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HomeMy WebLinkAbout2014-395 (IMPORTANT NOTE: Resolution is Null and Void because the Agreement was not executed within the time specified.) 1 RESOLUTION NO. 2014-395 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 3 BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEAS AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWE 4 COMMUNITY SOLUTIONS FOR SHARED USE OF THE FACILITIES AT THE NORTON GALAXY BUILDING, GYMNASIUM,AND NORTON ANNEX. 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY O SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. That the City Manager is hereby authorized to execute a lease agreement 9 between the City of San Bernardino and YouthPower Community Solutions for shared use of the 10 Norton Galaxy Building, Gymnasium and Annex located at 1494 and 1554 East Art Townsend 11 Drive, San Bernardino, CA 92408, a copy of which is attached hereto, marked Exhibit"A" and 12 incorporated herein by references as fully as though set forth at length; and 13 14 SECTION 2. That the authorization granted hereunder shall expire and be void and of 15 no further effect if the agreement is not executed by both parties and returned to the office of the 16 City Clerk within sixty(60) days following the effective date of the resolution. 17 18 19 20 21 22 23 24 /// 25 26 27 28 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEAS 2 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWE 3 COMMUNITY SOLUTIONS FOR SHARED USE OF THE FACILITIES AT THE NORTON GALAXY BUILDING, GYMNASIUM,AND NORTON ANNEX. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor an 6 Common Council of the City of San Bernardino at a joint regular meeting, thereof, held on the 7 17th day of November, 2014,by the following vote to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ X 11 BARRIOS x- 12 13 VALDIVIA X 14 SHORETT X 15 NICKEL X 16 JOHNSON X 17 MULV IHILL X 18 . ' tt_--- 19 Georgea Hanna, Ci Clerk 20 _ 21 The foregoing resolution is hereby approved this day of November, 2014. 22 23 Z4-e�r C— k CAREY AVIS, Mayor 24 City of San f3emardino 25 Approved as to form: GARY D. SAENZ, City Attorney 26 27 By: 28 2014-395 LEASE AGREEMENT CITY OF SAN BERNARDINO and YOUTHPOWER COMMUNITY SOLUTIONS, INC. CITY: CITY OF SAN BERNARDINO 300 North"D" Street San Bernardino, CA 92418 LESSEE: YOUTH POWER COMMUNITY SOLUTIONS, INC 606 East Mill Street; Building B San Bernardino, CA 92408 ADDRESS: Norton Galaxy Building 1494 and 1554 East Art Townsend Drive San Bernardino, CA 92408 APN: 0136-341-09-0000 TERM OF LEASE: Month-to-month COMMENCEMENT: December 13, 2014 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 1 of 22 2014-395 1. PARTIES. This Lease AGREEMENT (the "AGREEMENT") is entered into this 17thday of November , 20 14 , BY AND BETWEEN the City of San Bernardino, a Charter City organized under the laws of the State of California, with an address of 300 N. "D" Street, San Bernardino, California (the "CITY'); AND, YouthPower Community Solutions, a corporation incorporated under the laws of the State of California and having its principal place of business at 606 East Mill Street, Building B, San Bernardino, CA 92408 (the "LESSEE") (individually CITY or LESSEE may be referred to as a "PARTY' and collectively CITY and LESSEE may be referred to as the"PARTIES") WHO AGREE AS FOLLOWS: 2. PREMISES LEASED. CITY leases to LESSEE and LESSEE leases from CITY the portions of the Norton Galaxy Building and Norton Recreation Center listed below (the "PREMISES"). The Norton Galaxy Building and Recreation Center are located at1494 and 1554 East Art Townsend Drive in the City of San Bernardino and County of San Bernardino with a Parcel Number of 0136-341-09- 0000. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 2 of 22 2014-395 2.1 The portions of the Norton Galaxy Building covered by this AGREEMENT are as follows: 2.1.1 LESSEE shall have exclusive use of the following portions of the Norton Galaxy Building: DESCRIPTION: SQUARE FEET: Entire Second Floor 7,007 sq. ft. Stairs 149 sq. ft. Emergency Exit 112 sq. ft. Outside Kitchen Area 536 sq. ft. First Floor Storage Room 170 sq. ft. Windowed Office Area 261 sq. ft. First Floor Classroom 1,144 sq. ft. First Floor Classroom 770 sq. ft. First Floor Classroom 805 sq. ft. Total 10,954 sq. ft. 2.1.2 CITY and LESSEE shall have joint use of the following portions of the Norton Galaxy Building: DESCRIPTION: SQUARE FEET: Entry/Foyer 740 sq. ft. Ballroom/Reception Area 1,034 sq. ft. Hallway Area 167 sq. ft. First Floor Windowed Office 137 sq. ft. Restrooms 402 sq. ft. Kitchen Area 408 sq. ft. Kitchen Storage Room 173 sq. ft. Total 3,061 sq. ft. 2.1.3 CITY shall have shared use of the Galaxy Ballroom with LESSEE. CITY's usage may include weddings, receptions, business meetings, and/or other uses by third parties. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 3 of 22 2014-395 2.2 The PARTIES rights with respect to the Norton Recreation Center covered by this AGREEMENT are as follows: 2.2.1 LESSEE shall have exclusive use of the Norton Recreation Center from 5 p.m. until 10 p.m. daily from Monday through Friday ("Evening Hours") during the term of this AGREEMENT. CITY may from time to time request consent from LESSEE that CITY or another third party have access to the Norton Recreation Center during Evening Hours for the purposes of CITY or third party sponsored activities, such consent not to be unreasonably withheld. 2.2.2 LESSEE shall have exclusive use of the Norton Recreation Center from 8 a.m. until 10 p.m. weekly on Saturdays and 8 a.m. until 6 p.m. weekly on Sundays ("Weekend Hours") during the term of this AGREEMENT. CITY may from time to time request consent from LESSEE that CITY or another third party have access to the Norton Recreation Center during Weekend Hours for the purposes of CITY or third party sponsored activities, such consent not to be unreasonably withheld. 2.2.3 LESSEE understands and acknowledges that use of the Norton Recreation Center is currently subject an agreement ("PSA AGREEMENT") between the CITY and the Public Safety Academy, a charter school, granting Public Safety Academy exclusive use of the Norton Recreation Center from 7 a.m. until 5 p.m. daily from Monday through Friday ("Business Hours"). 2.2.4 During all other times, CITY shall have exclusive use of Norton Recreation Center. 2.2.5 LESSEE may from time to time request consent from CITY to have access to Norton Recreation Center outside of Evening Hours or Weekend Hours for LESSEE sponsored activities, such consent to be given in the sole discretion of CITY. 2.2.6 CITY may from time to time request consent from LESSEE to have access to Norton Recreation Center during Evening Hours or Weekend Hours for CITY or third party sponsored activities, such consent not to be unreasonably withheld. 2.2.7 LESSEE may, in conformity with Section 14, FIXTURES, place a boxing ring in that portion of the Norton Recreation Center currently devoted to machine weights with the consent of the CITY, such consent not to be unreasonably withheld. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 4 of 22 2014-395 2.2.8 LESSEE may request consent to access and use of any exercise equipment or other recreational facilities located at or within the Norton Recreational Center that is the property of the CITY, such as free weights or tennis courts, such consent not to be unreasonably withheld. 3. TERM. LESSEE agrees to lease the PREMISES from CITY on a month-to-month basis commencing on December 13, 2014 ("COMMENCEMENT DATE"). 4. RENT. 4.1 LESSEE shall pay to CITY the following rental payments in advance on the first day of each month, commencing on COMMENCEMENT DATE, and continuing until this AGREEMENT is terminated. December 13, 2014 - $2,941.94. January 1, 2015 and continuing in advance on the first day of each month thereafter until this AGREEMENT is terminated - $4,800.00. 4.2 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 LESSEE under this AGREEMENT via electronic funds transfer directly deposited into the CITY's designated checking or other bank account or any other means mutually agreed upon by the CITY and LESSEE. CITY shall provide to LESSEE all directions, information, and forms necessary to process EFT payments. 5. BLANK. This section is intentionally left blank. 6. RETURN OF PREMISES. The LESSEE agrees that it will, upon termination of this AGREEMENT, return the PREMISES in as good condition and repair as the PREMISES now are or shall hereafter be put; reasonable wear and tear excepted. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 5 of 22 2014-395 7. BLANK. This section is intentionally left blank. 8. TAXES. CITY shall pay all real property taxes, and general and special assessments levied and assessed against the PREMISES. 9. USE. LESSEE shall occupy and use the PREMISES during the term hereof exclusively for the operation of a charter school and educational facility in compliance with all federal, state, and local laws. 10. HEALTH, SAFETY, AND FIRE CODE REQUIREMENTS. 10.1 LESSEE shall, at its sole expense, ensure that the PREMISES meets 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, or California Title 24 requirements. 10.2 LESSEE shall, at its sole expense, ensure that the PREMISES meets the applicable requirements of the Americans with Disabilities Act("ADA"). 10.3 ASBESTOS/MOLD DISCLOSURE 10.3.1 Asbestos is a common building material that may be present in many buildings constructed prior to 1981 such as the PREMISES. The United States Environmental Protection Agency (EPA) has determined that the mere presence of asbestos materials does not pose a health risk to inhabitants of a structure and that such materials are safe as long as they are not disturbed or dislodged in a manner that causes the asbestos fibers to be released. Sanding, scraping, pounding, and other remodeling techniques that may release dust may cause asbestos particles to become airborne. The material is not required to be removed, but reasonable LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 6 of 22 2014-395 precautions should be taken to minimize the change of damage or disturbance of asbestos containing materials. 10.3.2 LESSEE acknowledges that this is a WARNING that the PREMISES contains asbestos and may expose the inhabitants of the PREMISES to a chemical known to cause cancer. 10.3.3 LESSEE agrees that no improvements, alterations, modifications, or repairs to the PREMISES shall be made without express approval of the CITY in conformity with SECTION 13 and 14. The approval will require an acceptable written plan of protection from the release of or exposure to asbestos. 10.3.4 LESSEE may only hang pictures and other wall ornaments with hangers that are less than '/" diameter. LESSEE will notify the CITY immediately where there exists a hole larger than '/" diameter, evidence of a water leak, and/or any appearance of crumbling or peeling in the wallboard or ceiling. 10.3.5 CITY discloses the following known information concerning asbestos and other airborne hazards: On April 8, 2010 CITY contracted with General Environmental Management Services, Inc. ("GEM") to conduct a Preliminary Investigation for Mold and Asbestos. The Investigation concluded that, "...the structure does not pose an unhealthful environment for its occupants with regards to mold,bacteria and asbestos." 11. SIGNS. LESSEE will display from windows and/or marquee of the PREMISES only such sign or signs as are not prohibited by law. 12. MAINTENANCE. 12.1 Except as required by other sections of this AGREEMENT, including Section 10 above, CITY shall, at its sole expense, perform such maintenance and repairs as LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 7 of 22 2014-395 are necessary to ensure that all portions of the PREMISES, including but not limited to the following, are at all times in good repair: 12.1.1 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, 12.1.2 The electrical, plumbing, and sewage systems, including, without limitation, those portions of the systems owned or controlled by CITY lying outside the PREMISES; and, 12.1.3 Window frames, gutters, and downspouts on the building and other improvements that are a part of the PREMISES; and, 12.1.4 Heating, ventilation and air conditioning (HVAC) systems servicing the PREMISES including changing heating and air-conditioning filters every four(4)months; and, 12.1.5 The grounds, including all parking areas and outside lighting, grass, trees, shrubbery and other flora; and, 12.1.6 CITY shall, at its sole expense, provide janitorial services, keep the interior of the PREMISES in a clean and orderly condition, reasonable wear and tear excluded, and undertake minor maintenance of the interior PREMISES such as unstoppage of toilets and changing of light bulbs and serving of the fire extinguisher or any other fire suppression equipment attached to the facility. 12.2 LESSEE shall at regular intervals,but no less than monthly, conduct an inspection of the PREMISES to determine if any maintenance or repair is necessary. LESSEE shall communicate the necessity for maintenance or repair to the CITY in writing in conformity with Section 24, NOTICE. If LESSEE gives notice to CITY of a condition requiring maintenance or repair, 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 where maintenance or repair must occur immediately and CITY is unable to perform its obligation to maintain or repair immediately, LESSEE may perform maintenance or repair. CITY shall deduct the sum of LESSEE's actual LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 8 of 22 2014-395 and reasonable expenses of performing emergency maintenance or repair from LESSEE's future rental payments until LESSEE is reimbursed in full upon presentation of receipts and/or other documentation supporting the amount expended. 13. ALTERATIONS. Upon thirty (30) days' notice to the CITY and with the CITY's consent, which shall be given in writing at the sole discretion of CITY, LESSEE may place modular units to serve as office and classroom space, or modify existing building structures on the PREMISES,but solely at expense of LESSEE. Any and all permit acquisition and installation of utility lines are the sole responsibility of the LESSEE. Upon termination of this AGREEMENT, LESSEE shall remove said modules at its own expense and leave the PREMISES in the same condition it was at the time such modules were placed there, unless the PARTIES mutually agree to maintain the modules on the PREMISES. 14. . FIXTURES. LESSEE shall have the right during the term(s) of this AGREEMENT to install shelving and fixtures, and make interior, non-structural improvements or alterations on the PREMISES. Such shelving, fixtures, improvements, and alterations shall remain property of the LESSEE and may be removed by the LESSEE during the term(s) of this AGREEMENT or within a reasonable time thereafter, provided that the LESSEE restores the PREMISES to the condition as it existed at the commencement of this AGREEMENT,reasonable wear and tear excluded, or the LESSEE may elect, with CITY's written consent to be given at CITY's sole discretion, to surrender all or any part of such shelving, fixture, improvements and alterations, to the CITY, in which case LESSEE shall have no duty to restore the PREMISES. 15. UTILITIES. CITY shall furnish to the PREMISES and CITY shall pay all service charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities. LESSEE shall furnish and pay for its own security, telephone, cable, and internet services. 16. HOLD HARMLESS. LESSEE 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 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 9 of 22 2014-395 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 LESSEE, its employees, agents, or subcontractors, arising, relating to, or in any way connected with the performance under this AGREEMENT, including any failure to ensure the PREMISES complies all Health, Safety, Fire and Building Codes, statutes, regulations and ordinances for public and governmental buildings, the ADA or any necessary repair or maintenance not Noticed in Conformity with Section 24 — NOTICE, 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, LESSEE 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. LESSEE hereby waives any and all rights to any types of express or implied indemnity against the CITY, its elected officials, employees, agents or representatives, with respect to third party claims against the LESSEE relating to or in any way connected with the accomplishment of the work or performance of services under this AGREEMENT. 17. . INSURANCE. 17.1 CITY is a self-insured public entity for the purposes of professional liability, general liability, and workers' compensation. 17.2 LESSEE shall obtain and maintain during the life of this AGREEMENT all of the following insurance coverage: 17.2.1 Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, fire, premises liability, and personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined singles limits,per occurrence and aggregate. 17.2.2 Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. 17.2.3 Worker's compensation insurance as required by the State of California. 17.3 The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 10 of 22 2014-395 17.3.1 Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." 17.3.2 Notice: "Said policy shall not tenninate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." 17.3.3 Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 17.4 LESSEE shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY,prior to performing any services under this AGREEMENT. 17.5 Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained within this AGREEMENT, or the extent to which LESSEE may be held responsible for payments of damages to persons or property. 18. DESTRUCTION OF PREMISES. 18.1 During the tenn(s) of this AGREEMENT, if any casualty, other than resulting from LESSEE's use of the PREMISES, renders a portion of the PREMISES unusable for the purpose intended, then CITY shall, at CITY's sole expense, restore the PREMISES and repair any damages caused by such casualty as soon as reasonable possible and this AGREEMENT 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, LESSEE may, at its option, terminate this AGREEMENT immediately upon written notice to the CITY. If LESSEE elects to terminate this AGREEMENT pursuant to this section, LESSEE shall be discharged from all future obligations under this AGREEMENT. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 11 of 22 2014-395 18.2 In the event there is a destruction of a portion of the PREMISES as set out in Subsection 18.1 above, there shall be an abatement or reduction in the rent between the date of the destruction and the date of completion of the restoration or the date of the termination of the AGREEMENT, whichever comes first. The abatement or reduction in rent shall be in proportion to the degree to which LESSEE's use of the PREMISES is impaired. 18.3 In the event the CITY is required to restore PREMISES as provided in Subsection 18.1 above, CITY shall not be required to restore any structure or exterior improvements or alterations made to the PREMISES by LESSEE pursuant to Section 13, Alterations above or any shelving, fixtures, or interior nonstructural improvements or alterations made by LESSEE pursuant to Section 14, Fixtures above. 18.4 If any casualty resulting from LESSEE's use of the PREMISES renders the PREMISES unusable for the purposes intended, or for any other purpose, then LESSEE shall, at LESSEE's sole expense, restore the PREMISES and repair any damages caused by such casualty as soon as reasonably possible and this AGREEMENT shall continue in full force and effect. 18.5 It is the purpose and intent of Subsections 18.1 through 18.4, inclusive, to determine what PARTY 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. 19. CITY'S DEFAULT. Except where another time limit is specifically provided, CITY shall be in default of this AGREEMENT if CITY fails or refuses to perform any material provisions of this AGREEMENT and such failure or refusal to perform is not cured within thirty (30) days following CITY's receipt of written notice of default from LESSEE. If the default cannot be reasonably cured within thirty (30) days, CITY shall not be in default of this AGREEMENT if CITY commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 12 of 22 2014-395 20. LESSEE'S REMEDIES ON CITY'S DEFAULT. LESSEE, at any time after CITY is in default, can terminate this AGREEMENT immediately upon written notice to CITY or can cure the default. If LESSEE at any time,by reason of CITY's default, pays any sum or does any act that requires the payment of any sum, the sum paid by LESSEE shall have the right to withhold from future rent due the sum LESSEE has paid until LESSEE is reimbursed in full for the sum. The remedies set forth in this section are in addition to and do not in any manner limit other remedies set forth in particular sections of this AGREEMENT. 21. LESSEE'S DEFAULT. The occurrence of any one or more of the following events shall constitute a default and breach of this AGREEMENT by LESSEE: 21.1 The vacating for more than thirty (30) consecutive days or abandonment of the PREMISES by LESSEE. 21.2 The failure of LESSEE to perform any material provisions of this AGREEMENT to be performed by LESSEE, including the payment of rent, upon written notice by CITY to LESSEE. 21.3 It is not the purpose of this section to extend the notice requirements of the unlawful detainer statutes in California. 22. CITY'S REMEDIES ON LESSEE'S DEFAULT. It is not the purpose of this section to extend the notice requirements of the unlawful detainer statutes in California. The remedies contained herein are in addition to, and not in lieu of, any other remedies available to CITY under relevant state law. 22.1 In the event of any default by LESSEE, which is not cured by LESSEE, CITY may, at its election, terminate this AGREEMENT by giving LESSEE thirty (30) days' notice of termination. 22.2 On termination of this AGREEMENT for default pursuant to this section, CITY shall have the right to recover from LESSEE all amounts for any and all damages, LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 13 of 22 2014-395 which may be the direct or indirect result of such default, including, but not limited to: 22.2.1 The worth, at the time of the award, of the unpaid rent that has been earned at the time of the termination of the AGREEMENT; and, 22.2.2 The worth, at the time of the award, of the amount by which unpaid rent that would have been earned after the date of termination of this AGREEMENT until the time of award exceeds the amount of the loss of rent that CITY proves could not have been reasonably avoided; and, 22.2.3 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, 22.2.4 Any other amount necessary to compensate the CITY for all detriment proximately caused by LESSEE'S default which city proves could not have been reasonably avoided. 22.2.5 "The worth, at the time of the award," as used in this section, is to be computed by allowing interest at the maximum rate CITY is permitted by law to charge or 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%). 23. 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 conditions: 23.1 To determine whether the PREMISES are in good condition; and, 23.2 To do any necessary maintenance and to make any restoration to the PREMISES that CITY has the right or obligation to perform; and, 23.3 To serve, post, or keep posted any notices required by law; and, LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 14 of 22 2014-395 23.4 To post "for sale" signs at any time turning the term, to post "for rent" or "for lease" signs during the last three (3)months of the term; and, 23.5 To show the PREMISES to prospective brokers, agents, buyers, tenants, lenders or persons interested in an exchange, at any time during the term; and, 23.6 For any other lawful purpose. CITY shall conduct its activities on the PREMISES as allowed in this section in a manner that will reduce possible inconvenience, annoyance, or disturbance to LESSEE. 24. NOTICES. Any notices, documents, correspondence, or other communication concerning this AGREEMENT or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. TO THE CITY: TO THE LESSEE: Mickey Valdivia, Director Leilani Palmer Parks Department YouthPower Community Solutions 201 N "E" Street, Ste. 301 606 East Mill Street, Building B San Bernardino, CA 92401 San Bernardino, CA 92408 Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 25. ASSIGNMENT. LESSEE shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the LESSEE'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 subletting or assignment shall release LESSEE of LESSEE's obligation to perform all other obligations to be performed by LESSEE hereunder for the term of this AGREEMENT. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 15 of 22 2014-395 26. ENTIRE AGREEMENT. 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. 27. 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 delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this AGREEMENT shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this AGREEMENT shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. 28. AMENDMENT. No amendment to this AGREEMENT will be effective unless it is in writing and signed by both PARTIES. 29. 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. 30. 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 16 of 22 2014-395 31. TIME OF ESSENCE. Time is of the essence of each provision of this AGREEMENT which specifies a time within which performance is to occur. In the absence of any specific time for performance, performance may be made within a reasonable time. 32. QUIET ENJOYMENT. Subject to the provisions of this AGREEMENT and conditioned upon performance of all the provisions to be performed by LESSEE hereunder, CITY shall secure to LESSEE during the AGREEMENT term the quiet and peaceful possession of the PREMISES and all rights and privileges appertaining thereto. 33. PROVISIONS ARE COVENANTS AND CONDITIONS. All provisions, whether covenants or conditions, on the part of either PARTY shall be deemed both covenants and conditions. 34. CONSENT. Whenever consent or approval of either PARTY is required that PARTY shall not unreasonably withhold, condition, or delay such consent or approval, unless the provision providing for such consent or approval specifically provides such consent or approval may be given in the PARTY's discretion. 35. EXHIBITS. All exhibits referred to are attached to this AGREEMENT and incorporated by reference. 36. LAW. This AGREEMENT shall be governed and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. 37. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this AGREEMENT shall be tried and litigated either in the Superior Court of the State of California LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 17 of 22 2014-395 for the County of San Bernardino or the United States 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. 38. ATTORNEY'S FEES AND COSTS. 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/her office in enforcing this AGREEMENT on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this section. 41. RIGHT TO TERMINATE. This AGREEMENT may be terminated at any time by thirty (30) days written notice by either PARTY for any reason or no reason. In the event that LESSEE terminates this AGREEMENT pursuant to this section, the CITY shall have the right to receive from LESSEE only the rent which would have been earned at the date of termination of this AGREEMENT. 42. 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. 43. SURVIVAL. The obligations of the PARTIES that, by their nature, continue beyond the term of the AGREEMENT, will survive the termination of the AGREEMENT. 44. ESTOPPEL CERTIFICATE. Each PARTY within thirty (30) days after notice from the other PARTY shall execute and deliver to the other PARTY, in recordable form, a certificate stating that this AGREEMENT is unmodified and in full force and effect, or in full force and effect as modified, and stating the modifications. The certificate also shall state the amount of minimum monthly rent, the dates to LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 18 of 22 2014-395 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 this certificate within thirty(30) days shall be conclusive upon the PARTY requesting the certificate any successor to the PARTY requesting the certificate, that this AGREEMENT is in full force and effect and has not been modified except as may be represented by the PARTY requesting the certificate, and that there are no uncured defaults on the part of the PARTY requesting the certificate. 45. PUBLIC RECORDS DISCLOSURE. All information received by CITY concerning this AGREEMENT, including the AGREEMENT itself, may be treated as public information subject to disclosure under the provisions of the California Public Records Act, Government Code Section 6250 et se g. (the "Public Records Act"). The PARTIES understand that although all materials received in connection with this AGREEMENT are intended for the exclusive use of the PARTIES, they are potentially subject to disclosure under the provisions of the Public Records Act. 46. CONDITION OF PREMISES. The CITY shall take reasonable efforts to deliver the PREMISES to LESSEE clean and free of debris on the COMMENCEMENT DATE but makes no warranty as to the condition of the PREMISES on COMMENCEMENT DATE or the PREMISES' suitability for a particular use. LESSEE agrees that it has not relied upon any representation by CITY as to the condition of the PREMISES or the PREMISES' suitability for a particular use when determining whether to enter into this AGREEMENT. 47. CONDEMNATION. If any legally, constituted authority condemns the PREMISES or such part thereof which shall make the PREMISES unsuitable for leasing, this AGREEMENT shall cease when the public authority takes possession, and CITY and LESSEE shall account for rental as of that date. Such termination shall be without prejudice to the rights of either PARTY to recover compensation from the condemning authority for any loss or damage caused by the condemnation. Neither PARTY shall have any rights in or to any award made to the other by the condemning authority. HI LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 19 of 22 2014-395 48. MATERIAL REPRESENTATION. If during the course of the administration of this AGREEMENT, 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 AGREEMENT may be immediately terminated. If this AGREEMENT is terminated according to this section, the terminating PARTY is entitled to pursue any available legal remedies. 49. INTERPRETATIONS. The PARTIES have participated jointly in the negotiation and drafting of this AGREEMENT. In the event an ambiguity or question of intent or interpretation arises with respect to this AGREEMENT, this AGREEMENT shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this AGREEMENT. 50. . COUNTERPARTS. This AGREEMENT may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the PARTY executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or".pdf' signature page were an original thereof 51. CORPORATE AUTHORITY. Each person executing this AGREEMENT on behalf of the PARTIES hereto warrant that they are duly authorized to execute this AGREEMENT on behalf of said PARTIES and that by doing so, the PARTIES hereto are formally bound to the provisions of this AGREEMENT. 52. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this AGREEMENT and any of the attached Exhibits or Attachments, the terms set forth in this AGREEMENT shall prevail. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 20 of 22 2014-395 53. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this AGREEMENT for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event. 54. COMPLIANCE WITH LAW. LESSEE agrees to abide by all federal, state, and local laws, ordinances and regulations. 55. NON-DISCRIMINATION. In the performance of this AGREEMENT, use of the PREMISES, and in the hiring and recruitment of employees, LESSEE shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment 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, or any other status protected by law. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 21 of 22 2014-395 LEASE AGREEMENT CITY OF SAN BERNARDINO and YOUTHPOWER COMMUNITY SOLUTIONS, INC. CITY: LESSEE: Allen Parker, City Manager Its: DATE: DATE: APPROVED AS TO FORM: GARY D. SAENZ, City Attorney t By: LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YOUTHPOWER COMMUNITY SOLUTIONS,INC.FOR NORTON GALAXY BUILDING Page 22 of 22