010 Parks & Recreation budget as outlined in the staff report. I RESOLUTION NO. COPY 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO RESCINDING RESOLUTION 2009-300, AND AUTHORIZING 3 THE CITY MANAGER TO EXECUTE A REVISED LEASE AGREEMENT WITH THE COUNTY OF SAN BERNARDINO FOR THE LEASE OF A PORTION OF THE 4 DELMANN HEIGHTS COMMUNITY CENTER TO BE USED FOR THE HEAD START PROGRAM. 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. That Resolution 2009-300 is hereby rescinded; and 9 SECTION 2. That the City Manager is hereby authorized to execute a revised Lease 10 Agreement with the County of San Bernardino for the lease of a portion of the Delmann 11 Heights Community Center to be used for the Head Start Program, a copy of which is attached 12 hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at 13 length; and 14 SECTION 3. That the authorization granted hereunder shall expire and be void and of no 15 16 further effect if the agreement is not executed by both parties and returned to the office of the 17 City Clerk within ninety (90) days following the effective date of the resolution. 18 19 20 21 22 23 24 25 26 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO RESCINDING RESOLUTION 2009-300, AND AUTHORIZING 2 THE CITY MANAGER TO EXECUTE A REVISED LEASE AGREEMENT WITH THE COUNTY OF SAN BERNARDINO FOR THE LEASE OF A PORTION OF THE 3 DELMANN HEIGHTS COMMUNITY CENTER TO BE USED FOR THE HEAD START PROGRAM. 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 on the day of 2009, by the following vote, to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 ESTRADA 11 BAXTER 12 BRINKER 13 SHORRET 14 KELLEY 15 16 VANJOHNSON 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 23 City of San Bernardino 24 Approved as to form: 25 By- 26 es F. Penman, City Attorney 27 28 Exhibit "A" FOR COUNTY USE ONLY New Vendor Code DCpt. Contract Number Change sC Cancel County Department Dept. Orgn. Contractor's License No. Real Estate Services Department County Department Contract Representative Telephone Total Contract Amount County of San Bernardino David H. Slaughter, Director 909)387-7813 $ F A S Contract Type ❑ Revenue ❑ Encumbered ❑ Unencumbered ❑ Other: CONTRACT TRANSMITTAL If not encumbered or revenue contract type,provide reason: Commodity Code Contract Start Date Contract End Date Original Amount Amendment Amount Fund Dept. I Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount S Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount $ Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount Project Name Estimated Payment Total by Fiscal Year SB-PSD FY Amount UD FY Amount UD 2969 Flores Street c,..PtP. aMm,, CA CONTRACTOR City of San Bernardino Federal ID No. or Social Security No. Contractor's Representative Robert Lennox,Parks,Recreation&Community Services Department Address 201-A N."E"Street, Suite 103,San Bernardino,CA 92401 Phone (909)38405931 Nature of Contract: (Briefly describe the general terms of the contract) This Lease Agreement is for a period of two(2)years with five one-year options to extend. Leased Premises consist of 2,160 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 Date Date Auditor/Controller-Recorder Use 0 O Contract Database ❑FAS Input Date Keyed By Revised 1/132009 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 9, 2009 COST PER SQUARE FOOT: $0.88, 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 1 I 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 USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 FUNDS AND REQUIREMENTS 16 55 SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS 16 56 AUTHORIZED SIGNATORS 17 Exhibit "A", List of Former County Officials Exhibit "B", Estoppel Certificate 2 LEASE AGREEMENT 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 9, 2009 ("Commencement Date") and end on August 31, 2011 ("Ending Date"). b. Early Access. CITY shall allow the COUNTY early access ("Early Access") to the Premises at any time prior to the Commencement Date for the purpose of the COUNTY or its representatives installing communications equipment, modular furniture, alarms and such other items that the COUNTY may reasonably desire. 4. RENT: a. COUNTY shall pay to CITY the following monthly rental payments in arrears on the last day of each month, commencing when the term commences, continuing during the term: September 9, 2009 thru September 30, 2009 -prorated payment of$1,397.00. October 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 1 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: (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 (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. 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 3 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 fumish to the Premises and CITY shall pay all service charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities. COUNTY shall reimburse CITY for its prorata share of the cost of utilities for the Delmann Heights Community Center, which is 36%during the first year of the initial term. Thereafter, COUNTY's 36%prorata share of all utility costs will not exceed the prior year's costs by more than three percent(3%). COUNTY shall famish 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. 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. 4 (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 I (any auto). The policy shall have a combined single limit of not less than One Million Dollars ($1,000,000) for bodily injury and property damage, per occurrence. If the Subcontractor is transporting one or more non-employee passengers in the use of this lease, the automobile liability policy shall have a combined single limit of Two Million Dollars ($2,000,000) for bodily injury and property damage per occurrence. If the Subcontractor owns no autos, a non-owned auto endorsement to the General Liability policy described above is acceptable. (4) Umbrella Liability Insurance — An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a"dropdown" provision providing primary coverage for any liability not covered by the primary policy. The coverage shall also apply to automobile liability. (5) If the Subcontractor performs any construction of the Premises, the contractor shall also procure and maintain coverages as follows: i. For construction contracts for projects over One Million Dollars ($1,000,000) and less than Three Million Dollars ($3,000,000) require limits of not less than Three Million Dollars in General Liability and Auto coverage. ii. For construction contracts for projects over Three Million Dollars ($3,000,000) and less than Five Million Dollars ($5,000,000) require limits of not less than Five Million Dollars ($5,000,000) in General Liability and Auto coverage. 5 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 carved or administered by the Parties. �t 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 the CITY. If COUNTY elects to terminate this Lease pursuant to this provision, COUNTY shall be discharged 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 6 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 for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. 22. COUNTY'S DEFAULT: The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by COUNTY: a. The vacating for more than thirty (30) consecutive days or abandonment of the Premises by COUNTY. b. The failure by COUNTY to perform any material provisions of this Lease to be performed by COUNTY, including the payment of rent, where such failure shall continue for a period of thirty (30) days after notice by CITY to COUNTY; provided, however, that if the nature of COUNTY's default is such that more than thirty (30) days are reasonably required for Q 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. 7 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(1%). 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, 8 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 9 26. ASSIGNMENT. a. COUNTY shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any party of the COUNTY's interest in this Lease without the CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Lease and cause the termination of this Lease. Regardless of CITY's consent, no subletting or assignment shall release COUNTY of its obligation to perform all other obligations to be performed by COUNTY hereunder for the term of this Lease. b. If, at any time after the COUNTY accepts the Premises, the CITY assigns or transfers a controlling interest of its rights in the Premises to a third party, CITY must 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. 10 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 parry 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 parry, 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 11 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, Othe 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. 12 b. CITY shall indemnify, protect, defend and hold COUNTY, its agents and employees and the Premises, harmless from and against any and all losses and/or damages, liabilities, judgments, costs, claims, expenses, penalties, including attorneys' and consultant's fees, arising out of or involving the existence of any Hazardous Substances located in, about or under the Premises prior to the Commencement Date of this Lease. Additionally, the issuance of an order by any governmental authority directing the CITY or any of CITY's other tenants or licensees on the property of which the Premises forms a part to cease and desist any illegal action in connection with a Hazardous Substance, or to remediate a contaminated condition caused by the CITY or any person acting under CITY's direct control and authority is a breach of this Contract, and CITY shall be responsible for all costs and expenses of complying with such order, including any and all expenses imposed on or incurred by COUNTY in connection with or in response to such order. CITY's obligations under this paragraph shall include, but shall not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by COUNTY, and the cost of investigation, removal, remediation, restoration and/or abatement thereof. CITY's obligations under this provision shall survive the expiration or early termination of this Lease. No termination, cancellation or release agreement entered into by COUNTY and CITY shall release CITY from its obligations under this Lease with regard to Hazardous Substances unless specifically agreed to by COUNTY in writing. C. For the purposes of this paragraph, the following definitions shall apply: (1) "Hazardous Substance," as used in this Lease, shall mean any product, substance or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either (i) potentially injurious to the public health, safety or 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 sea. (the "Public Records Act"). The Parties understand that although all materials received in connection with this Lease are intended for the exclusive use of the parties, they are potentially subject to disclosure under the provisions of the Public Records Act. 49. 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, 13 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 Tenn (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 oher 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 parry determines that the other party has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the party, this Lease may be immediately terminated. If this Lease is terminated according to this provision, the terminating party is entitled to pursue any available legal remedies. 52. 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. 14 53. COUNTERPARTS: This Lease may be 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. 54. USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 FUNDS AND REOUIREMENTS: This Contract may be funded in whole or in part with funds provided by the American Recovery and Reinvestment Act of 2009 ("ARRA"), signed into law on February 17, 2009. Section 1605 of ARRA prohibits the use of recovery funds for a project for the construction, alteration, maintenance or repair of a public building or public work (both as defined in 2 CFR 176.140) unless all of the iron, steel and manufactured goods (as defined in 2 CFR 176.140) used in the project are produced in the United States. A waiver is available under three limited circumstances: (i) Iron, steel or relevant manufactured goods are not produced in the United States in sufficient and reasonable quantities and of a satisfactory quality; (ii) Inclusion of iron, steel or manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent; or (iii) Applying the domestic preference would be inconsistent with the public interest. This is referred to as the "Buy American" requirement. Request for a waiver must be made to the County for an appropriate determination. Section 1606 of ARRA requires that laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to ARRA shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act (40 U.S.C. 31). This is referred to as the "wage rate" requirement. The above described provisions constitute notice under ARRA of the Buy American and wage rate requirements. Contractor must contact the County contact if it has any questions regarding the applicability or implementation of the ARRA Buy American and wage rate requirements. Contractor will also be required to provide detailed information regarding compliance with the Buy American requirements, expenditure of funds and wages paid to employees so that the County may fulfill any reporting requirements it has under ARRA. The information may be required as frequently as monthly or quarterly. Contractor agrees to fully cooperate in providing information or documents as requested by the County pursuant to this provision. Failure to do so will be deemed a default and may result in the withholding of payments and termination of this Contract. Contractor may also be required to register in the Central Contractor Registration (CCR) database at http://www.ccr.gov and may be required to have its subcontractors also register in the same database. Contractor must contact the County with any questions regarding registration requirements. 55. SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS: In addition to the requirements described in "Use of ARRA Funds and Requirements," proper accounting and reporting of ARRA expenditures in single audits is required. Contractor agrees to separately identify the expenditures for each grant award funded under ARRA on the Schedule of Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF-SAC) required by the Office of Management and Budget Circular A-133, "Audits of States, Local Governments, and 15 Nonprofit Organizations." This identification on the SEFA and SF-SAC shall include the Federal award number,the Catalog of Federal Domestic Assistance (CFDA) number, and amount such that separate accountability and disclosure is provided for ARRA funds by Federal award number consistent with the recipient reports required by ARRA Section 1512 (c). In addition, Contractor agrees to separately identify to each subcontractor and document at the time of sub- contract and at the time of disbursement of funds, the Federal award number, any special CFDA number assigned for ARRA purposes, and amount of ARRA funds. Contractor may be required to provide detailed information regarding expenditures so that the County may fulfill any reporting requirements under ARRA described in this section. The information may be required as frequently as monthly or quarterly. Contractor agrees to fully cooperate in providing information or documents as requested by the County pursuant to this provision. Failure to do so will be deemed a default and may result in the withholding of payments and termination of this Contract. # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # 16 LEASE AGREEMENT COUNTY OF SAN BERNARDINO—CITY OF SAN BERNARDINO 56. AUTHORIZED SIGNATORS: Both parties to this Lease represent that the signators executing this document are fully authorized to enter into this Lease. END OF LEASE TERMS. COUNTY OF SAN BERNARDINO 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 FORM: 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: 17 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 18 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_, and is scheduled to expire 20_. County has no right or option to renew or extend the term of the Lease except as to the following: (___) -year options. 4. 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. M By: Director Real Estate Services Department 1 FOR COUNTY USE ONLY New Vendor Code Ddt. Contract Number axe ° Change SC Cancel County Department Dept. Orgn. Contractor's License No. Real Estate Services Department County Department Contract Representative Telephone Total Contract Amount County of San Bernardino David H. Slaughter, Director (909)387-7813 $ F A S Contract Type ❑ Revenue ❑ Encumbered ❑ Unencumbered ❑ Other: CONTRACT TRANSMITTAL If not encumbered or revenue contract type,provide reason: Commodity Code Contract Start Date Contract End Date Original Amount Amendment Amount Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount Fund Dept. Organization Appr. Obi/Rev Source GRC/PROJ/JOB No. Amount $ Project Name Estimated Payment Total by Fiscal Year SB-PSD FY Amount I/D FY Amount UD 2969 Flores Street cam..RPrn."finn re CONTRACTOR City of San Bemardino Federal ID No. or Social Security No. Contractor's Representative Robert Lennox, Parks, Recreation&Community Services Department Adress 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 fast 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 ll� ll� ll� County Counsel Department Head Date Date Date Auditor/Controller-Recorder Use 0 ❑Contract Database ❑FA _J Input Date Keyed By Revised 1/132009 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 9, 2009 COST PER SQUARE FOOT: $0.88, 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 USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 FUNDS AND REQUIREMENTS 16 55 SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS 16 56 AUTHORIZED SIGNATORS 17 Exhibit "A", List of Former County Officials Exhibit "B", Estoppel Certificate 2 LEASE AGREEMENT 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 9, 2009("Commencement Date") and end on August 31, 2011 ("Ending Date"). b. Early Access. CITY shall allow the COUNTY early access ("Early Access") to the Premises at any time prior to the Commencement Date for the purpose of the COUNTY or its representatives installing communications equipment, modular furniture, alarms and such other items that the COUNTY may reasonably desire. 4. RENT: a. COUNTY shall pay to CITY the following monthly rental payments in arrears on the last day of each month, commencing when the term commences, continuing during the term: September 9, 2009 thru September 30, 2009 - prorated payment of$1,397.00. October 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 1 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: (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 (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 bi full for the sum. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. COUNTY shall forward to CITY receipts and/or documentation supporting the amount withheld. 14. ALTERATIONS: Upon thirty (30) days' notice to the CITY and with the CITY's written consent, COUNTY may place modular units to serve as office and classroom space, or modify existing building structures at the Center, but solely at the expense of COUNTY. Any and all permit acquisition and installation of utility lines are the sole responsibility of the COUNTY. Upon termination of this Lease, COUNTY shall remove said modules at its own expense and leave this property in the same condition it was at the time such modules were placed there, unless the parties mutually agree to retain the modules on the site. 15. FIXTURES: COUNTY shall have the right during the term(s) of this lease to install shelving and fixtures, to include but not limited to, exterior playground equipment and make interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures, playground equipment, improvements, and alterations shall remain the property of the COUNTY 3 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 CITY shall pay all service charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities. COUNTY shall reimburse CITY for its prorata share of the cost of utilities for the Delmann Heights Community Center, which is 36%during the first year of the initial term. Thereafter, COUNTY's 36%prorata share of all utility costs will not exceed the prior year's costs by more than three percent(3%). COUNTY shall furnish and pay for its own security, vending machines and telephone service including pay telephones. 17. HOLD HARMLESS: a. CITY agrees to defend, indemnify and hold harmless the COUNTY, its officers, agents and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from CITY's negligent acts or omissions arising from the CITY's performance of its obligations under this Lease. b. COUNTY agrees to defend, indemnify and hold harmless the CITY, its officers, agents and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from COUNTY's negligent acts or omissions arising from the COUNTY's performance of its obligations under this Lease. C. In the event the COUNTY and/or the CITY is found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this Lease, the COUNTY and/or CITY shall indemnify the other to the extent of its comparative fault. d. Furthermore, if the COUNTY or CITY attempts to seek recovery 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. 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. 4 (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. (5) If the Subcontractor performs any construction of the Premises, the contractor shall also procure and maintain coverages as follows: i. For construction contracts for projects over One Million Dollars ($1,000,000) and less than Three Million Dollars ($3,000,000) require limits of not less than Three Million Dollars in General Liability and Auto coverage. ii. For construction contracts for projects over Three Million Dollars ($3,000,000) and less than Five Million Dollars ($5,000,000) require limits of not less than Five Million Dollars ($5,000,000) in General Liability and Auto coverage. 5 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. CI 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 the CITY. If COUNTY elects to terminate this Lease pursuant to this provision, COUNTY shall be discharged 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 6 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 for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. 22. COUNTY'S DEFAULT: The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by COUNTY: a. The vacating for more than thirty (30) consecutive days or abandonment of the Premises by COUNTY. b. The failure by COUNTY to perform any material provisions of this Lease to be performed by COUNTY, including the payment of rent, where such failure shall continue for a period of thirty (30) days after notice by CITY to COUNTY; provided, however, that if the nature of COUNTY's default is such that more than thirty (30) days are reasonably required for its cure, then COUNTY shall not be deemed to be in default if COUNTY commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. 7 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 (1%). 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, 8 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 9 26. ASSIGNMENT. a. COUNTY shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any party of the COUNTY's interest in this Lease without the CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Lease and cause the termination of this Lease. Regardless of CITY's consent, no subletting or assignment shall release COUNTY of its obligation to perform all other obligations to be performed by COUNTY hereunder for the term of this Lease. b. If, at any time after the COUNTY accepts the Premises, the CITY assigns or transfers a controlling interest of its rights in the Premises to a third party, CITY must 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. 10 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 parry 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 I1 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. 12 b. CITY shall indemnify, protect, defend and hold COUNTY, its agents and employees and the Premises, harmless from and against any and all losses and/or damages, liabilities, judgments, costs, claims, expenses, penalties, including attorneys' and consultant's fees, arising out of or involving the existence of any Hazardous Substances located in, about or under the Premises prior to the Commencement Date of this Lease. Additionally, the issuance of an order by any governmental authority directing the CITY or any of CITY's other tenants or licensees on the property of which the Premises forms a part to cease and desist any illegal action in connection with a Hazardous Substance, or to remediate a contaminated condition caused by the CITY or any person acting under CITY's direct control and authority is a breach of this Contract, and CITY shall be responsible for all costs and expenses of complying with such order, including any and all expenses imposed on or incurred by COUNTY in connection with or in response to such order. CITY's obligations under this paragraph shall include, but shall not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by COUNTY, and the cost of investigation, removal, remediation, restoration and/or abatement thereof. CITY's obligations under this provision shall survive the expiration or early termination of this Lease. No termination, cancellation or release agreement entered into by COUNTY and CITY shall release CITY from its obligations under this Lease with regard to Hazardous Substances unless specifically agreed to by COUNTY in writing. C. For the purposes of this paragraph, the following definitions shall apply: (1) "Hazardous Substance," as used in this Lease, shall mean any product, substance or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either (i) potentially injurious to the public health, safety or 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 sea. (the "Public Records Act"). The Parties understand that although all materials received in connection with this Lease are intended for the exclusive use of the parties, they are potentially subject to disclosure under the provisions of the Public Records Act. 49. 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, 13 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. 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. 14 53. COUNTERPARTS: This Lease may be 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. 54. USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 FUNDS AND REOUIREMENTS: This Contract may be funded in whole or in part with funds provided by the American Recovery and Reinvestment Act of 2009 ("ARRA"), signed into law on February 17, 2009. Section 1605 of ARRA prohibits the use of recovery funds for a project for the construction, alteration, maintenance or repair of a public building or public work (both as defined in 2 CFR 176.140) unless all of the iron, steel and manufactured goods (as defined in 2 CFR 176.140) used in the project are produced in the United States. A waiver is available under three limited circumstances: (i) Iron, steel or relevant manufactured goods are not produced in the United States in sufficient and reasonable quantities and of a satisfactory quality; (ii) Inclusion of iron, steel or manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent; or (iii) Applying the domestic preference would be inconsistent with the public interest. This is referred to as the `Buy American" requirement. Request for a waiver must be made to the County for an appropriate determination. Section 1606 of ARRA requires that laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to ARRA shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act (40 U.S.C. 31). This is referred to as the "wage rate" requirement. The above described provisions constitute notice under ARRA of the Buy American and wage rate requirements. Contractor must contact the County contact if it has any questions regarding the applicability or implementation of the ARRA Buy American and wage rate requirements. Contractor will also be required to provide detailed information regarding compliance with the Buy American requirements, expenditure of funds and wages paid to employees so that the County may fulfill any reporting requirements it has under ARRA. The information may be required as frequently as monthly or quarterly. Contractor agrees to fully cooperate in providing information or documents as requested by the County pursuant to this provision. Failure to do so will be deemed a default and may result in the withholding of payments and termination of this Contract. Contractor may also be required to register in the Central Contractor Registration (CCR) database at httn://www.ccr.gov and may be required to have its subcontractors also register in the same database. Contractor must contact the County with any questions regarding registration requirements. 55. SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS: In addition to the requirements described in "Use of ARRA Funds and Requirements," proper accounting and reporting of ARRA expenditures in single audits is required. Contractor agrees to separately identify the expenditures for each grant award funded under ARRA on the Schedule of Expenditures of Federal Awards (SEFA)and the Data Collection Form (SF-SAC) required by the Office of Management and Budget Circular A-133, "Audits of States, Local Governments, and 15 Nonprofit Organizations.,, This identification on the SEFA and SF-SAC shall include the Federal award number, the Catalog of Federal Domestic Assistance(CFDA)number, and amount such that separate accountability and disclosure is provided for ARRA funds by Federal award number consistent with the recipient reports required by ARRA Section 1512 (c). In addition, Contractor agrees to separately identify to each subcontractor and document at the time of sub- contract and at the time of disbursement of funds, the Federal award number, any special CFDA number assigned for ARRA purposes, and amount of ARRA funds. Contractor may be required to provide detailed information regarding expenditures so that the County may fulfill any reporting requirements under ARRA described in this section. The information may be required as frequently as monthly or quarterly. Contractor agrees to fully cooperate in providing information or documents as requested by the County pursuant to this provision. Failure to do so will be deemed a default and may result in the withholding of payments and termination of this Contract. * + + * + + + + + * + * + + * + + * + + 16 LEASE AGREEMENT COUNTY OF SAN BERNARDINO—CITY OF SAN BERNARDINO 56. AUTHORIZED SIGNATORS: Both parties to this Lease represent that the signators executing this document are fully authorized to enter into this Lease. END OF LEASE TERMS. COUNTY OF SAN BERNARDINO 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 FORM: 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: 17 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 l 18 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_, and is scheduled to expire 20_. County has no right or option to renew or extend the term of the Lease except as to the following: L—) -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