HomeMy WebLinkAbout09.A- City Attorney RESOLUTION(ID#2323) DOC ID: 2323
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: James F. Penman M/CC Meeting Date: 03/18/2013
Prepared by: Jolena E. Grider, (909) 384-
5355
Dept: City Attorney Ward(s): 7
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the
Execution of a Lease Agreement with the County of San Bernardino for the Premises Located at
3250 Harrison Avenue.
Current Business Registration Certificate: Not Applicable
Financial Impact:
Account Budgeted Amount: «Insert Amount>>
Account No. «Inert Account No?>
Account Description: «Inert Account Description
Balance as of: «Inert Date>>
Balance after approval of this item: <<hvsert Amount>>
Please note this balance does not indicate available funding. It does not include non-encumbered
reoccurring expenses or expenses incurred,but not yet processed.
Motion: Adopt the Resolution.
Background:
The County of San Bernardino has leased the premises at 3250 Harrison Avenue for several
years. The premises consist of 5,000 square feet of interior vehicle storage with build-to-suit
office. In lieu of monetary rent, the County has and will continue to provide all interior and
exterior maintenance to include grounds,parking lot maintenance and exterior lighting. The
County will also pay for janitorial, vending machines, security and telephone services. This new
lease is for a term of five years with an option to extend for another five year term.
City Attorney Review:
Suoportine Documents:
reso 2323 (PDF)
agrmt 2323 (PDF)
Updated: 3/14/2013 by Linda Sutherland
RESOLUTION NO.
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
3 CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A LEASE
4 WITH THE COUNTY OF SAN BERNARDINO FOR THE PREMISES LOCATED AT
3250 HARRISON AVENUE.
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6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
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8 SECTION 1. The City Manager is hereby authorized to execute a Lease Agreement a
9 with the County of San Bernardino for the premises located at 3250 Harrison Avenue, attached
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10 hereto as Exhibit"A." _
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
2 CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A LEASE
3 WITH THE COUNTY OF SAN BERNARDINO FOR THE PREMISES LOCATED AT
3250 HARRISON AVENUE.
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5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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7 Common Council of the City of San Bernardino at a meeting thereof, held on
a the day of 2013,by the following vote,to wit: a'
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9 Council Members: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ o
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11 JENKINS `o
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VALDIVIA
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14 SHORETT y
15 KELLEY 3
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16 JOHNSON
17 MCCAMMACK N
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Georgeann Hanna, City Clerk 0
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The foregoing Resolution is hereby approved this day of 2013 c
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23 Patrick J. Morris, Mayor
24 Approved as to City of San Bernardino
25 form:
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Zs es F. Penman
w� ity Attorney
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FOR COUNTY USE ONLY
New FAS Vendor Code ept.
agl�".RO Change CITYOFFF772 SC HR
Cancel
ePro Vendor Number ePro Contract Number
County Department Dept. Orgn. Contractor's License No.
Real Estate Services Department SHR SHR
County Department Contract Representative Telephone Total Contract Amount
County of San Bernardino David H. Slaughter, Director 909 387-5252
$0.00
FAS Contract Type
® Revenue ® Encumbered ® Unencumbered ® Other: No Cost Lease Agreement
CONTRACT TRANSMITTAL If not encumbered or revenue contract type,provide reason:
Commodity Code Contract Start Date Contract End Date I Original Amount Amendment Amount
96164 5/1/2013 4/30/2018 $0.00
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJIJOB No. Amount
AAA SHR SHR 200 2905 33002344 $0.00 ai
Fund Dept. Organization App_. Obj/Rev Source GRC/PROJ/JOBNo. Amount Q
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Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
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Project Name Estimated Payment Total by Fiscal Year o
San Bernardlno-Sheriff/ FY Amount 1/0 FY Amount I/D N
Coroner-3250 Harrison Ave. _
City of San Bernardino °
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CONTRACTOR City of San Bernardino In
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3ral ID No. or Social Security No.
Contractor's Representative Tony Frossard, Operations&Maintenance Division Manager N
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Address 300 N. 'D"Street, San Bernardino, CA. 92401 Phone (909) 556 - 5611
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Nature of Contract: (Briefly describe the general terms of the contract)
This Agreement is for a period of five (5)years with one (1)five-year option to'extendk Leased Premises consist N
of 5,000 gross square feet of interior vehicle storage with build-to-suit g fi tfiNeu of monetary rent, County shall E
provide all interior and exterior maintenance to include grounds, pa `g{om"aintenance and exterior lighting.
County to pay for janitorial, vending machines, security and t lephbne service.
(Attach this transmittal to all contracts not, tex'pfd-on thetadd Contract-form.)
Approved as to Legal Forth(sign in blue ink) Revi as fb Q pnt Compliance Presented to BOS for Signature
►(See Signature Page) s' �" f.
County Counsel ` Department Head
Date Date
Auditor.ConMler/rreasurerlrar coirecror Use Only
O Contract Database ❑FAS
Input Date Keyed By
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9.A.b
COUNTY OF SAN BERNARDINO
LEASE AGREEMENT
LANDLORD: City of San Bernardino
300 North"D" Street
San Bernardino,CA. 92401
COUNTY: COUNTY OF SAN BERNARDINO
Real Estate Services Department a
385 North Arrowhead Avenue, Third Floor o
San Bernardino, CA 92415-0180 Mn
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PREMISES: 3250 Harrison Avenue o
San Bernardino, CA. 92401
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TERM OF LEASE: five(5)years with one(1)five-year option
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COMMENCEMENT DATE OF LEASE: May 1,2013
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CONSIDERATION: In lieu of monetary rent, County shall provide all exterior and N
interior maintenance to include grounds,parking lot maintenance N
and exterior lighting. E
COUNTY CONTRACT NUMBER:
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REV: 11-28-2012
TYPED: a
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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.......................................................................I
7. RETURN OF PREMISES ..............................................................................1 a
8. HOLDING OVER...........................................................................................1 a
9. TAXES............................................................................................................1
10. USE.................................................................................................................1 m
11. HEALTH,SAFETY AND FIRE CODE REQUIREMENTS.........................1
12. SIGNS.............................................................................................................2 M
13. MAINTENANCE...........................................................................................2 w
14. ALTERATIONS.............................................................................................2
15. FIXTURES......................................................................................................2 0
16. UTILITIES......................................................................................................2
17. INDEMNIFICATION.....................................................................................3 w
18. INSURANCE REQUIREMENTS AND SPECIFICATIONS........................3
19. DESTRUCTION OF PREMISES...................................................................3
20. CITY'S DEFAULT.........................................................................................4 J
21. COUNTY'S REMEDIES ON CITY'S DEFAULT.........................................4 C4
22. COUNTY'S DEFAULT..................................................................................4
23. CITY'S REMEDIES ON COUNTY'S DEFAULT.........................................4 N
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24. CITY'S ACCESS TO PREMISES..................................................................5
25. NOTICES........................................................................................................5 rn
26. INCORPORATION OF PRIOR AGREEMENT............................................6
27. WAIVERS .......................6
28. AMENDMENTS............................................................................................6
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29. SUCCESSORS...............................................................................................6 a
30. SEVERABILITY............................................................................................6
31. TIME OF ESSENCE ......................................................................................6
32. QUIET ENJOYMENT....................................................................................6
33. PROVISIONS ARE COVENANTS AND CONDITIONS............................7
34. CONSENT......................................................................................................7
35. EXHIBITS.......................................................................................................7
i36. LAW...............................................................................................................7
37. VENUE...........................................................................................................7
38. ATTORNEYS'FEES AND COSTS...............................................................7
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Table of Contents
Page-2-
PARAGRAPH CAPTION PAGE
39. RESERVED....................................................................................................7
40. COUNTY'S RIGHT TO TERMINATE LEASE............................................7
41. CITY'S IMPROVEMENTS............................................................................7
42. CAPTIONS,TABLE OF CONTENTS AND COVER PAGE.......................7
43. SURVIVAL....................................................................................................7
44. FORMER COUNTY OFFICIALS..................................................................8
45. BROKER'S COMMISSIONS.........................................................................8
46. SUBORDINATION AND ATTORNMENT..................................................8 a
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47. HAZARDOUS SUBSTANCES .....................................................................8
48. PUBLIC RECORDS DISCLOSURE: ............................................................9
49. CONDITION OF PREMISES ......................................................................10
50. CONDEMNATION......................................................................................10 M
51. MATERIAL MISREPRESENTATION.......................................................11 °
52. INTERPRETATIONS ..................................................................................11
53. USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF 0
2009 FUNDS AND REQUIREMENTS....................................................... Ca
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54. SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS.................. .12 E
55. AUTHORIZED SIGNATORS......................................................................13
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EXHIBIT "A" Legal Description
NOTE: There is no Exhibit"B" to this Lease N
EXHIBIT"C" List of Former County Officials N
EXHIBIT"D" Estoppel Certificate
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LEASE AGREEMENT
1. PARTIES: This lease ("Lease")is made between City of San Bernardino ("Crl ), and
the County of San Bernardino ("COUNTY"),who agree as follows:
2. PREMISES LEASED: CITY leases to COUNTY and COUNTY leases from CITY
5,000 square feet of building, real property, and other improvements, with twenty (20) parking
spaces, including handicapped parking, located at 3250 Harrison Avenue, San Bernardino, CA.
92401 ("Premises"), as described in Exhibit "A", Legal Description.
3. TERM: Initial Term. The Lease's initial term ("Initial Term") shall commence on May a;
1,2013 ("Commencement Date")and end on April 30,2018 ("Ending Date"). <
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4. RENT: In lieu of monetary rent, COUNTY shall be responsible for all interior and
exterior maintenance and repairs including the parking lot and grounds. _
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5. EXPANSION OF RENTAL SPACE: There is no expansion space available in this Lease. °
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6. OPTION TO EXTEND TERM: 'o
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A. CITY gives COUNTY the option to extend the term of the Lease on the same U)
provisions and conditions, for one (1) five-year period ("extended term") following expiration of 3
the Initial Term, by COUNTY giving notice of its intention to exercise the option to N
LANDLORD prior to the expiration of the preceding term or during any holding over pursuant to d
Paragraph 8,HOLDING OVER-
7. RETURN OF PREMISES: The COUNTY agrees that it will, upon the termination of
this Lease, return the Premises in a good condition and repair as the Premises now is or shall N
hereafter be put; reasonable wear and tear expected. N
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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 E
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 for the
purposes of COUNTY business.
11. HEALTH, SAFETY AND FIRE CODE REOUIREMENTS: 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
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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. a'
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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. _
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13. MAINTENANCE: M
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a. COUNTY shall be responsible for all interior and exterior maintenance including c
parking lot and grounds. The COUNTY's maintenance obligations shall not include any capital o
improvements, structural,mechanical or plumbing or other system repairs or replacement.
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b. COUNTY, at its cost, shall provide janitorial services, and keep the interior of the
Premises in a clean and orderly condition,reasonable wear and tear excluded. d
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14. ALTERATIONS: COUNTY shall not make any structural or exterior improvements or J
alterations to the Premises without CITY's consent. Any such alterations shall remain on and be N
surrendered with the Premises on expiration or termination of the Lease.
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15. FIXTURES: COUNTY shall have the right during the term(s) of this Lease to install N
shelving and fixtures, and make interior, non-structural improvements or alterations in the E
Premises. Such shelving, fixtures,improvements,and alterations shall remain the property of the
COUNTY and may be removed by the COUNTY during the term(s) of this Lease or within a
reasonable time thereafter, provided that the COUNTY restores the Premises to the condition as
it existed at the commencement of this Lease, reasonable wear and tear excluded, or the v
COUNTY in its sole discretion may elect to surrender all or any part of such shelving, fixture, a
improvements and alterations to the CITY, in which case COUNTY shall have no duty to restore
the Premises. Any such election to surrender must be in writing, but need not be accepted by
CITY to be effective.
16. UTILITIES: CITY shall furnish to the Premises and COUNTY shall pay all service
charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other
utilities. COUNTY to furnish and pay for security, vending machines and its own telephone
service including pay telephones.
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17. INDEMNIFICATION:
A. The CITY agrees to indemnify, defend (with counsel approved by COUNTY) and
hold harmless the COUNTY, its authorized officers, agents, volunteers and employees, from any
and all claims, demands, actions, losses, damages, Liability, and/or for any costs or expenses
incurred by the COUNTY arising out of: (a) any improvements constructed by the CITY
pursuant to the Lease; (b) the CITY's acts and omissions in connection with its ownership of the
property; (c)the use of common areas and leasehold spaces other than the Premises; and(d)toxic
waste and environmental contamination not resulting from the COUNTY's use of the Premises,
except where such indemnification is prohibited by law. The CITY's indemnification obligation
applies to the COUNTY's "active" as well as "passive" negligence, but does not apply to the
COUNTY's "sole negligence"or"willful misconduct"within the meaning of Civil Code section a
2782. The CITY's indemnification obligation shall survive the COUNTY's tenancy. The y
insurance provisions in Paragraph 18, INSURANCE REQUIREMENTS AND
SPECIFICATIONS, shall not be interpreted in a manner that limits the indemnification =
obligations. N
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B. The COUNTY agrees to indemnify and hold harmless the CITY, and its officers,
employees, agents and volunteers from any and all damages for injury to persons and damage to
property arising out of the sole negligence of the COUNTY, its officers, employees, agents, or 0
volunteers in connection with this contract. m
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N C. In the event COUNTY and/or the CITY is found to be comparatively at fault for 3
any claim, action, loss or damage which results from their respective obligations under the Lease,
the COUNTY and/or CITY shall indemnify the other to the extent of its comparative fault.
18. INSURANCE REQUIREMENTS AND SPECIFICATIONS: M
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A. The CITY and COUNTY are self-insured public entities for purposes of M
professional liability, general liability and workers' compensation. CITY and COUNTY both N
warrant that through their programs of self-insurance, they have adequate professional liability,
general liability, and Workers' Compensation to provide coverage for their respective liabilities 9
arising out of the performance of this Lease.
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19. DESTRUCTION OF PREMISES:
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A. During the term of this Lease, if any casualty 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.
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B. In the event CITY is required to restore the Premises as provided in this
paragraph, CITY shall restore, at CITY's expense, any structural or exterior improvements or
alterations to the Premises made by COUNTY pursuant to Paragraph 14, ALTERATIONS, of
this Lease, but shall not be responsible for restoring any shelving, fixtures, or interior
nonstructural improvements or alteration made by the COUNTY pursuant to Paragraph 15,
FIXTURES, of this Lease.
C. 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.
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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 N
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 N
default within the thirty (30) day period and diligently and in good faith continues to cure the
default. w
21. COUNTY'S REMEDIES ON CITY'S DEFAULT: COUNTY, at anytime after CITY 0
is in default, can terminate this Lease immediately upon written notice to CITY or can cure the m
default at CITY's cost. If COUNTY at any time, by reason of CITY's default, pays any sum or r
does any act that requires the payment of any sum(including charges for COUNTY's employees 3
and equipment), the sum paid by COUNTY shall be due from CITY to COUNTY within five(5) N
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. The remedies set forth in this paragraph are in addition to and M
do not in any manner limit other remedies set forth in particular paragraphs of this Lease.
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22. COUNTY'S DEFAULT: The occurrence of any one or more of the following events M
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shall constitute a default and breach of this Lease by COUNTY: E
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A. The vacating for more than thirty (30) consecutive days or abandonment of the c
Premises by COUNTY. E
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B. The failure by COUNTY to perform any material provisions of this Lease to be a
performed by COUNTY, including the payment of rent, where such failure shall continue for a
period of thirty (30) days after notice by CITY to COUNTY; provided, however, that if the
nature of COUNTY's default is such that more than thirty (30) days are reasonably required for
its cure, then COUNTY shall not be deemed to be in default if COUNTY commences such cure
within said thirty (30) day period and thereafter diligently prosecutes such cure to completion.
The purpose of this notice requirement is to extend the notice requirements of the unlawful
detainer statutes of California.
23. CITY'S REMEDIES ON COUNTY'S DEFAULT: Whenever any Event of Default
referred to in Section 22 hereof shall have happened and be continuing, it shall be lawful for the
CITY to exercise any and all remedies available pursuant to law or granted pursuant to this
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Lease. Each and every covenant hereof to be kept and performed by the COUNTY is expressly
made a condition and upon the breach thereof the CITY may exercise any and all rights of entry
and re-entry upon the Premises, and also, at its option, with or without such entry,may terminate
this Lease. In the event of such Event of Default and notwithstanding any re-entry by the CITY,
the COUNTY shall continue to remain liable for the payment damages for breach of this Lease
and the performance of all conditions herein contained.
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 y
CITY has the right or obligation to perform; and
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C. To serve,post,or keep posted any notices required by law; and, N
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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,
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E. To show the Premises to prospective brokers, agents, buyers, tenants, lenders or m
persons interested in an exchange, at any time during the term.
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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. m
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25. NOTICES• N
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A. Any notice, demand, request, consent, approval, or communication that either N
party desires or is required to give to the other party or any other person shall be in writing and N
either served personally or sent by prepaid, first-class mail. Any notice, demand, request, E
consent, approval, or communication that either party desires or is required to give to the other M
parry shall be addressed to the other party at the address set forth below. Either party may change
its address by notifying the other party of the change of address. Notice shall be deemed E
communicated two (2) COUNTY working days from the time of mailing if mailed as provided in
this paragraph.
CITY's address: City of San Bernardino
Facilities Management
300 North"D" Street
San Berardino, CA. 92401
COUNTY's address: County of San Bernardino
Real Estate Services Department
385 North Arrowhead Avenue, Third Floor
San Bernardino, CA 92415-0180
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B. If, at any time after the COUNTY accepts the Premises, the CITY assigns or
transfers a non-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.
C. 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.
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(1) Within fifteen (15) COUNTY working days of completing any action N
which affects a change in the ownership of the Premises, the new owner must provide COUNTY
evidence of obtaining insurance in compliance with Paragraph 17, INDEMNIFICATION and =
Paragraph 18,INSURANCE REQUIREMENTS AND SPECIFICATIONS. N
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26. 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, c
and no prior agreement or understanding pertaining to any such matter shall be effective for any 0
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27. 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 N
or any other provisions. J
28. AMENDMENTS: No provision of this Lease may be amended or added to except by an M
agreement in writing signed by the parties hereto or their respective successor in interest,
expressing by its terms an intention to modify this Lease. M
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29. SUCCESSORS: This Lease shall inure to the benefit of and be binding upon the heirs, E
executors, administrators,successors, and assigns of the parties hereto.
30. SEVERABILITY: If any word,phrase,clause, sentence, paragraph, section, article,part E
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 a
other portion thereof
31. 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.
32. QUIET ENJOYMENT: Subject to the provisions of this Lease and conditioned upon
performance of all the provisions to be performed by COUNTY hereunder, LANDLORD shall
secure to COUNTY during the Lease term the quiet and peaceful possession of the Premises and
all right and privilege appertaining thereto.
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33. 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.
34. CONSENT: Whenever consent or approval of either party is required that party shall not
unreasonably withhold, condition or delay such consent or approval.
35. EXHIBITS: All exhibits referred to are attached to this Lease and incorporated by
reference.
36. LAW: This Lease shall be construed and interpreted in accordance with the laws of the
State of California. a
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37. 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 N
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 C
venue to the Superior Court of California, County of San Bernardino, San Bernardino District. m
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38. ATTORNEYS' FEES AND COSTS: If any legal action is instituted to enforce or 3
declare any party's rights hereunder, each party, including the prevailing party, must bear its own N
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, INDEMNIFICATION, Paragraph 48,
HAZARDOUS SUBSTANCES, and Paragraph 49, PUBLIC RECORDS
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39. RESERVED: N
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40. COUNTY'S RIGHT TO TERMINATE LEASE: The COUNTY shall have the right R
to terminate this Lease at any time whenever COUNTY, in its sole discretion, determines it
would be in COUNTY's best interests to terminate this Lease. The Director of the Real Estate E
Services Department (RESD) shall give CITY notice of any termination pursuant to this
paragraph at least ninety(90)days prior to the date of termination. a
41. CITY'S IMPROVEMENTS: There are no CITY improvements constructed for this
Lease.
42, CAPTIONS, TABLE OF CONTENTS AND COVER PAGE: The paragraph
captions, table of contents and the cover page of this Lease shall have no effect on its
interpretations.
�.. 43. SURVIVAL: The obligations of the parties that, by their nature, continue beyond the
term of this Lease,will survive the termination of this Lease.
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44. 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 "C", List of
Former County Officials.) a
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45. BROKER'S COMMISSIONS: CITY is solely responsible for the payment of any
commissions to any broker who has negotiated or otherwise provided services in connection with =
this Lease. LO
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46. SUBORDINATION AND ATTORNMENT: w
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A. As a condition precedent to the COUNTY's obligations under this Lease, CITY 0
shall obtain from each holder of a lien or encumbrance on the Premises which is senior to this m
co Lease either an executed recordable subordination agreement which subordinates such lien or r
encumbrance to this Lease, or a non-disturbance agreement which contains terms at least as 3
favorable to the COUNTY as those set forth in paragraph 2 ("Nondisturbance") of Exhibit "E", N
Subordination,Nondisturbance and Attornment Agreement,hereto. J
B. If, after execution of this Lease, a subsequent lienor requires that this Lease be N
subordinate to any such encumbrance, this Lease shall be subordinate to that encumbrance if, and
only if, CITY first obtains from the subsequent lienor an executed subordination, nondisturbance M
and attomment agreement, the terms of which are at least as favorable to the County as those set N
forth in Exhibit "E", Subordination, Nondisturbance and Attornment Agreement hereto. If the E
COUNTY's County Counsel approves the form of a subordination, nondisturbance and
attomment agreement pursuant to this subparagraph, and if such agreement is executed by the
subsequent lienor, then the Director of the COUNTY's Real Estate Services Department is E
authorized on behalf of the COUNTY to, and shall, execute such agreement, and shall further
execute any other documents required by the lender to accomplish the purposes of this paragraph, a
provided such other documents are consistent with the terms of the subordination,
nondisturbance and attomment agreement and this Lease.
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
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r' 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.
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 C1TY's other tenants or a
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, N
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 o
and/or abatement thereof. CITY's obligations under this provision shall survive the expiration or m
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 3
Hazardous Substances unless specifically agreed to by COUNTY in writing. N
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C. For the purposes of this paragraph, the following definitions shall apply:
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(1) "Hazardous Substance," as used in this Lease, shall mean any product,
substance or waste whose presence, use, manufacture, disposal, transportation, or release, either N
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; E
(ii)regulated or monitored by any governmental authority; or(iii) a basis for potential liability of M
CITY or COUNTY under any applicable statute or common law theory.
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(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 a
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 COUNTY
from the CITY or any source concerning this Lease, including the Lease itself, may be treated by
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the COUNTY as public information subject to disclosure under the provisions of the California
Public Records Act, Government Code Section 6250 et seo. (the "Public Records Act"). CITY
understands that although all materials received by the COUNTY in connection with this Lease are
intended for the exclusive use of the COUNTY, they are potentially subject to disclosure under the
provisions of the Public Records Act. In the event a request for disclosure of any part or all of any
information which a CITY has reasonably requested COUNTY to hold in confidence is made to the
COUNTY, the COUNTY shall notify the CITY of the request and shall thereafter disclose the
requested information unless the CITY, within five (5) days of receiving notice of the disclosure
request,requests nondisclosure,provides COUNTY a legally sound basis for the nondisclosure,and
agrees to indemnify, defend, and bold the COUNTY harmless in any/all actions brought to require
disclosure. CITY waives any and all claims for damages,lost profits,or other injuries of any and all
kinds in the event COUNTY fails to notify CITY of any such disclosure request and/or releases any a
information concerning this Lease received from the CITY or any other source. 0
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49. CONDITION OR PREMISES: CITY shall deliver the Premises to COUNTY clean and =
free of debris on the Commencement Date and warrants to COUNTY that the plumbing, N
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 '2
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Date.
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50. CONDEMNATION: m
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A. 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 N
"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 M
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 N
of such notice, within thirty (30) days after the condemning authority shall have taken E
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 E
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 a
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
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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.
B. 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, the COUNTY determines that the CITY has made a material misstatement or a
misrepresentation or that materially inaccurate information has been provided to the COUNTY, N
this Lease may be immediately terminated. If this Lease is terminated according to this R
provision,the COUNTY is entitled to pursue any available legal remedies. _
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52. INTERPRETATIONS: As this Lease was jointly prepared by both parties,the language "
in all parts of this Lease shall be construed, in all cases, according to its fair meaning, and not for
or against either party hereto. c
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® 53. USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 FUNDS m
AND REOUIREMENTS: This Contract may be funded in whole or in part with funds provided r
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 N
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 M
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 E
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. E
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Section 1606 of ARRA requires that laborers and mechanics employed by CITY or CITY's a
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. CITY must contact the COUNTY contact if it has any questions regarding the
applicability or implementation of the ARRA Buy American and wage rate requirements. CITY
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
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may fulfill any reporting requirements it has under ARRA. The information may be required as
frequently as monthly or quarterly. CITY agrees to frilly cooperate in providing information or
documents as requested by the COUN'T'Y 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.
CITY 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. CITY must contact the COUNTY with any questions regarding registration
requirements.
54. SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS: In addition to the
requirements described in "Use of ARRA Funds and Requirements," proper accounting and a
reporting of ARRA expenditures in single audits is required. CITY agrees to separately identify N
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 Nonprofit N
Organizations." This identification on the SEFA and SF-SAC shall include the Federal award M
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 c
consistent with the recipient reports required by ARRA Section 1512(c). 0
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In addition, CITY agrees to separately identify to each subcontractor and document at the time of V)
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sub-contract and at the time of disbursement of funds, the Federal award number, any special 3
CFDA number assigned for ARRA purposes, and amount of ARRA funds.
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CITY may be required to provide detailed information regarding expenditures so that the J
COUNTY may fulfill any reporting requirements under ARRA described in this section. The
information may be required as frequently as monthly or quarterly. CITY agrees to fully
cooperate in providing information or documents as requested by the COUNTY pursuant to this N
provision. Failure to do so will be deemed a default and may result in the withholding of N
payments and termination of this Contract. E
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A. Whistleblower Protection. CITY agrees that both it and its subcontractors shall
comply with Section 1553 of the ARRA, which prohibits all non-Federal contractors, including E
the State, and all contractors of the State, from discharging, demoting or otherwise discriminating U
against an employee for disclosures by the employee that the employee reasonably believes are a
evidence of (1) gross mismanagement of a contract relating to ARRA funds; (2) a gross waste of
ARRA funds; (3) a substantial and specific danger to public health or safety related to the
implementation or use of ARRA funds; (4) an abuse of authority related to the implementation or
use of recovery funds; or (5) a violation of law, rule, or regulation related to an agency contract
(including the competition for or negotiation of a contract) awarded or issued relating to ARRA
funds.
CITY agrees that it and its subcontractors shall post notice of the rights and remedies available to
employees under Section 1553 of Division A,Title XV of the ARRA.
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s A
By executing this Agreement, CITY acknowledges receipt of the American Recovery and
Reinvestment Act (ARRA) Funding requirements that became effective August 12, 2009, and
understands and agrees to the contractual obligations stipulated herein for contracts with the
County.
55. AUTHORIZED SIGNATORS: Both parties to this Lease represent that the signators
executing this document are fully authorized to enter into this agreement.
COUNTY OF SAN BERNARDINO CITY: City of San Bernardino
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By: N
Janice Rutherford, Chair Allen J. Parker
Board of Supervisors =
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Date: Title: City Manager
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SIGNED AND CERTIFIED THAT
A COPY OF THIS DOCUMENT Date: o
HAS BEEN DELIVERED TO THE m
CHAIR OF THE BOARD `"
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LAURA H. WELCH, Clerk of the Board of y
Supervisors d
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By:
AI 3 ' C I€?RNI:
Deputy
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Date: n 6
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Approved as to Legal Form: m
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JEAN-RENE BASLE, County Counsel
San Bernardino County,California
By: D �,r��.
Alan Green, Depu County Counsel
110568.13
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9.Ab
EXHIBIT "A" —LEGAL DESCRIPTION
PAGE
Assessor Parcel Number: 0153-201-14
Legal Description: Arrowhead Junction tract: That portion of Lot 10 lying southeasterly of the
southeasterly line of the Flood Control
Approximately 3.675 Acres
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EXHIBIT "C"
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 LANDLORD, the date the Official entered LANDLORD's
employment and/or representation.
OFFICIAL'S NAME: REQUIRED INFORMATION
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EXHIBIT "D" -ESTOPPEL CERTIFICATE
Date:
To:
Re:
(address) (city)
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The undersigned("County")hereby certifies as follows: a'
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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 N
lessee or tenant, and ("Owner")is the lessor or landlord. M
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2. The Lease is in full force and effect and has not been amended, supplemented or
changed, except as follows: 0
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3. The term of the Lease commenced on 20_, and is scheduled W
to expire , 20 . County has no right or option to renew or extend the term of the
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Lease except as to the following: C ) -year options. y
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4. Countys current monthly rental is $ _ payable on the last day of each J
month. M
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5. County currently has no security deposit with Owner. N
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6. County is not in default under the terms of the Lease and no condition exists E
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 m
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such a default. v
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7. County hereby certifies that the foregoing is true and correct.
By:
Director
Real Estate Services Department
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