HomeMy WebLinkAbout14- Parks, Recreation & Community Services CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL A 6AM:� °A L
From: Kevin Hawkins, Director Subject: Resolution of the Mayor and Common
Dept: Parks, Recreation & Community Council of the City of San Bernardino
Services Dept. canceling the standard Facility Lease
Agreement approved August 2, 2010 and
Date: October 5,2010 authorizing the City Manager to execute a
new standard Facility Lease Agreement
with the County of San Bernardino to
create and operate a Family Resource
Center at Nicholson Community Center.
M/CC Meeting Date: October 18,2010
Synopsis of Previous Council Action:
8-2-2010— Mayor and Common Council authorized the City Manager to execute a standard
Facility Lease Agreement with the County of San Bernardino to create and operate a
Family Resource Center at Nicholson Community Center.
Recommended motion:
1) Adopt Resolution, and
2) Authorize the Director of Finance to amend the FY 2010-2011 Parks & Recreation
budget as outlined in the staff report.
V j
ature
Contact person: Robert Lennox Phone: 384-5031
Supporting data attached: Staff Report, Reso, & Agreement Ward: 6
FUNDING REQUIREMENTS: Amount: revenue: of approx $36,672 for FYI 0/11,
and $55,000 annually there after
expense: $55,000 program/operating costs
Source: (Acct.No.) rev: 001-380-4901-0000
exn 001-380-xxxx-2010-0074
(Acct. Description) Misc. Receipts/Lease Agreements
Finance:
Council Notes:
Agenda Item No.__JLL_ _
l 6-! �-CgD/0
CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino canceling the
standard Facility Lease Agreement approved August 2, 2010 and authorizing the City Manager
to execute a new standard Facility Lease Agreement with the County of San Bernardino to create
and operate a Family Resource Center at Nicholson Community Center.
Backiround:
With the exception of this past summer's volunteer after school program, the Nicholson
Community Center has been closed for city programming since April 1, 2009. Closure savings
derived from the Interim City Manager's proposal to the Mayor and Common Council at the
February 2, 2009 meeting reflected a total annual general fund savings of$58,800 in operating
costs plus an additional $20,000 in utilities-internal service charges. As a result of this closure,
traditional facility reservations, contract classes and community programs have not been
provided.
In an effort to revitalize programming and services at this site, while maintaining the proposed
savings to the General Fund, on August 2, 2010 the Mayor and Common Council approved a
standard Facility Lease Agreement between the City and with the County of San Bernardino,
Preschool Services Department (CSBPSD), to co-operatively utilize facilities at Nicholson
Community Center. The lease agreement initially had a commencement date of September 1,
2010; however the County has required the City to provide several facility improvements prior to
the County Board of Supervisors executing the lease agreement. City staff in the Facilities
Management Division and the Parks Department have addressed all improvement concerns
referenced in a Risk Assessment report provided by the County during the initial lease contract
negotiations.
The facility improvements provided a short delay while staff secured vendors and resources to
complete the work. As a result, the County has requested a revision to the standard Facility
Lease Agreement, modifying the commencement date to no later than December 1, 2010 just in
case the City approval process is longer than anticipated. It is anticipated that the County
approval will occur the first week in November 2010. Following execution of the lease
agreement by the County occupation of facility can occur immediately.
As with the original agreement, CSBPSD would like to expand their existing Family Resource
Center Programs in the County and have identified this site as a qualifying target location for the
federally funded programming. In exchange for use, CSBPSD has proposed subsidizing the
operation of the Nicholson facility through lease payments totaling $55,000 annually ($4,584
monthly) and continuing regular recreational community center activities for FY2010/11 with an
option of five single additional years thereafter. The revised agreement would commence
November 1, 2010 and conclude October 31, 2011, with optional additional years starting on
November 1St each year thereafter. Abbreviated programming and services could be reinstituted
with a commitment of internal service costs (building utilities and maintenance) from the City
totaling no more than $25,000 as projected by the city's Facilities Management Department.
The County would have access to the Center Monday through Friday from 7:00 a.m. to 10:00
p.m. The City recreation component would operate Monday through Thursday from 10:00 a.m.
to 7 p.m.
In order to maximize participation and community involvement, the County has requested that
the City provide a recreation component at the facility similar to the level of programming
present before the April 2009 closure. The lease payments would cover the cost of salaries,
materials and supplies to co-operate the Nicholson Community Center by city and county staff.
The city would assign temporary personnel to operate the facility with the County. The annual
revenue and expense balance resulting from approving the agreement would be:
Annual
$ 55,000 Lease payments revenue
($ 25,000) Personnel Services (3 part time staff)
($ 5,000) Maintenance and Operations (recreation supplies and materials)
($ 25,000) Internal Service Charges utilities and maintenance to operate building)
$ 0 General Fund obligation
Pro-Rate (Nov 2010 —Jun 2011)
$ 36,672 Lease payments revenue
($ 16,660) Personnel Services (3 part time staff)
($ 3,352) Maintenance and Operations (recreation supplies and materials)
($ 16,660) Internal Service Charges (utilities and maintenance to operate building)
$ 0 General Fund obligation
Financial Impact:
San Bernardino County would pay an annual lease fee of$55,000 ($4,584 monthly) for partial
use and co-operation of the Nicholson Community Center. Lease revenue would fund the entire
City recreational component at the center totaling $36,672 for the balance of FY2010/11, and
$55,000 annually thereafter.
Account No.: 001-380-xxxx-2010-0074 Budgeted Amount:
Balance as of 10/18/10: $0 Balance after Approval of Item: $36,672
Please note this balance does not indicate available funding. It does not include non-
encumbered reoccurring expenses or expenses incurred but not yet processed.
Recommendation:
1) Adopt Resolution, and
2) Authorize the Director of Finance to amend the FY 2010-2011 Parks & Recreation
budget as outlined in the staff report.
I RESOLUTION NO.
o -
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO CANCELING THE STANDARD FACILITY LEASE
AGREEMENT APPROVED AUGUST 2, 2010 AND AUTHORIZING THE CITY
4 MANAGER TO EXECUTE A NEW STANDARD FACILITY LEASE AGREEMENT
5 WITH THE COUNTY OF SAN BERNARDINO TO CREATE AND OPERATE A
FAMILY RESOURCE CENTER AT NICHOLSON COMMUNITY CENTER.
6
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
7 OF SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. The previous Agreement approved by Resolution 2010-255 between the
9 City of San Bernardino and the County of San Bernardino, is hereby canceled for the lease of the
10
Nicholson Community Center.
11
SECTION 2. That the City Manager is hereby authorized to execute a revised Lease
12
13 Agreement with the County of San Bernardino for the lease of the Nicholson Community Center
14 to be used in part as a Family Resource Center, a copy of which is attached hereto, marked
15 Exhibit"1"and incorporated herein by reference as fully as though set forth at length; and
16 SECTION 3. That the Director of Finance is hereby authorized to amend the Fiscal
17 Year 2010-2011 General Fund budget and increase the expenditure allocation for the Parks
18
Department line item budget; and.
19
20 SECTION 4. That the authorization granted hereunder shall expire and be void and of
21 no further effect if the agreement is not executed by both parties and returned to the office of the
22 City Clerk within sixty (60) days following the effective date of the resolution.
23
24
25
26
27
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1 RESOLUTION NO.
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO CANCELING THE STANDARD FACILITY LEASE
AGREEMENT APPROVED AUGUST 2, 2010 AND AUTHORIZING THE CITY
4 MANAGER TO EXECUTE A NEW STANDARD FACILITY LEASE AGREEMENT
WITH THE COUNTY OF SAN BERNARDINO TO CREATE AND OPERATE A
5 FAMILY RESOURCE CENTER AT NICHOLSON COMMUNITY CENTER.
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a Meeting, thereof,
8 held on the day of , 2010, by the following vote to wit:
9
COUNCIL MEMBERS AYES NAYS ABSTAIN ABSENT
10
11 MARQUEZ
12 DESJARDINS
13 BRINKER
14 SHORETT
15 KELLEY
16
JOHNSON
17
MCCAMMACK
18
19 Rachel G. Clark, City Clerk
20
The foregoing resolution is hereby approved this day of ,2010.
21
22 Patrick J. Morris, Mayor
23 City of San Bernardino
24 Approved as to Form:
25
26 kJames F. lenman, City Attorney
27
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EXHIBIT 1
FOR COUNTY USE ONLY
New Vendor Code SC Dent. Contract Number
`°°"" Chan e
Rinr+oiNd
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
RCS HPS 59002833 $
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROD/JOB No. Amount
Project Name Estimated Payment Total by Fiscal Year
SB-PSD FY Amount UD FY Amount I/D
2750 W.2 nd Street
San Bernardino„CA
CONTRACTOR City of San Bernardino
Federal ID No. or Social Security No.
tractor's Representative Robert Lennox,Parks,Recreation&Community Services Department
Hddress 1350 South E Street, San Bernardino,CA 92401 Phone (909)384-5031
Nature of Contract: (Briefly describe the general terms of the contract) This Lease Agreement is for a period of one year with
five one-year options to extend. Leased Premises consist of 2,310 square feet of exclusive use classroom and office space and
2,714 square feet of shared use of restrooms,kitchen and indoor open area. Monthly rent is$4,584($1.50/sq.ft./month
modified gross for the exclusive use area and$0.41/sq.ft./month modified gross for the shared use area for a blended rate of
$0.68/sq.ft./month modified gross).
City is to provide all interior and exterior maintenance and all utilities. County shall provide janitorial for its exclusive use area.
City shall provide janitorial for the remainder of the Premises.
(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
0- 0- 0-
County Counsel Department Head
Date Date Date
0
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EXHIBIT 1
COUNTY OF SAN BERNARDINO
LEASE AGREEMENT
CITY: CITY OF SAN BERNARDINO
Parks, Recreation& Community Services Department
1350 South E Street
San Bernardino, CA 92408
COUNTY: COUNTY OF SAN BERNARDINO
Real Estate Services Department
825 East Third Street
San Bernardino, CA 92415-0832
ADDRESS: 2750 W. 2nd Street
San Bernardino, CA 92410
TERM OF LEASE: One (1)year with five (5)one-year option(s)
COMMENCEMENT DATE OF LEASE: Upon date of execution by all parties but in no event
later than December 1, 2010
COST PER SQUARE FOOT: Blended rate of$0.68 modified gross ($1.50 for exclusive use
area and $0.41 for shared area)
COUNTY CONTRACT NUMBER:
REV: 7/7/07 (110568.13)
TYPED: 6/18/09
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EXHIBIT I
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 7
23 CITY'S REMEDIES ON COUNTY'S DEFAULT 8
24 CITY'S ACCESS TO PREMISES 8
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 10
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
41 RIGHT TO TERMINATE LEASE 11
42 CITY'S IMPROVEMENTS 11
43 CAPTIONS,TABLE OF CONTENTS & COVER PAGE 12
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EXHIBIT 1
Table of Contents
Page -2-
44 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 14
52 INTERPRETATIONS 15
53 COUNTERPARTS 15
54 USE OF AMERICAN RECOVERY AND REINVESTMENT ACT OF
2009 FUNDS AND REQUIREMENTS 15
55 SCHEDULE OF EXPENDITURE OF FEDERAL AWARDS 16
56 AUTHORIZED SIGNATORS 17
Exhibit"A". Premises Specifications
Exhibit"B",List of Former County Officials
Exhibit"C",Estoppel Certificate
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EXHIBIT 1
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
2,310 square feet of exclusive use classroom and office space and 2,714 square feet of shared use
area consisting of restrooms, kitchen and indoor multipurpose area, real property, and other
improvements, with parking, including handicapped parking at the Nicholson Community
Center, located at 2750 W. 2°d Street, San Bernardino, CA ("Premises") as described in Exhibit
"A", Premises Specifications.
3. TERM:
a. Initial Term. The Lease's initial term("Initial Term") shall commence on the date
of execution by all parties but in no event later than December 1, 2010 ("Commencement Date")
and end on November 30, 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:
Date of execution by all parties thru November 30, 2011 — monthly payment of
$4,584.00
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
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EXHIBIT I
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 for a Family
Support Center for the Head Start Program. COUNTY shall have access to the Premises from
7:00 a.m. to 10:00 p.m. Monday through Friday and for intermittent use on the weekends at any
times determined necessary by COUNTY, if not in conflict with CITY useage. To facilitate the
shared useage of the parties, CITY and COUNTY agree that they shall provide the other with
monthly calendars for proposed usage thirty (30) days in advance. COUNTY shall have the final
authority to determine if CITY's proposed usage of the Premises is compatible and acceptable to
the COUNTY and its use of the Premises.
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.
Q
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EXHIBIT I
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) 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 to its exclusive use
area, and keep its exclusive use area of the Premises in a clean and orderly condition, reasonable
wear and tear excluded.. CITY shall provide janitorial services to the remainder of the Premises
and keep the shared use area of the Premises in a clean and orderly condition.
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: COUNTY shall not make any structural or exterior improvements or
alterations to the Premises without CITY's consent. Any such alterations shall remain on and be
surrendered with the Premises on expiration or termination of the Lease.
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EXHIBIT I
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
yaw. interior,non-structural improvements or alterations in the Premises. Such shelving,fixtures,
playground equipment,improvements, and alterations shall remain the property of the COUNTY
and may be removed by the COUNTY during the term(s) of this lease or within a reasonable time
thereafter,provided that the COUNTY restores the Premises to the condition as it existed at the
commencement of this lease,reasonable wear and tear excluded, or the COUNTY in its sole
discretion may elect to surrender all or any part of such shelving,fixture, improvements and
alterations,however excluding exterior playground equipment,to the CITY, 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 CITY 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, security,fire alarm service and all other
utilities. 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.
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EXHIBIT I
(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.
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EXHIBIT 1
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 (Builders 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 Prinigg and Non-Contributory — All policies required herein are
to be primary and non-contributory with any insurance or self-insurance programs carried or
administered by the Parties.
19. DESTRUCTION OF PREMISES:
a. During the term of this Lease, if any casualty, other than resulting from
COUNTY's use of the Premises, renders a portion of the Premises unusable for the purpose
intended, then CITY shall, at CITY's expense, restore the Premises and repair any damages
caused by such casualty as soon as reasonably possible and this Lease shall continue in full force
and effect. If CITY does not commence the restoration of the Premises in a substantial and
meaningful way within thirty (30) days following the CITY's receipt of written notice of the
casualty, or should CITY fail to diligently pursue completion of the restoration of the Premises,
or if the time required to restore the Premises is estimated to exceed ninety (90) days, COUNTY
may, at its option, terminate this Lease immediately upon written notice to 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.
I
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
I
6
EXHIBIT 1
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.
The purpose of this notice requirement is to extend the notice requirements of the unlawful
detainer statutes of California.
7
EXHIBIT 1
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,
C. To serve,post, or keep posted any notices required by law; and,
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EXHIBIT 1
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
1350 South E Street
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
26. ASSIGNMENT.
a. COUNTY shall not voluntarily or by operation of law assign, transfer, sublet or
encumber all or any parry 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.
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EXHIBIT I
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 parry 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.
33. QUIET ENJOYMENT: Subject to the provisions of this Lease and conditioned upon
performance of all the provisions to be performed by COUNTY hereunder, CITY shall secure to
COUNTY during the Lease term the quiet and peaceful possession of the Premises and all right
and privilege appertaining thereto.
34. PROVISIONS ARE COVENANTS AND CONDITIONS: All provisions, whether
covenants or conditions, on the part of either party shall be deemed to be both covenants and
conditions.
35. CONSENT: Whenever consent or approval of either party is required that party shall not
unreasonably withhold, condition or delay such consent or approval.
36. EXHIBITS: All exhibits referred to are attached to this Lease and incorporated by
reference.
37. LAW: This Lease shall be construed and interpreted in accordance with the laws of the
State of California.
38. VENUE: The parties acknowledge and agree that this Lease was entered into and intended
to be performed in San Bernardino County, California. The parties agree that the venue for any
action or claim brought by any party to this Lease will be the Superior Court of California,
County of San Bernardino, San Bernardino District. Each party hereby waives any law, statute
(including but not limited to Code of Civil Procedure section 394), or rule of court that would
allow them to request or demand a change of venue. If any third party brings an action or claim
10
EXHIBIT I
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. CITY has been provided a copy of COUNTY's RISK Assessment Report dated June 2,
2010. CITY will review and correct any items outlined in the report which pose a health or
safety risk prior to COUNTY's occupancy of the Premises.
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 `B", 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
•i.r 11
EXHIBIT 1
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 parry requesting the certificate. The estoppel certificate shall be in the form as shown
in Exhibit"C",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.
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;
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EXHIBIT I
(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 seq. (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,
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
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EXHIBIT I
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.
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.
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EXHIBIT I
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
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 subcontract
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.
Whistleblower Protection:
Contractor agrees that both it and its subcontractors shall comply with Section 1553 of the
ARRA,which prohibits all non-Federal contractors, including the State, and all contractors of the
State, from discharging, demoting or otherwise discriminating against an employee for
disclosures by the employee that the employee reasonably believes are 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
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EXHIBIT I
(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.
Contractor 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.
16
ti
EXHIBIT I
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:
I
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 1
El(=IT"A"
PREMISES SPECIFICATIONS
LM
18
EXHIBIT 1
EXHIBIT"B"
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
Chas A.Kelley County Capacity:
Field Representative for County of San Bernardino
District 3 Supervisor,Neil Derry: Current
City Capacity:
City Council Member for Ward 5: Current
i
19
• EXHIBIT I
EXHIBIT "C" -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.
By:
Director
Real Estate Services Department