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HomeMy WebLinkAbout2015-149 I RESOLUTION NO. 2015-149 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A FACILITY LEASE 3 AGREEMENT WITH DISABLED AMERICAN VETERANS (DAV) SAN 4 BERNARDINO CHAPTER 12 TO OPERATE A VETERANS EXPLORATION GARDEN AND VETERANS SERVICE CENTER AT PHOENIX EAST 5 COMMUNITY CENTER LOCATED AT SPEICHER MEMORIAL PARK, 1535 6 NORTH ARDEN AVE, SAN BERNARDINO. 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 9 SECTION 1. That the City Manager is hereby authorized to execute a Facility Lease 10 Agreement with Disabled American Veterans (DAV) San Bernardino Chapter 12 for the 11 Phoenix East Community Center attached hereto, marked Exhibit "A" and incorporated 12 herein by reference as though set forth at length; and 13 SECTION 2. That the authorization granted hereunder shall expire and be void and of no 14 15 further effect if the Agreement is not executed by both parties and returned to the Office of 16 the City Clerk within ninety (90) days following the effective date of the Resolution. 17 18 19 20 21 22 23 24 25 /// 26 /// 27 /// 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A FACILITY LEASE 2 AGREEMENT WITH DISABLED AMERICAN VETERANS (DAV) SAN BERNARDINO CHAPTER 12 TO OPERATE A VETERANS EXPLORATION 3 GARDEN AND VETERANS SERVICE CENTER AT PHOENIX EAST 4 COMMUNITY CENTER LOCATED AT SPEICHER MEMORIAL PARK, 1535 NORTH ARDEN AVE, SAN BERNARDINO. 5 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 joint regular meeting thereof, held on the 8 201h day of July, 2015, by the following vote, to wit: 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 11 MARQUEZ X 12 BARRIOS X 13 VALDIVIA x 14 SHORETT x 15 NICKEL x 16 JOHNSON X 17 18 MULVIHILL x 19 20 George Hanna, C, City Clerk 21 The foregoing resolution is hereby approved this day of July, 2 5. 22 23 12 24 R. Carey Davi , Mayor City of San Bkmardino 25 Approved as to form: 26 Gary D. Saenz, City Attorney 27 28 2015-149 LEASE AGREEMENT CITY OF SAN BERNARDINO and DISABLED AMERICAN VETERANS (DAV) CITY: CITY OF SAN BERNARDINO 300 North"D" Street San Bernardino, CA 92418 LESSEE: DISABLED AMERICAN VETERANS SAN BERNARDINO CHAPTER 12 PO Box 1228 Highland, CA 92346 ADDRESS: Phoenix East Community Center 1535 North Arden Avenue San Bernardino, CA 92404 TERM OF LEASE: Five (5) Years with Two (2) One-Year Options COMMENCEMENT: June 1, 2015 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 1 of 19 2015-149 1. PARTIES. This Lease AGREEMENT (the "AGREEMENT") is entered into this Zathday of July , 20 , 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, Disabled American Veterans San Bernardino Chapter 12, incorporated under the laws of the State of California (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 Phoenix East Community Center, real property, and other improvements, with parking, including handicapped parking, located at 1535 North Arden Avenue, San Bernardino, CA (the "Premises") highlighted in Exhibit "A" attached hereto and incorporated herein by this reference as though set forth fully at length. 3. TERM. The AGREEMENT's initial term ("INITIAL TERM") shall commence on June 1, 2015 ("COMMENCEMENT DATE") and end on May 31, 2020 ("ENDING DATE"). 4. RENT. 4.1 LESSEE shall pay to CITY $1.00 yearly in advance on the COMMENCEMENT DATE, and continuing each year through the INITIAL TERM. 4.2 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 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 2 of 19 2015-149 upon by the CITY and LESSEE. CITY shall provide to LESSEE all directions, information, and forms necessary to process EFT payments. 5. OPTION TO EXTEND TERM. CITY gives to LESSEE the option to extend the term of the LEASE on the same provisions and conditions, except for yearly rent, for two (2) one-year periods ("EXTENDED TERMS") following expiration of the INITIAL TERM, by LESSEE 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 SECTION 7, HOLDING OVER. The rent for each extended term shall be adjusted by good faith negotiations of the PARTIES. 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. 7. HOLDING OVER. In the event the LESSEE shall hold over and continue to occupy the PREMISES with the consent of the CITY, whose consent shall only be given in writing and in the sole discretion of CITY, the tenancy shall be deemed to be a tenancy from month-to-month upon the same terms and conditions, excepting rent, as existed and prevailed at the time of the expiration of the term of this AGREEMENT. Rent shall automatically be adjusted to the fair market rental rate then prevailing based on the rental rates of comparable leased property in the City of San Bernardino. 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 veteran service facility in compliance with all federal, state, and local laws. A more detailed description of the activities LESSEE shall undertake at the PREMISES is located in Exhibit `B" attached hereto and incorporated herein as though set forth fully at length. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 3 of 19 2015-149 LESSEE understands and agrees that except for those portions leased to LESSEE, the remainder of the Speicher Park shall remain open to the public as a public park. 10. HEALTH, SAFETY, AND FIRE CODE REQUIREMENTS. 10.1 CITY 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 CITY has made no representation regarding the suitability of the PREMISES for any particular purpose, including LESSEE's intended use of the PREMISES as veteran service facility, and the LESSEE has not relied upon any representation of the CITY with regards to the suitability of the PREMISES for any particular purpose, including LESSEE's intended use of the PREMISES as a veteran service facility. LESSEE understands that LESSEE's intended use of the PREMISES as a veteran service facility may necessitate additional improvements or repairs to ensure compliance with statutes, regulations, ordinances, and other laws regarding the operation of such a site. Any such additional improvements or repairs shall be made at LESSEE's sole expense. 11. SIGNS. LESSEE will display from windows and/or marquee of the PREMISES only such sign or signs as are not prohibited by law. /// LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 4 of 19 2015-149 12. MAINTENANCE. 12.1 CITY shall, at its sole expense, perform such maintenance and repairs are necessary to ensure that the following portions of the PREMISES are at all times in good repair and safe condition: 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 Window frames, gutters, and downspouts on the building and other improvements that are a part of the PREMISES. 12.2 LESSEE shall, at its sole expense, perform such inspections, maintenance and repairs are necessary to ensure that the following portions of the PREMISES are at all times in good repair and safe condition: 12.2.1 Heating, ventilation and air conditioning (HVAC) systems servicing the PREMISES including changing heating and air-conditioning filters every four (4) months and replacing HVAC units if necessary; and, 12.2.2 The electrical, plumbing, and sewage systems of the PREMISES, excluding those portions of the systems owned or controlled by CITY lying outside the PREMISES; and 12.2.3 Janitorial services, including keeping 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. 12.3 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 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 5 of 19 2015-149 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 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 make minor modifications and alterations to the PREMISES to suit LESSEE's intended purpose of operating a veteran service facility, but solely at expense of LESSEE. Any and all permit acquisition and other requirements are the sole responsibility of the LESSEE. Upon termination of this AGREEMENT, LESSEE shall remove said modifications and alterations at its own expense and leave the PREMISES in the same condition it was at the time such modifications and alternations were made, unless the PARTIES mutually agree to maintain the modifications and alternations 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 6 of 19 2015-149 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 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, 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 Two Million Dollars ($2,000,000) 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 7 of 19 2015-149 17.3 The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: 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 terminate, 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 term(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, LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 8 of 19 2015-149 LESSEE shall be discharged from all future obligations under this AGREEMENT. 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 9 of 19 2015-149 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 10 of 19 2015-149 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 11 of 19 2015-149 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 Disabled American Veterans Parks Department San Bernardino Chapter 12 201 N "E" Street, Ste. 301 PO Box 1228 San Bernardino, CA 92401 Highland, CA 92346 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 12 of 19 2015-149 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 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 13 of 19 2015-149 other circumstance, and the remaining provisions of this AGREEMENT shall remain in full force and effect. 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 14 of 19 2015-149 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 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 15 of 19 2015-149 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 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 sg . (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 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 16 of 19 2015-149 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. 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 17 of 19 2015-149 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 maj eure event. 54. COMPLIANCE WITH LAW. LESSEE agrees to abide by all federal, state, and local laws, ordinances and regulations, including, but not limited to, the acquisition of any necessary permits for alterations made the to the PREMISES. 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. [Signature Page Follows] LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 18 of 19 2015-149 LEASE AGREEMENT CITY OF SAN BERNARDINO and DISABLED AMERICAN VETERANS (DAV) CITY: LESSEE: Allen Parker, City Manager Its: DATE: DATE: APPROVED AS TO FORM: GARY D. SAENZ, City Attorney B '* LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 19 of 19 2015-149 LEASE AGREEMENT CITY OF SAN BERNARDINO and DISABLED AMERICAN VETERANS (DAV) CITY: CITY OF SAN BERNARDINO 300 North"D" Street San Bernardino, CA 92418 LESSEE: DISABLED AMERICAN VETERANS SAN BERNARDINO CHAPTER 12 PO Box 1228 Highland, CA 92346 ADDRESS: Phoenix East Community Center 1535 North Arden Avenue San Bernardino, CA 92404 TERM OF LEASE: Five (5) Years with Two (2) One-Year Options COMMENCEMENT: June 1, 2015 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 1 of 19 2015-149 upon by the CITY and LESSEE. CITY shall provide to LESSEE all directions, information, and forms necessary to process EFT payments. 5. OPTION TO EXTEND TERM. CITY gives to LESSEE the option to extend the term of the LEASE on the same provisions and conditions, except for yearly rent, for two (2) one-year periods ("EXTENDED TERMS") following expiration of the INITIAL TERM, by LESSEE 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 SECTION 7, HOLDING OVER. The rent for each extended term shall be adjusted by good faith negotiations of the PARTIES. 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. 7. HOLDING OVER. In the event the LESSEE shall hold over and continue to occupy the PREMISES with the consent of the CITY, whose consent shall only be given in writing and in the sole discretion of CITY, the tenancy shall be deemed to be a tenancy from month-to-month upon the same terms and conditions, excepting rent, as existed and prevailed at the time of the expiration of the term of this AGREEMENT. Rent shall automatically be adjusted to the fair market rental rate then prevailing based on the rental rates of comparable leased property in the City of San Bernardino. 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 veteran service facility in compliance with all federal, state, and local laws. A more detailed description of the activities LESSEE shall undertake at the PREMISES is located in Exhibit "B" attached hereto and incorporated herein as though set forth fully at length. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 3 of 19 2015-149 LESSEE understands and agrees that except for those portions leased to LESSEE, the remainder of the Speicher Park shall remain open to the public as a public park. 10. HEALTH, SAFETY, AND FIRE CODE REQUIREMENTS. 10.1 CITY 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 CITY has made no representation regarding the suitability of the PREMISES for any particular purpose, including LESSEE's intended use of the PREMISES as veteran service facility, and the LESSEE has not relied upon any representation of the CITY with regards to the suitability of the PREMISES for any particular purpose, including LESSEE's intended use of the PREMISES as a veteran service facility. LESSEE understands that LESSEE's intended use of the PREMISES as a veteran service facility may necessitate additional improvements or repairs to ensure compliance with statutes, regulations, ordinances, and other laws regarding the operation of such a site. Any such additional improvements or repairs shall be made at LESSEE's sole expense. 11. SIGNS. LESSEE will display from windows and/or marquee of the PREMISES only such sign or signs as are not prohibited by law. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 4 of 19 2015-149 12. MAINTENANCE. 12.1 CITY shall, at its sole expense, perform such maintenance and repairs are necessary to ensure that the following portions of the PREMISES are at all times in good repair and safe condition: 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 Window frames, gutters, and downspouts on the building and other improvements that are a part of the PREMISES. 12.2 LESSEE shall, at its sole expense, perform such inspections, maintenance and repairs are necessary to ensure that the following portions of the PREMISES are at all times in good repair and safe condition: 12.2.1 Heating, ventilation and air conditioning (HVAC) systems servicing the PREMISES including changing heating and air-conditioning filters every four (4) months and replacing HVAC units if necessary; and, 12.2.2 The electrical, plumbing, and sewage systems of the PREMISES, excluding those portions of the systems owned or controlled by CITY lying outside the PREMISES; and 12.2.3 Janitorial services, including keeping 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. 12.3 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 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 5 of 19 2015-149 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 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 make minor modifications and alterations to the PREMISES to suit LESSEE's intended purpose of operating a veteran service facility, but solely at expense of LESSEE. Any and all permit acquisition and other requirements are the sole responsibility of the LESSEE. Upon termination of this AGREEMENT, LESSEE shall remove said modifications and alterations at its own expense and leave the PREMISES in the same condition it was at the time such modifications and alternations were made, unless the PARTIES mutually agree to maintain the modifications and alternations 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 6of19 2015-149 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 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, 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 Two Million Dollars ($2,000,000) 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 7 of 19 2015-149 17.3 The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: 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 terminate, 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 term(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, LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 8 of 19 2015-149 LESSEE shall be discharged from all future obligations under this AGREEMENT. 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 9 of 19 2015-149 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 10 of 19 2015-149 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 11 of 19 2015-149 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 Disabled American Veterans Parks Department San Bernardino Chapter 12 201 N "E" Street, Ste. 301 PO Box 1228 San Bernardino, CA 92401 Highland, CA 92346 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 12 of 19 2015-149 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 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 13 of 19 2015-149 other circumstance, and the remaining provisions of this AGREEMENT shall remain in full force and effect. 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 14 of 19 2015-149 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 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. LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 15 of 19 2015-149 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 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 q. (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 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 16 of 19 2015-149 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. 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 DAV FOR PHOENIX EAST COMMUNITY CENTER Page 17 of 19 2015-149 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, including, but not limited to, the acquisition of any necessary permits for alterations made the to the PREMISES. 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. [Signature Page Follows] LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 18 of 19 2015-149 LEASE AGREEMENT CITY OF SAN BERNARDINO and DISABLED AMERICAN VETERANS (DAV) CITY: LESSE Allen Pa cer, City Manager Its: DATE: DATE: APPROVED AS TO FORM: GARY D. SAENZ, City Attorney B \ � LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAV FOR PHOENIX EAST COMMUNITY CENTER Page 19 of 19