HomeMy WebLinkAbout05.D- City Manager DOC ID: 4733 D
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Mark Scott M/CC Meeting Date: 12/05/2016
Prepared by: Tanya Romo, (909) 384-
5122
Dept: City Manager Ward(s):
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
the City Manager to Execute a Lease Agreement Between the City of San Bernardino
and 600 N. Arrowhead Street for the Lease of Office Space. (#4733)
Current Business Registration Certificate:
Financial Impact:
Financial impact information included in the staff report.
Motion: Adopt the Resolution.
Financial Impact
The City shall pay $21,566.70 per month for the first year of two year lease. The City
shall pay $22,213.70 per month for the remainder of the lease period. The tenant
improvements for these suites are estimated to be $5,000.
To complete the emergency move out of City Hall to leased space will require additional
expenditure of funds as estimated below:
Move Management $49,500
IT Department costs $321,000
Moving Company $100,000
Document Storage $1,500
These estimated costs are not part of the official action requested in this submittal and
are for information only. Individual items that require City Council approval will be
submitted in separate Requests for Council Action.
Funds have been appropriated in the amount of$1,600,000 in the FY 2016-17 Budget
for the relocation of staff into suitable space. Future fiscal year budgets will include the
lease costs.
Background
The City Council has authorized two independent engineering evaluations of the
Nw structural integrity of the City Hall Building. The most recent report in February, 2016
indicated that the building may suffer significant structural failure in the event of a major
Updated: 11/30/2016 by Georgeann "Gigi" Hanna D I Packet Pg. 23
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earthquake. The City lies atop two large faults, the San Andreas and San Jacinto,
which have the potential to produce a major earthquake.
The City Hall Building potentially can be retrofitted to prevent major structural failure.
However, according to the most recent engineering study, that project will require in
excess of $14 million and will take extended period of time to complete.
In April 2016, the City directed staff to identify building(s) to relocate City staff and
elected officials until a decision could be made on the City Hall seismic retrofit. Staff
considered leased space in nearby buildings as well as buildings proximate to City Hall
Plaza that the City owns. It was decided to retrofit the 201 North E Street Building to
allow relocation of staff and operations. That building currently houses the City Cable
Studio and several City departmental operations. The renovation of the 201 North E
Street Building will take approximately 12-18 months to complete.
Recently a swarm of seismic activity detected in the Salton Sea area raised the
possibility that a major earthquake could occur before the renovation of the 201 North E
Street Building was complete. As a result, the City Manager concluded that an
emergency relocation of staff was necessary and City staff was directed to find leased
space to relocate City staff and elected officials as quickly as practicable.
Staff made contact with brokers for space available that was proximate to City Hall
Plaza. It was critical that the space:
a. Would be readily adaptable to City operations and necessary security
b. Accessible to the public with adequate parking
c. In a building that was seismically safe
d. Available for a short term lease
e. Have fiber optic connectivity
f. Have a competitive lease rate
Staff selected three buildings; Vanir Tower 290 North D Street (APN -0134-311-42-000);
215 North D Street (APN - 0135-201-30-0000) and 600 North Arrowhead Avenue (APN-
0135-022-01,02,03-0000).
215 North D Street Building is located across the street from the Vanir Tower Building
and a block from the City Hall Plaza. The building currently houses the LAFCO offices
and other private offices. The lease will provide four suites on two floors in the building
with a total of 13,914 square feet. Surface parking is available at the building and
employee and public parking is available in the City Hall Parking structure which is
nearby.
Two of the suites will be occupied by the Human Resources Department staff and the
Civil Service Department staff. Suitable space is available in the suites for Civil Service
Commission meetings as well as all department functions. The remaining two suites
will be occupied by the City Clerk Office and staff; staff for the Successor Agency for the
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former Economic Development Agency; and Housing Division staff. One suite will be
occupied by the City Clerk's office and the other interconnected suite will be utilized by
the Housing and Successor Agency. The Building also houses private professional
offices and is accessible to the public.
The owner of the building has provided documentation on the safety of the structure and
that information has been reviewed by the engineering firm contracted by the City. The
space in the building is available for the short term lease needs of the City. Two of the
suites were previously occupied by San Bernardino County staff and the furniture was
left behind in those suites. The furniture has been made available for City use by the
landlord and this will reduce moving costs significantly into this space.
The suites occupied by the City staff will be secured spaces and will be patrolled by City
security staff. This space does not require any tenant improvements prior to
occupation. The landlord did paint and replace the carpet in the second floor suites.
The Information Technology staff has inspected the building and it can be connected to
the City's Data Center network with leased fiber optic lines.
The rental rate for the space ($1.55/square foot) is a competitive rate for a short term
lease in the City Hall Plaza area. Two of the suites were repainted and re-carpeted in
anticipation of occupation by the City staff. If the lease is approved by the City Council,
then the Information Technology staff can begin immediately the process of connecting
the suites in the building to the City Data Center network. Tenant improvements are to
install a new doorway and install security locks on the entry doors.
Supporting Documents
Copy of the proposed lease
Floor plans for the leased space
Cost for leases by suite
Supporting Documents:
215 N D Street Lease Reso (DOC)
215 Suite Leased Amendment (PDF)
agrmt. 4733 (PDF)
Floor Plan 215 (PDF)
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5.D.a
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE
3 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND 215 N. D STREET
4 BUILDING,LLC FOR THE LEASE OF OFFICE SPACE.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS: �-
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SECTION 1. The City Manager is hereby authorized to execute a Lease Agreement
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between the City of San Bernardino and 215 N. D Street Building, LLC, attached hereto as N
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lo Exhibit"A" and incorporated herein.
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11 SECTION 2. The Director of Finance is hereby authorized to issue a Purchase Order to
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215 N. D Street Building,LLC for the lease of office space for the entire term of the Lease.
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5.D.a
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE
2 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND 215 N. D STREET
3 BUILDING,LLC FOR THE LEASE OF OFFICE SPACE.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting thereof, held on the
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day of , 2016,by the following vote,to wit:
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Council Members: AYES NAYS ABSTAIN ABSENT N
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9 MARQUEZ N
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10 BARRIOS
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14 NICKEL
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15 RICHARD
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16 MULVIHILL
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18 Georgeann Hanna, City Clerk
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The foregoing Resolution is hereby approved this day of , 2016. o
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22 R. Carey Davis,Mayor E
City of San Bernardino
23 Approved as to form:
Gary D. Saenz, City Attorney
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25 By:
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5.D.b
City Hall Elected Officials&Staff Relocation to Leased Space
Location/Rate Leased Space Cost/month-year
Vanir Tower I"Floor—2,674 sq.ft. $4,813.20-$57,758.40
$1.80/square foot 3rd Floor—14,004 sq.ft. $25,207.20-$302,486.40
Stn Floor—7,038 sq.ft. $12,688.40-$152,020.80
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Total Year One of Lease 23,716 sq.ft. $42,688.80-$512,265.60 r
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Total Year Two of Lease $43,969.46-$527,633.52 '0
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215 North D Street Building Suite 200—1,736 sq.ft. $2,690.80-$32,289.60 Q
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$1.55/sq.ft. Suite 202—5,072 sq.ft. $7,861.60-$94,339.20 J
Suite 301—2,963 sq.ft. $4,592.65-$55,111.80 Cl)
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Suite 302—4,143 sq.ft. $6,421.65-$77,059.80 =
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Total Year One of Lease 13,914 sq.ft. $21,566.70-$258,800.40 Q
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Total Year Two of Lease $22,213.70-$266,564.40
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Grand Total Year One 37,630 sq.ft. $64,255.50-$771.066.00
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Year Two $66,183.16-$794,197.92
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CITY OF SAN BERNARDINO
LEASE AGREEMENT
LANDLORD: 215 North D Street Building, LLC
c/o Frank E. Schnetz
215 North D Street, Ste. 304
San Bernardino, CA 92401
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CITY: CITY OF SAN BERNARDINO W
300 N. "D" Street
San Bernardino, CA 92418 Ln
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PREMISES: 215 North D Street, Suites 200, 202, 301 and 302 E
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TERM OF LEASE:Two (2) years with two (2) six-month option to extend periods
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COMMENCEMENT DATE OF LEASE: December 1; 2016 (subject to
Paragraph 3)
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MONTHLY RENT: $21,566.70 for Year 1
$22,213.70 for Year 2
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TABLE OF CONTENTS
PARAGRAPH CAPTION
PAGE
1. PARTIES...........................................................................................1
2. PREMISES LEASED .......................................................................1
3. TERM..................................................................... ..........................1
4. RENT ................................•...............................................................2 a
5. EXPANSION OF RENTAL SPACE.................................................3 N
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6. OPTION TO EXTEND TERM .........................................................4 Z
7. RETURN OF PREMISES •••••• 5 N
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8. HOLDING OVER.............................................................................5 0
9. TAXES................... ...5 Y
10. USE...................................................................................................5
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11. HEALTH, SAFETY AND FIRE CODE REQUIREMENTS ...........5
12. SIGNS...................................................•...........................................6 a
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13. MAINTENANCE .•.•6
14. ALTERATIONS .................................7
15. FIXTURES.................................. .....7
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16. UTILITIES........................................................................................8
17. INDEMNIFICATION.................... ......8
18. INSURANCE REQUIREMENTS AND SPECIFICATIONS..........8
19. DESTRUCTION OF PREMISES...................................................
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20. LANDLORD'S DEFAULT............................ ......... 13
21. CITY'S REMEDIES ON LANDLORD'S DEFAULT.....................13
22. CITY'S DEFAULT..........................................................................14 E
23. LANDLORD'S REMEDIES ON CITY'S DEFAULT.....................14
24. LANDLORD'S ACCESS TO PREMISES ......................................15 a
25. NOTICES........................................................................................ 15
26. INCORPORATION OF PRIOR AGREEMENT ............................ 16
27. WAIVERS .......................................................................................16
28. AMENDMENTS......................................•......................................16
29. SUCCESSORS................................................................................16
30. SEVERABILITY.............................................................................16
31. TIME OF ESSENCE ......................................................................16
v4w32. QUIET ENJOYMENT.........................•..........................................16
33. PROVISIONS ARE COVENANTS AND CONDITIONS .............17
34. CONSENT ...................................................................................... 17
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35. EXHIBITS............... ....................................................................... 17
36. LAW ......................................... ...................................................... 17
37. VENUE ........................................................................................... 17
38. ATTORNEYS' FEES AND COSTS................................................ 17
39. RESERVED ... .................. .................................... .................. 17
40. CITY'S RIGHT TO TERMINATE LEASE .................................... 17
41. LANDLORD'S IMPROVEMENTS .... ........................................... 18
42. CAPTIONS, TABLE OF CONTENTS AND COVER PAGE ........ 19
43. SURVIVAL..... ................................................................................ 19
44. FORMER CITY OFFICIALS .......................................................- 19
45. BROKER'S COMMISSIONS.......................................................... 19
46. ESTOPPEL CERTIFICATES a...... .................................................19 a
47. SUBORDINATION AND ATTORNMENT...................................20 z
48. HAZARDOUS SUBSTANCES............. .........................................20 C14
49. PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY........22
50. CONDITION OF PREMISES........................................................22
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51. CONDEMNATION.........................................................................22
52. MATERIAL MISREPRESENTATION..........................................23
v4ftw53. INTERPRETATIONS.....................................................................24
54. AUTHORIZED SIGNATORS.........................................................25 M
EXHIBIT "A" Premises cl
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EXHIBIT "A-1" Premises Specifications
EXHIBIT "B" Licensed Janitorial and Maintenance Contractor
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Services
EXHIBIT "C" List of Former CITY Officials
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EXHIBIT "D" Estoppel Certificate
EXHIBIT "E" Subordination, Nondisturbance and Attornment
Agreement
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EXHIBIT "F" Prevailing Wage Requirements
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LEASE AGREEMENT
1. PARTIES: This lease ("Lease") is made between 21.5 North D Street
Building, LLC ("LANDLORD"), and the City of San Bernardino ("CITY"), who agree
on the terms and conditions contained in this Lease. LANDLORD hereby represents
and warrants to CITY that LANDLORD is the legal owner with sole title to the
Property (as defined below), including the Premises (as defined below), and has the
right to enter into this Lease without consent or approval from any other parties. In
the event of a breach of the foregoing representation and warranty, CITY shall have
the right to terminate this Lease with immediate effect and LANDLORD shall
indemnify, defend (with counsel reasonably approved by CITY) and hold harmless
CITY and its officials, employees, contractors, agents, and volunteers from any and (D
all claims, actions, losses, damages and/or liability arising out of said breach.
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2. PREMISES LEASED: z
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LANDLORD leases to CITY and CITY leases from LANDLORD certain premises of o
approximately 13,914 square feet of office space ("Premises"), comprising a portion
of the building (`Building") located on the real property commonly known as 215 0
North "D" Street, San Bernardino, California, APN 0135-200-30-0000 ("Property").
The Premises is more particularly depicted in Exhibit "A" PREMISES, attached Q
hereto and incorporated herein by reference. The parties hereby agree that the N
Premises shall not be re-measured at any time during the term of the Lease,
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including any extensions thereof.
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3. TERM: M
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A. Initial Term. The Lease's initial term ("Initial Term") shall commence
on December 1, 2016 ("Commencement Date") and end on November 30, 2018 L
("Ending Date"), provided that all Improvements to be constructed by LANDLORD
pursuant to Paragraph 41, LANDLORD IMPROVEMENTS, are Substantially
Completed (hereinafter defined) and are accepted by CITY. For the purposes of this E
Lease, "Substantially Completed" shall mean that the Premises can be used for
their intended purposes and have been certified for occupancy by the entity that a
issued the building permits, notwithstanding that minor corrections and/or
additions remain to be completed, it being understood that LANDLORD shall
promptly complete said corrections and/or additions. In the event the term
commences prior to the Commencement Date as the result of CITY's election under
subparagraph 3C, Early Possession, the Ending Date shall not be changed. If
LANDLORD is unable to Substantially Complete the Improvements or deliver
possession of the Premises by the Commencement Date, CITY shall not be liable for
any rent and this Lease shall not commence until LANDLORD Substantially
Completes the Improvements and delivers possession of the Premises to CITY. Any
such delay in possession shall not affect the Ending Date.
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B. Early Access. LANDLORD shall allow the CITY early access ("Early
Access") to the Promises at any time prior to the Commencement Date for the
purpose of the CITY or its representatives installing communications equipment,
modular furniture, alarms and such other items that the CITY may reasonably
desire and to inspect the status of the construction of the Improvements for the
Premises. CITY shall exercise its Early Access rights at a time and in a manner
that will not unreasonably interfere with LANDLORD's construction of the
Improvements. If CITY totally or partially occupies the Premises under this Early
Access provision prior to the Commencement Date, the obligation to pay rent shall
be abated for the period of the Early Access. All other terms of this Lease shall,
however, be in effect during such period. Any such Early Access shall not affect the
Commencement Date or the Ending Date.
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C. Early Possession. The CITY may elect to totally or partially take 0
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possession of the Premises at any time prior to the scheduled Commencement Date
("Early Possession"). CITY shall exercise its Early Possession rights at a time and C14
in a manner that will not unreasonably interfere with LANDLORD's construction of 12
the Improvements. If CITY totally or partially takes possession of the Premises
under this Early Possession provision prior to the Commencement Date. the E
obligation to pay rent for only that portion of the Premises possessed shall
commence for the period of such Early Possession. Such Early Possession shall not
be considered as the CITYs acceptance of any portion of the Improvements as U)
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NEW Substantially Completed. The CITY may vacate all or any portion it has possessed
as Early Possession without in any manner affecting the Commencement Date, the
Ending Date or any other portion of the Lease. All other terms of this Lease shall,
however, be in effect during such period. Any such Early Possession shall not affect
the Commencement Date or the Ending Date.
D. Delay in Possession. LANDLORD agrees to use all commercially E
reasonable efforts to deliver possession of the Premises with all of the 0)
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Improvements Substantially Completed to CITY by the Commencement Date. If as
a result of causes bevond LANDLORD's reasonable control, LANDLORD is unable
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to deliver possession as agreed, this Lease shall not be voidable, nor shall such -C
failure affect the validity of this Lease. If possession is not delivered within ninety
(90) days after the Commencement Date, CITY can elect to terminate this Lease by <
giving written notice to LANDLORD at any time before LANDLORD delivers
possession of the Premises to CITY. If CITY elects to terminate this Lease
pursuant to this provision, CITY shall be discharged of all obligations under this
Lease.
4. RENT:
A. Subject to the completion of the Improvements, receipt of a certificate
of occupancy and subject to acceptance of the improved Premises by CITY, CITY
shall pay to LANDLORD monthly rental payments of $21,566,70 for Year I and
22,213.70 for Year 2 for the Premises in arrears not later than the last day of each
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continuing during the term based
month, commencing when the term commences, g g ,
on approximately 13,914 square feet of leased space.
The parties agree that all parking spaces provided under this Lease are at no
additional cost to the CITY during the Initial Term and any extended term.
B. Rent for any partial month shall be prorated based on the actual
number of days of the month. LANDLORD shall accept all rent and other
payments from CITY under this Lease via electronic funds transfer (EFT) directly
deposited into the LANDLORD's designated checking or other bank account.
LANDLORD shall promptly comply with directions and accurately complete forms
provided by CITY required to process EFT payments.
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C. If the CITY has accepted the Premises as Substantially Completed o
with minor corrections and/or additions remaining to be completed, only eighty Z
percent (80%) of the monthly rental will be paid to LANDLORD, and the remaining N
twenty percent (20%) of the monthly rental will accrue from the Commencement °
Date of this Lease but will not be paid to LANDLORD until all such minor
corrections and/or additions have been completed and accepted by CITY. If the
CITY withholds monthly rental payments under this subparagraph, the CITY will
not be in default and no interest or service charges will be added to the amounts
due LANDLORD upon completion of the minor corrections and/or additions. The N
NOW minor corrections and/or additions remaining to be completed are subject to
subparagraph 13B, MAINTENANCE. J
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5. EXPANSION OF RENTAL SPACE:
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A. LANDLORD shall not lease or extend an existing lease covering all or r__
any part of the area of the building in which the Premises are located that is
marked on Exhibit "A" as Expansion Space ("Expansion Space") to a third party L
without first notifying CITY that LANDLORD intends to lease part or all of the
Expansion Space. At any time during the term of this Lease that all or any part of
the Expansion Space is not leased to a third person, CITY shall have the option to E
add to the Premises any part or all of the Expansion Space that is not leased to a
third party. In the event LANDLORD makes or receives a bona fide offer to a
actually lease or extend an existing lease on some or all of the Expansion Space,
LANDLORD shall provide CITY with written notice of LANDLORD's intention to
lease (or extend an existing lease) some or all of the Expansion Space to a third
party. LANDLORD's notice to CITY shall include all material terms of the third-
party offer. CITY shall have thirty (30) days from CITY's receipt of LANDLORD's
notice to determine whether CITY wishes to add any part or all of the Expansion
Space identified in the third-party offer to the Premises. LANDLORD shall have
the right to lease to a third party (or extend an existing lease with such third
party), on the terms set forth in LANDLORD's notice to CITY, any part of the
Expansion Space mentioned in the third-party offer as to which CITY has not
notified LANDLORD of CITY's agreement to lease within thirty (30) days after
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CITY's receipt of LANDLORD's notice. If CITY does not exercise its option to add
the Expansion Space mentioned in the third party offer to the Premises, and
LANDLORD is unable to consummate the transaction described in the third-party
offer with such third party, CITY"s rights under this paragraph shall be reinstated
automatically. Further, CITY's rights under this paragraph shall accrue anytime
any of the Expansion Space is not leased to a third party or becomes available.
B. If CITY exercises its option to lease the Expansion Space or part of it,
the Expansion Space or part of it shall be included within the Premises and leased
to CITY pursuant to all provisions of this Lease, including, without limitation, the
provisions relating to LANDLORD's Improvements, rent and parking. Additional
parking spaces will be added to the Premises at the rate of four to one (4:1) d
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additional parking space(s) for each one thousand (1,000) square feet of Expansion in
Space leased. The rent payable under this Lease shall be increased proportionately
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by the sum of W the basic rental rate per square foot of floor area for each square ,r,
foot of floor area in the Expansion Space leased by CITY, as set forth in N
Subparagraph 6A{1), OPTION TO EXTEND TERM, plus (ii) the cost per square
foot of floor area of all improvements made to the Expansion Space leased by CITY
amortized over the balance of the unexpired portion of the Initial Term. All E
Improvements shall be made pursuant to plans and specifications, prepared by P
LANDLORD and approved by CITY. LANDLORD shall deliver said plans and a
specifications to CITY within thirty (30) days of CITY's election to lease the
Expansion Space, or part thereof. The construction of all Improvements shall be J
governed by Paragraph 41, LANDLORD'S IMPROVEMENTS. CITY s obligation to
pay rent on the Expansion Space shall be governed by Paragraph 4, RENT. The ti
parties shall immediately execute an amendment to this Lease stating the addition
of the Expansion Space or part thereof to the Premises and the additional rent for
the Expansion Space.
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C. If prior to executing this Lease. LANDLORD granted a third party an
option to lease or extend an existing lease for all or part of the expansion space, the
third party's option will take precedence over the CITY's right of first refusal and
option set forth in subparagraph A and B, above. Additionally, if during the term of
this Lease, LANDLORD follows the provisions of subparagraphs A and B. above,
and thereafter grants a third party an option to lease or extend an existing lease for a
all or part of the expansion space, the third party's option will take precedence over
the CITY's right of first refusal and option set forth in subparagraphs A and B,
above.
6. OPTION TO EXTEND TERM: LANDLORD gives CITY the option to extend
the term of the Lease on the same provisions and conditions, except for the monthly
rent, for two (2) six-month option periods ("extended term") following expiration of
the Initial Term, by CITY giving notice of its intention to exercise the option to
LANDLORD prior to the expiration of the preceding term or during any holding
over pursuant to Paragraph 8, HOLDING OVER. The rent for each extended term
shall be the same as during the Initial Term.
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7. RETURN OF PREMISES: The CITY agrees that it will, upon the
termination of this Lease, return the Premises in a good condition and repair as the
Premises now is or shall hereafter be put; reasonable wear and tear expected.
8. HOLDING OVER: In the event the CITY shall hold over and continue to
occupy the Premises with the consent of the LANDLORD, expressed or implied, the
tenancy shall be deemed to be a tenancy from month-to-month upon the same terms
and conditions, including rent, as existed and prevailed at the time of the expiration
of the term of this Lease. Notwithstanding Paragraph 40 CITY'S RIGHT TO
TERMINATE LEASE, either party shall have the right to terminate the Lease with
not less than sixty (60) days prior written notice to the other party during any
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holdover tenancy. W
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9. TAXES: LANDLORD shall pay all real property taxes, and general and Z
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special assessments levied and assessed against the Premises. N
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10. USE: CITY shall occupy and use the Premises during the term hereof for the
purposes of CITY business. E
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11. HEALTH, SAFETY AND FIRE CODE REQUIREMENTS: a
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A. Compliance with Code Requirements: As a condition precedent to the
existence of this Lease, LANDLORD, at its sole expense will ensure the Premises
meet the applicable requirements of all Health, Safety, Fire and Building Codes,
statutes, regulations and ordinances for public and governmental buildings,
including any requirements for a notice of completion, certificate of occupancy, M
California Title 24 requirements and the Americans with Disabilities Act ("ADA'
Specifically, LANDLORD must ensure there is an accessible path of travel from
public transportation to the Premises pursuant to Title 24. Additionally, E
LANDLORD warrants that any improvements on or in the Premises which have
been constructed or installed by LANDLORD or with LANDLORD's consent or at
LANDLORD's direction shall comply with all applicable covenants or restrictions of s
record and applicable Codes, statutes, regulations and ordinances in effect on the
Commencement Date. LANDLORD also warrants to CITY that LANDLORD has a
no knowledge of any claim having been made by any governmental agency that a
violation or violations of applicable Codes, statutes, regulations, or ordinances exist
with regard to the Premises as of the Commencement Date. Should the continued
occupancy of the Premises be in any way prejudiced or prevented due to changes in
the ADA or the Health, Safety, Fire and Building Codes, statutes, regulations or
ordinances for public and governmental buildings, the LANDLORD shall correct,
update and comply with said changes at LANDLORD's cost.
B. Access Inspection: No inspection of the Premises, Building, or Property
has been performed by a Certified Access Specialist in conjunction with this Lease.
For avoidance of doubt, notwithstanding that an inspection of the Premises,
5
Cacket Pg.36
Building, or Property has not be performed by a Certified Access Specialist,
LANDLORD's obligations under Paragraph 10.A. shall remain unchanged.
12, SIGNS: CITY will display from the windows and/or marquee of the Premises
only such sign or signs as are not prohibited by law.
13. MAINTENANCE
A. Except as specifically provided in subparagraph 13C, below,
LANDLORD at its cost shall perform such inspections, maintenance and repairs as
are necessary to ensure that all portions of the Premises, including but not limited
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to the following, are at all times in good repair and safe condition:
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(1) The structural parts of the building and other improvements °
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that are a part of the Premises, which structural parts include the foundations, Ln
bearing and exterior walls (including glass and doors), subflooring, and roof, and, N
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(2) The electrical, plumbing, and sewage systems, including,
without limitation, those portions of the systems owned or controlled by d
LANDLORD lying outside the Premises; and,
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(3) Window frames, gutters, and downspouts on the building and 0
NOW other improvements that are a part of the Premises; and, W
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(4) Heating, ventilation and air conditioning (HVAC) systems
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servicing the Premises (additionally, air-conditioning and heating filters are to be
changed quarterly. Upon commencement of this lease agreement LANDLORD is to
provide an air balance certificate and maintenance of HVAC servicing); and,
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(5) The grounds, including all parking areas and outside lighting,
grass, trees, shrubbery and other flora; and, r
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(6) The servicing of fire extinguishers or any other fire suppression
equipment attached to the facility; and,
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(7) Maintenance for the entire Building and janitorial services for
all areas. Maintenance and janitorial services must be performed in a workman-
like manner by licensed and qualified independent contractors, as set forth in
Exhibit "B", Licensed Janitorial and Maintenance Contractor Services.
LANDLORD shall perform maintenance and janitorial services at a time and in
manner that will cause the least possible inconvenience, annoyance, or disturbance
to CITY. LANDLORD shall follow the carpet manufacture's maintenance
requirements and maintain the carpet manufacturer's warranty for the carpet.
Hours scheduled for the day janitor are to be reviewed and approved by CITY.
6
Packet:Pg.37
B. Without in any way affecting LANDLORD's duty to Inspect, maintain
and repair the Premises and regardless of whether any specific notice of need for
maintenance or repair is provided to LANDLORD by the CITY, the CITY may
request specific maintenance or repairs. Any such request may be made orally, by
telephone or otherwise. If, (a) CITY gives notice to LANDLORD of a condition
requiring maintenance or repairs, and LANDLORD does not commence the
performance of its maintenance or repair obligations within ten (10) days of
receiving such notice, or does not diligently prosecute its obligations to completion
thereafter, or (b) in the case of an emergency, whether or not CITY has given notice
to LANDLORD, LANDLORD does not immediately perform its obligations, CITY
can perform the obligations and have the right to be reimbursed for the sum CITY
actually and reasonably expends (including charges for CITY employees and
equipment) in the performance of I-ANDLORD's obligations. The sum expended by in
CITY shall be due from LANDLORD to CITY within five (5) days of notice of such o
sum, and if paid at a later date shall bear interest at the maximum rate the CITY is Z
Npermitted by law to charge from the date the sum was paid by CITY until CITY is
reimbursed by LANDLORD. If LANDLORD fails to reimburse CITY as required by °
this paragraph, CITY shall have the right to withhold from future rent due the sum =
CITY has paid until CITY is reimbursed in full for the sum and interest on it. The
remedies set forth in this paragraph are in addition to and do not in any manner CD
limit other remedies set forth in particular paragraphs of this Lease. CITY shall rn
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forward to LANDLORD receipts and/or documentation supporting the amount N
Now withheld. J
C. CITY, at its option and sole discretion, reserves the right to require the
LANDLORD to hire a qualified property management company to manage the 71�
Premises, and that property management services, not limited to maintenance and M
repair, be performed pursuant to a property management agreement. The Premises
must be inspected by the Property Manager at least every other week, beginning
the second week after the commencement date, and daily by the janitorial staff, to cs
ensure the Premises are maintained properly. Inspections must be coordinated
with the CITY representative. The CITY has the right to review the selection of the
property manager and to review the agreement with the manager.
14. ALTERATIONS= CITY shall not make any structural or exterior a
improvements or alterations to the Premises without LANDLORD's consent. Any
such alterations shall remain on and be surrendered with the Premises on
expiration or termination of the Lease.
15. FIXTURES: CITY shall have the right during the term(s) of this Lease to
install shelving and fixtures, and make interior, non-structural improvements or
alterations in the Premises. Such shelving, fixtures, improvements, and alterations
shall remain the property of the CITY and may be removed by the CITY during the
term(s) of this Lease or within a reasonable time thereafter, provided that the CITY
restores the Premises to the condition as it existed at the commencement of this
Lease, reasonable wear and tear excluded, or the CITY in its sole discretion may
7
Packet!Pg.38
elect to surrender all or any part of such shelving, fixture, improvements and
alterations to the LANDLORD, in which case CITY shall have no duty to restore
the Premises. Any such election to surrender must be in writing, but need not be
accepted by LANDLORD to be effective.
16. UTILITIES: LANDLORD shall furnish to the Premises and pay all service
charges and related taxes for electric, gas, water, sewer, trash, fire alarm service
and all other utilities. CITY shall furnish and pay for security, vending machines,
computers, internet and its own telephone service including pay telephones.
17. INDEMNIFICATION: The LANDLORD agrees to indemnify, defend (with
counsel reasonably approved by CITY) and hold harmless the CITY and its
authorized officers, employees, agents and volunteers from any and all claims, U)
actions, losses, damages, and/or liability arising out of this contract. from any cause Z
whatsoever, including the acts, errors or omissions of any person and for any costs Ln
or expenses incurred by the CITY on account of any claim except where such N
indemnification is prohibited by law. This indemnification provision shall apply °
regardless of the existence or degree of fault of indemnities. The LANDLORD's
indemnification obligation applies to the CITY's "active" as well as "passive" E
negligence but does not apply to the CITY's "sole negligence" or"willful misconduct"
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within the meaning of Civic Code Section 2782. Q
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18. INSURANCE REQUIREMENTS AND SPECIFICATIONS=
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A. CITY is a self-insured public entity for purposes of professional
liability, general liability and workers' compensation.
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B. The LANDLORD agrees to provide insurance set forth in accordance
with the requirements herein. If the LANDLORD uses existing coverage to comply E
with these requirements and that coverage does not meet the specified
requirements, the LANDLORD agrees to amend, supplement or endorse the
existing coverage to do so. The type(s) of insurance required is determined by the
scope of the lease hereunder. Without in anyway affecting the indemnity herein �
provided and in addition thereto, the LANDLORD shall secure and maintain
throughout the contract term the following types of insurance with limits as shown: Q
(1) Workers' Compensation/Employers Liability — A program of
Workers' Compensation insurance or a state-approved, self insurance program in an
amount and form to meet all applicable requirements of the Labor Code of the State
of California, including Employer's Liability with $250,000 limits covering all
persons including volunteers providing services on behalf of the LANDLORD and
all risks to such persons under this lease agreement.
If LANDLORD has no employees, it may certify or warrant to the CITY that is does
not currently have any employees or individuals who are defined as "employees"
8
Packet Pg.39
om ensation coverage
under the Labor Code and the requirement for Workers C p
will be waived by the CITYs Director of Risk Management.
If, LANDI.,ORD is a non-profit corporation, organized under California or Federal
law, volunteers for LANDLORD are required to be covered by Workers"
Compensation insurance.
(2) Commercial/General Liability Insurance — The LANDLORD
shall carry General Liability Insurance covering all operations performed by or on
behalf of the LANDLORD providing coverage for bodily injury and property damage
with a combined single limit of not less than one million dollars ($1,000,000), per
occurrence. The policy coverage shall include:
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(a) Premises operations and mobile equipment. o
(b) Products and completed operations. Z
N(c) Broad form property damage (including completed
operations). o
(d) Explosion, Collapse, and underground hazards
(e) Personal injury E
(f) Contractual liability. d
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(g) $2,000,000 general aggregate limit.
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r (3) Commercial Property. Insurance providing all risk coverage for
the leased premises, building, fixtures, equipment and all property constituting a -'
part of the premises. Coverage shall be sufficient to insure One Hundred percent M
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(100%) of the replacement cost.
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(4) Automobile Liability Insurance — Primary insurance coverage
shall be written on ISO Business Auto coverage form for all owned, hired and non-
owned automobiles or symbol 1 (any auto). The policy shall have a combined single E
limit of not less than one million dollars ($1,000,000) for bodily injury and property CU
damage, per occurrence. _
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(5) Umbrella Liability Insurance - An umbrella (over primary) or
excess policy may be used to comply with limits or other primary coverage a
requirements. When used, the umbrella policy shall apply to bodily injury/property
damage, personal injury/advertising injury and shall include a "dropdown"
provision providing primary coverage for any liability not covered by the primary
policy. The coverage shall also apply to automobile liability.
C. If LANDLORD performs any construction of the Premises on behalf of
the CITY, LANDLORD shall also procure and maintain coverages as follows=
(1) For construction contracts for projects over One Million Dollars
($1,000,000) and less than Three Million Dollars ($3,000,000) require limits of not
less than Three Million Dollars in General Liability and Auto Liability coverage.
9
Packet!Pg.40
4
(2) For construction contracts for projects over Three Million
Dollars ($3,000,000) and less than Five Million Dollars ($5,000,000) require limits
of not less than Five Million Dollars ($5,000,000) in General Liability and Auto
Liability coverage.
(3) For construction contracts for projects over Five Million Dollars
($5,000,000) and less than Ten Million Dollars ($1.0,000,000) require limits of not
less than Ten Million Dollars (10,000,000) in General Liability and Auto Liability
coverage.
(4) Subcontractor Insurance Requirements. The LANDLORD a
agrees to require all parties or subcontractors, including architects or others it hires un
or contracts with related to the performance of this contract to provide insurance °
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covering the contracted operation with the basic requirements for all contracts in Ln
B1 and the insurance sections for all contracts in B2, (including waiver of N
subrogation rights) and naming the CITY as an additional insured. The
LANDLORD agrees to monitor and review all such coverage and assumes all
responsibility ensuring that such coverage is provided as required here. E
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(5) Course of Construction/Installation (Builder's Risk) property Q
insurance providing all risk, including theft coverage for all property and materials
Nr• to be used on the project. The insurance policy shall not have any coinsurance
penalty.
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D. Additional Insured — All policies, except for the Workers' 7t
Compensation, shall contain endorsements naming the CITY and their officers, ti
employees, agents and volunteers as additional insureds with respect to liabilities
arising out of the use under this lease hereunder. The additional insured E
endorsements shall not limit the scope of coverage for the CITY to vicarious liability 0
but shall allow coverage for the CITY to the full extent provided by the policy. Such
additional insured coverage shall be at least as broad as Additional Insured (Form
B) endorsement form ISO, CG 2010.11 85.
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E. Waiver of Subrogation Rights — The LANDLORD shall require the a
carriers of required coverages to waive all rights of subrogation against the CITY,
their officers, employees, agents, volunteers, contractors and subcontractors. All
general or auto liability insurance coverage provided shall not prohibit the
LANDLORD and LANDLORD's employees or agents from waiving the right of
subrogation prior to a loss or claim. The LANDLORD hereby waives all rights of
subrogation against the CITY.
F. Policies Primary and Non-Contributory — All policies required herein
are to be primary and non-contributory with any insurance or self-insurance
programs carried or administered by the CITY.
10
Packet Pg. 41
T ensure that
G. Severabilit� of Interests — The LANDLORD agree.. to ens
coverage provided to meet these requirements is applicable separately to each
insured and there will be no cross liability exclusions that preclude coverage for
suits between the LANDLORD and the CITY or between the CITY and any other
insured or additional insured under the policy.
H. Proof of Coverage — The LANDLORD shall furnish Certificates of
Insurance to the CITY evidencing the insurance coverage, including endorsements,
as required, prior to the commencement of performance of services hereunder,
which certificates shall provide that such insurance shall not be terminated or
expire without thirty (30) days written notice to CITY, and LANDLORD shall
maintain such insurance from the time LANDLORD commences use under the
lease hereunder until the end of the period of the lease. Within fifteen (15) days of
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the commencement of this contract, the LANDLORD shall furnish a copy of the o
Declaration page for all applicable policies and will provide complete certified copies Z
of the policies and endorsements immediately upon request. N
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L Acceptability of_Insurance Carrier — Unless otherwise approved by the
CITY's Risk Management. Division, insurance shall be written by insurers E
authorized to do business in the State of California and with a minimum "Best"
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Insurance Guide rating of"A- VII".
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J. Deductibles and Self-Insured Retention — Any and all deductibles or
self-insured retentions in excess of $10,000 shall be declared to and approved by -�
CITY's Risk Management Division.
K. Insurance Review — Insurance requirements are subject to periodic M
review by the CITY. The CITY's Human Resources Director or designee is
authorized, but not required, to reduce, waive or suspend any insurance
requirements whenever the CITY's Risk Management Division determines that any E
of the required insurance is not available, is unreasonably priced, or is not needed
to protect the interests of the CITY. In addition, the CITY's Director of Human m
Resources or designee is authorized, but not required, to change the above E
insurance requirements to require additional types of insurance coverage or higher
coverage limits, provided that any such change is reasonable in light of past claims a
against the CITY, inflation, or any other item reasonably related to the CITY's risk.
Any change requiring additional types of insurance coverage or higher coverage
limits must be made by amendment to this lease. LANDLORD agrees to execute
any such amendment within thirty (30) days of receipt.
Any failure, actual or alleged, on the part of CITY to monitor or enforce compliance
with any of the insurance and indemnification requirements will not be deemed as a
waiver of any rights on the part of the CITY.
1l
Packet Pg. 42
I_ Failure to Procure Insurance. All insurance required must be
maintained in force at all times by LANDLORD. Failure to maintain said insurance,
due to expiration, cancellation, etc., shall be cause for the CITY to give notice to
immediately suspend all LANDLORD's business activities on the Premises. Failure
to reinstate said insurance within the (10) days of notice to do so shall be cause for
termination and for forfeiture of this agreement, and/or CITY, at its discretion, may
procure or renew such insurance and pay any and all premiums in connection
therewith, and all monies so paid by CITY shall be repaid by LANDLORD to CITY
upon demand but only for the pro rata period of non-compliance.
M. CITY shall have no liability for any premiums charged for such
coverage(s). The inclusion of CITY as additional named insured is not intended to
and shall not make a partner or joint venturer with LANDLORD in LANDLORD's N
operations. Z
N� The LANDLORD agrees to require all parties or subcontractors, or N
others it hires or contracts with related to the use of this lease to provide insurance °
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covering such use with the basic requirements and naming the CITY as additional
insured. LICENSEE agrees to monitor and review all such coverage and assumes E
all responsibility for ensuring that such coverage is provided as required herein.
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19. DESTRUCTION OF PREMISES
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A. During the term of this Lease, if any casualty renders a portion of the M
Premises unusable for the purpose intended, then LANDLORD shall, at
LANDLORD's expense, restore the Premises and repair any damages caused by
such casualty as soon as reasonably possible and this Lease shall continue in full ti
force and effect. If LANDLORD does not commence the restoration of the Premises
in a substantial and meaningful way within thirty (30) days following the E
LANDLORD's receipt of written notice of the casualty, or should LANDLORD 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, CITY may,
at its option, terminate this Lease immediately upon written notice to the
LANDLORD. If CITY elects to terminate this Lease pursuant to this provision,
CITY shall be discharged of all future obligations under this Lease. Alternatively, Q
if LANDLORD fails to commence the restoration of the Premises or fails to
diligently pursue the completion of the restoration as aforesaid, CITY may, at its
option and in its sole discretion, after notice to LANDLORD, perform LANDLORD's
obligations and restore the Premises. If CITY elects to restore the Premises, CITY
shall have the right to be reimbursed for all sums it actually and reasonably
expends (including charges for CITY employees and equipment) in the performance
of LANDLORD's obligations. The sum paid by CITY shall be due from LANDLORD
to CITY within five (5) days of notice of such sum, and if paid at a later date shall
bear interest at the maximum rate the CITY is permitted by law to charge from the
date the sum was paid by CITY until CITY is reimbursed by LANDLORD. If
LANDLORD fails to reimburse CITY as required by this paragraph, CITY shall
12
Packet Pg.43''
t due the sum CITY has aid until CITY
have the right to withhold from future rent p
is reimbursed in full for the sum and interest on it. The remedies set forth in this
paragraph are in addition to and do not in any manner limit other remedies set
forth in particular paragraphs of this Lease. CITY shall forward to LANDLORD
receipts and/or documentation supporting the amount withheld. For the purposes
of this paragraph, the phrase "commence . . . in a substantial and meaningful way"
shall mean either the unconditional authorization of the preparation of the required
plans, the issuance of any required Building Permits or the beginning of the actual
work on the Premises.
B. In the event there is a destruction of a portion of the Premises as set
out in subparagraph A, above, there shall be an abatement or reduction of the rent
between the date of destruction and the date of completion of restoration or the date N
of termination of this Lease, whichever comes first. The abatement or reduction of o
the rent shall be in proportion to the degree to which CITY's use of the Premises is Z
impaired. N
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C. In the event there is a destruction of a portion of the Premises as set
out in subparagraph A, above, and the Lease is not terminated because of such E
destruction, LANDLORD agrees to use any and all insurance proceeds received for
said destruction in the restoration of the Premises.
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D. In the event LANDLORD is required to restore the Premises as �
provided in this paragraph, LANDLORD shall restore, at LANDLORD's expense,
any structural or exterior improvements or alterations to the Premises made by
CITY pursuant to Paragraph 14, ALTERATIONS, of this Lease, but shall not be 7t-
responsible for restoring any shelving, fixtures, or interior nonstructural M
improvements or alteration made by the CITY pursuant to Paragraph 15,
FIXTURES, of this Lease.
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E. It is the purpose and intent of this paragraph to determine who shall f6
bear the initial responsibility for restoration of the Premises in the event of any
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such destruction and not to determine the party ultimately responsible for the costs E
of such restoration.
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20. LANDLORD'S DEFAULT: Except where another time limit is specifically
provided, LANDLORD shall be in default of this Lease if LANDLORD fails or
refuses to perform any material provisions of this Lease and such failure or refusal
to perform is not cured within thirty (30) days following LANDLORD's receipt of
written notice of default from CITY. If the default cannot reasonably be cured
within thirty (30) days, LANDLORD shall not be in default of this Lease if
LANDLORD commences to cure the default within the thirty (30) day period and
diligently and in good faith continues to cure the default.
21. CITY'S REMEDIES ON LANDLORD'S DEFAULT: CITY, at any time after
LANDLORD is in default, can terminate this Lease immediately upon written
13
Packet Pg. 44
notice to LANDLORD or can cure the default at LANDLORD's cost. If CITY at any
time, by reason of LANDLORD's default, pays any sum or does any act that
requires the payment of any sum (including charges for CITY's employees and
equipment), the sum paid by CITY shall be due from LANDLORD to CITY within
five (5) days of notice of such sum, and if paid at a later date shall bear interest at
the maximum rate the CITY is permitted by law to charge from the date the sum
was paid by CITY until CITY, is reimbursed by LANDLORD. If LANDLORD fails
to reimburse CITY as required by this paragraph, CITY shall have the right to
withhold from future rent due the sum CITY has paid until CITY is reimbursed in
full for the sum and interest on it. The remedies set forth in this paragraph are in
addition to and do not in any manner limit other remedies set forth in particular
paragraphs of this Lease.
22. CITY'S DEFAULT: The occurrence of any one or more of the following
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events shall constitute a default and breach of this Lease by CITY: to
A. The vacating for more than. thirty (30) consecutive days or
abandonment of the Premises by CITY.
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B. The failure by CITY to perform any material provisions of this Lease to CD
be performed. by CITY, including the payment of rent, where such failure shall
continue for a period of thirty (30) days after notice by LANDLORD to CITY:
provided, however, that if the nature of CITY's default is such that more than thirty
(30) days are reasonably required for its cure, then CITY shall not be deemed to be
in default if CITY commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion. The purpose of this notice
requirement is to extend the notice requirements of the unlawful detainer statutes h
of California.
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23. LANDLORDS REMEDIES ON CITY'S DEFAULT: Whenever any Event of
Default referred to in Section 22 hereof shall have happened and be continuing, it
shall be lawful for the LANDLORD to exercise any and all remedies available
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pursuant to law or granted pursuant to this Lease; provided, however, that
notwithstanding anything herein to the contrary, there shall be no right under any 2
circumstances to accelerate the Rent or otherwise declare any Rent not then in ac
Default to be immediately due and payable. Each and every covenant hereof to be
kept and performed by the CITY is expressly made a condition and upon the breach
thereof the LANDLORD may, at its option, terminate this Lease. In the event of
such Event of Default, the CITY shall continue to remain liable for the payment of
the Rent and/or damages for breach of this Lease and the performance of all
conditions herein contained and, in any event such rent and/or damages shall be
payable to the LANDLORD only at the same time and in the same manner as
provided for the payment of Rent.
Now
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Packet Pg. 45
24. LANDLORD'S ACCESS TO PREMISES: LANDLORD and its authorized
representatives shall have the right to enter the Premises at all reasonable times
for any of the following purposes
A. To determine whether the Premises are in good condition; and,
B. To do any necessary maintenance and to make any restoration to the
Premises that LANDLORD has the right or obligation to perform; and
C. To serve, host, or keep posted any notices required by law; and,
D. To post. "for sale" signs at any time during the term, to post "for rent"
or "for Lease" signs during the last three (3) months of the term; and,
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E. To show the Premises to prospective brokers, agents, buyers, tenants, Z
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lenders or persons interested in an exchange, at any time during the term. N
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LANDLORD shall conduct its activities on the Premises as allowed in this
paragraph in a manner that will cause the least possible inconvenience, annoyance,
or disturbance to CITY.d
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25. NOTICES: y
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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 M
shall be in writing and either served personally or sent by United States mail,
postage prepaid, certified or registered, return receipt requested. Any notice, M
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 E
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, E
certified or registered, return receipt requested.
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LANDLORD's address: 215 North D Street Building, LLC
c/o Frank E. Schnetz
215 North D Street, Ste. 304
San Bernardino, CA 92401
CITY's address: City of San Bernardino
ATTN: City Manager
300 North "D" Street
San Bernardino, CA 92418
15
Packet;P9.,46
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B. If, at any time after the CITY accepts the Premises, the LANDLORD
assigns or transfers a non-controlling interest of its rights in the Premises to a third
party, LANDLORD must notify CITY of its action at least fifteen (15) CITY working
days prior to completing any such action.
C. If, at any time after the CITY accepts the Premises, the LANDLORD
assigns or transfers a controlling interest of its rights in the Premises to a third-
party, LANDLORD must notify CITY of its action at least fifteen (15) CITY working
days prior to completing any such action. The new owner must provide CITY 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) CITY working days of completing any action °
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which affects a change in the ownership of the Premises, the new owner must LO
provide CITY evidence of obtaining insurance in compliance with Paragraph 17, L
INDEMNIFICATION and Paragraph 18, INSURANCE REQUIREMENTS AND °
SPECIFICATIONS.
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26. INCORPORATION OF PRIOR AGREEMENT: This Lease contains all of
the agreements of the parties hereto with respect to any matter covered or a
mentioned in this Lease, and no prior agreement or understanding pertaining to
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any such matter shall be effective for any purpose.
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27. WAIVERS: No waiver by either party of any provisions of this Lease shall be
deemed to be a waiver of any other provision hereof or of any subsequent. breach by
either party of the same or any other provisions.
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28. AMENDMENTS: No provision of this Lease may be amended or added to E
except by an agreement in writing signed by the parties hereto or their respective
successor in interest, expressing by its terms an intention to modify this Lease.
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29. SUCCESSORS: This Lease shall inure to the benefit of and be binding upon
the heirs, executors, administrators, successors, and assigns of the parties hereto.
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30. SEVERABILITY: If any word, phrase, clause, sentence, paragraph, section,
article, part or portion of this Lease is or shall be invalid for any reason, the same
shall be deemed severable from the remainder hereof and shall in no way affect or
impair the validity of this Lease or any other portion thereof.
31. TIME OF ESSENCE: Time is of the essence of each provision of this Lease
which specifies a time within which performance is to occur. In the absence of any
specific time for performance, performance may be made within a reasonable time.
32. QUIET ENJOYMENT: Subject to the provisions of this Lease and
conditioned upon performance of all the provisions to be performed by CITY
16
Packet Pg. 47
hereunder, LANDLORD shall secure to CITY during the Lease term the quiet and
peaceful possession of the Premises and all right and privilege appertaining thereto.
33. PROVISIONS ARE COVENANTS AND CONDITIONS: All provisions,
whether covenants or conditions, on the part of either party shall be deemed to be
both covenants and conditions.
34. CONSENT: Whenever consent or approval of either party is required that
party shall not unreasonably withhold, condition or delay such consent or approval.
35. EXHIBITS: All exhibits referred to are attached to this Lease and
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incorporated by reference.
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36. LAW: This Lease shall be construed and interpreted in accordance with the o
laws of the State of California. Z LO
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37. VENUE: The parties acknowledge and agree that this Lease was entered o
into and intended to be performed in San Bernardino County, California. The
parties agree that the venue for any action or claim brought by any party to this
Lease will be the Superior Court of California, County of San Bernardino. Each d
party hereby waives any law, statute (including but not limited to Code of Civil a
Procedure section 394), or rule of court that would allow them to request or demand
NN „ a change of venue. If any third party brings an action or claim concerning this Lease,
the parties hereto agree to use their best efforts to obtain a change of venue to the J
Superior Court of California, County of San Bernardino.
38, ATTORNEYS' FEES AND COSTS: If any legal action is instituted to M
enforce or declare any party's rights hereunder, each party, including the prevailing
party, must bear its own costs and attorneys' fees. This paragraph shall not apply
to those costs and attorneys' fees directly arising from any third party legal action E
against the CITY, including such costs and attorneys' fees payable under
Paragraph 17, INDEMNIFICATION, Paragraph 48, HAZARDOUS
SUBSTANCES, and Paragraph 49, PUBLIC RECORDS DISCLOSURE: E
CONFIDENTIALITY.
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39. RESERVED:
40. CITY'S RIGHT TO TERMINATE LEASE: The CITY shall have the right to
terminate this Lease at any time whenever CITY, in its sole discretion, determines
it would be in CITY's best interests to terminate this Lease. The City Manager
shall give LANDLORD notice of any termination pursuant to this paragraph at
least ninety (90) days prior to the date of termination. In the event CITY
terminates this Lease pursuant to this Paragraph 40, no termination fees,
reimbursement for Improvements, or other costs shall be due or payable to
LANDLORD for exercising CITY's termination right, except that LANDLORD shall
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Packet Pg.48
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have the right to receive from CITY the rent which will have been earned under the
Lease through the effective termination date.
41. LANDLORD'S IMPROVEMENTS:
A. LANDLORD understands and agrees that from the time that this
agreement is executed through the completion of the Improvements pursuant to
Exhibit "A-1", Premises Specifications, and acceptance of the improved Premises by
CITY, LANDLORD shall not assign or transfer a controlling interest in the
Premises to a third party, without CITY's prior review and approval. r
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(1) LANDLORD understands and agrees to provide to CITY all N
documents and relevant information concerning any proposed transfer. CITY will °
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have ten (10) CITY working days after receiving all such documents and LO
information to complete its review, Upon CITY approval of an assignment or N
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transfer, the parties shall immediately execute an amendment to this Lease stating °
the change of ownership of the Premises.
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B. LANDLORD acknowledges that late delivery of the Premises to CITY Q
will cause CITY to incur costs not contemplated by this Lease agreement., the exact
�r amount of such costs being extremely difficult and impracticable to fix. Therefore,
if LANDLORD does not deliver the improved Premises by the projected occupancy
date of , 201 , LANDLORD agrees to liquidated damages of Five
.Hundred and 00/00 Dollars ($500.00) for each day's delay from the projected
occupancy date of , 201_, to the date the CITY accepts the Premises or ti
terminates this Lease agreement. The parties agree that this charge represents a
fair and reasonable estimate of the costs that CITY will incur by reason of late E
delivery. Acceptance of any charge shall not constitute a waiver of LANDLORD's
default or prevent CITY from exercising any of the other rights and remedies
available to CITY.
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C. Notwithstanding subparagraphs "A", "B" and "C", above, in the event
LANDLORD, after exercising all due diligence, is unable to meet any of the above a
mentioned Critical Completion Dates due to reasons which LANDLORD proves are
outside the control of LANDLORD, such reasons include but are not limited to acts
of God, unreasonable acts of governmental agencies causing unavoidable delays (the
normal and reasonable times for review, action and reasonably anticipated delays
by governmental agencies are already included in the timing of the Critical
Completion Dates), strikes, or labor troubles, then the Critical Completion Dates(s)
shall be extended for a period equivalent to the period of such delay.
(1) As soon as LANDLORD becomes aware, or should in the exercise
of due diligence have become aware of any facts or circumstances that may or will
cause such a delay, LANDLORD shall immediately notify CITY of any such delay or
18
Packet"Pg.49'
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ORD fails to timal notify CITY of an such
Q anticipated delay. In the event LANDL y Y
delay or anticipated delay, LANDLORD, notwithstanding the main portion of this
subparagraph "J" above, shall be subject to subparagraph "I" above, for the entire
length of any delay.
42. CAPTIONS TABLE OF CONTENTS AND COVER PAGE: The paragraph
captions, table of contents and the cover page of this Lease shall have no effect on
its interpretations.
43. SURVIVAL: The obligations of the parties that, by their nature, continue
beyond the term of this Lease, will survive the termination of this Lease.
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44. FORMER CITY OFFICIALS: LANDLORD agrees to provide or has already N
provided information on former CITY administrative officials (as defined below) o
who are employed by or represent LANDLORD. The information provided includes z
a list of former CITY administrative officials who terminated CITY employment N
within the last five years and who are now officers, principals, partners, associates o
or members of the business. The information should also include the employment
and/or representative capacity and the dates these individuals began employment
with or representation of your business. For purposes of this provision, "CITY d
administrative official" is defined as a member of the Mayor and Common Council a
or such official's staff, City Manager or member of such officer's staff, CITY
`&W department head, assistant department head, or any employee in the San
Bernardino Confidential Management Unit. (See Exhibit "C", List of Former CITY -'
Officials.) M
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45. BROKER'S COMMISSIONS: LANDLORD is solely responsible for the M
payment of any commissions to any broker who has negotiated or otherwise
provided services in connection with this Lease.
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46. ESTOPPEL CERTIFICATES= Each party within thirty (30) days after
notice from the other party, shall execute and deliver to other party, in recordable a
form, a certificate stating that this Lease is unmodified and in full force and effect, E
or in full force and effect as modified, and stating the modifications. The certificate R
also shall state the amount of minimum monthly rent, the dates to which the rent a
has been paid in advance, the amount of any security deposit or prepaid rent, and
that there are no uncured defaults or specifying in reasonable detail the nature of
any uncured default claimed. Failure to deliver the certificate within thirty (30)
days shall be conclusive upon the party requesting the certificate and any successor
to the party requesting the certificate, that this Lease is in full force and effect and
has not been modified except as may be represented by the party requesting the
certificate, and that there are no uncured defaults on the part of the party
requesting the certificate. The estoppel certificate shall be in the form as shown in
Exhibit "D", Estoppel Certificate.
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Packet Pg. 50
47. SUBORDINATION AND ATTORNMENT=
A. As a condition precedent to the CITYs obligations under this Lease,
LANDLORD shall obtain from each holder of a lien or encumbrance on the
Premises which is senior to this Lease either an executed recordable subordination
agreement which subordinates such lien or encumbrance to this Lease, or a non-
disturbance agreement which contains terms at least as favorable to the CITY as
those set forth in paragraph 2 ("Nondisturbanee") of Exhibit "E", Subordination,
Nondisturba nee and Attornment Agreement, hereto.
B. If, after execution of this Lease, a subsequent lienor requires that this
Lease be subordinate to any such encumbrance, this Lease shall be subordinate to P
that encumbrance if, and only if, LANDLORD first obtains from the subsequent N
lienor an executed subordination, nondisturbance and attornment agreement, the Z
terms of which are at least as favorable to the CITY as those set forth in Exhibit LO
"E", Subordination, Nondisturbanee and Attornment Agreement. hereto. If the City L.L.
Attorney approves the form of a subordination, nondisturbance and attornment 12
agreement pursuant to this subparagraph, and if such agreement is executed by the
subsequent lienor, then the City Manager is authorized on behalf of the CITY to, d
and shall, execute such agreement, and shall further execute any other documents
required by the lender to accomplish the purposes of this paragraph, provided such a
r other documents are consistent with the terms of the subordination, nondisturbance
and attornment agreement and this Lease.
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48. HAZARDOUS SUBSTANCES:
A. LANDLORD hereby represents and warrants that, to the best of
LANDLORD'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 E
Substances and are presently free of all Hazardous Substances; (ii) neither the
LANDLORD 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 a
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. LANDLORD shall indemnify, protect, defend (with counsel reasonably
approved by CITY) and hold CITY, its agents and employees and the Premises,
harmless from and against any and all losses and/or damages, liabilities,
20
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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* W prior to the Commencement Date of this Lease; and (ii) not caused by
CITY during the term, including any extended terms. Additionally, the issuance of
an order by any governmental authority directing the LANDLORD or any of
LANDLORD'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 LANDLORD or
any person acting under LANDLORD's direct control and authority is a breach of
this Contract, and LANDLORD shall be responsible for all costs and expenses of
complying with such order, including any and all expenses imposed on or incurred d
by CITY in connection with or in response to such order. LANDLORD's obligations N
under this paragraph shall include, but shall not be limited to, the effects of any o
contamination or injury to person, property or the environment created or suffered Z
by CITY, and the cost of investigation, removal, remediation, restoration and/or N
abatement thereof. LANDLORD's obligations under this provision shall survive the °
expiration or early termination of this Lease. No termination, cancellation or =
release agreement: entered into by CITY and LANDLORD shall release
LANDLORD from its obligations under this Lease with regard to Hazardous
Substances unless specifically agreed to by CITY in writing. a'
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C. For the purposes of this paragraph, the following definitions shall
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apply:
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(1) "Hazardous Substance," as used in this Lease, shall mean anv
product, substance or waste whose presence, use, manufacture, disposal, M
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 W potentially injurious to the public health, safety or welfare, the E
environment or the Premises and the property on which the Premises forms a part
of, (ii) regulated or monitored by any governmental authority; or (iii) a basis for d
potential liability of LANDLORD or CITY under any applicable statute or common E
law theory.
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(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.
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(3) The team applicable requirements"' shall be deemed to refer to
all applicable laws, covenants or restrictions of record, building codes, regulations
and ordinances.
49. PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY:
A. All information received by the CITY from the LANDLORD or any
source concerning this Lease, including the Lease itself, may be treated by the CITY
as public information subject to disclosure under the provisions of the California
Public Records Act, Government Code Section 6250 et sea. (the "Public Records Act").
LANDLORD understands that although all materials received by the CITY in
connection with this Lease are intended for the exclusive use of the CITY, they are a
potentially subject to disclosure under the provisions of the Public Records Act. In the co
event a request for disclosure of any part or all of any information which a
LANDLORD has reasonably requested CITY to hold in confidence is made to the z
CITY, the CITY shall notify the LANDLORD of the request and shall thereafter N
disclose the requested information unless the LANDLORD, within five (5) days of �°
receiving notice of the disclosure request, requests nondisclosure, provides CITY a C
legally sound basis for the nondisclosure, and agrees to indemnify, defend, and hold E
the CITY harmless in any/all actions brought to require disclosure. LANDLORD
waives any and all claims for damages, lost profits, or other injuries of any and all Q
kinds in the event CITY fails to notifi- LANDLORD of any such disclosure request
and/or releases any information concerning this Lease received from the LANDLORD W
or any other source.
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B. Confidentiality. LANDLORD acknowledges that the premises will be
used by CITY for the processing and storage of confidential information protected
from unlawful access and disclosure by federal, state and local laws. CITY and its
officers, agents, volunteers and employees, agree to comply with relevant federal, E
state and local laws pertaining to the security and protection of such confidential
information while on the premises. LANDLORD agrees that it will prevent any
unlawful access to or disclosure of the confidential information by LANDLORD, its
officers, agents, volunteers, employees and contractors. LANDLORD agrees that all
entities with which LANDLORD contracts to provide services on the premises will ;a
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prevent any unlawful access or disclosure of the confidential information, and that a
said entities will agree to the same in writing. LANDLORD acknowledges that any
unlawful access to or disclosure of confidential information may result in the
imposition of civil and criminal sanctions.
50. CONDITION OF PREMISES: LANDLORD shall deliver the Premises to
CITY clean and free of debris on the Commencement Date and warrants to CITY
that the plumbing, electrical systems, fire sprinkler system, lighting, air
conditioning and heating systems and loading doors, if any, in the Premises shall be
in good operating condition on the Commencement Date.
51. CONDEMNATION:
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Packet'Pg.53
A. If the Premises or any portion thereof are taken under the power of
eminent domain or sold under the threat of the exercise of said power (all of which
are herein called "condemnation"), this Lease shall terminate as to the part so
taken as of the date the condemning authority takes title or possession, whichever
first occurs. If more than ten percent (10%) of the floor area of the Premises, or
more than twenty-five percent (25%) of the portion of the Common Areas or that
portion of the Premises designated for CIT1''s parking, is taken by condemnation,
CITY may, at CITY's option, to be exercised in. writing within thirty (30) days after
LANDLORD shall have given CITY written notice of such taking (or in the absence
of such notice, within thirty (30) days after the condemning authority shall have
taken possession) terminate this Lease as of the date the condemning authority d
takes such possession. If CITY does not terminate this Lease in accordance with
the foregoing, this Lease shall remain in full force and effect as to the portion of the o
Premises remaining, except that the rent shall be reduced in the same proportion as Z
the rentable floor area of the Premises taken bears to the total rentable floor area of N
the Premises. No reduction of rent shall occur if the condemnation does not apply o
to any portion of the Premises. CITY shall be entitled to receive the following
amounts of any award for the taking of all or any part of the Premises under the
power of eminent domain or any payment made under threat of the exercise of such 0
power: (a) one hundred percent (100%) of any amount attributable to any excess of a
the market value of the Premises for the remainder of the Lease Term over the N
present value as of the Termination Date of the Rent payable for the remainder of
the Lease Term (commonly referred to as the "bonus value" of the Lease); and (b) J
CITY shall have the right to make a separate claim in the Condemnation M
proceeding for: (i) The taking of the amortized or undepreciated value of any trade
fixtures or leasehold improvements owned by CITY that CITY has the right to M
remove at the end of the Lease term and that CITY elects not to remove; (ii)
Reasonable removal and relocation costs for any trade fixtures or leasehold
improvements that CITY has the right to remove and elects to remove (if E
Condemnor approves of the removal); (iii) Loss of goodwill; (iv) Relocation costs cc
under Government Code section 7262, the claim for which CITY may pursue by
separate action independent of this Lease; and (v) Any other amount in addition to t
the foregoing that the CITY is allowed under condemnation law.
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B. CITY shall have the right to negotiate directly with Condemnor for the
recovery of the portion of the Award that CITY is entitled to under subparagraph
(B) of this paragraph. In the event that this Lease is not terminated by reason of
such condemnation, LANDLORD shall repair any damage to the Premises caused
by such condemnation authority pursuant to Paragraph 13, MAINTENANCE, and
Paragraph 19, DESTRUCTION OF PREMISES.
52. MATERIAL MISREPRESENTATION: If during the course of the
administration of this lease, the CITY determines that the LANDLORD has made a
material misstatement or misrepresentation or that materially inaccurate
information has been provided to the CITY, this Lease may be immediately
23
Packe t"'Pg. 54
terminated. If this Lease is terminated according to this provision, the CITY is
entitled to pursue any available legal remedies.
53. INTERPRETATIONS: As this Lease was jointly prepared by both parties,
the language in all parts of this Lease shall be construed, in all cases, according to
its fair meaning, and not for or against either party hereto.
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kw 54. AUTHORIZED SIGNATORS: Bath parties to this Lease represent that the
signators executing this document are fully authorized to enter into this agreement.
END OF LEASE TERMS.
CITY OF SAN BERNARDINO 215 North D Street Building, LLC=
By
Mark Scott, City Manager (Name)
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Date ._._...._....
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GEORGEANN HANNA, City Clerk Date: N
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City of San Bernardino E,
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EXHIBIT"A!'— PREMISES
FOR CLARITY: the Premises is comprised of approximately square feet of
office space located at , CA.
Assessor Parcel Map Number: -0000
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EXHIBIT "B"
LICENSED JANITORIAL AND MAINTENANCE CONTRACTOR SERVICES
(Janitorial Service to provide/supply all sanitary and paper goods.)
DAILY SERVICES:
1. Empty and damp clean all ashtrays.
2. Empty all waste baskets and other waste containers.
3. Dust mop all tiled/terrazzo floors.
4. Vacuum traffic lanes of carpeting.
5. Dust all desks, chairs, tables, filing cabinets and other office furniture.
6. Damp clean lobby counters.
7. Clean and sanitize rest room fixtures, mirrors, chrome pipes, etc.
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8. Clean splash marks from walls of rest rooms. co
9. Refill soap, towel and paper containers. °
10. Clean and sanitize drinking fountains. Z LO
11. Clean hand marks off glass on entrance doors. N
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12. Damp clean table tops in coffee rooms. .°
13. Clean kitchen sinks and counters.
14. Sweep entryways. E
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15. Brush down steps of inside stairwells.
16. Vacuum elevator carpet. All carpeted areas are to be vacuumed using a dual Q
motor vacuum with a rotating cylindrical brush, rather than a beater bar. N
17. Spot clean all walls and doors including elevator.
18. Spot clean carpets of small spillage, footprints, etc.
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19. Keep janitor closets clean and orderly. ti
20. Remove paper and debris outside main entrance.
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WEEKLY SERVICE:
1. Wet mop all tiled/terrazzo floors. E
2. Clean all desk tops and tables that are cleared; clean all chairs.
3. Clean hand marks from walls, doors and woodwork.
4. Vacuum all carpeting completely. All carpeted areas are to be vacuumed using Q
a dual motor vacuum with a rotating cylindrical brush, rather than a beater E
bar. °
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TWICE-MONTHLY SERVICE:
1. Dust high areas, including window coverings.
2. Vacuum upholstered furniture.
3. Clean lobby directories and fire extinguisher glass.
4. Machine clean and seal all tiled floors.
EVERY THREE MONTHS:
1. Vacuum dust and dirt accumulation from air conditioning vents.
2. Brush down cobwebs inside building.
3. Wash inside windows and partitions.
4. Replace cartridge in rest room automatic air fresheners.
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Packet Pg. 58
5.D.c
The above are considered the minimum standard janitorial items, and are to be
performed by a licensed janitorial contractor. Landlord is responsible for providing
all services related to the health and cleanliness of the leased facility.'
The following services are to be performed by a licensed maintenance contractor.Page 1 of 2
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EXHIBIT"B" - FOR HSS PROJECTS ONLY
LICENSED JANITORIAL AND MAINTENANCE CONTRACTOR SERVICES
(Continued):
WEEKLY SERVICE:
1. Contract with a mat service to supply and replace interior entry mats with
cleaned mats.
2. Replace light bulbs and tubes inside building when needed.
ONCE-MONTHLY SERVICE:
1. Licensed pest control.
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1. Carpet to be cleaned by a professional carpet cleaning company using hot LO
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2. Wash exterior and interior windows and partitions. °
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EXHIBIT "C"
LIST OF FORMER CITY OFFICIALS
INSTRUCTIONS: List the full name of the former CITY Official, the
title/description of the Official's last position with the CITY, the date the Official
terminated CITY employment, the Official's current employment and/or
representative capacity with the LANDLORD, the date the Official entered
LANDLORD'S employment and/or representation.
OFFICIAL'S NAME: REQUIRED INFORMATION
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EXHIBIT"D" - ESTOPPEL CERTIFICATE
Date:
To:
Re:
(address) (city)
The undersigned ("CITY") hereby certifies as follows:
1. CITY is in possession of °
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California (the "Premises"). CITY leases the Premises under a written Lease LO Ir-
agreement dated , 2Q , Lease Agreement No. (the "Lease"), N
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wherein CITY is the lessee or tenant, and ("Owner") is the �2
lessor or landlord. d
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2. The Lease is in full force and effect and has not been amended,
supplemented or changed, except as follows: Q
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3. The term of the Lease commenced on 20 and is M
scheduled to expire , 2Q_. CITY has no right or option to renew or M
extend the term of the Lease except as to the following= -year ti
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options.
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4. CITY's current monthly rental is $ _., payable on the last day
of each month. E
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5. CITY currently has no security deposit with Owner. r
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6. CITY is not in default under the terms of the Lease and no condition
exists which, with the passage of time or the giving of notice, or both, would
constitute such a default. To the best of CITY's knowledge, Owner is not in default Q
under the terms of the Lease, and no condition exists which, with the passage of
time or the giving notice, or both, would constitute such a default.
7. CITY hereby certifies that the foregoing is true and correct.
By:
City Manager
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EXHIBIT "E"
RECORDED AT REQUEST OF
AND TO BE RETURNED TO:
Attn:
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SUBORDINATION NONDISTURBA WE AND ATTORNMENT AGREEMENT o
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THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT ("Agreement") is entered into by and between the City of San
Bernardino ("Tenant"), E
("Landlord")
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and, ("Lender").
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(Name and type of entity)
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A. Tenant entered into a certain Lease Agreement, dated as of M
20_ (the "Lease"), between Tenant, as lessee, and Landlord, as �
lessor, pertaining to that certain premises commonly known as
California (zip code), as more
particularly described in the Lease ("Premises"), located on that certain real
property located in the County of San Bernardino, State of California, as more
particularly described in Exhibit "A", attached hereto and incorporated herein (the E
"Property"). Landlord may also be referred to as "Borrower". o
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B. Borrower made, executed and delivered, or is about to make, execute
and deliver to Lender a certain promissory note, dated substantially
contemporaneously herewith ("the Note"), in the original principal sum of
$ . The obligations evidenced by the Note shall be referred to as
the "Loan". The Note is executed pursuant to the terms of a certain Construction
Loan Agreement, dated substantially contemporaneously herewith (the "Loan
Agreement"), between Lender and Landlord.
C. Borrower has executed and delivered, or is about to execute and deliver
to Lender, a certain Deed of Trust and Assignment of Rents, dated substantially
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„. contemporaneously herewith (the "Deed of Trust"), encumbering the Property to
secure the Loan.
D. It is a condition precedent to the Loan that the Deed of Trust shall
unconditionally be and remain at all times a hen or charge upon the Property, prior
and superior to the Lease.
E. It is a condition precedent to the Loan that Tenant will specifically and
unconditionally subordinate and subject the Lease, together with all rights and
privileges of Tenant thereunder, to the lien or charge of the Deed of Trust.
F. It is to the mutual benefit of the parties hereto that Lender and r
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Borrower enter into the Loan. L
Covenants °
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In consideration of the recitals set forth above and the covenants and N
agreements contained herein, the parties agree as follows: °
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1. Subordination: Tenant hereby subordinates all of Tenant's right, title, d
interest and leasehold estate in and to the Premises to the lien, operation, and effect
of the Deed of Trust. Q
2. Nondisturbance: Tenant's peaceful and quiet possession of the �
Premises shall not be disturbed and Tenant's rights and privileges under the Lease, M
including but not limited to the provisions of the Lease set forth under the headings
"TERM," "EXPANSION OF RENTAL SPACE,” "OPTION TO EXTEND TERM,"
"INDEMNIFICATION,: "INSURANCE REQUIREMENTS AND
SPECIFICATIONS," "DESTRUCTION OF PREMISES," "CITY'S RIGHT TO
TERMINATE LEASE," and "CONDEMNATION," shall not be diminished by E
Lender's foreclosure, acceptance of a deed in lieu of foreclosure, or any other
exercise of Lender's rights or remedies under the Deed of Trust, the Note, the Loan
Agreement, any other loan document, or the laws governing secured loans. All of
the provisions of the Lease shall prevail over any conflicting provisions in the Deed
of Trust, the Note, the Loan Agreement, any other loan document, or the laws r
governing secured loans. Tenant shall not be named or joined in any foreclosure, a
trustee's sale, or other proceeding or action to enforce the Deed of Trust, the Note,
the Loan Agreement, any other loan document, unless such joinder shall be legally
required to perfect such foreclosure, trustee's sale, or other proceeding or action.
3. Attornment: If the Deed of Trust is foreclosed for any reason, or
Landlord deeds the Property to Lender in lieu of foreclosure, the Lease shall not be
extinguished and Tenant shall be bound to Lender under all the terms, covenants,
and conditions of the Lease for the balance of the term of the Lease with the same
force and effect as if Lender was the lessor under the Lease. Tenant shall attorn to
Lender as Tenant's Lessor, and agrees to recognize Lender as the new owner and
2
Packet Pg. 65
promises to pay the rent to Lender as Landlord. This attornment shall be effective
and self-operative, without the execution of any other instruments on the part of any
of the parties to this Agreement., immediately upon Lender succeeding to the interest
of Landlord under the Lease.
4. Disbursements: Lender is under no obligation or duty to monitor the
application of the proceeds of the Loan. Any application of such proceeds for purposes
other than those provided for in the Loan Agreement or any of the other Loan
Documents shall not defeat the effect of this Agreement in whole or in part.
5. Acknowledament of Assignment: Tenant acknowledges and consents to
the assignment of Landlord's rights under the Lease to Lender pursuant to a certain
Assignment of Leases (the "Assignment"). Tenant shall pay rent to Lender upon m
receipt of written notice from Lender that Lender has revoked the waiver of CO
Landlord's right to receive the rents from the Premises pursuant to the Assignment, o
notwithstanding the fact that Lender has not foreclosed the Deed of Trust, nor z
succeeded to the interest of Landlord under the Lease. Tenant shall not be liable to N
Landlord for any payments made to Lender hereunder. .°
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6. Assignment or Sublease= Tenant may assign or sublease all or any E
portion of the Property in accordance with the Lease, but no such assignment,
transfer, or subletting shall relieve Tenant of any of its obligations under the Lease. Q
Tenant hereby covenants that the Lease has not been modified or altered except at y
„► stated in the recitals. Tenant shall not voluntarily subordinate or subject the Lease or
any interest therein to any lien or encumbrance without the prior written consent of
Lender, unless said lien or encumbrance shall relate to personal property that can be M
removed without damage to the Premises, or unless such subordination is required by
the Lease. M
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7. Notices: Tenant shall deliver to Lender a copy of all notices, requests, or
demands delivered by Tenant to Landlord in accordance with this Paragraph. Tenant E
shall also deliver to Lender any and all notices, demands, or requests received by
Tenant from Landlord relating to any of the aforesaid. Lender shall deliver to Tenant
all notices, requests or demands in accordance with this Paragraph. All notices =
required hereunder or pertaining hereto shall be in writing and shall be deemed
delivered and effective upon the earlier of(i) actual receipt; or (ii) the date of delivery a
or refusal of the addressee to accept delivery if such notice is sent by express courier
service or United States mail, postage prepaid, certified or registered, return receipt
requested, in each case, to the applicable address as follows:
to Tenant: CITY of San Bernardino
[address]
to Landlord:
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(W to Lender:
Attn:
Notwithstanding the foregoing, any notice under or pertaining to this Agreement,
given and effective in accordance with applicable law, shall be effective for purposes
hereof. Any party may change the address at which it is to receive notices hereunder
to another business address within the United States (but not a post office box or
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similar mail receptacle) by giving notice of such change of address in accordance o
herewith. Z LO
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8. Landlord's Default: Tenant hereby agrees that Tenant will notify `o
Lender in writing, in accordance with Paragraph 7, Notices, above, of any default by
Landlord under the terms of the Lease and Tenant shall not cancel or terminate, or
acquiesce to the cancellation or termination of the Lease without giving Lender a
reasonable period (not less than 30 days) after delivery of such notice to cure the Q
default; Lender's rights and remedies under the Loan Agreement or any, of the Loan N
Documents (as defined in the Loan Agreement) shall not be prejudiced by its exercise d
or failure to exercise the right to cure described above. Except for Landlord's defaults
under Paragraph 3, TERM, of the Lease, relating to Landlord's failure to meet the M
Critical Completion Dates as set forth in Exhibit "A", Page 4, Schedule of Completion,
Lender elects within such thirty (30) day period to foreclose on the Deed of Trust, M
such time period shall be extended so that Lender shall have a reasonable period
within which to foreclose the Deed of Trust and shall have an additional thirty (30) .:
days from the time Lender becomes owner of the Property through foreclosure within E
which to cure such default.. If any default by Landlord is cured within the time M
periods described above, Tenant shall have no right to terminate the Lease by virtue
of such default. E
9. Binding Effect: This Agreement shall be binding upon the parties and a
their respective heirs, personal representatives, successors, and assigns.
10. Law: This Agreement shall be construed and interpreted in accordance
with the laws of the State of California.
11 Reserved:
12. Attorneys' Fees and Costs: If any legal action is instituted to enforce or
declare any party's rights hereunder, each party, regardless of which party is the
prevailing party, must bear its own costs and attorneys' fees. This paragraph shall
i 5
Packet Pg.68''
not apply to those costs and attorneys` fees directly arising from any third party .legal
action against a party hereto and payable under Lease Paragraph 17,
"INDEMNIFICATION", Paragraph 48, HAZARDOUS SUBSTANCES; and
Paragraph 49, PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY.
13. Venue. The parties acknowledge and agree that this Agreement was
entered into and intended to be performed in San Bernardino County, California.
The parties agree that the venue for any action or claim brought by any party to
this Agreement will be the Superior Court of California, County of San Bernardino.
Each party hereby waives any law, statute (including but not limited to Code of
Civil Procedure section 394), or rule of court that would allow them to request or
demand a change of venue. If any third party brings an action or claim concerning
this Agreement, the parties hereto agree to use their best efforts to obtain a change of d
venue to the Superior Court of California, County of San Bernardino Cn
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the,
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day and year written below. N
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Tenant: Lender=
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CITY OF SAN BERNARDINO: i
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By,
City Manager (Name)
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Georgeann Hanna, City Clerk
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Approved as to Legal Form:
Gary D. Saenz, City Attorney
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EXHIBIT "F'
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Landlord Improvements in the Contract or Purchase
Order (as applicable) requires the payment of prevailing wages and
compliance with the following requirements. As used in this Attachment,
the term "Contractor" shall include Landlord or Landlord's contractor
and/or subcontractors.
1. Determination of Prevailing Rates:
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Pursuant to Labor Code sections 1770, et seq., the CITY has obtained from the N
Director of the Department of Industrial Relations (DIR) pursuant to the California a
Labor Code, the general prevailing rates of per diem wages and the prevailing rates z
for holiday and overtime work in the locality in which the Landlord Improvements N
is to be performed. Copies of said rates are on file with the CITY, will be made c
available for inspection during regular business hours, may be included elsewhere
in the specifications for the Landlord Improvements, and are also available online 4)
at www.dir.ca.gov. The wage rate for any classification not listed, but which may
be required to execute the Landlord Improvements, shall be commensurate and in Q
accord with specified rates for similar or comparable classifications for those N
performing similar or comparable duties. In accordance with Labor Code section
1773.2, the Contractor shall post, at appropriate and conspicuous locations on the
jobsite, a schedule showing all applicable prevailing wage rates and shall comply M
with the requirements of Labor Code sections 1.773, et seq.
M
2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the Landlord E
Improvements, shall be paid not less than the general prevailing wage rate,
regardless of any contractual relationship which may be alleged to exist between
the Contractor or any subcontractor, and such worker. E
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3. Prevailing Rate Penalty
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The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the
CITY for each calendar day or portion thereof, for each worker paid less than the
prevailing rates as determined by the Director of the DIR for such work or craft in
which such worker is employed by the Contractor or by any subcontractor in
connection with the Landlord Improvements. Pursuant to California Labor Code
section 1775, the difference between such prevailing wage rates and the amount
paid to each worker for each calendar day, or portion thereof, for which each worker
was paid less than the prevailing wage rate, shall be paid to each worker by the
Contractor.
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4. Ineligible Contractors:
Pursuant to the provisions of Labor Code section 1777.1, the Labor Commissioner
publishes and distributes a list of contractors ineligible to perform work as a
contractor or subcontractor on a public works project. This list of debarred
contractors is available from the DIR website at http://www.dir.ca.gov/Public-
Works/PublieWorks.html. Any contract entered into between a contractor and a
debarred subcontractor is void as a matter of law. A debarred subcontractor may
not receive any public money for performing work as a subcontractor on a public
works contract, and any public money that may have been paid to a debarred
subcontractor by a contractor on the project shall be returned to the CITY. The
Contractor shall be responsible for the payment of wages to workers of a debarred
subcontractor who has been allowed to work on the Landlord Improvements. d
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5. Payroll Records: M
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Pursuant to California Labor Code section 1776, the Contractor and each LO
subcontractor, shall keep accurate certified payroll records, showing the name, N
address, social security number, work classification, straight time and overtime °
hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker or other employee employed by them in connection d
with the Landlord Improvements. The payroll records enumerated herein shall be
verified by a written declaration made under penalty of perjury that the Q
information contained in the payroll record is true and correct and that the
Contractor or subcontractor has complied with the requirements of the California
Labor Code sections 1771, 1811, and 1815 for any Landlord Improvements
performed by his or her employees. The payroll records shall be available for
inspection at all reasonable hours at the principal office of the Contractor on the
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following basis:
(1)A certified copy of an employee's payroll record shall be made available for E
inspection or furnished to such employee or his/her authorized C
representative on request;
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(2)A certified copy of all payroll records shall be made available for
inspection or furnished upon request to the CITY, the Division of Labor
Standards Enforcement of the DIR; a
(3)A certified copy of payroll records shall be made available upon request to
the public for inspection or copies thereof made; provided, however, that a
request by the public shall be made through either the CITY or the
Division of Labor Standards Enforcement. If the requested payroll
records have not been previously provided to the CI'T'Y or the Division of
Labor Standards Enforcement, the requesting party shall, prior to being
provided the records, reimburse the cost of preparation by the Contractor,
subcontractor and the entity through which the request was made; the
9
Pac6(Pg.72'
public shall not be given access to such records at the principal office of
the Contractor;
(4) The Contractor shall file a certified copy of the payroll records with the
entity that requested such records within ten (10) days after receipt of a
written request; and
(5) Copies provided to the public, by the CITY or the Division of Labor
Standards Enforcement shall be marked or obliterated in such a manner
as to prevent disclosure of an individual's name, address and social
security number. The name and address of the Contractor or any
subcontractor, performing a part of the Landlord Improvements shall not
be marked or obliterated. The Contractor shall inform the CITY of the
location of payroll records, including the street address, city and CITY and in
shall, within five (5) working days. provide a notice of a change of location a
and address. Z LO
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The Contractor shall have ten (10) days from receipt of the written notice specifying o
in what respects the Contractor must comply with the above requirements. In the �
event Contractor does not comply with the requirements of this section within the d
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ten (10) day period, the Contractor shall, as a penalty to the CITY, forfeit one-
hundred dollars ($100.00) for each calendar day, or portion thereof, for each worker, Q
until strict compliance is effectuated. Upon the request of the Division of Labor N
Standards Enforcement, such penalty shall be withheld from any portion of the
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payments then due or to become due to the Contractor.
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6. Limits on Hours of Work: 7t
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Pursuant to California Labor Code section 1810, eight (8) hours of labor shall
constitute a legal day's work. Pursuant to California Labor Code section 1811, the
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time of service of any worker employed at any time by the Contractor or by a E
subcontractor, upon the Landlord Improvements or upon any part of the Landlord
Improvements, is limited and restricted to eight. (8) hours during any one calendar
day and forty (40) hours during any one calendar week, except as provided for under E
Labor Code section 1815. Notwithstanding the foregoing provisions, work v
performed by employees of Contractor or any subcontractor, in excess of eight. (8) a
hours per day and forty (40) hours during any one week, shall be permitted upon
compensation for all hours worked in excess of eight (8) hours per day at not less
than one and one-half(1112) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the CITY a penalty of twenty-five dollars ($25.00) for
each worker employed on the Landlord Improvements by the Contractor or any
subcontractor, for each calendar day during which such worker is required or
permitted to work more than eight (8) hours in any calendar day and forty (40)
hours in any one calendar week, in violation of the provisions of the California
10
Packet'Pg.73
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Labor Code, unless compensation to the worker so employed by the Contractor is
not less than one and one-half(11/2) times the basic rate of pay for all hours worked
in excess of eight (8) hours per day.
8. Senate Bill 854 (Chapter 28, Statutes of 2014) Requirements:
(1) Contractor shall comply with Senate Bill 854 (signed into law on June 20, 2014).
The requirements include, but are not limited to, the following:
a. No contractor or subcontractor may be listed on a bid proposal (submitted
on or after March 1, 2015) for a public works project unless registered
with the DIR pursuant to Labor Code section 1725.5, with limited
exceptions from this requirements for bid purposes only as allowed under
Labor Code section 1771.1(a).
b. No contractor or subcontractor may be awarded a contract for public work z
or perform work on a public works project (awarded on or after April 1, Ln
2015) unless registered with the DIR pursuant to Labor Code section
1725.5.
c. This project is subject to compliance monitoring and enforcement by the E
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d. As required by the DIR, Contractor is required to post job site notices, as
prescribed by regulation, regarding compliance monitoring and
enforcement by the DIR.
e. Contractors and all subcontractors must submit certified payroll records
online to the Labor Commissioner for all new public works projects issued
on or after April 1, 2015, and for all public works projects, new or ongoing,
on or after January 1, 2016.
E
i. The certified payroll must be submitted at least monthly to the
Labor Commissioner.
H. The CITY reserves the right to require Contractor and all E
subcontractors to submit certified payroll records more frequently
than monthly to the Labor Commissioner
iii. The certified payroll records must be in a format prescribed by the
Labor Commissioner.
(2) Labor Code section 1725.5 states the following:
A contractor shall be registered pursuant to this section to be qualified to bid on,
be listed in a bid proposal, subject to the requirements of Section 4104 of the
Public Contract Code, or engage in the performance of any public work contract
that is subject to the requirements of this chapter. For the purposes of this
section, "contractor" includes a subcontractor as defined by Section 1722.1.
Packet Pg. 74
(a) To qualify for registration under this section. a contractor shall do all of the
following*
(1) Beginning July 1, 2014, register with the Department of Industrial
Relations in the manner prescribed by the department and pay an initial
nonrefundable application fee of three hundred dollars ($300) to qualify
for registration under this section and an annual renewal fee on or before
July 1 of each year thereafter. The annual renewal fee shall be in a
uniform amount set by the Director of Industrial Relations, and the initial
registration and renewal fees may be adjusted no more than annually by
the director to support the costs specified in Section 1771.3.
(2) Provide evidence, disclosures, or releases as are necessary to establish
all of the following:
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(A) Workers' Compensation coverage that meets the requirements z
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of Division 4 (commencing with Section 3200) and includes
sufficient coverage for any worker whom the contractor employs to 0
perform work that is subject: to prevailing wage requirements other w
than a contractor who is separately registered under this section. 0
Coverage may be evidenced by a current and valid certificate of
workers' compensation Insurance or certification of self-insurance a`s
required under Section 7125 of the Business and Professions Code.
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(B) If applicable, the contractor is licensed in accordance with
Chapter 9 (commencing with Section 7000) of the Business and
Professions Code. ti
(C) The contractor does not have any delinquent liability to an
employee or the state for any assessment of back wages or related r
damages, interest, fines, or penalties pursuant to any final
judgment, order, or determination by a court or any federal, state, a,
or local administrative agency, including a confirmed arbitration
award. However, for purposes of this paragraph, the contractor
shall not be disqualified for any judgment, order, or determination E
that is under appeal, provided that the contractor has secured the
payment of any amount eventually found due through a bond or 1
other appropriate means.
(D) The contractor is not currently debarred under Section 1777.1
or under any other federal or state law providing for the debarment
of contractors from public works.
(E) The contractor has not bid on a public works contract, been
listed in a bid proposal, or engaged in the performance of a contract
for public works without being lawfully registered in accordance
with this section, within the preceding 12 months or since the
effective date of the requirements set forth in subdivision (e),
12
Packet Pg.75
whichever is earlier. If a contractor is found to be in violation of the
requirements of this paragraph, the period of disqualification shall
be waived if both of the following are true=
(i) The contractor has not previously been found to be in
violation of the requirements of this paragraph within the
preceding 12 months.
(ii) The contractor pays an additional nonrefundable penalty
registration fee of two thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposited in the State Public
Works Enforcement Fund established by Section 1771.3 and shall be used only
for the purposes specified in that section. m
(c) A contractor who fails to pay the renewal fee required under paragraph (1) of o
subdivision (a) on or before the expiration of any prior period of registration Z
shall be prohibited from bidding on or engaging in the performance of any N
contract for public work until once again registered pursuant to this section. If o
the failure to pay the renewal fee was inadvertent, the contractor may renew its c
registration retroactively by paying an additional nonrefundable penalty °'
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renewal fee equal to the amount of the renewal fee within 90 days of the due 4)
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date of the renewal fee.
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(d) If, after a body awarding a contract accepts the contractor's bid or awards
the contract, the work covered by the bid or contract is determined to be a public
work to which Section 1771 applies, either as the result of a determination by M
the director pursuant to Section 1773.5 or a court decision, the requirements of
this section shall not apply, subject to the following requirements= ,
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(1) The body that awarded the contract failed, in the bid specification or
in the contract documents, to identify as a public work that portion of the E
work that the determination or decision subsequently classifies as a
public work.
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(2) Within 20 days following service of notice on the awarding body of a E
determination by the Director of Industrial Relations pursuant to Section
1773.5 or a decision by a court that the contract was for public work as a
defined in this chapter, the contractor and any subcontractors are
registered under this section or are replaced by a contractor or
subcontractors who are registered under this section.
(3) The requirements of this section shall apply prospectively only to any
subsequent bid, bid proposal, contract, or work performed after the
awarding body is served with notice of the determination or decision
referred to in paragraph (2) of this subdivision.
13
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(e) The requirements of this section shall apply to any bid proposal submitted
on or after March 1, 2015, and any contract for public work, as defined in this
chapter, entered into on or after April 1, 2015.
(3) Labor Code section 1771.1 states the following:
(a) A contractor or subcontractor shall not be qualified to bid on, be listed in a
bid proposal, subject to the requirements of Section 4104 of the Public Contract
Code, or engage in the performance of any contract for public work, as defined in
this chapter, unless currently registered and qualified to perform public work
pursuant to Section 1725.5. It is not a violation of this section for an
unregistered contractor to submit a bid that is authorized by Section 7029.1 of
the Business and Professions Code or by Section 10164 or 20103.5 of the Public
Contract Code, provided the contractor is registered to perform public work
pursuant. to Section 1725.5 at the time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall be included in all z
bid invitations and public works contracts, and a bid shall not be accepted nor LO
any contract or subcontract entered into without proof of the contractor or `"
subcontractor's current registration to perform public work pursuant to Section °
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(c) An inadvertent error in listing a subcontractor who is not registered d
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pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid Q
protest or grounds for considering the bid nonresponsive, provided that any of y
the following apply:
(1) The subcontractor is registered prior to the bid opening. h
(2) Within 24 hours after the bid opening, the subcontractor is registered M
and has paid the penalty registration fee specified in subparagraph (E) of
paragraph (2) of subdivision (a) of Section 1725.5.
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(3) The subcontractor is replaced by another registered subcontractor
pursuant to Section 4107 of the Public Contract Code.
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(d) Failure by a subcontractor to be registered to perform public work as E
required by subdivision (a) shall be grounds under Section 4107 of the Public R
Contract Code for the contractor, with the consent of the awarding authority, to a
substitute a subcontractor who is registered to perform public work pursuant to
Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of contractors
who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of
subdivision (a) shall be subject to cancellation, provided that a contract for
public work shall not be unlawful, void, or voidable solely due to the failure of
the awarding body, contractor, or any subcontractor to comply with the
requirements of Section 1725.5 or this section.
14
Packet Pg. 77
(g) This section shall apply to any bid proposal submitted on or after March 1,
2015, and any contract for public work entered into on or after April 1, 2015.
(4)Labor Code section 1771.4 states the following:
(a) All of the following are applicable to all public works projects that are
otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents shall specify that the project
is subject to compliance monitoring and enforcement by the Department
of Industrial Relations.
(2) The awarding body shall post or require the prime contractor to post
job site notices, as prescribed by regulation.
(3) Each contractor and subcontractor shall furnish the records specified °?
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in Section 1776 directly to the Labor Commissioner, in the following CO
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(A.) At least monthly or more frequently if specified in the contract N L
with the awarding body. o
(B) In a format prescribed by the Labor Commissioner. £
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(4) The department shall undertake those activities it deems necessary to
monitor and enforce compliance with prevailing wage requirements. Q
(b) The Labor Commissioner may exempt a public works project from
compliance with all or part of the requirements of subdivision (a) of this section
if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance M
program, as defined in Section 1777.5, on all public works projects under
its authority, except those deemed exempt pursuant to subdivision (a) of
Section 1771.5, continuously since December 31, 2011. E,
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(2) The awarding body has entered into a collective bargaining agreement
that binds all contractors performing work on the project and that E
includes a mechanism for resolving disputes about the payment of wages.
(c) a
(1) The requirements of paragraph (1) of subdivision (a) shall only apply
to contracts for public works projects awarded on or after January 1, 2015.
(2) The requirements of paragraph (3) of subdivision (a) shall only apply
to the following projects:
(,A) Projects that were subject to a requirement to furnish records
to the Compliance Monitoring Unit pursuant to Section 16461 of
Title 8 of the California Code of Regulations, prior to the effective
date of this section.
15
Packet Pg.78
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(B) Projects for which the initial contract is awarded on or after
April 1, 2015.
(C) Any other ongoing project in which the Labor Commissioner
directs the contractors or subcontractors on the project to furnish
records in accordance with paragraph (3) of subdivision (a).
(D) All projects, whether new or ongoing, on or after January 1,
2016.
B. STATE PUBLIC WORKS APPRENTICESHIP REQUIRMENTS
1. State Public Works Apprenticeship Requirements:
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The Contractor is responsible for compliance with Labor Code section 1777.5 and o
the California Code of Regulations, title 8, sections 230 — 230.2 for all Z
apprenticeable occupations (denoted with "#" symbol next to craft name in DIR N
Prevailing Wage Determination), whether employed by the Contractor, o
subcontractor, vendor or consultant. Included in these requirements is (1) the
Contractor's requirement to provide notification (i.e. DAS-140) to the appropriate
apprenticeship committees, p g
(2} ay training fund contributions for each �
apprenticeable hour employed on the Contract.; and (3) utilize apprentices in a a
minimum ratio of not less than one apprentice hour for each five journeyman hours N
by completion of Contract work (unless an exception is granted in accordance with
Labor Code section 1777.5) or request for the dispatch of apprentices.
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Any apprentices employed to perform any of the Landlord Improvements shall be
paid the standard wage to apprentices under the regulations of the craft or trade for
which such apprentice is employed, and such individual shall be employed only for
the work of the craft or trade to which such individual is registered. Only
apprentices, as defined in California Labor Code section 3077, who are in training E
under apprenticeship standards and written apprenticeship agreements under
California Labor Code sections 3070 et seq. are eligible to be employed for the
Landlord Improvements. The employment and training of each apprentice shall be E
in accordance with the provisions of the apprenticeship standards and apprentice
agreements under which such apprentice is training. a
2. Compliance with California Labor Code section 1777.5 requires all public
works contractors to:
Submit Contract Award Information (DAS•140)
a. Although there are a few exemptions (identified below), all Contractors,
regardless of union affiliation, must submit contract award information when
performing on a California public works project.
16
Packet Pg. 79
5.t3.c
b. The DAS-140 is a notification '`announcement" of the Contractor's
participation on a public works project—it is not a request for the dispatch of
an apprentice.
e. Contractors shall submit the contract award information (you may use form
DAS 140) within 10 days of the execution of the prime contract or
subcontract, but in no event later than the first day in which the Contractor
has workers employed on the public work.
d. Contractors who are already approved to train apprentices (i.e. check `Box 1"
on the DAS-140) shall only be required to submit the form to their approved
program.
e. Contractors who are NOT approved to train apprentices (i.e. those that check
either "Box 2" or `Box 3" on the DAS-140) shall submit the DAS-140 TO
EACH of the apprenticeship program sponsors in the area of your public
works project. For a listing of apprenticeship programs see
Cn
http://www.dir.ca.gov/Databases/das/pwaddrstart.asp. o
Employ Registered Apprentices Z Ln
a. Labor Code section 1777.5 requires that a contractor performing work in an o
"apprentice able" craft must employ one (1) hour of apprentice work for every
five (5) hours performed by a journeyman. This ratio shall be met prior to
the Contractor's completion of work on the project. "Apprentice able" crafts d
are denoted with a pound symbol "#" in front of the craft name on the Q
prevailing wage determination. m
b. All Contractors who do not fall within an exemption category (see below)
must request for dispatch of an apprentice from an apprenticeship program
(for each apprenticeable craft or trade) by giving the program actual notice of M
at least 72 hours (business days only) before the date on which apprentices
are required. M
e. Contractors may use the "DAS-142" form for making a request for the
dispatch of an apprentice.
d. Contractors who are participating in an approved apprenticeship training E
program and who did not receive sufficient number of apprentices from their a
initial request must request dispatch of apprentices from ALL OTHER
apprenticeship committees in the project area in order to fulfill this E
requirement.
e. Contractor should maintain and submit proof (when requested) of its DAS- a
142 submittal to the apprenticeship committees (e.g. fax transmittal
confirmation). A Contractor has met its requirement to employ apprentices
only after it has successfully made a dispatch request to all apprenticeship
programs in the project area.
f. Only "registered" apprentices may be paid the prevailing apprentice rates
and must, at all times work under the supervision of a Journeyman (Cal.
Code Regs., tit 8, § 230.1).
Make Training Fund Contributions
17
Packet Pg.80
a. Contractors performing in apprenticeable crafts on public works projects,
must make training fund contributions in the amount established in the
prevailing wage rate publication for journeymen and apprentices.
b. Contractors may use the "CAC-2" form for submittal of their training fund
contributions.
c. Contractors who do not submit their training fund contributions to an
approved apprenticeship training program must submit their contributions to
the California Apprenticeship Council (CAC), PO Box 420603, San Francisco,
CA 94142-0603.
d. Training fund contributions to the CAC are due and payable on the 15th day
of the month for work performed during the preceding month.
e. The "training" contribution amount identified on the prevailing wage
determination shall not be paid to the worker, unless the worker falls within 4)
one of the exemption categories listed below.
3. Exemptions to Apprenticeship Requirements: °
Z
The following are exempt from having to comply with California apprenticeship c
requirements. These types of contractors do not need to submit a DAS-140, DAS- 0
142, make training fund contributions, or utilize apprentices.
a. When the Contractor holds a sole proprietor license ("Owner-Operator") and d
no workers were employed by the Contractor. In other words, the contractor
performed the entire work from start to finish and worked alone.
b. Contractors performing in non-apprenticeable crafts. "Apprentice able" crafts
are denoted with a pound symbol "#" in front of the craft name on the
prevailing wage determination.
c. When the Contractor has a direct contract with the Public Agency that is M
under $30,000.
d. When the project is 100% federally-funded and the funding of the project does E
not contain any city, CITY, and/or state monies (unless the project is
administered by a state agency in which case the apprenticeship
requirements apply).
E
e. When the project is a private project not covered by the definition of public
works as found in Labor Code section 1720. w
a
4. Exemption from Apprenticeship Ratios:
The Joint Apprenticeship Committee shall have the discretion to grant a certificate,
which shall be subject to the approval of the Administrator of Apprenticeship,
exempting the Contractor from the 1-to-5 ratio set forth in this Section when it
finds that any one of the following conditions are met:
18
Packet Pg.81
a. Unemployment for the previous three-month period in such area
exceeds an average of fifteen percent. (15%); or
b. The number of apprentices in training in such area exceeds a ratio of
1-to-5 in relation to journeymen; or
C. The Apprenticeable Craft or Trade is replacing at least one-thirtieth
(1/30) of its journeymen annually through apprenticeship training, either on
a statewide basis or on a local basis; or
d. If assignment of an apprentice to any work performed under the
Contract Documents would create a condition which would jeopardize such
apprentice's life or the life, safety or property of fellow employees or the
public at large, or if the specific task to which the apprentice is to be assigned
is of such a nature that training cannot be provided by a journeyman.
When such exemptions from the 1-to-5 ratio between apprentices and journeymen
are granted to an organization which represents contractors in a specific trade on a N
local or statewide basis, the member contractors will not be required to submit o
individual applications for approval to local Joint Apprenticeship Committees, Z
provided they are already covered by the local apprenticeship standards. N
L
0
5. Contractor's Compliance:
The responsibility of compliance with this Section for all Apprenticeable Trades or
Crafts is solely and exclusively that of the Contractor. All decisions of the Joint a,
Apprenticeship Committee(s) under this Section are subject to the provisions of
California Labor Code section 3081 and penalties are pursuant to Labor Code
section 1777.7 and the determination of the Labor Commissioner. _J
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