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HomeMy WebLinkAbout18-Parks & Recreation CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Kevin Hawkins, Director SUBJECT: Resolution authorizing the City Manager to execute a Lease Agreement between the City of San Bernardino and the Authority for the Handicapped of San Bernardino County for the lease of property at 8088 Palm Lane. MlCC Meeting Date: October 15, 2007 e Dept: Parks, Recreation & Community Services Department Date: September 25, 2007 Synopsis of Previous Council Action: October 23,1978 - Resolution No. 78-708 adopted authorizing the creation of the Authority for the Handicapped of San Bernardino County which is the property owner of the Center for Individual Development ( C.LD.). The City became a member of the Authority for the Handicapped by this Council Action. The term of the agreement is for forty years. September 15, 1981 - Resolution No. 81-403 adopted authorizing execution of a lease agreement with the Authority for the Handicapped to occupy the C.LD. November 6, 1995 - Resolution No. 95-388 adopted authorizing execution of a 5-year lease with the Authority for the Handicapped to occupy the C.LD. October 16, 2000 - Resolution No. 2000-307 adopted authorizing execution ofa 5-year lease with the Authority for the Handicapped to occupy the C.LD. Recommended Motion: e Adopt Resolution. Contact person: Ken Joswiak Phone: 384-5426 Supporting data attached: StafTRop"rt Ro," & 1''''0 Afroomont Ward: FUNDING REQUIREMENTS: Amount: $41,000 lease payments for balance ofFY 07/08 Source: (Acct. No.) Account Number 001-000-4520 (Acct. Description) Land and Building Rental Finance: Council Notes: A..." ,,.,. N.. -1.'li~ e e e e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subiect: Resolution of the Mayor and Common Council authorizing the City Manager to execute a Lease Agreement between the City of San Bernardino and the Authority for the Handicapped of San Bernardino County for the lease of property known as 8088 Palm Lane on behalf of the City of San Bernardino Parks and Recreation Department. Backnound: The Parks, Recreation and Community Services Department has leased space at the Center for Individual Development (C.I.D.) since November 1980. The Department operates therapeutic recreation programs for people with disabilities at the C.LD. These are vital programs that improve the quality of life of people with various disabilities, including physical disabilities, developmental disabilities and senior citizens. Programs include after-school programs for youth with disabilities and therapeutic exercise in the warm water swimming pool for people with physical disabilities and for senior citizens. During the past fiscal year, the C.LD. had a total attendance of 26,000, including people with disabilities, their families and friends that received the benefits ofC.LD. programs. The City has been a primary partner and member in the Authority for the Handicapped Joint Powers Authority since 1978. The City's long-standing commitment began in 1978 with a contractual agreement that extends to the year 2018. The Agreement identifies the City as a member of the Authority for the Handicapped Joint Powers Authority. The Authority for the Handicapped JP A owns the C.LD. facility. The previous lease expired in June 2005; since that time, the C.I.D. has been operating on a month-to-month basis at a cost of $4,250 per month while the parties negotiated the terms of the lease. The County Department of Behavioral Health left the C.LD. in June 2005, after having participated at the C.LD. for 25 years. Since that time, there have been ongoing negotiations and discussions concerning the County's involvement at the C.LD. County Supervisor Josie Gonzales visited the facility on a number of occasions, and as a result, she garnered the necessary support for the County's continuing partnership with the City at the C.LD. The term of the new Lease Agreement is November I, 2007 through October 31, 20 II. There are two five-year lease options available pursuant to the terms of this Agreement. Financial Imoact: The Lease Agreement calls for an increased lease payment of $5,125 per month beginning November 1,2007 through October 31, 2008. The increased lease payment is to cover the costs e e e balance ofFY 2007/08 is $41,000. The additional cost for this Fiscal Year is $7,000, which will be absorbed in. the current budget. The Parks, Recreation and Community Services budget will have to be adjusted for Fiscal Year 2008/2009. Pursuant to the terms of the Lease Agreement, lease payments for the period November 1, 2008 through October 31, 2009 will be $5,253 per month; for November 1, 2009 through October 31, 2010, payment will be $5,384; and for the period of November I, 2010 through October 31, 2011, monthly lease payments will be $5,519. Reeommendation: Adopt Resolution. e e 1 2 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF 4 SAN BERNARDINO AND THE AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY FOR THE LEASE OF PROPERTY KNOWN AS 8088 PALM 5 LANE ON BEHALF OF THE CITY OF SAN BERNARDINO PARKS AND 6 RECREATION DEPARTMENT. 7 8 3 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized to execute a Lease Agreement 9 10 between the City of San Bernardino and the Authority for the Handicapped of San Bernardino 11 County for the lease of property known as 8088 Palm Lane on behalf of the City of San 12 Bernardino Parks and Recreation Department, a copy of which is attached hereto. marked 13 Attachment" A" and incorporated herein by reference as fully as though set forth at length. 14 SECTION 2: The term of the Lease is four years, commencing on November 1. 2007, SECTION 3. The authorization granted hereunder shall expire and be void and of no 18 further effect if the agreement is not executed by both parties and returned to the office of the 19 City Clerk within one hundred twenty (120) days following the effective date of the resolution. 1 e 2 3 4 5 6 7 8 9 10 e e RESOLUTION OF THE MAYOR AND COMMON COUNcn. AUTHORlZlNG THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN TBECITY OF SAN BERNARDINO AND THE AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY FOR THE LEASE OF PROPERTY KNOWN AS 8088 PALM LANE ON BEHALF OF THE CITY OF SAN BERNARDINO PARKS AND RECREATION DEPARTMENT. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of ,2007, by the following vote, to wit: Council Members: AYES NA YS ABSTAIN ABSENT ESTRADA 11 BAXTER 12 BRINKER 13 14 DERRY 15 KELLEY 16 17 18 19 20 JOHNSON MC CAMMACK Rachel G. Clark, City Clerk 21 22 The foregoing resolution is hereby approved this day of ,2007. 23 24 Approved as to form: 25 26 27 28 Patrick J. Morris, Mayor City of San Bernardino James F. Penman, City Attorney By:J~. f-.Per-~ ,I J e e e Attachment A CITY OF SAN BERNARDINO LEASE AGREEMENT AUTHORITY: AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY % David Kennedy, Chainnan 8088 Palm Lane San Bernardino CA 92410 CITY: CITY OF SAN BERNARDINO PREMISES: 8088 Palm Lane San Bernardino, CA 92410 TERM OF LEASE: Four years with two (2) five-year period options. COMMENCEMENT DATE OF LEASE: November 1,2007 COST PER SQUARE FOOT: $.33 full service CITY CONTRACT NUMBER: File: S: Parks & Reo: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e TABLE OF CONTENTS PARAGRAPH CAPTION 1 PARTIES 2 PREMISES LEASED 3 TERM 4 RENT 5 EXPANSION OF RENTAL SPACE 6 OPTION TO EXTEND TERM 7 RETURN OF PREMISES 8 HOLDING OVER 9 TAXES 10 USE 11 HEALTH, SAFETY & FIRE CODE REQUIREMENTS 12 SIGNS 13 MAINTENANCE 14 ALTERATIONS 15 FIXTURES 16 UTILITIES 17 HOLD HARMLESS 18 INSURANCE 19 DESTRUCTION OF PREMISES 20 AUTHORITY'S DEFAULT 21 CITY'S REMEDIES ON AUTHORITY'S DEFAULT 22 CITY'S DEFAULT 23 AUTHORITY'S REMEDIES ON CITY'S DEFAULT 24 AUTHORITY'S ACCESS TO PREMISES 25 NOTICES 26 INCORPORATION OF PRIOR AGREEMEJ\'T 27 WAIVERS 28 AMENDMENTS 29 SUCCESSORS 30 SEVERABILITY 31 TIME OF ESSENCE 32 QUIET ENJOYMENT 33 PROVISIONS ARE COVENANTS & CONDITIONS 34 CONSENT 35 EXHIBITS 36 LAW 37 VENUE 38 ATTORNEYS' FEES AND COSTS 39 RESERVED 40 COUNTY'S RIGHT TO TERMINATE LEASE 41 AUTHORITY'S IMPROVEMENTS 42 CAPTIONS, TABLE OF CONTENTS & COVER PAGE 43 SURVIVAL . 44 FORMER CITY OFFICIALS PAGE 1 1 1 1 1 2 2 2 2 2 2 3. 3 4 4 4 4 5 6 7 8 8 8 9 9 10 10 10 10 10 10 11 11 11 11 11 11 11 11 11 11 11 12 12 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e Table of Contents Page -2- 45 46 47 48 49 50 51 52 BROKER'S COMMISSIONS HAZARDOUS SUBSTANCES PUBUC RECORDS DISCLOSURE CONDmON OF PREMISES CONDEMNATION MATERIAL MISREPRESENTATION INTERPRETATIONS AUTHORIZED SIGNATORS 12 12 13 13 13 14 14 14 Exhibit "A", Janitorial Services Exhibit "B", List of Former City's Officials File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e LEASE AGREEMENT WHEREAS, the City of San Bernardino ("CITY") has previously entered into an agreement which created a joint power entity, the Authority for the Handicapped of San Bernardino County ("AUTHORITY"); and, WHEREAS, the CITY and AUTHORITY, are individually a "Party" and collectively "the Parties"; NOW THEREFORE, the Parties agree as follows: 1. PARTIES: This lease ("Lease") is made between the AUTHORITY, as landlord, and the CITY, as tenant, who agree as follows: 2. PREMISES LEASED: AUTHORITY leases to CITY and CITY leases from AUTHORITY 15500 square feet of building, real property, and other improvements, with adequate parking spaces, including handicapped parking, located at 8808 Palm Lane, San Bernardino, CA, 92410 ("Premises"). 3. TERM: The Lease's initial term ("Initial Term") shall commence on November 1,2007 ("Commencement Date") and end on October 31, 20 II ("Ending Date"). 4. RENT: a. CITY shall pay to AUTHORITY the following monthly rental payments in arrears on the last day of each month, commencing when the term commences, continuing during the term: November I, 2007 thru October 31, 2008 - monthly payments of$5,125. November 1,2008 thru October 31, 2009 - monthly payments of$5,253. November I, 2009 thruOctober 31, 2010 - monthly payments of$5,384. November 1,2010 thru October 31, 2011 - monthly payments of$5.519. b. Rent for any partial month shall be prorated based on the actual number of days of the month. All rent shall be paid to AUTHORITY at the address to which notices to AUTHORITY are gIven. c. If the CITY has accepted the Premises as Substantially Completed with minor corrections and/or additions remaining to be completed, only eighty percent (80%) of the monthly rental will be paid to AUTHORITY, and the remaining twenty percent (20%) of the monthly rental will accrue from the Commencement Date of this Lease but will not be paid to AUTHORITY until all such minor corrections and/or additions have been completed and accepted by CITY. If the CITY withholds monthly rental payments under this subparagraph, the CITY will not be in default and no interest or service charges will be added to the amounts due AUTHORITY upon completion of the minor corrections and/or additions. The minor corrections and/or additions remaining to be completed are subject to subparagraph 13b, MAINTENANCE. 5. EXPANSION OF RENTAL SPACE: There is no expansion space in this Lease. 1 File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: Cit}' Lease -Contract e e e 6. OPTION TO EXTEND TERM: AUTHORITY gives CITY the option to exteDd the term of the Lease on the same provisions and conditions, except for the monthly rent, for twO five- year periods ("extended terms") following expiration of the Initial Term, by CITY giving notice of its intention to exercise the option to AUTHORITY prior to the expiration of the preceding tenD or during any holding over pursuant to Paragraph 8, HOLDING OVER. The rent for each 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 County. 7. RETURN OF PREMISES: The CITY agrees that it will, upon any termination of this Lease, return the Premises in as good condition and repair as the Premises now are or shall hereafter be put; reasonable wear and tear excepted. 8. HOLDING OVER: In the event the CITY shall hold over and continue to occupy the Premises with the consent of the AUTHORITY, 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. 9. TAXES: AUTHORITY shall pay all real property taxes, and general and special assessments levied and assessed against the Premises. 10. USE: CITY shall occupy and use the Premises during the term hereoffor the purposes of CITY business. II. HEALTH. SAFETY AND FIRE CODE REQUIREMENTS: As a condition precedent to the existence of this Lease, AUTHORITY. 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 and the Americans with Disabilities Act ("ADA"). Additionally, AUTHORITY warrants that any improvements on or in the Premises which have been constructed or installed by AUTHORITY or with AUTHORITY's consent or at AUTHORITY'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. AUTHORITY also warrants to CITY that AUTHORITY 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 AUTHORITY shall correct, update and comply with said changes at AUTHORITY's cost. 12. SIGNS: CITY will display from the windows and/or marquee of the Premises only such sign or signs as are not prohibited by law. 13. MAINTENANCE: a. AUTHORITY at its cost shall perform such inspections. maintenance and repairs as are necessary to ensure that all portions of the Premises, including but not limited to the following, are at all times in good repair and safe condition: 2 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: Cil)' Lease -Contract e e e (1) The structural pans of the building and other improvements that are apart of the Premises, which structural pans include the foundations, bearing and exterior walls (iDcluding glass and doors), subflooring, and roof; and, (2) The electrical, plumbing, and sewage systems, including, without limitation, those portions of the systems owned or controlled by AUTHORITY 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 (HV AC) systems servicing the Premises (additionally, air-conditioning and heating filters are to be changed quarterly. Upon commencement of this J~ase agreement and every three (3) years thereafter, AUTHORITY is to provide an air balance certificate and maintenance of the HV AC servicing); and, (5) The grounds, 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 facility; and, (7) Interior maintenance and janitorial services. Janitorial services must be performed in a workman-like manner by a licensed and qualified independent janitorial contractor, and are to include but are not limited to the items set forth in Exhibit "An, Janitorial Services. AUTHORITY shall perform interior maintenance and janitorial services at a time and in a manner that will cause the least possible inconvenience, annoyance, or disturbance to CITY. b. Without in any way affecting AUTHORITY'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 AUTHORITY by the CITY, the CITY may request specific maintenance or repairs. Any such request may be made orally, by telephone or otherwise. If. (a) CITY. gives notice to AUTHORITY of a condition requiring maintenance or repairs and AUTHORITY does not commence the performance of its maintenance or repair obligations within ten (10) days of receiving such notice, or does not diligently prosecute its obligations to completion thereafter, or (b) in the case of an emergency, whether or not CITY has given notice to AUTHORITY, AUTHORITY does not immediately perform its obligations, CITY can perform the obligations and have the right to be reimbursed for the sum CITY actually and reasonably expends (including charges for CITY employees and equipment) in the performance of AUTHORITY's obligations. The sum expended by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shall forward to LANDLORD receipts and/or documentation supporting the amount withheld. 3 File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -COntract e e e 14. ALTERATIONS: CITY shall not make any structural or exterior improvements or alterations to the Premises without LANDLORD's consent. Any such alterations shall remain on IIIld be surrendered with the Premises on expiration or termination of the Lease. 15. FIXTURES: CITY shall have the right during the term(s) of this Lease to install shelving and fixtures, and make interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures, improvements, and alterations shall remain the property of the CITY and may be removed by the CITY during the term(s) of this Lease or within a reasonable time thereafter, provided that the CITY restores the Premises to the condition as it existed at the commencement of this Lease, reasonable wear and tear excluded, or the CITY in its sole discretion may elect to surrender all or any part of such shelving, fixture, improvements and alterations to the AUTHORITY, in which case CITY shall have no duty to restore the Premises. Any such election to surrender must be in writing, but need not be accepted by AUTHORITY to be effective. 16. UTILITIES: AUTHORITY shall furnish to the Premises and pay all service charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities. CITY shall furnish and pay for vending machines and its own telephone service including pay telephones. 17. HOLD HARMLESS: The AUTHORITY agrees to indemnify, defend (with counsel approved by CITY) and hold harmless the CITY, 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 CITY, including Attorney's fees, arising out of: (a) any improvements constructed by the AUTHORITY pursuant to the Lease; (b) the AUTHORITY'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 CITY's use of the Premises, except where such indemnification is prohibited by law. The AUTHORITY's indemnification obligation applies to the CITY's "active" as well as "passive" negligence, but does not apply to the CITY's "sole negligence" or "willful misconduct" within the meaning of Civil Code section 2782. The AUTHORITY's indemnification obligation shall survive the CITY's tenancy. The insurance provisions in Paragraph 18, INSURANCE, shall not be interpreted in a manner that limits the indemnification obligation. 18. INSURANCE: a. CITY is a public entity and is self-insured. b. Without in any way affecting the indemnity .herein provided and in addition thereto, the AUTHORITY shall secure and maintain throughout the Lease the following types of insurance with limits as shown. AUTHORITY may meet these insurance requirements through a State-approved program of self insurance. (I) Workers' Compensation: A program of Workers' Compensation insurance or a state-approved Self-Insurance Program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) limits, covering all persons providing services on behalf of the AUTHORITY and all risks to such persons under this agreement. 4 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e If AUTHORITY has no employees, it may certify or warrant to CITY that it does not currently have any employees or individuals who are defined as "employees" under the Labor Code and the requirement for Workers' Compensation coverage will be waived by the CITY's Risk Manager. If AUTHORITY is a non-profit corporation organized under California or Federal law, volunteers for the AUTHORITY are required to be covered by Workers' Compensation insurance. If the CITY's Risk Manager determines that there is no reasonably priced coverage for volunteers, evidence of participation in a volunteer insurance program may be substituted. (2) Comprehensive General and Automobile Liability Insurance: This coverage to include contractual coverage and automobile liability coverage for owned, hired and non-owned vehicles. The policy shall have combined single limits for bodily injury and property damage of not less than One Million and, 00/100 Dollars ($1.000,000.00). (3) Fire Insurance: Standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements to the extent of the full replacement value 'Of the Premises. c. Additional Named Insured: All policies, except for Workers' Compensation, shall contain additional endorsements naming the CITY and its officers, employees, agents and volunteers as additional named insured with respect to liabilities arising out of this agreement. d. Waiver of Subrogation Rights: AUTHORITY shall require the carriers of the above required coverages to waive all rights of subrogation against the CITY, its officers, employees, agents, volunteers, contractors and subcontractors. e. Policies Primary and Non-Contributory: All policies required above are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the CITY. f. Proof of Coverage: AUTHORITY shall immediately furnish certificates of insurance to CITY, evidencing the insurance coverage, including endorsements, above required prior to occupying the Premises and the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the CITY, and AUTHORITY shall maintain such insurance from the time of occupancy and commencement of performance of services hereunder until the completion of such occupancy. Within sixty (60) days of the commencement of this agreement, the AUTHORITY shall furnish certified copies of the policies and all endorsements. g. Insurance Review: The above insurance requirements are subject to periodic review by the CITY. The CITY's Risk Manager is authorized, but nol required. to reduce or waive any of the above insurance requirements whenever the Risk Manager determines that any of the above insurance is not available, is unreasonably priced, or is not needed to protect the interests of the CITY. In addition, if the Risk Manager determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Risk Manager is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the CITY, inflation, or any other item reasonably 5 File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract e related to the CITY's risk. Any such reduction or waiver for the entire leon of the agreement and any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this agreement. AUTHORITY agrees to execute any such amendment within thirty (30) days of receipt. h. Failure to Have Insurance: In the event CITY receives a notice .of cancellation concerning any of the required policies, or should AUTHORITY fail to have in effect the required coverage at any time during this Lease, CITY may give notice to AUTHORITY to immediately suspend all AUTHORITY activities on the Premises and/or notice to reinstate or acquire the affected coverage. Should A{J.THORITY fail to reinstate or acquire the affected coverage within ten (10) days of CITY's notice to reinstate or acquire such coverage, CITY, in its sole discretion, may either; (a) terminate this Lease immediately upon written notice to AUTHORITY, or (b) reinstate or acquire the affected coverage, in which case AUTHORITY shall reimburse CITY for the sum paid to reinstate or acquire the coverage. The sum paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shall forward to AUTHORITY receipts and/or documentation supporting the amount withheld. It i. CITY shall have no liability for any premiums charged for such coverage(s). The . inclusion of CITY as additional named insured is not intended to and shall not make it a partner or joint venture with AUTHORITY. 19. DESTRUCTION OF PREMISES: e a. During the term of this Lease, if any casualty renders a portion of the Premises unusable for the purpose intended, then AUTHORITY shall, at AUTHORITY'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 AUTHORITY does not commence the restoration.of the Premises in a substantial and meaningful way within thirty (30) days following the AUTHORITY's receipt of written notice of the casualty, or should AUTHORITY fail to diligently pursue completion of the restoration of the Premises, or if the time required to restore the Premises is estimated to exceed ninety (90) days, CITY may, at its option, terminate this Lease immediately upon written notice to the AUTHORITY. If CITY elects to terminate this Lease pursuant to this provision, CITY shall be discharged of all future obligations under this Lease. Alternatively, if AUTHORITY fails .to commence the restoration of the Premises or fails to diligently pursue the completion of the restoration as aforesaid, CITY may, at its option and in its sole discretion, after notice to AUTHORITY, perform AUTHORITY's obligations and restore the Premises. If CITY elects to restore the Premises, CITY shall have the right to be reimbursed for all sums it actually and reasonably expends (including charges for CITY employees and equipment) in the performance of AUTHORITY's obligations. The sum paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until 6 File: s: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease .Contract e e e CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has plid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shaH forward to AUTHORITY receipts andlor 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 ofa 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 CITY'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, AUTHORITY agrees to use any and all insurance proceeds received for said destruction in the restoration of the Premises. d. In the event AUTHORITY is required to restore the Premises as provided in this paragraph, AUTHORITY shall restore, at AUTHORITY's expense, any structural or exterior improvements or alterations to. the Premises made by CITY pursuant to Paragraph 14, ALTERATIONS, of this Lease, but shall not be responsible for restoring any shelving, fixtures, or interior nonstructural improvements or alteration made by the CITY 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. AUTHORITY'S DEFAULT: Except where another time limit is specifically provided, AUTHORITY shall be in default of this Lease if AUTHORITY 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 AUTHORITY's receipt ofwrinen notice of default from CITY. If the default cannot reasonably be cured within thirty (30) days, AUTHORITY shall not be in default of this Lease if AUTHORITY commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. 21. CITY'S REMEDIES ON AUTHORITY'S DEFAULT: CITY, at anytime after AUTHORITY is in default, can terminate this Lease immediately upon wrinen notice to AUTHORITY or can cure the default at AUTHORITY's cost. If CITY at any time, by reason of AUTHORITY's default, pays any sum or does any act that requires the payment of any sum (including charges for CITY's employees and equipment), the sum paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shaH bear interest at the maximum rate the CITY is permined by law to charge from the date the sum was 7 File: S: Parks & Rec: Council Actions: Oct.. Dec. 07: Cit)" Lease -Contract e e e paid by CITY until CITY is reimbl!l'Sed by AUTHORITY. If AUTHORITY fails to reimbl!l'Se CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbl!l'Sed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. 22. CITY'S DEFAULT: The occurrence of anyone or more of the following events shall constitute a default and breach of this Lease by CITY: a. The vacating for more than thiny (30) consecutive days or abandonment of the Premises by CITY. b. The failure by CITY to perform any material provisions of this Lease to be performed by CITY, including the payment of rent, where such failure shall continue for a period of thiny (30) days after notice by AUTHORITY to CITY; provided, however, that if the nature of CITY's default is such that more than thiny (30) days are reasonably required for its cure, then CITY shall not be deemed to be in default if CITY commences such cure within said thiny (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. AUTHORITY'S REMEDIES ON CITY'S DEFAULT: a. In the event of any default by CITY, which is not cured by CITY, AUTHORITY may, at its ejection, terminate this Lease by giving CITY thiny (30) days notice of termination. The purpose of this notice requirement is to extend the notice requirement of the unlawful detainer statutes of California. On termination of the Lease for default pursuant to this paragraph, AUTHORITY shall have the right to recover from CITY only the following amounts for any and all damages, which may be the direct or indirect result of such default: (I) The wonh, at the time of the award, of the unpaid rent that has been earned at the time of termination of this Lease; and, (2) The wonh, at the time of the award, of the amount by which the unpaid rent that would have been earned after the date of termination of this Lease until the time of award exceeds the amount of the loss of rent that AUTHORITY proves could not have been reasonably avoided; and, (3) The wonh, 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 AUTHORITY proves could not have been reasonably avoided; and, (4) Any other amount necessary to compensate AUTHORITY for all detriment proximately caused by CITY's default which AUTHORITY proves could not have been reasonably avoided. (5) "The wonh. at the time of the award," as used in subparagraphs a(l) and a(2) of this paragraph, is to be computed by allowing interest at the maximum rate an individual is permitted by law to charge. "The worth, at the time of the award," as referred to in subparagraph 8 File: S; Parks & Reo; Council Actions: Oct.- Oec. 07; Cit)" Lease -Contract e e e a(3) of this paragraph, is to be computed by discounting the amount at the discount rate of the Federa1.Reserve Bank of San Francisco at the time of the award, plus one percent (1%) b. Notwithstanding subparagraph a, above, on any termination of the Lease for default pursuant to this paragraph, the amount AUTHORITY shall have the right to recover from CITY for any and all damages which may be the direct or indirect result of such default shall not exceed the amount AUTHORITY would have been entitled to receive had the CITY terminated the lease under Paragraph 40, CITY'S RIGHT TO TERMINATE LEASE. 24. AUTHORITY'S ACCESS TO PREMISES: AUTHORITY and its authorized representatives shall have the right to enter the Premises at all reasonable times for any of the following purposes: a. To determine whether the Premises are in good condition; and, b. To do any necessary maintenance and to make any restoration to the Premises that AUTHORITY 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. AUTHORITY shall conduct its activities on the Premises as allowed in this paragraph in a manner that will cause the least possible inconvenience, annoyance, or disturbance to CITY. 25. NOTICES: a. Any notice, demand, request, consent, approval, or communication that either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. 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. Notice shall be deemed communicated two (2) CITY working days from the time of mailing ifmailed as provided in this paragraph. AUTHORITY's address: Authority for the Handicapped of San Bernardino % David Kennedy, Chairman 8088 Palm Lane San Bernardino, CA 92410 CITY's address: City of San Bernardino Parks, Recreation & Community Services. Dept. % Ken Joswiak, C.LD. Manager 547 N. Sierra Way San Bernardino, CA 92410 9 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -COntract . e e b. If, at any time after the CITY accepts the Premises, the AUTHORITY assigns or transfers a non-controlling interest of its rights in the Premises to a third party, AUTHORITY must notify CITY of its action at least fifteen (IS) CITY working days prior to completing any such action. c. If, at any time after the CITY accepts the Premises, the AUTHORITY assigns or transfers a controlling interest of its rights in the Premises to a third party, AUTHORITY must notify CITY of its action at least fifteen (IS) CITY working days prior to completing any such action. The new owner must provide CITY with evidence of completion of such action. The Parties shall immediately execute an amendment to this Lease stating the change of ownership of the Premises. (I) Within fifteen (IS) CITY working days of completing any action which affects a change in the ownership of the Premises, the new owner must provide CITY evidence of obtaining insurance in compliance with Paragraph 18, INSURANCE. 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". OUlET ENJOYMENT: Subject to the provisions of this Lease and conditioned upon performance of all the provisions to be performed by CITY hereunder, AUTHORITY shall secure to CITY during the Lease term the quiet and peaceful possession of the Premises and all right and privilege appertaining thereto. 33. PROVISIONS ARE COVENANTS AND CONDITIONS: All provisions, whether covenants or conditions, on the part of either Party shall be deemed to be both covenants and conditions. 10 File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract . e e 34. CONSENT: Whenever consent or approval of either Party is required that Party shall not unreasonably withhold, condition or delay such consent or approval. . 35. EXHIBITS: All exhibits referred to are attached to this Lease and incorporated by reference. 36. LAW: This Lease shall be construed and interpreted in accordance with the laws of the State of California. 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, San Bernardino District. 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, San Bernardino District. 38. ATTORNEY'S 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 against the CITY, including such costs and attorneys' fees payable under Paragraph 17, HOLD HARMLESS, Paragraph 48, HAZARDOUS SUBSTANCES, and Paragraph 49, PUBLIC RECORDS DISCLOSURE. The costs, salaries and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the City shall be considered as "Attorney's Fees" for purposes of this paragraph. 39. RESERVED: 40. CITY'S RIGHT TO TERMINATE LEASE: a. Notwithstanding any provision in this Lease to the contrary, the CITY shall be entith:d to unilaterally terminate this Lease whenever CITY, in its sole and unfettered discretion, determines that termination of this Lease would be in the CITY's best interests, upon written notice delivered to the AUTHORITY at least sixty (60) days prior to the notice date of termination. b. This lease may be terminated by mutual consent of the Parties. 41. AUTHORITY'S IMPROVEMENTS: There are no improvements 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 CITY OFFICIALS: LANDLORD agrees to provide or has already provide information on former CITY administrative officials (as defined below) who are employed by or represent LANDLORD. The information provided includes a list of former CITY administrative officials who terminated CITY employment within the last five years and who are now officers, II File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e 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, "CITY administrative official" is defined as a member of the Mayor and Common Council or such officer's staft; CITY administrative Officer or member of such officer's staff, CITY department or group head, assistant department or group head, or any employee in the Exempt Group, Management Unit or Safety Management Unit. (See Exhibit "B", List of Former City Officials). 45. BROKER'S COMMISSIONS: There are no Broker's Commissions in this Lease. 46. HAZARDOUS SUBSTANCES: a. AUTHORITY hereby represents and warrants that, to the best of AUTHORITY's knowledge, information and belief: (i) the Premises have not been exposed to Hazardous Substances and are presently free of all Hazardous Substances; (ii) neither the AUTHORITY 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 to date, and the soil, groundwater and vapor on or under the Premises is free of Hazardous Substances as of the Commencement Date. b. AUTHORITY shall indemnify, protect, defend and hold CITY, 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 prior to the Commencement Date of this Lease. Additionally, the issuance of an order by any governmental authority directing the AUTHORITY or any of AUTHORITY'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 rernediate a contaminated condition caused by the AUTHORITY or any person acting under AUTHORITY's direct control and authority is a breach of this Contract, and AUTHORITY shall be. responsible for all costs and expenses of complying with such order, including any and all expenses imposed on or incurred by CITY in connection with or in response to such order. AUTHORITY'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 CITY, and the cost of investigation, removal, remediation, restoration and/or abatement thereof. AUTHORITY's obligations under this provision shall survive the expiration or early termination of this Lease. No termination, cancellation or release agreement entered into by CITY and AUTHORITY shall release AUTHORITY from its obligations under this Lease with regard to Hazardous Substances unless specifically agreed to by CITY in writing. c. For the purposes of this paragraph, the following definitions shall apply: (I) "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, is either (i) potentially injurious to the public health, safety or welfare, the environment or the Premises; (ii) regulated or 12 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e monitored by any governmental authority; or (iii) a basis for potential liability of AUTHORITY or CITY under any applicable statute or common law theory. (2) "Reportable use" shall mean (i) the installation or use of any.iJ;;ve- 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 of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises 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. 47. PUBLIC RECORDS DISCLOSURE: All information received by the CITY from the AUTHORITY or any source concerning this Lease, including the Lease itself, may be treated by the CITY as public information subject to disclosure under the provisions of the California' Public Records Act, Government Code Section 6250 et sea. (the "Public Records Act"). AUTHORITY understands that although all materials received by the CITY in connection with this Lease are intended for the exclusive use of the CITY, they are 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 AUTHORITY has reasonably requested CITY to hold in confidence is made to the CITY, the CITY shall notify the AUTHORITY of the request and shall thereafter disclose the requested information unless the AUTHORITY, within five (5) days of receiving notice of the disclosure request, requests nondisclosure, provides CITY a legally sound basis for the nondisclosure, and agrees to indemnify, defend, and hold the CITY harmless in any/all actions brought to require disclosure. AUTHORITY waives any and all claims for damages, lost profits, or other injuries of any and all kinds in the event CITY fails to notify AUTHORITY of any such disclosure request and/or releases any information concerning the contract received from the AUTHORITY or any other source. 48. CONDITION OF PREMISES: AUTHORITY shall deliver the Premises to CITY clean and free of debris on the Commencement Date and warrants to CITY that the plumbing, electrical systems, fire sprinkler system, lighting, air conditioning and heating systems and loading doors, if any, in the Premises shall be in good operating condition on the Commencement Date. 49. CONDEMNATION: 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 CITY's parking, is taken by condemnation, CITY may, at CITY's option, to be exercised in writing within thirty (30) days after AUTHORITY shall have given CITY written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning AUTHORITY takes such possession. If CITY does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the rent shall be reduced in the same proportion as the rentable floor 13 File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e 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. CITY shall be entitled to receive the following amounts of any award for the taking of all or any part of the Premi_ under the power of eminent domain or any payment made under threat of the exercise of such power: (a) one hundred percent (100%) of any amount attributable to any excess of the market value of the Premises for the remainder of the Lease Term over the present value as of the Termination Date of the Rent payable for the remainder of the Lease Term (commonly referred to as the "bonus value" of the Lease); and (b) CITY shall have the right 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 CITY that CITY has the right to remove at the end of the Lease term and that CITY elects not to remove; (ii) Reasonable removal and relocation costs for any trade fixtures or leasehold improvements that CITY has the right to remove and elects to remove (if Condemnor approves of the removal); (iii) Loss of goodwill; (iv) Relocation costs under Government Code section 7262, the claim for which CITY may pursue by separate action independent of this Lease; and (v) Any other amount in addition to the foregoing that the CITY is allowed under condemnation law. CITY shall have the right to negotiate directly with Condemnor for the recovery of the portion of the Award that CITY is entitled to under subparagraph (b) of this paragraph. In the event that this Lease is not terminated by reason of such condemnation, AUTHORITY shall repair any damage to the Premises caused by such condemnation authority pursuant to Paragraph 13, MAINTENANCE, and Paragraph 19, DESTRUCTION OF PREMISES, 50. MATERIAL MISREPRESENTATION:. If during the course of the administration of this lease, the CITY determines that the AUTHORITY has made a material misstatement or. misrepresentation or that materially inaccurate information has been provided to the CITY, this Lease may be immediately terminated. If this Lease is terminated according to this provision, the CITY is entitled to pursue any available legal remedies. 51. 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. 52. AUTHORIZED SIGNATORS: Both Parties to this Lease represent that the signators executing this document are fully authorized to enter into this agreement. III //I III /II III III III 14 File: s: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e LEASE AGREEMENT BETWEEN THE AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY AND THE CITY OF SAN BERNARDINO CITY OF SAN BERNARDINO AUTHORITY: AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY By: By: Fred Wilson, City Manager David Kennedy, Chairman Date: Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD By: Date: Approved as to form: James Penman, City Attorney By: Date: 110568.12 15 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e EXHIBIT "A" JANITORIAL SERVICES (Janitorial service to provide/supply all sanitary and paper goods.) DAILY SERVICES FIVE (5) DAYS PER WEEK: ] . Empty and damp clean all ashtrays. 2. Empty all waste baskets and other waste containers. 3. Dust mop all tiled-terrazzo floors. 4. Vacuum traffic lanes of carpeting. 5. Dust all desks, chairs, tables, filing cabinets and other office furniture. 6. Damp clean lobby counters. 7. Clean and sanitize rest room fIXtures, mirrors, chrome pipes, etc. 8. Clean splash marks from walls of rest room. 9. Wet mop and sanitize rest room floors. 10. Refill soap, towel and paper containers. II. Clean and sanitize drinking fountains. 12. Clean hand marks off glass on entrance doors. 13. Damp clean table tops in coffee rooms. 14. Clean kitchen sinks and counters. 15. Sweep entryways. 16. Brush down steps of inside stairwells. 17. Vacuum elevator carpet. 18. Spot clean elevator walls and doors. 19. Spot clean carpets of small spillages, footprints, etc. 20. Keep janitor closets clean and orderly, WEEKLY SERVICE: I. Wet mop all tiled-terrazzo floors. 2. Clean all desk tops that are cleared. 3. Clean hand marks from walls, doors and woodwork. 4. Vacuum all carpeting completely. ONCE-MONTHLY SERVICE: 1. Pest control. TWICE-MONTHLY SERVICE: 1. Dust high areas. 2. Clean lobby directories and fire extinguisher glass. 3. Machine scrub all tiled floors. 4. Wax all tiled floors. 5. Machine polish all tiled floors. . OTHER SERVICES WHEN NEEDED I. Vacuum dust and dirt accumulation from air-conditioning vents. 2. Replace light bulbs and tubes inside building. 3. Brush down cobwebs inside building. 4. Machine scrub or dry clean all carpeted areas. EVERY THREE MONTHS I. Wash outside windows. 2. Wash inside windows and partitions. 3. Supply and change entry mats. The above are considered the minimum standard janitorial items. AUTHORITY is responsible for providing all services related to the health and cleanliness orthe leased facility. I File: 5: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -COntract I . e e e EXHIBIT "B" LIST OF FORMER CITY OFFICIALS INSTRUCTIONS: List the full name of the former CITY Administrative Official, the title/description of the Official's last position with the CITY, the date the Official terminated CITY employment, the Official's current employment and/or representative capacity with the LANDLORD, the date the Official entered LANDLORD's employment and/or representation. OFFICIAL'S NAME: REOUIRED INFORMATION File: 5: Parks & Rec: Coun~il Actions: Oct.- Dec. 07: City Lease .Contract e e e CITY OF SAN BERNARDINO LEASE AGREEMENT AUTHORITY: AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY % David Kennedy, Chairman 8088 Palm Lane San Bernardino CA 92410 CITY: CITY OF SAN BERNARDINO PREMISES: 8088 Palm Lane San Bernardino, CA 92410 TERM OF LEASE: Four years with two (2) five-year period options. COMMENCEMENT DATE OF LEASE: November I, 2007 COST PER SQUARE FOOT: $.33 full service CITY CONTRACT NUMBER: File: S: Paries & Reo: Council Actions: Oct.- Dec. 07: City Lease -<:Ontract e TABLE OF CONTENTS e PARAGRAPH CAPTION 1 PAJtTIES 2 PREMISES LEASED 3 TERM 4 RENT 5 EXPANSION OF RENTAL SPACE 6 OPTION TO EXTEND TERM 7 RETURN OF PREMISES 8 HOLDING OVER 9 TAXES 10 USE 11 HEALTH, SAFETY & FIRE CODE REQUIREMENTS 12 SIGNS 13 MAINTENANCE 14 ALTERATIONS 15 FIXTURES 16 UTILITIES 17 HOLD HARMLESS 18 INSURANCE 19 DESTRUCTION OF PREMISES 20 AUTHORITY'S DEFAULT 21 CITY'S REMEDIES ON AUTHORITY'S DEFAULT 22 CITY'S DEFAULT 23 AUTHORITY'S REMEDIES ON CITY'S DEFAULT 24 AUTHORITY'S ACCESS TO PREMISES 25 NOTICES 26 INCORPORATION OF PRIOR AGREEMENT 27 WAIVERS 28 AMENDMENTS 29 SUCCESSORS 30 SEVERABILITY 31 TIME OF ESSENCE 32 QUIET ENJOYMENT 33 PROVISIONS ARE COVENANTS & CONDITIONS 34 CONSENT 35 EXHIBITS . 36 LAW 37 VENUE 38 ATTORNEYS' FEES AND COSTS 39 RESERVED 40 COUNTY'S RIGHT TO TERMINATE LEASE 41 AUTHORITY'S IMPROVEMENTS 42 CAPTIONS, TABLE OF CONTENTS & COVER PAGE 43 SURVIVAL 44 FORMER CITY OFFICIALS PAGE 1 1 1 1 1 2 2 2 2 2 2 3' 3 4 4 4 4 5 6 7 8 8 8 9 9 10 10 10 10 10 10 11 11 11 11 11 11 11 11 11 11 11 12 12 e File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract I . e e e Table of Contents Page -2- 45 46 47 48 49 50 51 52 BROKER'S COMMISSIONS HAZARDOUS SUBSTANCES PUBUC RECORDS DISCWSURE CONDITION OF PREMISES CONDEMNATION MATERIAL MISREPRESENTATION INTERPRETATIONS AUTHORIZED SIGNATORS 12 12 13 13 13 14 14 14 Exhibit "A", Janitorial Services Exhibit "B", List of Former City's Officials File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e LEASE AGREEMENT WHEREAS, the City of San Bernardino ("CITY") has previously entered into an agreement which created a joint power entity, the Authority for the Handicapped of San Bernardino County ("AUTHORITY"); and, WHEREAS, the CITY and AUTHORITY, are individually a "Party" and collectively "the Parties"; NOW THEREFORE, the Parties agree as follows: I. PARTIES: This lease ("Lease") is made between the AUTHORITY, as landlord, and the CITY, as tenant, who agree as follows: 2. PREMISES LEASED: AUTHORITY leases to CITY and CITY leases from AUTHORITY 15500 square feet of building, real propeny, and other improvements, with adequate parking spaces, including handicapped parking, located at 8808 Palm Lane, San Bernardino, CA, 92410 ("Premises"). 3. TERM: The Lease's initial term ("Initial Term") shall commence on November 1,2007 ("Commencement Date") and end on October 31, 2011 ("Ending Date"). 4. RENT: a. CITY shall pay to AUTHORITY the following monthly rental payments in arrears on the last day of each month, commencing when the term commences, continuing during the term: November I, 2007 thru October 31, 2008 - monthly payments of$5,125. November I, 2008 thru October 31, 2009 - monthly payments of$5,253. November 1,2009 thru October 31,2010 - monthly payments of$5,384. November 1, 2010 thru October 31, 2011 - monthly payments of$5,519. b. Rent for any partial month shall be prorated based on the actual number of days of the month. All rent shall be paid to AUTHORITY at the address to which notices to AUTHORITY are given. c. If the CITY has accepted the Premises as Substantially Completed with minor corrections and/or additions remaining to be completed, only eighty percent (8oolo) of the monthly rental will be paid to AUTHORITY, and the remaining twenty percent (20%) of the monthly rental will accrue from the Commencement Date of this Lease but will not be paid to AUTHORITY until all such minor corrections and/or additions have been completed and accepted by CITY. If the CITY withholds monthly rental payments under this subparagraph, the CITY will not be in default and no interest or service charges will be added to the amounts due AUTHORITY upon completion of the minor corrections and/or additions. The minor corrections and/or additions remaining to be completed are subject to subparagraph 13b, MAINTENANCE. 5. EXPANSION OF RENTAL SPACE: There is no expansion space in this Lease. 1 File: S: Parks & Roc: Council Actions: Oct.- Dec. 0'7: City Lease -<:Ontract tit e e 6. OPTION TO EXTEND TERM: AUTHORITY gives CITY the option to exteDd the term of the Lease on the same provisions and conditions, except for the monthly rent, for two five- year periods ("extended terms") following expiration of the Initial Term, by CITY giving notice of its intention to exercise the option to AUTHORITY prior to the expiration of the preceding term or during any holding over pursuant to Paragraph 8, HOLDING OVER. The rent for each extended term shall be 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 County. 7. RETURN OF PREMISES: The CITY agrees that it will, upon any termination of this Lease, return the Premises in as good condition and repair as the Premises now are or shall hereafter be put; reasonable wear and tear excepted. 8. HOLDING OVER: In the event the CITY shall hold over and continue to occupy the Premises with the consent of the AUTHORITY, 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. 9. TAXES: AUTHORITY shall pay all real property taxes, and general and special assessments levied and assessed against the Premises. 10. USE: CITY shall occupy and use the Premises during the term hereof for the purposes of CITY business. II. HEALTH. SAFETY AND FIRE CODE REQUIREMENTS: As a condition precedent to the existence of this Lease, AUTHORITY, 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 and the Americans with Disabilities Act ("ADA''). Additionally, AUTHORITY warrants that any improvements on or in the Premises which have been constructed or installed by AUTHORITY or with AUTHORITY's consent or at AUTHORITY'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. AUTHORITY also warrants to CITY that AUTHORITY 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 govemmental buildings, the AUTHORITY shall correct, update and comply with said changes at AUTHORITY's cost. 12. SIGNS: CITY will display from the windows and/or marquee of the Premises only such sign or signs as are not prohibited by law. 13. MAINTENANCE: a. AUTHORITY at its cost shall perform such inspections, maintenance and repairs as are necessary to ensure that all portions of the Premises, including but not limited to the following, are at all times in good repair and safe condition: 2 File: S: Parks & Reo: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e (I) 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 (mcluding glass and doors), subflooring, and roof; and, (2) The electrical, plumbing, and sewage systems, including, without limitation, those portions of the systems owned or controlled by AUTHORITY 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 (HV AC) 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, AUTHORITY is to provide an air balance certificate and maintenance of the HV AC servicing); and, (5) The grounds, 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 facility; and, (7) .Interior maintenance and janitorial services. Janitorial services must be performed in a workman-like manner by a licensed and qualified independent janitorial contractor, and are to include but are not limited to the items set forth in Exhibit "A", Janitorial Services. AUTHORITY shall perform interior maintenance and janitorial services at a time and in a manner that will cause the least possible inconvenience, annoyance, or disturbance to CITY. b. Without in any way affecting AUTHORITY's duly to inspect, maintain and repair the Premises and regardless of whether any specific notice of need for maintenance or repair is provided to AUTHORITY by the CITY, the CITY may request specific maintenance or repairs. Any such request may be made orally, by telephone or otherwise. If, (a) CITY gives notice to AUTHORITY of a condition requiring maintenance or repairs and AUTHORITY does not commence the performance of its maintenance or repair obligations within ten (10) days of receiving such notice, or does not diligently prosecute its obligations to completion thereafter, or (b) in the case of an emergency, whether or not CITY has given notice to AUTHORITY, AUTHORITY does not immediately perform its obligations, CITY can perform the obligations and have the right to be reimbursed for the sum CITY actually and reasonably expends (including charges for CITY employees and equipment) in the performance of AUTHORITY's obligations. The sum expended by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shall forward to LANDLORD receipts and/or documentation supporting the amount withheld. 3 File: S: Parks & Reo: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e 14. ALTERATIONS: CITY shall not make any structural or exterior improvements or alterations to the Premises without LANDLORD's consent. Any such alterations shall remain on and be surrendered with the Premises on expiration or termination of the Lease. 15. FIXTURES: CITY shall have the right during the term(s) of this Lease to install shelving and fixtures, and make interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures, improvements, and alterations shall remain the property of the CITY and may be removed by the CITY during the term(s) of this Lease or within a reasonable time thereafter, provided that the CITY restores the Premises to the condition as it existed at the commencement of this Lease, reasonable wear and tear excluded, or the CITY in its sole discretion may elect to surrender all or any part of such shelving, fixture, improvements and alterations to the AUTHORITY, in which case CITY shall have no duty to restore the Premises. Any such election to surrender must be in writing, but need not be accepted by AUTHORITY to be effective. 16. UTILITIES: AUTHORITY shall furnish to the Premises and pay all service charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities. CITY shall furnish and pay for vending machines and its own telephone service including pay telephones. 17. HOLD HARMLESS: The AUTHORITY agrees to indemnify, defend (with counsel approved by CITY) and hold harmless the CITY, 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 CITY, including Attorney's fees, arising out of: (a) any improvements constructed by the AUTHORITY pursuant to the Lease; (b) the AUTHORITY'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 CITY's use of the Premises, except where such indemnification is prohibited by law. The AUTHORITY's indemnification obligation applies to the CITY's "active" as well as "passive" negligence, but does not apply to the CITY's "sole negligence" or "willful misconduct" within the meaning of Civil Code section 2782. The AUTHORITY's indemnification obligation shall survive the CITY's tenancy. The insurance provisions in Paragraph 18, INSURANCE, shall not be interpreted in a manner that limits the indemnification obligation. 18. INSURANCE: a. CITY is a public entity and is self-insured. b. Without in any way affecting the indemnity herein provided and .in addition thereto, the AUTHORITY shall secure and maintain throughout the Lease the following types of insurance with limits as shown. AUTHORITY may meet these insurance requirements through a State-approved program of self insurance. (1) Workers' Compensation: A program of Workers' Compensation insurance or a state-approved Self-Insurance Program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) limits, covering all persons providing services on behalf of the AUTHORITY and all risks to such persons under this agreement. 4 File: S: Parks 8< Reo: Council Actions: Oct., Dee. 07: City Lease -Contract . . e If AUTHORITY has no employees, it may certify or warrant to CITY that it does not currently have any employees or individuals who are defined as "employees" under the Labor Code 8IId the requirement for Workers' Compensation coverage will be waived by the CITY's Risk Manager. If AUTHORITY is a non-profit corporation organized under Califomia or Federal law, volunteers for the AUTHORITY are required to be covered by Workers' Compensation insurance. If the CITY's Risk Manager determines that there is no reasonably priced coverage for volunteers, evidence of participation in a volunteer insurance program may be substituted. (2) Comprehensive General and Automobile Liability Insurance: This coverage to include contractual coverage and automobile liability coverage for owned, hired and non-owned vehicles. The policy shall have combined single limits for bodily injury and property damage of not less than One Million and 00/100 Dollars ($1,000,000.00). (3) Fire Insurance: Standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements to the extent of the full replacement value' of the Premises. c. Additional Named Insured: All policies, except for Workers' Compensation, shall contain additional endorsements naming the CITY and its officers, employees, agents and volunteers as additional named insured with respect to liabilities arising out of this agreement. d. Waiver of Subrogation Rights: AUTHORITY shall require the carriers of the above required coverages to waive all rights of subrogation against the CITY, its officers, employees, agents, volunteers, contractors and subcontractors. e. Policies Primary and Non-Contributory: All policies required above are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the CITY. f. Proof of Coverage: AUTHORITY shall immediately furnish certificates of insurance to CITY, evidencing the insurance coverage, including endorsements, above required prior to occupying the Premises and the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the CITY, and AUTHORITY shall maintain such insurance from the time of occupancy and commencement of performance of services hereunder until the completion of such occupancy. Within sixty (60) days of the commencement of this agreement, the AUTHORITY shall furnish certified copies of the policies and all endorsements. g. Insurance Review: The above insurance requirements are subject to periodic review by the CITY. The CITY's Risk Manager is authorized, but not required, to reduce or waive any of the above insurance requirements whenever the Risk Manager determines that any of the above insurance is not available, is unreasonably priced, or is not needed to protect the interests of the CITY. In addition, if the Risk Manager determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Risk Manager is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the CITY, inflation, or any other item reasonably 5 File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e related to the CITY's risk. Any such reduction or waiver for the entire term of the agreement and any change requiring additional types ofinsurance coverage or higher coverage limits mustbe made by amendment to this agreement. AUTHORITY agrees to execute any such amendment within thirty (30) days of receipt. h. Failure to Have Insurance: In the event CITY receives a notice of cancellation concerning any of the required policies, or should AUTHORITY fail to have in effect the required coverage at any time during this Lease, CITY may give notice to AUTHORITY to immediately suspend all AUTHORITY activities on the Premises and/or notice to reinstate or acquire the affected coverage. Should AUTHORITY fail to reinstate or acquire the affected coverage within ten (10) days of CITY's notice to reinstate or acquire such coverage, CITY, in its sole discretion, may either; (a) terminate this Lease immediately upon written notice to AUTHORITY, or (b) reinstate or acquire the affected coverage, in which case AUTHOR,ITY shall reimburse CITY for the sum paid to reinstate or acquire the coverage. The sum paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shall forward to AUTHORITY receipts and/or documentation supporting the amount withheld. i. CITY shall have no liability for any premiums charged for such coverage(s). The inclusion of CITY as additional named insured is not intended to and shall not make it a partner or joint venture with AUTHORITY. 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 AUTHORITY shall, at AUTHORITY'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 AUTHORITY does not commence the restoration of the Premises in a substantial and meaningful way within thirty (30) days following the AUTHORITY's receipt of written notice of the casualty, or should AUTHORITY fail to diligently pursue completion of the restoration of the Premises, or if the time required to restore the Premises is estimated to exceed ninety (90) days, CITY may, at its option, terminate this Lease immediately upon written notice to the AUTHORITY. If CITY elects to terminate this Lease pursuant to this provision, CITY shall be discharged of all future obligations under this Lease. Alternatively, if AUTHORITY fails to commence the restoration of the Premises or fails to diligently pursue the completion of the restoration as aforesaid, CITY may, at its option and in its sole discretion, after notice to AUTHORITY, perform AUTHORITY's obligations and restore the Premises. If CITY elects to restore the Premises, CITY shall have the right to be reimbursed for all sums it actually and reasonably expends (including charges for CITY employees and equipment) in the performance of AUTHORITY's obligations. The sum paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until 6 File: s: Parks & Roc: Council Actions: Oct.- Dee. 07: City Lease -Contract ~::k- e e e CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY bu]lllid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this Jl8l'8llI'IIPh are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shall forward to AUTHORITY receipts and/or docwnentation 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 CITY'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, AUTHORITY agrees to use any and all insurance proceeds received for said destruction in the restoration of the Premises. d. In the event AUTHORITY is required to restore the Premises as provided in this paragraph, AUTHORITY shall restore, at AUTHORITY's expense, any structural or exterior improvements or alterations to the Premises made by CITY pursuant to Paragrapb 14, ALTERATIONS, of this Lease, but shall not be responsible for restoring any shelving, fixtures, or interior nonstructural improvements or alteration made by the CITY 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. AUTHORITY'S DEFAULT: Except where another time limit is specifically provided, AUTHORITY shall be in default of this Lease if AUTHORITY 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 AUTHORITY's receipt of written notice of default from CITY. If the default cannot reasonably be cured within thirty (30) days, AUTHORITY shall not be in default of this Lease if AUTHORITY commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. 21. CITY'S REMEDIES ON AUTHORITY'S DEFAULT: CITY, at anytime after AUTHORITY is in default, can terminate this Lease immediately upon written notice to AUTHORITY or can cure the default at AUTHORITY's cost. If CITY at any time, by reason of AUTHORITY's default, pays any swn or does any act that requires the payment of any sum (including charges for CITY's employees and equipment), the swn paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such swn, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the swn was 7 File: S: Parks & Rec:: Council A<:tions: Oct.- Dee. 07: City Lease -contract . e e paid by CITY until CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. 22. CITY'S DEFAULT: The occurrence of anyone or more of the following events shall constitute a default and breach of this Lease by CITY: a. The vacating for more than thirty (30) consecutive days or abandonment of the Premises by CITY. b. The failure by CITY to perform any material provisions of this Lease to be performed by CITY, including the payment of rent, where such failure shall continue for a period of thirty (30) days after notice by AUTHORITY to CITY; provided, however, that if the nature of CITY's default is such that more than thirty (30) days are reasonably required for its cure, then CITY shall not be deemed to be in default if CITY commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. The purpose of this notice requirement is to extend the notice requirements of the unlawful detainer statutes of California. 23. AUTHORITY'S REMEDIES ON CITY'S DEFAULT: a. In the event of any default by CITY, which is not cured by CITY, AUTHORITY may, at its election, terminate this Lease by giving CITY thirty (30) days notice of termination. The purpose of this notice requirement is to extend the notice requirement of the unlawful detainer statutes of California. On termination of the Lease for default pursuant to this paragraph, AUTHORITY shall have the right to recover from CITY only the following amounts for any and all damages, which may be the direct or indirect result of such default: (I) The worth, at the time of the award, of the unpaid rent that has been earned at the time of termination of this Lease; and, (2) The worth, at the time of the award, of the amount by which the unpaid rent that would have been earned after the dine of termination of this Lease until the time of award exceeds the amount of the loss of rent that AUTHORITY proves could not have been reasonably avoided; and, (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 AUTHORITY proves could not have been reasonably avoided; and, (4) Any other amount necessary to compensate AUTHORITY for all detriment proximately caused by CITY's default which AUTHORITY proves could not have been reasonably avoided. (5) "The worth, at the time of the award," as used in subparagraphs a(l) aDd a(2) of this paragraph, is to be computed by allowing interest at the maximum rate an individual is permitted by law to charge. "The worth, at the time of the award," as referred to in subparagraph 8 File: s: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract . e e a(3) of this paragraph, is to be computed by discoWlting the amoWlt at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent (1%) b. Notwithstanding subparagraph a, above, on any tennination of the Lease for default pursuant to this paragraph, the amoWlt AUTHORITY shall have the right to recover from CITY for any and all damages which may be the direct or indirect result of such default shall not exceed the amount AUTHORITY would have been entitled to receive had the CITY tenninated the lease Wlder Paragraph 40, CITY'S RIGHT TO TERMINATE LEASE. 24. AUTHORITY'S ACCESS TO PREMISES: AUTHORITY and its authorized representatives shall have the right to enter the Premises at all reasonable times for any of the following purposes: . a. To detennine whether the Premises are in good condition; and, b. To do any necessary maintenance and to make any restoration to the Premises that AUTHORITY has the right or obligation to perfonn; 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 tenn, to post "for rent" or "for Lease" signs during the last three (3) months of the tenn; and, e. To show the Premises to prospective brokers, agents, buyers, tenants, lenders or persons interested in an exchange, at any time during the tenn. AUTHORITY shall conduct its activities on the Premises as allowed in this paragraph in a manner that will cause the least possible inconvenience, annoyance, or disturbance to CITY. 25. NOTICES: a. Any notice, demand, request, consent, approval, or commWlication that either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. Any notice, demand, request, consent, approval, or commWlication 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. Notice shall be deemed commWlicated two (2) CITY working days from the time of mailing if mailed as provided in this paragraph. AUTHORITY's address: Authority for the Handicapped of San Bernardino % David Kennedy, Chainnan 8088 Palm Lane San Bernardino, CA 92410 CITY's address: City of San Bernardino Parks, Recreation & Community Services. Dept. % Ken Joswiak, C.LD. Manager 547 N. Sierra Way San Bernardino, CA 92410 9 File: s: Parks & Reo: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e b. If, at any time after the CITY accepts the PremiOl'!'l, the AUTHORITY assigns or transfers a non-controlling interest of its rights in the Premises to a third party, AUTHORITY must notify CITY of its action at least fifteen (IS) CITY working days prior to completing any such action. c. If, at any time after the CITY accepts the Premises, the AUTHORITY assigns or transfers a controlling interest of its rights in the Premises to a third party, AUTHORITY must notify CITY of its action at least fifteen (IS) CITY working days prior to completing any such action. The new owner must provide CITY with evidence of completion of such action. The Parties shall immediately execute an amendment to this Lease stating the change of ownership of the Premises. (I) Within fifteen (IS) CITY working days of completing any action which affects a change in the ownership of the Premises, the new owner must provide CITY evidence of obtaining insurance in compliance with Paragraph 18, INSURANCE. 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 inyalid 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. OUlET ENJOYMENT: Subject to the provisions of this Lease and conditioned upon performance of all the provisions to be performed by CITY hereunder, AUTHORITY shall secure to CITY during the Lease term the quiet and peaceful possession of the Premises and all right and privilege appertaining thereto. 33. PROVISIONS ARE COVENANTS AND CONDITIONS: All provisions, whether covenants or conditions, on the part of either Party shall be deemed to be both covenants and conditions. 10 File: S: Parks & Rec: Council Actions: Oct.- Dee. 07: City Lease -Contract e e e 34. CONSENT: Whenever consent or approval of either Party is required that Party shall not unreasonably withhold, condition or delay such consent or approval. 35. EXHIBITS: All exhibits referred to are attached to this Lease and inCOlp(irated by reference. 36. LAW: This Lease shall be construed and interpreted in accordance with the laws of the State of California. 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, San Bernardino District. 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, San Bernardino District. . 38. ATTORNEY'S 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 against the CITY, including such costs and attorneys' fees payable under Paragraph 17, HOLD HARMLESS, Paragraph 48, HAZARDOUS SUBSTANCES, and Paragraph 49, PUBLIC RECORDS DISCLOSURE. The costs, salaries and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the City shall be considered as "Attorney's Fees" for purposes of this paragraph. 39. RESERVED: 40. CITY'S RIGHT TO TERMINATE LEASE: a. Notwithstanding any provision in this Lease to the contrary, the CITY shall be entitled to unilaterally terminate this Lease whenever CITY, in its sole and unfettered discretion, determines that termination of this Lease would be in the CITY's best interests, upon written notice delivered to the AUTHORITY at least sixty (60) days prior to the notice date of termination. b. This lease may be terminated by mutual consent of the Parties. 41. AUTHORITY'S IMPROVEMENTS: There are no improvements 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 CITY OFFICIALS: LANDLORD agrees to provide or has already provide information on former CITY administrative officials (as defined below) who are employed by or represent LANDLORD. The information provided includes a list of former CITY administrative officials who terminated CITY employment within the last five years and who are now officers, II File: s: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e 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, "CITY administrative official" is defined as a member of the Mayor and Common Council or such officer's staft; CITY administrative Officer or member of such officer's. staff, CITY department or group head, assistant department or group head, or any employee in the Exempt Group, Management Unit or Safety Management Unit. (See Exhibit "B", List ofFormer City Officials). 45. BROKER'S COMMISSIONS: There are no Broker's Commissions in this Lease. 46. HAZARDOUS SUBSTANCES: a. AUTHORITY hereby represents and warrants that, to the best of AUTHORITY's knowledge, information and belief: (i) the Premises have not been exposed to Hazardous Substances and are presently free of all Hazardous Substances; (ii) neither the AUTHORITY 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 to date, and the soil, groundwater and vapor on or under the Premises is free of Hazardous Substances as of the Commencement Date. b. AUTHORITY shall indemnify, protect, defend and hold CITY, 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 prior to the Commencement Date of this Lease. Additionally, the issuance of an order by any governmental authority directing the AUTHORITY or any of AUTHORITY'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 AUTHORITY or any person acting under AUTHORITY's direct control and authority is a breach of this Contract, and AUTHORITY shall be responsible for all costs and expenses of complying with such order, including any and all expenses imposed on or incurred by CITY in connection with or in response to such order. AUTHORITY'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 CITY, and the cost of investigation, removal, remediation, restoration and/or abatement thereof. AUTHORITY's obligations under this provision shall survive the expiration or early termination of this Lease. No termination, cancellation or release agreement entered into by CITY and AUTHORITY shall release AUTHORITY from its obligations under this Lease with regard to Hazardous Substances unless specifically agreed to by CITY in writing. c. For the purposes of this paragraph, the following definitions shall apply: (I) "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, is either (i) potentially injurious to the public health, safety or welfare, the environment or the Premises; (ii) regulated or 12 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e monitored by any governmental authority; or (Hi) a basis for potential liability of AUTHORITY or CITY 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 (Hi) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises 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. 47. PUBLIC RECORDS DISCLOSURE: All information received by the CITY from the AUTHORITY or any source concerning this Lease, including the Lease itself, may be treated by the CITY as public information subject to disclosure under the provisions of the California Public Records Act, Government Code Section 6250 et sea. (the "Public Records Act"). AUTHORITY understands that although all materials received by the CITY in connection with this Lease are intended for the exclusive use of the CITY, they are 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 AUTHORITY has reasonably requested CITY to hold in confidence is made to the CITY, the CITY shall notify the AUTHORITY of the request and shall thereafter disclose the requested information unless the AUTHORITY, within five (5) days of receiving notice of the disclosure request, requests nondisclosure, provides CITY a legally sound basis for the nondisclosure, and agrees to indemnify, defend, and hold the CITY harmless in any/all actions brought to require disclosure. AUTHORITY waives any and all claims for damages, lost profits, or other injuries of any and all kinds in the event CITY fails to notify AUTHORITY of any such disclosure request and/or releases any information concerning the contract received from the AUTHORITY or any other source. 48. CONDITION OF PREMISES: AUTHORITY shall deliver the Premises to CITY clean and free of debris on the Commencement Date and warrants to CITY that the plumbing, electrical systems, fire sprinkler system, lighting, air conditioning and heating systems and loading doors, if any, in the Premises shall be in good operating condition on the Commencement Date. 49. CONDEMNATION: 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 CITY's parking, is taken by condemnation, CITY may, at CITY's option, to be exercised in writing within thirty (30) days after AUTHORITY shall have given CITY written notice of such taking (or in the absence of such notice. within thirty (30) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning AUTHORITY takes such possession. If CITY does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the rent shall be reduced in the same proportion as the rentable floor 13 File: S: Parks & Reo: Council Actions: Oct.- Dee. 07: CitY Lease -Contract e e e 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. CITY shall be entitled to receive the following amounts of any award for the taking of all or any part of the Premises under the power of eminent domain or any payment made under threat of the exercise of such power: (a) one hundred percent (100%) of any amount attributable to any excess of the market value of the Premises for the remainder of the Lease Term over the present value as of the Termination Date of the Rent payable for the remainder of the Lease Term (commonly referred to as the "bonus value" of the Lease); and (b) CITY shall have the right 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 CITY that CITY has the right to remove at the end of the Lease term and that CITY elects not to remove; (ii) Reasonable removal and relocation costs for any trade fixtures or leasehold improvements that CITY has the right to remove and elects to remove (if Condemnor approves of the removal); (iii) Loss of goodwill; (iv) Relocation costs under Govemment Code section 7262, the claim for which CITY may pursue by separate action independent of this Lease; and (v) Any other amount in addition to the foregoing that the CITY is allowed under condemnation law. CITY shall have the right to negotiate directly with Condemnor for the recovery of the portion of the Award that CITY is entitled to under subparagraph (b) of this paragraph. In the event that this Lease is not terminated by reason of such condemnation, AUTHORITY shall repair any damage to the Premises caused by such condemnation authority pursuant to Paragraph 13, MAINTENANCE, and Paragraph 19, DESTRUCfION OF PREMISES. 50. MATERIAL MISREPRESENTATION: If during the course of the administration of this lease, the CITY determines that the AUTHORITY has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the CITY, this Lease may be immediately terminated. If this Lease is terminated according to this provision, the CITY is entitled to pursue any available legal remedies. 51. 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. 52. AUTHORIZED SIGNATORS: Both Parties to this Lease represent that the signators executing this document are fully authorized to enter into this agreement. III III III III III III 11/ 14 File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract . e e LEASE AGREEMENT BETWEEN THE AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY AND THE CITY OF SAN BERNARDINO CITY OF SAN BERNARDINO By: Fred Wilson, City Manager Date: SIGNED AND CERTIFIED THAT A COPY OF. THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD By: Date: Approved as to form: James Penman, City Attorney By: J~ t-J~ C. ...?- j Date: O(~ /2 2.-<>"1 I 110568.12 File: S: Parks & Roe: Council Actions: Oct.- Dec. 07: City Lease -Contract AUTHORITY: AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY By: David Kennedy, Chairman Date: IS EXHIBIT "A" JANITORIAL SERVICES tit (Janitorial servlee to provide/supply all sanitary and paper good..) DAILY SERVICES FIVE (5) DAYS PER WEEK: I. Empty and damp clean all ashtrays. 2. Empty all waste baskets and other waste containers. 3. Dust mop all tiled-terrazzo floors. 4. Vacuum traffic lanes of carpeting. 5. Dust all desks, chairs, tables, filing cabinets and other office furniture. 6. Damp clean lobby counters. 7. Clean and sanitize rest room fixtures, mirrors, chrome pipes, etc. 8. Clean splash marks from walls of rest room. 9. Wet mop and sanitize rest room floors. 10. Refill soap, towel and paper containers. II. Clean and sanitize drinking fountains. 12. Clean hand marks off glass on entrance doors. 13. Damp clean table tops in coffee rooms. 14. Clean kitchen sinks and counters. 15. Sweep entryways. 16. Brush down steps of inside stairwells. 17. Vacuum elevator carpel. 18. Spot clean elevator walls and doors. 19. Spot clean carpets of small spillages, footprints, etc. 20. Keep janitor closets clean and orderly. e WEEKLY SERVICE: 1. Wet mop all tiled-terrazzo floors. 2. Clean all desk tops that are cleared. 3. Clean hand marks from walls, doors and woodwork. 4. Vacuum all carpeting completely. ONCE-MONTHLY SERVICE: 1. Pest control. TWICE-MONTHLY SERVICE: 1. Dust high areas. 2. Clean lobby directories and fire extinguisher glass. 3. Machine scrub all tiled floors. 4. Wax all tiled floors. 5. Machine polish all tiled floors. OTHER SERVICES WHEN NEEDED I. Vacuum dust and dirt accumulation from air-conditioning vents. 2. Replace light bulbs and tubes inside building. 3. Brush down cobwebs inside building. 4. Machine scrub or dry clean all carpeted areas. e EVERY THREE MONTHS 1. Wash outside windows. 2. Wash inside windows and partitions. 3. Supply and change entry mats. The above are considered the minimum standard janitorial item.. AUTHORITY is responsihle for providing all services reiated to the health and cleanliness ofthe leased facility. I File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -contract e e e EXHIBIT "B" LIST OF FORMER CITY OFFICIALS INSTRUCTIONS: List the full name of the former CITY Administrative Official, the title/description of the Official's last position with the CITY, the date the Official terminated CITY employment, the Official's current employment and/or representative capacity with the LANDLORD, the date the Official entered LANDLORD's employment and/or representation. OFFICIAL'S NAME: REOUlRED INFORMATION I File: S: Parks & Rec: Council Actions: Oct.- Dee. 07: City Lease -Contract e e e CITY OF SAN BERNARDINO LEASE AGREEMENT AUTHORITY: AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY % David Kennedy, Chairman 8088 Palm Lane San Bernardino CA 92410 CITY: CITY OF SAN BERNARDINO PREMISES: 8088 Palm Lane San Bernardino, CA 92410 TERM OF LEASE: Four years with two (2) five-year period options. COMMENCEMENT DATE OF LEASE: November 1,2007 COST PER SQUARE FOOT: $.33 full service CITY CONTRACT NUMBER: File: s: Parks & Reo: Council Actions: Oct.- Dec. 07: City Lease -Contract e TABLE OF CONTENTS e PARAGRAPH CAPTION 1 PARTIES 2 PREMISES LEASED 3 TERM 4 RENT 5 EXPANSION OF RENTAL SPACE 6 OPTION TO EXTEND TERM 7 RETURN OF PREMISES 8 HOLDING OVER 9 TAXES 10 USE 11 HEALTH, SAFElY & FIRE CODE REQUIREMENTS 12 SIGNS 13 MAINTENANCE 14 ALTERATIONS 15 FIXTURES 16 UTIUTIES 17 HOLD HARMLESS 18 INSURANCE 19 DESTRUCTION OF PREMISES 20 AUTHORI1Y'S DEFAULT 21 CI1Y'S REMEDIES ON AUTHORI1Y'S DEFAULT 22 CI1Y'S DEFAULT 23 AUTHORI1Y'S REMEDIES ON CI1Y'S DEFAULT 24 AUTHORI1Y'S ACCESS TO PREMISES 25 NOTICES. 26 INCORPORATION OF PRIOR AGREEMENT 27 WAIVERS 28 AMENDMENTS 29 SUCCESSORS 30 SEVERABIUlY 31 TIME OF ESSENCE 32 QUIET ENJOYMENT 33 PROVISIONS ARE COVENANTS & CONDmONS 34 CONSENT 35 EXHIBITS 36 LAW 37 VENUE 38 ATTORNEYS' FEES AND COSTS 39 RESERVED 40 COUN1Y'S RIGHT TO TERMINATE LEASE 41 AUTHORI1Y'S IMPROVEMENTS 42 CAPTIONS, TABLE OF CONTENTS & COVER PAGE 43 SURVNAL . 44 FORMER CIlY OFFICIALS PAGE 1 1 1 1 1 2 2 2 2 2 2 3 3 4 4 4 4 5 6 7 8 8 8 9 9 10 10 10 10 10 10 11 11 11 11 11 11 11 11 11 11 11 12 12 e File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract . . e Table of Contents Page -2- 45 46 47 48 49 50 51 52 BROKER'S COMMISSIONS HAZARDOUS SUBSTANCES PUBLIC RECORDS DISCLOSURE CONDITION OF PREMISES CONDEMNATION MATERIAL MISREPRESENTATION INTERPRETATIONS AUTHORIZED SIGNATORS 12 12 13 13 13 14 14 14 Exhibit "A", Janitorial Services Exhibit "B", List of Former City's Officials File: S: Parks & Reo: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e LEASE AGREEMENT WHEREAS, the City of San Bernardino ("CITY") has previously entered into an agreement which created a joint power entity, the Authority for the Handicapped of San Bernardino County ("AUTHORITY"); and, WHEREAS, the CITY and AUTHORITY, are individually a "Party" and collectively "the Parties"; NOW THEREFORE, the Parties agree as follows: 1. PARTIES: This lease ("Lease") is made between the AUTHORITY, as landlord, and the CITY, as tenant, who agree as follows: 2. PREMISES LEASED: AUTHORITY leases to CITY and CITY leases from AUTHORITY 15500 square feet of building, real property, and other improvements, with adequate parking spaces, including handicapped parking, located at 8808 Palm Lane, San Bernardino, CA, 92410 ("Premises"). 3. TERM: The Lease's initial term ("Initial Term") shall commence on November I, 2007 ("Commencement Date") and end on October 31, 2011 ("Ending Date"). 4. RENT: a. CITY shall pay to AUTHORITY the following monthly rental payments in arrears on the last day of each month, commencing when the term commences, continuing during the term: November 1,2007 thru October 31,2008 - monthly payments of$5,125. November 1,2008 thru October 31, 2009 - monthly payments of $5,253. November I, 2009 thru October 31, 2010 - monthly payments of $5,384. November 1,2010 thru October 31, 2011 - monthly payments of$5,519. b. Rent for any partial month shall be prorated based on the actual number of days of the month. All rent shall be paid to AUTHORITY at the address to which notices to AUTHORITY are given. c. If the CITY has accepted the Premises as Substantially Completed with minor corrections and/or additions remaining to be completed, only eighty percent (80%) of the monthly rental will be paid to AUTHORITY, and the remaining twenty percent (20%) of the monthly rental will accrue from the Commencement Date of this Lease but will not be paid to AUTHORITY until all such minor corrections and/or additions have been completed and accepted by CITY. If the CITY withholds monthly rental payments under this subparagraph, the CITY will not be in default and no interest or service charges will be added to the amounts due AUTHORITY upon completion of the minor corrections and/or additions. The minor corrections and/or additions remaining to be completed are subject to subparagraph I3b, MAINTENANCE. 5. EXPANSION OF RENTAL SPACE: There is no expansion space in this Lease. 1 File: S: Parks & Roc: Council Actions: Oct.- Oec. 07: City Lease -COntract e e e 6. OPTION TO EXTEND TERM: AUTHORITY gives CITY the option to extead the term of the Lease on the same provisions and conditions, except for the monthly rent, for two five- year periods ("extended terms") following expiration of the Initial Term, by CITY giving notice of its intention to exercise the option to AUTHORITY prior to the expiration of the preceding term or during any holding over pursuant to Pangnph 8, HOLDING OVER. The rent for each 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 County. 7. RETURN OF PREMISES: The CITY agrees that it will, upon any termination of this Lease, return the Premises in as good condition and repair as the Premises now are or shall hereafter be put; reasonable wear and tear excepted. 8. HOLDING OVER: In the event the CITY shall hold over and continue to occupy the Premises with the consent of the AUTHORITY, 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. 9. TAXES: AUTHORITY shall pay all real property taxes, and general and special assessments levied and assessed against the Premises. 10. ~ CITY shall occupy and use the Premises during the term hereoffor the purposes of CITY business. II. HEALTH. SAFETY AND FIRE CODE REQUIREMENTS: As a condition precedent to the existence of this Lease, AUTHORITY, 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 and the Americans with Disabilities Act ("ADA"). Additionally, AUTHORITY warrants that any improvements on or in the Premises which have been constructed or installed by AUTHORITY or with AUTHORITY's consent or at AUTHORITY's direction shall comply with all applicable covenants or restrictions of record and applicable Codes, statutes, regulations and ordinances in "ffect on the Commencement Date. AUTHORITY also warrants to CITY that AUTHORITY 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 AUTHORITY shall correct, update and comply with said changes at AUTHORITY's cost. 12. SIGNS: CITY will display from the windows and/or marquee of the Premises only such sign or signs as are not prohibited by law. 13. MAINTENANCE: a. AUTHORITY at its cost shall perform such inspections, maintenance and repairs as are necessary to ensure that all portions of the Premises, including but not limited to the following, are at all times in good repair and safe condition: 2 File: S: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract . . e (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 (UlCluding glass and doors), subflooring, and roof; and, (2) The electrical, plumbing, and sewage systems, including, without limitation, those portions of the systems owned or controlled by AUTHORITY 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 (HV AC) 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, AUTHORITY is to provide an air balance certificate and maintenance of the HV AC servicing); and, (5) The grounds, 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 facility; and, (7) . Interior .maintenance and janitorial services. Janitorial services must be performed in a workman-like manner by a licensed and qualified independent janitorial contractor, and are to include but are not limited to the items set forth in Exhibit "A", Janitorial Services. AUTHORITY shall perform interior maintenance and janitorial services at a time and in a manner that will cause the least possible inconvenience, annoyance, or disturbance to CITY. b. Without in any way affecting AUTHORITY'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 AUTHORITY by the CITY, the CITY may request specific maintenance or repairs. Any such request may be made orally, by telephone or otherwise. If, (a) CITY gives notice to AUTHORITY of a condition requiring maintenance or repairs and AUTHORITY does not commence the performance of its maintenance or repair obligations within ten (10) days of receiving such notice, or does not diligently prosecute its obligations to completion thereafter, or (b) in the case of an emergency, whether or not CITY has given notice to AUTHORITY, AUTHORITY does not immediately perform its obligations, CITY can perform the obligations and have the right to be reimbursed for the sum CITY actually and reasonably expends (including charges for CITY employees and equipment) in the performance of AUTHORITY's obligations. The sum expended by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shall forward to LANDLORD receipts and/or documentation supporting the amount withheld. 3 File: s: Parks & Reo: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e 14. ALTERATIONS: CITY shall not make any structural or exterior improvements or alterations to the Premises without LANDLORD's consent. Any such alterations shall remahion and be surrendered with the Premises on expiration or termination of the Lease. 15. FIXTURES: CITY shall have the right during the term(s) of this Lease to install shelving and fixtures, and make interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures, improvements, and alterations shall remain the property of the CITY and may be removed by the CITY during the term(s) of this Lease or within a reasonable time thereafter, provided that the CITY restores the Premises to the condition as it existed at the commencement of this Lease, reasonable wear and tear excluded, or the CITY in its sole discretion may elect to surrender all or any part of such shelving, fixture, improvements and alterations to the AUTHORITY, in which case CITY shall have no duty to restore the Premises. Any such election to surrender must be in writing, but need not be accepted by AUTHORITY to be effective. 16. UTILITIES: AUTHORITY shall furnish to the Premises and pay all service charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities. CITY shall furnish and pay for vending machines and its own telephone service including pay telephones. 17. HOLD HARMLESS: The AUTHORITY agrees to indemnify, defend (with counsel approved by CITY) and hold harmless the CITY, 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 CITY, including Attorney's fees, arising out of: (a) any improvements constructed by the AUTHORITY pursuant to the Lease; (b) the AUTHORITY'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 CITY's use of the Premises, except where such indemnification is prohibited by law. The AUTHORITY's indemnification obligation applies to the CITY's "active" as well as "passive" negligence, but does not apply to the CITY's "sole negligence" or "willful misconduct" within the meaning of Civil Code section 2782. The AUTHORITY's indemnification obligation shall survive the CITY's tenancy. The insurance provisions in Paragraph 18, INSURANCE, shall not be interpreted in a manner that limits the indemnification obligation. 18. INSURANCE: a. CITY is a public entity and is self-insured. b. Without in any way affecting the indemnity .herein provided and in addition thereto, the AUTHORITY shall secure and maintain throughout the Lease the following types of insurance with limits as shown. AUTHORITY may meet these insurance requirements through a State-approved program of self insurance. (1) Workers' Compensation: A program of Workers' Compensation insurance or a state-approved Self-Insurance Program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) limits, covering all persons providing services on behalf of the AUTHORITY and all risks to such persons under this agreement. 4 File: s: Parks 8< Roc: Council Actions: Oct.- Dec. 07: City Lease -COntract e e e If AUTHORITY has no employees, it may certifY or warrant to CITY that it does not currently have any employees or individuals who are defined as "employees" under the Labor Code8Dd the requirement for Workers' Compensation coverage will be waived by the CITY's Risk Manager. If AUTHORITY is a non-profit corporation organized under California or Federa1law, volunteers for the AUTHORITY are required to be covered by Workers' Compensation insurance. If the CITY's Risk Manager determines that there is no reasonably priced coverage for volunteers, evidence of participation in a volunteer insurance program may be substituted. (2) Comprehensive General and Automobile Liability Insurance: This coverage to include contractual coverage and automobile liability coverage for owned, hired and non-owned vehicles. The policy shall have combined single limits for bodily injury and property damage of not less than One Million and 00/100 Dollars ($1,000,000.00). (3) Fire Insurance: Standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements to the extent of the full replacement value of the Premises. c. Additional Named Insured: All policies, except for Workers' Compensation, shall contain additional endorsements naming the CITY and its officers, employees, agents and volunteers as additional named insured with respect to liabilities arising out of this agreement. d. Waiver of Subrogation Rights: AUTHORITY shalI require the carriers of the above required coverages to waive. all rights of subrogation against the CITY, its officers, employees, agents, volunteers, contractors and subcontractors. e. Policies Primary and Non-Contributory: AII policies required above are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the CITY. f. Proof of Coverage: AUTHORITY shall immediately furnish certificates of insurance to CITY, evidencing the insurance coverage, including endorsements, above required prior to occupying the Premises and the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the CITY, and AUTHORITY shall maintain such insurance from the time of occupancy and commencement of performance of services hereunder until the completion of such occupancy. Within sixty (60) days of the commencement of this agreement, the AUTHORITY shall furnish certified copies of the policies and all endorsements. g. Insurance Review: The above insurance requirements are subject to periodic review by the CITY. The CITY's Risk Manager is authorized, but not required, to reduce or waive any of the above insurance requirements whenever the Risk Manager determines that any of the above insurance is not available, is unreasonably priced, or is not needed to protect the interests of the CITY. In addition, if the Risk Manager determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Risk Manager is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any. such change is reasonable in light of past claims against the CITY, inflation, or any other item reasonably 5 File: S: Parks & Ree: Council Actions: Oct.- Dee. 07: City Lease -COntract e e e related to the CITY's risk. Any such reduction or waiver for the entire term of the agreert'eI't and any change requiring additional types of insurance coverage or higher coverage limits must lie made by amendment to this agreement. AUTHORITY agrees to execute any such amendment within thirty (30) days of receipt. h. Failure to Have Insurance: In the event CITY receives a notice of cancelIation concerning any of the required policies, or should AUTHORITY fail to have in effect the required coverage at any time during this Lease, CITY may give notice to AUTHORITY to immediately suspend all AUTHORITY activities on the Premises and/or notice to reinstate or acquire the affected coverage. Should AUTHORITY fail to reinstate or acquire the affected coverage within ten (10) days of CITY's notice to reinstate or acquire such coverage, CITY, in its sole discretion, may either; (a) terminate this Lease immediately upon written notice to AUTHORITY, or (b) reinstate or acquire the affected coverage, in which case AUTHORITY shall reimburse CITY for the sum paid to reinstate or acquire the coverage. The sum paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shall forward to AUTHORITY receipts and/or documentation supporting the amount withheld. i. CITY shall have no liability for any premiums charged for such coverage(s). The inclusion of CITY as additional named insured is not intended to and shall not make it a partner or joint venture with AUTHORITY. 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 AUTHORITY shalI, at AUTHORITY'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 AUTHORITY does not commence the restoration.of the Premises in a substantial and meaningful way within thirty (30) days following the AUTHORITY's receipt of written notice of the casualty, or should AUTHORITY fail to diligently pursue completion of the restoration of the Premises, or if the time required to restore the Premises is estimated to exceed ninety (90) days, CITY may, at its option, terminate this Lease immediately upon written notice to the AUTHORITY. If CITY elects to terminate this Lease pursuant to this provision, CITY shall be discharged of all future obligations under this Lease. Alternatively, if AUTHORITY fails to commence the restoration of the Premises or fails to diligently pursue the completion of the restoration as aforesaid, CITY may, at its option and in its sole discretion, after notice to AUTHORITY, perform AUTHORITY's obligations and restore the Premises. If CITY elects to restore the Premises, CITY shall have the right to be reimbursed for all sums it actually and reasonably expends (including charges for CITY employees and equipment) in the performance of AUTHORITY's obligations. The sum paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until 6 File: S: Parks & Roc:: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY bas paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. CITY shall forward to AUTHORITY 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 CITY'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, AUTHORITY agrees to use any and all insurance proceeds received for said destruction in the restoration of the Premises. d. In the event AUTHORITY is required to restore the Premises as provided in this paragraph, AUTHORITY shall restore, at AUTHORITY's expense, any structural or exterior improvements or alterations to the Premises made by CITY pursuant to Paragraph 14, ALTERATIONS, of this Lease, but shall not be responsible for restoring any shelving, fixtures, or interior nonstructura1 improvements or alteration made by the CITY 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. AUTHORITY'S DEFAULT: Except where another time limit is specifically provided, AUTHORITY shall be in default of this Lease if AUTHORITY 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 AUTHORITY's receipt of written notice of default from CITY. If the default cannot reasonably be cured within thirty (30) days, AUTHORITY shall not be in default of this Lease if AUTHORITY commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. 21. CITY'S REMEDIES ON AUTHORITY'S DEFAULT: CITY, at anytime after AUTHORITY is in default, can terminate this Lease immediately upon written notice to AUTHORITY or can cure the default at AUTHORITY's cost. If CITY at any time, by reason of AUTHORITY's default, pays any sum or does any act that requires the payment of any sum (including charges for CITY's employees and equipment), the sum paid by CITY shall be due from AUTHORITY to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was 7 File: s: Parks & Roc: Council Actions: Oct.- Dee. 07: City Lease -COntract e e e paid by CITY WltH CITY is reimbursed by AUTHORITY. If AUTHORITY fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid Wltil CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. 22. CITY'S DEFAULT: The occurrence of anyone or more of the following events shall constitute a default and breach of this Lease by CITY: a. The vacating for more than thirty (30) consecutive days or abandonment of the Premises by CITY. b. The failure by CITY to perform any material provisions of this Lease to be performed by CITY, including the payment of rent, where such failure shall continue for a period of thirty (30) days after notice by AUTHORITY to CITY; provided, however, that if the nature of CITY's default is such that more than thirty (30) days are reasonably required for its cure, then CITY shall not be deemed to be in default if CITY commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. The purpose of this notice requirement is to extend the notice requirements of the unlawful detainer statutes of California. 23. AUTHORITY'S REMEDIES ON CITY'S DEFAULT: a. In the event of any default by CITY, which is not cured by CITY, AUTHORITY may, at its election, terminate this Lease by giving CITY thirty (30) days notice oftermination. The' purpose of this notice requirement is to extend the notice requirement of the Wllawful detainer statutes of California. On termination of the Lease for default pursuant to this paragraph, AUTHORITY shall have the right to recover from CITY only the following amoWlts for any and all damages, which may be the direct or indirect result of such default: (I) The worth, at the time of the award, of the Wlpaid rent that has been earned at the time of termination of this Lease; and, (2) The worth, at thetime of the award, of the amoWlt by which the Wlpaid rent that would have been earned after the date of termination of this Lease WltH the time of award exceeds the amoWlt of the loss of rent that AUTHORITY proves could not have been reasonably avoided; and, . (3) The worth, at the time of the award, of the amoWlt by which the Wlpaid rent for the balance of the term after the time of award exceeds the amoWlt of the loss of rent that AUTHORITY proves could not have been reasonably avoided; and, (4) Any other amoWlt necessary to compensate AUTHORITY for all detriment proximately caused by CITY's default which AUTHORITY proves could not have been reasonably avoided. (5) "The worth, at the time of the award," as used in subparagraphs a(l) and a(2) of this paragraph, is to be computed by allowing interest at the maximum rate an individual is permitted by law to charge. "The worth, at the time of the award," as referred to in subparagraph 8 File: S: Parks &: Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract . . . a(3) of this paragraph, is to be 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%) b. Notwithstanding subpangnph a, above, on any termination of the Lease for default pursuant to this paragraph, the amount AUTHORITY shall have the right to recover from CITY for any and all damages which may be the direct or indirect result of such default shall not exceed the amount AUTHORITY would have been entitled to receive had the CITY terminated the lease under Paragnph 40, CITY'S RIGHT TO TERMINATE LEASE. 24. AUTHORITY'S ACCESS TO PREMISES: AUTHORITY and its authorized representatives shall have the right to enter the Premises at all reasonable times for any of the following purposes: a. To determine whether the Premises are in good condition; and, b. To do any necessary maintenance and to make any restoration to the Premises that AUTHORITY 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. AUTHORITY shall conduct its activities on the Premises as allowed in this paragraph in a manner that will cause the least possible inconvenience, annoyance, or disturbance to CITY. 25. NOTICES: a. Any notice, demand, request, consent, approval, or communication that either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. Any notice, demand, request, cotisent, 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. Notice shall be deemed communicated two (2) CITY working days from the time of mailing if mailed as provided in this paragraph. AUTHORITY's address: Authority for the Handicapped of San Bernardino % David Kennedy, Chairman 8088 Palm Lane San Bernardino, CA 92410 CITY's address: City of San Bernardino Parks, Recreation & Community Services. Dept. % Ken Joswiak, C.LD. Manager 547 N. Sierra Way San Bernardino, CA 92410 9 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -COntract . . . b. If, at any time after the CITY accepts the Premises, the AUTHORITY assigns or transfers a non-controlling interest of its rights in the Premises to a third party, AUTHORITY must notify CITY of its action at least fifteen (15) CITY working days prior to completing any such action. c. If, at any time after the CITY accepts the Premises, the AUTHORITY assigns or transfers a controlling interest of its rights in the Premises to a third party, AUTHORITY must notify CITY of its action at least fifteen (15) CITY working days prior to completing any such action. The new owner must provide CITY with evidence of completion of such action. The Parties shall immediately execute an amendment to this Lease stating the change of ownership of the Premises. (I) Within fifteen (15) CITY working days of completing any action which affects a change in the ownership of the Premises, the new owner must provide CITY evidence of obtaining insurance in compliance with Paragraph 18, INSURANCE. 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 invaIid 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. OUlET ENJOYMENT: Subject to the provisions of this Lease and conditioned upon performance of all the provisions to be performed by CITY hereunder, AUTHORITY shall secure to CITY during the Lease term the quiet and peaceful possession of the Premises and all right and privilege appertaining thereto. 33. PROVISIONS ARE COVENANTS AND CONDITIONS: All provisions, whether covenants or conditions, on the part of either Party shall be deemed to be both covenants and conditions. 10 File: S: Parks & Ree: Council Actions: Qct.- Dec. 07: City Lease -Contract e e e 34. CONSENT: Whenever consent or approval of either Party is required that Party shall not unreasonably withhold, condition or delay such consent or approval. 35. EXHIBITS: All exhibits referred to are attached to this Lease and incorporated by reference. 36. LAW: This Lease shall be construed and interpreted in accordance with the laws of the State of California. 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, San Bernardino District. 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, San Bernardino District. 38. ATTORNEY'S 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 against the CITY, including such costs and attorneys' fees payable under Paragraph 17, HOLD HARMLESS, Paragraph 48, HAZARDOUS SUBSTANCES, and Paragraph 49, PUBLIC RECORDS DISCLOSURE. The costs, salaries and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the City shall be considered as "Attorney's Fees" for purposes of this paragraph. 39. RESERVED: 40. CITY'S RIGHT TO TERMINATE LEASE: a. Notwithstanding any provision in this Lease to the contrary, the CITY shall be entitled to unilaterally terminate this Lease whenever CITY, in its sole and unfettered discretion, determines that termination of this Lease would be in the CITY's best interests, upon written notice delivered to the AUTHORITY at least sixty (60) days prior to the notice date of termination. b. This lease may be terminated by mutual consent of the Parties. 41. AUTHORITY'S IMPROVEMENTS: There are no improvements 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 CITY OFFICIALS: LANDLORD agrees to provide or has already provide information on former CITY administrative officials (as defined below) who are employed by or represent LANDLORD. The information provided includes a list of former CITY administrative officials who terminated CITY employment within the last five years and who are now officers, 11 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e 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, "CITY administrative official" is defined as a member of the Mayor and Common Councilor such officer's lIt8ft CITY administrative Officer or member of such officer's staff, CITY department or group head, assistant department or group head, or any employee in the Exempt Group, Management Unit or Safety Management Unit. (See Exhibit "B", List of Former City Officials). 45. BROKER'S COMMISSIONS: There are no Broker's Commissions in this Lease. 46. HAZARDOUS SUBSTANCES: a. AUTHORITY hereby represents and warrants that, to the best of AUTHORITY's knowledge, information and belief: (i) the Premises have not been exposed to Hazardous Substances and are presently free of all Hazardous Substances; (ii) neither the AUTHORITY 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 to date, and the soil, groundwater and vapor on or under the Premises is free of Hazardous Substances as of the Commencement Date. b. AUTHORITY shall indemnify, protect, defend and hold CITY, 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 prior to the Commencement Date of this Lease. Additionally, the issuance of an order by any governmental authority directing the AUTHORITY or any of AUTHORITY'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 AUTHORITY or any person acting under AUTHORITY's direct control and authority is a breach of this Contract, and AUTHORITY shall be. responsible for all costs and expenses of complying with such order, including any and all expenses imposed on or incurred by CITY in connection with or in response to such order. AUTHORITY'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 CITY, and the cost of investigation, removal, remediation, restoration and/or abatement thereof. AUTHORITY's obligations under this provision shall survive the expiration or early termination of this Lease. No termination, cancellation or release agreement entered into by CITY and AUTHORITY shall release AUTHORITY from its obligations under this Lease with regard to Hazardous Substances unless specifically agreed to by CITY in writing. c. For the purposes of this paragraph, the following definitions shall apply: (I) "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, is either (i) potentially injurious to the public health, safety or welfare, the environment or the Premises; (ii) regulated or 12 File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract . . . monitored by any governmental authority; or (iii) a basis for potential liability of AUTHORITY or CITY under any applicable statute or common law theory. (2) "Reportable use" shall mean (i) the insta1lation 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 of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises 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. 47. PUBLIC RECORDS DISCLOSURE: All information received by the CITY from the AUTHORITY or any source concerning this Lease, including the Lease itself, may be treated by the CITY as public information subject to disclosure under the provisions of the California' Public Records Act, Government Code Section 6250 et sea. (the "Public Records Act"). AUTHORITY understands that although all materials received by the CITY in connection with this Lease are intended for the exclusive use of the CITY, they are 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 AUTHORITY has reasonably requested CITY to hold in confidence is made to the CITY, the CITY shall notify the AUTHORITY of the request and shall thereafter disclose the requested information unless the AUTHORITY, within five (5) days of receiving notice of the disclosure request, requests nondisclosure, provides CITY a legally sound basis for the nondisclosure, and agrees to indemnify, defend, and hold the CITY harmless in any/all actions brought to require disclosure. AUTHORITY waives any and all claims for damages, lost profits, or other injuries of any and all kinds in the event CITY fails to notify AUTHORITY of any such disclosure request and/or releases any information concerning the contract received from the AUTHORITY or any other source. 48. CONDITION OF PREMISES: AUTHORITY shall deliver the Premises to CITY clean and free of debris on the Commencement Date and warrants to CITY that the plumbing, electrical systems, fire sprinkler system, lighting, air conditioning and heating systems and loading doors, if any, in the Premises shall be in good operating condition on the Commencement Date. 49. CONDEMNATION: 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 CITY's parking, is taken by condemnation, CITY may, at CITY's option, to be exercised in writing within thirty (30) days after AUTHORITY shall have given CITY written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning AUTHORITY takes such possession. If CITY does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the rent shall be reduced in the same proportion as the rentable floor 13 File: S: Parks & Roo: Council Actions: Oct.- Dec. 07: City Lease -COntract e e e 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. CITY sha1I be entitled to receive the following amounts of any award for the taking of all or any part of the PJP.mi_ lDIder the power of eminent domain or any payment made under threat of the exercise of such power: (a) one hundred percent (100%) of any amount attributable to any excess of the market value of the Premises for the remainder of the Lease Term over the present value as of the Termination Date of the Rent payable for the remainder of the Lease Term (commonly referred to as the "bonus value" of the Lease); and (b) CITY shall have the right 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 CITY that CITY has the right to remove at the end of the Lease term and that CITY elects not to remove; (ii) Reasonable removal and relocation costs for any trade fixtures or leasehold improvements that CITY has the right to remove and elects to remove (if Condemnor approves of the removal); (iii) Loss of goodwill; (iv) Relocation costs under Government Code section 7262, the claim for which CITY may pursue by separate action independent of this Lease; and (v) Any other amount in addition to the foregoing that the CITY is allowed under condemnation law. CITY shall have the right to negotiate directly with Condemnor for the recovery of the portion of the Award that CITY is entitled to under subparagraph (b) of this paragraph. In the event that this Lease is not terminated by reason of such condemnation, AUTHORITY shall repair any damage to the Premises caused by such condemnation authority pursuant to Paragraph 13, MAINTENANCE, and Paragraph 19, DESTRUCTION OF PREMISES. 50. MATERIAL MISREPRESENTATION: If during the course of the administration of this lease, the CITY determines that the AUTHORITY has made a material misstatement or. misrepresentation or that materially inaccurate information has been provided to the CITY, this Lease may be immediately terminated. If this Lease is terminated according to this provision, the CITY is entitled to pursue any available legal remedies. 51. 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. 52. AUTHORIZED SIGNATORS: Both Parties to this Lease represent that the signators executing this document are fully authoriZed to enter into this agreement. III III /II III /II III III 14 File: s: Parks & Rec: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e LEASE AGREEMENT BETWEEN THE AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY AND THE CITY OF SAN BERNARDINO CITY OF SAN BERNARDINO By: Fred Wilson, City Manager Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD By: Date: Approved as to form: James Penman, City Attorney By: ~~,(7/_- J -i/4-~. Date: rt7c/f~ 12 1...06/ ( 110568.12 File: S; Parks & Rec; Council Actions; Oct.- Dec. 07; City Lease -Contract AUTHORITY: AUTHORITY FOR THE HANDICAPPED OF SAN BERNARDINO COUNTY By: David Kennedy, Chairman Date: 15 e e e EXlUBIT "A" JANITORlALSERVICES (Janitorial service to provide/supply all sanitary and paper pods.) DAILY SERVICES FIVE (5) DAYS PER WEEK: I. Empty and damp clean all ashtrays. 2. Empty all waste baskets and other waste containers. 3. Dust mop all tiled-terrazzo floors. 4. Vacuum traffic lanes of carpeting. 5. Dust all desks, chairs, tables, filing cabinets and other office furniture. 6. Damp clean lobby counters. 7. Clean and sanitize rest room fixtures, mirrors, chrome pipes, etc. 8. Clean splash marks from walls of rest room. 9. Wet mop and sanitize rest room floors. 10. Refill soap, towel and paper containers. II. Clean and sanitize drinking fountains. 12. Clean hand marks off glass on entrance doors. 13. Damp clean table tops in coffee rooms. 14. Clean kitchen sinks and counters. 15. Sweep entryways. 16. Brush down steps of inside stairwells. 17 . Vacuum elevator carpet. 18. Spot clean elevator walls and doors. 19. Spot clean carpets of small spillages, footprints, etc. 20. Keep janitor closets clean and orderly. WEEKLY SERVICE: 1. Wet mop all tiled-terrazzo floors. 2. Clean all desk tops that are cleared. 3. Clean hand marks from walls, doors and woodwork. 4. Vacuum all carpeting completely. ONCE-MONTHLY SERVICE: 1. Pest control. TWICE-MONTHLY SERVICE: 1. Dust high areas. 2. Clean lobby directories and fire extinguisher glass. 3. Machine scrub all tiled floors. 4. Wax all tiled floors. 5. Machine polish all tiled floors. OTHER SERVICES WHEN NEEDED I. Vacuum dust and dirt accumulation from air-conditioning vents. 2. Replace light bulbs and tubes inside building. 3. Brush down cobwebs inside building. 4. Machine scrub or dry clean all carpeted areas. EVERY THREE MONTHS 1. Wash outside windows. 2. Wash inside windows and partitions. 3. Supply and change entry mats. The above are considered the minimum standard janitorial items. AUTHORITY is responsible for providing all services related to the health and cleanliness ofthe leased facility. I File: S: Parks & Roc: Council Actions: Oct.- Dec. 07: City Lease -Contract e e e EXHIBIT "B" LIST OF FORMER CITY OFFICIALS INSTRUCTIONS: List the fun name of the former CITY Administrative Ofticial, the title/description of the Official's last position with the CITY, the date the Official terminated CITY employment, the Official's current employment and/or representative capacity with the LANDLORD, the date the Official entered LANDLORD's employment and/or representation. OFFICIAL'S NAME: REOUIRED INFORMATION File: S: Parks & Reo: Council Actions: Oct.- Dec. 07: City Lease -contract