1 LEASE AGREEMENT
California Route 66 Museum
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, and the California Route 66 Museum, a California Nonprofit Public Benefit Corporation, having its principal place of business at 681 North First Avenue, Barstow, CA 92311, (“Lessee”) (with the “Lessor” and “Lessee” constituting the “Parties” and each, “Party”).
RECITALS
WHEREAS, the Lessee's presence in the Harvey House attracts tourists that otherwise would not visit the historic Harvey House, NASA Goldstone Visitor Center and Western America Railroad Museum Systems Corporation (WARM); and WHEREAS, the Lessee will use the premises solely for California Route 66 Museum and associated uses, including, exhibitions of collections, research and educational displays; along with a gift shop for the sale of books and other items; and WHEREAS, the Lessee shall be opened to the public not less than fifteen (15) hours per week over each ten-week period; and shall not be closed to the public for any period of more than thirty (30) consecutive days; and
WHEREAS, the Lessee provides information about the NASA Goldstone Visitor Center and Western America Railroad Museum Systems Corporation (WARM); and WHEREAS, the Lessee, a nonprofit corporation, desires to lease the portion of the Property shown on “Exhibit B” (the "Premises") on the terms and conditions described in this Agreement to use as a California Route 66 Museum (the "Museum"); and WHEREAS, the Lessor is willing to lease the Premises to Lessee for such purposes on the terms and conditions stated in this Agreement
AGREEMENT
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, Lessor hereby rents and lets, and Lessee hereby takes possession of, hires, rents and accepts the Premises and appurtenances thereto for building space, a total of 2,281 square feet (Ground Level - Recreation Building Addition) and 1,472 square feet (Recreation Building), adjacent to the historic Harvey House, located at 681 North First Avenue, Barstow, 2 California. All of said leased real property as set forth in the legal description set forth in “Exhibit A" and the Premises Plan set forth in “Exhibit B" attached hereto and by this reference incorporated herein.
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 Agreement shall have the significance attached to them in this clause unless otherwise apparent from their context:
a. "The Premises" means a total of approximately 3,753 square feet of building space adjacent to the historic Harvey House (Ground Level Recreation Building Addition) designated by “Exhibit A" and “Exhibit B" hereto and incorporated herein. b. "Lease Administrator" means the City Manager of the City of Barstow or upon written notice to Lessee, such other person as shall be designated from time to time by the City.
c.
2. ADMINISTRATION. This Lease shall be administered on behalf of the City by the Lease Administrator, whose addressis:
The City of Barstow
Attention: City Manager
220 East Mountain View Street, Ste. A
Barstow, CA 92311
With a copy to:
Matthew Summers, City Attorney
Colantuono, Highsmith &
Whatley, P. C.
790 E. Colorado Blvd., Suite 850
Pasadena, CA 91101-2109
With a copy to:
California Route 66 Museum
Attention: Executive Director
681 North First Avenue
Barstow, CA 92311
3. TERM. The Lease's initial term ("Initial Term") shall commence on December 1, 2024("Commencement Date") and end on November 30, 2027 ("Ending Date"). Lessee shall have the right to terminate this Lease at any time for any or no reason by first giving one hundred and eighty days (180) days prior written notice to the City. The City shall also have the right to terminate said Lease any time for any or no reason by first giving one hundred and eighty (180) days prior written notice to the Lessee. 3 Upon termination of this Lease for any reason whatsoever, Lessee shall peaceably vacate and deliver the Premise 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 telephone service and services ordered by Lessee; and (2) provide a written statement to the Lease Administrator or 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.
4. RENT. In consideration of the possession and use of the Premises, between December 1, 2024 and November 30, 2027, Lessee shall deliver and pay rent to City during the term of this Lease in the amount of $1.00 per year for each year of the Agreement.
The payments required under this Lease shall be made payable to "The City of Barstow" and considered payment under this Lease when delivered to:
City of Barstow
Finance Department
220 East Mountain View Street, Ste "A"
Barstow, CA 92311
5. NOTICE OF POSSESSORY INTEREST. In accordance with California Revenue and Taxation Code section 107.6, subdivision (a), City provides notice that entering into this Lease may create a possessory interest subject to property taxes payable by Lessee.
Lessee or any other party in whom the possessory interest is vested agrees that it shall pay all taxes as may be assessed upon the possessory interest in the leasehold of property created by this Lease.
6. USE. Lessee shall use and occupy the Premises solely as a California Route 66 Museum; the sale of tourist related items such as souvenirs, T-Shirts, etc., shall be permitted under the operation of the Museum. The Museum shall be open to the general public not less than fifteen (15) hours per week over each ten-week period; and shall not be closed to the public for any period of more than thirty (30) consecutive days.
Lessee shall not use, or permit the use of, the Premises other than as described above. In any case, where Lessee is, or should reasonably be, in doubt as to the propriety of any particular use, Lessee may request, and will not be in breach of default if Lessee abides by, the written determination of the Lease Administrator that such use is or is not permitted.
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.
The Premises shall be occupied by none other than the entity listed above and referred to as Lessee without written consent of the City having been first obtained. 4 7. UTILITIES AND OTHER OPERATING COSTS. Lessee will pay all operating costs of the premises, including without limitation utilities, janitorial, taxes, garbage disposal, interior maintenance, exterior maintenance, and insurance (the “Operating Costs”). Lessee shall pay all Operating Costs directly to the provider; any Operating Costs that are paid by the City shall be considered to be Additional Rent, payable by Lessee to the City.
Lessee shall be responsible for ordering, obtaining and paying for all utility services, including telephone, internet and electric service necessary for its use and enjoyment of the Premises and shall pay all services, service charges and installation charges in connection with the Premises.
8. MAINTENANCE. Lessee hereby acknowledges that Lessee has visually inspected the Premises, that Lessee accepts said Premises “as is” and “where is” with respect to observable defects, that the Premises are in good and sanitary order, condition, and repair, and hereby accepts them as such.
Lessee will complete all necessary cosmetic repairs to the interior (all Lessee improvements including painting, patching, carpeting, etc.) of the Premises as described in “Exhibit B". Prior to any repair work, Lessee will gain permission from the City's Building Official. City will be responsible for maintaining items identified in “Exhibit C”.
Lessor shall not have any responsibility to maintain Premises beyond the effective date of this Lease Agreement. Lessee shall be responsible to maintain and repair any Lessee installed items at Lessee cost.
Lessee shall repair any damage or injury to the Premises caused by neglect or misuse by Lessee, Lessee’s servants, employees, agents, visitors, invitees, 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 City of any damage to same. Lessee shall not be responsible for any damages or injury to the Premises caused by the City. Lessee shall receive a rent reduction for the cost of repairs for any damages or injury to the Premises caused by the City or for any loss of office space caused by the same.
9. REPLACEMENT AND REPAIRS. 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 5 possession thereof, reasonable wear and tear and damage by the elements excepted. In the event 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.
It is understood by the parties hereto that Premises are a historic landmark. Prior to any alternations or improvements being performed by Lessee after its acceptance of the Premises, Lessee shall obtain the prior written consent of City. Any such alternations and improvements shall conform to the architectural plans and renderings of the structure as well as any historic construction and maintenance guidelines either adopted or to be 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 and/or alterations performed by Lessee. Lessee agrees to pay any and all costs associated with any such alternations and improvements, and, in the event such alterations and improvements do not receive the prior written consent of City, and are not consistent with the criteria established by the City preserving the structure as a historical landmark, 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.
10. INSPECTIONS. At all reasonable times during the term of this Lease and any renewal of this Lease, the City and its agents may enter the Premises to make inspections or repairs, or to make alterations, or make improvements to the Premises.
11. CARE OF PREMISES. 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.
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.
12. 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 or 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.
6 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 negligence of Lessor or its authorized representatives. Lessee, as a material part of the consideration to Lessor, hereby assumes all risk of damage caused by Lessee to Premises or injury to persons caused by Lessee, in, upon or about the Premises.
13. INSURANCE. Lessee shall, during the term of this Lease, keep or cause to be kept, policies of insurance which will fully protect the Premises. Insurance required hereunder shall be issued by companies holding a "General Policyholders Rating" of B plus or better as set forth in the most current issue of "Best's Insurance Guide". Lessee shall submit to the Lease Administrator, on or before the effective date of this Agreement and every twelve months thereafter, Certificates of Insurance evidencing that Lessee has obtained the required insurance from generally recognized responsible insurers in the following forms of coverage and minimum amountspecified. 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. Fire 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.
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 or its designee shall have received written notice of such cancellation or reduction. The notice shall be deemed effective on the date delivered to the City or its 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.
14. ASSIGNMENT, SUBLEASING, OR ENCUMBERING. Lessee shall not sublease the Premises or assign this Lease without prior written consent of the Lease Administrator.
7 15. DEFAULT. The occurrence of any of the following shall constitute a default by Lessee:
(1) 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.
(2) Abandonment of Premises (failure to occupy Premises for 30 consecutive days during the Term shall be deemed an abandonment and vacation). (3) Failure to keep the museum open to the public for at least the minimum hours and days specified in Section 6.
(4) 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.
(5) 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.
16. CITY’S REMEDIES. In the event of any Default by Lessee, City may at any time thereafter, in its sole discretion, with or without further notice or demand and without limiting City in the exercise of a right or remedy which City may have by reason of such default or breach:
(1) Upon five days’ prior notice, the City may terminate the tenancy under this Lease if the Lessee has failed to pay any portion of the Rent Payment when due; or in the alternative at the City’s election, if Lessee for any reason whatsoever fails to remit to the City the annual rent due within fifteen (15) days after due date, Lessee shall be deemed delinquent in payment of contract rent and shall become liable to pay the rent due, together with an additional 5% of lease payment due or $25, whichever is higher.
(2) Upon 10 days’ notice, the City may terminate the tenancy under this Lease if the Lessee fails to observe, perform, and keep each and every of the covenants, agreements, stipulations, obligations, conditions, and other provisions of this Lease Agreement to be observed, performed, and kept by the Lessee and the Lessee persists in such default beyond the 30 days’ notice; (3) Upon five days’ notice, the City may terminate the tenancy under this Lease if the Lessee fails to abate any public or private nuisance that exists on Premises and the Lessee persists in such default beyond the 30 days’ notice.
Termination of Lessee's right to possession of Premises by written notice to Lessee shall terminate this Lease 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; or City may pursue any other remedy now or hereafter available to City under the laws or judicial decisions of the State of California. 8 17. 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 pro rate for the portion rendered untenantable in the event a part only is untenantable, until the Premises and/or 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, shortages of materials or transportation facilities, governmental regulations, war, or other cause beyond City's reasonable control. If City elects not to commence such repair or restoration will require more than one hundred twenty (120) days to complete, Lessee may thereafter, as it option, terminate this Lease by giving City written notice of its election to do so at any time 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.
18. NOTICES. All notices that are required to be given by one party to the other under this Lease shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited with the United States Post Office for delivery by registered or certified mail addressed to the Parties at the following addresses, unless such addresses are changed by notice, in writing, to the other party.
If to City:
City Manager
City of Barstow
220 East Mountain View,
Barstow CA 92311
If to Lessee:
California Route 66 Museum
681 North First Avenue,
Barstow, CA 92311
19. GOVERNING LAW. 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.
20. HAZARDOUS SUBSTANCE. Lessee shall not introduce or permit to be introduced any hazardous substance (including but not limited to gasoline, diesel, aviation fuels, etc.) onto the property during the term of this Lease.
21. 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 byLessee. 9 22. SIGNS. Lessee shall have the right, subject to City'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 of 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 be in conformity with City's colors, design scheme, and any historical themes or standards as required by City.
23. SEVERABILITY AND 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 affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
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.
24. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between the Parties with respect to the subject matter covered by this Lease and supersedes all prior understanding and agreements, whether written or oral, between the Parties hereto relating to the same subject matter.
25. GENERAL PROVISIONS
a. Signing Authority. Each person signing this Agreement hereby warrants that he/she or was properly authorized to do so and had actual authority to bind his or her principal to this Agreement.
b. No Continuing Waiver. Any waiver by the City of any failure by Lessee to perform or observe the provisions of this Lease will not operate as a waiver of the City’s rights under this Lease in respect of any subsequent defaults, breaches or nonperformance and will not defeat or affect in any way the City’s rights in respect of any subsequent default or breach. No right or remedy provided under this Lease is intended to be exclusive of any other right or remedy hereof provided by law or equity. Each right and each remedy shall be cumulative and in addition to every other right or remedy provided under this Lease now or hereafter existing at law, in equity or by statute. c. Binding on Successors. This Lease will extend to and be binding upon and inure to the benefit of the respective administrators, successors and assigns, as the case may be, of each party to this Lease. All covenants are to be construed as conditions of this Lease. d. Additional Rent. All sums other than the Total Rent Amount payable by Lessee to the City pursuant to any provision of this Lease will be deemed to be Additional Rent and will be recovered by the City as rental arrears.
e. No Discrimination. Lessee shall not discriminate against any person in relation to Lessee’s performance under this Lease (including any employee or applicant) on the basis of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, or sex. f. Independent Parties. Nothing in this Lease shall be interpreted as creating a 10 partnership, joint venture, or relationship of principal and agent between City and Lessee.
g. Amendments in Writing. No amendment of this Lease shall be valid unless it is in writing, specifies the nature and extent of the amendment, and is signed by the Parties. h. Captions, Headings. All captions, headings, or titles in the paragraphs or sections of this Lease are inserted for convenience of reference only and shall not constitute a part of this Lease as a limitation of the scope of the particular paragraphs or sections to which they refer.
i. Execution in Counterparts. This Lease may be executed in counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party. Any executed counterpart to this Lease may be delivered by facsimile, .pdf or other electronic means, and any counterpart so delivered shall constitute an original for all purposes.
j. 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 agreement regarding the same. Because of the nature of the negotiations and discussions, it would be inappropriate to deem any part 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. (This space left intentionally blank)
11 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:
_____________________________
Matthew T. Summers, City Attorney
ATTEST:
_________________________
Andrea Flores, City Clerk
LESSEE
California Route 66 Museum
By:
Name:
Its:
12 EXHIBIT A
(LEGAL DESCRIPTION)
Tentative Parcel Map 13660, being a subdivision of:
The Northwest one-quarter of Section 6, Township 9 North, Range 1 West, San Bernardino Meridian, in the City of Barstow, County of San Bernardino, State of California, according to the official Plat thereof, together with that portion of the Northeast one-quarter of said Section 6, lying South of the Southerly line of the land conveyed to the State of California, recorded April 15, 1932 in Book 810, Page 27 of Official Records and lying South of the Southerly line of the land conveyed to the San Bernardino County Flood Control District Recorded May 24, 1963 in Book 5916, Page 623, Official Records.
Excepting therefrom the interest in that portion of said Northwest one-quarter as conveyed to the County of San Bernardino recorded June 27, 1927 in Book 243, Page 254, Official Records.
Also excepting therefrom any portion lying South of the centerline of Tract No. 500 of the Atchison, Topeka and the Santa Fe Railroad.
13 EXHIBIT B
(PREMISES PLAN)
14 EXHIBIT C
The Lessor will be responsible for maintaining and repairing the following:
• All air conditioners serving thislease space, including heat pumps. • All ductwork & thermostats serving thislease space.
• Light fixtures, except lightbulbs.
• Fire alarmsystem
• Fire sprinklersystem
• Structural repairs asneeded