2016- 48
LEASE AGREEMENT
CITY OF SAN BERNARDINO and YMCA OF THE EAST VALLEY
CITY: CITY OF SAN BERNARDINO
300 North" D" Street
San Bernardino, CA 92418
LESSEE: YMCA OF THE EAST VALLEY
500 E. Citrus Ave.
Redlands CA 92373
ADDRESS: San Bernardino Family YMCA
808 E. 21s' St.
San Bernardino CA 92404
TERM OF LEASE: 10 years with 5 year option to extend COMMENCEMENT: March 1, 2016
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1. PARTIES.
This Lease AGREEMENT ( the " AGREEMENT") is entered into this21st day of March , 2016, BY AND BETWEEN
theCityof SanBernardino, a CharterCityorganizedunderthelawsof theStateof California, with an address of 300 N. " D" Street, San Bernardino, California ( the CITY");
AND,
YMCA OF THE EAST VALLEY, a California nonprofit public benefit corporation, ( the LESSEE") ( individually CITY or LESSEE may be referred to as a " PARTY" and collectivelyCITYandLESSEEmaybereferredtoasthe "PARTIES") WHO AGREE AS FOLLOWS:
2. PREMISES LEASED.
CITYownscertainrealpropertywithAssessor'sParcelNumbers0147-031-16and0147-031-12 located at 808 East 21s' Streetin theCityof SanBernardino, Countyof SanBernardino, Stateof California (" FACILITY"). CITY leases to LESSEE and LESSEE leases from CITY a portion of the FACILITY as depicted on the map attached as Exhibit" A" (" PREMISES").
3. TERM.
The AGREEMENT' s initial term (" INITIAL TERM") shall commence on March 1, 2016 (" COMMENCEMENT DATE") and end on March 1, 2026 ENDING DATE").
4. RENT.
4. 1 LESSEEshallpayto CITY thefollowingrentalpaymentsin advanceonthefirst dayof Marchof eachyear, commencingon COMMENCEMENTDATE, and continuingyearlythroughtheINITIAL TERM:
Annual Payment of$ 1. 00.
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4. 2 Rent for any year shall be paid in full. CITY shall accept all rent and other payments from LESSEE under this AGREEMENT via electronic funds transfer directly deposited into the CITY' s designated checking or other bank account.
CITY shall provide to LESSEE all directions, information, and forms necessaryto process EFT payments.
5. OPTION TO EXTEND TERM.
CITY gives to LESSEE the option to extend the term of the LEASE for an additional five ( 5) years on the same provisions and conditions, including rent, following expiration of the INITIAL TERM, by LESSEE giving notice of its intention to exercise the option to CITY prior to the expiration of the preceding term or during any holding over pursuant to SECTION 7, HOLDING OVER.
6. RETURN OF PREMISES.
The LESSEE agrees that it will, upon termination of this AGREEMENT, return the PREMISES in as good condition and repair as the PREMISES now are or shall hereafter be put; reasonable wear and tear excepted.
7. HOLDING OVER.
In the event the LESSEE shall hold over and continue to occupy the PREMISES with the consent of the CITY, whose consent shall only be given in writing and in the sole discretion of CITY, the tenancy shall be deemedto be a tenancy from month-to-month upon the sameterms and conditions, including rent, as existed and prevailed at the time of the expiration of the term of this AGREEMENT.
8. TAXES.
CITY shall pay all real property taxes, and general and special assessments levied and assessed against the PREMISES.
9. USE.
LESSEE shall occupy and use the PREMISES during the term hereof exclusively for recreational, cultural, and educational activities of the YMCA of the East Valley/ San Bernardino.
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10. HEALTH, SAFETY, AND FIRE CODE REQUIREMENTS.
LESSEE shall, at its sole expense, ensure that the PREMISES meets the applicable requirements of allHealth, Safety, FireandBuildingCodes, statutes, regulationsandordinancesforpublicand governmental buildings including any requirements for a notice of completion, certificate of occupancy, or California Title 24 requirements and ensure that the PREMISES meets the applicable requirements of the Americans with Disabilities Act(" ADA").
11. SIGNS.
LESSEEwill displayfrom windowsand/or marqueeof the PREMISESonly suchsignor signs as arenot prohibited by law.
12. MAINTENANCE.
12. 1 LESSEE shall, at its sole expense, perform such inspections, maintenance and repairsarenecessaryto ensurethatall portionsof thePREMISES, includingbut not limited to the following, are at all times in good repair and safe condition:
12.1.1 The structural parts of the building and other improvements that are a part of the PREMISES, which structural parts include the foundations, bearing and exterior walls ( including glass and doors), subflooring, and roof; and,
12.1.2 The electrical, plumbing, andsewagesystems, including, exceptingthose portions of the systems owned or controlled by CITY lying outside the PREMISES; and,
12. 1. 3 Window frames, gutters, and downspouts on the building and other improvements that are a part of the PREMISES; and,
12. 1. 4 Heating, ventilation and air conditioning ( HVAC) systems servicing the PREMISESincluding changingheatingandair-conditioningfilters every four( 4) months; and,
12.1.5 The grounds, includingall parkingareasandoutsidelighting, grass, trees, shrubbery and other flora; and,
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12.1.6 Janitorial services, including keep the interior of the PREMISES in a clean and orderly condition, reasonable wear and tear excluded, and undertake minor maintenance of the interior PREMISES such as unstoppage of toilets and changing of light bulbs and servicing of the fire extinguishers or anyotherfire suppressionequipmentattachedto thefacility.
12. 2 LESSEE shall at regular intervals, but no lessthan monthly, conduct an inspection of the PREMISES to determine if any maintenance or repair is necessary. If LESSEE discovers a condition requiring maintenanceor repair, LESSEE shall use its best efforts to diligently commencethe performanceof its maintenanceor repair obligations within a reasonable time.
13. ALTERATIONS.
Uponthirty (30) days' noticeto theCITYandwiththeCITY'sconsent, whichshallbegivenin writing at the sole discretion of CITY, LESSEE may place modular units to serve as office and classroomspace, or modify existingbuilding structuresonthePREMISES, but solelyatexpense of LESSEE. Any and all permit acquisition and installation of utility lines are the sole responsibilityof the LESSEE. Upon terminationof this AGREEMENT, LESSEEshallremove said modules at its own expenseand leave the PREMISES in the samecondition it was at the time such modules were placed there, unless the PARTIES mutually agree to maintain the modules on the PREMISES.
14. FIXTURES.
LESSEEshall havethe right during the term(s) of this AGREEMENT to install shelvingand fixtures, and make interior, non- structural improvements or alterations on the PREMISES. Such shelving, fixtures, improvements, andalterationsshallremainpropertyof the LESSEEandmay be removed by the LESSEE during the term(s) of this AGREEMENT or within a reasonable time thereafter, provided that the LESSEE restores the PREMISES to the condition as it existed at the commencement of this AGREEMENT, reasonable wear and tear excluded, or the LESSEE mayelect, with CITY' s written consentto begivenat CITY' s solediscretion, to surrenderall or any part of such shelving, fixture, improvementsand alterations, to the CITY, in which case LESSEE shall have no duty to restore the PREMISES.
15. UTILITIES.
LESSEE shall furnish to the PREMISES and LESSEE shall pay all service charges and related taxes for electric, gas, water, sewer, trash, fire alarm service and all other utilities including security, telephone, cable, and internet services.
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16. HOLD HARMLESS.
LESSEEagreesto and shall indemnify and hold the CITY, its electedofficials, employees, agents, or representatives, freeandharmlessfromall claims, actions, damagesandliabilitiesof anykindandnaturearisingfrombodilyinjury, includingdeath, orpropertydamage, basedor asserteduponanyactualor allegedactor omissionof LESSEE, its employees, agents, or subcontractors, arising, relatingto, or in anywayconnectedwith theperformanceunderthis AGREEMENT, unlessthe bodily injury or propertydamagewasactuallycausedby the sole negligenceof theCITY, itselectedofficials, employees, agentsorrepresentatives. Aspartof the foregoing indemnity, LESSEE agrees to protect and defend at its own expense, including attorney'sfees, theCITY, itselectedofficials, employees, agentsorrepresentativesfromanyand all legal actions based upon such actual or alleged acts or omissions. LESSEE hereby waives anyandallrightstoanytypesofexpressorimpliedindemnityagainsttheCITY, itselected officials, employees, agentsor representatives, with respectto third party claims againstthe LESSEErelatingto or in any way connectedwith the accomplishmentof the work or performance of services under this AGREEMENT.
17. INSURANCE.
17. 1 CITY is a self-insuredpublicentityfor the purposesof professionalliability, general liability, and workers' compensation.
17. 2 LESSEE shall obtain and maintain during the life of this AGREEMENT all of the following insurance coverage:
17. 2. 1 Comprehensive general liability, including premises- operations, products/ completed operations, broad form property damage, blanket contractualliability, personalinjury with a policy limit of not lessthan One Million Dollars ($ 1, 000, 000. 00), combined singles limits, per occurrence and aggregate.
17.2.2 Automobile liability for ownedvehicles, hired, andnon-ownedvehicles, with a policy limit of not less than One Million Dollars ($ 1, 000, 000. 00), combined single limits, per occurrence and aggregate.
17.2.3 Worker'scompensationinsuranceasrequiredby theStateof California.
17.3 Thecomprehensivegeneralliabilityinsurancepolicyshallcontainor beendorsed to contain the following provisions:
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17. 3. 1 Additional insureds: " The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City."
17. 3. 2 Notice: " Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty ( 30) days after written notice is given to City."
17. 3. 3 Other insurance: " Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy."
17.4 LESSEE shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approvedby CITY, prior to performing any servicesunder this AGREEMENT.
17. 5 Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained within this AGREEMENT, or the extent to which LESSEEmay be held responsiblefor paymentsof damagesto personsor property.
18. DESTRUCTION OF PREMISES.
18. 1 During the term(s) of this AGREEMENT, if any casualty renders a portion of the PREMISES unusable for the purpose intended, then LESSEE shall, at LESSEE' s sole expense, restore the PREMISES and repair any damages caused by such casualtyassoonasreasonablepossibleandthis AGREEMENT shallcontinuein full force and effect unless such casualty was causedby Flood or Earthquake.
18. 2 In the event there is a destruction of a portion of the PREMISES as set out in Subsection 18. 1 above, there shall be an abatement or reduction in the rent between the date of the destruction and the date of completion of the restoration or the date of the termination of the AGREEMENT, whichever comes first.
18. 3 In the event the LESSEE is required to restore PREMISES as provided in Subsection 18.1 above, LESSEE shall not be required to restore any structure or exterior improvements or alterations made to the PREMISES by LESSEE pursuant to Section 13, Alterations above or any shelving, fixtures, or interior nonstructural improvements or alterations made by LESSEE pursuant to Section 14, Fixtures above.
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18. 4 It is the purpose and intent of Subsections 18. 1 through 18. 4, inclusive, to determine what PARTY shall bear the initial responsibility for restoration of the PREMISES in the event of any such destruction and not to determine the PARTY ultimately responsible for the costsof suchrestoration.
19. DEFAULT.
Except where another time limit is specifically provided, either PARTY shall be in default of this AGREEMENT if the PARTY fails or refuses to perform any material provisions of this AGREEMENT and such failure or refusal to perform is not cured within thirty ( 30) days following thePARTY's receiptof written noticeof defaultfrom theotherPARTY. If thedefault cannot be reasonably cured within thirty ( 30) days, the PARTY shall not be in default of this AGREEMENT if the PARTY commencesto cure the default within the thirty ( 30) day period anddiligently and in good faith continuesto cure the default.
20. REMEDIES ON DEFAULT.
Either PARTY, at any time after the other PARTY is in default, can terminate this AGREEMENT immediately upon written notice to the other PARTY.
21. LESSEE' S DEFAULT.
In addition to Section 19 above, the occurrence of any one or more of the following events shall constitute an immediate default and breachof this AGREEMENT by LESSEE:
21. 1 The vacating or abandonmentof the PREMISES by LESSEE.
21. 2 The failure of LESSEE to pay of rent.
21. 3 It is not the purpose of this section to extend the notice requirements of the unlawful detainer statutes in California.
22. CITY' S REMEDIES ON LESSEE' S DEFAULT.
It is not the purpose of this section to extend the notice requirements of the unlawful detainer statutes in California. The remedies contained herein are in addition to, and not in lieu of, any other remedies available to CITY under relevant state law. In the event of any default by LESSEE, which is not cured by LESSEE, CITY may, at its election, terminate this AGREEMENT immediately.
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23. CITY' S ACCESS TO PREMISES.
CITY and its authorized representatives shall have the right to enter the PREMISES at all reasonabletimes for any of the following conditions:
23. 1 To determine whether the PREMISES are in good condition; and,
23. 2 To do any necessarymaintenanceand to make any restoration to the PREMISES that CITY has the right or obligation to perform; and,
23. 3 To serve, post, or keep postedany notices required by law; and,
23. 4 To post " for sale" signs at any time turning the term, to post " for rent" or " for lease" signs during the last three (3) months of the term; and,
23. 5 To show the PREMISES to prospective brokers, agents, buyers, tenants, lenders or personsinterestedin anexchange, at anytime duringtheterm; and,
23. 6 For any other lawful purpose.
CITY shall conduct its activities on the PREMISES as allowed in this section in a manner that will reduce possible inconvenience, annoyance, or disturbance to LESSEE.
24. NOTICES.
Any notices, documents, correspondence, or other communication concerning this AGREEMENTor theservicesprovidedhereundermaybeprovidedby personaldeliveryor U.S.
Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sentby U.S. Mail the noticeshall be deemeddeliveredforty-eight (48) hoursafter deposit in the U.S. Mail asreflected by the official U.S. postmark.
TO THE CITY: TO THE LESSEE:
City of San Bernardino YMCA OF THE EAST VALLEY
Office of the City Manager
300 N. " D" Street 500 E. Citrus Ave.
San Bernardino, CA 92418 Redlands, CA 92373
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EitherPARTY maychangethe addressfor deliveryof noticesby sendingnoticeof thechangeto the other PARTY in conformity with this Section.
25. ASSIGNMENT.
LESSEEshallnot voluntarily or by operationof law assign, transfer, subletor encumberall or any part of the LESSEE' s interest in this AGREEMENT without CITY' s prior written consent.
Any attemptedassignment, transfer, subletting or encumbranceshall be void and shall constitute a breachof this AGREEMENT and causefor the termination of this AGREEMENT. Regardless of CITY' s consent, no subletting or assignmentshall releaseLESSEE of LESSEE' s obligation to perform all other obligations to be performed by LESSEE hereunder for the term of this AGREEMENT.
26. ENTIRE AGREEMENT.
This AGREEMENT constitutes the entire agreementand the understandingbetween the PARTIES, andsupersedesanyprior agreementsandunderstandingsrelatingto the subjectmatter of this AGREEMENT.
27. REMEDIES; WAIVER.
All remediesavailableto eitherPARTY for oneor morebreachesby the otherPARTY areand shallbe deemedcumulativeandmay be exercisedseparatelyor concurrentlywithout waiverof any other remedies.
Thedelayor failureof eitherPARTYto requireperformanceor complianceof theotherof any of its obligationsunderthis AGREEMENT shallin no waybedeemeda waiverof thoserightsto require suchperformance or compliance. No waiver of any provision of this AGREEMENT shall beeffectiveunlessmadein writing andsignedby aduly authorizedrepresentativeof thePARTY againstwhomit is sought. Thewaiver of anyright or remedywith respectto anyoccurrenceor event shall not be deemeda waiver of such right or remedy with respectto any future occurrencesor eventsand shall not be deemeda continuing waiver.
28. AMENDMENT.
Noamendmentto thisAGREEMENTwill beeffectiveunlessit is in writingandsignedbyboth PARTIES.
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29. SUCCESSORS AND ASSIGNS.
This AGREEMENT shall be binding on and inure to the benefit of the PARTIES to this AGREEMENT and their respective heirs, representatives, successors, and assigns.
30. SEVERABILITY.
If any provision of this AGREEMENT is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this AGREEMENT shall remain in full force and effect.
31. TIME OF ESSENCE.
Time is of the essence of each provision of this AGREEMENT which specifies a time within which performance is to occur. In the absenceof any specific time for performance, performance may be madewithin a reasonabletime.
32. QUIET ENJOYMENT.
Subject to the provisions of this AGREEMENT and conditioned upon performance of all the provisions to be performed by LESSEE hereunder, CITY shall secure to LESSEE during the AGREEMENT term the quiet and peaceful possession of the PREMISES and all rights and privileges appertaining thereto.
33. PROVISIONS ARE COVENANTS AND CONDITIONS.
All provisions, whether covenants or conditions, on the part of either PARTY shall be deemed both covenants and conditions.
34. CONSENT.
Whenever consentor approval of either PARTY is required that PARTY shall not unreasonably withhold, condition, or delay such consent or approval, unless the provision providing for such consent or approval specifically provides such consent or approval may be given in the PARTY' s discretion.
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35. EXHIBITS.
All exhibits referred to areattachedto this AGREEMENT and incorporated by reference.
36. LAW.
This AGREEMENT shall be governed and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws.
37. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this AGREEMENT shall be tried and litigated either in the Superior Court of the State of California for theCountyof SanBernardino. Theaforementionedchoiceof venueis intendedby theparties to be mandatory and not permissive in nature.
38. ATTORNEY' S FEES AND COSTS.
In the event that litigation is brought by any PARTY in connection with this AGREEMENT, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonableattorneys' fees, incurred by the prevailing party in the exerciseof any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expensesof the City Attorney and members of his/her office in enforcing this AGREEMENT on behalf of the CITY shall be considered as " attorneys' fees" for the purposes of this section.
41. RIGHT TO TERMINATE.
This AGREEMENT may be terminated at any time by one hundred eighty ( 189) days written notice by either PARTY for any reason.
42. HEADINGS.
The subject headings of the sections of this AGREEMENT are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions.
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43. SURVIVAL.
The obligations of the PARTIES that, by their nature, continue beyond the term of the AGREEMENT, will survive the termination of the AGREEMENT.
44. ESTOPPEL CERTIFICATE.
Each PARTY within thirty ( 30) days after notice from the other PARTY shall execute and deliverto the otherPARTY, in recordableform, a certificatestatingthat this AGREEMENT is unmodifiedandin full force andeffect, or in full force andeffect asmodified, andstatingthe modifications. The certificate also shall state the date 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 reasonabledetail the nature of any uncured default claimed. Failure to deliver this certificate within thirty ( 30) days shall be conclusive upon the PARTY requesting the certificate any successorto the PARTY requesting the certificate, that this AGREEMENT is in full force andeffectandhasnot beenmodifiedexceptasmayberepresentedby thePARTY requestingthe certificate, and that there are no uncureddefaultson the part of the PARTY requestingthe certificate.
45. PUBLIC RECORDS DISCLOSURE.
All informationreceivedby CITY concerningthis AGREEMENT, includingtheAGREEMENT itself, may be treated 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"). The PARTIES understand that although all materials received in connection with this AGREEMENTareintendedfor the exclusiveuseof the PARTIES, they arepotentiallysubject to disclosure under the provisions of the Public Records Act.
46. CONDITION OF PREMISES.
The CITY makes no warranty as to the condition of the PREMISES on COMMENCEMENT DATE or the PREMISES' suitability for a particular use. LESSEE agreesthat it has not relied upon any representation by CITY as to the condition of the PREMISES or the PREMISES' suitabilityfor aparticularusewhendeterminingwhetherto enterinto this AGREEMENT.
47. CONDEMNATION.
If any legally, constituted authority condemnsthe PREMISES or such part thereof which shall make the PREMISES unsuitable for leasing, this AGREEMENT shall ceasewhen the public authority takes possession, and CITY and LESSEE shall account for rental as of that date. Such
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termination shall be without prejudice to the rights of either PARTY to recover compensation from the condemning authority for any loss or damage caused by the condemnation. Neither PARTY shall have any rights in or to any award madeto the other by the condemning authority.
48. MATERIAL REPRESENTATION.
If during the course of the administration of this AGREEMENT, a PARTY determines that the other PARTY has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the PARTY, this AGREEMENT may be immediatelyterminated. If this AGREEMENT is terminatedaccordingto this section, the terminating PARTY is entitled to pursue any available legal remedies.
49. INTERPRETATIONS.
The PARTIES have participated jointly in the negotiation and drafting of this AGREEMENT. In the event an ambiguity or question of intent or interpretation arises with respect to this AGREEMENT, this AGREEMENT shall be construed as if drafted jointly by the PARTIES and in accordancewith its fair meaning. Thereshallbe no presumptionor burdenof proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this AGREEMENT.
50. COUNTERPARTS.
This AGREEMENT may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e- mail delivery of a ". pdf' format data file, such signatureshall createa valid and binding obligation of the PARTY executing ( or on whose behalf such signature is execute) with the same force and effect as if such facsimile or". pdf' signature page were an original thereof.
51. CORPORATE AUTHORITY.
Each person executing this AGREEMENT on behalf of the PARTIES hereto warrant that they are duly authorized to executethis AGREEMENT on behalf of said PARTIES and that by doing so, the PARTIES hereto are formally bound to the provisions of this AGREEMENT.
52. ORDER OF PRECEDENCE.
In the event of any inconsistency or conflict in this AGREEMENT and any of the attached Exhibits or Attachments, the terms set forth in this AGREEMENT shall prevail.
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53. FORCE MAJEURE.
A PARTY shall not be liable for any failure or delay in the performance of this AGREEMENT for theperiodthat suchfailure or delayis dueto causesbeyondits reasonablecontrol, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force maj eure event.
54. COMPLIANCE WITH LAW.
LESSEE agreesto abide by all federal, state, and local laws, ordinancesand regulations.
55. NON- DISCRIMINATION.
In the performance of this AGREEMENT, use of the PREMISES, and in the hiring and recruitment of employees, LESSEE shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law.
56. REGULATORY AUTHORITY.
LESSEE acknowledges and agreesthat CITY, acting not as landlord but in its governmental regulatory capacity, has certain governmental regulatory authority over the PREMISES and nothingin this AGREEMENTbindstheCITY to exerciseits discretionarygovernmental authority in any particular manner. LESSEE, in the use and operation of the PREMISES, shall at all times comply with all applicable laws in the performance of this AGREEMENT and agrees that" all applicablelaws" asusedhereinincludesanylegalrequirementimposedby CITY acting not aslandlord but in its capacity as a governmental regulatory body. LESSEE agreesthat all costsin complying with applicable laws arethe sole responsibility of LESSEE.
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LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND YMCA FOR YMCA SAN
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LEASE AGREEMENT
CITY OF SAN BERNARDINO and YMCA of the East Valley
CITY OF SAN BERNARDINO: LESSEE:
ke a
Mark Scott, City Manager
Its: Chief Executive Officer
DATE: DATE:
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3 —
APPROVED AS TO FORM:
GARY D. SAENZ, City Attorney
By:
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