HomeMy WebLinkAbout2018-2081
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RESOLUTION NO. 2018-208
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
AKOMA UNITY CENTER FOR FACILITY USE OF ANNE SHIRRELLS
COMMUNITY CENTER AT 1367 NORTH CALIFORNIA STREET, SAN
BERNARDINO, CALIFORNIA FROM JULY 1, 2018 THROUGH JUNE 30, 2021
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the City Manager is hereby authorized to execute a lease agreement,
between the City of San Bernardino and Akoma Unity Center for the use of Anne Shirrells
Community Center, located at 1367 N. California Street, San Bernardino, CA 92411, a copy of
which is attached hereto, marked Exhibit "A" and incorporated herein by references as fully as
though set forth at length.
SECTION 2. The monthly rent shall be set as $1088.00 per month.
SECTION 3. That the authorization granted hereunder shall expire and be void and of
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
AKOMA UNITY CENTER FOR FACILITY USE OF ANNE SHIRRELLS
COMMUNITY CENTER AT 1367 NORTH CALIFORNIA STREET, SAN
BERNARDINO, CALIFORNIA FROM JULY 1, 2018 THROUGH JUNE 30, 2021
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 .15 th
day of August 2018, by the following vote, to wit:
Council Members:
MARQUEZ
BARRIOS
VALDIVIA
SHORETT
NICKEL
RICHARD
MULVIHILL
AYES
NAYS ABSTAIN ABSENT
`i-�
Georg Hanna, C C, City Clerk
The foregoing Resolution is hereby approved this 15a' day of August 2018.
Approved as to form:
Gary D. Saenz, City Attorney
By: Avkz')�- &WA"'
Lam'
R. Carey Davis Mayor
City of San Bgfnardino
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
DATE: August 28, 2018
Marion Vories
Parks, Recreation, and Community Services
Candice Alvarez, CMC, Deputy City Clerk
l RE: Transmitting Documents for Signature — Lease Agreement with Akoma Unity
Ccnter, Inc.
At the Mayor and City Council meeting of August 15, 2018 the City of San Bernardino adopted
Resolution No. 2018-208 authorizing the City Manager to execute a Lease Agreement between
the City of San Bernardino and Akoma Unity Center for facility use of the Anne Shirrells
Community Center at 1367 North California Street, San Bernardino, California from July 1,
2018 through June 30, 2021.
Attached are three (3) ORIGINAL agreements to be executed. Please obtain signatures in the
appropriate locations and return ONE ORIGINAL to Candice Alvarez in the City Clerk's
Office as soon as possible. Please also retain a copy of the fully executed document for your
records and forward the remaining copy to the appropriate party.
LEASE AGREEMENT
between the
CITY OF SAN BERNARDINO
and
AKOMA UNITY CENTER, INC.
CITY: CITY OF SAN BERNARDINO
290 North "D" Street
San Bernardino, CA 92418
LESSEE: AKOMA UNITY CENTER, INC.
985 Kendall Drive, Suite A319
P.O. Box 319
San Bernardino, CA 92407
PREMISE ADDRESS: Anne Shirrells Community Center
1367 North California Street
San Bernardino, CA 92411
TERM OF LEASE- Three (3) Years with Two (2) One-year Options
COMMENCEMENT: 09/15,2018
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1. PARTIES.
This lease AGREEMENT (the "AGREEMENT") is entered into this 15'h day of August 2018
("Effective Date"), by and between the Akoma Unity Center, Inc. ("LESSEE") a corporation
incorporated under the laws of the State of California and the City of San Bernardino a charter city
and municipal corporation ("CITY"). (Individually CITY and LESSEE may be referred to as a
"PARTY" and collectively CITY and LESSEE may be referred to as the "PARTIES")
2. PREMISES LEASED.
CITY leases to LESSEE and LESSEE leases from CITY the Anne Shirrells Community Center (the
"PREMISES"), a 4,200 square foot community center at Anne Shin -ells Park. The PREMISES is
located at 1367 N. California Street in the city of San Bernardino and the County of San Bernardino
and contains open recreation area, four (4) offices, restrooms and a break room.
3. TERM.
The AGREEMENT's initial term ("INITIAL TERM") shall commence Effective Date
("COMMENCEMENT DATE") and end on June 30, 2021 ("ENDING DATE").
4. RENT.
4.1 LEESSEE shall pay to CITY the following rental payments in advance on the first day of
each month, commencing on COMMENCEMENT DATE, and continuing through the
INITIAL TERM.
Year One (1) [commencement date through June 30, 20191 $1,008.00 per month
Year Two (2) [July 1, 2019 through June 30, 2020] $1,008.00 per month
Year Three (3) [July 1, 2020 through June 30, 2021] $1,008.00 per month
4.2 Rent for any partial month shall be prorated based on the actual number of days of the
month. CITY shall accept all rent and other payments from LESSEE under this
AGREEMENT via electronic funds transfer directly deposited into the CITY's
designated checking or other bank account or any other means mutually agreed upon by
the CITY and LESSEE. CITY shall provide to LESSEE all directions, information, and
forms necessary to process EFT payments.
5. OPTION TO EXTEND TERM.
CITY gives to LESSEE the option to extend the term of the LEASE on the same provisions and
conditions, except for monthly rent, for two (2) one-year periods ("EXTENDED TERMS") following
expiration of the INITIAL TERM, by LESSEE giving notice of its intention to exercise the option to
CITY within thirty (30) days' prior to the expiration of the preceding term or during any holding over
pursuant to SECTION 7, HOLDING OVER. The rent for each extended term shall be adjusted by
good faith negotiations of the PARTIES to the fair market rental rate then prevailing based on the
rental rates of comparable leased property in the City of San Bernardino. The extensions and monthly
rate adjustments will be pursuant to written authorization of the City Manager. This Agreement may
be terminated at any time upon thirty (30) days written notice by either party.
6. RETURN OF PREMISES.
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The LESSEE agrees that it will, upon termination of the AGREEMENT, return the PREMISES in
good condition and repair as the PREMISES now are or shall hereafter be put; reasonable wear and
tear accepted.
7. HOLDING OVER
In the event the LESSEE shall hold over and continue to occupy the PREMISES with the consent of
the CITY, whose consent shall only be given in writing, and may be pursuant to the written
authorization of the City Manager only, and in the sole discretion of CITY, the tenancy shall be
deemed to be a tenancy from month to month upon the same terms and conditions, including rent, as
existed and prevailed at the time of the expiration of the term of this AGREEMENT.
8. TAXES.
CITY shall pay all real property taxes, and general and special assessments levied and assessed
against the PREMISES.
9. USE.
LESSEE shall occupy and use the PREMISES during the term hereof exclusively for the operation of
the agreed upon Anne ShnTells Community Center Operations Plan and in compliance with all
federal, state and local laws. LESSEE shall provide the CITY verification that all staff, instructors,
and volunteers who will be working with minors have submitted to and passed Live -Scan background
checks prior to assignment and renewed annually.
10. HEALTH, SAFETY, AND FIRE CODE REQUIREMENTS.
10.1 CITY shall, at its sole expense, ensure that the PREMISES meets applicable requirements
of all Health, Safety, Fire and Building Codes, statues, regulations and ordinances for
public and governmental buildings including any requirements for a notice of completion,
certificate of occupancy, or California Title 24 requirements.
10.2 CITY shall, at its sole expense, ensure that the PREMISES meet the applicable
requirements of the Americans with Disabilities Act ("ADA").
11. SIGNS.
LESSEE will display from windows and/or marquee of the PREMISES only such sign or signs as are
not prohibited by law.
12. MAINTENANCE.
12.1 CITY shall, at its sole expense, perform such inspections, maintenance and repairs are
necessary to ensure that all portions of the PREMISES, including but not limited to the
following, are at all times in good repair and safe conditions;
12.1.1 The structural parts of the building an d other improvements that are a part of the
PREMISES, which structural parts include the foundations, bearing and exterior
walls (including glass and doors), subflooring, and roof; and,
12.1.2 The electrical, plumbing, and sewage systems, including, without limitations, those
portions of the systems, including, without limitation, those portions of the systems
owned or controlled by CITY lying outside the PREMISES; and,
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12.1.3 Window frames, gutters, and downspouts on the building and other improvements
that are part of the PREMISES; and,
12.1.4 Heating, ventilation and air conditioning (HVAC) systems servicing the PREMISES
including changing heating and air-conditioning filters every four (4) months; and,
12.1.5 The grounds, including all parking areas and outside lighting, grass, trees, shrubbery
and other flora; and,
12.1.6 LESSEE shall, at its sole expense, provide janitorial services, keep the interior of the
PREMISES in a clean and orderly condition, reasonable wear and tear excluded, and
undertake minor maintenance of the interior PREMISES such as unstoppage of
toilets and changing of light bulbs and servicing of the fire extinguisher or any other
fire suppression equipment attached to the facility.
12.1.7 LESSEE shall at regular intervals, but no less than monthly, conduct an inspection of
the PREMISES to determine if any maintenance or repair is necessary. LESSEE
shall communicate the necessity for maintenance or repair to the CITY in writing in
conformity with Section 24, NOTICE. If LESSEE gives notice to CITY of a
condition requiring maintenance or repair, CITY shall use its best efforts to diligently
commence the performance of its maintenance or repair obligations within a
reasonable time of receiving such notice. In the case of an emergency where
maintenance or repair must occur immediately and CITY is unable to perform its
obligation to maintain or repair immediately, LESSEE may perform maintenance or
repair. CITY shall deduct the sum of LESSEE's actual and reasonable expenses of
performing emergency maintenance or repair from LESSEE's future rental payments
until LESSEE is reimbursed in full upon presentation of receipts and/or other
documentation supporting the amount expended.
13. ALTERATIONS.
LESSEE shall not make any structural or exterior improvements or alterations to the PREMISES
without CTTY's consent. Any such alterations shall remain on and be surrendered with the
PREMISES on expiration or termination of the AGREEMENT.
14. FIXTURES.
LESSEE shall have the right during the term(s) of this AGREEMENT to install shelving and fixtures,
and make interior, non-structural improvements or alterations on the PREMISES. Such shelving,
fixtures, improvements, and alterations shall remain the property of the LESSEE and may be removed
by the LESSEE during the term(s) of this AGREEMENT or within a reasonable time thereafter,
provided that the LESSEE restores the PREMISES to the condition as it existed at the
commencement of this AGREEMENT, reasonable wear and tear excluded, or the LESSEE may elect,
with CITY'S written consent to be given at CITY'S sole discretion, to surrender all or any part of such
shelving, fixture, improvements and alterations, to the CITY, in which case LESSEE shall have no
duty to restore the PREMISES.
15. UTU ITIES.
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CITY shall furnish to the PREMISES and CITY shall pay all service charges and related taxes for
electric, gas, water, fire alarm services and all other utilities. LESSEE shall furnish and pay for its
own security, telephone, cable, internet services and will contract with Burrtec for trash services.
16. HOLD HARMLESS.
LESSEE agrees to and shall indemnify and hold the CITY, its elected officials, employees, agents or
representative, free and harmless from all claims, actions, damages and liabilities of any kind and
nature arising from bodily injury, including death, or property damage, based or asserted upon any
actual or alleged act or omission of LESSEE, its employees, agents, or subcontractors, arising,
relating to, or in any way connected with the performance under this AGREEMENT, unless the
bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected
officials, employees, agents or representative. As part of the foregoing indemnity, LESSEE agrees to
protect and defend at its own expense, including attorney's fees, the CITY, its elected officials,
employees, agents or representative from any and all legal actions based upon such actual or alleged
acts or omissions. LESSEE hereby waives any and all rights to any types of express or implied
indemnity against the CITY, its elected officials, employees, agents or representatives, with respect to
third party claims against the LESSEE relating to or in any way connected with the accomplishment
of work or performance of services under this AGREEMENT.
17. INSURANCE.
17.1 CITY is a self-insured public entity for the purposes of professional liability, general
liability, and workers' compensation.
17.2 LESSEE shall obtain and maintain during the life of the AGREEMENT all of the
following insurance coverage:
17.2.1 Comprehensive general liability, including premises -operations,
productsicompleted operations, broad form property damage blanket contractual
liability, fire, premises liability, and personal injury with a policy limit of not less
than One Million Dollars ($1,000,000.00), combined single limits, per
occurrence and aggregate.
17.2.2 Automobile liability for owned vehicles, hired and non -owned vehicles, with
policy limit of not less than One Million Dollars ($1,000,000.00), combined
single limits, per occurrence and aggregate.
17.23 Workers' compensation insurance as required by the State of California.
173 The comprehensive general liability insurance policy shall contain or be endorsed to
contain the following provision:
173.1 Additional insureds: "The City of San Bernardino and its elected and appointed
boards, officers, agents, and employees are additional insureds with respect to
this subject project and contract with City."
173.2 Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced, until thirty (30) days after written notice is given to City."
17.3.3 Other insurance: "Any other insurance maintained by the City of San Bernardino
shall be excess and not contributing with the insurance provided by this policy."
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17A LESSEE shall provide the CITY certificates of insurance showing the insurance
coverages and required endorsements described above, in a form and content approved
by CITY, prior to performing any services under this AGREEMENT.
17.5 Nothing in this Section shall be construed as limiting in any way, the indemnification
provision contained within this AGREEMENT, or the extent to which LESSEE may be
held responsible for payments of damages to persons or property.
18. DESTRUCTION OF PRENIISES.
18.1 During the term(s) of this AGREEMENT, if any casualty, other than resulting from
LESSEE's use of the PREMISES, renders a portion of the PREMISES unusable for the
purpose intended, then CITY shall, at CITY's sole expense, restore the PREMISES and
repair any damages caused by such casualty as soon as reasonable possible and this
AGREEMENT shall continue in full force and effect. If CITY does not commence the
restoration of the PREMISES in a substantial and meaningful way within thirty (30) days
following the CITY's receipt of written notice of the casualty, or should CITY fail to
diligently pursue completion of the restoration of the PREMISES, or if the time required
to restore the PREMISES is estimated to exceed ninety (90) days, LESSEE may, at its
option, terminate this AGREEMENT immediately upon written notice to the CITY. If
LESSEE elects to terminate this AGREEMENT pursuant to this section, LESSEE shall
be discharged from all future obligations under this AGREEMENT.
18.2 In the event there is a destruction of a portion of the PREMISES as set out in Subsection
18.1 above, there shall be an abatement or reduction in the rent between the date of the
destruction and the date of completion of the restoration or the date of termination of the
AGREEMENT, whichever comes first. The abatement or reduction in rent shall be in
proportion to the degree to which LESSEE's use of the PREMISES is impaired.
183 In the event the CITY is required to restore PREMISES as provided in Subsection 18.1
above, CITY shall not be required to restore any structure or exterior improvements or
alterations made to the PREMISES by LESSEE pursuant to Section 13, Alterations above
or any shelving, fixtures, or interior nonstructural improvement or alterations made by
LESSEE pursuant to Section 14, Fixtures above.
18.4 If any casualty resulting from LESSEE's use of the PREMISES renders the PREMISES
unusable for the purposes intended, or for any other purpose, then LESSEE shall, at
LESSEE's sole expense, restore the PREMISES and repair any damages caused by such
casualty as soon as reasonable possible and this AGREEMENT shall continue in full
force and effect.
18.5 It is the purpose and intent of Subsections 18.1 through 18.4, inclusive, to determine what
PARTY shall bear the initial responsibility for restoration of the PREMISES in the event
of any such destruction and not to determine the PARTY ultimately responsible for the
costs of such restoration.
19. CITY'S DEFAULT.
Except where another time limit is specifically provided, CITY shall be in default of this
AGREEMENT if CITY fails or refuses to perform any material provisions of this AGREEMENT and
such failure or refusal to perform is not cured within thirty (30) days following CITY's receipt of
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written notice of default from LESSEE. If the default cannot be reasonable cured within thirty (30)
days, CITY shall not be in default of this AGREEMENT if City commences to cure the default within
the thirty (30) day period and diligently and in good faith continues to cure the default.
20. LESSEE'S REMEDIES ON CITY'S DEFAULT.
LESSEE, at any time after CITY is in default, can terminate this AGREEMENT immediately upon
written notice to CITY or can cure the default. If LESSEE at any time, by reasons of CITY's default,
pays any sum or does any act that requires the payment of any sum, the sum paid by LESSEE shall
have the right to withhold from future rent due the sum LESSEE has paid until LESSEE is
reimbursed in full for the sum. The remedies set forth in this section are in addition to and do not in
any manner limit other remedies set forth in particular sections of this AGREEMENT.
21. LESSEE'S DEFAULT.
The occurrence of any one or more of the following event shall constitute a default of breach of this
AGREEMENT by LESSEE:
21.1 The vacating for more than thirty (30) consecutive days or abandonment of the
PREMISES by LESSEE.
21.2 The failure of LESSEE to perform any material provisions of this AGREEMENT to be
performed by LESSEE, including the payment of rent, upon written notice by the CITY
to LESSEE.
21.3 It is not the purpose of this section to extend the notice requirements of the unlawful
detainer statues in California.
22. CITY'S REMEDIES ON LESSEE'S DEFAULT.
It is not the purpose of this section to extend the notice requirements of the unlawful detainer statues
in California. The remedies contained herein are in addition to, and not in lieu of, any other remedies
available to CITY under relevant state law.
22.1 In the event of any default by LESSEE, which is not cured by LESSEE, CITY may at its
election, terminate this AGREEMENT by giving LESSEE thirty (30) days' notice of
termination.
22.2 On termination of this AGREEMENT for default pursuant to this section CITY shall
have the right to recover from LESSEE all amounts for any and all damages, which may
be the direct or indirect result of such default, including, but not limited to:
22.2.1 The worth, at the time of the award, of the unpaid rent that has been earned at the
time of the termination of the AGREEMENT; and,
22.2.2 The worth, at the time of the award, of the amount by which unpaid rent that
would have been earned after the date of termination of this AGREEMENT until
the time of award exceeds the amount of the loss of rent that CITY proves could
not have been reasonable avoided; and,
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22.2.3 The worth, at the time of the award, of the amount by which the unpaid rent for
the balance of the term after the time of award exceeds the amount of the loss of
rent that CITY proves could not have been reasonably avoided; and,
22.2.4 Any other amount of necessary to compensate the CITY for all detriment
proximately caused by LESSEE's default which CITY proves could not have
been reasonably avoided.
22.25 "The worth, at the time of the award", as used in this section is to be computed
by allowing interest at the maximum rate CITY is permitted by law to charge or
computed by discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of the award, plus one percent (1%).
23. CITY'S ACCESS TO PREMISES.
CITY and its authorized representative shall have the right to enter the PREMISES at all reasonable
times for any of the following conditions:
23.1 To determine whether the PREMISES are in good condition; and,
23.2 To do any necessary maintenance and to make any restoration to the PREMISES that
CITY has the right or obligation to perform; and,
23.3 To serve, post, or keep posted any notices required by law; and,
23A To show the PREMISES to prospective brokers, agents, buyers, tenants, lenders or
persons interested in an exchange, at any time during the term; and,
23.5 For any other lawful purpose.
CITY shall conduct its activities on the PREMISES as allowed in this section in a manner that will
reduce possible inconvenience, annoyance, or disturbance to LESSEE.
24. NOTICES
Any notices, documents, correspondence, or other communication concerning this AGREEMENT or
the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally
delivered the notice shall be deemed delivered at the time of personal delivery. If sent by U.S. Mail
the notice shall be deemed delivered forty-eight (40) hours after deposit in the U.S. Mail as reflected
by the official U.S. postmark.
TO THE CITY:
Jim Tickemyer, Director
City of San Bernardino Parks, Recreation and
Community Services
290 North D Street
San Bernardino, CA 92401
(909) 384-5233
TO THE LESSEE:
Kimberly Calvin, Executive Director
Akoma Unity Center
985 Kendall Drive, Suite A319
P.O. Box 319
San Bernardino, CA 92407
(909) 217-7956
Either PARTY may change the address for delivery of notices by sending notice of the change to the
other PARTY in conformity with this Section.
25. ASSIGNMENT.
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LESSEE shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any
part of the LESSEE's interest in this AGREEMENT without CITY's prior written consent. Any
attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach
of this AGREEMENT and cause for the termination of this AGREEMENT. Regardless of CITY's
Consent, no subletting or assignment shall release LESSEE of LESSEE's obligation to perform all
other obligations to be performed by LESSEE hereunder for the term of this AGREEMENT.
26. ENTIRE AGREEMENT.
This AGREEMENT constitutes the entire agreement and the understanding between the PARTIES,
and supersedes any prior agreements and understanding relating to the subject matter of this
AGREEMENT.
27. REMEDIES: WAIVER
All remedies available to either PARTY for one or more breaches by the other PARTY shall be
deemed cumulative and may be exercised separately or concurrently without waiver of any other
remedies.
The delay or failure of either PARTY to require performance or compliance of the other of any of its
obligations under this AGREEMENT shall in no way be deemed a waiver of those rights to require
such performance or compliance. No waiver of any provisions of this AGREEMENT shall be
effective unless made in writing and signed by a duly authorized representative of the PARTY against
whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall
not be deemed a waiver of such right or remedy with respect to any future occurrences or events and
shall not be deemed a continuing waiver.
28. AMENDMENT.
No amendment to this AGREEMENT will be effective unless it is in writing and signed by both
PARTIES.
29. SUCCESSORS AND ASSIGNS.
This AGREEMENT shall be binding on and inure to the benefit of the PARTIES to this
AGREEMENT and their respective heirs, representative, successors, and assigns.
30. SEVERABILITY
If any provision of this AGREEMENT is determined by a court of competent jurisdiction to be
invalid or unenforceable for any reason, such determination shall not affect the validity or
enforceability of the remaining terms and provisions hereof or of the offending provisions in any
other circumstance, and the remaining provisions of this AGREEMENT shall remain in full force and
affect.
31. T W IS OF THE ESSENCE.
Time is of the essence of each provision of this AGREEMENT which specifies a time within which
performance is to occur. In the absence of any specific time for performance, performance may be
within a reasonable time.
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32. QUIET ENJOYMENT.
Subject to the provisions of this AGREEMENT and conditioned upon performance of all the
provisions to be performed by LESSEE hereunder, CITY shall secure to LESSEE during the
AGREEMENT term the quiet and peaceful possession of the PREMISES and all rights and privileges
appertaining thereto.
33. PROVISIONS ARE COVENANTS AND CONDITIONS.
All provision, whether covenants or conditions, on the part of either PARTY shall be deemed both
covenants and conditions.
34. CONSENT.
Whenever consent or approval of either PARTY is required that PARTY shall not unreasonable
withhold, condition, or delay such consent or approval, unless the provision providing for such
consent or approval specifically provides such consent or approval may be given in the PARTY's
discretion.
35. EDITS.
All exhibits referred to are attached to this AGREEMENT and incorporated by reference.
36. LAW.
This AGREEMENT shall be governed and construed under the laws of the State of California without
giving effect to that body of laws pertaining to conflict of laws.
37. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this AGREEMENT
shall be tried and litigated either in the Superior Court of the Stat of California for the County of San
Bernardino or the United States District Court for the Central District of California, Riverside
Division. The aforementioned choice of venue is intended by the parties to be mandatory and not
permissive in nature.
38. ATTORNEY'S FEES AND COSTS.
In the event that litigation is brought by any PARTY in connection with this AGREEMENT, the
prevailing party shall be entitled to recover from the opposing party all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing PARTY in the exercise of any of its rights or
remedies hereunder or the enforcement of any of the terms, conditions or provisions enforcing this
AGREEMENT on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of
this section.
39. RIGHT TO TERMINATE.
This AGREEMENT may be terminated at any time by thirty (30) days written notice by either
PARTY for any reason or no reason. In the event that LESSEE terminates this AGREEMENT
pursuant to this section, the CITY shall have the right to receive from LESSEE only the rent which
would have been earned at the date of termination of this AGREEMENT.
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40. HEADINGS.
The subject headings of the sections of this AGREEMENT are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its provisions.
41. SURVIVAL.
The obligations of the PARTIES that, by their nature, continue beyond the term of the
AGREEMENT, will survive the termination of the AGREEMENT.
42. ESTOPPEL CERTIFICATE.
Each PARTY within thirty (30) days after notice from the other PARTY shall execute and deliver to
the other PARTY, in recordable form, a certificate stating that this AGREEMENT is unmodified and
in full force and effect, or in full force and effect as modified, and stating the modifications. The
certificate also shall state the amount of minimum monthly rent, the dates to which the rent has been
paid in advance, the amount of any security deposit or prepaid rent, and that there are not uncured
defaults or specifying in reasonable detail the nature of any uncured default claimed. Failure to
deliver this certificate within thirty (30) days shall be conclusive upon the PARTY requesting the
certificate any successor to the PARTY requesting the certificate, that this AGREEMENT is in full
force and effect and has not be modified except as may be represented by the PARTY requesting the
certificate, and that there are not uncured defaults on the part of the PARTY requesting the certificate.
43. PUBLIC RECORDS DISCLOSURE.
All information received by the CITY concerning this AGREEMENT, including the AGREEMENT
itself, may be treated as public information subject to disclosure under the provisions of the California
Public Records Act, Government Code Section 6250 et s (the "Public Records Act"). The
PARTIES understand that although all materials received in connection with this AGREEMENT are
intended for the exclusive use of the PARTIES, they are potentially subject to disclosure under the
provisions of the Public Records Act.
44. CONDITIONS OF PREMISES.
The CITY shall take reasonable efforts to deliver the PREMISES to LESSEE clean and free of debris
on the COMENCEMENT DATE but makes no warranty as to the condition of the PREMISES on
COMMENCEMENT DATE or the PREMISES' suitability for a particular use. LESSEE agrees that
it has not relied upon any representation by CITY as to the condition of the PREMISES or the
PREMISES' suitability for a particular use when determining whether to enter into this
AGREEMENT.
45. CONDEMNATION.
If any legally, constituted authority condemns the PREMISES or such part thereof which shall make
the PREMISES unsuitable for leasing, this AGREEMENT shall cease when the public authority takes
possession, and CITY and LESSEE shall account for rental as of that date. Such termination shall be
without prejudice to the rights of either PARTY to recover compensation from the condemning
authority for any loss or damage caused by the condemning authority.
46. MATERIAL REPRESENTATION.
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If during the course of the administration of this AGREEMENT, a PARTY determines that the other
PARTY has made a material misstatement or misrepresentation or that materially inaccurate
information has been provided to the PARTY, this AGREEMENT may be immediately terminated.
If this AGREEMENT is terminated according to this section, the terminating PARTY is entitled to
pursue any available legal remedies.
47. INTERPRETATIONS.
The PARTIES have participated jointly in the negotiation and drafting of this AGREEMENT. In the
event an ambiguity or question of intent or interpretation arises with respect to this AGREEMENT,
this AGREEMENT shall be construed as if drafted jointly by the PARTIES and in accordance with
its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party
by virtue of authorship of any of the provisions of this AGREEMENT.
48. COUNTERPARTS.
This AGREEMENT may be executed in counterparts, each of which shall be deemed to be an
original, but all of which taken together, shall constitute one and the same agreement. In the event
that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format file,
such signature shall create a valid and binding obligation of the PARTY executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf'
signature page were an original thereof.
49. CORPORATE AUTHORITY.
Each person executing this AGREEMENT on behalf of the PARTIES hereto warrant that they are
duly authorized to execute this AGREEMENT on behalf of said PARTIES and that by doing so; the
PARTIES hereto are formally bound to the provisions of this AGREEMENT.
50. ORDER OF PRECEDENCE.
In the event of any inconsistency or conflict in this AGREEMENT and any of the attached Exhibits or
Attachments, the terms set forth in this AGREEMENT shall prevail.
51. FORCE MAJEURE.
A PARTY shall not be liable for any failure or delay in the performance of this AGREEMENT for
the period that such failure or delay is due to causes beyond its reasonable control, including but not
limited to acts of God, war strikes or labor disputes, embargoes, governmental orders or any other
force majeure event.
52. COMPLIANCE WITH LAW.
LESSEE agrees to abide by all federal, state, and local laws, ordinances and regulations.
53. NON-DISCREtMATION.
In the performance of this AGREEMENT, use of the PREMISES, and in the hiring and recruitment
of employees, LESSEE shall not engage in, nor permit its officers, employees or agents to engage in,
discrimination in employment of persons because of their race, religion, color, national origin,
ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual
orientation, or any other status protected by law.
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[Signature page to follow]
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IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date
set forth below.
CITY OF SAN BERNARDINO
By: 2FU1,7
ndManager
Approved as to Legal Form:
GARY D. SAENZ, City Attorney
City of Som -Bernardino
By:
Date:
NDOR: /
by:
(Name)
Title:
Date:
ATTEST:
By `
Georgemudianna. CM , City Clerk
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