1 JOHN G. McCLENDON (State Bar No. 145077) LEIBOLD McCLENDON & MANN 2 A Professional Corporation 23422 Mill Creek Drive, Suite 105 3 Laguna Hills, CA 92653 Telephone: (949) 457-6300 4 Facsimile: (949) 457-6305 eMail: john@CEQA.com 5 Attorneys for Plaintiff & Petitioner 6 SAN DIEGANS FOR OPEN GOVERNMENT 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN DIEGO – HALL OF JUSTICE 10 11 A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN SAN DIEGANS FOR OPEN 12 GOVERNMENT; and DOES 1 through 10, 13 Plaintiffs and Petitioners, 14 vs. 15 SAN DIEGO STATE UNIVERSITY; CALIFORNIA STATE UNIVERSITY; 16 SAN DIEGO STATE UNIVERSITY FOUNDATION; and DOES 11 through 100, 17 Defendants and Respondents; 18 LORETTA HEARN, INVESTIGATIVE 19 NEWSOURCE, and DOES 101 through 1,000, 20 Defendants and Real Parties in Interest. 21 Case No._____________________ VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE BASED ON CONFLICTS OF INTEREST, MISAPPROPRIATION OF PUBLIC PROPERTY, AND OTHER ILLEGAL ACTIVITIES 22 23 24 25 26 Plaintiff and Petitioner SAN DIEGANS FOR OPEN GOVERNMENT (“Petitioner”) 27 alleges as follows in this Verified Complaint for Declaratory and Injunctive Relief and Petition 28 for Writ of Mandate: -1COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, ETC. 1 2 Parties 1. Petitioner SAN DIEGANS FOR OPEN GOVERNMENT is a non-profit 3 organization formed and operating under the laws of the State of California. At least one of 4 Petitioner’s members resides in and pays taxes within the geographical jurisdiction of 5 Defendants and Respondents SAN DIEGO STATE UNIVERSITY (“SDSU”), CALIFORNIA 6 STATE UNIVERSITY (“CSU”), and SAN DIEGO STATE FOUNDATION (“SDSUF”) and 7 has an interest in, among other things, ensuring SDSU’s, CSU’s, and SDSUF’s compliance with 8 all conflict-of-interest laws and maintaining open, transparent government decision-making. 9 Petitioner is suing on its own behalf and for its own benefit, and on behalf of and for the benefit 10 of its members, all persons similarly situated, all taxpayers within the geographical jurisdiction 11 of SDSU, CSU, and SDSUF, and/or on behalf of SDSU, CSU, and SDSUF.1/ 2. Defendants and Respondents SDSU, CSU, and SDSUF are public agencies of the 13 State of California, and SDSU is a “district” within the meaning of Government Code Section A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 14 1090 and is a party to the contracts being challenged in this proceeding. 15 3. Petitioner is informed and believes and on that basis alleges that LORETTA HEARN and 16 INVESTIGATIVE NEWSOURCE is each a Real Party in Interest insofar as each is a party to one or 17 more contracts being challenged in this proceeding or has some other cognizable interest in at least one 18 of the contracts. In addition, Petitioner is informed and believes and on that basis alleges: 19 A. INVESTIGATIVE NEWSOURCE is a non-profit corporation organized and 20 operating under the laws of the State of California. 21 22 23 1 No matter how any portion of this pleading’s allegations or prayer is construed, in no way does Petitioner intend to assert a claim or seek relief that is inconsistent with the following parameters: (1) Petitioner does not seek any relief greater than or different from the relief sought for the general public or for a class of which Petitioner’s members residing within the geographical jurisdiction of the Defendants/Respondents are themselves members. (2) This lawsuit seeks to enforce at least one important right affecting the public interest and to confer at least one significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. (3) Private enforcement is necessary and places a disproportionate financial burden on Petitioner in relation to its stake in the matter. 24 25 26 27 28 -2COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 B. At the time it was incorporated, the name of INVESTIGATIVE NEWSOURCE 2 was “The Watchdog Institute.” 3 C. The decision to seek the incorporation of The Watchdog Institute was made by 4 one or more persons acting in a private capacity and not by any federal, state, local, or other 5 governmental agency, department, body, official, or employee. 6 D. The incorporator of The Watchdog Institute was not, in seeking to incorporate the 7 organization, acting as the authorized representative of any federal, state, local, or other governmental 8 agency, department, body, official, or employee. 9 E. LORETTA HEARN was the incorporator of The Watchdog Institute. 10 Alternatively, LORETTA HEARN was the founder of The Watchdog Institute. 11 F. At no time within the last four years has the board of directors of 13 federal, state, local, or other governmental agency, department, body, official, or employee. A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 INVESTIGATIVE NEWSOURCE included any member serving as the authorized representative of any 14 G. INVESTIGATIVE NEWSOURCE is not controlled or operated by any person 15 acting as the authorized representative of any federal, state, local, or other governmental agency, 16 department, body, official, or employee. 17 H. Ever since October 5, 2005, LORETTA HEARN and Karin E. Winner have 18 been the sole owners of a condominium located in the City of San Diego, identified as assessor’s 19 parcel no. 445-712-20-00, and commonly known as 3970 Utah Street #8, San Diego, CA 92104 20 (“Utah Street Condo”). 21 I. Neither LORETTA HEARN nor Ms. Winner has ever occupied the Utah 22 Street Condo as her primary residence. 23 J. At the time they acquired the Utah Street Condo, neither LORETTA 24 HEARN nor Ms. Winner intended to occupy the Utah Street Condo as her primary residence 25 within the next 12-month period. 26 K. LORETTA HEARN and Ms. Winner rent out the Utah Street Condo and 27 allocate the income from its rental and/or the expenses of ownership between themselves. 28 -3COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 L. For at least the last four years, Ms. Winner has been a member of the board 2 of directors of INVESTIGATIVE NEWSOURCE. 3 M. On its 2011, 2012, and 2013 annual federal tax returns (Internal Revenue 4 Service Form 990), INVESTIGATIVE NEWSOURCE answered the following question in the 5 negative: “Did any officer, director, trustee, or key employee have a family relationship or a 6 business relationship with any other officer, director, trustee, or key employee?” N. 7 LORETTA HEARN is an “officer, director, trustee, or key employee” as 8 that phrase is used on the 2013 Internal Revenue Service Form 990. O. 9 Ms. Winner is an “officer, director, trustee, or key employee” as that phrase 10 is used on the 2013 Internal Revenue Service Form 990. P. 11 The ownership of the Utah Street Condo and/or the allocation of rental 13 family relationship or a business relationship” as that phrase is used on the 2013 Internal A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 income and/or ownership expenses by LORETTA HEARN and Ms. Winner constitutes “a 14 Revenue Service Form 990. 15 4. The true names and capacities of the parties identified as DOES 1 through 1,000 16 are unknown to Petitioner, who will seek the Court’s permission to amend this pleading in order 17 to allege the true names and capacities as soon as they are ascertained. Each of the fictitiously 18 named Respondents 11 through 100 is a district subject to Government Code Section 1090 and 19 is a party to one or more contracts being challenged in this proceeding, and each of the 20 fictitiously named Real Parties in Interest 101 through 1,000 either is a party to one or more of 21 the contracts or has some other cognizable interest in at least one of the contracts. 22 23 Background Information 5. Petitioner challenges two contracts made by SDSU/CSU/SDSUF with one or more 24 of the Real Parties in Interest: namely, (I) that certain written “Agreement” between SDSUF 25 (doing business as San Diego State University Research Foundation) and INVESTIGATIVE 26 NEWSOURCE effective January 1, 2012 (“2012 Agreement”); and (ii) that certain written 27 “LEASE AGREEMENT” between SDSUF and INVESTIGATIVE NEWSOURCE effective 28 -4COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 July 1, 2014 (“2014 Lease”). True and correct copies of the 2012 Agreement and the 2014 2 Lease are attached hereto as Exhibit “A” and “B,” respectively. 3 6. Petitioner also challenges INVESTIGATIVE NEWSOURCE’s misappropriation 4 and use of intangible intellectual-property and naming rights owned by CSU and SDSU without 5 the payment of adequate compensation. 6 7. Petitioner first learned of the existence of the 2012 Agreement, the 2014 Lease, 7 and the misappropriation and use of rights owned by CSU and SDSU, and of the facts giving rise 8 to the claims asserted in this lawsuit, within 90 days of commencing this lawsuit. 9 8. 10 Petitioner is informed and believes and on that basis alleges: A. LORETTA HEARN has been employed by SDSU as a lecturer or other 11 instructor at least since the making of the 2012 Agreement. By way of example and not 13 A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 limitation: i. On or about October 14, 2012, a website controlled by SDSU’s 14 School of Journalism and Media Studies listed “Lorie Hearn” as one of the School’s lecturers. 15 A true and correct copy of this website is attached to this pleading as Exhibit “C.” 16 ii. On or about January 16, 2013, a website controlled by SDSU’s 17 School of Journalism and Media Studies listed “Lorie Hearn” as one of the School’s lecturers. 18 A true and correct copy of this website is attached to this pleading as Exhibit “D.” 19 iii. On or about March 28, 2015, a website controlled by SDSU’s School 20 of Journalism and Media Studies listed “Lorie Hearn” as one of the School’s lecturers. A true 21 and correct copy of this website is attached to this pleading as Exhibit “D.” 22 iv. LORETTA HEARN has been the instructor for at least one course 23 offered by SDSU’s School of Journalism and Media Studies during the Spring 2015 semester, 24 which began on or about January 16, 2015. A true and correct copy of the syllabus for 25 “Journalism & Media Studies 529/Spring 2015,” which lists “Lorie Hearn” as the instructor is 26 attached to this pleading as Exhibit “E.” 27 v. Chapter IV of the SDSU CHAIRS HANDBOOK states in part: 28 “Lecturers have many rights in the CSU system. Assuming they have received satisfactory -5COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 performance evaluations, they have considerable workplace security.” A true and correct copy 2 of the portion of the SDSU CHAIRS HANDBOOK that includes the quoted language is attached 3 to this pleading as Exhibit “F.” 4 B. LORETTA HEARN has been employed by INVESTIGATIVE 5 NEWSOURCE as an executive director and an editor at least since the making of the 2012 6 Agreement. By way of example and not limitation: I. 7 LORETTA HEARN, in her capacity as executive director, is listed 8 as the signer on each of INVESTIGATIVE NEWSOURCE’s annual federal tax returns (Internal 9 Revenue Service Form 990) at least since December 31, 2011. ii. 10 LORETTA HEARN has received a salary or other financial 11 remuneration from INVESTIGATIVE NEWSOURCE for service as its executive director at iii. 13 A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 least since December 31, 2011. LORETTA HEARN has received a salary or other financial 14 remuneration from INVESTIGATIVE NEWSOURCE for service as an editor at least since 15 December 31, 2011. 16 C. The 2012 Agreement was not competitively bid. By way of example and 17 not limitation: 18 i. The 2012 Agreement was not the subject of an “invitation for bid,” 19 as that term is used in the version of CSU’s Policy Manual for Contracting & Procurement that 20 was in effect at the time the 2012 Agreement was made. 21 ii. The 2012 Agreement was not the subject of a “request for 22 proposals,” as that term is used in the version of CSU’s Policy Manual for Contracting & 23 Procurement that was in effect at the time the 2012 Agreement was made. 24 iii. The 2012 Agreement was not the subject of a “request for 25 qualifications,” as that term is used in the version of CSU’s Policy Manual for Contracting & 26 Procurement that was in effect at the time the 2012 Agreement was made. 27 iv. The 2012 Agreement was not the subject of a “public notice of the 28 intent to formally request services from the open market,” as that term is used in the version of -6COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 CSU’s Policy Manual for Contracting & Procurement that was in effect at the time the 2012 2 Agreement was made. 3 v. At no time during SDSU/CSU/SDSUF’s evaluation of the proposal 4 that was ultimately memorialized in the 2012 Agreement did LORETTA HEARN complete a 5 “Conflict of Interest and Confidentiality Statement,” as that term is used in the version of CSU’s 6 Policy Manual for Contracting & Procurement that was in effect at the time the 2012 Agreement 7 was made. vi. 8 The 2012 Agreement was not a contact “necessary for the immediate 9 preservation of the public health, welfare, or safety, or the protection of CSU property and 10 programs,” as that term is used in the version of CSU’s Policy Manual for Contracting & 11 Procurement that was in effect at the time the 2012 Agreement was made. vii. No sole-source request was submitted, and no sole-source 13 determination was made, in connection with the 2012 Agreement under the version of CSU’s A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 14 Policy Manual for Contracting & Procurement that was in effect at the time the 2012 Agreement 15 was made. viii. 16 The 2012 Agreement did not qualify for any of the 21 exceptions to 17 CSU/SDSU/SDSUF’s competitive-bidding requirements. ix. 18 The 2012 Agreement was not approved at any duly noticed public 19 meeting or public hearing. 20 D. The 2014 Lease was not competitively bid. By way of example and not 21 limitation: 22 i. The 2014 Lease was not the subject of an “invitation for bid,” as that 23 term is used in the version of CSU’s Policy Manual for Contracting & Procurement that was in 24 effect at the time the 2014 Lease was made. 25 ii. The 2014 Lease was not the subject of a “request for proposals,” as 26 that term is used in the version of CSU’s Policy Manual for Contracting & Procurement that was 27 in effect at the time the 2014 Lease was made. 28 -7COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 iii. The 2014 Lease was not the subject of a “request for qualifications,” 2 as that term is used in the version of CSU’s Policy Manual for Contracting & Procurement that 3 was in effect at the time the 2014 Lease was made. 4 iv. The 2014 Lease was not the subject of a “public notice of the intent 5 to formally request services from the open market,” as that term is used in the version of CSU’s 6 Policy Manual for Contracting & Procurement that was in effect at the time the 2014 Lease was 7 made. v. 8 At no time during SDSU/CSU/SDSUF’s evaluation of the proposal 9 that was ultimately memorialized in the 2014 Lease did LORETTA HEARN complete a 10 “Conflict of Interest and Confidentiality Statement,” as that term is used in the version of CSU’s 11 Policy Manual for Contracting & Procurement that was in effect at the time the 2014 Lease was vi. 13 A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 made. The 2014 Lease was not a contact “necessary for the immediate 14 preservation of the public health, welfare, or safety, or the protection of CSU property and 15 programs,” as that term is used in the version of CSU’s Policy Manual for Contracting & 16 Procurement that was in effect at the time the 2014 Lease was made. vii. 17 No sole-source request was submitted, and no sole-source 18 determination was made, in connection with the 2014 Lease under the version of CSU’s Policy 19 Manual for Contracting & Procurement that was in effect at the time the 2014 Lease was made. viii. 20 The 2014 Lease did not qualify for any of the 21 exceptions to 21 CSU/SDSU/SDSUF’s competitive-bidding requirements. ix. 22 The 2014 Lease was not approved at any duly noticed public meeting 23 or public hearing. 24 25 9. Petitioner is informed and believes and on that basis alleges: A. INVESTIGATIVE NEWSOURCE advertises on its website that it has 26 entered into a partnership with “SDSU” and “KPBS” and uses those names and associated 27 trademarks in describing them as “Our Partners.” A true and correct copy of the “Our Partners” 28 website is attached to this pleading as Exhibit “G.” -8COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 B. INVESTIGATIVE NEWSOURCE advertises on a national organization’s 2 website a job announcement that claims: “Our partnership with KPBS, the public station in San 3 Diego, ensures all of our stories are heard or seen on TV and read on the web.” A true and 4 correct copy of the job announcement is attached to this pleading as Exhibit “H.” C. 5 INVESTIGATIVE NEWSOURCE receives substantial financial and other 6 benefits by publishing advertisements and announcements that contain the names “KPBS” and 7 “SDSU” and use their trademarks. D. 8 INVESTIGATIVE NEWSOURCE has not entered into any partnership or 9 other legally enforceable agreement with CSU, SDSU, or SDSUF that authorizes 10 INVESTIGATIVE NEWSOURCE to use the names “KPBS” and “SDSU” or their trademarks. E. 11 INVESTIGATIVE NEWSOURCE has not paid any compensation to CSU, 13 trademarks. A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 SDSU, or SDSUF in exchange for the right to use the names “KPBS” and “SDSU” or their F. 14 INVESTIGATIVE NEWSOURCE has been able to avoid paying 15 compensation to CSU, SDSU, and SDSUF in exchange for the right to use the names “KPBS” 16 and “SDSU” or their trademarks because of her simultaneous employment relationship with 17 SDSU and INVESTIGATIVE NEWSOURCE. 18 10. Ever since it was last amended more than 40 years ago, Government Code Section 19 1090 has provided as follows: “Members of the Legislature, state, county, district, judicial 20 district, and city officers or employees shall not be financially interested in any contract made 21 by them in their official capacity, or by any body or board of which they are members. Nor shall 22 state, county, district, judicial district, and city officers or employees be purchasers at any sale 23 or vendors at any purchase made by them in their official capacity. [¶] As used in this article, 24 ‘district’ means any agency of the state formed pursuant to general law or special act, for the 25 local performance of governmental or proprietary functions within limited boundaries.” 26 11. Ever since it was last amended more than 30 years ago, Section 6 of Article XVI 27 of the California Constitution has provided in part as follows: “The Legislature shall have no 28 power to give or to lend, or to authorize the giving or lending, of the credit of the State, or of any -9COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 county, city and county, city, township or other political corporation or subdivision of the State 2 now existing, or that may be hereafter established, in aid of or to any person, association, or 3 corporation, whether municipal or otherwise, or to pledge the credit thereof, in any manner 4 whatever, for the payment of the liabilities of any individual, association, municipal or other 5 corporation whatever; nor shall it have power to make any gift or authorize the making of any 6 gift, of any public money or thing of value to any individual, municipal or other corporation 7 whatever; . . .” 8 12. Ever since it was last amended more than 10 years ago, Government Code Section 9 8314 has provided as follows: “(a) It is unlawful for any elected state or local officer, including 10 any state or local appointee, employee, or consultant, to use or permit others to use public 11 resources for a campaign activity, or personal or other purposes which are not authorized by law. 13 which is for personal enjoyment, private gain or advantage, or an outside endeavor not related A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 (b) For purposes of this section: (1) ‘Personal purpose’ means those activities the purpose of 14 to state business. ‘Personal purpose’ does not include the incidental and minimal use of public 15 resources, such as equipment or office space, for personal purposes, including an occasional 16 telephone call. (2) ‘Campaign activity’ means an activity constituting a contribution as defined 17 in Section 82015 or an expenditure as defined in Section 82015 or an expenditure as defined in 18 Section 82025. ‘Campaign activity’ does not include the incidental and minimal use of public 19 resources, such as equipment or office space, for campaign purposes, including the referral of 20 unsolicited political mail, telephone calls, and visitors to private political entities. (3) ‘Public 21 resources’ means any property or asset owned by the state or any local agency, including, but not 22 limited to, land, buildings, facilities, funds, equipment, supplies, telephones, computers, vehicles, 23 travel, and state-compensated time. (4) ‘Use’ means a use of public resources which is 24 substantial enough to result in a gain or advantage to the user or a loss to the state or any local 25 agency for which a monetary value may be estimated. (c)(1) Any person who intentionally or 26 negligently violates this section is liable for a civil penalty not to exceed one thousand dollars 27 ($1,000) for each day on which a violation occurs, plus three times the value of the unlawful use 28 of public resources. The penalty shall be assessed and recovered in a civil action brought in the -10COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 name of the people of the State of California by the Attorney General or by any district attorney 2 or any city attorney of a city having a population in excess of 750,000. If two or more persons 3 are responsible for any violation, they shall be jointly and severally liable for the penalty. (2) If 4 the action is brought by the Attorney General, the moneys recovered shall be paid into the 5 General Fund. If the action is brought by a district attorney, the moneys recovered shall be paid 6 to the treasurer of the county in which the judgment was entered. If the action is brought by a 7 city attorney, the moneys recovered shall be paid to the treasurer of that city. (3) No civil action 8 alleging a violation of this section may be commenced more than four years after the date the 9 alleged violation occurred. (d) Nothing in this section shall prohibit the use of public resources 10 for providing information to the public about the possible effects of any bond issue or other 11 ballot measure on state activities, operations, or policies, provided that (1) the informational 13 information provided constitutes a fair and impartial presentation of relevant facts to aid the A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 activities are otherwise authorized by the constitution or laws of this state, and (2) the 14 electorate in reaching an informed judgment regarding the bond issue or ballot measure. (e) The 15 incidental and minimal use of public resources by an elected state or local officer, including any 16 state or local appointee, employee, or consultant, pursuant to this section shall not be subject to 17 prosecution under Section 424 of the Penal Code.” 18 13. CSU’s CONFLICT OF INTEREST HANDBOOK dated December 2014 includes 19 the following statement (among others): “While an employee with teaching and research 20 responsibilities may be financially interested in a contract for the limited purpose of engaging 21 in an activity for compensation which is sponsored or funded by the CSU through or by a CSU 22 contract, the employee may not be involved in the University’s decision to enter into that 23 contract.” The HANDBOOK also states that “Additional rules forbid other forms of private gain 24 from public service” and afterward refers to a “Gift of Public Funds” immediately followed by 25 “California Constitution Article 16, § 6 prohibits making gifts of any public funds. The state 26 must receive commensurate value whenever its resources are used, including time, equipment, 27 materials, supplies and facilities” and “Government Code § 8314 additionally prohibits the use 28 of state resources for non-state purposes, except uses that are ‘incidental and minimal’ (e.g., -11COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 de minimis personal telephone or photo copy use, see campus policy). There are civil penalties 2 for violation of this section.” 3 14. CSU’s, SDSU’s, and/or SDSUF’s contracting and procurement regulations in 4 effect at the time the 2012 Agreement and the 2014 Lease were made required that those 5 contracts be subjected to competitive bidding and did not allow either of them to be a sole6 source, no-bid contract. 7 8 Jurisdiction and Exhaustion of Administrative Remedies 15. Petitioner seeks review by and relief from this Court under, as applicable, 9 Government Code Sections 1090 et seq. and 8314; Code of Civil Procedure Sections 526a, 1060 10 et seq., and 1084 et seq.; the California Constitution; and principles of common-law taxpayer 11 standing and common-law prohibitions on conflicts of interest, among other provisions of law. 13 Defendants/Respondents or Defendants/Real Parties in Interest; all alleged wrongdoing was in A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 None of the wrongdoing alleged in this pleading was within the discretion of any of the 14 violation of one or more ministerial duties. 15 16. Petitioner has a beneficial right and interest in the fulfillment of all legal duties 16 imposed on Defendants/Respondents and Defendants/Real Parties in Interest, as alleged in this 17 pleading. 18 19 FIRST CAUSE OF ACTION: Illegality of 2012 Agreement (Against All Defendants/Respondents & Defendants/Real Parties in Interest) 20 17. Paragraphs 1 through 16 are fully incorporated into this paragraph. 21 18. Petitioner is informed and believes and on that basis alleges: 22 A. The 2012 Agreement was negotiated and/or executed by one or more CSU, 23 SDSU, and/or SDSUF officials or employees in their official capacities who, at the time of the 24 contract’s negotiating and/or execution, had a financial interest in the contract in violation of 25 Government Code Section 1090 and other conflict-of-interest laws, including but not limited to 26 LORETTA HEARN. 27 B. Defendants/Respondents did not receive commensurate value when their 28 resources, including time, equipment, materials, supplies, and/or facilities, were used by -12COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 Defendants/Real Parties in Interest, including but not limited to INVESTIGATIVE 2 NEWSOURCE and LORETTA HEARN, pursuant to the 2012 Agreement in violation of the 3 California Constitution. 4 C. The 2012 Agreement involved more than incidental and minimal use of 5 state resources for non-state purposes by Defendants/Real Parties in Interest, including but not 6 limited to INVESTIGATIVE NEWSOURCE and LORETTA HEARN. D. 7 The 2012 Agreement was not subjected to CSU’s, SDSU’s, and/or 8 SDSUF’s requirements for competitive bidding and was instead made as a sole-source, no-bid 9 contract. 10 19. The 2012 Agreement is void and otherwise illegal. Defendants/Real Parties in 11 Interest are therefore indebted to Defendants/Respondents (and thus to the taxpayers) for the 13 Defendants/Respondents’ time, equipment, materials, supplies, and/or facilities, and for other A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 amount of consideration received by the former under the 2012 Agreement, for the value of 14 appropriate sums of money because of the lack of competitive bidding. 15 20. There is a good-faith dispute between Petitioner, on the one hand, and 16 Defendants/Respondents and Defendants/Real Parties in Interest, on the other hand, as to 17 whether the preceding allegations in this cause of action are true. Petitioner contends that they 18 are at least partly true. Petitioner is informed and believes and on that basis alleges that 19 Defendants/Respondents and Defendants/Real Parties in Interest contend that none of them is 20 true. The parties therefore require a judicial determination of the issue. 21 22 SECOND CAUSE OF ACTION: Illegality of 2014 Lease (Against All Defendants/Respondents & Defendants/Real Parties in Interest) 23 21. Paragraphs 1 through 20 are fully incorporated into this paragraph. 24 22. Petitioner is informed and believes and on that basis alleges: 25 A. The 2014 Lease was negotiated and/or executed by one or more CSU, 26 SDSU, and/or SDSUF officials or employees in their official capacities who, at the time of the 27 contract’s negotiating and/or execution, had a financial interest in the contract in violation of 28 -13COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 Government Code Section 1090 and other conflict-of-interest laws, including but not limited to 2 LORETTA HEARN. 3 B. Defendants/Respondents did not receive commensurate value when their 4 resources, including time, equipment, materials, supplies, and/or facilities, were used by 5 Defendants/Real Parties in Interest, including but not limited to INVESTIGATIVE 6 NEWSOURCE and LORETTA HEARN, pursuant to the 2014 Lease in violation of the 7 California Constitution. C. 8 The 2014 Lease involved more than incidental and minimal use of state 9 resources for non-state purposes by Defendants/Real Parties in Interest, including but not limited 10 to INVESTIGATIVE NEWSOURCE and LORETTA HEARN. D. 11 The 2014 Lease was not subjected to CSU’s, SDSU’s, and/or SDSUF’s 13 A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 requirements for competitive bidding and was instead made as a sole-source, no-bid contract. 23. The 2014 Lease is void and otherwise illegal. Defendants/Real Parties in Interest 14 are therefore indebted to Defendants/Respondents (and thus to the taxpayers) for the amount of 15 consideration received by the former under the 2014 Lease, for the value of 16 Defendants/Respondents’ time, equipment, materials, supplies, and/or facilities, and for other 17 appropriate sums of money because of the lack of competitive bidding. 18 24. There is a good-faith dispute between Petitioner, on the one hand, and 19 Defendants/Respondents and Defendants/Real Parties in Interest, on the other hand, as to 20 whether the preceding allegations in this cause of action are true. Petitioner contends that they 21 are at least partly true. Petitioner is informed and believes and on that basis alleges that 22 Defendants/Respondents and Defendants/Real Parties in Interest contend that none of them is 23 true. The parties therefore require a judicial determination of the issue. 24 25 THIRD CAUSE OF ACTION: Misappropriation and Use of Intellectual-Property Rights (Against All Defendants/Respondents & Defendants/Real Parties in Interest) 26 25. Paragraphs 1 through 24 are fully incorporated into this paragraph. 27 26. Petitioner is informed and believes and on that basis alleges: 28 -14COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 A. Defendants/Real Parties in Interest have misappropriated and are using the 2 names “KPBS” and “SDSU” and their trademarks without the written authorization of the CSU 3 trustees or the SDSU president and without paying for the reasonable value of such intellectual4 property rights. B. 5 Defendants/Real Parties in Interest have materially benefitted and continue 6 to materially benefit from their misappropriation and use of the names “KPBS” and “SDSU” and 7 their trademarks without the written authorization of the CSU trustees or the SDSU president 8 and without paying for the reasonable value of such intellectual-property rights. C. 9 Defendants/Real Parties in Interest are indebted to Defendants/Respondents 10 (and thus to the taxpayers) for the reasonable value of the former’s use of the names “KPBS” 11 and “SDSU” and their trademarks. D. The use of the names “KPBS” and “SDSU” and their trademarks by 13 Defendants/Real Parties in Interest without the written authorization of the CSU trustees or the A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 14 SDSU president and without paying for the reasonable value of such intellectual-property rights 15 is illegal. 16 27. There is a good-faith dispute between Petitioner, on the one hand, and 17 Defendants/Respondents and Defendants/Real Parties in Interest, on the other hand, as to 18 whether the preceding allegations in this cause of action are true. Petitioner contends that they 19 are at least partly true. Petitioner is informed and believes and on that basis alleges that 20 Defendants/Respondents and Defendants/Real Parties in Interest contend that none of them is 21 true. The parties therefore require a judicial determination of the issue. 22 FOURTH CAUSE OF ACTION: Illegal Private Use of Public Property (Against LORETTA HEARN only) 23 24 28. Paragraphs 1 through 27 are fully incorporated into this paragraph. 25 29. Petitioner is informed and believes and on that basis alleges: 26 A. LORETTA HEARN used her position as a lecturer or other instructor at 27 SDSU in order to secure approval of the 2012 Agreement, the 2014 Lease, or both for the benefit 28 of INVESTIGATIVE NEWSOURCE. -15COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 B. On or about October 28, 2009, NewsCenter, which described itself as the 2 “official source for San Diego State news,” published on its website an article stating in part: 3 “The Watchdog Institute will be housed in the School of Journalism & Media Studies.” A true 4 and correct copy of this article is attached to this pleading as Exhibit “I.” C. 5 As the incorporator and/or founder of The Watchdog Institute, which is now 6 known as INVESTIGATIVE NEWSOURCE, LORETTA HEARN receives substantial personal 7 benefits from INVESTIGATIVE NEWSOURCE’s use of property owned by CSU, SDSU, 8 and/or SDSUF. 9 30. The taxpayers on whose behalf this lawsuit has been filed are entitled have the 10 maximum daily civil penalty prescribed by Government Code Section 8314 paid by LORETTA 11 HEARN in accordance with the statute on account of her repeated daily and continuous 13 A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 violations of the statute. Prayer 14 FOR ALL THESE REASONS, Petitioner respectfully prays for the following relief: 15 A. 16 On the First Cause of Action: 1. A judgment determining or declaring that the 2012 Agreement was 17 negotiated and/or executed by at least one financially interested official or employee of CSU, 18 SDSU, and/or SDSUF in violation of one or more conflict-of-interest prohibitions and/or other 19 applicable legal requirements and is therefore void; 20 2. A judgment determining or declaring that there is a constructive trust in 21 favor of Defendants/Respondents in an amount equal to the value of all money and other 22 consideration received by Defendants/Real Parties in Interest under the 2012 Agreement, and 23 a judgment in favor of Defendants/Respondents against Defendants/Real Parties in Interest for 24 the amount equal to the value of all money and other consideration received by Defendants/Real 25 Parties in Interest thereunder; 26 3. A judgment ordering Defendants/Real Parties in Interest to return all money 27 and other consideration received by them from Defendants/Respondents, and to reimburse 28 -16COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 Defendants/Respondents for the reasonable value of all material benefits received by 2 Defendants/Real Parties in Interest, under the 2012 Agreement; 3 4. Injunctive relief prohibiting Defendants/Real Parties in Interest (and any 4 and all persons acting at the request of, in concert with, or for the benefit of one or more of 5 them) from disbursing, paying, or otherwise transferring any money or other consideration 6 received by them under the 2012 Agreement; 5. 7 Any and all other relief that may be authorized by law but is not explicitly 8 or specifically requested elsewhere in this Prayer; and 6. 9 All legal fees and other expenses incurred by Petitioner in connection with 10 this cause of action, including but not limited to reasonable attorney fees as authorized by the 11 Code of Civil Procedure and the Government Code (but against Defendants/Respondents only 13 A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 to the extent they opposes Petitioner on this cause of action). 14 B. On the Second Cause of Action: 1. A judgment determining or declaring that the 2014 Lease was negotiated 15 and/or executed by at least one financially interested official or employee of CSU, SDSU, and/or 16 SDSUF in violation of one or more conflict-of-interest prohibitions and/or other applicable legal 17 requirements and is therefore void; 18 2. A judgment determining or declaring that there is a constructive trust in 19 favor of Defendants/Respondents in an amount equal to the value of all money and other 20 consideration received by Defendants/Real Parties in Interest under the 2014 Lease, and a 21 judgment in favor of Defendants/Respondents against Defendants/Real Parties in Interest for the 22 amount equal to the value of all money and other consideration received by Defendants/Real 23 Parties in Interest thereunder; 24 3. A judgment ordering Defendants/Real Parties in Interest to return all money 25 and other consideration received by them from Defendants/Respondents, and to reimburse 26 Defendants/Respondents for the reasonable value of all material benefits received by 27 Defendants/Real Parties in Interest, under the 2014 Lease; 28 -17COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 4. Injunctive relief prohibiting Defendants/Real Parties in Interest (and any 2 and all persons acting at the request of, in concert with, or for the benefit of one or more of 3 them) from disbursing, paying, or otherwise transferring any money or other consideration 4 received by them under the 2014 Lease; 5. 5 Any and all other relief that may be authorized by law but is not explicitly 6 or specifically requested elsewhere in this Prayer; and 6. 7 All legal fees and other expenses incurred by Petitioner in connection with 8 this cause of action, including but not limited to reasonable attorney fees as authorized by the 9 Code of Civil Procedure and the Government Code (but against Defendants/Respondents only 10 to the extent they opposes Petitioner on this cause of action). 11 On the Third Cause of Action: 1. A judgment determining or declaring that Defendants/Real Parties in 13 Interest have misappropriated and are using the names “KPBS” and “SDSU” and their A PROFESSIONAL CORPORATION LEIBOLD McCLENDON & MANN 12 C. 14 trademarks without the legally required authorization of Defendants/Respondents and without 15 paying for the reasonable value of such intellectual-property rights; 16 2. A judgment determining or declaring that there is a constructive trust in 17 favor of Defendants/Respondents in an amount equal to the reasonable value of the use of the 18 names “KPBS” and “SDSU” and their trademarks by Defendants/Real Parties in Interest without 19 the legally required authorization of Defendants/Respondents; 20 3. A judgment for money damages in favor of Defendants/Respondents 21 against Defendants/Real Parties in Interest equal to the reasonable value of the use of the names 22 “KPBS” and “SDSU” and their trademarks by Defendants/Real Parties in Interest without the 23 legally required authorization of Defendants/Respondents; 24 4. Injunctive relief prohibiting Defendants/Real Parties in Interest (and any 25 and all persons acting at the request of, in concert with, or for the benefit of one or more of 26 them) from using the names “KPBS” and “SDSU” and their trademarks by Defendants/Real 27 Parties in Interest without the legally required authorization of Defendants/Respondents and 28 without paying for the reasonable value of such intellectual-property rights; -18COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. 1 2 5. Any and all other relief that may be authorized by law but is not explicitly or specifically requested elsewhere in this Prayer; and 3 6. All legal fees and other expenses incurred by Petitioner in connection with 4 this cause of action, including but not limited to reasonable attorney fees as authorized by the 5 Code of Civil Procedure and the Government Code (but against Defendants/Respondents only 6 to the extent they opposes Petitioner on this cause of action). 7 D. On the Fourth Cause ofAction: 1. 8 A judgment ordering LORETTA HEARN to pay the maximum daily civil 9 penalty prescribed by Government Code Section 8314 in accordance with the statute, as the 10 Court deems appropriate; 2. 11 Any and all other relief that may be authorized by law but is not explicitly 12 or specifically requested elsewhere in this Prayer; and ~~ ~~ a'l:!o z0 ~0 ou ~ z~ Uo ...:I u ~ ~ ~ Q ~ cl~ E9..:t:: ~ 13 3. All legal fees and other expenses incurred by Petitioner in connection with 14 this cause of action, including but not limited to reasonable attorney fees as authorized by the 15 Code of Civil Procedure and the Government Code (but against Defendants/Respondents only 16 to the extent they opposes Petitioner on this cause of action). 17 E. Any and all further relief that this Court may deem appropriate for one or more of 18 the alleged causes of action or otherwise. .....l 19 Date: April8, 2015 LEIDOLD McCLENDON & MANN, P.C. 20 21 22 o c en on Attorneys for Plaintiff and Petitioner 23 SAN DIEGANS FOR OPEN GOVERNMENT 24 25 26 27 28 -19COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE Exhibit 5300 Campanile Drive 6I9 594-1515 Agreement San Diego State University Fax 6l9 594?38412 San Diego. CA 92182-5400 H3133 1. Parties to the Agreement This agreement (the ?Agreement?) will set forth an arrangement between San Diego State University Research Foundation at 5250 Campanile Dr., San Diego, California 92182 which serves as contracting and ?scal agent for KPBS and Investigative Newsource (herein the ?Parties?) regarding their cooperative working arrangements and commitments as outlined below. The parties agree to the following: 2. Terms of Agreement This agreement will take effect January 1, 2012 and will remain in effect for a period of one year to December 31, 2012, unless otherwise terminated sooner as provided under section 13 below (the ?Term"). The Term of this Agreement can be extended for an additional one year period in writing signed by the Parties. 3. Responsibilities of KPBS KPBS will provide the following: a. Office space, for up to four employees of IN, consisting ofa work space (desk) and chairs, telephone and connections for digital (desk-based) phone service, data (online) connectivity and the use of general office equipment such as printers and faxes and news gathering equipment. KPBS shall furnish local phone service only; b. Of?ce Space shall include related utilities, use ofthe stations? common areas including conference rooms, lunch/break rooms and studios/production areas. Use of common areas require prior coordination/approval with Director ofNews and Editorial Strategy; and c. Invitations to weekly and daily news meetings and participation in long-form story planning meetings. 4. Responsibilities of Investigative Newsource In consideration for the services provided by KPBS as stated herein, IN will provide KPBS the following during the Term: a. Ten substantial data driven stories which include an Investigative Newsource interactive tool using data to allow the audience to dig deeper into the story; b. One Watchdog feature per month to include a print version; IN reporters will be available as reasonably requested (subject to professional commitments) by KPBS for broadcast coverage; feature content shall be agreed upon in advance with the KPBS Director ofNews and Editorial Strategy; 0. Weekly data brief on a topic ofinterest to audience; such data briefcontent shall be agreed upon in advance with the KPBS Director ofNews and Editorial Strategy; d. For the content indicated in 4a, 4b, and 40 above, Investigative Newsource reporters will be available as reasonably requested (subject to professional commitments) by KPBS for broadcast coverage which could include features, packages, debriefs, and other programs; Page 1 of 6 5. e. Access to customized databases, created by Investigative Newsource providing data from San Diego County municipalities; and f. For its employees or contractors, IN is responsible for all compensation, wages, employer taxes, insurance and related claims and bene?ts; and (ii) long-distance phone charges. Joint Fundraising The parties agree during the Term they will use reasonable efforts to engage in joint fundraising activities on terms to be mutually agreed and documented in writing, and all pro?ts (after the reduction of costs and expenses) derived from suchjoint fundraising activities will be shared 50/50 or as otherwise designated in writing by the funding provider. 6. Limits of Liability a) Neither SDSURF nor KPBS shall be liable for any loss, cost, damage, or expense arising from causes beyond their control. provide no warranties, express or implied, whether of ?tness or merchantability, for the services provided by KPBS or the materials produced by it. IN shall not be liable for any loss, cost, damage, or expense arising from causes beyond its control. Other than as provided in Section 9 below, fN provides no warranties, express or implied, whether of ?tness or merchantability, for the services provided by or the materials produced by it. b) Without limiting the foregoing, neither nor IN shall be liable for any delay for reason of its inability, due to causes beyond its reasonable control, to obtain the necessary materials, or facilities; or for the delay, interference or interruption of the services to be rendered pursuant to this Agreement due to the elements, equipment malfunction, acts of God, or its employees, acts ofcivil or military authorities, priorities, ?res, ?oods, epidemics, quarantine restrictions, wars, riots, strikes, labor dif?culties, accidents, to machinery, car shortages, delays in transportation, reasons of force, mayhem, or any other similar or dissimilar causes commonly referred to as acts of force majeure beyond the control of and/or IN. Insurance IN shall, at its sole cost and expense, procure and maintain throughout the Term of this Agreement, the following insurance coverage: a) Comprehensive General Liability insurance providing coverage against claims for Bodily Injury or Death, and Property Damage. Such insurance shall provide protection to the limit of not less than $2,000,000 combined single limit for Bodily Injury and Property Damage. The Comprehensive General Liability insurance policy required by this Agreement shall name "San Diego State University Research Foundation? as an additional insured with respect to work being performed. TN agrees to provide all required certi?cates of insurance to SDSURF prior to the commencement of this Agreement. Speci?ed coverage or limits of insurance in no way limit the possible liability of IN. SDSURF shall be noti?ed at least thirty (30) days prior to cancellation or non?renewal of any such insurance. shall, at its sole cost and expense, procure and maintain throughout the Term of this Agreement, the following insurance coverage: Page 2 of 6 10. a) Comprehensive General Liability insurance providing coverage against claims for Bodily Injury or Death, and Property Damage. Such insurance shall provide protection to the limit of not less than $2,000,000 combined single limit for Bodily Injury and Property Damage. Damage and Alterations IN is solely responsible for loss or damage to the spaces and equipment except for ordinary wear and tear. IN shall not make any permanent alterations, additions, or improvements without the permission of KPBS and SDSURF. Rights, Ownership of Materials, Attribution IN warrants that it has the right to produce, distribute, diSplay and/or use the interactive tool, customized databases and programs described herein. All right, title and interest in and to the Investigative Newsource interactive tool and customized databases, its documentation, including without limitation any c0pyrights, trade secrets and other intellectual property rights therein shall remain with IN. KPBS will have all rights, title and interest in materials in perpetuity, generated solely by KPBS staff. IN will have all rights, title and interest in materials in perpetuity, generated solely by IN staff. All materials jointly created by KPBS and IN (?Joint Materials?) shall be jointly owned 50/50 by KPBS and IN, including an undivided 50/50 interest in the copyright in and to such Joint Materials. Each of KPBS and IN shall have the right to exploit such Joint Materials and all pro?ts (after the deduction of costs and expenses) derived therefrom shall be Split 50/50 between KPBS and IN. Each of KPBS and IN shall have the right to produce derivative works based on the Joint Materials and the party producing such derivative work shall be entitled to retain 100% of the proceeds derived therefrom. Each of KPBS and IN shall have the right to enforce and protect the c0pyright in the Joint Materials, including prosecuting, defending and appearing in suits, actions and proceedings of any nature concerning infringement ofthe copyright in the Joint Materials. Each of KPBS and IN shall receive clear co-attribution with respect to all Joint Materials and all Joint Materials and IN?produced materials shall include a link to website. During the Term ofthis Agreement and related extension if any as provided in section 2 above, IN shall provide KPBS with the right of first refusal on the stories, Watchdog features, and weekly data briefs described under section 4 above. Indemnity Investigative Newsource shall hold harmless, defend and indemnify State of California, the CSU, SDSU, KPBS, SDSU Research Foundation, its Board of Directors, its officers, employees, representatives and agents from and against all claims, damages and loses arising out of, resulting from, or related to the failure of IN to perform its obligations under this Agreement or the performance of its obligations in a willful or negligent manner; (2) the breach of any representation or warranty by IN in this Agreement; and (3) any claim of damage or loss by any subcontractor, or supplier, or laborer against Research Foundation arising out of any alleged act or omission pursuant to this Agreement of IN or any other subcontractor, or anyone directly or indirectly employed by IN or any subcontractor. In claims against any person or entity indemnified under this clause made by an employee of IN or a subcontractor, or indirectly employed by either of them, or anyone for whose acts either Page 3 of 6 11. 12. 13. may be liable, the indemni?cation obligation under this clause shall not be limited by a limitation on amount or type of damages, compensation, or bene?ts payable by or for IN or a subcontractor under workers compensation laws, disability bene?t laws or other laws providing employee bene?ts. The indemni?cation obligation under this clause shall not be limited by assertion or ?nding that the person or entity indemni?ed is liable by reason of a non-delegable duty. shall hold harmless, defend and indemnify IN, its director, of?cers, employees, representatives and agents from and against all claims, damages and loses arising out of, resulting from, or related to the failure of to perform its obligations under this Agreement or the performance of its obligations in a willful or negligent manner; (2) the breach of any representation or warranty by in this Agreement; and (3) any claim of damage or loss by any subcontractor, or supplier, or laborer against IN arising out of any alleged act or omission pursuant to this Agreement of or any other subcontractor, or anyone directly or indirectly employed by either SDSURF or KPBS or any subcontractor. In claims against any person or entity indemni?ed under this clause made by an employee of SDSU RF KPBS or a subcontractor, or indirectly employed by either of them, or anyone for whose acts either may be liable, the indemni?cation obligation under this clause shall not be limited by a limitation on amount or type of damages, compensation, or bene?ts payable by or for or a subcontractor under workers compensation laws, disability bene?t laws or other laws providing employee bene?ts. The indemni?cation obligation under this clause shall not be limited by assertion or ?nding that the person or entity indemni?ed is liable by reason ofa non-delegable duty. Con?dentiality For purposes of this Agreement, Con?dential Information shall mean information concerning any and all current, future or proposed programs, products or services of KPBS and IN. KPBS and IN shall hold and maintain each other?s Con?dential Information in strictest con?dence and in trust. Neither KPBS nor IN shall without the prior written approval of the other. use for its own bene?t, publish or otherwise disclose to others, or permit the use by others for their bene?t or to the detriment ofthe other party, the Con?dential Information. Right to Refuse Performance SDSURF and/or KPBS may refuse, without liability, to perform services on any material which KPBS in its sole discretion deems unlawful, pornographic or degrading or which it deems as tending to incite prejudice or passion. If at any time SDSURF and/or KPBS in its sole judgment determines that providing service in connection with IN or materials might subject it to criminal or civil process or to liability ofany kind, SDSURF and/or KPBS shall have the absolute right to cease the Agreement. Termination This Agreement may be terminated by either Party with ninety (90) days advance written notice. Page 4 of 6 14. Amendments This Agreement may be amended in writing and such amendments will be in effect only after being signed by both Parties. 15. Entirety of Agreement This Agreement constitutes the entire agreement between the Parties. 16. Choice of Law: Jurisdiction and Venue This Agreement shall be governed and construed in accordance with the laws of the State of California. Any action based upon an Agreement, either explicit or implied, shall be brought exclusively in the appropriate court of the state of California, county of San Diego. Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration in San Diego, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The Parties agree that the decision and any award rendered by the arbitrator shall be ?nal and judgment may be entered thereon in accordance with applicable law in any court having jurisdiction. 17. Notices All notices to any party hereunder shall be in writing, signed by the party giving it, and shall be sufficiently given or served, if sent by registered mail addressed to the parties at their addresses indicated below . Date Lorie Hearn, Executive Director San Diego State University School of Journalism Media Studies 5500 Campanile Dr. PSFA 3610 San Diego, CA 92128?4546] Phone __619-594-5100 Email: loriehearn@inewsource.org Fax KPBS a I -m Date Deanna Mackey Station Manager Page 5 of 6 S200 Campanile Drive San Diego, CA 92182 Phone: 619 594 5499 Email: dmackey@kpbs.org Fax: 619 594 3812 SDSU Research Foundation Date Page 6 of 6 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE Exhibit LEASE AGREEMENT THIS OFFICE LEASE AGREEMENT ("Lease") is made and entered into as of the Effective Date by and between SAN DIEGO STATE UNIVERSITY FOUNDATION, a California non? pro?t corporation doing business as San Diego State University Research Foundation on behalf of KPBS and Investigative Newsource It is mutually agreed between the parties hereto as follows: SPECIAL PROVISIONS Effective Date: July 1, 2014 PARTIES: SAN DIEGO STATE UNIVERSITY FOUNDATION, a California non-pro?t corporation doing business as San Diego State University Research Foundation LESSOR Investigative Newsource, LESSEE Lessee is: A governmental agency A nonpro?t, charitable, education, or character-building organization that will use the facility for education or non?commercial uses A group or individual who will use the facility for education or non- commercial uses PROPERTY: approximately 1,000 square feet (to be ?eld veri?ed), 2rlcl ?oor, 5200 Campanile Drive, San Diego, CA 92182 pursuant to Exhibit A attached. With utilities Without utilities Amount of Lease: One Dollar DATES OF TERM from July I, 2014 to June 30, 2016 This agreement will commence effective July 1, 2014 and will remain in effect for a period of twenty-four (24) months to June 30, 2016, unless otherwise terminated sooner as provided under Section II, Part 11. The Term of this Agreement can be extended for two additional one (1) year periods upon written agreement by the parties and at which time may modify the lease amount. SECTION 1: PURPOSE AND RESPONSIBILITIES shall lease space to LESSEE for the purpose stated herein and for the bene?t of securing investigative news content for KPBS. a) shall lease of?ce space (Exhibit A attached) for IN based reporters to use to create investigative news content. Other than as indicated below, IN will provide its own equipment for the recording and broadcasting of such news content. The of?ce space will consist of a work space with desks and chairs, telephones and connections b) d) for digital (desk-based) phone service (local phone service only), data (online) connectivity and the use of general of?ce equipment such as printers, copiers and faxes. Of?ce space shall include related utilities as speci?ed in Section II, Part 4. LESSEE shall be responsible for any damage related to all services referenced in this Section I Use of KPBS areas including conference rooms and studios/production areas, when it doesn?t interfere with normal KPBS operations, must be approved in advance by KPBS. KPBS common areas such as lunch and break rooms can be used for appropriate day- to?day needs. lN shall be responsible to purchase parking permits for IN staff. Guest parking passes shall be requested from KPBS as needed. Standard hours of Operation shall be from 83m to 6pm however 24hour access is granted for Breaking News reporting. The Names ?California State University,? ?San Diego State University,? ?San Diego State University Research Foundation?, or similar derivative names, are trademarks of the Board of Trustees of the California State University. Notwithstanding any other provision of this agreement, the use of these names or trademarks is prohibited and requires written approval and authorization from prior to use by lN for any purpose whatsoever, including in any publicity or advertisement of any kind in any medium. Nothing contained in this Lease shall be construed as conferring on IN any right to use the Name?s as an endorsement of any product or service, or to advertise, promote or otherwise market any product or service without the prior written consent of Furthermore, nothing in this agreement shall be construed as an endorsement of any commercial product or service by the University, its? auxiliaries, KPBS, and its of?cers or employees. LESSEE shall carry and maintain the following insurance Insurance"), at its sole cost and expense: 21) All Risk Property Insurance including at least the following perils: ?re and extended coverage, smoke damage, vandalism, malicious mischief, and Sprinkler leakage. This insurance policy shall cover the full replacement cost of all furniture, trade ?xtures, equipment and other personal property owned by LESSEE in the Premises, or which is installed by or on behalf of .LES SEE. b) Commercial General Liability Insurance insuring bodily injury, personal injury and property damage including the following coverages: Premises and Operations, blanket contractual liability, products and completed operations, ?re and water damage and legal liability. Such insurance shall have a combined single limit of liability for bodily injury, personal injury and property damage Of at least $2,000,000.00 per occurrence and in the aggregate. Business Automobile Liability Coverage insuring bodily injury and property damage arising from any of owned, scheduled, non?owned and hired vehicles, if any, with a combined single limit of liability of at least $1,000,000.00 per occurrence. d) Workers' Compensation Insurance as required by Law. e) Employer's Liability Coverage of at least $1,000,000.00 per occurrence. ?0 g) h) insurance policies shall designate LESSOR, the LESSOR Related Parties, Mortgagees (de?ned in Section 25) and other designees of LESSOR as additional insureds, (ii) provide that the insurance shall not be canceled or altered unless 30 days prior written notice has been delivered to LESSOR, and be issued by companies that are licensed to do business in California and have an A.M. Best rating of not less than A: LESSEE shall deliver to LESSOR original certi?cates of insurance evidencing that such insurance is in full force and effect (form Acord 28, without the 2006 revisions), together with a copy of the additional insured endorsement, before the earlier to occur of the Commencement Date or the date on which LESSOR delivers possession of the Premises to LESSEE, and upon renewals at least 15 days before the expiration of the insurance coverage. LESSOR shall maintain so called All Risk preperty insurance on the Building at replacement cost (excluding footings and foundations), as reasonably estimated by LESSOR. The cost of such insurance shall be included in Expenses. Limits of a party?s insurance shall not limit such party?s liability under this Lease. Each party waives its right of recovery against the other party, the other party?s trustees, members, principals, beneficiaries, partners, of?cers, directors, employees, Mo1?tgagee(s) (de?ned in Section 25) and agents with reSpect to any loss or damage, including consequential loss or damage, to the waiving party's property caused, resulting from or occasioned by any peril or perils (including negligent acts) covered by any policy or policies carried or required to be carried by the waiving party. SECTION 11: GENERAL TERMS 3) b) d) for and in consideration of the agreements of the LESSEE hereinafter expressed, hereby lease to the LESSEE, and the LESSEE leases from that property described in the Special Provisions above for the term therein speci?ed. The LESSEE agrees to pay as rental for the said property an amount computed for the term of this lease at the rental rate per unit of time or event as speci?ed above. The LESSEE shall use the said property only for the purposes speci?ed in Section I. agrees to furnish all necessary utilities for the said property, including heat, water, and also light if the property is speci?ed to be "with lights" except when such services cannot be supplied for causes beyond the control of and except when there is a failure or defect in the physical plant or utility lines, whether or not such failure or defect is beyond the control of SD if the failure or defect cannot reasonably be remedied in time for use by the LESSEE during the term hereof. agrees to furnish all janitorial services required for said property. shall provide one key access per person to identify IN personnel. IN shall return key access to upon termination of the lease or as changes occur in IN staff members. Requests for keys must follow processes and procedures g) h) for requesting keys. The LESSEE may not make alterations or place or attach any fixtures, signs, or equipment in, about, or upon the said property except those alterations, ?xtures, signs, and equipment described in the Special Provisions. Any fixtures, signs, and equipment provided by LESSEE shall remain the property of the LESSEE and shall be removed by the LESSEE from said preperty prior to the termination of this lease. The LESSEE, if required by shall, upon the expiration of this lease, or renewal thereof, restore said property to the same condition as that existing at the time of entering upon the same under this lease, reasonable wear and tear and damages by the elements or by circumstances over which the LESSEE had no control excepted. furniture or apparatus may not be removed or displaced by LES SEE or any agent, employee, or invitee of the LESSEE without permission of The LESSEE shall cause any fumiture or apparatus displaced to be replaced to the satisfaction of immediately after any event or occasion for which the preperty is used by LESSEE. The LESSEE shall not violate nor suffer to be violated any federal or State law, local ordinance, or rule of or of the CAMPUS. It is understood and agreed that and their agents shall have the right to enter the said property or any part thereof at any time for the purpose of examination or supervision, or for the purpose of making repairs and alterations thereto as may be determined necessary by LESSOR. Tenant shall indemnify, defend, protect and hold Landlord and each of the Landlord Related Parties harmless from and against all liabilities, obligations, damages, penalties, claims, actions, costs, charges and expenses, including attorneys' fees and costs, arising from, out of or in connection with any act or omission (including violations of Law) of Tenant or any of Tenant's transferees, agents, employees or contractors, whether occurring in the Premises, the Common Areas or elsewhere; and (ii) damage or injury occurring in, on or about the Premises or any part thereof. a) Landlord and the Landlord Related Parties shall not be liable to Tenant (or any subtenant, assignee, licensee or invitee of Tenant) for, and Tenant (for itself and for its employees, agents and contractors) waives all claims for loss or damage for, any injury or damage that may result to any person or property by or from any cause whatsoever, and without limiting the generality of the foregoing, whether caused by wind or weather; (ii) the failure of any sprinkler or HVAC equipment, any electric wiring or any gas, water or steam pipes; the backing up of any sewer pipe or downspout; (iv) the bursting, leaking or running of any tank, water closet, drain or other pipe; water, snow or ice upon or coming through the roof, skylight, stairs, doorways, windows, walks or any other place upon or near the Building. Tenant shall insure against such loss, injury or damage pursuant to Section I b) "Landlord Related Parties? means the State of California, the Trustees of the California State University, San Diego State University, the campus of San Diego State University and their respective principals, trustees, bene?ciaries, members, partners, shareholders, of?cers, directors, managers, employees, agents, contractors, volunteers, successors and assigns. j) It is mutually understood and agreed that this lease is not assignable by the LESSEE either in whole or in part, nor shall the LESSEE sublet any palt of the said property. k) This agreement may be terminated by either party upon thirty (30) days' written notice to the other party of this lease. This lease may be amended by written consent of the parties. 1) Possessory Interest. The San Diego County Assessor may value the possessory interest created by this lease, or any subleases. Under California Revenue and Taxation Code section 107, a property interest tax may be levied on that possessory interest. The LESSEE is obligated to pay this property tax, and failure to do so may be considered a material breach of the lease. m) All notices herein required to be given, or which may be given by either party to the other, shall be deemed to have been fully given when made in writing and deposited in the United States Mail, registered and postage prepaid, and addressed as here in provided. Notices shall be sent to the representatives identi?ed below: FOR IN: Name: Lorie Hearn Title: Executive Director Address: San Diego State University 5500 Campanile Dr. PSFA 3610 San Diego, CA 92182 Phone: 619/594?5100 Email: loriehearn@inewsource.org FOR KPBS: FOR SDSURF: Name: Deanna Mackey Name: Norma Clark Title: Station Manager Title: Associate Executive Director Address: 5200 Campanile Drive, Address: 5250 Campanile Drive San Diego, CA 92182 San Diego, CA 92182 Phone: 619/594?5499 Phone: 619/594-0276 Email: dmackey@kpbs.org Email: nclark@foundation.sdsu.edu IN WITNESS WHEREOF, this lease agreement has been executed by the parties hereto as the effective date hereof: Signatures on the following page Landlord and Tenant have executed this Lease as of the day and year ?rst above written. LESSOR: LES SEE: SAN DIEGO STATE UNIVERSITY FOUNDATION, a California non-pro?t corporation doing business as San Diego State University Research Foundation Norma E. Clark, Associate Executive Director Facilities Flaming and Management Date: KPBS Deanna Mackey, Station Manager Date: 9?2 /3 AC: IN VESTIGATE NEWSOURCE, a California non- pro?t coyorat' u? Lorie Hearn Executive Director Date: 5/ mug .nv-wmnw 3111:zt. kiwi: ?Wrath-u: as?. . 0" Wm 1.29715 ?4.4.2 unumu Hm. I335 . - - 9-- E3 I ?mg .. in? ?wag viomB OH. 32R mw