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HomeMy WebLinkAbout2013-352 1 RESOLUTION NO. 2013-352 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 4 OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A FACILITY LEASE AGREEMENT WITH THE EL SOL NEIGHBORHOOD 5 EDUCATION CENTER TO OPERATE A FAMILY RESOURCE CENTER AT NICHOLSON COMMUNITY CENTER. 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 8 CITY OF SAN BERNARDINO AS FOLLOWS: 9 SECTION 1. That the City Manager is hereby authorized to execute a Lease 10 Agreement with the El Sol Neighborhood Education Center for the lease of the Nicholson 11 12 Community Center to be used in part as a Family Resource Center, a copy of which is attached 13 hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at 14 length; and 15 SECTION 2. That the Director of Administrative Services is hereby authorized to 16 amend the Fiscal Year 2013-2014 General Fund budget and increase the expenditure allocation 17 18 for the Parks Department line item budget; and. 19 SECTION 3. That the authorization granted hereunder shall expire and be void and of 20 no further effect if the agreement is not executed by both parties and returned to the office of 21 the City Clerk within sixty(60) days following the effective date of the resolution. 22 23 /// 24 /// 25 26 /// 27 /// 28 1 2013-352 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 2 FACILITY LEASE AGREEMENT WITH THE EL SOL NEIGHBORHOOD 3 EDUCATION CENTER TO OPERATE A FAMILY RESOURCE CENTER AT NICHOLSON COMMUNITY CENTER. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 6 Common Council of the City of San Bernardino at a oint regula meeting thereof, held on 7 the 16th day of December , 2013, by the following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ X 10 11 JENKINS x 12 VALDIVIA x 13 SHORETT x 14 VACANT 15 JOHNSON x 16 17 MULVIHILL x 18 111V!#_..� 19 Georgea'-i Hanna, 'Ay Clerk t5 20 The foregoing Resolution is hereby approved this I day of T C. ..LC mber , 2013. 21 � 22 • J. Morris, May. 23 City of San Bernardino Approved as to form: 24 Gary D. Saenz, 25 City Attorney 26 27 28 2 2013-352 CITY OF SAN BERNARDINO EL SOL NEIGHBORHOOD EDUCATION CENTER USE OF FACILITIES AGREEMENT This Agreement, by and between El Sol Neighborhood Education Center ("EL SOL") and the City of San Bernardino ("CITY"), provides for EL SOL's use of the Nicholson Community Center ("CENTER") located at 2737 West 2"d Street, San Bernardino, CA 92410; owned by the CITY, in accordance with the following terms and conditions: GENERAL: El Sol shall have 2,310 sq. ft. of exclusive use of classrooms and reception areas and 2,714 sq. ft. of shared use of restrooms, kitchen and open area space from January 1, 2014 through December 31, 2015; Monday through Friday, 10:00 a.m. to 7:00 p.m. for community resources and youth development programming and selected Saturdays and Sundays for special events. II. TERM: The term of this agreement shall be for one (1) year commencing on January 1, 2014 and ending on December 31, 2014; with the option of five (5) one year renewals upon mutual consent of the parties. During the term of the Agreement, El Sol is granted 2,310 sq. ft. of exclusive use of classrooms and reception areas and 2,714 sq. ft. of shared use of restrooms, kitchen and open area space. III. USE OF CENTER: A. CITY's Responsibilities: 1. Maintenance of Grounds: Routine/Recurring: provide weekly landscape maintenance of Nicholson Park, including 2 inch height mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. 2. Use of CENTER Building: CITY will allow EL SOL to use the CENTER building, which includes 2,310 sq. ft. of exclusive use of classrooms and reception areas and 2,714 sq. ft. of shared use of 1 Exhibit"A" restrooms, kitchen and open area space during the scheduled use as described herein. B. El Sol's Responsibilities: 1. Use of Facilities: EL SOL will use CENTER for community resources and youth programming as set forth in the "Scope of Services", herein attached as Attachment"1". 2. Maintenance of Facilities: EL SOL will keep the CENTER building clean of trash throughout the duration of use. EL SOL will be solely responsible for all utilities, maintenance and janitorial costs during the term of use. 3. Adherence to CITY Regulations: EL SOL will insure that all patrons and staff adhere to CITY regulations at all times as set forth in the municipal code. CITY reserves the right to close the CENTER if requests for compliance with regulations are not met. 4. Non-profit status: EL SOL is a registered not for profit 501(c) (3) organization in good standing with the California Franchise Tax Board and the Federal Internal Revenue Service, and shall maintain such status throughout the term of this agreement. 5. Public Access: EL SOL shall be permitted to charge fees for access to specialized programs and events with prior approval by CITY. IV. FEES & EL SOL's Reciprocal Services: A. SCOPE OF SERVICES. 1. EL SOL staff and volunteers working directly with children shall submit to and pass a"Live Scan"background check. 2. EL SOL shall, perform and carry out in a good and professional manner the community services set forth in the "Scope of 2 Exhibit"A" Services", herein attached as Attachment"1". 3. EL SOL shall provide the CITY information for the seasonal Activity Guide four times annually, respectively on April 23rd (Summer period), July 15th (Fall period), October 24th (Winter period), and February 1St (Spring period). 4. EL SOL shall pay the CITY a monthly rental fee $600 per month on the first day of each month, commencing on January 1, 2014 through December 31, 2014, for exclusive use of the two (2) classrooms and reception areas (sq ft) and shared use of foyer, multipurpose room, kitchen and restrooms (sq ft). Any and all renovation plans and materials are subject to review and approval by CITY staff prior to construction commencing. 5. EL SOL will maintain all aspects of the interior and exterior of the CENTER building for EL SOL's exclusive use. V. RECORDS AND INSPECTIONS. EL SOL shall maintain full and accurate records with respect to all matters covered under this agreement. EL SOL shall provide to CITY a monthly report of services provided and number of persons served by the third business day of each month. VI. EMPLOYMENT AND INDEPENDENT CONTRACTORS: EL SOL, at its own expense, may employ or contract such persons, as the EL SOL deems necessary to perform the services required of EL SOL by this agreement. The EL SOL assumes full and sole responsibility for payment of all compensation and expenses of these employees or independent contractors for all state and federal income tax, Worker's Compensation unemployment insurance, Social 3 Exhibit"A" Security, disability insurance, and other applicable withholdings. EL SOL agrees to provide worker's compensation insurance for their own employees, volunteers and agents and agrees to hold harmless and indemnify the CITY for any and all claims arising out of any injury, disability, or death of any of the EL SOL's employees or agents. VII. COMPLIANCE WITH THE LAW; NON-DISCRIMINATION EL SOL shall comply with all laws, orders, ordinances and other public requirements now or hereafter pertaining to EL SOL'S use of the CENTER. CITY shall comply with all laws, orders, ordinances and other public requirements now or hereafter affecting the CENTER. In the performance of this facilities use agreement, EL SOL shall not engage in, nor permit its officers, employees or agents to engage in, discrimination of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, veteran status or any other status protected by law. VII. INDEMNITY: EL SOL agrees to and shall indemnify and hold the CITY, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of EL SOL, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, EL SOL agrees to protect and defend at its own expense, including attorney's fees, the CITY, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. EL SOL hereby waives any and all rights to any types of express or implied indemnity 4 Exhibit"A" against the CITY, its elected officials, employees, agents or representatives, with respect to third party claims against the EL SOL relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. VIII. INSURANCE: While not restricting or limiting the foregoing, during the term of this Agreement, EL SOL shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000, per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents as additionally insured. A certificate of insurance evidencing such coverage shall be provided to the City's Risk Manager or his designee, with the added notation that the insurance policy shall not be terminated or materially altered without thirty (30) days prior written notice to CITY. IX. TERMINATION: The CITY or EL SOL may terminate this Agreement for any reason, by giving the other party thirty (30) days advance written notice of termination. Should EL SOL fail to faithfully perform all the terms and conditions of this Agreement, the CITY may summarily terminate this Agreement by giving fourteen (14) working days' written notice of termination to EL SOL. X. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing 5 Exhibit"A" this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. XI. ASSIGNMENT. EL SOL shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the EL SOL's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no sub-letting or assignment shall release EL SOL of EL SOL's obligation to perform all other obligations to be performed by El Sol hereunder for the term of this Agreement. XII. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. XIII. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. XIV. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. XV. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 6 Exhibit"A" XVI. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. XVII. 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 Agreement 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. XVIII.AMENDMENTS TO THE AGREEMENT This Agreement may only be changed by written amendment signed by authorized officials of CITY and EL SOL. No oral agreements shall be binding or of any effect on either party. XIX.NOTICE Any notice required or permitted under this facilities use agreement shall be deemed sufficiently given or served if sent by United States certified mail, return receipt requested, addressed as follows: IF TO EL SOL: IF TO CITY: El Sol Neighborhood Education Center City of San Bernardino P.O. Box 449 Parks,Recreation and San Bernardino, CA 92402 Community Services Department 201North "E" Street, Ste. 301 San Bernardino, CA 92408 7 Exhibit"A" XX. AMERICANS WITH DISABILITIES ACT In the event that as a result of EL SOL'S use, or intended use, of the CENTER the Americans with Disabilities Act or any similar law requires modifications or the construction of improvement in or to the CENTER or Property, the Parties agree that such modifications, construction or improvements shall be made at EL SOL'S expense. XXI. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. It is not the intent of the Parties that any rights in third parties be created by the terms and conditions agreed to herein. /// 8 Exhibit"A" CITY OF SAN BERNARDINO EL SOL NEIGHBORHOOD EDUCATION CENTER USE OF FACILITIES AGREEMENT IN WITNESS THEREOF, CITY AND EL SOL HAVE CAREFULLY READ AND REVIEWED THIS FACILITIES USE AGREEMENT AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS FACILITIES USE AGREEMENT SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS FACILITIES USE AGREEMENT IS EXECUTED, THE TERMS OF THIS FACILITIES USE AGREEMENT ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF THE CITY AND EL SOL WITH RESPECT TO THE NICHOLSON COMMUNITY CENTER. El Sol Neighborhood Education Center City of San Bernardino P.O. Box 449 Parks, Recreation and San Bernardino, CA 92402 Community Services Department 201North "E" Street, Ste. 301 San Bernardino, CA 92408 By By Alexander Fajardo, Executive Director Allen J. Parker, City Manager Date Date Approved as to form: Gary D. Saenz, City Attorney e- t B \ 9 Exhibit"A" 2013-352 CITY OF SAN BERNARDINO EL SOL NEIGHBORHOOD EDUCATION CENTER USE OF FACILITIES AGREEMENT This Agreement, by and between El Sol Neighborhood Education Center ("EL SOL") and the City of San Bernardino ("CITY"), provides for EL SOL's use of the Nicholson Community Center ("CENTER") located at 2737 West 2nd Street, San Bernardino, CA 92410; owned by the CITY, in accordance with the following terms and conditions: GENERAL: El Sol shall have 2,310 sq. ft. of exclusive use of classrooms and reception areas and 2,714 sq. ft. of shared use of restrooms, kitchen and open area space from January 1, 2014 through December 31, 2015; Monday through Friday, 10:00 a.m. to 7:00 p.m. for community resources and youth development programming and selected Saturdays and Sundays for special events. II. TERM: The term of this agreement shall be for one (1) year commencing on January 1, 2014 and ending on December 31, 2014; with the option of five (5) one year renewals upon mutual consent of the parties. During the term of the Agreement, El Sol is granted 2,310 sq. ft. of exclusive use of classrooms and reception areas and 2,714 sq. ft. of shared use of restrooms, kitchen and open area space. III. USE OF CENTER: A. CITY's Responsibilities: 1. Maintenance of Grounds: Routine/Recurring: provide weekly landscape maintenance of Nicholson Park, including 2 inch height mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. 2. Use of CENTER Building: CITY will allow EL SOL to use the CENTER building, which includes 2,310 sq. ft. of exclusive use of classrooms and reception areas and 2,714 sq. ft. of shared use of 1 Exhibit"A" 2013-352 restrooms, kitchen and open area space during the scheduled use as described herein. B. El Sol's Responsibilities: 1. Use of Facilities: EL SOL will use CENTER for community resources and youth programming as set forth in the "Scope of Services", herein attached as Attachment"1". 2. Maintenance of Facilities: EL SOL will keep the CENTER building clean of trash throughout the duration of use. EL SOL will be solely responsible for all utilities, maintenance and janitorial costs during the term of use. 3. Adherence to CITY Regulations: EL SOL will insure that all patrons and staff adhere to CITY regulations at all times as set forth in the municipal code. CITY reserves the right to close the CENTER if requests for compliance with regulations are not met. 4. Non-profit status: EL SOL is a registered not for profit 501(c) (3) organization in good standing with the California Franchise Tax Board and the Federal Internal Revenue Service, and shall maintain such status throughout the term of this agreement. 5. Public Access: EL SOL shall be permitted to charge fees for access to specialized programs and events with prior approval by CITY. IV. FEES & EL SOL's Reciprocal Services: A. SCOPE OF SERVICES. 1. EL SOL staff and volunteers working directly with children shall submit to and pass a"Live Scan"background check. 2. EL SOL shall, perform and carry out in a good and professional manner the community services set forth in the "Scope of 2 Exhibit"A" 2013-352 Services", herein attached as Attachment"1". 3. EL SOL shall provide the CITY information for the seasonal Activity Guide four times annually, respectively on April 23rd (Summer period), July 15th (Fall period), October 24th (Winter period), and February 1st (Spring period). 4. EL SOL shall pay the CITY a monthly rental fee $600 per month on the first day of each month, commencing on January 1, 2014 through December 31, 2014, for exclusive use of the two (2) classrooms and reception areas (sq ft) and shared use of foyer, multipurpose room, kitchen and restrooms (sq ft). Any and all renovation plans and materials are subject to review and approval by CITY staff prior to construction commencing. 5. EL SOL will maintain all aspects of the interior and exterior of the CENTER building for EL SOL's exclusive use. V. RECORDS AND INSPECTIONS. EL SOL shall maintain full and accurate records with respect to all matters covered under this agreement. EL SOL shall provide to CITY a monthly report of services provided and number of persons served by the third business day of each month. VI. EMPLOYMENT AND INDEPENDENT CONTRACTORS: EL SOL, at its own expense, may employ or contract such persons, as the EL SOL deems necessary to perform the services required of EL SOL by this agreement. The EL SOL assumes full and sole responsibility for payment of all compensation and expenses of these employees or independent contractors for all state and federal income tax, Worker's Compensation unemployment insurance, Social 3 Exhibit"A" 2013-352 Security, disability insurance, and other applicable withholdings. EL SOL agrees to provide worker's compensation insurance for their own employees, volunteers and agents and agrees to hold harmless and indemnify the CITY for any and all claims arising out of any injury, disability, or death of any of the EL SOL's employees or agents. VII. COMPLIANCE WITH THE LAW; NON-DISCRIMINATION EL SOL shall comply with all laws, orders, ordinances and other public requirements now or hereafter pertaining to EL SOL'S use of the CENTER. CITY shall comply with all laws, orders, ordinances and other public requirements now or hereafter affecting the CENTER. In the performance of this facilities use agreement, EL SOL shall not engage in, nor permit its officers, employees or agents to engage in, discrimination of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, veteran status or any other status protected by law. VII. INDEMNITY: EL SOL agrees to and shall indemnify and hold the CITY, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of EL SOL, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, EL SOL agrees to protect and defend at its own expense, including attorney's fees, the CITY, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. EL SOL hereby waives any and all rights to any types of express or implied indemnity 4 Exhibit"A" • 2013-352 against the CITY, its elected officials, employees, agents or representatives, with respect to third party claims against the EL SOL relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. VIII. INSURANCE: While not restricting or limiting the foregoing, during the term of this Agreement, EL SOL shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000, per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents as additionally insured. A certificate of insurance evidencing such coverage shall be provided to the City's Risk Manager or his designee, with the added notation that the insurance policy shall not be terminated or materially altered without thirty (30) days prior written notice to CITY. IX. TERMINATION: The CITY or EL SOL may terminate this Agreement for any reason, by giving the other party thirty (30) days advance written notice of termination. Should EL SOL fail to faithfully perform all the terms and conditions of this Agreement, the CITY may summarily terminate this Agreement by giving fourteen (14) working days' written notice of termination to EL SOL. X. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing 5 Exhibit"A" 2013-352 this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. XI. ASSIGNMENT. EL SOL shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the EL SOL's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no sub-letting or assignment shall release EL SOL of EL SOL's obligation to perform all other obligations to be performed by El Sol hereunder for the term of this Agreement. XII. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. XIII. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. XIV. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. XV. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 6 Exhibit"A" 2013-352 XVI. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. XVII. 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 Agreement 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. XVIII.AMENDMENTS TO THE AGREEMENT This Agreement may only be changed by written amendment signed by authorized officials of CITY and EL SOL. No oral agreements shall be binding or of any effect on either party. XIX.NOTICE Any notice required or permitted under this facilities use agreement shall be deemed sufficiently given or served if sent by United States certified mail, return receipt requested, addressed as follows: IF TO EL SOL: IF TO CITY: El Sol Neighborhood Education Center City of San Bernardino P.O. Box 449 Parks, Recreation and San Bernardino, CA 92402 Community Services Department 201North "E" Street, Ste. 301 San Bernardino, CA 92408 7 Exhibit"A" 2013-352 XX. AMERICANS WITH DISABILITIES ACT In the event that as a result of EL SOL'S use, or intended use, of the CENTER the Americans with Disabilities Act or any similar law requires modifications or the construction of improvement in or to the CENTER or Property, the Parties agree that such modifications, construction or improvements shall be made at EL SOL'S expense. XXI. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. It is not the intent of the Parties that any rights in third parties be created by the terms and conditions agreed to herein. /// /// /// 8 Exhibit"A" • 2013-352 • CITY OF SAN BERNARDINO EL SOL NEIGHBORHOOD EDUCATION CENTER USE OF FACILITIES AGREEMENT IN WITNESS THEREOF, CITY AND EL SOL HAVE CAREFULLY READ AND REVIEWED THIS FACILITIES USE AGREEMENT AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS FACILITIES USE AGREEMENT SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS FACILITIES USE AGREEMENT IS EXECUTED, THE TERMS OF THIS FACILITIES USE AGREEMENT ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF THE CITY AND EL SOL WITH RESPECT TO THE NICHOLSON COMMUNITY CENTER. El Sol Neighborhood Education Center City of San Bernardino P.O. Box 449 Parks, Recreation and San Bernardino, CA 92402 Community Services Department 201North "E" Street, Ste. 301 San Bernardino, CA 92408 By J By lr. Alexander Fajardo, Executive Director Alle J. Parker, City Manager Date Date Approved as to form: Gary D. Saenz, City Attorney By _ 9 Exhibit"A"