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HomeMy WebLinkAbout05.D- City Manager 5.D DOC ID: 4733 C CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Agreement/Contract From: Mark Scott M/CC Meeting Date: 11/21/2016 Prepared by: Tanya Romo, (909) 384- 5122 Dept: City Manager Ward(s): Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the City Manager to Execute a Lease Agreement Between the City of San Bernardino and 215 North D Street LLC for the Lease of Office Space. (#4733) Current Business Registration Certificate: Financial Impact: Financial impact information included in the staff report. Motion: Adopt the Resolution. Financial Impact The City shall pay $21,566.70 per month for the first year of two year lease. The City shall pay $22,213.70 per month for the remainder of the lease period. The tenant improvements for these suites are estimated to be $5,000. To complete the emergency move out of City Hall to leased space will require additional expenditure of funds as estimated below: Move Management $49,500 IT Department costs $321,000 Moving Company $100,000 Document Storage $1,500 These estimated costs are not part of the official action requested in this submittal and are for information only. Individual items that require City Council approval will be submitted in separate Requests for Council Action. Funds have been appropriated in the amount of $1,600,000 in the FY 2016-17 Budget for the relocation of staff into suitable space. Future fiscal year budgets will include the lease costs. Background The City Council has authorized two independent engineering evaluations of the structural integrity of the City Hall Building. The most recent report in February, 2016 indicated that the building may suffer significant structural failure in the event of a major Updated: 11/17/2016 by Jolena E. Grider C I Packet Pg. 71 5.D 4733 earthquake. The City lies atop two large faults, the San Andreas and San Jacinto, which have the potential to produce a major earthquake. The City Hall Building potentially can be retrofitted to prevent major structural failure. However, according to the most recent engineering study, that project will require in excess of $14 million and will take extended period of time to complete. In April 2016, the City directed staff to identify building(s) to relocate City staff and elected officials until a decision could be made on the City Hall seismic retrofit. Staff considered leased space in nearby buildings as well as buildings proximate to City Hall Plaza that the City owns. It was decided to retrofit the 201 North E Street Building to allow relocation of staff and operations. That building currently houses the City Cable Studio and several City departmental operations. The renovation of the 201 North E Street Building will take approximately 12-18 months to complete. Recently a swarm of seismic activity detected in the Salton Sea area raised the possibility that a major earthquake could occur before the renovation of the 201 North E Street Building was complete. As a result, the City Manager concluded that an emergency relocation of staff was necessary and City staff was directed to find leased space to relocate City staff and elected officials as quickly as practicable. Staff made contact with brokers for space available that was proximate to City Hall Plaza. It was critical that the space: a. Would be readily adaptable to City operations and necessary security b. Accessible to the public with adequate parking c. In a building that was seismically safe d. Available for a short term lease e. Have fiber optic connectivity f. Have a competitive lease rate Staff selected three buildings; Vanir Tower 290 North D Street (APN -0134-311-42-000); 215 North D Street (APN - 0135-201-30-0000) and 600 North Arrowhead Avenue (APN- 0135-022-01,02,03-0000). 215 North D Street Building is located across the street from the Vanir Tower Building and a block from the City Hall Plaza. The building currently houses the LAFCO offices and other private offices. The lease will provide four suites on two floors in the building with a total of 13,914 square feet. Surface parking is available at the building and employee and public parking is available in the City Hall Parking structure which is nearby. Two of the suites will be occupied by the Human Resources Department staff and the Civil Service Department staff. Suitable space is available in the suites for Civil Service Commission meetings as well as all department functions. The remaining two suites will be occupied by the City Clerk Office and staff; staff for the Successor Agency for the Updated: 11/17/2016 by Jolena E. Grider C I Packet Pg. 72 5.D 4733 former Economic Development Agency; and Housing Division staff. One suite will be occupied by the City Clerk's office and the other interconnected suite will be utilized by the Housing and Successor Agency. The Building also houses private professional offices and is accessible to the public. The owner of the building has provided documentation on the safety of the structure and that information has been reviewed by the engineering firm contracted by the City. The space in the building is available for the short term lease needs of the City. Two of the suites were previously occupied by San Bernardino County staff and the furniture was left behind in those suites. The furniture has been made available for City use by the landlord and this will reduce moving costs significantly into this space. The suites occupied by the City staff will be secured spaces and will be patrolled by City security staff. This space does not require any tenant improvements prior to occupation. The landlord did paint and replace the carpet in the second floor suites. The Information Technology staff has inspected the building and it can be connected to the City's Data Center network with leased fiber optic lines. The rental rate for the space ($1.55/square foot) is a competitive rate for a short term lease in the City Hall Plaza area. Two of the suites were repainted and re-carpeted in anticipation of occupation by the City staff. If the lease is approved by the City Council, then the Information Technology staff can begin immediately the process of connecting the suites in the building to the City Data Center network. Tenant improvements are to install a new doorway and install security locks on the entry doors. Supporting Documents Copy of the proposed lease Floor plans for the leased space Cost for leases by suite Supporting Documents: 215 N D Street Lease Reso (DOC) 215 Suite Leased Amendment (PDF) agrmt. 4733 (PDF) Floor Plan 215 (PDF) Updated: 11/17/2016 by Jolena E. Grider C Packet Pg. 73 5.D.a 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE 3 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND 215 N. D STREET 4 BUILDING,LLC FOR THE LEASE OF OFFICE SPACE. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized to execute a Lease Agreement 8 a� 9 between the City of San Bernardino and 215 N. D Street Building, LLC, attached hereto as J r lo Exhibit"A" and incorporated herein. a 11 SECTION 2. The Director of Finance is hereby authorized to issue a Purchase Order to r 12 C14_A 215 N. D Street Building, LLC for the lease of office space for the entire term of the Lease. ; 13 rM. 14 O 15 /// v Cn 16 a+ 17 18 ❑ LO 19 N 20 m E 21 /// u �s 22 23 /// 24 25 26 27 28 1 Packet Pg. 74 5.D.a 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE 2 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND 215 N. D STREET 3 BUILDING,LLC FOR THE LEASE OF OFFICE SPACE. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof,held on the 6 day of ,2016, by the following vote, to wit: 7 8 Council Members: AYES NAYS ABSTAIN ABSENT M 9 MARQUEZ J a� v 10 BARRIOS (n a 11 VALDIVIA z LO 12 ca SHORETT M cl 13 14 NICKEL a Cn 15 RICHARD 16 MULVIHILL -' 17 U) 18 Georgeann Hanna, City Clerk 0 LO 19 The foregoing Resolution is hereby approved this day of 12016. N 20 cs E 21 �s 22 R. Carey Davis, Mayor City of San Bernardino 23 Approved as to form: Gary D. Saenz, City Attorney 24 25 By: 26 27 28 2 Packet Pg. 75 5.D.b City Hall Elected Officials&Staff Relocation to Leased Space Location Rate Leased Space +Costjmonth-year Vanir Tower 15t Floor—2,674 sq.ft. $4,813.20-$57,758.40 $1.80Jsquare foot Std Floor-14,004 sq.ft. $25,207.20-$302,486.40 Bin Floor--7,038 sq.ft. $12,688.40-$152,020.80 a� N t6 Total Year One of Lease 23,716 sq.ft. $42,688.80-$512,265.60 J as Total Year Two of Lease $43,969.46-$527,.633.52 z u� 215 North D Street Building Suite 200—1,736 sq.ft. $2,690.80-$32,289.60 M M $1,55/sq.ft. Suite 202—5,072 sq.ft. $7,861.60-$94,339.20 w Suite 301—2,963 sq.ft. $4,592.65-$55,111.80 i Suite 302—4,143 sq.ft. $6,421.65_$77,059.80 y E Q N CU Total Year One of Lease 13,914 sq.ft. $21,566.70-$258,800.40 J d Total Year Two of Lease $22,21330-$266,564.40 Cn un Ir- N C E s v Grand Total Year One 37,630 sq.ft. $64,255.50-$771.066.00 `6 Q Year Two $66,183.16- $794,197.92 N• Packet Pg.76 CITY OF SAN BERNARDINO LEASE AGREEMENT LANDLORD: 215 North D Strut Building, LLC c/o Frank. E. Schnetz 215 North D Street, Ste. 304 San Bernardino, CA 92401 CITY= CITY OF SAN BERNARDINO 300 N. "D" Street San Bernardino, CA 92418 J L .F+ PREMISES: 215 North. D Street, Suites 200, 202, 301 and 302 Z to N M M %W TERM OF LEASE:Two (2) years with two (2) six-month option to extend periods M co d. r-� COMMENCEMENT DATE OF LEASE: December 1, 2016 (subject to E Paragraph 3) o E s MONTHLY RENT* $21,566.70 for Year 1 $22,213.70 for Year 2 Q Packet Pg. 77 TABLE OF CONTENTS RARAGRAPH CAPTION PAGE � LPARTIES.......................................................................^~~'^~^-_-~^~1 mN 2. �� �� T��� �� &�� �--.--�...'~.^.......-_,-~~^.~~-_--~-, ^ ., .^ ' I - 3. TERM ......................................................^^^.~ ..................................T 4, RENT,,.____,,,^~^^,^~^.~_^,,,~,,..~~.,,__,,~^,~,^~°,_.~,_._~_,,_-_-`-..0 5. EXPANSION OF RENTAL SPACE.................................................3 6' OPTION TO EXTEND TERM.........................................................4 7' RETURN OF PREMISES................................................................m �J 8' HOLDING OVER.......^.....................................................................5 � 9. TAXES._.~~--~~^~'~^..-,..~-`-^._~-.~~__.~~~.~--~~'.-^'^-~^'~^^~^-~`'5 dm o � 10i USE ....................................................~'~.-,.�...-`~.,.^._.,~~ - ~...,~..~~. z II' __� --_'_-_5 ^ � ~~^^ SAFETY AND FIRE CODE m Cq 12- SIGNS...............................................................................................6 .. l3� D&/\I�N][��l�����CI�------.~-----'^--.~~'~_---.-.'..,.,-.-_...-,.-..v �14. ��LT�LRf�TI�jl4/�-_.-._.----.-.--..'^^^-.-'-^^~_'..^..^~,.~~^^^-..^_.~'_ 7 "+ 15. FI��T[��E��_.,..___~_,'~,,_~,__.._^,^^~_____,,,___~,,~__~^~^__._~.,^,^^. * @ �r 16^ I]TTLITIE��------'''~^~-~-'-'~`-^.'^~-`^'--^---`----^----~''''~~^^' 17^ INDEMNIFICATION----.,.'.~..'..--.^~--.._-.---..-''---_----.m � 18_ INSURANCE REQUIREMENTS AND SPECIFICATIONS..........8 m 19. DESTRUCTION OF PREMISES------~----~~'-~-^~'-'~'--~`~12 20' DEFAULT..............................................................13 21- CITY'S REMEDIES ON DEFAULT.....................I8 22' CITY'S DEFAULT..........................................................................14 -~ 20' REMEDIES ON CITY'S DEFAULT.....................14 24. LANDLORDS ACCESS TO PREMISES......................................15 I� 25_ %�K�1ICES.'..~~''-''---~~^~'^^-~~^~~---^'~~-~~~~~----'~-^~^-`-- {�]����K��. 18 ��. INCORPORATION � -__.^°^,_~,____^_ ]� 27, t�AI�/E��S ...--~~~-^~~.~--''''''----~-^-------'---'~^'~'~^'~'---' ��28. 2�Y�ElNl�8&E��l7�_.....'.-~~..,_----~.~.__,_-~~'.~.~...-,~'--.,..~~.^,.^ 29' SUCCESSORS................................................................................yp 30_ SEYERABIlITY^^''-^~-~-~-~--^~'^~^-^~'^----'--^'--~^~^^~-^~^~---1p 1� 31. TI���� OF ES��E%�CJ�..~^.....,..,.....,,~~^,.,_-~~----.-'^~..-----.- ]�32. ��01E2'06�6�K�YD�EunT�...-~...'.-'.-.--~---..~-~-'-_.'^...-.-,.^~,' 38' PROVISIONS ARE COVENANTS AND CONDITIONS ~.^~_--'17 0 34. CONSENT_,~~_^__`___~_,____~.,~^.,___^^^..^._,___-,-.--'.---.-17 1 Packet Pg. 78 ��J E 35. EXHIBITS...... ................................................................................17 36. LAW..... ....... ......... .... .. ........................................17 37. VENUE ............ ... ....... ......................................... ...17 38. ATTORNEYS`FEES AND COSTS....... ........................................17 39. RESERVED ............. ................. ......... .............,..........................17 40. CITY'S RIGHT TO TERMINATE LEASE ....................................17 41. LANDLORD'S IMPROVEMENTS ................................................ 18 42. CAPTIONS, TABLE OF CONTENTS AND COVER PAGE ........ 19 43. SURVIVAL..... ................................................................................ 19 44. FORMER CITY OFFICIALS .........................................................19 45. BROKER'S COMMISSIONS...........................................................19 46. ESTOPPEL CERTIFICATES ............... ........................................19 S, 47. SUBORDINATION AND ATTORNMENT...................................20 � a� 48. HAZARDOUS SUBSTANCES....................... ................... . ,2Q 49, PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY. ......22 2 r 50. CONDITION OF PREMISES .......................................................22 51. CONDEMNATION............................. ...........,..,.........................22 z 52, MATERIAL MISREPRESENTATION. ................................. 23.... N 53. INTERPRETATIONS.....................................................................24 ; M 54. AUTHORIZED SIGNATO RS.........................................................25 t- M EXHIBIT "A" Premises EXHIBIT "A-1" Premises Specifications EXHIBIT "B" Licensed Janitorial and Maintenance Contractor E Services �a EXHIBIT "C" List of Former CITY Officials EXHIBIT "D" Estoppel Certificate E EXHIBIT "E" Subordination, Nondisturbance and Attornment Agreement EXHIBIT "F" Prevailing Wage Requirements a Packet Pg. 79 5.D.c LEASE AGREEMENT 1. PARTIES: This lease ("Lease") is made between 215 North D Street Building, LLC ("LANDLORD"), and the City of San Bernardino ("CITY"), who agree on the terms and conditions contained in this Lease. LANDLORD hereby represents and warrants to CITY that LANDLORD is the legal owner with sole title to the Property (as defined below), including the Premises (as defined below), and has the right to enter into this Lease without consent or approval from any other parties. In the event of a breach of the foregoing representation and warranty, CITY shall have the right to terminate this Lease with immediate effect and LANDLORD shall indemnify, defend (with counsel reasonably approved by CITY) and hold harmless CITY and its officials, employees, contractors, agents, and volunteers from any and all claims, actions, losses, damages and/or liability arising out of said breach. 2. PREMISES LEASED LANDLORD leases to CITY and CITY leases from LANDLORD certain premises of approximately 13,914 square feet of office space ("Premises"), comprising a portion of the building ("Building") located on the real property commonly known as 215 a North "D" Street, San Bernardino, California, APN 0135-200-80-0000 ("Property") LO The Premises is more particularly depicted in Exhibit "A" PREMISES, attached N hereto and incorporated herein by reference. The parties hereby agree that the Premises shall not be re-measured at any time during the term of the Lease, including any extensions thereof. M M r+ 3. TERM: E 0) f6 A. Initial Term. The Lease's initial term ("Initial Term") shall commence c on December 1, 2016 ("Commencement Date") and end on November 30, 2018 E ("Ending Date"), provided that all Improvements to be constructed by LANDLORD pursuant to Paragraph 41, LANDLORD IMPROVEMENTS, are Substantially Completed (hereinafter defined) and are accepted by CITY. For the purposes of this a Lease, "Substantially Completed" shall mean that the Premises can be used for their intended purposes and have been certified for occupancy by the entity that issued the building permits, notwithstanding that minor corrections and/or additions remain to be completed, it being understood that LANDLORD shall promptly complete said corrections and/or additions. In the event the term commences prior to the Commencement Date as the result of CITY's election under subparagraph 3C, Early Possession, the Ending Date shall not be changed. If LANDLORD is unable to Substantially Complete the Improvements or deliver possession of the Premises by the Commencement Date, CITY shall not be liable for any rent and this Lease shall not commence until LANDLORD Substantially Completes the Improvements and delivers possession of the Premises to CITY. Any such delay in possession shall not affect the Ending Date. 1 Packet Pg. 80 OWN B. Earl= Access. LANDLORD shall allow the CITY early access ("Early Access') to the Premises at any time prior to the Commencement Date for the purpose of the CITY or its representatives installing communications equipment, modular furniture, alarms and such other items that the CITY may reasonably desire and to inspect the status of the construction of the Improvements for the Premises. CITY shall exercise its Early Access rights at a time and in a manner that will not unreasonably interfere with LANDLORD's construction of the Improvements. If CITY totally or partially occupies the Premises under this Early Access provision prior to the Commencement Date, the obligation to pay rent shall be abated for the period of the Early Access. All other terms of this Lease shall, however, be in effect during such period. Any such Early Access shall not affect the Commencement Date or the Ending Date. C. Early Possession. The CITY may elect to totally or partially take N possession of the Premises at any time prior to the scheduled Commencement Date ("Early Possession"). CITY shall exercise its Early Possession rights at a time and w in a manner that will not unreasonably interfere with LANDLORD's construction of the Improvements. If CITY totally or partially takes possession of the Premises C under this Early Possession provision prior to the Commencement Date, the Z obligation to pay rent for only that portion of the Premises possessed shall commence for the period of such Early Possession. Such Early Possession shall not "' be considered as the CITY's acceptance of any portion of the Improvements as M Substantially Completed. The CITY may vacate all or any portion it has possessed as Early Possession without in any manner affecting the Commencement Date, the Ending Date or any other portion of the Lease. All other terms of this Lease shall, � however, be in effect during such period. Any such Early Possession shall not affect the Commencement Date or the Ending Date. E D. Delay in Possession. LANDLORD agrees to use all commercially reasonable efforts to deliver possession of the Premises with all of the E Improvements Substantially Completed to CITY by the Commencement Date. If as R a result of causes beyond LANDLORD's reasonable control, LANDLORD is unable to deliver possession as agreed, this Lease shall not be voidable, nor shall such failure affect the validity of this Lease_ If possession is not delivered within ninety (90) days after the Commencement Date, CITY can elect to terminate this Lease by giving written notice to LANDLORD at any time before LANDLORD delivers possession of the Premises to CITY; If CITY elects to terminate this Lease pursuant to this provision., CITY shall be discharged of all obligations under this Lease. 4. RENT: A. Subject to the completion of the Improvements, receipt of a certificate of occupancy and subject to acceptance of the improved Premises by CITY, CITY shall pay to LANDLORD monthly rental payments of $21,566.70 for Year 1 and 22,213.70 for Year 2 for the Premises in arrears not later than the last day of each n Packet Pg. 81 month, commencing when the term commences, continuing during the term, based on approximately 13,914 square feet of leased space. The parties agree that all parking spaces provided under this Lease are at no additional cost to the CITY during the Initial Term and any extended term. B. Rent for any partial month shall be prorated based on the actual number of days of the month. LANDLORD shall accept all rent and other payments from CITY under this Lease via electronic funds transfer (EFT) directly deposited into the LANDLORD's designated checking or other bank account. LANDLORD shall promptly comply with directions and accurately complete forms provided by CITY required to process EFT payments. C. If the CITY has accepted the Premises as Substantially Completed Z, with minor corrections and/or additions remaining to be completed, only eighty percent (80%) of the monthly rental will be paid to LANDLORD, 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 LANDLORD until all such minor (n corrections and/or additions have been completed and accepted by CITY. If the 0 CITY withholds monthly rental payments under this subparagraph, the CITY will z Ln not be in default and no interest or service charges will be added to the amounts C1 Ir- 4 due LANDLORD upon completion of the minor corrections and/or additions. The minor corrections and/or additions remaining to be completed are subject to 'WSW subparagraph 13B, MAINTENANCE. 5. EXPANSION OF RENTAL SPACE: E A. LANDLORD shall not lease or extend an existing lease covering all or any part of the area of the building in which the Premises are located that is marked on Exhibit "A" as Expansion Space ('Expansion Space") to a third party without first notifying CITY that LANDLORD intends to lease part or all of the Expansion Space. At any time during the term of this Lease that an or any part of the Expansion Space is not leased to a third person, CITY shall have the option to add to the Premises any part or all of the Expansion Space that is not leased to a third party. In the event LANDLORD makes or receives a bona fide offer to actually lease or extend an existing lease on some or all of the Expansion Space, LANDLORD shall provide CITY with written notice of LANDLORD's intention to lease (or extend an existing lease) some or all of the Expansion Space to a third party. LANDLORD's notice to CITY shall include all material terms of the third- ' party offer. CITY shall have thirty (30) days from CITYs receipt of LANDLORD's notice to determine whether CITY wishes to add any part or all of the Expansion Space identified in the third-party offer to the Premises. LANDLORD shall have the right to lease to a third party (or extend an existing lease with such third party), on the terms set forth in LANDLORD's notice to CITY, any part of the Expansion Space mentioned in the third-party offer as to which CITY has not notified LANDLORD of CITY's agreement to lease within thirty (30) days after 3 Packet Pg. 82 i �n4 f ® r CITY's receipt of LANDLORD's novice. If CITY does not exercise its option to add the Expansion Space mentioned in the third party offer to the Premises, and LANDLORD is unable to consummate the transaction described in the third-party offer with such third party, CITY's rights under this paragraph shall be reinstated automatically. Further, CITY's rights under this paragraph shall accrue anytime any of the Expansion Space is not leased to a third party or becomes available. B. If CITY exercises its option to lease the Expansion. Space or part of it, the Expansion Space or part of it shall be included within the Premises and leased to CITY pursuant to all provisions of this Lease, including, without limitation, the provisions relating to LANDLORD's Improvements, rent and parking. Additional parking spaces will be added to the Premises at the rate of four to one (4=1) additional parking space(s) for each one thousand (1,000) square feet of Expansion Space leased. The rent payable under this Lease shall be increased proportionately by the sum of(i) the basic rental rate per square foot of floor area for each square foot of floor area in the Expansion Space leased by CITY, as set forth in Y Subparagraph 6AW, OPTION TO EXTEND TERM, plus (ii) the cost per square foot of floor area of all improvements made to the Expansion Space leased by CITY Cn amortized over the balance of the unexpired portion of the Initial Term. All ° Z Improvements shall be made pursuant to plans and specifications, prepared by LANDLORD and approved by CITY. LANDLORD shall deliver said plans and "! specifications to CITY within thirty (30) days of CITY's election to lease the M Expansion Space, or part thereof. The construction of all Improvements shall be governed by Paragraph 41, LANDLORD'S IMPROVEMENTS. CITTs obligation to co pay rent on the Expansion Space shall be governed by Paragraph 4, RENT. The parties shall immediately execute an amendment to this Lease stating the addition of the Expansion Space or part thereof to the Premises and the additional rent for the Expansion Space. c C. if prior to executing this Lease, LANDLORD granted a third party an t option to lease or extend an existing lease for all or part of the expansion space, the third party's option will take precedence over the CITY's right of first refusal and a option set forth in subparagraph A and B, above. Additionally, if during the term of this Lease, LANDLORD follows the provisions of subparagraphs A and B, above, and thereafter grants a third party an option to lease or extend an existing lease for all or part of the expansion space, the third party's option will take precedence over the CITY's right of first refusal and option set forth in subparagraphs A and B, above. 6. OPTION TO EXTEND TERM: LANDLORD gives CITY the option to extend the term of the Lease on the same provisions and conditions, except for the monthly rent, for two (2) six-month option periods 0extended term") following expiration of the Initial Term, by CITY giving notice of its intention to exercise the option to LANDLORD prior to the expiration of the preceding term or during any holding over pursuant to Paragraph 8, HOLDING DYER. The rent for each extended term shall be the same as during the Initial Term. 4 oi±�et Pa3 r ru weu 7. RETURN OF PREMISES= The CITY agrees that it will, upon the termination of this Lease, return the Premises in a good condition and repair as the Premises now is or shall hereafter be put;reasonable wear and tear expected. 8. HOLDING OVER: In the event the CITY shall hold over and continue to occupy the Premises with the consent of the LANDLORD, expressed or implied, the tenancy shall be deemed to be a tenancy from month-to-month upon the same terms and conditions, including rent, as existed and prevailed at the time of the expiration of the term of this Lease. Notwithstanding Paragraph 40 CITY'S RIGHT TO TERMINATE LEASE, either party shall have the right to terminate the Lase with not less than sixty (60) days prior written notice to the other party during any holdover tenancy. 8. TAXES: LANDLORD shall pay all real property taxes, and general and W special assessments levied and assessed against the Premises. v 10. USE: CITY shall occupy and use the Premises during the term hereof for the purposes of CITY business. z LO 11. HEALTH SAFETY AND FIRE CODE REQUIREMENTS: N Ar It M A. Compliance with Code Requirements: As a condition precedent to the � existence of this Lease, LANDLORD, at its sole expense will ensure the Premises co 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, E California Title 24 requirements and the Americans with Disabilities Act MDA"). Specifically, LANDLORD must ensure there is an accessible path of travel from public transportation to the Premises pursuant to Title 24. Additionally, LANDLORD warrants that any improvements on or in the Premises which have been constructed or installed by LANDLORD or with LANDLORD's consent or at LANDLORD's direction shall comply with all applicable covenants or restrictions of a record and applicable Codes, statutes, regulations and ordinances in effect on the Commencement Date. LANDLORD also warrants to CITY that LANDLORD 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 LANDLORD shall correct, update and comply with said changes at LANDLORD's cost. B. Access Inspection: No inspection of the Premises, Building, or Property has been performed by a Certified Access Specialist in conjunction with this Lease. For avoidance of doubt, notwithstanding that an inspection of the Premises, 5 Packet Pg. 84 Building, or Property has not be performed by a Certified Access Specialist, LANDLORD`s obligations under Paragraph 10.A. shall remain unchanged. 12. SIGNS: CITY will display from the windows and/or marquee of the Premises only such sign or signs as are not prohibited by law. 13. MAINTENANCE: A. Except as specifically provided in subparagraph 13C, below, LANDLORD at its cost shall perform such inspections, maintenance and repairs as are necessary to ensure that all portions of the Premises, including but not limited to the following, are at all times in good repair and safe condition (1) The structural parts of the building and other improvements y that are a part of the Premises, which structural parts include the foundations, J bearing and exterior walls (including glass and doors), subflooring, and roof, and, d L (2) The electrical, plumbing, and sewage systems, including, C without limitation, those portions of the systems owned or controlled by Z LANDLORD lying outside the Premises; and. N (3) Window frames, gutters, and downspouts on the building and other improvements that are a part of the Premises; and, M M (4) Heating, ventilation and air conditioning (HVAC) systems servicing the Premises (additionally, air-conditioning and heating filters are to be changed quarterly. Upon commencement of this lease agreement LANDLORD is to provide an air balance certificate and maintenance of HVAC servicing); and„ !° (5) The grounds, including all parking areas and outside lighting, E grass, trees, shrubbery and other flora; and, a (6) The servicing of fire extinguishers or any other fire suppression equipment attached to the facility; and, (7) Maintenance for the entire Building and janitorial services for all areas. Maintenance and janitorial services must be performed in a workman- like manner by licensed and qualified independent contractors, as set forth in Exhibit "B", Licensed Janitorial and Maintenance Contractor Services. LANDLORD shall perform maintenance and janitorial services at a time and in manner that will cause the least possible inconvenience, annoyance, or disturbance to CITY. LANDLORD shall follow the carpet manufacture's maintenance requirements and maintain the carpet manufacturer's warranty for the carpet. Hours scheduled for the day janitor are to be reviewed and approved by CITY. b Packet Pg. 85 B. Without in any way affecting LANDLORD's duty to inspect, maintain and repair the Premises and regardless of whether any specific notic e of need f or maintenance or repair is provided to LANDLORD by the CITY, the CITY may request specific maintenance or repairs. Any such request may be made orally, by telephone or otherwise. If, (a) CITY gives notice to LANDLORD of a condition requiring maintenance or repairs, and LANDLORD does not commence the performance of its maintenance or repair obligations within ton (10) days of receiving such notice, or does not diligently prosecute its obligations to completion thereafter, or (b) in the case of an emergency, whether or not CITY has given notice to LANDLORD, LANDLORD does not immediately perform its obligations, CITY can perform the obligations and have the right to be reimbursed for the sum CITY actually and reasonably expends (including charges for CITY employees and equipment) in the performance of LANDLORD's obligations. The sum expended by CITY shall be due from LANDLORD to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by LANDLORD. If LANDLORD fails to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The 0 remedies set forth in this paragraph are in addition to and do not in any manner z LO limit other remedies set forth in particular paragraphs of this Lease. CITY shall N forward to LANDLORD receipts and/or documentation supporting the amount co M withheld. I- co C. CITY, at its option and sole discretion, reserves the right to require the co LANDLORD to hire a qualified property management company to manage the Premises, and that property management services, not limited to maintenance and E repair, be performed pursuant to a property management agreement. The Premises must be inspected by the Property Manager at least every other week, beginning the second week after the commencement date, and daily by the janitorial staff, to E ensure the Premises are maintained properly. Inspections must be coordinated with the CITY representative. The CITY has the right to review the selection of the property manager and to review the agreement with the manager. 14. ALTERATIONS: CITY shall not make any structural or exterior improvements or alterations to the Premises without LANDLORD's consent. Any such alterations shall remain on and be surrendered with the Premises on expiration or termination of the Lease. 15. FIXTURES: CITY shall have the right during the term(s) of this Lease to install shelving and fixtures, and make interior, non-structural improvements or alterations in the Premises. Such shelving, fixtures, improvements, and alterations shall remain the property of the CITY and may be removed by the CITY during the term(s) of this Lease or within a reasonable time thereafter, provided that the CITY restores the Premises to the condition as it existed at the commencement of this Lease, reasonable wear and tear excluded, or the CITY in its sole discretion may 7 Packet Pg. 86 S.D.c elect to surrender all or any part of such shelving, fixture, improvements and alterations to the LANDLORD, in which case CITY shall have no duty to restore the Premises. Any such election to surrender must be in writing, but need not be accepted by LANDLORD to be effective. 16. UTILITIES: LANDLORD shall furnish to the Premises and pay all service charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities. CITY shall furnish and pay for security, vending machines, computers, internet and its own telephone service including pay telephones. 17. INDEMNIFICATION: The LANDLORD agrees to indemnify, defend (with counsel reasonably approved by CITY) and hold harmless the CITY and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of this contract from any cause N whatsoever, including the acts, errors or omissions of any person and for any costs a or expenses incurred by the CITY on account of any claim except where such indemnification is prohibited by law, This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The LANDLORD's o Y. indemnification obligation applies to the CITY's "active" as well as "passive" z negligence but does not apply to the CITY's "sole negligence" or"willful misconduct" within the meaning of Civic Code Section 2782. M M 18, INSURANCE REQUIREMENTS AND SPECIFICATION'S: M M A. CITY is a self-insured public entity for purposes of professional liability, general liability and workers' compensation. L 13. The LANDLORD agrees to provide insurance set forth in accordance fQ with the requirements herein. If the LANDLORD uses existing coverage to comply with these requirements and that coverage does not meet the specified E requirements, the LANDLORD agrees to amend, supplement or endorse the existing coverage to do so. The type(s) of insurance required is determined by the scope of the lease hereunder. Without in anyway affecting the indemnity herein provided and in addition thereto, the LANDLORD shall secure and maintain throughout the contract term the following types of insurance with limits as shown: (1) Workers' Compensation/Employers Liability — A program of Workers' Compensation insurance or a state-approved, self-insurance program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with $250,000 limits covering all persons including volunteers providing services on behalf of the LANDLORD and all risks to such persons under this lease agreement. If LANDLORD has no employees, it may certify or warrant to the CITY that is does not currently have any employees or individuals who are defined as "employees" 8 Packet Pg. 87 ' e under the Labor Cade and the requirement for Workers Compensation coverage will be waived by the CITY's Director of Risk Management. If, LANDLORD is a non-profit corporation, organized under California or Federal law, volunteers for LANDLORD are required to be covered by Workers" Compensation insurance. (2) Commercial/General Liability Insurance — The LANDLORD shall carry General Liability Insurance covering all operations performed by or on behalf of the LANDLORD providing coverage for bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000), per occurrence. The policy coverage shall include' (a) Premises operations and mobile equipment. (b) Products and completed operations. (c) Broad form property damage (including completed operations). (d) Explosion, Collapse, and underground hazards Cn (e) Personal injury ° (f? Contractual liability. z LO (g) $2,000,000 general aggregate limit. N M (3) Commercial Property Insurance providing all risk coverage for the leased premises, building, fixtures, equipment and all property constituting a M part of the premises. Coverage shall be sufficient to insure One Hundred percent (100%) of the replacement cost. E L (4) Automobile Liability Insurance — Primary insurance coverage shall be written on ISO Business Auto coverage form for all owned, hired and non- w owned automobiles or symbol 1 (any auto). The policy shall have a combined single limit of not less than one trillion dollars ($1,000,000) for bodily injury and property � damage, per occurrence. Q (b) Umbrella Liability Insurance - An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a "dropdoww' provision providing primary coverage for any liability not covered by the primary policy. The coverage shall also apply to automobile liability. C. If LANDLORD performs any construction of the Premises on behalf of the CITY, LANDLORD shall also procure and maintain coverages as follows: (1) For construction contracts for projects over One Million Dollars ($1,000,000) and less than Three Million Dollars ($3,000,000) require limits of not less than Three Million Dollars in General Liability and Auto Liability coverage. 9 Packet Pg. 88 0 (2) For construction contracts for projects over Three Million Dollars ($3,000,000) and less than Five Million Dollars ($5,000,000) require limits of not less than Five Million Dollars ($5,000,000) in General Liability and Auto Liability coverage. (3) For construction contracts for projects over Five Million Dollars ($5,000,000) and less than Ten Million Dollars ($10,000,000) require limit's of not less than Ten Million Dollars (10,000,000) in General Liability and Auto Liability coverage. (4) Subcontractor Insurance Reguirements. The LANDLORD agrees to require all parties or subcontractors, including architects or others it hires or contracts with related to the performance of this contract to provide insurance U) covering the contracted operation with the basic requirements for all contracts in B1 and the insurance sections for all contracts in B2, (including waiver of subrogation rights) and naming the CITY as an additional insured. The LANDLORD agrees to monitor and review all such coverage and assumes all responsibility ensuring that such coverage is provided as required here. z (5) Course of Construction/Installation (Builder's Risk) property C14 Aom%&I co ff insurance providing all risk, including theft coverage for all property and materials it, J Nwof to be used on the project. The insurance policy shall not have any coinsurance penalty. D, Additional Insured — All policies, except for the Workers' Compensation, shall contain endorsements naming the CITY and their officers, E employees, agents and volunteers as additional insured& with respect to liabilities arising out of the use under this lease hereunder. The additional insured endorsements shall not limit the scope of coverage for the CITY to vicarious liability E but shall allow coverage for the CITY to the full extent provided by the policy. Such additional insured coverage shall be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.1185. E. Waiver of Subrogation Rights — The LANDLORD shall require the carriers of required coverages to waive all rights of subrogation against the CITY, their officers, employees, agents, volunteers, contractors and subcontractors. All general or auto liability insurance coverage provided shall not prohibit the LANDLORD and LANDLORD's employees or agents from waiving the right of subrogation prior to a loss or claim. The LANDLORD hereby waives all rights of subrogation against the CITY. F. Policies Primary and Non-Contributory — All policies required herein are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the CITY. 10 Packet Pg. 89 G. SeverabLhty of Interests — The LANDLORD agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and there will be no cross liability exclusions that preclude coverage for suits between the LANDLORD and the CITY or between the CITY and any other insured or additional insured under the policy. H. Proof of Coverage — The LANDLORD shall furnish Certificates of Insurance to the CITY evidencing the insurance coverage, including endorsements, as required, prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to CITY, and LANDLORD shall maintain such insurance from the time LANDLORD commences use under the lease hereunder until the end of the period of the lease. Within fifteen (15) days of the commencement of this contract, the LANDLORD shall furnish a copy of the Declaration page for all applicable policies and will provide complete certified copies of the policies and endorsements immediately upon request. 1. Acceptability Cn of Insurance Carrier — Unless otherwise approved by the CITY's Risk Management Division, insurance shall be written by insurers a authorized to do business in the State of California and with a minimum "Best" Z LO Insurance Guide rating of"A- VII". N AF It J. Deductibles and Self-Insured Retention — Any and all deductibles or self-insured retentions in excess of $10,000 shall be declared to and approved by 7t- CITY's Risk Management Division. ti K. Insurance Review — Insurance requirements are subject to periodic E review by the CITY. The CITY's Human Resources Director or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever the CITY's Risk Management Division determines that any E of the required insurance is not available, is unreasonably priced, or is not needed to protect the interests of the CITY. In addition, the CITY's Director of Human Resources or designee 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 related to the CITY's risk. Any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this lease. LANDLORD agrees to execute any such amendment within thirty (30) days of receipt. Any failure, actual or alleged, on the part of CITY to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the CITY. Packet Pg. 90 5.D.c L. Failure to Procure Insurance. All insurance required must be maintained in force at all tunes by LANDLORD. Failure to maintain said insurance, due to expiration, cancellation, etc., shall be cause for the CITY to give notice to immediately suspend all LANDLORD's business activities on the Premises. Failure to reinstate said insurance within the (10) days of notice to do so shall be cause for termination and for forfeiture of this agreement, and/or CITY, at its discretion, may procure or renew such insurance and pay any and all premiums in connection therewith, and all monies so paid by CITY shall be repaid by LANDLORD to CITY E upon demand but only for the pro rata period of non-compliance. M. CITY shall have no liability for any premiums charged for such coverage(s). The inclusion of CITY as additional named insured is not intended to and shall not make a partner or joint venturer with LANDLORD in LANDLORD's operations. N a, N. The LANDLORD agrees to require all parties or subcontractors, or others it hires or contracts with related to the use of this lease to provide insurance covering such use with the basic requirements and naming the CITY as additional a insured. LICENSEE agrees to monitor and review all such coverage and assumes z all responsibility for ensuring that such coverage is provided as required herein. N 19. DESTRUCTION OF PREMISES: Cl A. During the term of this Lease, if any casualty renders a portion of the M Premises unusable for the purpose intended, then LANDLORD shall, at � LANDLORD's expense, restore the Premises and repair any damages caused by Y such casualty as soon as reasonably possible and this Lease shall continue in full E force and effect. If LANDLORD does not commence the restoration of the Premises in a substantial and meaningful way within thirty (30) days following the LANDLORD's receipt of written notice of the casualty, or should LANDLORD fail to E 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, a at its option, terminate this Lease immediately upon written notice to the LANDLORD. If CITY elects to terminate this Lease pursuant to this provision, CITY shall be discharged of all future obligations under this Lease. Alternatively, if LANDLORD fails to commence the restoration of the Premises or fails to diligently pursue the completion of the restoration as aforesaid, CITY may, at its option and in its sole discretion, after notice to LANDLORD, perform LANDLORD's obligations and restore the Premises. If CITY elects to restore the Premises, CITY shall have the right to be reimbursed for all sums it actually and reasonably expends (including charges for CITY employees and equipment) in the performance of LANDLORD's obligations. The sum paid by CITY shall be due from LANDLORD to CITY within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by LANDLORD. If LANDLORD fails to reimburse CITY as required by this paragraph, CITY shall 12 Packet Pg. 91 AdMIL 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. 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. J d m L C. In the event there is a destruction of a portion of the Premises as set co out in subparagraph A, above, and the Lease is not terminated because of such o destruction, LANDLORD agrees to use any and all insurance proceeds received for � said destruction in the restoration of the Premises. N M D. In the event LANDLORD is required to restore the Premises as provided in this paragraph, LANDLORD shall restore, at LANDLORD`s expense, M 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 E improvements or alteration made by the CITY pursuant to Paragraph 15, FIXTURES, of this Lease. E E E. It is the purpose and intent of this paragraph to determine who shall U bear the initial responsibility for restoration of the Premises in the event of any a such destruction and not to determine the party ultimately responsible for the costs of such restoration. 20. LANDLORD'S DEFAULT: Except where another time limit is specifically provided, LANDLORD shall be in default of this Lease if LANDLORD fails or refuses to perform any material provisions of this Lease and such failure or refusal to perform is not cured within thirty (30) days following LANDLORD's receipt of written notice of default from CITY. If the default cannot reasonably be cured within thirty (30) days, LANDLORD shall not be in default of this Lease if LANDLORD commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. •W 21. CITY'S REMEDIES ON LANDLC?RD'S DEFAULT CITY, at any time after LANDLORD is in default, can terminate this Lease immediately upon written 13 Packet Pg. 92 ah4 b CITY notice to LANDLORD or can cure the default at LANDLORD's cost, If CITE at any time, by reason of LANDLORD's default, pays any sum or does any act that requires the payment of any sum (including charges for CITYSs employees and equipment), the sum paid by CITY shall be due from LANDLORD to CITY within five (b) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the CITY is permitted by law to charge from the date the sum was paid by CITY until CITY is reimbursed by LANDLORD. If LANDLORD fails T to reimburse CITY as required by this paragraph, CITY shall have the right to withhold from future rent due the sum CITY has paid until CITY is reimbursed in full for the sum and interest on it. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Lease. 22. CITY'S DEFAULT: The occurrence of any one or more of the following N events shall constitute a default and breach of this Lease by CITY: d r A. The vacating for more than thirty (30) consecutive days or L abandonment of the Premises by CITY. 0 z B. The failure by CITY to perform any material provisions of this Lease to W be performed by CITY, including the payment of rent, where such failure shall `" t continue for a period of thirty (30) days after notice by LANDLORD to CITY; M provided, however, that if the nature of CITYSs default is such that more than thirty (30) days are reasonably required for its cure, then CITY shall not be deemed to be M 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 r requirement is to extend the notice requirements of the unlawful detainer statutes E of California. u c 23. LANDLORD'S REMEDIES ON CITY'S DEFAULT: Whenever any Event of Default referred to in Section 22 hereof shall have happened and be continuing, it shall be lawful for the LANDLORD to exercise any and all remedies available Q pursuant to law or granted pursuant to this Lease; provided, however, that notwithstanding anything herein to the contrary, there shall be no right under any circumstances to accelerate the Rent or otherwise declare any Rent not then in Default to be immediately due and payable. Each and every covenant hereof to be kept and performed by the CITY is expressly made a condition and upon the breach thereof the LANDLORD may, at its option, terminate this Lease. In the event of such Event of Default, the CITY shall continue to remain liable for the payment of the Rent and/or damages for breach of this Lease and the performance of all conditions herein contained and, in any event such rent and/or damages shall be payable to the LANDLORD only at the same time and in the same manner as provided for the payment of Rent. 14 24. LANDLORDS ACCESS TO PREMISES: LANDLORD and its authorized representatives shall have the right to enter the Premises at all reasonable times for any of the following purposes: A. To determine whether the Premises are in good condition; and, B. To do any necessary maintenance and to make any restoration to the Premises that LANDLORD has the right or obligation to perform; and C. To serve, 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. LANDLORD shall conduct its activities on the Premises as allowed in this (n paragraph in a manner that will cause the least possible inconvenience, annoyance, a or disturbance to CITY. Z LO N 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 personally or sent by United States mail, shall be in writing and either served p postage prepaid, certified or registered, return receipt requested. Any notice, E demand, request, consent, approval, or communication that either party desires or is required to give to the other party shall be addressed to the other party at the address set forth below. Either party may change its address by notifying the other E party of the change of address. Notices shall be deemed delivered and effective upon the earlier of W actual receipt or (ii) the date of delivery or refusal of the addressee to accept delivery if such notice is sent by or United States mail, postage prepaid, certified or registered, return receipt requested. LANDLORD's address* 215 North D Street Building, LLC c/o Frank E. Schnetz 215 North D Street, Ste. 304 San Bernardino, CA 92401 CITY's address* City of San Bernardino ATTN: City Manager 300 North I'D" Street San Bernardino, CA 92418 15 Packet Pg. 94 B. If, at any time after the CITY accepts the Premises, the LANDLORD assigns or transfers a non-controlling interest of its rights in the Premises to a third party, LANDLORD must notify CITY of its action at least fifteen (15) CITY working days prior to completing any such action. C. 7f, at any time after the CITY accepts the Premises, the LANDLORD assigns or transfers a controlling interest of its rights in the Premises to a third party, LANDLORD must notify CITY of its action at least fifteen. (15) CITY working days prior to completing any such action. The new owner must provide CITY with evidence of completion of such action. The parties shall immediately execute an amendment to this Lease stating the change of ownership of the Premises. (1) Within fifteen (15) CITY working days of completing any action N which affects a change in the ownership of the Premises, the new owner must provide CITY evidence of obtaining insurance in compliance with Paragraph 17, INDEMNIFICATION and Paragraph 18, INSURANCE REQUIREMENTS AND SPECIFICATIONS. z 26. INCORPORATION OF PRIOR AGREEMENT: This Lease contains all of LO 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. E ca 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 s successor in interest, expressing by its terms an intention to modify this Lease. Y M d 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. SEVE ILITY: 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 shade within a reasonable time. 32. QUIET ENJOYMENT: Subject to the provisions of this Lease and conditioned upon performance of all the provisions to be performed by CITY 16 Packet Pg. 95 i S.D.c hereunder, LANDLORD shall secure to CITY during the Lease term the quiet and peaceful possession of the Premises and all right and privilege appertaining thereto. 33. PROVISIONS ARE COVENANTS AND CONDITION • All provisions, whether covenants or conditions, on the part of either party shall be deemed to be both covenants and conditions. 34. CONSENT: Whenever consent or approval of either party is required that party shall not unreasonably withhold, condition or delay such consent or approval. 35. EXHIBITS: All exhibits referred to are attached to this Lease and 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 o Lease will be the Superior Court of California, County of San Bernardino. Each Z party hereby waives any law, statute (including but not limited to Code of Civil N 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 M Superior Court of California, County of San Bernardino. ti 38. ATTORNEYS' FEES AND COSTS: If any legal action is instituted to E 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, INDEMNIFICATION, Paragraph 48, HAZARDOUS w SUBSTANCES, and Paragraph 49, PUBLIC RECORDS DISCLOSURE; a CONFIDENTIALITY. 39. RESERVED: 40. CITY`S RIGHT TO TERMINATE LEASE: The CITY shall have the right to terminate this Lease at any time whenever CITY, in its sole discretion, determines it would be in CITY's best interests to terminate this Lease. The City Manager shall give LANDLORD notice of any termination pursuant to this paragraph at least ninety (90) days prior to the date of termination. In the event CITY terminates this Lease pursuant to this Paragraph 40, no termination fees, reimbursement for Improvements, or other costs shall be due or payable to LANDLORD for exercising CITY's termination right, except that LANDLORD shall. QW-0i 17 Packet Pg. 96 have the right to receive from CITY the rent which will have been earned under the Lease through the effective termination date. 4:1. LANDLORD'S IMPROVEMENTS: A. LANDLORD understands and agrees that from the time that this agreement is executed through the completion of the Improvements pursuant to Exhibit "A-1", Premises Specifications, and acceptance of the improved Premises by CITY, LANDLORD shall not assign or transfer a controlling interest in the Premises to a third party, without CITY's prior review and approval. (1) LANDLORD understands and agrees to provide to CITY all documents and relevant information concerning any proposed transfer. CITY will N have ten (10) CITY working days after receiving all such documents and d information to complete its review. Upon CITY approval of an assignment or y transfer, the parties shall immediately execute an amendment to this Lease stating 2 the change of ownership of the Premises. O Z B. LANDLORD acknowledges that late delivery of the Premises to CITY `" will cause CITY to incur costs not contemplated by this Lease agreement, the exact amount of such costs being extremely difficult and impracticable to fix. Therefore, if LANDLORD does not deliver the unproved Premises by the projected occupancy M date of , 201_, LANDLORD agrees to liquidated damages of Five Hundred and 00/00 Dollars ($500.00) for each day's delay from the projected occupancy date of 201 to the date the CITY accepts the Premises or E terminates this Lease agreement. The parties agree that this charge represents a fair and reasonable estimate of the costs that CITY will incur by reason of late delivery. Acceptance of any charge shall not constitute a waiver of LANDLOR.D's E default or prevent CITY from exercising any of the other rights and remedies available to CITY. a C. Notwithstanding subparagraphs "A", "B" and "C", above, in the event LANDLORD, after exercising all due diligence, is unable to meet any of the above mentioned Critical Completion Dates due to reasons which LANDLORD proves are outside the control of LANDLORD, such reasons include but are not limited to acts of God, unreasonable acts of governmental agencies causing unavoidable delays (the normal and reasonable times for review, action and reasonably anticipated delays by governmental agencies are already included in the timing of the Critical Completion Dates), strikes, or labor troubles, then the Critical Completion Dates(s) shall be extended for a period equivalent to the period of such delay. (1) As soon as LANDLORD becomes aware, or should in the exercise of due diligence have become aware of any facts or circumstances that may or will cause such a delay, LANDLORD shall immediately notify CITY of any such delay or 18 Packet Pg. 97 � Msi ` el notify CITY of an such anticipated delay. In the event LANDLORD fails to timely fy y delay or anticipated delay, LANDLORD, notwithstanding the main portion of this subparagraph "J" above, shall be subject to subparagraph "I", above, for the entire length of any delay. 42. CAPTIONS T LE 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 provided 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 J within the last five years and who are now officers, principals, partners, associates or members of the business. The information should also include the employment and/or representative capacity and the dates these individuals began employment ❑ with or representation of your business. For purposes of this provision, "CITY administrative official" is defined as a member of the Mayor and Common Council 21 A or such official's staff, City Manager or member of such officer's staff, CITY c; department head, assistant department head, or any employee in the San Bernardino Confidential Management Unit. (See Exhibit "C", List of Farmer CITY M Officials.) 45. BROKER'S COA SSIONS: LANDLORD is solely responsible for the E payment of any commissions to any broker who has negotiated or otherwise provided services in connection with this Lease. 46. ESTOPPEL CERTIFICATES: Each party within thirty (30) days after v notice from the other party, shall execute and deliver to other party, in recordable form, a certificate stating that this Lease is unmodified and in full force and effect, or in full force and effect as modified, and stating the modifications. The certificate also shall state the amount of minimum monthly rent, the dates to which the rent has been paid in advance, the amount of any security deposit or prepaid rent, and that there are no uncured defaults or specifying in reasonable detail the nature of any uncured default claimed. Failure to deliver the certificate within thirty (30) days shall be conclusive upon the party requesting the certificate and any successor to the party requesting the certificate, that this Lease is in full force and effect and has not been modified except as may be represented by the party requesting the certificate, and that there are no uncured defaults on the part of the party requesting the certificate. The estoppel certificate shall be in the form as shown in Exhibit "D", Estoppel Certificate. 19 Packet Pg. 98 �n Gyp 47. SUBORDINATION AND ATTORNMENT: A. As a condition precedent to the CIT'Ps obligations under this Lease, LANDLORD shall obtain from each holder of a lien or encumbrance on the Premises which is senior to this Lease either an executed recordable subordination agreement which subordinates such lien or encumbrance to this Lease, or a non- disturbance agreement which contains terms at least as favorable to the CITY as those set forth in paragraph 2 ("Nondisturbance") of Exhibit "E", Subordination, Nondisturbance and Attornment Agreement, hereto. B. If, after execution of this Lease, a subsequent lienor requires that this Lease be subordinate to any such encumbrance, this Lease shall be subordinate to that encumbrance if, and only if, LANDLORD first obtains from the subsequent lienor an executed subordination, nondisturbance and attornment agreement, the terms of which are at least as favorable to the CITY as those set forth in Exhibit "E", Subordination, Nondisturbance and Attornment Agreement hereto. If the City Attorney approves the form of a subordination, nondisturbance and attornment agreement pursuant to this subparagraph, and if such agreement is executed by the W subsequent lienor, then the City Manager is authorized on behalf of the CITY to, Z and shall, execute such agreement, and shall further execute any other documents required by the lender to accomplish the purposes of this paragraph, provided such other documents are consistent with the terms of the subordination, nondisturbance Cn and attornment agreement and this Lease. 48, HAZARDOUS SUBSTANCES: A. LANDLORD hereby represents and warrants that, to the best of E LANDLORD's knowledge, information and belief. (i) the Premises and the property on which the Premises forms a part of have not been exposed to Hazardous Substances and are presently free of all Hazardous Substances; (ii) neither the E LANDLORD nor any of the other current tenants, if any, on the property of which the Premises forms a part is in violation or subject to an existing, pending or < threatened investigation by any governmental authority under any applicable federal, state or local law, regulation, ordinance or other legislation pertaining to air, water, or soil quality or the handling, transportation, storage, treatment, usage or disposal of Hazardous Substances; (iii) any handling, transportation, storage, treatment or use of toxic or Hazardous Substances to date has been in compliance with applicable laws; and (iv) no reportable use has occurred on the Premises and the property on which the Premises forms a part of to date, and the soil, groundwater and vapor on or under the Premises and the property on which the Premises forms a part of is free of Hazardous Substances as of the Commencement Date. B. LANDLORD shall indemnify, protect, defend (with counsel reasonably approved by CITY) and hold CITY, its agents and employees and the Premises, harmless from and against any and all losses and/or damages, liabilities, 20 1 Packet Pg. 99 a V% judgments, costs, claims, expenses, penalties, including attorneys and consultant's fees, arising out of or involving the existence of any Hazardous Substances located in, about or under the Premises and the property on which the Premises forms a part of. W prior to the Commencement Date of this Lease; and (ii) not caused by CITY during the term, including any extended terms. Additionally, the issuance of an order by any governmental authority directing the LANDLORD or any of LANDLORD's other tenants or licensees on the property of which the Premises forms a part to cease and desist any illegal action in connection with a Hazardous Substance, or to remediate a contaminated condition caused by the LANDLORD or any person acting under LANDLORD's direct control and authority is a breach of this Contract, and LANDLORD shall be responsible for all costs and expenses of complying with such order, including any and all expenses imposed on or incurred by CITY in connection with or in response to such order. LANDLORD'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. LANDLORD's obligations under this provision shall survive the expiration or early termination of this Lease. No termination, cancellation or release agreement entered into by CITY and LANDLORD shall release o LANDLORD from its obligations under this Lease with regard to Hazardous Substances unless specifically agreed to by CITY in writing. N M C. For the purposes of this paragraph, the following definitions shall apply: r.. (1) "Hazardous Substance," as used in this Lease, shall mean any � product, substance or waste whose presence, use, manufacture, disposal, E transportation, or release, either by itself or in combination with other materials expected to be on the Premises and the property on which the Premises forms a part of, is either (i) potentially injurious to the public health, safety or welfare, the environment or the Premises and the property on which the Premises forms a part of (ii) regulated or monitored by any governmental authority= or (iii) a basis for potential liability of LANDLORD or CITY under any applicable statute or common a law theory. (2) "Reportable use" shall mean (i) the installation or use of any above- or below-ground storage tank; 60 the generation., possession, storage, use, transportation or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with any governmental authority and/or (iii) the presence at the Premises and the property on which the Premises forms a part of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises and the property on which the Premises forms a part of or neighboring properties. 0 21 Packet Pg. 100 rrr (3) The term "applicable requirements" shall be deemed to refer to all applicable laws, covenants or restrictions of record, building codes, regulations and ordinances. 49. PUBLIC RECORDS DISCLOSURE; CONFIDENTLALITY: A. All information received by the CITY from the LANDLORD or any source concerning this Lease, including the Lease itself, may be treated by the CITY as public information subject to disclosure under the provisions of the California Public Records Act, Government Code Section 6250 et seq. (the "Public Records Act"). LANDLORD understands that although all materials received by the CITY in connection with this Lease are intended for the exclusive use of the CITY, they are 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 LANDLORD has reasonably requested CITY to hold in confidence is made to the CITY, the CITY shall notify the LANDLORD of the request and shall thereafter disclose the requested information unless the LANDLORD, 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 z LO the CITY harmless in any/all actions brought to require disclosure. LANDLORD waives any and all claims for damages, lost profits, or other injuries of any and all N kinds in the event CITY fails to notify LANDLORD of any such disclosure request and/or releases any information concerning this Lease received from the LANDLORD or any other source. B. Confidentiality. LANDLORD acknowledges that the premises will be used by CITY for the processing and storage of confidential information protected E from unlawful access and disclosure by federal, state and local laws. CITY and its officers, agents, volunteers and employees, agree to comply with relevant federal, state and local laws pertaining to the security and protection of such confidential E information while on the premises. LANDLORD agrees that it will prevent any U unlawful access to or disclosure of the confidential information by LANDLORD, its officers, agents, volunteers, employees and contractors. LANDLORD agrees that all entities with which LANDLORD contracts to provide services on the premises will prevent any unlawful access or disclosure of the confidential information, and that said entities will agree to the same in writing. LANDLORD acknowledges that any unlawful access to or disclosure of confidential information may result in the imposition of civil and criminal sanctions. 50, CONDITION OF PREMISES: LANDLORD shall deliver the Premises to CITY clean and free of debris on the Commencement Date and warrants to CITY that the plumbing, electrical systems, fire sprinkler system, lighting, air conditioning and heating systems and loading doors, if any, in the Premises shall be in good operating condition on the Commencement Date. 51. CONDEMNATION: 22 Packet Pg. 101 .t A. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (all of which are herein called "condemnatioe), 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 CIT'Ts option, to be exercised in writing within thirty (30) days after LANDLORD shall have given CITY written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority 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 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 o power of eminent domain or any payment made under threat of the exercise of such Z power: (a) one hundred percent (100%) of any amount attributable to any excess of N the market value of the Premises for the remainder of the Lease Term over the M 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) M 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 E 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 Q the foregoing that the CITY is allowed under condemnation law. B. CITY shall have the right to negotiate directly with Condemnor for the recovery of the portion of the Award that CITY is entitled to under subparagraph (13) of this paragraph. In the event that this Lease is not terminated by reason of such condemnation, LANDLORD shall repair any damage to the Premises caused by such condemnation authority pursuant to Paragraph 13, MAINTENANCE, and Paragraph 19, DESTRUCTION OF PREMISES. 52. MATERLAL MISREPRESENTATION: If during the course of the administration of this lease, the CITY determines that the LANDLORD has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the CITY, this Lease may be immediately 23 Packet Pg. 102 10 terminated. If this Lease is terminated according to this provision, the CITY is entitled to pursue any available legal remedies. 53. INTERPRETATIONS: As this Lease was jointly prepared by both parties, the language in all parts of this Lease shall be construed, in all cases, according to its fair meaning, and not for or against either panty hereto. a� U) M J w Q P L Y) 0 Z V) r N A16 A M Cl) ti M M d. E L w E V 4 e' Packet Pg. 103 54. AUTHORIZED SIGNATORS: Both parties to this Lease represent that the signators executing this document are fully authorized to enter into this agreement. END OF LEASE TERMS. CITY OF SAN BERNARDINO 215 North D Street Building, LLC* By: Mark Scott, City Manager (Name) Date: Title: ATTEST: GEORGEANN HANNA, City Clerk Date: Z BY: By:— LO (Name) 04 Date: Title: ti Approved as to Legal Form: Date: E GARY D. SAENZ, City Attorney City of San Bernardino E By Da : 1171 Now 25 Packet Pg. 104 EXHIBIT"A"—PREMISES 3 FOR CLARITY:the Premises is comprised of approximately square feet of office space located at - , , CA. Assessor Parcel Map Number: -0000 J a� L vI z ARM r N M M h M M ti L lV a.i C V f0 r r-� Q Packet Pg. 105 EXHIBIT"B" LICENSED JANITORIAL AND MAINTENANCE CONTRACTOR SERVICES (Janitorial Service to provide/supply all sanitary and paper goods.) DAILY SERVICES. 1. Empty and damp clean all ashtrays. 2. Empty all waste baskets and other waste containers. 3. Dust mop all tiled/terrazzo floors. 4. Vacuum traffic lanes of carpeting. 15. 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 rooms. 9. Refill soap, towel and paper containers. 10. Clean and sanitize drinking fountains. 11, Clean hand marks off glass on entrance doors. 12. Damp clean table tops in coffee rooms. 13. Clean kitchen sinks and counters. 14. Sweep entryways. Z 15. Brush down steps of inside stairwells. LO 16. Vacuum elevator carpet. All carpeted areas are to be vacuumed using a dual motor vacuum with a rotating cylindrical brush, rather than a beater bar. AV 1% 17. Spot clean all walls and doors including elevator. 18. Spot clean carpets of small spillage,footprints, etc. 19. Keep janitor closets clean and orderly. 20. Remove paper and debris outside main entrance. E 0) WEEKLY SERVICE= 1. Wet mop all tiled/terrazzo floors. C 2. Clean all desk tops and tables that are cleared;clean all chairs. E 3. Clean hand marks from walls, doors and woodwork. 4. Vacuum all carpeting completely. All carpeted areas are to be vacuumed using .2 a dual motor vacuum with a rotating cylindrical brush, rather than a beater bar. TWICE-MONTHLY SERVICE- 1. Dust high areas, including window coverings. 2. Vacuum upholstered furniture. 3. Clean lobby directories and fire extinguisher glass. 4. Machine clean and seal all tiled floors. EVERY THREE MONTHS- 1. Vacuum dust and dirt accumulation from air conditioning vents. 2. Brush down cobwebs inside building. 3. Wash inside windows and partitions. 4. Replace cartridge in rest room automatic air fresheners. 2 Packet Pg. 106 5.D.c The above are considered the minimum standard janitorial items, and are to be performed by a licensed janitorial contractor. Landlord is responsible for providing all services related to the health and cleanliness of the leased facility.' The following services are to be performed by a licensed maintenance contractorTage 1 of 2 a� M J d N L CO 0 Z tn T- 04 M M P� M M h a-� E L fIS d+ C ) E V i+ d. Q j Packet Pg. 107 EXHIBIT"B" ° FOR HSS PROJECTS ONLY LICENSED JANITORIAL NTENANCE CONTRACTOR SERVICES (Continued) WEEKLY SERVICE: 1. Contract with a mat service to supply and replace interior entry mats with cleaned mats. 2. Replace light bulbs and tubes inside building when needed. ONCE-MONTHLY SERVICE. 1. Licensed pest control. EVERY THREE MONTHS: 1. Carpet to be cleaned by a professional carpet cleaning company using hot water extraction process. . Wash exterior and interior windows and partitions. U) 0 z L0 N M _ M ti M M ti E L 0) Rf r C d E S v ca a 4 Packet Pg. 108 5.D.c EXHIBIT nC„ LIST OF FORMER CITY OFFICL&LS INSTRUCTIONS: List the full name of the former CITY Official, the title/description of the Official's last position with the CITE', the date the Official terminated CITY employment, the Official's current employment and/or representative capacity with the LANDLORD, the date the Official entered LA LORD'S employment and/or representation. OFFICIAL'S NAME:REUIREU INFCt TION a d d L z r - N M M M M h cl' e+ E L 111 r C N E t V l� Q i Packet Pg. 109 5.D.c EXHIBIT"D" - ESTOPPEL CERTIFICATE Date: TO: Re: , (address) (city) The undersigned("CITY") hereby certifies as follows: 1. CITY is in possession of N California (the "Premises"). CITY leases the Premises under a written Lease agreement dated. , 20 , Lease Agreement No. (the "Lease"), wherein CITY is the lessee or tenant, and , ("Ownex") is the L lessor or landlord. 0 z LO 2. The Lease is in full force and effect and has not been amended, supplemented or changed, except as follows: M N 3. The term of the Lease commenced on 20 , and is v scheduled to expire , 20�. CITY has no right or option to renew or M extend the term of the Lease except as to the following: C—) -year options. E L 4. CITY's current monthly rental is $ _, payable on the last day of each month. E 5. CITY currently has no security deposit with Owner. Y a 6. CITY is not in default under the terms of the Lease and no condition exists which, with the passage of time or the giving of notice, or both, would constitute such a default. To the best of CITY's knowledge, Owner is not in default under the terms of the Lease, and no condition exists which, with the passage of time or the giving notice, or both, would constitute such a default. 7. CITY hereby certifies that the foregoing is true and correct. By' City Manager 1 Packet Pg. 110 5.D.c d w J r d L ^n 0 Z LO T- N M M et Cl) M t� .v E L r V it W Q Packet Pg. 111 5.D.c EXHIBIT"E" RECORDED AT REQUEST OF AND TO BE RETURNED TO: Attn: g MORDINATION, NONDISTURBANCE AND ATTOR _ ENT AGREEMENT N a� THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT L AGREEMENT ("Agreement") is entered into by and between the City of San C Bernardino ('"Tenant"), o ("Landlord") ,� and, ("Lender"). N.. (Name and type of entity) M ti M Recitals n A. Tenant entered into a certain Lease Agreement, dated as of E , 20 (the "Lease"), between Tenant, as lessee, and Landlord, as lessor, pertaining to that certain premises commonly known as c , California (zip code), as more particularly described in the Lease ("Premises"), located on that certain real property located in the County of San Bernardino, State of California, as more a particularly described in Exhibit "A", attached hereto and incorporated herein (the "Property"). Landlord may also be referred to as"Borrower". B. Borrower made, executed and delivered, or is about to make, execute and deliver to Lender a certain promissory note, dated substantially contemporaneously herewith ("the Note"), in the original principal sum of The obligations evidenced by the Note shall be referred to as the "Loan". The Note is executed pursuant to the terms of a certain Construction Loan Agreement, dated substantially contemporaneously herewith (the "Loan Agreement"),between Lender and Landlord. C. Borrower has executed and delivered, or is about to execute and deliver to Lender, a certain Deed of Trust and Assignment of Rents, dated substantially 1 Packet Pg. 112 contemporaneously herewith (the "Deed of Trust"), encumbering the Property to secure the Loan. D. It is a condition precedent to the Loan that the Deed of Trust shall unconditionally be and remain at all times a lien or charge upon the Property, prior and superior to the Lease. E. It is a condition precedent to the Loan that Tenant will specifically and unconditionally subordinate and subject the Lease, together with all rights and privileges of Tenant thereunder, to the lien or charge of the Deed of Trust. F. It is to the mutual benefit of the parties hereto that Lender and Borrower enter into the Loan. Covenants In consideration of the recitals set forth above and the covenants and agreements contained herein, the parties agree as follows: cn Subordination Tenant hereby subordinates all of Tenant's right, title, Z LO interest and leasehold estate in and to the Premises to the lien, operation, and effect of the Deed of Trust. 2. Nondisturbance: Tenant's peaceful and quiet possession of the Premises shall not be disturbed and Tenant's rights and privileges under the Lease, including but not limited to the provisions of the Lease set forth under the headings "TERM," "EXPANSION OF RENTAL SPACE," "OPTION TO EXTEND TERM, E "INDEMNIFICATION,: "INSURANCE REQUIREMENTS AND SPECIFICATIONS," "DESTRUCTION OF PREMISES," "CITY'S RIGHT TO TERMINATE LEASE," and "CONDEMNATION," shall not be diminished by Lender's foreclosure, acceptance of a deed in lieu of foreclosure, or any other E exercise of Lender's rights or remedies under the Deed of Trust, the Note, the Loan Agreement, any other loan document, or the laws governing secured loans. All of the provisions of the Lease shall prevail over any conflicting provisions in the Deed of Trust, the Note, the Loan Agreement, any other loan document, or the laws governing secured loans. Tenant shall not be named or joined in any foreclosure, trustee's sale, or other proceeding or action to enforce the Deed of Trust, the Note, the Loan Agreement, any other loan document, unless such joinder shall be legally required to perfect such foreclosure, trustee's sale, or other proceeding or action. 3. Attor ment: If the Deed of Trust is foreclosed for any reason, or Landlord deeds the Property to Under in lieu of foreclosure, the Lease shall not be extinguished and Tenant shall be bound to Lender under all the terms, covenants, and conditions of the Lease for the balance of the term of the Lease with the same force and effect as i f Lender was the lessor under the Lease. Tenant shall attorn to Lender as Tenant's Lessor, and agrees to recognize Under as the new owner and 2 Packet Pg. 113 la I promises to pay the rent to Lender as Landlord. This attornment shall be effective and self operative, without the execution of any other instruments on the part of any of the parties to this Agreement, immediately upon Lender succeeding to the interest of Landlord under the Lease. 4. Disbursements-. Lender is under no obligation or duty to monitor the application of the proceeds of the Loan. Any application of such proceeds for purposes other than those provided for in the Loan Agreement or any of the other Loan Documents shall not defeat the effect of this Agreement in whole or in part. 5. Acknowledgment of Assignment: Tenant acknowledges and consents to the assignment of Landlord's rights under the Lease to Lender pursuant to a certain Assignment of Leases (the "Assignment"). Tenant shall pay rent to Lender upon receipt of written notice from Lender that Lender has revoked the waiver of '! Landlord's right to receive the rents from the Premises pursuant to the Assignment, notwithstanding the fact that Lender has not foreclosed the Deed of Trust, nor succeeded to the interest of Landlord under the Lease. Tenant shall not be liable to J #' Landlord for any payments made to Lender hereunder. ' 6. Assignment or Sublease Tenant may assign or sublease all or any o LO ,2 portion of the Property in accordance with the Lease, but no such assignment, transfer, or subletting shall relieve Tenant of any of its obligations under the Lease. N Tenant hereby covenants that the Lease has not been modified or altered except at ; stated in the recitals. Tenant shall not voluntarily subordinate or subject the Lease or any interest therein to any lien or encumbrance without the prior written consent of Lender, unless said lien or encumbrance shall relate to personal property that can be removed without damage to the Premises, or unless such subordination is required by the Lease. E 7. Notices= Tenant shall deliver to Lender a copy of all notices, requests, or demands delivered by Tenant to Landlord in accordance with this Paragraph. Tenant shall also deliver to Lender any and all notices, demands, or requests received by Tenant from Landlord relating to any of the aforesaid. Lender shall deliver to Tenant all notices, requests or demands in accordance with this Paragraph. All notices a required hereunder or pertaining hereto shall be in writing and shall be deemed delivered and effective upon the earlier of(i) actual receipt; or (ii)the date of delivery or refusal of the addressee to accept delivery if such notice is sent by express courier service or United States mail, postage prepaid, certified or registered, return receipt requested; in each case, to the applicable address as follows: to Tenant: CITY of San Bernardino [address] to Landlord: 0 3 Packet Pg. 114 5.D.c Attn: as s� a� J 41 d L Y Cn 0 z r N M M h d' M M t"- L d V Q *f Packet Pg. 115 r F77a AWN to Lender: Attn: Notwithstanding the foregoing, any notice under or pertaining to this Agreement, given and effective in accordance with applicable law, shall be effective for purposes hereof, Any party may change the address at which it is to receive notices hereunder to another business address within the United States (but not a post office box or similar mail receptacle) by giving notice of such change of address in accordance N herewith. 1Q 8. Landlord's Default. Tenant hereby agrees that Tenant will notify Lender in writing, in accordance with Paragraph 7, Notices, above, of any default by N Landlord under the terms of the Lease and Tenant shall not cancel or terminate, or e acquiesce to the cancellation or termination of the Lease without giving Lender a � reasonable period (not less than 30 days) after delivery of such notice to cure the N default; Lender's rights and remedies under the Loan Agreement or any of the Loan Documents (as defined in the Loan Agreement) shall not be prejudiced by its exercise or failure to exercise the right to cure described above. Except for Landlord's defaults M under Paragraph 3, TERM, of the Lease, relating to Landlord's failure to meet the Critical Completion Dates as set forth in Exhibit "V, Page 4, Schedule of Completion, Lender elects within such thirty (30) day period to foreclose on the Deed of Trust; E such time period shall be extended so that Lender shall have a reasonable period CO within which to foreclose the Deed of Trust and shall have an additional thirty (30) days from the time Lender becomes owner of the Property through foreclosure within 0 which to cure such default. If any default by Landlord is cured within the time periods described above, Tenant shall have no right to terminate the Lease by virtue a of such default. 9. Binding Effect' This Agreement shall be binding upon the parties and their respective heirs, personal representatives, successors, and assigns. 10. Law This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 11 Reserved= 12. Attornevs' Fees and Costs: If any legal action is instituted to enforce or declare any party's rights hereunder, each party, regardless of which party is the prevailing party, must bear its own costs and attorneys' fees. This paragraph shall 5 Packet Pg. 116 t } not apply to those casts and attorneys` fees directly arising;from any third party legal action against a party hereto and payable under Lease Paragraph 17, "INDEMNIFICATION", Paragraph 48, HAZARDOUS SUBSTANCES; and Paragraph 49, PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY. 13. Venue: The parties acknowledge and agree that this Agreement was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue for any action or claim brought by any party to this Agreement will be the Superior Court of California., County of San Bernardino. Each party hereby waives any law, statute (including but not limited to Code of Civil Procedure section 394), or rule of court that would allow them to request or demand a change of venue. If any third party brings an action or claim concerning this Agreement, the parties hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, County of San Bernardino. a IN WITNESS WHEREOF, the parties have executed this Agreement as of the J day and year written below. L Tenant: Lender- co 0 Z CITY OF SAN BERN!A.RDINO: LO N 9 M � M M By City Manager (Name) L Date: R Title: c E v ATTEST:. Date: Q Georgeann Hanna, City Clerk Landlord: By: Date: 'T'itie: Approved as to Legal Form: Gary D. Saenz, City Attorney G Packet Pg. 117 5.D.c 0 Date= By: N ri � N d �4 �� VJ Q Z LO T- N x M M J S M M P- d' E L Im m 4i C 41 E V Q i u Packet Pg. 118 5.D.c EXHIBIT"F' PREVAILING WAGE REQUIREMENTS A. All or a portion of the Landlord Improvements in the Contract or Purchase Order (as applicable) requires the payment of prevailing wages and compliance with the following requirements. As used in this Attachment, the term "Contractor" shall include Landlord or Landlord's contractor l and/or subcontractors. 1. Determination of Prevailing Rates Pursuant to Labor Code sections 1770, et seq., the CITY has obtained from the Director of the Department of Industrial Relations (DIR) pursuant to the California p? Labor Code, the general prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the locality in which the Landlord Improvements is to be performed. Copies of said rates are on file with the CITY, will be made available for inspection during regular business hours, may be included elsewhere co in the specifications for the Landlord Improvements, and are also available online o at www.dir.ca.gov. The wage rate for any classification not listed, but which may be required to execute the Landlord Improvements, shall be commensurate and in N accord with specified rates for similar or comparable classifications for those M performing similar or comparable duties. In accordance with Labor Code section 1773.2, the Contractor shall post, at appropriate and conspicuous locations on the M jobsite, a schedule showing all applicable prevailing wage rates and shall comply with the requirements of Labor Code sections 1773, et sect. E 2. Payment of Prevailing Rates Each worker of the Contractor, or any subcontractor, engaged in the Landlord Improvements, shall be paid not less than the general prevailing wage rate, regardless of any contractual relationship which may be alleged to exist between y the Contractor or any subcontractor, and such worker. 3. Prevailing Rate Penalty The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the CITY for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of the DIR for such work or craft in which such worker is employed by the Contractor or by any subcontractor in connection with the Landlord Improvements. Pursuant to California Labor Code section 1775, the difference between such prevailing wage rates and the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor. Packet Pg. 119 4. Ineligible Contractors: Pursuant to the provisions of Labor Code section 1777.1, the Labor Commissioner publishes and distributes a list of contractors ineligible to perform work as a contractor or subcontractor on a public works project. This list of debarred contractors is available from the DIR website at http://www.dir.ca.gov/Public- Works/PublieWorks.html. Any contract entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract, and any public money that may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the CITY. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Landlord Improvements. 5. Payroll,Records: Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall keep accurate certified payroll records, showing the name, (D address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per them wages paid to each in journeyman, apprentice, worker or other employee employed by them in connection Z with the Landlord Improvements. The payroll records enumerated herein shall be verified by a written declaration made under penalty of perjury that the N information contained in the payroll record is true and correct and that the M Contractor or subcontractor has complied with the requirements of the California Labor Code sections 1771, 1811, and 1815 for any Landlord Improvements performed by his or her employees. The payroll records shall be available for inspection at all reasonable hours at the principal office of the Contractor on the 4i E following basis: (1)A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employee or his/her authorized E representative on request; (2)A certified copy of all payroll records shall be made available for inspection or furnished upon request to the CITY, the Division of Labor Standards Enforcement of the DIR; (3)A certified copy of payroll records shall be made available upon request to the public for inspection or copies thereof made; provided, however, that a request by the public shall be made through either the CITY or the Division of Labor Standards Enforcement. If the requested payroll records have not been previously provided to the CITY or the Division of Labor Standards Enforcement, the requesting party shall, prior to being provided the records, reimburse the cost of preparation by the Contractor, subcontractor and the entity through which the request was made; the Packet Pg. 120 �jy 4�PAi. t `I ,3 public shall not be given access to such records at the principal office of the Contractors (4)The Contractor shall file a certified copy of the payroll records with the entity that requested such records within ten (10) days after receipt of a written request; and (5) Copies provided to the public, by the CITY or the Division of Labor A Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor or any r subcontractor, performing a part of the .Landlord Improvements shall not be marked or obliterated. The Contractor shall inform the CITY of the location of payroll records, including the street address, city and CITY and shall, within five (5) working days, provide a notice of a change of location and address. J The Contractor shall have ten (10) days from receipt of the written notice specifying d in what respects the Contractor must comply with the above requirements. In the event Contractor does not comply with the requirements of this section within the { ten (10) day period, the Contractor shall, as a penalty to the CITY, forfeit one- to hundred dollars ($100.00) for each calendar day, or portion thereof, for each worker, N until strict compliance is effectuated. Upon the request of the Division of Labor M Standards Enforcement, such penalty shall be withheld from any portion of the payments then due or to become due to the Contractor. M % M f� f. Limits on Fours of Work: Pursuant to California Labor Code section 1810, eight (8) hours of labor shall constitute a legal day's work. Pursuant to California Labor Code section 1811, the time of service of any worker employed at any time by the Contractor or by a subcontractor, upon the Landlord Improvements or upon any part of the Landlord Improvements, is limited and restricted to eight (8) hours during any one calendar w day and forty (40) hours during any one calendar week, except as provided for under a Labor Code section 1815. Notwithstanding the foregoing provisions, work performed by employees of Contractor or any subcontractor, in excess of eight (8) hours per day and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half(1'!2) times the basic rate of pay. 7. Penalty for Excess Hours: The Contractor shall pay to the CITY a penalty of twenty-five dollars ($25.00) for each worker employed on the Landlord Improvements by the Contractor or any subcontractor, for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the California 10 Packet Pg. 121 Labor Code, unless compensation to the worker so employed by the Contractor is not less than one and one-half(lY2) times the basic rate of pay for all hours worked in excess of eight (8) hours per day. 8. Senate Bill 854 (Chapter 28, Statutes of 2014) Requirements: (1) Contractor shall comply with Senate Bill 854 (signed into law on June 20, 2014). The requirements include, but are not limited to, the following: a. No contractor or subcontractor may be listed on a bid proposal (submitted on or after March 1, 2015) for a public works project unless registered with the DIR pursuant to Labor Code section 1725.5, with limited exceptions from this requirements for bid purposes only as allowed under Labor Code section 17711(a). b. No contractor or subcontractor may be awarded a contract for public work or perform work on a public works project (awarded on or after April 1, 2015) unless registered with the DIR pursuant to Labor Code section 1725.5. c. This project is subject to compliance monitoring and enforcement by the z DIR. N d. As required by the DIR, Contractor is required to post job site notices, as prescribed by regulation, regarding compliance monitoring and enforcement by the DIR. ti e. Contractors and all subcontractors must submit certified payroll records online to the Labor Commissioner for all new public works projects issued E on or after April 1, 2015, and for all public works projects, new or ongoing, on or after January 1, 2016. E i. The certified payroll must be submitted at least monthly to the Labor Commissioner. ii. The CITY reserves the right to require Contractor and all subcontractors to submit certified payroll records more frequently than monthly to the Labor Commissioner iii. The certified payroll records must be in a format prescribed by the Labor Commissioner. (2)Labor Code section 1725.5 states the following: A contractor shall be registered pursuant to this section to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract that is subject to the requirements of this chapter. For the purposes of this section, "contractor" includes a subcontractor as defined by Section 1722.1. it Packet Pg. 122 (a) To qualify for registration under this section, a contractor shall do all of the following: (1) Beginning July 1, 2014, register with the Department of Industrial Relations in the manner prescribed by the department and pay an initial nonrefundable application fee of three hundred dollars ($300) to qualify for registration under this section and an annual renewal fee on or before July 1 of each year thereafter. The annual renewal fee shall be in a uniform amount set by the Director of Industrial Relations, and the initial registration and renewal fees may be adjusted no more than annually by the director to support the costs specified in Section 1771.3. (2) Provide evidence, disclosures, or releases as are necessary to establish all of the following: (A) Workers' Compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes sufficient coverage for any worker whom the contractor employs to perform work that is subject to prevailing wage requirements other CO than a contractor who is separately registered under this section. 0 Coverage may be evidenced by a current and valid certificate of z workers' compensation Insurance or certification of self-insurance LO required under Section 7125 of the Business and Professions Code. (B) If applicable, the contractor is licensed in accordance with 7T- Chapter 9 (commencing with Section 7000) of the Business and Professions Code. (C) The contractor does not have any delinquent liability to an E employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, or determination by a court or any federal, state, E or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determination that is under appeal, provided that the contractor has secured the payment of any amount eventually found due through a bond or other appropriate means. (D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works. (E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged in the performance of a contract for public works without being lawfully registered in accordance with this section, within the preceding 12 months or since the effective date of the requirements set forth in subdivision (e), 12 Packet Pg. 123 whichever is earlier. If a contractor is found to be in violation of the requirements of this paragraph, the period of disqualification shall be waived if both of the following are true: (i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months. (ii) The contractor pays an additional nonrefundable penalty registration fee of two thousand dollars ($2,000). (b) Fees received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision (a) on or before the expiration of any prior period of registration CD shall be prohibited from bidding on or engaging in the performance of any -J contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefundable penalty z renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal fee. CN ff X (d) If, after a body awarding a contract accepts the contractor's bid or awards ti a A a I the contract, the work covered by the bid or contract is determined to be a public CO work to which Section 1771 applies, either as the result of a determination bg' the director pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements: E 0) (1) The body that awarded the contract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the C 4) work that the determination or decision subsequently classifies as a E public work. (2) Within 20 days following service of notice on the awarding body of a determination by the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this section or are replaced by a contractor or subcontractors who are registered under this section. (3) The requirements of this section shall apply prospectively only to any subsequent bid, bid proposal, contract, or work performed after the awarding body is served with notice of the determination or decision referred to in paragraph (2) of this subdivision. 13 Packet Pg. 124 (e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work, as defined in this chapter, entered into on or after April 1, 2015. (3)Labor Code section 1771.1 states the following: (a) A contractor or subcontractor shall not be qualified to bid on, be listed in a n bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.6 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725-5 at the time the contract is awarded. (b) Notice of the requirement described in subdivision (a) shall be included in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor's current registration to perform public work pursuant to Section 1725.5, CO (c) An inadvertent error in listing a subcontractor who is not registered LO pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid C14 protest or grounds for considering the bid nonresponsive, provided that any of the following apply: (1) The subcontractor is registered prior to the bid opening. (2) Within 24 hours after the bid opening, the subcontractor is registered and has paid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision(a) of Section 1725.5. (3) The subcontractor is replaced by another registered subcontractor E pursuant to Section 4107 of the Public Contract Code. (d) Failure by a subcontractor to be registered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is registered to perform public work pursuant to Section 1725.5 in place of the unregistered subcontractor. (e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5. (1) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section. ONNO MW 5,D,c (g) This section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. (4) Labor Code section 1771.4 states the following: (a) All of the following are applicable to all public works projects that are otherwise subject to the requirements of this chapter: (1) The call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the Department: of Industrial Relations. (2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation. (3) Each contractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner: n v (A) At least monthly or more frequently if specified in the contract with the awarding body. Cn (B) In a format prescribed by the Labor Commissioner. z (4) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements. M (b) The Labor Commissioner may exempt a public works project from compliance with all or part of the requirements of subdivision (a) of this section if either of the following occurs: (1) The awarding body has enforced an approved labor compliance E program, as defined in Section 1771.5, on all public works projects under its authority, except those deemed exempt pursuant to subdivision (a) of Section 1771,5, continuously since December 31, 2011. (2) The awarding body has entered into a collective bargaining agreement w Y that binds all contractors performing work on the project and that < includes a mechanism for resolving disputes about the payment of wages. (1) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015. (2) The requirements of paragraph (3) of subdivision (a) shall only apply to the following projects: {A) Projects that were subject to a requirement to furnish records to the Compliance Monitoring Unit pursuant to Section 16461 of Title 8 of the California Code of Regulations, prior to the effective date of this section. 15 Packet Pg. 126 (B) Projects for which the initial contract is awarded on or after April 1, 2015. (C) Any other ongoing project in which the Labor Commissioner directs the contractors or subcontractors on the project to furnish records in accordance with paragraph (3) of subdivision (a). (D) All projects, whether new or ongoing, on or after January 1, 2010. B. STATE PUBLIC WORKS APPRENTICESHIP REQUIRME TS 1. State Public Works Apprenticeship Requirements: The Contractor is responsible for compliance with Labor Code section 1777.5 and the California Code of Regulations, title 8, sections 230 — 230.2 for all a_parenticeable occupations (demoted with " " symbol next to craft name in DIR Prevailing Wage Determination), whether employed by the Contractor, subcontractor, vendor or consultant. Included in these requirements is (1) the Contractor's requirement to provide notification (i.e. DAS-140) to the appropriate o apprenticeship committees; (2) pay training fund contributions for each Z apprenticeable hour employed on the Contract, and (3) utilize apprentices in a N minimum ratio of not less than one apprentice hour for each five journeyman hours M by completion of Contract work (unless an exception is granted in accordance with Labor Code section 1777.5) or request for the dispatch of apprentices. M M Any apprentices employed to perform any of the Landlord Improvements shall be paid the standard wage to apprentices under the regulations of the craft or trade for which such apprentice is employed, and such individual shall be employed only for the work of the craft or trade to which such individual is registered. Only apprentices, as defined in California Labor Code section 3077, who are in training under apprenticeship standards and written apprenticeship agreements under v California Labor Code sections 3070 et seq. are eligible to be employed for the Landlord Improvements. The employment and training of each apprentice shall be in accordance with the provisions of the apprenticeship standards and apprentice agreements under which such apprentice is training. 2. Compliance with California Labor Code section 1777.5 requires all public works contractors to Submit Contract Award Information (DAS-140) a. Although there are a few exemptions (identified below), all Contractors, regardless of union affiliation, must submit contract award information when performing on a California public works project. 16 Packet Pg. 127 I b. The DAS-140 is a notification "announcement" of the Contractor's participation on a public works project—it is not a request for the dispatch of an apprentice. c. Contractors shall submit the contract award information (you may use form. DAS 140) within 10 days of the execution of the prime contract or subcontract, but in no event later than the first day in which the Contractor has workers employed on the public work. d. Contractors who are already approved to train apprentices (i.e. check "Box 1" on the DAS-140) shall only be required to submit the form to their approved program. e. . Contractors who are NOT approved to train apprentices (i.e. those that check either "Box 2" or "Box 3" on the DAS-140) shall submit the DA -140 TO EACH of the apprenticeship program sponsors in the area of your public works project. For a listing of apprenticeship programs see http://www.dir.ca.govIDatabases/das/Pwaddrstart.asp. Employ Registered Apprentices J a. Labor Code section 1777.5 requires that a contractor performing work in an a "apprenticeabie" craft must employ one (1) hour of apprentice work for every co five (5) hours performed by a journeyman. This ratio shall be met prior to a the Contractor's completion of work on the project. "Apprenticeable" crafts z are denoted with a pound symbol 'V in front of the craft name on the N prevailing wage determination. _ b. All Contractors who do not fall within an exemption category (see below) ti must request for dispatch of an apprentice from an apprenticeship program (for each apprenticeable craft or trade) by giving the program actual notice of ti at least 72 hours (business days only) before the date on which apprentices are required. E c. Contractors may use the "DAS-142" form for making a request for the dispatch of an apprentice. d. Contractors who are participating in an approved apprenticeship training program and who did not receive sufficient number of apprentices from their v initial request must request dispatch of apprentices from ALL OTHER apprenticeship committees in the project area in order to fulfill this requirement. e. Contractor should maintain and submit proof (when requested) of its DAS- 142 submittal to the apprenticeship committees (e.g. fax transmittal confirmation). A Contractor has met its requirement to employ apprentices only after it has successfully made a dispatch request to all apprenticeship programs in the project area. f. Only "registered" apprentices may be paid the prevailing apprentice rates and must, at all times work under the supervision of a Journeyman (Cal. Code Regs., tit 8, § 230.1). Make Training Fund Contributions 17 Packet Pg. 128 a. Contractors performing in apprenticeable crafts on public works projects, must make training fund contributions in the amount established in the prevailing wage rate publication for journeymen and apprentices. b. Contractors may use the "CAC-2" form for submittal of their training fund contributions. c. Contractors who do not submit their training fund contributions to an approved apprenticeship training program must submit their contributions to the California Apprenticeship Council (CAC), PO Box 420603, San Francisco, CA 94142-0603. d. Training fund contributions to the CAC are due and payable on the 15th day of the month for work performed during the preceding month. e. The "training" contribution amount identified on the prevailing wage determination shall not be paid to the worker, unless the worker falls within one of the exemption categories listed below. 3. Exemptions to Apprenticeship Requirements: Z, _J The following are exempt from having to comply with California apprenticeship requirements. These types of contractors do not need to submit a DAS-140, DA5- 142, make training fund contributions, or utilize apprentices. Z a. When the Contractor holds a sole proprietor license ("Owner-Operator") and no workers were employed by the Contractor. In other words, the contractor performed the entire work from start to finish and worked alone. b. Contractors performing in non-apprenticeable crafts. "Apprenticeable" crafts are denoted with a pound symbol 'W' in front of the craft name on the prevailing wage determination. c. When the Contractor has a direct contract with the Public Agency that is E under $30,000. d. When the project is 100%federally-funded and the funding of the project does not contain any city, CITY, and/or state monies (unless the project is E administered by a state agency in which case the apprenticeship requirements apply). e. When the project is a private project not covered by the definition of public works as found in Labor Code section 1720. 4. Exemption from Apprenticeship Ratios: The Joint Apprenticeship Committee shall have the discretion to grant a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the Contractor from the 1-to-5 ratio set forth in this Section when it finds that any one of the following conditions are met: Packet Pg. 129 5.D.c a. Unemployment for the previous three-month period in such area exceeds an average of fifteen percent (15%); or b. The number of apprentices in training in such area exceeds a ratio of 1-to-5 in relation to journeymen; or C. The Apprenticeable Craft or Trade is replacing at least one-thirtieth (1/30) of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis; or x d. If assignment of an apprentice to any work performed under the Contract Documents would create a condition which would jeopardize such l' apprentice's life or the life, safety or property of fellow employees or the public at large, or if the specific task to which the apprentice is to be assigned is of such a nature that training cannot be provided by a journeyman. When such exemptions from the 1-to-5 ratio between apprentices and journeymen are granted to an organization which represents contractors in a specific trade on a local or statewide basis, the member contractors will not be required to submit individual applications for approval to local Joint Apprenticeship Committees, provided they are already covered by the local apprenticeship standards. � Q 5. Contractor's Compliance: 1 0 The responsibility of compliance with this Section for all Apprenticeable Trades or z LO Crafts is solely and exclusively that of the Contractor. All decisions of the Joint Apprenticeship Committee(s) under this Section are subject to the provisions of `V California Labor Code section 3081 and penalties are pursuant to Labor Code section 1777.7 and the determination of the Labor Commissioner. M E L r C N E U Q 19 Packet Pg. 130 1 n x� k �F F CD h c FV r v, m C Iwo m "Op CD My a j 2 =t7 z i1 b < N m � r rn M r D M s cc/) O Z et s > _ C/7 to FMT ( a. X f- O LL Au © o a E Z t 0 f4 w r •+ o � STA1 Packet Pg7 331 5.D.d i r t• N -{ (D s N 03 Co CO ❑ LO^��ry ® N m/ N m \ Cl) m m M z(fj z MO _ _ -T-t d .` i �y m o N Z t7d p L- ;C1 € r LL z d o C) C STAI m I � _ 0 i i Packet Pg. 132