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HomeMy WebLinkAbout2015-148 I RESOLUTION NO. 2015-148 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA BERNARDINO AUTHORIZING EXECUTION OF THE FIFTH AND FINA 3 AMENDMENT TO THE FAS STANDARD CONTRACT WITH THE COUNTY OF SA BERNARDINO FOR THE LEASE OF A PORTION OF THE DELMANN HEIGHT 4 COMMUNITY CENTER TO BE USED FOR THE HEAD START PROGRAM. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CIT OF SAN BERNARDINO AS FOLLOWS: 6 SECTION 1. That the City Manager is hereby authorized to execute the Fifth and Final 7 Amendment to the FAS Standard Contract with the County of San Bernardino for the lease of 8 portion of the Delmann Heights Community Center to be used for the Head Start Program, 9 copy of which is attached hereto, marked Exhibit "1" and incorporated herein by reference as 10 though set forth at length; and 11 SECTION 2. That the authorization granted hereunder shall expire and be void and of no 12 further effect if the Agreement is not executed by both parties and returned to the office of the 13 City Clerk within ninety (90) days following the effective date of the Resolution. 14 15 16 /// 17 18 19 20 21 22 /// 23 24 - 1 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA BERNARDINO AUTHORIZING EXECUTION OF THE FIFTH AND FINA 2 AMENDMENT TO THE FAS STANDARD CONTRACT WITH THE COUNTY OF SA BERNARDINO FOR THE LEASE OF A PORTION OF THE DELMANN HEIGHT 3 COMMUNITY CENTER TO BE USED FOR THE HEAD START PROGRAM. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor an 5 Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 6 201h day of July, 2015, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ x- 9 BARRIOS X 10 VALDIVIA X 11 SHORETT X 12 NICKEL X 13 JOHNSON X 14 MULVIHILL X 15 16 GeorgeaVn Hanna, CMC, City Clerk 17 The foregoing resolution is hereby approved this y day of July 2015. 18 /) � 19 R. Carey Davis/mayor City of San Bernardino 20 Approved as to form: Gary D. Saenz, City Attorney 21 By. w 22 23 24 2 2015-148 ORIGINAL FOR COUNTY USE ONLY New FAS Vendor Code Dept. Contract Number EL Change CITYOFSAN772 SC RNT A 09-830 A-5 C6SA BERNARDINO Cancel ePro Vendor Number ePro Contract Number OUNTY 00003036 County Department Dept. Orgn. Contractor's License No. Real Estate Services RNT RNT County Department Contract Representative Telephone Total Contract Amount FAS Terry Thompson, Director (909)387-5252 $159,248.00 STANDARD CONTRACT Contract Type Revenue Encumbered Unencumbered Other: If not encumbered or revenue contract type, provide reason: Commodity Code Contract Start Date Contract End Date Original Amount Amendment Amount 96164 9/9/09 8/31/16 $136,952.00 $22,296.00 FIFTH AMENDMENT Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No Amount AAA RNT RNT 200 2905 59002663 $ I L Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount Project Name Estimated Payment Total by Fiscal Year SAN BERNARDINO— PSD FY Amount I/D FY Amount I/D 2969 Flores Street Contract 5(a) THIS CONTRACT is entered into in the State of California by and between the County of San Bernardino, hereinafter called the County, and Name City of San Bernardino hereinafter called CITY Address 201 North "E" Street, Suite 301 San Bernardino, CA 92401 Telephone Federal ID No.or Social Security No. (909) 384-5030 IT IS HEREBY AGREED AS FOLLOWS: WHEREAS, COUNTY and the City of San Bernardino ("CITY") entered into a Lease Agreement, Contract "Lease"),No. 09-830 (the Lease ), on September 15, 2009, as amended by the First Amendment on October 18, 2011, and by the Second Amendment on June 19, 2012, and by the Third Amendment on November 5, 2013, and by the Fourth Amendment on July 8, 2014 (collectively, the "Lease") wherein CITY agreed to lease certain real property to the COUNTY, which Lease is currently scheduled to expire on August 31, 2015; and, WHEREAS, the COUNTY and CITY desire to amend Lease Agreement No. 09-830 to: exercise the last one-year option period to extend the Lease term one year from September 1, 2015 through August 31, 2016 (the "Fifth Extended Term"); modify Paragraph 4, RENT, to revise the rent schedule; modify Paragraph 17, HOLD HARMLESS; modify Paragraph 18, INSURANCE SPECIFICATIONS; modify Paragraph 25, NOTICES, to update the CITY and COUNTY addresses and change how notices are to be given; modify Paragraph 42, CITY's Auditor-Controllerffreasurer Tax Collector Use Onl ❑Contract Database ❑FAS Input Date Keyed By Page 1 of 6 2015-148 IMPROVEMENTS; modify Paragraph 47, HAZARDOUS SUBSTANCES; and add a new Exhibit "C" Prevailing Wage Requirements. NOW, THEREFORE, in consideration of mutual covenants and conditions, the parties hereto agree the Lease is amended as follows: 1. Effective as of September 1, 2015, DELETE in its entirety the existing Paragraph 3, TERM and SUBSTITUTE therefore the following as a new Paragraph 3, TERM: 3. TERM: The term of the Lease shall be extended for one (1) year, commencing on September 1, 2015 and expiring on August 31, 2016 (the "Fifth Extended Term")." 2. Effective September 1, 2015, DELETE in its entirety, Paragraph 4 RENT, Subparagraph a. and SUBSTITUTE therefore the following as a new Paragraph 4, RENT, Subparagraph a.: 4. RENT: a. COUNTY shall pay to CITY the following monthly rental payments for the Premises in arrears on the last day of each month, during the Fifth Extended Term based on 2,160 square feet of building/classrooms space. The 256 square feet of playground area shall be at no additional cost to COUNTY. September 1, 2015 thru August 31, 2016— monthly payments of$1,858.00 3. DELETE in its entirety the existing Paragraph 17, HOLD HARMLESS, and SUBSTITUTE therefore the following as a new Paragraph 17, INDEMNIFICATION: 17. INDEMNIFICATION: a. The CITY agrees to indemnify, defend and hold harmless the COUNTY, its authorized officers, agents, volunteers and employees, from any and all claims, demands, actions, losses, damages, Liability, and/or for any costs or expenses incurred by the COUNTY arising out of: (a) any improvements constructed by the CITY pursuant to the Lease; (b) the CITY's acts and omissions in connection with its ownership of the property; (c) the use of common areas and leasehold spaces other than the Premises; and (d) toxic waste and environmental contamination not resulting from the COUNTY's use of the Premises, except where such indemnification is prohibited by law. The CITY's indemnification obligation applies to the COUNTY's "active" as well as "passive negligence, but does not apply to the COUNTY's "sole negligence" or "willful misconduct" within the meaning of Civil Code section 2782. The CITY's indemnification obligation shall survive the COUNTY's tenancy. The insurance provisions in Paragraph 18, INSURANCE REQUIREMENTS AND SPECIFICATIONS, shall not be interpreted in a manner that limits the indemnification obligations. The parties agree that CITY's obligation to defend pursuant to this Paragraph 17 shall: (a) either be handled by qualified attorney(s) in the City Attorney's office or by third-party defense counsel selected by the City Council and reasonably approved by COUNTY; and (b) whether handled by the City Attorney's office or by approved third- party defense counsel, CITY shall obtain COUNTY's written approval prior to entering into any settlement or other resolution of the claim(s) giving rise to the indemnity obligation. b. The COUNTY agrees to indemnify and hold harmless the CITY, and its officers, employees, agents and volunteers from any and all damages for injury to persons and damage to property arising out of the sole negligence of the COUNTY, its officers, employees, agents, or volunteers in connection with this contract. C. In the event 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 the Lease, the COUNTY and/or CITY shall indemnify the other to the extent of its comparative fault. Revised 2/20/2015 Page 2 of 6 2015-148 d. Furthermore, if the COUNTY and 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. 4. DELETE in its entirety the existing Paragraph 18, INSURANCE SPECIFICATIONS, and SUBSTITUTE therefore the following as a new Paragraph 18, INSURANCE REQUIREMENTS AND SPECIFICATIONS: 18. INSURANCE REQUIREMENTS AND SPECIFICATIONS:CITY and COUNTY are both self- insured public entities for purposes of general liability, property insurance, automobile liability, and workers' compensation. Each party represents and warrants that through its respective programs of self-insurance, each party has adequate coverage or resources to meet the requirements of this Paragraph 18 and to protect against liabilities arising out of the performance of the terms, conditions, or obligations of this Lease. 5. DELETE in its entirety the existing Paragraph 25, NOTICES, and SUBSTITUTE therefore the following as a new Paragraph 25, NOTICES: 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 United States mail, postage prepaid, certified or registered, return receipt requested. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party shall be addressed to the other party at the address set forth below. Either party may change its address by notifying the other party of the change of address. Notices shall be deemed delivered and effective upon the earlier of(i) actual receipt or (ii) the date of delivery or refusal of the addressee to accept delivery if such notice is sent by or United States mail, postage prepaid, certified or registered, return receipt requested. CITY's address: City of San Bernardino Parks, Recreation & Community Services Department 201 North "E" Street, Suite 301 San Bernardino, CA 92401 COUNTY'S address: County of San Bernardino Real Estate Services Department 385 North Arrowhead Avenue, Third Floor San Bernardino, CA 92415-0180 b. If, at any time after the COUNTY accepts the Premises, the CITY assigns or transfers a non-controlling interest of its rights in the Premises to a third party, CITY must notify COUNTY of its action at least fifteen (15) COUNTY working days prior to completing any such action. C. If, at any time after the COUNTY accepts the Premises, the CITY assigns or transfers a controlling interest of its rights in the Premises to a third party, CITY must notify COUNTY of its action at least fifteen (15) COUNTY working days prior to completing any such action. The new owner must provide COUNTY with evidence of completion of such action. The parties shall immediately execute an amendment to this Lease stating the change of ownership of the Premises. (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 17, INDEMNIFICATION and Paragraph 18, INSURANCE REQUIREMENTS AND SPECIFICATIONS. Revised 2/20/2015 Page 3 of 6 2015-148 6. DELETE in its entirety the existing Paragraph 42, CITY'S IMPROVEMENTS and SUBSTITUTE therefore the following as a new Paragraph 42, CITY'S IMPROVEMENTS: 42 CITY'S IMPROVEMENTS: There are no improvements being constructed by the CITY as of the date of this Fifth Amendment. 7. DELETE in its entirety the existing Paragraph 47, HAZARDOUS SUBSTANCES and SUBSTITUTE therefore the following as a new Paragraph 47, HAZARDOUS SUBSTANCES: 47. HAZARDOUS SUBSTANCES: a. CITY hereby represents and warrants that, to the best of CITY's knowledge, information and belief: (i) the Premises and the property on which the Premises forms a part of 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 and the property on which the Premises forms a part of to date, and the soil, groundwater and vapor on or under the Premises and the property on which the premises forms a part of 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 and the property on which the Premises forms a part of: (i) prior to the Commencement Date of this Lease; and (ii) not caused by COUNTY during the term, including any extended term. 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. The parties agree that CITY's obligation to defend pursuant to this Paragraph 17 shall: (a) either be handled by qualified attorney(s) in the City Attorney's office or by third-party defense counsel selected by the City Council and reasonably approved by COUNTY; and (b) whether handled by the City Attorney's office or by approved third-party defense counsel, CITY shall obtain COUNTY's written approval prior to entering into any settlement or other resolution of the claim(s) giving rise to the indemnity obligation. 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 and the property on which the Premises forms a part of, is either (i) potentially injurious to the public health, safety or welfare, the environment or the Premises and Revised 2/20/2015 Page 4 of 6 2015-148 the property on which the Premises forms a part of; (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 and the property on which the Premises forms a part of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises and the property on which the Premises forms a part of 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. REMAINDER OF THIS SECTION INTENTIONALLY LEFT BLANK Page 5 of 6 Revised 2/20/2015 2015-148 8. All other provisions and terms of the Lease shall remain the same and are hereby incorporated by reference. In the event of any conflict between the Lease and this Fifth Amendment, the provisions and terms of this Fifth Amendment shall control. END OF FIFTH AMENDMENT. COUNTY OF SAN BERNARDINO CITY OF SAN BERNARDINO ► By No- James Ramos, Chairman, Board of Supervisors (Authorized signature-sign in blue ink) Dated: Name: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE Title: CHAIRMAN OF THE BOARD Laura H. Welch Dated: Clerk of the Board of Supervisors of the County of San Bernardino By Approved as to form: Deputy City Attorney By: '� tntor ed signature-sign=contract) N me: Gria�C� pe name of person Title: 2F 45-r r (Print or Type)Ylr Dated: ��'Z21 l"i Address 201 N. "E" Street Suite 301 San Bernardino, CA 92401 Approved as to Legal Form Reviewed by Contract Compliance Presented to BOS for Signature ► G'LL' 1,C G ► Agnes A C ng, Deputy County C sel Terry W.Thompson,Director,Real Estate Services Dept. Date I I -/ Date Date Page 6 of 6 Revised 2/20/2015 2015-148 ORIGINAL FOR COUNTY USE ONLY JNew FAS Vendor Code c Dept. Contract Number Change CITYOFSAN772 `7C RNT A 09-830 A-5 SAN BERNARDINO Cancel ePro Contract Number ePro Vendor Number COUNTY_ 00003036 County Department Dept. Orgn. Contractor's License No. Real Estate Services RNT RNT County Department Contract Representative Telephone Total Contract Amount FAS Terry Thompson, Director (909)387-5252 $159,248.00 Contract Type STANDARD CONTRACT Revenue M Encumbered r7l Unencumbered 171 Other: If not encumbered or revenue contract type, pro vide reason: Commodity Code Contract Start Date Contract End Date Original Amount Amendment Amount 96164 9/9/09 8/31/16 $136,952.00 $22,296.00 FIFTH AMENDMENT Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No Amount AAA RNT RNT 200 2905 59002663 $ Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount Project Name Estimated Payment Total by Fiscal Year SAN BERNARDINO— PSD FY Amount I/D FY Amount I/D 2969 Flores Street Contract 5(a) THIS CONTRACT is entered into in the State of California by and between the County of San Bernardino, hereinafter called the County, and Name City of San Bernardino hereinafter called CITY Address 201 North "E" Street, Suite 301 San Bernardino, CA 92401 Telephone Federal ID No.or Social Security No. (909) 384-5030 IT IS HEREBY AGREED AS FOLLOWS: WHEREAS, COUNTY and the City of San Bernardino ("CITY") entered into a Lease Agreement, Contract No. 09-830 (the "Lease"), on September 15, 2009, as amended by the First Amendment on October 18, 2011, and by the Second Amendment on June 19, 2012, and by the Third Amendment on November 5, 2013, and by the Fourth Amendment on July 8, 2014 (collectively, the "Lease") wherein CITY agreed to lease certain real property to the COUNTY, which Lease is currently scheduled to expire on August 31, 2015; and, WHEREAS, the COUNTY and CITY desire to amend Lease Agreement No. 09-830 to: exercise the last one-year option period to extend the Lease term one year from September 1, 2015 through August 31, 2016 (the "Fifth Extended Term"); modify Paragraph 4, RENT, to revise the rent schedule; modify Paragraph 17, HOLD HARMLESS; modify Paragraph 18, INSURANCE SPECIFICATIONS; modify Paragraph 25, NOTICES, to update the CITY and COUNTY addresses and change how notices are to be given; modify Paragraph 42, CITY's Auditor-Controller/Treasurer Tax Collector Use On/ O Contract Database ❑FAS Input Date Keyed By Page 1 of 6 2015-148 , IMPROVEMENTS; modify Paragraph 47, HAZARDOUS SUBSTANCES; and add a new Exhibit "C" Prevailing Wage Requirements. NOW, THEREFORE, in consideration of mutual covenants and conditions, the parties hereto agree the Lease is amended as follows: 1. Effective as of September 1, 2015, DELETE in its entirety the existing Paragraph 3, TERM and SUBSTITUTE therefore the following as a new Paragraph 3, TERM: 3. TERM: The term of the Lease shall be extended for one (1) year, commencing on September 1, 2015 and expiring on August 31, 2016 (the "Fifth Extended Term")." 2. Effective September 1, 2015, DELETE in its entirety, Paragraph 4 RENT, Subparagraph a. and SUBSTITUTE therefore the following as a new Paragraph 4, RENT, Subparagraph a.: 4. RENT: a. COUNTY shall pay to CITY the following monthly rental payments for the Premises in arrears on the last day of each month, during the Fifth Extended Term based on 2,160 square feet of building/classrooms space. The 256 square feet of playground area shall be at no additional cost to COUNTY. September 1, 2015 thru August 31, 2016— monthly payments of$1,858.00 3. DELETE in its entirety the existing Paragraph 17, HOLD HARMLESS, and SUBSTITUTE therefore the following as a new Paragraph 17, INDEMNIFICATION: 17. INDEMNIFICATION: a. The CITY agrees to indemnify, defend and hold harmless the COUNTY, its authorized officers, agents, volunteers and employees, from any and all claims, demands, actions, losses, damages, Liability, and/or for any costs or expenses incurred by the COUNTY arising out of: (a) any improvements constructed by the CITY pursuant to the Lease; (b) the CITY's acts and omissions in connection with its ownership of the property; (c) the use of common areas and leasehold spaces other than the Premises; and (d) toxic waste and environmental contamination not resulting from the COUNTY's use of the Premises, except where such indemnification is prohibited by law. The CITY's indemnification obligation applies to the COUNTY's "active" as well as "passive" negligence, but does not apply to the COUNTY's "sole negligence" or "willful misconduct" within the meaning of Civil Code section 2782. The CITY's indemnification obligation shall survive the COUNTY's tenancy. The insurance provisions in Paragraph 18, INSURANCE REQUIREMENTS AND SPECIFICATIONS, shall not be interpreted in a manner that limits the indemnification obligations. The parties agree that CITY's obligation to defend pursuant to this Paragraph 17 shall: (a) either be handled by qualified attorney(s) in the City Attorney's office or by third-party defense counsel selected by the City Council and reasonably approved by COUNTY; and (b) whether handled by the City Attorney's office or by approved third- party defense counsel, CITY shall obtain COUNTY's written approval prior to entering into any settlement or other resolution of the claim(s) giving rise to the indemnity obligation. b. The COUNTY agrees to indemnify and hold harmless the CITY, and its officers, employees, agents and volunteers from any and all damages for injury to persons and damage to property arising out of the sole negligence of the COUNTY, its officers, employees, agents, or volunteers in connection with this contract. C. In the event 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 the Lease, the COUNTY and/or CITY shall indemnify the other to the extent of its comparative fault. Revised 2/20/2015 Page 2 of 6 2015-148 d. Furthermore, if the COUNTY and 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. 4. DELETE in its entirety the existing Paragraph 18, INSURANCE SPECIFICATIONS, and SUBSTITUTE therefore the following as a new Paragraph 18, INSURANCE REQUIREMENTS AND SPECIFICATIONS: 18. INSURANCE REQUIREMENTS AND SPECIFICATIONS:CITY and COUNTY are both self- insured public entities for purposes of general liability, property insurance, automobile liability, and workers' compensation. Each party represents and warrants that through its respective programs of self-insurance, each party has adequate coverage or resources to meet the requirements of this Paragraph 18 and to protect against liabilities arising out of the performance of the terms, conditions, or obligations of this Lease. 5. DELETE in its entirety the existing Paragraph 25, NOTICES, and SUBSTITUTE therefore the following as a new Paragraph 25, NOTICES: 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 United States mail, postage prepaid, certified or registered, return receipt requested. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party shall be addressed to the other party at the address set forth below. Either party may change its address by notifying the other party of the change of address. Notices shall be deemed delivered and effective upon the earlier of(i) actual receipt or (ii) the date of delivery or refusal of the addressee to accept delivery if such notice is sent by or United States mail, postage prepaid, certified or registered, return receipt requested. CITY's address: City of San Bernardino Parks, Recreation & Community Services Department 201 North "E" Street, Suite 301 San Bernardino, CA 92401 COUNTY'S address: County of San Bernardino Real Estate Services Department 385 North Arrowhead Avenue, Third Floor San Bernardino, CA 92415-0180 b. If, at any time after the COUNTY accepts the Premises, the CITY assigns or transfers a non-controlling interest of its rights in the Premises to a third party, CITY must notify COUNTY of its action at least fifteen (15) COUNTY working days prior to completing any such action. C. If, at any time after the COUNTY accepts the Premises, the CITY assigns or transfers a controlling interest of its rights in the Premises to a third party, CITY must notify COUNTY of its action at least fifteen (15) COUNTY working days prior to completing any such action. The new owner must provide COUNTY with evidence of completion of such action. The parties shall immediately execute an amendment to this Lease stating the change of ownership of the Premises. (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 17, INDEMNIFICATION and Paragraph 18, INSURANCE REQUIREMENTS AND SPECIFICATIONS. Revised 2/20/2015 Page 3 of 6 2015-148 6. DELETE in its entirety the existing Paragraph 42, CITY'S IMPROVEMENTS and SUBSTITUTE therefore the following as a new Paragraph 42, CITY'S IMPROVEMENTS: 42 CITY'S IMPROVEMENTS: There are no improvements being constructed by the CITY as of the date of this Fifth Amendment. 7. DELETE in its entirety the existing Paragraph 47, HAZARDOUS SUBSTANCES and SUBSTITUTE therefore the following as a new Paragraph 47, HAZARDOUS SUBSTANCES: 47. HAZARDOUS SUBSTANCES: a. CITY hereby represents and warrants that, to the best of CITY's knowledge, information and belief: (i) the Premises and the property on which the Premises forms a part of 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 and the property on which the Premises forms a part of to date, and the soil, groundwater and vapor on or under the Premises and the property on which the premises forms a part of 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 and the property on which the Premises forms a part of: (i) prior to the Commencement Date of this Lease; and (ii) not caused by COUNTY during the term, including any extended term. 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. The parties agree that CITY's obligation to defend pursuant to this Paragraph 17 shall: (a) either be handled by qualified attorney(s) in the City Attorney's office or by third-party defense counsel selected by the City Council and reasonably approved by COUNTY; and (b) whether handled by the City Attorney's office or by approved third-party defense counsel, CITY shall obtain COUNTY's written approval prior to entering into any settlement or other resolution of the claim(s) giving rise to the indemnity obligation. 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 and the property on which the Premises forms a part of, is either (i) potentially injurious to the public health, safety or welfare, the environment or the Premises and Revised 2/20/2015 Page 4 of 6 2015-148 the property on which the Premises forms a part of; (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 and the property on which the Premises forms a part of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises and the property on which the Premises forms a part of 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. REMAINDER OF THIS SECTION INTENTIONALLY LEFT BLANK Revised 2/20/2015 Page 5 of 6 2015-148 8. All other provisions and terms of the Lease shall remain the same and are hereby incorporated by reference. In the event of any conflict between the Lease and this Fifth Amendment, the provisions and terms of this Fifth Amendment shall control. END OF FIFTH AMENDMENT. COUNTY OF S RNARDINO CITY OF SAN BERNARDINO ► „� By► James Ra , Chairman, of Supervisors (au rized signature-sign in blue ink) Dated: WIG 2 5 2015 Name: Allen J. Parker SIGNED AND CERTIFIED THAT A COPY OF THIS City Manager DOCUMENT HAS BE - TO THE Title: CHAIRMAN OF T �A.R-D I'F'le �.bura H.Vi el 's, Dated: �� /.� Ckrk`:of the Board of,S ervisors bfth 'C nt of 'an Be rdino By Approved as to form: ep ty 9 s , City Attorney r✓f ,' A~ n yl l R D 1 ti(l uthorized signature-sign in blue ink) N me: GrlAev- nt or ty pe e name of person signing contract) Title: eF' i 4 -+d (Print or Type) Dated: —7/Z2/1i Address 201 N. "E" Street. Suite 301 San Bernardino, CA 92401 Approved as to Legal Form Reviewed by Contract Compliance Prese OS g ature Agnes I.C ng, Deputy County sel Terry W.T O-MPSNA eal Estate Services Dept. Date L� Date Date l�/ /_,� Revised 2/20/2015 Page 6 of 6 _ o . tI s OG AY NQtl1 � H N o AV Ovid N IS to C N a 7b W H V N iS �n W V } 4051WN N W n CA -� I N' FE L. 1S ssNOSitm °N#w Q O� 1S I N Q I= N_ 1S SMOIJ N H � - s3aal� N . Vl l AIASNN3d 0 t/1 W �Q bINyAlA5NN3 mc° Ali h�I a M3I4 319 oosz ST 0 N � c AV I a VNOZISV N� I fn �! l R7 i1 rUGc 'r'?'_—0 i to W E. o• 1S Al a3x o9z oow T r 1y z N� > j-4 a ACjN 4. M`J AV CD ,� N