RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Barstow
Attn: Barstow City Clerk
220 East Mountain View Street, Suite A
Barstow CA 92311
RECORDING FEE EXEMPT
PURSUANT TO GOVERNMENT CODE
SECTION 27383
(Space Above Line For Recorder's Use)
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made as of the date of the final signature below ("the Effective Date"), by and between CITY OF BARSTOW ("City" or "Lessor"), a municipal corporation, which operates under the laws of the State of California, having its principal place of business at 220 East Mountain View Street, Suite A, Barstow CA 92311 ("Lessor" or the "City"), and Barstow Senior Citizen Center, a California Nonprofit Corporation, having its principal place of business at 555 Melissa Avenue, Barstow, CA 92311, ("Lessee") (with the "Lessor" and "Lessee" constituting the "Parties" and each, "Party").
WITNESSETH
That for and in consideration of the rentals, agreements, and conditions as hereinafter specifically set forth to be faithfully paid, kept, and performed by Lessee, City hereby rents and lets, and Lessee hereby takes possession of, hires, rents, and accepts the Premises and appurtenances thereto consisting of approximately 1.42 acres of land and all improvements on the Premises including an approximately 8,600 square foot building and storage area located at 555 Melissa Avenue, Barstow, California (collectively referred to as the "Premises'"). The Premises to be leased by Lessee is set forth in the legal description set forth in Exhibit "A" attached hereto and by this reference incorporated herein.
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It is understood and agreed by and between the parties hereto as follows, to wit:
1. DEFINITION OF TERMS. The following words in this Lease shall have the significance attached to them in this clause unless otherwise apparent from their context:
a. "City or Lessor" means the City of Barstow.
"Lease" means this Lease Agreement.
c. "Premises" means the approximately 1.42 acres of land and all improvements on the Premises including an approximately 8,600 square foot building and storage area located at 555 Melissa Avenue, Barstow, California as described in Exhibit "A" hereto and incorporated herein.
d. "Lease Administrator" means the City Manager of the City of Barstow or his/her designee, or upon written notice to Lessee, such other person as shall be designated from time to time by the City.
e. "Lessee" means the Barstow Senior Citizen Center, a California Nonprofit Corporation.
2. ADMINISTRATION. This Lease shall be administered on behalf of the City by the Lease Administrator, whose address is:
City of Barstow
Attention: City Manager
220 East Mountain View Street, Ste A
Barstow, CA 92311
With a copy to:
Barstow Senior Citizen Center
Attention: President
555 Melissa Avenue
Barstow, CA 92311
3. TERM. The term of this Lease shall be ten (10) years commencing on December 20, 2022 hereinafter called the Date of Commencement; provided, however, Lessee shall have the right to terminate this Lease at any time for any or no reason by first giving sixty (60) days prior written notice to City. City shall also have the right to 2 295528.V2
terminate said Lease any time for any or no reason by first giving sixty (60) days prior written notice to the Lessee.
4. RENT. In consideration of the possession and use of the Premises, Lessee shall deliver and pay rent to City during the term of this Lease in the amount of $1.00 per year. Lessee will pay the annual rent payment to the City on or before the first of each year (the "Due Date") and every year thereafter during the Term of this Lease. The payments required under this Lease shall be made payable to "City of Barstow" and considered payment under this Lease when delivered to:
City of Barstow
Finance
Department
220 East Mountain View Street, Suite A
Barstow, California 92311
5. SECURITY AND JANITORIAL SERVICES. Lessee, at its sole expense, will provide security and janitorial services for facility.
6. LANDSCAPE MAINTENANCE. The City shall be responsible for landscape maintenance of the Premises.
7. BUILDING MAINTENANCE AND REPAIR CHARGES. Except as
provided in Section 13 herein, City shall be responsible for major repairs and maintenance exceeding $1,000.00. All other repairs and maintenance shall be the responsibility of Lessee. Prior to any repair work by Lessee. Lessee will gain permission from the City Manager or his/her designee.
Lessee shall repair any damage or injury to the Premises caused by neglect or misuse by Lessee, Lessee's employees, agents, visitors, invitees, volunteers or licensees.
Lessee agrees to take good care of the Premises and of all improvements, alterations, fixtures, and appurtenances thereon and thereto, and to give prompt notice to the Lease Administrator of any damage to same.
Lessee will promptly notify the City of any damage, or of any situation that may significantly interfere with the normal use of the Premises.
Lessee will comply with standards of health, sanitation, fire, housing, and safety as required by law. Lessee shall maintain Premises in a safe and clean condition, free from waste or nuisance.
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Lessee will not keep or have on the premises any article or thing of a dangerous, flammable, or explosive character that might unreasonably increase the danger of fire.
8. INSURANCE. Lessee shall, during the term of this Lease, keep or cause to be kept policies of insurance which will fully protect the Premises. Lessee shall submit to the City's Risk Manager on or before the Date of Commencement, Certificates of Insurance evidencing that Lessee has obtained the required insurance from generally recognized responsible insurers in the following forms of coverage and minimum amount specified:
a. Commercial General Liability Insurance. The policy must be written on an "occurrence basis" and in an amount of not less than $1,000,000 each occurrence.
The insurer issuing the insurance policy must be admitted to do business in California. b. Eire and Extended Coverage. The policy is to provide coverage against loss or damage to the Premises resulting from fire, lightning, vandalism, malicious mischief and such perils ordinarily defined as "extended coverage" including flood but not earthquake. Such insurance shall be maintained in an amount of not less than 90% of the full replacement value subject to a deductible clause not to exceed One Thousand Dollars ($1,000.00).
The required Commercial General Liability policy shall name City as an "additional insured".
The required Fire and Extended Coverage policy shall name City as "loss payee".
Each policy of insurance shall contain the following clause:
"It is agreed that this policy shall not be cancelled nor the coverage reduced until thirty (30) days after City's Lease Administrator or his/her designee shall have received written notice of such cancellation or reduction. The notice shall be deemed effective on the date delivered to said Lease Administrator or his/her designee as evidenced by properly validated return receipt."
City shall retain the right at any time to review the coverage, form and amount of insurance required herein, and may require Lessee to obtain insurance sufficient in coverage, form and amount to provide adequate protection against the kind and extent of risk which exist at the time a change in insurance is required. City requirements shall be reasonable.
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9. USE. Lessee shall use and occupy the Premises solely as a facility for senior citizen programs and services and other operations directly incidental to Lessee's business and the management of its operations, including preparation and serving of meals for senior citizens, and recreation, educational activities and related services for senior citizens.
10. OCCUPANCY, The Premises shall be occupied by no one other than the entity listed above and referred to as "Lessee" without prior written consent of the Lease Administrator having been first obtained
11. ASSIGNMENT OR SUBLEASING, Lessee shall not sublease the Premises or assign this Lease without prior written consent of the Lease Administrator.
12. UTILITIES CHARGE/UTILITIES. Lessee shall be responsible for paying all utility services, including sewer, water, gas, telephone and electric service necessary for its use and enjoyment of the Premises and shall pay all services, service charges and installation charges in connection therewith and associated with the entire facility.
13. ACCEPTANCE, MAINTENANCE AND REPAIRS. Lessee hereby
acknowledges that Lessee has inspected the Premises, that Lessee accepts said Premises "as is" and "where is", that the Premises are in good and sanitary order, condition, and repair, and hereby accepts them as such.
Lessee agrees to take good care of the Premises and of all improvements. alterations, fixtures, and appurtenances thereon and thereto, and to give prompt notice to the Lease Administrator of any damage to same. Lessee shall repair any damage or injury to the Premises caused by willful acts, neglect or misuse by Lessee, Lessee's employees, agents, volunteers, visitors, invitees and licensees.
14. ALTERATIONS AND IMPROVEMENTS. All structures, equipment and fixtures installed by Lessee in accordance with the provisions of this Lease, and not being a replacement or repair of or for any improvements subsequently installed by City, shall be the property of Lessee during the term of this Lease. It is agreed that any equipment and fixtures so installed by Lessee are hereby made security for the faithful performance of the terms, conditions, and covenants of this Lease. Upon termination of this Lease for any cause, all such structures, equipment and fixtures (but not trade fixtures) shall become the property of City.
However, City may require Lessee, and Lessee hereby agrees, to remove any such structures, equipment and fixtures at Lessee's own expense, provided that all damage to the Premises or to City's property or improvements from such removal shall be repaired in a good and workmanlike manner and the Premises shall be left in as good order and condition as when Lessee took possession thereof, reasonable wear and tear and damage by the elements 5 295528.v2
excepted. In the Lessee does not so remove any of sub-structures, equipment or fixtures as aforesaid, City may remove, sell or destroy the same at the expense of Lessee and Lessee shall pay to City the reasonable cost of such removal, sale or destruction, together with the reasonable cost of repair of damages to City's property or improvements or to the Premises resulting therefrom. It is further agreed that any personal property not removed from the Premises within sixty (60) days following termination of this Lease may, at City's option, be deemed abandoned, and City may take possession and dispose of it in any manner without liability to Lessee.
Prior to any alterations or improvements being performed by Lessee. Lessee shall obtain the prior written consent of the City Manager or his/her designee. Any such alterations and improvements shall conform to the architectural plans and renderings of the structure adopted by City. Lessee is solely liable, at its own expense, for procurement of all permits and approvals necessary for its operation of the described facilities and any improvements/ alterations performed by Lessee. Lessee agrees to pay any and all cost associated with any such alterations and improvements, and, in the event such alterations and improvements do not receive the prior written consent of the City Manager or his/her designee, Lessee shall be responsible to pay to City any and all costs associated with bringing any such alterations and improvements in compliance with the standards described herein.
15. TAXES, ASSESSMENTS.AND FEES, The terms of this Lease may result in the creation of a possessory interest. If such a possessory interest is vested in Lessee, Lessee may be subjected to the payment of real and/or personal property taxes levied on such interest. Lessee shall be responsible for the payment of, and shall pay before delinquency, all taxes, assessments, and fees assessed or levied upon Lessee, on the Premises or any interest therein, on any buildings, structures, machines, appliances, or other improvement of any nature whatsoever, or on any interest therein. Lessee further agrees not to allow such taxes, assessments, or fees to become a lien against the Premises or any improvement thereon. Nothing herein contained shall he deemed lo prevent or prohibit Lessee from contesting the validity of amount of such tax, assessment or lee in the manner authorized by law.
16. CONDUCT. Lessee and guests of Lessee shall at all times conduct themselves in a quiet and dignified manner so as to cause no annoyance or inconvenience to neighbors of Lessee and shall not violate, or permit the violation of, any City or County ordinance or State or Federal law in or about the Premises.
17. FOOD SERVICE. The City understands that the Lessee operates the Senior Nutrition Program and prepares and serves meals at the facility. Lessee shall be solely responsible for obtaining operating and health department permits associated with food service 6 295528.v2
activities.
18. RIGHT OF INSPECTION. City reserves the right for its agents or employees to enter upon and inspect the Premises at any reasonable time to ascertain if the provisions of this Lease are being complied with by Lessee.
19. INDEMNIFICATION. Lessee shall defend, indemnify and save harmless the City, its officers, agents and employees from and against any and all claims, demands, and liabilities for loss of any kind of nature which City, its officers, agents, or employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons or damage to Premises as a result of, arising out of, or in any manner connected with this Lease or with the occupancy and use of the Premises by Lessee, its guests, invitees, visitors, or any other persons whatsoever. Lessee further agrees to pay any and all costs and expenses, including, but not limited to, court costs and reasonable attorney's fees incurred by the City on account of any such claims, demands, or liabilities.
Lessor shall not be liable to Lessee for any damage to Lessee or Lessee's Premises from any cause. Lessee waives all claims against Lessor for damage to persons or Premises arising for any reason other than the intentional torts or gross negligence of Lessor or its authorized representatives. Lessee, as a material part of the consideration to Lessor, hereby assumes all risk of damage to Premises or injury to persons, in, upon or about the Premises arising from any cause and Lessee hereby waives all claims in respect thereof against Lessor.
20. WAIVER OF SUBROGATION. Notwithstanding any rights and obligations of either party contained elsewhere in this Lease, Lessee hereby releases and waives any right of recovery against City, its officers, agents and employees for any loss or damage arising out of Lessee's use and occupancy of the Premises, unless such loss or damage arises out of City's sole negligence or willful misconduct.
21. DAMAGE OR DESTRUCTION OF PREMISES. If the Premises are damaged or destroyed in whole or in part by fire or other casualty, City may repair and restore the Premises, or may abate rent pro rata for the portion of the Premises rendered untenantable in the event a part of the Premises is untenantable, until the Premises andor Property are restored to a tenantable condition. City may commence and complete all work required to be done under this paragraph with reasonable promptness and diligence, but City shall not be in default in any required performance if delay in performance results from fire, flood, storm, labor disputes, shortage of materials or transportation facilities, governmental regulations, war, natural disasters or other causes beyond City's reasonable control. If City elects not to commence such repair or restoration within thirty (30) days after such damage or destruction occurs or if repair or restoration will require more than one 7 295528.v2
hundred twenty (120) days to complete, Lessee may thereafter, at its option, terminate this Lease by giving City written notice of its election to do so provided such notice is received by City prior to the commencement of such repair or restoration. In that event, this Lease shall terminate as of the date such notice is received by City.
22. NOTICES. Any notice or notices required or permitted to be given by this Lease may be personally served on the other party by the party giving such notice, or may be served by Certified Mail, Return Receipt Requested, to the addressee. Notices served by mail shall be addressed to Lessee and to City and/or Lease Administrator at the address stated in Section 2 "ADMINISTRATION" contained herein, or as City or Lessee may hereinafter designate by written notice to the other.
23. VACATION OF PREMISES. Upon termination of this Lease for any reason whatsoever, Lessee shall peaceably vacate and deliver the Premises to City in the same condition as Lessee enjoyed upon its acceptance of the Premises hereunder, ordinary wear and tear and acts of God excepted. Upon such termination, Lessee shall (1) arrange and pay for the disconnection of all utility services ordered by Lessee; and (2) provide a written statement to the Lease Administrator of Lessee's new address for purpose of refunding monies, if any, due Lessee under this Lease: and (3) deliver the keys for the Premises to the Lease Administrator or send said keys by certified mail to the address stated in Section 2 "ADMINISTRATION" contained herein.
24. NON-DISCRIMINATION. Lessee herein covenants by and for itself, its successors, and assigns. and all persons claiming under or through it, that this Lease is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, sexual orientation or ancestry in the leasing, subleasing, transferring, us, occupancy, tenure or enjoyment of the Premises nor shall Lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessee, sublessees, subtenants, or vendees in the Premises.
25. AFFIRMATIVE ACTION PROGRAM. Lessee shall comply with any Affirmative Action Programs required by the federal government, State of California, or City.
26. HOLDING OVER. Any holding over for any cause after the expiration of said term shall be construed to be a tenancy from month-to-month at the rental rates and on the terms and conditions herein specified insofar as they are applicable. "Holding Over" 8 295528.v2
includes, but is not limited to, time employed by Lessee in removing all personal property following the termination of the Lease, if such removal is authorized by the Lease Administrator.
27. SUPERSEDURE, This Lease, upon becoming effective, shall supersede any prior leases or rental agreements heretofore made or issued for the Premises between City and Lessee.
28. COSTS AND ATTORNEY'S FEES. In the event any legal action or proceeding is brought to enforce the terms or declare termination of this Lease for reason of breach thereof, the prevailing party shall be awarded all costs of any such action or proceeding together with all attorneys' fee actually and reasonably incurred by said party.
29. APPLICABLE LAW AND VENUE. This Lease is executed in Barstow, San Bernardino County. California. This Lease shall be interpreted under the laws of the State of California. Venue for any legal action or proceeding shall be in the North Desert District of the Superior Court, San Bernardino County, California.
30. HAZARDOUS SUBSTANCES. Lessee shall be solely responsible for fully complying with all present or future rules, regulations, restrictions, ordinances, statutes. law and order of any governmental entity regarding:
a. Any improvements installed or alteration made on the Premises including, but not limited to, storage tanks, pipelines, pumps, and all other structures and equipment; and
b. The storage, distribution, processing, handling or disposal of hazardous substances including, but not limited to gasoline, diesel, aviation fuels and hazardous substances designated in Labor Code Section 6382 and Health and Safety Code Section 25316; regardless of whether the obligation to comply is on the land owner, the owner of the improvements or the user of the improvements. c. Any release of threatened release of hazardous substances which pose a threat to public health or the environment. A release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.
Lessee shall provide City with a written list of the type and quantity of all hazardous substance, as defined above, which it intends to use, store, distribute, process, handle, or dispose of on the Premises.
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If any hazardous substance as defined above spills, leaks or is discharged from any facility or vehicle on the Premises, Lessee shall immediately make all repairs necessary to prevent further spills, leaks or discharge and shall immediately clean up and promptly dispose of any contaminated soil. City may after written notice to Lessee, take all steps the City deems necessary to make the necessary repairs, to clean up the spill and to dispose of any contaminated spill. Lessee shall reimburse City for this expense within thirty (30) days of receiving a bill for this work from the City.
Lessee shall be solely responsible for paying all fines, damages and penalties imposed by any governmental entity regarding the production, storage, distribution, processing, handling, disposing, spilling, leaking or discharging of any hazardous substance as define above. Lessee's obligation under this Section shall survive the termination or expiration of this Lease.
31. QUIET ENJOYMENT OF THE PREMISES, If and so long as Lessee shall keep all the covenants and agreements required by it to be kept during this Lease and shall perform all its other obligations hereunder, City covenants and agrees that it shall not interfere with the peaceful and quiet occupation and enjoyment of the Premises by Lessee.
32. DEFAULT. The occurrence of any of the following shall constitute a default by Lessee:
(a) Failure to pay rent or any other payment required to be made by Lessee hereunder as and when due, and such failure continues for five days after notice from Lessor to Lessee.
(b) Abandonment of Premises (failure to occupy Premises for 30 consecutive days during the Term shall be deemed an abandonment and vacation). (c) Failure to comply with or perform any other provision of this Lease if the failure to perform is not cured within 30 days after notice has been given to Lessee.
(d) If Lessee shall become insolvent, make an assignment for the benefit of his or her creditors, file a voluntary bankruptcy proceeding, be subjected to an involuntary bankruptcy proceeding, or if a receiver is appointed for Lessee.
If default be made in the payment of rent above set out, or any part thereof, or in the event of breach by City or Lessee or any of the covenants and agreements herein contained, the aggrieved party may serve a written thirty (30) day Notice of Default, specifying such 10 295528.v2
default, on the party breaching this Lease. Such Notice of Default shall be sent as provided in Section 2 "ADMINISTRATION" contained herein.
After issuance of a Notice of Default, the City may terminate Lessee's right to possession of Premises by written notice and Lessee shall immediately surrender possession of Premises to City.
In the event of termination, City shall be entitled to recover from Lessee all damages incurred by City by reason of Lessee's default.
As a remedy to any default, the City may pursue any other remedy now or hereafter available to City under the laws or judicial decisions of the State of California.
33. PARTIES BOUND. This Lease shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns.
34. SIGNS. Lessee shall have the right, subject to the City Manager's or his/her designee's approval, to place in or on the Premises and in the common areas such signs or display material that Lessee deems necessary and proper in the conduct of its business: however, the display or any such signs or other materials shall be in compliance with the requirements of Barstow Municipal Code, shall be compatible with City's signage and display materials and shall he in conformity with City's colors, design scheme, and any historical themes or standards as required by City.
LEGAL CONSTRUCTION. In the event any one or more of the provisions contained in this agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not effect any other provision thereof, and this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
36. ENTIRE AGREEMENT. This Lease constitutes the complete expression of the agreement between City and Lessee, and there are no other promises, representations. agreements or warranties except as set forth herein. There shall be no alteration. change or amendment to this Lease, except in writing executed by both parties hereto.
37. AUTHORITY OF SIGNATORIES, Each person signing this Lease hereby warrants that he/she/it is properly authorized to do so and has actual authority to bind his or her principal to this Lease.
38 NO PRESUMPTION REGARDING DRAFTER. The parties acknowledge and agree that the terms and provisions of this Lease have been negotiated and discussed between and among the parties and their attorneys, and that this Lease reflects their mutual 11 295528.v2
agreement regarding the same. Because of the nature of the negotiations and discussions, it would be inappropriate lo deem any party to be the drafter of this Lease, and therefore, no presumption for or against validity or as to any interpretation hereof, based on the identity of the drafter, shall be applicable in interpreting or enforcing the Lease." SECTION HEADINGS. The section headings contained in this Lease are for convenience and identification only and shall not be deemed to limit or define the contents of the section to which they relate.
SEVERABILITY. If there is a conflict between any provisions of the Lease and applicable legislation of the State of California, the state law will prevail, and such provisions of the Lease will be amended or deleted as necessary in order to comply with state law. Further, any provisions that are required by state law are incorporated in this Lease.
IN WITNESS WHEREOF, the Parties hereto have executed this Lease as of the day and year first above written.
LESSOR
CITY OF BARSTOW, a municipal corporation
By:
Name:
Its:
APPROVED AS TO FORM: ATTEST:
Matthew T. Summers, City Attorney Andrea Flores, City Clerk LESSEE
By: 1461 Caser h.
Name: JeFF L. LEASON SR
Its:_ PRESIDER.
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EXHIBIT A
LEGAL DESCRIPTION
THAT CERTAIN REAL PROPERTY IN THE CITY OF BARSTOW, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
LOT 3, TRACT NO. 10498, AS PER MAP RECORDED NOVEMBER 1, 1978 IN BOOK 144 OF MAPS, PAGE 5 AND 6, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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