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RESOLUTION NO. 2018- 208
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE
A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
AKOMA UNITY CENTER FOR FACILITY USE OF ANNE SHIRRELLS
COMMUNITY CENTER AT 1367 NORTH CALIFORNIA STREET, SAN
BERNARDINO, CALIFORNIA FROM JULY 1, 2018 THROUGH JUNE 30, 2021
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the City Manager is hereby authorized to execute a lease agreement, between the City of San Bernardino and Akoma Unity Center for the use of Anne Shirrells Community Center, located at 1367 N. California Street, San Bernardino, CA 92411, a copy of which is attachedhereto, marked Exhibit " A" and incorporated herein by references as fully as though set forth at length.
SECTION 2. The monthly rent shall be setas $1088. 00 per month.
SECTION 3. That the authorization granted hereunder shall expire and be void and of no further effect if the agreementis not executedby both parties and returned to the office of the City Clerk within sixty (60) daysfollowing the effective dateof the resolution. 1 2
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RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE
A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
AKOMA UNITY CENTER FOR FACILITY USE OF ANNE SHIRRELLS
COMMUNITY CENTER AT 1367 NORTH CALIFORNIA STREET, SAN
BERNARDINO, CALIFORNIA FROM JULY 1, 2018 THROUGH JUNE 30, 2021 I HEREBY CERTIFY that the foregoing Resolution was duly adoptedby the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the .15 th
day of August 2018, by the following vote, to wit:
Council Members:
MARQUEZ
BARRIOS
VALDIVIA
SHORETT
NICKEL
RICHARD
MULVIHILL
AYES NAYS ABSTAIN ABSENT
i-
Georg Hanna, C C, City Clerk
The foregoing Resolution is hereby approvedthis
15a'
day of August 2018.
Approved as to form:
Gary D. Saenz, City Attorney
By: Avkz')- & WA"'
Lam'
R. Carey Davis Mayor
City of San Bgfnardino
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK' S OFFICE
DATE: August 28, 2018
Marion Vories
Parks, Recreation, and Community Services
CandiceAlvarez, CMC, Deputy City Clerk
l RE: Transmitting Documents for Signature — Lease Agreement with Akoma Unity Ccnter, Inc.
At the Mayor and City Council meeting of August 15, 2018 the City of San Bernardino adopted Resolution No. 2018-208 authorizing the City Manager to execute a LeaseAgreement between the City of San Bernardinoand Akoma Unity Centerfor facility use of the Anne Shirrells Community Centerat 1367North California Street, SanBernardino, California from July 1, 2018 through June 30, 2021.
Attached are three ( 3) ORIGINAL agreements to be executed. Please obtain signatures in the appropriate locations and return ONE ORIGINAL to Candice Alvarez in the City Clerk' s Office as soon as possible. Pleasealso retain a copy of the fully executeddocument for your records and forward the remaining copy to the appropriate party.
LEASE AGREEMENT
between the
CITY OF SAN BERNARDINO
and
AKOMA UNITY CENTER, INC.
CITY: CITY OF SAN BERNARDINO
290 North " D" Street
San Bernardino, CA 92418
LESSEE: AKOMA UNITY CENTER, INC.
985 Kendall Drive, Suite A319
P. O. Box 319
San Bernardino, CA 92407
PREMISE ADDRESS: Anne Shirrells Community Center
1367 North California Street
San Bernardino, CA 92411
TERM OF LEASE- Three ( 3) Years with Two ( 2) One- year Options COMMENCEMENT: 09/ 15, 2018
1. PARTIES.
This lease AGREEMENT ( the " AGREEMENT") is enteredinto this 15'h day of August2018 Effective Date"), by and between the Akoma Unity Center, Inc. (" LESSEE") a corporation incorporated under the laws of the State of California and the City of San Bernardino a charter city and municipal corporation (" CITY"). ( Individually CITY and LESSEE may be referred to as a PARTY" and collectively CITY and LESSEE may be referred to asthe "PARTIES")
2. PREMISES LEASED.
CITY leasesto LESSEE and LESSEE leasesfrom CITY the Anne Shirrells Community Center (the PREMISES"), a 4,200 square foot community center at Anne Shin -ells Park. The PREMISES is located at 1367 N. California Street in the city of San Bernardino and the County of San Bernardino and contains open recreation area, four ( 4) offices, restrooms and a break room.
3. TERM.
The AGREEMENT' s initial term (" INITIAL TERM") shall commence Effective Date COMMENCEMENT DATE") and end on June 30, 2021 (" ENDING DATE").
4. RENT.
4. 1 LEESSEEshallpayto CITY thefollowing rentalpaymentsin advanceonthe first dayof each month, commencing on COMMENCEMENT DATE, and continuing through the INITIAL TERM.
Year One ( 1) [ commencementdatethrough June 30, 20191 $1,008.00 per month Year Two ( 2) [July 1, 2019 through June 30, 2020] $ 1, 008. 00 per month Year Three ( 3) [ July 1, 2020 through June30, 2021] $ 1, 008. 00 per month
4. 2 Rentfor anypartialmonthshallbeproratedbasedontheactualnumberof daysof the month. CITY shall accept all rent and other payments from LESSEE under this AGREEMENT via electronic funds transfer directly deposited into the CITY' s designatedcheckingor otherbankaccountor anyothermeansmutuallyagreeduponby the CITY and LESSEE. CITY shall provide to LESSEE all directions, information, and forms necessaryto processEFT payments.
5. OPTION TO EXTEND TERM.
CITY gives to LESSEE the option to extend the term of the LEASE on the same provisions and conditions, except for monthly rent, for two ( 2) one-year periods (" EXTENDED TERMS") following expirationof theINITIAL TERM, by LESSEEgiving noticeof its intentionto exercisethe optionto CITYwithinthirty (30) days' priorto theexpirationof theprecedingtermorduringanyholdingover pursuant to SECTION 7, HOLDING OVER. The rent for each extended term shall be adjusted by good faith negotiations of the PARTIES to the fair market rental rate then prevailing based on the rental rates of comparableleasedproperty in the City of SanBernardino. The extensions and monthly rate adjustmentswill be pursuant to written authorization of the City Manager. This Agreement may beterminatedatanytime uponthirty (30) dayswrittennoticeby eitherparty.
6. RETURN OF PREMISES.
The LESSEE agrees that it will, upon termination of the AGREEMENT, return the PREMISES in good condition and repair as the PREMISES now are or shall hereafter be put; reasonable wear and tear accepted.
7. HOLDING OVER
In the event the LESSEE shall hold over and continue to occupy the PREMISES with the consent of the CITY, whose consent shall only be given in writing, and may be pursuant to the written authorization of the City Manager only, and in the sole discretion of CITY, the tenancy shall be 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 generaland specialassessmentslevied and assessed against the PREMISES.
9. USE.
LESSEEshalloccupyandusethePREMISESduringthetermhereofexclusivelyfor theoperationof the agreed upon Anne ShnTells Community Center Operations Plan and in compliance with all federal, state and local laws. LESSEE shall provide the CITY verification that all staff, instructors, andvolunteerswhowill beworkingwith minorshavesubmittedto andpassedLive -Scanbackground checks prior to assignment and renewed annually.
10. HEALTH, SAFETY, AND FIRE CODE REQUIREMENTS.
10. 1 CITY shall, at its sole expense, ensure that the PREMISES meets applicable requirements of all Health, Safety, Fire and Building Codes, statues, regulationsand ordinancesfor public and governmental buildings including any requirements for a notice of completion, certificate of occupancy, or California Title 24 requirements.
10. 2 CITY shall, at its sole expense, ensure that the PREMISES meet the applicable requirements of the Americans with Disabilities Act (" ADA").
11. SIGNS.
LESSEE will display from windows and/or marqueeof the PREMISES only such sign or signs as are not prohibited by law.
12. MAINTENANCE.
12. 1 CITY shall, at its sole expense, perform such inspections, maintenance and repairs are necessaryto ensurethat all portionsof the PREMISES, includingbut not limited to the following, are at all times in good repair and safeconditions;
12.1.1 The structural parts of the building an d other improvements that are a part of the PREMISES, which structural parts include the foundations, bearing and exterior walls ( including glass and doors), subflooring, and roof; and,
12.1.2 The electrical, plumbing, and sewagesystems, including, without limitations, those portions of the systems, including, without limitation, those portions of the systems owned or controlled by CITY lying outside the PREMISES; and,
12.1.3 Window frames, gutters, and downspouts on the building and other improvements that are part of the PREMISES; and,
12.1.4 Heating, ventilation and air conditioning ( HVAC) systemsservicing the PREMISES including changing heating and air-conditioning filters every four (4) months; and,
12.1.5 The grounds, including all parking areasand outside lighting, grass, trees, shrubbery and other flora; and,
12.1.6 LESSEE shall, at its sole expense, provide janitorial services, keep the interior of the PREMISES in a clean and orderly condition, reasonable wear and tear excluded, and undertake minor maintenance of the interior PREMISES such as unstoppage of toilets and changing of light bulbs and servicing of the fire extinguisher or any other fire suppressionequipment attachedto the facility.
12. 1.7 LESSEE shall at regular intervals, but no less than monthly, conduct an inspection of the PREMISES to determine if any maintenance or repair is necessary. LESSEE shall communicate the necessity for maintenance or repair to the CITY in writing in conformity with Section 24, NOTICE. If LESSEE gives notice to CITY of a conditionrequiringmaintenanceor repair, CITY shalluseits besteffortsto diligently commence the performance of its maintenance or repair obligations within a reasonable time of receiving such notice. In the case of an emergency where maintenance or repair must occur immediately and CITY is unable to perform its obligation to maintain or repair immediately, LESSEE may perform maintenance or repair. CITY shall deduct the sum of LESSEE' s actual and reasonable expenses of performingemergencymaintenanceor repairfrom LESSEE's futurerentalpayments until LESSEE is reimbursed in full upon presentation of receipts and/ or other documentation supporting the amount expended.
13. ALTERATIONS.
LESSEE shall not make any structural or exterior improvements or alterations to the PREMISES without CTTY' s consent. Any such alterationsshall remain on and be surrenderedwith the PREMISES on expiration or termination of the AGREEMENT.
14. FIXTURES.
LESSEEshallhavetheright duringtheterm(s) of this AGREEMENTto install shelvingandfixtures, and make interior, non- structural improvements or alterations on the PREMISES. Such shelving, fixtures, improvements, and alterations shall remain the property of the LESSEE and may be removed by the LESSEEduring the term(s) of this AGREEMENT or within a reasonabletime thereafter, provided that the LESSEE restores the PREMISES to the condition as it existed at the commencement of this AGREEMENT, reasonable wear and tear excluded, or the LESSEE may elect, with CITY' Swritten consent to be given at CITY' Ssole discretion, to surrender all or any part of such shelving, fixture, improvementsandalterations, to theCITY, in whichcaseLESSEEshall haveno duty to restorethe PREMISES.
15. UTU ITIES.
CITY shall furnish to the PREMISESand CITY shallpay all servicechargesandrelatedtaxesfor electric, gas, water, fire alarm services and all other utilities. LESSEE shall furnish and pay for its own security, telephone, cable, internetservicesandwill contractwith Burrtecfor trashservices.
16. HOLD HARMLESS.
LESSEE agreesto and shall indemnify and hold the CITY, its elected officials, employees, agents or representative, free and harmless from all claims, actions, damages and liabilities of any kind and naturearisingfrom bodily injury, including death, or propertydamage, basedor assertedupon any actual or alleged act or omission of LESSEE, its employees, agents, or subcontractors, arising, relating to, or in any way connectedwith the performanceunder this AGREEMENT, unlessthe bodily injury or propertydamagewasactuallycausedby the solenegligenceof theCITY, its elected officials, employees, agentsor representative. As part of the foregoing indemnity, LESSEE agreesto protect and defendat its own expense, including attorney's fees, the CITY, its electedofficials, employees, agentsor representative from any and all legal actions basedupon such actual or alleged acts or omissions. LESSEEherebywaives any and all rights to any types of expressor implied indemnityagainsttheCITY, its electedofficials, employees, agentsor representatives, with respectto third partyclaimsagainsttheLESSEErelatingto or in anyway connectedwith the accomplishment of work or performance of services under this AGREEMENT.
17. INSURANCE.
17. 1 CITY is a self-insured public entity for the purposes of professional liability, general liability, and workers' compensation.
17. 2 LESSEE shall obtain and maintain during the life of the AGREEMENT all of the following insurancecoverage:
17. 2. 1 Comprehensive general liability, including premises - operations, productsicompleted operations, broad form property damageblanket contractual liability, fire, premisesliability, andpersonalinjurywithapolicylimit of notless than One Million Dollars ($ 1, 000, 000. 00), combined single limits, per occurrence and aggregate.
17.2.2 Automobile liability for owned vehicles, hired and non -owned vehicles, with policy limit of not less than One Million Dollars ($ 1, 000, 000. 00), combined single limits, per occurrence and aggregate.
17.23 Workers' compensation insuranceasrequired by the Stateof California. 173 The comprehensivegeneralliability insurancepolicy shall contain or be endorsedto contain the following provision:
173. 1 Additional insureds: " The City of SanBernardinoandits electedandappointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City."
173. 2 Notice: " Said policy shall not terminate, nor shall it be cancelled, nor the coveragereduced, until thirty ( 30) days after written notice is given to City."
17. 3. 3 Other insurance: " Any otherinsurancemaintainedby theCity of SanBernardino shall be excessand not contributing with the insuranceprovided by this policy."
17A LESSEE shall provide the CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any 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 LESSEE may be held responsible for payments of damages to persons or property.
18. DESTRUCTION OF PRENIISES.
18. 1 During the term(s) of this AGREEMENT, if any casualty, other than resulting from LESSEE' s use of the PREMISES, renders a portion of the PREMISES unusable for the purpose intended, then CITY shall, at CITY' s sole expense, restore the PREMISES and repair any damages caused by such casualty as soon as reasonable possible and this AGREEMENT shall continue in full force and effect. If CITY does not commence the restoration of the PREMISES in a substantial and meaningful way within thirty ( 30) days following the CITY' s receiptof written notice of the casualty, or shouldCITY fail to diligently pursuecompletionof therestorationof thePREMISES, or if thetime required to restore the PREMISES is estimated to exceed ninety ( 90) days, LESSEE may, at its option, terminate this AGREEMENT immediately upon written notice to the CITY. If LESSEE elects to terminate this AGREEMENT pursuant to this section, LESSEE shall be discharged from all future obligations under this AGREEMENT.
18. 2 In the event there is a destruction of a portion of the PREMISES as set out in Subsection
18.1 above, there shall be an abatement or reduction in the rent between the date of the destruction and the date of completion of the restoration or the date of termination of the AGREEMENT, whichever comes first. The abatement or reduction in rent shall be in proportion to the degree to which LESSEE' s use of the PREMISES is impaired. 183 In the event the CITY is required to restore PREMISES as provided in Subsection 18. 1 above, CITY shall not be required to restore any structure or exterior improvements or alterations madeto the PREMISES by LESSEE pursuant to Section 13, Alterations above or anyshelving, fixtures, or interiornonstructuralimprovementor alterationsmadeby LESSEE pursuant to Section 14, Fixtures above.
18. 4 If anycasualtyresultingfrom LESSEE's useof the PREMISESrendersthe PREMISES unusable for the purposes intended, or for any other purpose, then LESSEE shall, at LESSEE' s sole expense, restore the PREMISES and repair any damagescausedby such casualtyassoonasreasonablepossibleandthis AGREEMENTshallcontinuein full force and effect.
18. 5 It is the purpose and intent of Subsections 18.1 through 18.4, inclusive, to determine what PARTY shall bear the initial responsibility for restoration of the PREMISES in the event of anysuchdestructionandnotto determinethePARTYultimatelyresponsiblefor the costs of such restoration.
19. CITY' S DEFAULT.
Except where another time limit is specifically provided, CITY shall be in default of this AGREEMENT if CITY fails or refusesto perform any material provisions of this AGREEMENT and such failure or refusal to perform is not cured within thirty ( 30) days following CITY' s receipt of
written notice of default from LESSEE. If the default cannot be reasonablecured within thirty ( 30) days, CITY shall not be in default of this AGREEMENT if City commencesto cure the default within the thirty ( 30) day period and diligently and in good faith continues to cure the default.
20. LESSEE' S REMEDIES ON CITY' S DEFAULT.
LESSEE, at any time after CITY is in default, can terminate this AGREEMENT immediately upon written notice to CITY or can cure the default. If LESSEE at any time, by reasonsof CITY' s default, paysanysumor doesany act thatrequiresthepaymentof any sum, the sumpaid by LESSEEshall have the right to withhold from future rent due the sum LESSEE has paid until LESSEE is reimbursed in full for the sum. The remedies set forth in this section are in addition to and do not in any manner limit other remedies setforth in particular sectionsof this AGREEMENT.
21. LESSEE' S DEFAULT.
The occurrenceof anyoneor moreof the following eventshallconstitutea defaultof breachof this AGREEMENT by LESSEE:
21. 1 The vacating for more than thirty ( 30) consecutive days or abandonment of the PREMISES by LESSEE.
21. 2 The failure of LESSEEto performany materialprovisionsof this AGREEMENT to be performedby LESSEE, includingthe paymentof rent, uponwritten noticeby the CITY to LESSEE.
21. 3 It is not the purpose of this section to extend the notice requirements of the unlawful detainer statues in California.
22. CITY' S REMEDIES ON LESSEE' S DEFAULT.
It is not the purpose of this section to extend the notice requirements of the unlawful detainer statues in California. The remedies contained herein are in addition to, and not in lieu of, any other remedies available to CITY under relevant state law.
22. 1 In the eventof anydefaultby LESSEE, which is not curedby LESSEE, CITY mayat its election, terminatethis AGREEMENT by giving LESSEEthirty ( 30) days' notice of termination.
22. 2 On termination of this AGREEMENT for default pursuant to this section CITY shall have the right to recover from LESSEE all amounts for any and all damages, which may be the direct or indirect result of such default, including, but not limited to:
22.2. 1 The worth, at the time of the award, of the unpaid rent that has been earned at the time of the termination of the AGREEMENT; and,
22. 2.2 The worth, at the time of the award, of the amount by which unpaid rent that would have been earned after the date of termination of this AGREEMENT until the time of award exceeds the amount of the loss of rent that CITY proves could not have been reasonable avoided; and,
22.2.3 The worth, at the time of the award, of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that CITY proves could not havebeen reasonably avoided; and,
22.2.4 Any other amount of necessary to compensate the CITY for all detriment proximately caused by LESSEE' s default which CITY proves could not have been reasonably avoided.
22. 25 " The worth, at the time of the award", as used in this section is to be computed by allowing interest at the maximum rate CITY is permitted by law to charge or computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent ( 1%).
23. CITY' S ACCESS TO PREMISES.
CITY and its authorized representative shall have the right to enter the PREMISES at all reasonable times for any of the following conditions:
23. 1 To determine whether the PREMISES are in good condition; and,
23. 2 To do any necessary maintenance and to make any restoration to the PREMISES that CITY has the right or obligation to perform; and,
23. 3 To serve, post, or keep posted any notices required by law; and, 23A To show the PREMISES to prospective brokers, agents, buyers, tenants, lenders or persons interested in an exchange, at any time during the term; and,
23. 5 For any other lawful purpose.
CITY shall conduct its activities on the PREMISES as allowed in this section in a manner that will reduce possible inconvenience, annoyance, or disturbance to LESSEE.
24. NOTICES
Any notices, documents, correspondence, or othercommunicationconcerningthis AGREEMENTor the services provided hereunder may be provided by personal delivery or U. S. Mail. If personally delivered the notice shall be deemeddelivered at the time of personal delivery. If sent by U.S. Mail the notice shall be deemeddelivered forty- eight (40) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark.
TO THE CITY:
Jim Tickemyer, Director
City of SanBernardino Parks, Recreation and
Community Services
290 North D Street
San Bernardino, CA 92401
909) 384- 5233
TO THE LESSEE:
Kimberly Calvin, Executive Director
Akoma Unity Center
985 Kendall Drive, Suite A319
P. O. Box 319
San Bernardino, CA 92407
909) 217- 7956
EitherPARTY maychangethe addressfor deliveryof noticesby sendingnoticeof thechangeto the other PARTY in conformity with this Section.
25. ASSIGNMENT.
LESSEE shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the LESSEE' s interest in this AGREEMENT without CITY' s prior written consent. Any attemptedassignment, transfer, sublettingor encumbranceshallbe void andshallconstitutea breach of this AGREEMENT and cause for the termination of this AGREEMENT. Regardless of CITY' s Consent, no subletting or assignment shall 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 agreement and the understanding between the PARTIES, and supersedesany prior agreementsand understandingrelating to the subject matter of this AGREEMENT.
27. REMEDIES: WAIVER
All remedies available to either PARTY for one or more breaches by the other PARTY shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies.
ThedelayorfailureofeitherPARTYtorequireperformanceorcomplianceoftheotherofanyofits obligations under this AGREEMENT shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provisions of this AGREEMENT shall be effectiveunlessmadein writing andsignedby a duly authorizedrepresentativeof thePARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemeda waiver of such right or remedy with respectto any future occurrencesor events and shall not be deemed a continuing waiver.
28. AMENDMENT.
No amendmentto this AGREEMENT will be effectiveunlessit is in writing and signedby both PARTIES.
29. SUCCESSORS AND ASSIGNS.
This AGREEMENT shall be binding on and inure to the benefit of the PARTIES to this AGREEMENT and their respective heirs, representative, successors, and assigns.
30. SEVERABILITY
If anyprovisionof thisAGREEMENTis determinedbyacourtof competentjurisdictiontobe invalid or unenforceablefor any reason, such determinationshall not affect the validity or enforceabilityof theremainingtermsandprovisionshereofor of theoffendingprovisionsin any othercircumstance, andtheremainingprovisionsofthisAGREEMENTshallremainin full forceand affect.
31. T W IS OF THE ESSENCE.
Time is of the essence of each provision of this AGREEMENT which specifies a time within which performanceis to occur. In theabsenceof anyspecifictimefor performance, performancemaybe within a reasonable time.
32. QUIET ENJOYMENT.
Subject to the provisions of this AGREEMENT and conditioned upon performance of all the provisions to be performedby LESSEE hereunder, CITY shall secureto LESSEE during the AGREEMENT term the quiet and peaceful possession of the PREMISES and all rights and privileges appertaining thereto.
33. PROVISIONS ARE COVENANTS AND CONDITIONS.
All provision, whether covenants or conditions, on the part of either PARTY shall be deemed both covenants and conditions.
34. CONSENT.
Whenever consent or approval of either PARTY is required that PARTY shall not unreasonable withhold, condition, or delay such consentor approval, unlessthe provision providing for such consentor approvalspecificallyprovidessuchconsentor approvalmay be given in the PARTY's discretion.
35. EDITS.
All exhibits referred to are attached to this AGREEMENT and incorporated by reference.
36. LAW.
This AGREEMENT shall be governed and construed under the laws of the State of California without giving effectto thatbodyof lawspertainingto conflict of laws.
37. VENUE.
The parties hereto agreethat all actions or proceedings arising in connection with this AGREEMENT shall be tried and litigated either in the Superior Court of the Stat of California for the County of San Bernardino or the United States District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature.
38. ATTORNEY' S FEES AND COSTS.
In the event that litigation is brought by any PARTY in connection with this AGREEMENT, the prevailingpartyshallbeentitledto recoverfromtheopposingpartyall costsandexpenses, including reasonableattorneys' fees, incurredby the prevailingPARTY in the exerciseof anyof its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions enforcing this AGREEMENT on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this section.
39. RIGHT TO TERMINATE.
This AGREEMENTmaybe terminatedat anytime by thirty (30) dayswrittennoticeby either PARTY for any reason or no reason. In the event that LESSEE terminates this AGREEMENT pursuant to this section, the CITY shall have the right to receive from LESSEE only the rent which would have been earned at the date of termination of this AGREEMENT.
40. HEADINGS.
The subject headings of the sections of this AGREEMENT are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions.
41. SURVIVAL.
The obligations of the PARTIES that, by their nature, continue beyond the term of the AGREEMENT, will survive the termination of the AGREEMENT.
42. ESTOPPEL CERTIFICATE.
EachPARTY within thirty (30) daysafternoticefrom theotherPARTY shallexecuteanddeliverto the other PARTY, in recordable form, a certificate stating that this AGREEMENT is unmodified and in full force and effect, or in full force and effect as modified, and stating the modifications. The certificate also shall statethe amount of minimum monthly rent, the datesto which the rent has been paid in advance, the amount of any security deposit or prepaid rent, and that there are not uncured defaultsor specifyingin reasonabledetail the natureof any uncureddefault claimed. Failure to deliver this certificate within thirty ( 30) days shall be conclusive upon the PARTY requesting the certificateany successorto the PARTY requestingthe certificate, that this AGREEMENT is in full force and effect and has not be modified except as may be representedby the PARTY requesting the certificate, and that there are not uncured defaults on the part of the PARTY requesting the certificate.
43. PUBLIC RECORDS DISCLOSURE.
All informationreceivedby the CITY concerningthis AGREEMENT, includingthe AGREEMENT itself, maybetreatedaspublic informationsubjectto disclosureundertheprovisionsof theCalifornia Public Records Act, Government Code Section 6250 et s ( the " Public Records Act"). The PARTIES understand that although all materials received in connection with this AGREEMENT are intended for the exclusive use of the PARTIES, they are potentially subject to disclosure under the provisions of the Public Records Act.
44. CONDITIONS OF PREMISES.
The CITY shall take reasonableefforts to deliver the PREMISES to LESSEE clean and free of debris on the COMENCEMENT DATE but makes no warranty as to the condition of the PREMISES on COMMENCEMENT DATE or the PREMISES' suitability for a particular use. LESSEE agreesthat it has not relied upon any representation by CITY as to the condition of the PREMISES or the PREMISES' suitability for a particular use when determining whether to enter into this AGREEMENT.
45. CONDEMNATION.
If any legally, constituted authority condemns the PREMISES or such part thereof which shall make the PREMISES unsuitable for leasing, this AGREEMENT shall ceasewhen the public authority takes possession, and CITY and LESSEE shall account for rental as of that date. Such termination shall be without prejudice to the rights of either PARTY to recover compensation from the condemning authorityfor anylossor damagecausedby thecondemningauthority.
46. MATERIAL REPRESENTATION.
If duringthe courseof theadministrationof this AGREEMENT, a PARTY determinesthat theother PARTY has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the PARTY, this AGREEMENT may be immediately terminated.
If this AGREEMENT is terminated according to this section, the terminating PARTY is entitled to pursueany available legal remedies.
47. INTERPRETATIONS.
The PARTIES have participated jointly in the negotiation and drafting of this AGREEMENT. In the eventan ambiguityor questionof intent or interpretationariseswith respectto this AGREEMENT, this AGREEMENT shall be construed as if drafted jointly by the PARTIES and in accordancewith its fair meaning. Thereshallbe nopresumptionor burdenof proof favoringor disfavoringanyParty by virtueof authorshipof anyof theprovisionsof this AGREEMENT.
48. COUNTERPARTS.
This AGREEMENT may be executedin counterparts, eachof which shall be deemedto be an original, but all of which taken together, shall constitute one and the same agreement. In the event thatanysignatureis deliveredby facsimiletransmissionorby e-maildeliveryof a ".pdf' formatfile, such signature shall create a valid and binding obligation of the PARTY executing ( or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ". pdf' signature page were an original thereof.
49. CORPORATE AUTHORITY.
EachpersonexecutingthisAGREEMENTonbehalfof thePARTIESheretowarrantthattheyare dulyauthorizedto executethisAGREEMENTonbehalfof saidPARTIESandthatby doingso; the PARTIES hereto are formally bound to the provisions of this AGREEMENT.
50. ORDER OF PRECEDENCE.
Intheeventof anyinconsistencyorconflictinthisAGREEMENTandanyoftheattachedExhibitsor Attachments, the terms set forth in this AGREEMENT shall prevail.
51. FORCE MAJEURE.
A PARTYshallnotbeliablefor anyfailureor delayin theperformanceof thisAGREEMENTfor theperiodthatsuchfailureor delayis dueto causesbeyonditsreasonablecontrol, includingbutnot limited to acts of God, war strikes or labor disputes, embargoes, governmental orders or any other force majeure event.
52. COMPLIANCE WITH LAW.
LESSEEagreesto abideby all federal, state, andlocallaws, ordinancesandregulations.
53. NON- DISCREtMATION.
In the performance of this AGREEMENT, use of the PREMISES, and in the hiring and recruitment of employees, LESSEE shall not engagein, nor permit its officers, employees or agentsto engagein, 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 anyotherstatusprotectedby law.
Signature page to follow]
IN WITNESS THEREOF, the parties hereto have executedthis Agreement on the day and date set forth below.
CITY OF SAN BERNARDINO
By: 2FU1,7
ndManager
Approved as to Legal Form:
GARY D. SAENZ, City Attorney
City of Som -Bernardino
By:
Date:
NDOR: /
by:
Name)
Title:
Date:
ATTEST:
By `
Georgemudianna. CM , City Clerk