HomeMy WebLinkAbout2017-2121
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RESOLUTION NO. 2017-212
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA AUTHORIZING THE CITY MANAGER TO
EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO
AND SAN BERNARDINO COUNTY PRE-SCHOOL SERVICES AT THE DELMANN
HEIGHTS COMMUNITY CENTER, LOCATED AT 2969 N. FLORES STREET, SAN
BERNARDINO, CALIFORNIA
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO, CALIFORNIA AS FOLLOWS:
SECTION 1. That the Mayor and City Council hereby authorize the City Manager to
execute a Lease Agreement between the City of San Bernardino and San Bernardino County
Pre -School Services at Delmann Heights Community Center located at 2969 N. Flores Street,
San Bernardino, CA 92405, a copy of which is attached hereto, marked Exhibit "A" and
incorporated herein by reference as though set forth at length; and
SECTION 2 That the authorization granted hereunder shall expire and be void with
no further effect, if the agreement is not executed by both parties and returned to the office of
the City Clerk within sixty (60) days following the effective date of the Resolution.
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RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA AUTHORIZING THE CITY MANAGER TO
EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO
AND SAN BERNARDINO COUNTY PRE-SCHOOL SERVICES AT DELMANN
HEIGHTS COMMUNITY CENTER, LOCATED AT 2969 N. FLORES STREET, SAN
BERNARDINO CALIFORNIA.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting
thereof, held on the 1St day of November 2017, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
MARQUEZ X
BARRIOS X
VALDIVIA X(M)
SHORETT X(S)
NICKEL X
RICHARD X
MULVIHILL X
GeorgeannY anna, CM City Clerk
The foregoing Resolution is hereby approved this 1St day of November 201 .
R. Carey Davi ; Mayor
City of San ernardino
Approved as to form:
Gary D. Saenz, City Attorney
By.
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SAN BERNARDINO
COUNTY
Contract Number
ORIGINAL
Real Estate Services Department
SAP Number
Department Contract Representative Terry W. Thompson, Director
Telephone Number (909) 387-5252
Contractor
Contractor Representative
Telephone Number
Contract Term
Original Contract Amount
Amendment Amount
Total Contract Amount
Cost Center
City of San Bernardino
Andrea M. Miller, City Manager
(909) 384-5030
12/1/17 — 11/30/24
$165,636
N/A
$165,636
7810001000
Briefly describe the general nature of the contract: This Lease Contract is for
a period of Seven (7) years with one (1) three-year option period to extend. The
Leased premises consist of approximately 2,160 square feet of classroom and office
space and approximately 1,340 square feet of playground area. Initial rent for the
office and classroom space is approximately $1,858.00 per month, subject to
approximately two percent (291o) annual increases. CITY shall provide all maintenance
except minor interior maintenance. CITY is to provide utilities, trash, fire alarm service
and sewer. COUNTY shall pay for interior utilities. COUNTY to provide for its own
janitorial, telephone services, vending machines, and security.
Approved as to Legal Form
10, (See signature page)
Agnes I. Cheng, Deputy County Counsel
Dated:
Non -Standard Contract Coversheet Revised 10/05/17
COUNTY OF SAN BERNARDINO
LEASE AGREEMENT
CITY: CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, CA 92401
COUNTY: COUNTY OF SAN BERNARDINO
Real Estate Services Department
385 North Arrowhead Avenue, Third Floor
San Bernardino, CA 92415-0180
PREMISES: A total of approximately 3,500 square feet, compromising approximately
2,160 square feet of classroom and office space ("Interior Space") and
approximately 1,340 square feet of playground area, located at 2969 Flores
Street, San Bernardino, CA
TERM OF LEASE: Seven (7) years with one (1) three-year option to extend period
COMMENCEMENT DATE OF LEASE: December 1, 2017
INITIAL MONTHLY RENT: $1,858.00 (Interior Space only)
COUNTY CONTRACT NUMBER:
REV: 06-15-2017
TYPED:
TABLE OF CONTENTS
PARAGRAPH
CAPTION PAGE
1.
PARTIES........................................................................................................1
2.
PREMISES LEASED..................................................................................... l
3.
TERM.............................................................................................................1
4.
RENT..............................................................................................................1
5.
RESERVED.................................:..................................................................2
6.
OPTION TO EXTEND TERM.......................................................................2
7.
RETURN OF PREMISES..............................................................................2
8.
HOLDING OVER...........................................................................................2
9.
TAXES............................................................................................................3
10.
USE.................................................................................................................3
11.
HEALTH, SAFETY AND FIRE CODE REQUIREMENTS .........................3
12.
SIGNS.............................................................................................................3
13.
MAINTENANCE...........................................................................................3
14.
ALTERATIONS.............................................................................................5
15.
FIXTURES......................................................................................................5
16.
UTILITIES......................................................................................................5
17.
INDEMNIFICATION.....................................................................................6
18.
INSURANCE REQUIREMENTS AND SPECIFICATIONS ........................6
19.
DESTRUCTION OF PREMISES
...................................................................6
20.
CITY'S DEFAULT.........................................................................................7
21.
COUNTY'S REMEDIES ON CITY'S DEFAULT........................................8
22.
COT TNTY'S DEFAULT ...............................
23.
CITY'S REMEDIES ON COUNTY'S DEFAULT........................................8
24.
CITY'S ACCESS TO PREMISES
.................................................................8
25.
NOTICES........................................................................................................9
26.
INCORPORATION OF PRIOR AGREEMENT..........................................10
27.
WAIVERS....................................................................................................10
28.
AMENDMENTS..........................................................................................10
29.
SUCCESSORS.............................................................................................10
30.
SEVERABILITY..........................................................................................10
31.
TIME OF ESSENCE....................................................................................10
32.
QUIET ENJOYMENT..................................................................................10
33.
PROVISIONS ARE COVENANTS AND CONDITIONS ..........................10
34.
CONSENT....................................................................................................10
35.
EXHIBITS.....................................................................................................10
36.
LAW.............................................................................................................10
37.
VENUE.........................................................................................................11
38.
ATTORNEYS' FEES AND COSTS............................................................11
Table of Contents
Page -2-
PARAGRAPH CAPTION PAGE
39.
RESERVED..................................................................................................11
40.
PARTIES' RIGHT TO TERMINATE LEASE............................................11
41.
CITY'S IMPROVEMENTS.........................................................................11
42.
CAPTIONS, TABLE OF CONTENTS AND COVER PAGE.....................11
43.
SURVIVAL..................................................................................................12
44.
FORMER COUNTY OFFICIALS................................................................12
45.
BROKER'S COMMISSIONS......................................................................12
46.
ESTOPPEL CERTIFICATES.......................................................................12
47.
SUBORDINATION AND ATTORNMENT................................................12
48.
HAZARDOUS SUBSTANCES...................................................................13
49.
PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY ......................14
50.
CONDITION OF PREMISES......................................................................15
51.
CONDEMNATION......................................................................................15
52.
MATERIAL MISREPRESENTATION.......................................................15
53.
INTERPRETATIONS..................................................................................16
54.
AUTHORIZED SIGNATORS......................................................................16
EXHIBIT "A" Premises
EXHIBIT `B" County's Standards for Carpet/Flooring and Paint Replacement
EXHIBIT "C" List of Former County Officials
EXHIBIT "D" Estoppel Certificate
EXHIBIT `B" Subordination, Nondisturbance and Attomment Agreement
EXHIBIT "F" Prevailing Wage Requirements
LEASE AGREEMENT
1. PARTIES: This lease ("Lease") is made between the City of San Bernardino ("CITY"),
and the County of San Bernardino ("COUNTY"), who agree on the terms and conditions
contained in this Lease. CITY hereby represents and warrants to COUNTY that CITY 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, COUNTY shall
have the right to terminate this Lease with immediate effect and CITY shall indemnify, defend
(with counsel reasonably approved by COUNTY) and hold harmless COUNTY and its
employees, contractors, agents, and volunteers from any and all claims, actions, losses, damages
and/or liability arising out of said breach.
2. PREMISES LEASED:
A. CITY leases to COUNTY and COUNTY leases from CITY certain premises of
approximately 2,160 square feet of classroom and office space ("Interior Space") and 1,340
square feet of playground area (the "Premises"), comprising a portion of the building
("Building") located on the real property commonly known as 2969 Flores Street, San
Bernardino, California, 92401 ("Property"). The Premises is more particularly depicted in
Exhibit "A" Premises, attached hereto and incorporated herein by reference. The parties hereby
agree that the Premises shall not be re -measured at any time during the term of the Lease,
including any extensions thereof.
B. Along with the Premises, CITY grants to COUNTY, at no additional cost: (i) the
right to the exclusive use of six (6) parking spaces, and the non-exclusive use of 15 parking
spaces, including handicapped parking spaces for the clients, in the parking lot located on the
Property, (ii) the right to use any common areas of the Property and any improvements thereon;
and (iii) the right of ingress and egress to the Premises, the parking lot at the Property, and any
common areas of the Property.
3. TERM: Initial Term. The Lease's initial term ("Initial Term") shall commence on
December 1, 2017 ("Commencement Date") and end on November 30, 2024 ("Ending Date").
4. RENT:
A. Interior Space: COUNTY shall pay to CITY the following monthly rental
payments for the Interior Space in arrears not later than the last day of each month, commencing
when the Initial Term commences, continuing during the Initial Term.
December 1, 2017 thru November 30, 2018 - monthly payments of $1,858.00.
December 1, 2018 thru November 30, 2019 - monthly payments of $1,901.00.
December 1, 2019 thru November 30, 2020 - monthly payments of $1,922.00.
December 1, 2020 thru November 30, 2021 - monthly payments of $1,966.00.
December 1, 2021 thru November 30, 2022 - monthly payments of $2,009.00.
December 1, 2022 thru November 30, 2023 - monthly payments of $2,052.00.
December 1, 2023 thru November 30, 2024 - monthly payments of $2,095.00.
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The parties hereby acknowledge and affirm that, throughout the Initial Term of this Lease,
including any extensions thereof, rent shall be calculated on the Interior Space. Additionally, the
parties hereby acknowledge and affirm that the COUNTY has the right to the exclusive use of six
(6) parking spaces, and the non-exclusive use of 15 parking spaces, including handicapped
parking spaces for the clients in the common area parking lot at the Property at no additional cost
to COUNTY for the duration of the Initial Term, including any extensions thereof.
B. Rent for any partial month shall be prorated based on the actual number of days of
the month. CITY shall accept all rent and other payments from COUNTY under this Lease via
electronic funds transfer (EFT) directly deposited into the CITY's designated checking or other
bank account. CITY shall promptly comply with directions and accurately complete forms
provided by COUNTY required to process EFT payments.
C. CITY agrees and has registered through the San Bernardino County's Electronic
Procurement Network (ePro) system at https:/epro.sbcounty.gov/epro/ or the COUNTY's then
current procurement system.
5. RESERVED:
6. OPTION TO EXTEND TERM: CITY gives COUNTY the option to extend the term
of the Lease on the same provisions and conditions, except for the monthly rent, for one (1) three
year option period ("extended term") following expiration of the Initial Term, by COUNTY
giving notice of its intention to exercise the option to CITY prior to the expiration of the
preceding term or during any holding over pursuant to Paragraph 8, HOLDING OVER. The
rent for any extended term shall be adjusted by good faith negotiation of the parties to the fair
market rental rate then prevailing based upon the rental rates of comparable leased property in
San Bernardino.
If the parties have been unable to agree upon the said fair market rental rate within five (5)
months of the COUNTY's notice to exercise an option for an extended term, said fair market
rental rate shall be determined through arbitration conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. If the fair market rental rate is
determined by arbitration, the COUNTY has the right to terminate the Lease by giving
termination notice to the CITY within thirty (30) days of being notified of the new fair market
rental rate.
7. RETURN OF PREMISES: The COUNTY 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 excepted.
8. HOLDING OVER: In the event the COUNTY shall hold over and continue to occupy
the Premises with the consent of the CITY, expressed or implied, the tenancy shall be deemed to
be a tenancy from month-to-month upon the same terms and conditions, including rent, as
existed and prevailed at the time of the expiration of the term of this Lease. Notwithstanding
Paragraph 40 COUNTY'S RIGHT TO TERMINATE LEASE, either party shall have the right to
terminate the Lease with not less than ninety (90) days prior written notice to the other party
during any holdover tenancy.
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9. TAXES: CITY shall pay all real property taxes, and_ general and special assessments
levied and assessed against the Premises.
10. USE: COUNTY shall occupy and use the Premises during the term hereof for the
purposes of COUNTY business.
11. HEALTH, SAFETY AND FIRE CODE REQUIREMENTS:
A. Compliance with Code Requirements: As a condition precedent to the existence
of this Lease, CITY, at its sole expense will ensure the Premises meet the applicable
requirements of all Health, Safety, Fire and Building Codes, statutes, regulations, and ordinances
for public and governmental buildings, including any requirements for a notice of completion,
certificate of occupancy, California Title 24 requirements and the Americans with Disabilities
Act ("ADA"). Specifically, CITY must ensure there is an accessible path of travel from public
transportation to the Premises pursuant to Title 24. Additionally, CITY warrants that any
improvements on or in the Premises which have been constructed or installed by CITY or with
CITY's consent or at CITY's direction shall comply with all applicable covenants or restrictions
of record and applicable Codes, statutes, regulations, and ordinances in effect on the
Commencement Date. CITY also warrants to COUNTY that CITY has no knowledge of any
claim having been made by any governmental agency that a violation or violations of applicable
Codes, statutes, regulations, or ordinances exist with regard to the Premises as of the
Commencement Date. Should the continued occupancy of the Premises be in any way
prejudiced or prevented due to changes in the ADA or the Health, Safety, Fire and Building
Codes, statutes, regulations or ordinances for public and governmental buildings, the CITY shall
correct, update and comply with said changes at CITY's cost.
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, Building, or Property has not be
performed by a Certified Access Specialist, CITY's obligations under Paragraph I LA. shall
remain unchanged.
12. SIGNS: COUNTY will display from the windows and/or marquee of the Premises only
such sign or signs as are not prohibited by law.
13. MAINTENANCE:
A. Except as specifically provided in subparagraph 13D, below, CITY at its cost
shall perform such inspections, maintenance, and repairs as are necessary to ensure that all
portions of the Premises and the Property, including but not limited to the following, are at all
times in good repair and safe condition:
(1) The structural parts of the building and other improvements that are a part
of the Premises, which structural parts include the foundations, bearing and exterior walls
(including glass and doors), subflooring, and roof, and,
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(2) The electrical, plumbing, and sewage systems, including, without
limitation, those portions of the systems owned or controlled by CITY lying outside the
Premises; and,
(3) Window frames, gutters, and downspouts on the Building and other
improvements that are a part of the Premises; and,
(4) Heating, ventilation and air conditioning (HVAC) systems servicing the
Premises (additionally, air-conditioning and heating filters are to be changed quarterly. Upon
commencement of this lease agreement and every three (3) years thereafter, CITY is to provide
an air balance certificate and maintenance of HVAC servicing); and,
(5) The grounds of the Property, including all parking areas and outside
lighting, grass, trees, shrubbery and other flora; and,
(6) The servicing of fire extinguishers or any other fire suppression equipment
attached to the Building; and,
(7) Maintenance. Maintenance must be performed in a workman -like manner
by licensed and qualified independent contractors. CITY shall perform maintenance at a time
and in manner that will cause the least possible inconvenience, annoyance, or disturbance to
COUNTY. CITY shall follow the carpet manufacture's maintenance requirements and maintain
the carpet manufacturer's warranty for the carpet.
B. During the seventh year of the Initial Term and during every seventh year
thereafter of the Term, including any extensions thereof, the COUNTY may at its option, replace
the existing carpet and flooring throughout the Premises with new carpeting and flooring (where
such carpeting and flooring then exist) that meets the COUNTY carpet and flooring standards,
which are described in Exhibit "B"; in which event, the CITY agrees to provide COUNTY with a
rent credit in the amount equal to the cost to replace the carpet throughout the Premises. In each
instance that the COUNTY opts to replace the carpet in accordance with this Paragraph 13.B.,
the COUNTY shall obtain three (3) competitive bids from local licensed and bonded carpet
vendors for all material, labor, and installation for the carpet replacement and furniture moving
costs and provide said bids to the CITY. The amount of the rent credit shall be the lowest of the
competitive bids received, which credit shall be applied toward rents due to CITY in the month
immediately following completion of the carpet replacement and to the rent due to the CITY for
each month thereafter until the credit is fully exhausted.
C. During the third year of the Initial Term and during every third year thereafter of
the Term, including any extensions thereof, the COUNTY may at its option, repaint the entire
interior of the Premises, meeting the criteria described in Exhibit `B"; in which event, the CITY
agrees to provide COUNTY with a rent credit in the amount equal to the cost to repaint the entire
interior of the Premises. In each instance that the COUNTY opts to repaint the entire interior of
the Premises in accordance with this Paragraph 13.C., the COUNTY shall obtain three (3)
competitive bids from local licensed and bonded paint vendors for all material and labor for the
repainting and furniture moving costs and provide said bids to the CITY. The amount of the rent
credit shall be the lowest of the competitive bids received, which credit shall be applied toward
rents due to the CITY in the month immediately following completion of the painting and to the
rent due to the CITY for each month thereafter until the credit is fully exhausted.
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D. Without in any way affecting CITY's duty to inspect, maintain, and repair the
Premises and regardless of whether any specific notice of need for maintenance or repair is
provided to CITY by the COUNTY, the COUNTY may request specific maintenance or repairs.
Any such request may be made orally, by telephone or otherwise. If, (a) COUNTY gives notice
to CITY of a condition requiring maintenance or repairs, and CITY 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 COUNTY has given notice to CITY, CITY does not
immediately perform its obligations, COUNTY can perform the obligations and have the right to
be reimbursed for the sum COUNTY actually and reasonably expends (including charges for
COUNTY employees and equipment) in the performance of CITY's obligations. The sum
expended by COUNTY shall be due from CITY to COUNTY within five (5) days of notice of
such sum, and if paid at a later date shall bear interest at the maximum rate the COUNTY is
permitted by law to charge from the date the sum was paid by COUNTY until COUNTY is
reimbursed by CITY. If CITY fails to reimburse COUNTY as required by this paragraph,
COUNTY shall have the right to withhold from future rent due the sum COUNTY has paid until
COUNTY is reimbursed in full for the sum and interest on it. The remedies set forth in this
paragraph are in addition to and do not in any manner limit other remedies set forth in particular
paragraphs of this Lease. COUNTY shall forward to CITY receipts and/or documentation
supporting the amount withheld.
E. COUNTY, at its cost, shall provide: (1) janitorial services for the Interior Space,
and keep the interior of the Interior Space in a clean and orderly condition, reasonable wear and
tear excluded, (2) minor interior maintenance for the Interior Space limited specifically to
changing light bulbs and unclogging toilets to the extent caused by COUNTY and (3) inspection,
maintenance and repairs of the County -owned playground equipment on the playground area.
14. ALTERATIONS: COUNTY shall not make any structural or exterior improvements or
alterations to the Premises without CITY's consent. Any such alterations shall remain on and be
surrendered with the Premises on expiration or termination of the Lease.
15. FIXTURES: COUNTY 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
COUNTY and may be removed by the COUNTY during the term(s) of this Lease or within a
reasonable time thereafter, provided that the COUNTY restores the Premises to the condition as
it existed at the commencement of this Lease, reasonable wear and tear excluded, or the
COUNTY in its sole discretion may elect to surrender all or any part of such shelving, fixture,
improvements and alterations to the CITY, in which case COUNTY shall have no duty to restore
the Premises. Any such election to surrender must be in writing, but need not be accepted by
CITY to be effective.
16. UTILITIES: CITY shall furnish to the Premises electric, gas, water, sewer, trash, fire
alarm service and all other utilities ("Utilities"). COUNTY shall pay all service charges and
related taxes for Utilities to the extent incurred for the Interior Space and CITY shall pay all
service charges and related taxes for all other Utilities for the Building and Property. COUNTY
shall furnish and pay for its own security, vending machines, and telephone service.
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17. INDEMNIFICATION:
A. The CITY agrees to indemnify, defend and hold harmless the COUNTY, its
authorized officers, agents, volunteers and employees, from any and all claims, demands, actions,
losses, damages, Liability, and/or for any costs or expenses incurred by the COUNTY arising out
of. (a) any improvements constructed by the CITY pursuant to the Lease; (b) the CITY's acts and
omissions in connection with its ownership of the property, (c) the use of common areas and
leasehold spaces other than the Premises; and (d) toxic waste and environmental contamination
not resulting from the COUNTY's use of the Premises, except where such indemnification is
prohibited by law. The CITY's indemnification obligation applies to the COUNTY's "active" as
well as "passive" negligence, but does not apply to the COUNTY's "sole negligence" or "willful
misconduct" within the meaning of Civil Code section 2782. The CITY's indemnification
obligation shall survive the COUNTY's tenancy. The insurance provisions in Paragraph 18,
INSURANCE REQUIREMENTS AND SPECIFICATIONS, shall not be interpreted in a
manner that limits the indemnification obligations. The parties agree that CITY's obligation to
defend pursuant to this Paragraph 17 shall: (a) either be handled by qualified attorney(s) in the
City Attorney's office or by third -party defense counsel selected by the City Council and
reasonably approved by COUNTY; and (b) whether handled by the City Attorney's office or by
approved third -party defense counsel, CITY shall obtain COUNTY's written approval prior to
entering into any settlement or other resolution of the claim(s) giving rise to the indemnity
obligation.
B. The COUNTY agrees to indemnify and hold harmless the CITY, and its officers,
employees, agents and volunteers from any and all damages for injury to persons and damage to
property arising out of the sole negligence of the COUNTY, its officers, employees, agents, or
volunteers in connection with this contract.
C. In the event COUNTY and/or the CITY is found to be comparatively at fault for
any claim, action, loss or damage which results from their respective obligations under the Lease,
the COUNTY and/or CITY shall indemnify the other to the extent of its comparative fault.
18. INSURANCE REQUIREMENTS AND SPECIFICATIONS: CITY is a self-insured
public entity for purposes of general liability, property insurance, automobile liability, and
workers' compensation. The CITY represents and warrant that through it program of self-
insurance, the CITY has adequate coverage or resources to protect against liabilities arising out
of the performance of the terms, conditions, or obligations of this Lease.
19. DESTRUCTION OF PREMISES:
A. During the term of this Lease, if any casualty renders a portion of the Premises
unusable for the purpose intended, then CITY shall, at CITY's expense, restore the Premises and
repair any damages caused by such casualty as soon as reasonably possible and this Lease shall
continue in full force and effect. If CITY does not commence the restoration of the Premises in a
substantial and meaningful way within thirty (30) days following the CITY's receipt of written
notice of the casualty, or should CITY fail to diligently pursue completion of the restoration of
the Premises, or if the time required to restore the Premises is estimated to exceed ninety (90)
days, COUNTY may, at its option, terminate this Lease immediately upon written notice to the
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CITY. If COUNTY elects to terminate this Lease pursuant to this provision, COUNTY shall be
discharged of all future obligations under this Lease. Alternatively, if CITY fails to commence
the restoration of the Premises or fails to diligently pursue the completion of the restoration as
aforesaid, COUNTY may, at its option and in its sole discretion, after notice to CITY, perform
CITY's obligations and restore the Premises. If COUNTY elects to restore the Premises,
COUNTY shall have the right to be reimbursed for all sums it actually and reasonably expends
(including charges for COUNTY employees and equipment) in the performance of CITY's
obligations. The sum paid by COUNTY shall be due from CITY to COUNTY within fourteen
(14) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate
the COUNTY is permitted by law to charge from the date the sum was paid by COUNTY until
COUNTY is reimbursed by CITY. If CITY fails to reimburse COUNTY as required by this
paragraph, COUNTY shall have the right to withhold from future rent due the sum COUNTY
has paid until COUNTY is reimbursed in full for the sum and interest on it. The remedies set
forth in this paragraph are in addition to and do not in any manner limit other remedies set forth
in particular paragraphs of this Lease. COUNTY shall forward to CITY 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 of termination of this Lease,
whichever comes first. The abatement or reduction of the rent shall be in proportion to the
degree to which COUNTY's use of the Premises is impaired.
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 destruction, CITY
agrees to use any and all insurance proceeds received for said destruction in the restoration of the
Premises.
D. In the event CITY is required to restore the Premises as provided in this
paragraph, CITY shall restore, at CITY's expense, any structural or exterior improvements or
alterations to the Premises made by COUNTY pursuant to Paragraph 14, ALTERATIONS, of
this Lease, but shall not be responsible for restoring any shelving, fixtures, or interior
nonstructural improvements or alteration made by the COUNTY pursuant to Paragraph 15,
FIXTURES, of this Lease.
E. It is the purpose and intent of this paragraph to determine who shall bear the
initial responsibility for restoration of the Premises in the event of any such destruction and not
to determine the party ultimately responsible for the costs of such restoration.
20. CITY'S DEFAULT: Except where another time limit is specifically provided, CITY
shall be in default of this Lease if CITY fails or refuses to perform any material provisions of this
Lease and such failure or refusal to perform is not cured within thirty (30) days following CITY's
receipt of written notice of default from COUNTY. If the default cannot reasonably be cured
within thirty (30) days, CITY shall not be in default of this Lease if CITY continences to cure the
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default within the thirty (30) day period and diligently and in good faith continues to cure the
default.
21. COUNTY'S REMEDIES ON CITY'S DEFAULT: COUNTY, at any time after CITY
is in default, can terminate this Lease immediately upon written notice to CITY or can cure the
default at CITY's cost. If COUNTY at any time, by reason of CITY's default, pays any sum or
does any act that requires the payment of any sum (including charges for COUNTY's employees
and equipment), the sum paid by COUNTY shall be due from CITY to COUNTY within five (5)
days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the
COUNTY is permitted by law to charge from the date the sum was paid by COUNTY until
COUNTY is reimbursed by CITY. If CITY fails to reimburse COUNTY as required by this
paragraph, COUNTY shall have the right to withhold from future rent due the sum COUNTY
has paid until COUNTY is reimbursed in full for the sum and interest on it. The remedies set
forth in this paragraph are in addition to and do not in any manner limit other remedies set forth
in particular paragraphs of this Lease.
22. COUNTY'S DEFAULT: The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by COUNTY:
A. The vacating for more than thirty (30) consecutive days or abandonment of the
Premises by COUNTY.
B. The failure by COUNTY to perform any material provisions of this Lease to be
performed by COUNTY, including the payment of rent, where such failure shall continue for a
period of thirty (30) days after notice by CITY to COUNTY; provided, however, that if the
nature of COUNTY's default is such that more than thirty (30) days are reasonably required for
its cure, then COUNTY shall not be deemed to be in default if COUNTY commences such cure
within said thirty (30) day period and thereafter diligently prosecutes such cure to completion.
The purpose of this notice requirement is to extend the notice requirements of the unlawful
detainer statutes of California.
23. CITY'S REMEDIES ON COUNTY'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
CITY to exercise any and all remedies available 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 circumstances to accelerate the Rent or otherwise declare any Rent not then in
Default to be immediately due and payable. Each and every covenant hereof to be kept and
performed by the COUNTY is expressly made a condition and upon the breach thereof the CITY
may, at its option, terminate this Lease. In the event of such Event of Default, the COUNTY
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 CITY only at the same time and in the same manner as provided
for the payment of Rent.
24. CITY'S ACCESS TO PREMISES: CITY and its authorized representatives shall have
the right to enter the Premises at all reasonable times for any of the following purposes:
A. To determine whether the Premises are in good condition; and,
0
B. To do any necessary maintenance and to make any restoration to the Premises that
CITY has the right or obligation to perform; and
C. To serve, post, or keep posted any notices required by law; and,
D. To post "for sale" signs at any time during the term, to post "for rent" or "for
Lease" signs during the last three (3) months of the term; and,
E. To show the Premises to prospective brokers, agents, buyers, tenants, lenders or
persons interested in an exchange, at any time during the term.
CITY shall conduct its activities on the Premises as allowed in this paragraph in a manner that
will cause the least possible inconvenience, annoyance, or disturbance to COUNTY.
25. NOTICES:
A. Any notice, demand, request, consent, approval, or communication that either
parry desires or is required to give to the other party or any other person shall be in writing and
either served personally or sent by United States mail, postage prepaid, certified or registered,
return receipt requested or reputable overnight courier. Any notice, demand, request, consent,
approval, or communication that either party desires or is required to give to the other party shall
be addressed to the other party at the address set forth below. Either party may change its address
by notifying the other party of the change of address. Notices shall be deemed delivered and
effective upon the earlier of (i) actual receipt or (ii) the date of delivery or refusal of the
addressee to accept delivery if such notice is sent by or United States mail, postage prepaid,
certified or registered, return receipt requested or reputable overnight courier.
CITY's address: CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, CA 92401
COUNTY's address: County of San Bernardino
Real Estate Services Department
385 North Arrowhead Avenue, Third Floor
San Bernardino, CA 92415-0180
B. If, at any time after the COUNTY accepts the Premises, the CITY assigns or
transfers a non -controlling interest of its rights in the Premises to a third party, CITY must notify
COUNTY of its action at least fifteen (15) COUNTY working days prior to completing any such
action.
C. If, at any time after the COUNTY accepts the Premises, the CITY assigns or
transfers a controlling interest of its rights in the Premises to a third party, CITY must notify
COUNTY of its action at least fifteen (15) COUNTY working days prior to completing any such
action. The new owner must provide COUNTY with evidence of completion of such action.
The parties shall immediately execute an amendment to this Lease stating the change of
ownership of the Premises.
D
(1) Within fifteen (15) COUNTY working days of completing any action
which affects a change in the ownership of the Premises, the new owner must provide COUNTY
evidence of obtaining insurance in compliance with Paragraph 17, INDEMNIFICATION and
Paragraph 18, INSURANCE REQUIREMENTS AND SPECIFICATIONS.
26. INCORPORATION OF PRIOR AGREEMENT: This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreement or understanding pertaining to any such matter shall be effective for any
purpose.
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.
28. AMENDMENTS: No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successor in interest,
expressing by its terms an intention to modify this Lease.
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.
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 COUNTY hereunder, CITY shall secure to
COUNTY during the Lease term the quiet and peaceful possession of the Premises and all right
and privilege appertaining thereto.
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: Except as otherwise expressly provided in the relevant paragraph of the
Lease, 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 incorporated by
reference.
36. LAW: This Lease shall be construed and interpreted in accordance with the laws of the
State of California.
10
37. VENUE: The parties acknowledge and agree that this Lease was entered into and
intended to be performed in San Bernardino County, California. The parties agree that the venue
for any action or claim brought by any party to this Lease will be the Superior Court of
California, County of San Bernardino. 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
Lease, the parties hereto agree to use their best efforts to obtain a change of venue to the Superior
Court of California, County of San Bernardino.
38. ATTORNEYS' FEES AND COSTS: If any legal action is instituted to enforce or
declare any party's rights hereunder, each party, including the prevailing party, must bear its own
costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees
directly arising from any third party legal action, including such costs and attorneys' fees payable
under Paragraph 17, INDEMNIFICATION, Paragraph 48, HAZARDOUS SUBSTANCES,
and Paragraph 49, PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY.
39. RESERVED:
40. PARTIES' RIGHT TO TERMINATE LEASE: Each Party shall have the right to
terminate this Lease at any time whenever either Party, in its sole discretion, determines it would
be in each party's respective best interests to terminate this Lease. Notice of termination
pursuant to this paragraph must be provided at least ninety (90) days prior to the date of
termination. The COUNTY's Director of the Real Estate Services Department is authorized to
provide such termination notice on behalf of the COUNTY. In the event either Party terminates
this Lease pursuant to this Paragraph 40, no termination fees, reimbursement for Improvements,
or other costs shall be due or payable to either Party for exercising its termination right, except
that CITY shall have the right to receive from COUNTY the rent which will have been earned
under the Lease through the effective termination date.
41. CITY'S IMPROVEMENTS: There are no improvements being constructed by the
CITY as of the commencement date of the Initial Term of this Lease Agreement. In the event that
COUNTY desires to make improvements in the Premises subsequent to the execution of this
Lease Agreement and the parties agree that the CITY shall contract for the construction of any
portion of any future improvement, requested by the COUNTY, subject to COUNTY
reimbursing CITY for such improvements, CITY shall comply with the California Public
Contract Code Sections 22000 through 22045 regarding bidding procedures and Labor Code
Section 1720.2 and 1770 et seq. regarding general prevailing wages, including the provisions set
forth in Exhibit "I"' attached hereto and incorporated herein by reference. CITY shall indemnify
and hold harmless COUNTY and its officers, employees, and agents from any claims, actions,
losses, damages, and/or liability arising out of the obligations set forth in this paragraph. The
CITY's indemnity obligations shall survive the COUNTY's tenancy and shall not be limited by
the existence or availability of insurance.
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.
44. FORMER COUNTY OFFICIALS: CITY agrees to provide or has already provided
information on former COUNTY administrative officials (as defined below) who are employed
by or represent CITY. The information provided includes a list of former COUNTY
administrative officials who terminated COUNTY employment within the last five years and
who are now officers, principals, partners, associates, or members of the business. The
information should also include the employment and/or representative capacity and the dates
these individuals began employment with or representation of your business. For purposes of
this provision, "COUNTY administrative official" is defined as a member of the Board of
Supervisors or such officer's staff, COUNTY Administrative Officer or member of such officer's
staff, COUNTY department or group head, assistant department or group head, or any employee
in the Exempt Group, Management Unit or Safety Management Unit. (See Exhibit "C", List of
Former County Officials.)
45. BROKER'S COMMISSIONS: CITY is solely responsible for the payment of any
commissions to any broker who has negotiated or otherwise provided services in connection with
this Lease.
46. ESTOPPEL CERTIFICATES: Each party within thirty (30) days after notice from the
other party, shall execute and deliver to other party, in recordable form, a certificate stating that
this Lease is unmodified and in full force and effect, or in full force and effect as modified, and
stating the modifications. The certificate also shall state the amount of minimum monthly rent,
the dates to which the rent has been paid in advance, the amount of any security deposit or
prepaid rent, and that there are no uncured defaults or specifying in reasonable detail the nature
of any uncured default claimed. Failure to deliver the certificate within thirty (30) days shall be
conclusive upon the party requesting the certificate and any successor to the party requesting the
certificate, that this Lease is in full force and effect and has not been modified except as may be
represented by the party requesting the certificate, and that there are no uncured defaults on the
part of the party requesting the certificate. The estoppel certificate shall be in the form as shown
in Exhibit "D", Estoppel Certificate.
47. SUBORDINATION AND ATTORNMENT:
A. As a condition precedent to the COUNTY's obligations under this Lease, CITY
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 COUNTY as those set forth in paragraph 2 ("Nondisturbance") of Exhibit "E",
Subordination, Nondisturbance and Attomment 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 that encumbrance if, and
only if, CITY first obtains from the subsequent lienor an executed subordination, nondisturbance
and attornment agreement, the terms of which are at least as favorable to the County as those set
forth in Exhibit "E", Subordination, Nondisturbance and Attornment Agreement hereto. If the
COUNTY's County Counsel approves the form of a subordination, nondisturbance and
12
attornment agreement pursuant to this subparagraph, and if such agreement is executed by the
subsequent lienor, then the Director of the COUNTY's Real Estate Services Department is
authorized on behalf of the COUNTY to, 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 other documents are consistent with the terms of the subordination,
nondisturbance and attomment agreement and this Lease.
48. HAZARDOUS SUBSTANCES:
A. CITY hereby represents and warrants that, to the best of CITY's knowledge,
information and belief. (i) the Premises and the property on which the Premises forms a part of
have not been exposed to Hazardous Substances and are presently free of all Hazardous
Substances; (ii) neither the CITY nor any of the other current tenants, if any, on the property of
which the Premises forms a part is in violation or subject to an existing, pending or threatened
investigation by any governmental authority under any applicable federal, state or local law,
regulation, ordinance or other legislation pertaining to air, water, or soil quality or the handling,
transportation, storage, treatment, usage or disposal of Hazardous Substances; (iii) any handling,
transportation, storage, treatment or use of toxic or Hazardous Substances to date has been in
compliance with applicable laws; and (iv) no reportable use has occurred on the Premises and the
property on which the Premises forms a part of to date, and the soil, groundwater and vapor on or
under the Premises and the property on which the Premises forms a part of is free of Hazardous
Substances as of the Commencement Date.
B. CITY shall indemnify, protect, defend (with counsel reasonably approved by
COUNTY), and hold COUNTY, its agents and employees and the Premises, harmless from and
against any and all losses and/or damages, liabilities, judgments, costs, claims, expenses,
penalties, including attorneys' and consultant's fees, arising out of or involving the existence of
any Hazardous Substances located in, about or under the Premises and the property on which the
Premises forms a part of: (i) prior to the Commencement Date of this Lease; and (ii) not caused
by COUNTY during the term, including any extended terms. Additionally, the issuance of an
order by any governmental authority directing the CITY or any of CITY's other tenants or
licensees on the property of which the Premises forms a part to cease and desist any illegal action
in connection with a Hazardous Substance, or to remediate a contaminated condition caused by
the CITY or any person acting under CITY's direct control and authority is a breach of this
Contract, and CITY shall be responsible for all costs and expenses of complying with such order,
including any and all expenses imposed on or incurred by COUNTY in connection with or in
response to such order. CITY's obligations under this paragraph shall include, but shall not be
limited to, the effects of any contamination or injury to person, property or the environment
created or suffered by COUNTY, and the cost of investigation, removal, remediation, restoration
and/or abatement thereof. CITY's obligations under this provision shall survive the expiration or
early termination of this Lease. No termination, cancellation or release agreement entered into by
COUNTY and CITY shall release CITY from its obligations under this Lease with regard to
Hazardous Substances unless specifically agreed to by COUNTY in writing.
C. For the purposes of this paragraph, the following definitions shall apply:
(1) "Hazardous Substance," as used in this Lease, shall mean any product,
substance or waste whose presence, use, manufacture, disposal, transportation, or release, either
by itself or in combination with other materials expected to be on the Premises and the property
13
on which the Premises forms a part of, is either (i) potentially injurious to the public health,
safety or welfare, the environment or the Premises and the property on which the Premises forms
a part of; (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential
liability of CITY or COUNTY under any applicable statute or common law theory.
(2) "Reportable use" shall mean (i) the installation or use of any above- or
below -ground storage tank; (ii) the generation, possession, storage, use, transportation or disposal
of a Hazardous Substance that requires a permit from, or with respect to which a report, notice,
registration or business plan is required to be filed with any governmental authority and/or (iii)
the presence at the Premises and the property on which the Premises forms a part of a Hazardous
Substance with respect to which any Applicable Requirements requires that a notice be given to
persons entering or occupying the Premises and the property on which the Premises forms a part
of or neighboring properties.
(3) The term "applicable requirements" shall be deemed to refer to all
applicable laws, covenants or restrictions of record, building codes, regulations and ordinances.
49. PUBLIC RECORDS DISCLOSURE• CONFIDENTIALITY:
A. All information received by the COUNTY from the CITY or any source concerning
Us Lease, including the Lease itself, maybe treated by the COUNTY as public information subject
to disclosure under the provisions of the California Public Records Act, Government Code Section
6250 et seq. (the "Public Records Act"). CITY understands that although all materials received by
the COUNTY in connection with this Lease are intended for the exclusive use of the COUNTY,
they are potentially subject to disclosure under the provisions of the Public Records Act. In the
event a request for disclosure of any part or all of any information which a CITY has reasonably
requested COUNTY to hold in confidence is made to the COUNTY, the COUNTY shall notify the
CITY of the request and shall thereafter disclose the requested information unless the CITY, within
five (5) days of receiving notice of the disclosure request, requests nondisclosure, provides
COUNTY a legally sound basis for the nondisclosure, and agrees to indemnify, defend, and hold
the COUNTY harmless in any/all actions brought to require disclosure. CITY waives any and all
claims for damages, lost profits, or other injuries of any and all kinds in the event COUNTY fails to
notify CITY of any such disclosure request and/or releases any information concerning this Lease
received from the CITY or any other source.
B. Confidentiality. CITY acknowledges that the premises will be used by COUNTY
for the processing and storage of confidential information protected from unlawful access and
disclosure by federal, state, and local laws. COUNTY and its officers, agents, volunteers, and
employees, agree to comply with relevant federal, state, and local laws pertaining to the security
and protection of such confidential information while on the premises. CITY agrees that it will
prevent any unlawful access to or disclosure of the confidential information by CITY, its officers,
agents, volunteers, employees and contractors. CITY agrees that all entities with which CITY
contracts to provide services on the premises will prevent any unlawful access or disclosure of
the confidential information, and that said entities will agree to the same in writing. CITY
acknowledges that any unlawful access to or disclosure of confidential information may result in
the imposition of civil and criminal sanctions.
14
50. CONDITION OF PREMISES: CITY shall deliver the Premises to COUNTY clean and
free of debris on the Commencement Date and warrants to COUNTY that the plumbing,
electrical systems, fire sprinkler system, lighting, air conditioning and heating systems and
loading doors, if any, in the Premises shall be in good operating condition on the Commencement
Date.
51. CONDEMNATION:
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 COUNTY's parking, is taken by
condemnation, COUNTY may, at COUNTY's option, to be exercised in writing within thirty
(30) days after CITY shall have given COUNTY written notice of such taking (or in the absence
of such notice, within thirty (30) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes such possession.
If COUNTY does not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining, except that the rent
shall be reduced in the same proportion as the rentable floor area of the Premises taken bears to
the total rentable floor area of the Premises. No reduction of rent shall occur if the condemnation
does not apply to any portion of the Premises. COUNTY shall be entitled to make a separate
claim in the Condemnation proceeding for: (i) The taking of the amortized or undepreciated
value of any trade fixtures or leasehold improvements owned by COUNTY that COUNTY has
the right to remove at the end of the Lease term and that COUNTY elects not to remove; (ii)
Reasonable removal and relocation costs for any trade fixtures or leasehold improvements that
COUNTY has the right to remove and elects to remove (if Condemnor approves of the
removal); (iii) Loss of goodwill; (iv) Relocation costs under Government Code section 7262, the
claim for which COUNTY may pursue by separate action independent of this Lease; and (v) Any
other amount in addition to the foregoing that the COUNTY is allowed under condemnation law.
B. COUNTY shall have the right to negotiate directly with Condemnor for the
recovery of the portion of the Award that COUNTY is entitled to under subparagraph (B) of
this paragraph. In the event that this Lease is not terminated by reason of such condemnation,
CITY shall repair any damage to the Premises caused by such condemnation authority pursuant
to Paragraph 13, MAINTENANCE, and Paragraph 19, DESTRUCTION OF PREMISES.
52. MATERIAL MISREPRESENTATION:
A. If during the course of the administration of this lease, the COUNTY determines
that the CITY has made a material misstatement or misrepresentation or that materially
inaccurate information has been provided to the COUNTY, this Lease may be immediately
terminated. If this Lease is terminated according to this provision, the COUNTY is entitled to
pursue any available legal remedies.
B. If during the course of the administration of this lease, the CITY determines that
the COUNTY has breached any of the COUNTY's representations and warranties set forth in
15
this Lease, such breach shall be subject to the provisions of Paragraph 22, COUNTY'S
DEFAULT.
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.
54. AUTHORIZED SIGNATORS: Both parties to this Lease represent that the signators
executing this document are fully authorized to enter into this agreement.
END OF LEASE TERMS.
[Signatures on Following Page]
16
COUNTY OF SAN BERNARDINO
Robert A. Lovingood, Chairman
Board of Supervisors
Date: -NOV 14 2017
SIGNED AND
A COPY OF
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Approved as to Legal Form:
JEAN-RENE BASLE, County Counsel
San Bernardino County, California
By:� `[
Agnes Cheng, Deputy C my C nsel
Date: (0—(0—(7
110568.13
17
CITY OF SAN BERNARDINO
By: U
Andrea M. Miller
Title: City Manager
Date: Id R /1'7
Approved as to form:
Gary D. Saenz, City Attorney
City of San Bernardino
By:=::_ -V -4 � —
Jo a rider, Chief Assistant City
ttorney
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EXHIBIT "B"
COUNTY'S STANDARDS FOR CARPET/FLOORING AND PAINT REPLACEMENT
1. COUNTY REPLACEMENT PAINT STANDARDS:
a. Two coats interior latex semi -gloss paint, Dunn -Edwards or COUNTY approved
equal;
b. Color: Swiss Coffee or COUNTY approved equal;
c. Semi -gloss for kitchen and restrooms.
2. COUNTY REPLACEMENT CARPET/FLOORING STANDARDS:
a. Carpet:
i. High-density carpet squares. SHAW or COUNTY approved equal;
ii. Installation to be as per manufacturer recommendations, using approved
adhesives and seam sealers, as applicable to maintain manufacturer's
warranty,
iii. Color: Dark.
b. Rubber Base:
i. 4 -inch rubber carpet base Burke or COUNTY approved equal;
ii. Color to be approved by COUNTY.
C. Vinyl Flooring:
i. Luxury Vinyl Tiles shall be installed in employee lounge, storage, and
equipment rooms.
19
EXHIBIT "C"
LIST OF FORMER COUNTY OFFICIALS
INSTRUCTIONS: List the full name of the former COUNTY Administrative Official, the
title/description of the Official's last position with the COUNTY, the date the Official
terminated COUNTY employment, the Official's current employment and/or
representative capacity with the CITY, the date the Official entered CITY's employment
and/or representation.
OFFICIAL'S NAME: REQUIRED INFORMATION
1
To:
EXHIBIT "D" - ESTOPPEL CERTIFICATE
(address) (city)
The undersigned ("County") hereby certifies as follows:
Date:
1. County is in possession of ,
California (the "Premises"). County leases the Premises under a written Lease agreement dated
, 20 , Lease Agreement No. (the "Lease"), wherein County is the
lessee or tenant, and , ("Owner") is the lessor or CITY.
2. The Lease is in full force and effect and has not been amended, supplemented or
changed, except as follows:
3. The term of the Lease commenced on , 20 , and is scheduled
to expire , 20—. County has no right or option to renew or extend the term of the
Lease except as to the following: (--j -year options.
4. County's current monthly rental is $ _, payable on the last day of each
month.
5. County currently has no security deposit with Owner.
6. County is not in default under the terms of the Lease and no condition exists
which, with the passage of time or the giving of notice, or both, would constitute such a default.
To the best of County's knowledge, Owner is not in default under the terms of the Lease, and no
condition exists which, with the passage of time or the giving notice, or both, would constitute
such a default.
7. County hereby certifies that the foregoing is true and correct.
By:
Director
Real Estate Services Department
1
RECORDED AT REQUEST OF
AND TO BE RETURNED TO:
Attn:
EXHIBIT "E"
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
("Agreement") is entered into by and between the County of San Bernardino ("Tenant"),
._ ("CITY") and,
(Name and type of entity)
Recitals
("Lender").
A. Tenant entered into a certain Lease Agreement, County Contract No. _-
dated as of , 20 (the "Lease"), between Tenant, as lessee, and CITY, 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 "Property"). CITY may also be referred to as "Borrower".
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 CITY.
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 contemporaneously herewith
(the "Deed of Trust"), encumbering the Property to secure the Loan.
1
D. It is a condition precedent to the Loan that the Deed of Trust shall unconditionally
be and remain at all times a lien 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 Borrower enter into
the Loan.
Covenants
In consideration of the recitals set forth above and the covenants and agreements contained
herein, the parties agree as follows:
1. Subordination: Tenant hereby subordinates all of Tenant's right, title, interest, and
leasehold estate in and to the Premises to the lien, operation, and effect of the Deed of Trust.
2. Nondisturbance: Tenant's peaceful and quiet possession of the Premises shall not
be disturbed and Tenant's rights and privileges under the Lease, 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,"
"COUNTY'S RIGHT TO TERMINATE LEASE," and "CONDEMNATION," shall not be
diminished by 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 governing secured loans. Tenant shall not be named or
joined in any foreclosure, 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 CITY 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 promises to pay the rent to Lender as CITY. 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 CITY 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.
2
5. Acknowledmnent of Assignment: Tenant acknowledges and consents to the
assignment of CITY's rights under the Lease to Lender pursuant to a certain Assignment of Leases
(the "Assignment"). Tenant shall pay rent to Lender upon receipt of written notice from Lender
that Lender has revoked the waiver of CITY's right to receive the rents from the Premises pursuant
to the Assignment, notwithstanding the fact that Lender has not foreclosed the Deed of Trust, nor
succeeded to the interest of CITY under the Lease. Tenant shall not be liable to CITY for any
payments made to Lender hereunder.
6. Assip=ent or Sublease: Tenant may assign or sublease all or any 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. 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 removed
without damage to the Premises, or unless such subordination is required by the Lease.
7. Notices: Tenant shall deliver to Lender a copy of all notices, requests, or demands
delivered by Tenant to CITY in accordance with this Paragraph. Tenant shall also deliver to Lender
any and all notices, demands, or requests received by Tenant from CITY 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 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: County of San Bernardino
Real Estate Services Department
385 North Arrowhead Avenue, Third Floor
San Bernardino, California 92415-0180
to CITY:
Attn:
3
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 similar mail receptacle) by giving notice of such change
of address in accordance herewith.
8. CITY's Default: Tenant hereby agrees that Tenant will notify Lender in writing, in
accordance with Paragraph 7, Notices, above, of any default by CITY under the terms of the Lease.
Except for CITY's defaults under Paragraph 3, TERM, of the Lease, relating to CITY'S failure to
meet the Critical Completion Dates as set forth in Paragraph 41, LANDLORD'S
IMPROVEMENTS, if Lender elects within such thirty (30) day period to foreclose on the Deed of
Trust, 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 which to cure such default. If any
default by CITY is cured within the time periods described above, Tenant shall have no right to
terminate the Lease by virtue of such default.
9. Binding Effect: This Agreement shall be binding upon the parties and 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 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
G!
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 venue to the
Superior Court of California, County of San Bernardino.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
written below.
Tenant:
COUNTY OF SAN BERNARDINO:
Chairman, Board of Supervisors
Date:
SIGNED AND CERTIFIED THAT
A COPY OF THIS DOCUMENT
HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD
Clerk of the
Board of Supervisors
Deputy
Date:
Approved as to Legal Form:
County Counsel
San Bernardino County, California
By: _
Deputy
Date:
5
Lender:
By:
(Name) - -
Title:
Date:
CITY:
CITY OF SAN BERNARDINO
By:
Title:
Date:
Approved as to Legal Form:
, City Attorney
City of San Bernardino
By:
Assistant City Attorney
Date:
EXHIBIT "F"
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the CITY 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 CITY or CITY's contractor and/or subcontractors.
1. Determination of Prevailing Rates:
Pursuant to Labor Code sections 1770, et seq., the County has obtained from the Director of the
Department of Industrial Relations (DIR) pursuant to the California Labor Code, the general
prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the
locality in which the CITY Improvements is to be performed. Copies of said rates are on file
with the County, will be made available for inspection during regular business hours, may be
included elsewhere in the specifications for the CITY Improvements, and are also available
online at www.dir.ca.gov. The wage rate for any classification not listed, but which may be
required to execute the CITY Improvements, shall be commensurate and in accord with specified
rates for similar or comparable classifications for those 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 with the requirements of Labor Code sections 1773, et seq.
2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the CITY 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.
3. Prevailing Rate Penalty
The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the County 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 CITY 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.
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
Co
project shall be returned to the County. The Contractor shall be responsible for the payment of
wages to workers of a debarred subcontractor who has been allowed to work on the CITY
Improvements.
5. Payroll Records:
Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall
keep accurate certified payroll records, showing the name, 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 with the CITY Improvements. The payroll records enumerated herein shall be
verified by a written declaration made under penalty of perjury that the 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 CITY
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 following basis:
(1) A certified copy of an employee's payroll record shall be made available for
inspection or furnished to such employee or his/her authorized representative on
request;
(2) A certified copy of all payroll records shall be made available for inspection or
furnished upon request to the County, the Division of Labor Standards Enforcement
of the DIR;
(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 County or the Division of Labor Standards
Enforcement. If the requested payroll records have not been previously provided to
the County 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
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 County 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 CITY Improvements
shall not be marked or obliterated. The Contractor shall inform the County of the
location of payroll records, including the street address, city and county and shall,
within five (5) working days, provide a notice of a change of location and address.
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The Contractor shall have ten (10) days from receipt of the written notice specifying 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 ten (10) day period, the Contractor
shall, as a penalty to the County, forfeit one -hundred dollars ($100.00) for each calendar day, or
portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the
Division of Labor Standards Enforcement, such penalty shall be withheld from any portion of the
payments then due or to become due to the Contractor.
6. Limits on Hours of Work:
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 time of service of any worker
employed at any time by the Contractor or by a subcontractor, upon the CITY Improvements or
upon any part of the CITY 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 Labor Code section 1815. Notwithstanding the foregoing provisions, work performed by
employees of Contractor or any subcontractor, in excess of eight (8) 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 (I V2) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the County a penalty of twenty-five dollars ($25.00) for each worker
employed on the CITY 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 Labor Code, unless compensation to the worker so employed by the Contractor is not
less than one and one-half (1 %2) times the basic rate of pay for all hours worked in excess of eight
(8) hours per day.
S. Senate Bill 854 (Chapter 28, Statutes of 2014) Requirements:
(1) Contractor shall comply with Senate Bill 854 (signed into law on November 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 or perform
work on a public works project (awarded on or after April 1, 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 DIR.
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.
i. The certified payroll must be submitted at least monthly to the Labor
Commissioner.
ii. The County reserves the right to require Contractor and all 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.
(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) Beginning December 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 December 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:
(A) Workers' Compensation coverage that meets the requirements of
Division 4 (commencing with Section 3200) and includes sufficient coverage
for any worker whom the contractor employs to perform work that is subject
to prevailing wage requirements other than a contractor who is separately
registered under this section. Coverage may be evidenced by a current and
valid certificate of workers' compensation Insurance or certification of self-
insurance required under Section 7125 of the Business and Professions Code.
(B) If applicable, the contractor is licensed in accordance with Chapter 9
(commencing with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or
the state for any assessment of back wages or related damages, interest, fines,
or penalties pursuant to any final judgment, order, or determination by a court
or any federal, state, or local administrative agency, including a confirmed
arbitration award. However, for purposes of this paragraph, the contractor
9
shall not be disqualified for any judgment, order, or determination that is
under appeal, provided that the contractor has secured the payment of any
amount eventually found due through a bond or 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), 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.
(c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision
(a) on or before the expiration of any prior period of registration shall be prohibited from
bidding on or engaging in the performance of any contract for public work until once again
registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the
contractor may renew its registration retroactively by paying an additional nonrefundable
penalty renewal fee equal to the amount of the renewal fee within 90 days of the due date of
the renewal fee.
(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 the director pursuant to Section 1773.5
or a court decision, the requirements of this section shall not apply, subject to the following
requirements:
(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 work that the
determination or decision subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a
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 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.
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(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 detennination or decision referred to in paragraph (2) of this subdivision.
(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 bid
invitations and public works contracts, and a bid shall not be accepted nor any contract or
subcontract entered into without proof of the contractor or subcontractor's current registration
to perform public work pursuant to Section 1725.5.
(c) An inadvertent error in listing a subcontractor who is not registered pursuant to Section
1725.5 in a bid proposal shall not be grounds for filing a bid protest or grounds for
considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening.
(2) Within 24 hours after the bid opening, the subcontractor is registered and has paid
the penalty registration fee specified in subparagraph (E) of paragraph (2) of
subdivision (a) of Section 1725.5.
(3) The subcontractor is replaced by another registered subcontractor pursuant to
Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be registered to perform public work as required by
subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the
contractor, with the consent of the awarding authority, to substitute a subcontractor who is
registered to perforin 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.
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(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 in Section
1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the
awarding body.
(B) In a format prescribed by the Labor Commissioner.
(4) The department shall undertake those activities it deems necessary to monitor and
enforce compliance with prevailing wage requirements.
(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:
(c)
(1) The awarding body has enforced an approved labor compliance program, as
defined in Section 1771.5, 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.
(2) The awarding body has entered into a collective bargaining agreement that binds
all contractors performing work on the project and that includes a mechanism for
resolving disputes about the payment of wages.
(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.
(B) Projects for which the initial contract is awarded on or after April 1, 2015.
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(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:
The Contractor is responsible for compliance with Labor Code section 1777.5 and the California
Code of Regulations, title 8, sections 230 — 230.2 for all apprenticeable occupations (denoted
with 'T" symbol next to craft name in DIR Prevailing Wage Determination), whether employed
by the Contractor, 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; (2) pay training fund contributions for each apprenticeable hour employed on the
Contract; and (3) utilize apprentices in a minimum ratio of not less than one apprentice hour for
each five journeyman hours 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.
Any apprentices employed to perform any of the CITY 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 under apprenticeship standards and written apprenticeship agreements
under California Labor Code sections 3070 et seq. are eligible to be employed for the CITY
Improvements. The employment and training of each apprentice shall be in accordance with the
provisions of the apprenticeship standards and apprentice agreements under which such
apprentice is training.
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.
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.
c. 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
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apprenticeship program sponsors in the area of your public works project. For a listing of
apprenticeship programs see http://www.dir.ca.gov/Databases/das/pwaddrstart.asp.
Employ Registered Apprentices
a. Labor Code section 1777.5 requires that a contractor performing work in an
"apprenticeable" 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. "Apprenticeable" crafts are denoted with a pound
symbol' #" in front of the craft name on the prevailing wage determination.
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 at least 72 hours (business days
only) before the date on which apprentices are required.
c. 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 program and
who did not receive sufficient number of apprentices from their initial request must
request dispatch of apprentices from ALL OTHER apprenticeship committees in the
project area in order to fulfill this requirement.
e. Contractor should maintain and submit proof (when requested) of its DAS-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
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 one of the exemption categories
listed below.
3. Exemptions to Apprenticeship Requirements:
The following are exempt from having to comply with California apprenticeship requirements.
These types of contractors do not need to submit a DAS-140, DAS-142, make training fund
contributions, or utilize apprentices.
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a. When the Contractor holds a sole proprietor license ("Owner -Operator") and 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. "Apprenticeable" 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 under $30,000.
d. When the project is 100% federally -funded and the funding of the project does not
contain any city, county, and/or state monies (unless the project is administered by a state
agency in which case the apprenticeship requirements apply).
e. When the project is a private project not covered by the definition of public works as
found in Labor Code section 1720.
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:
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 j ourneyman.
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 local or statewide basis, the
member contractors will not be required to submit individual applications for approval to local
Joint Apprenticeship Committees, provided they are already covered by the local apprenticeship
standards.
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 App renticesh'iP
Committee(s) under this Section are subject to the provisions
3081 and penalties are pursuant to Labor Code section 1777.7
Commissioner.
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of California Labor Code section
and the determination of the Labor