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Calimesa CA6-211 18
a controlling influence over the management or policies of an entity. Purchaser represents and warrants that the transaction contemplated by this Agreement does not violate the Policy.
10.21 Attorney Consultation. Purchaser acknowledges and agrees that it has either (a) executed and delivered this Agreement only after review by, and consultation with, an attorney selected by Purchaser, in order to allow Purchaser to be advised of the meaning and appropriateness of any of the terms of this Agreement, or (b) waived the right for such review and consultation, as Purchaser has determined that the terms of this Agreement are appropriate or that review by an attorney is not necessary for Purchaser to proceed in accordance herewith.
10.22 Dispute Resolution. Seller and Purchaser agree that any action or proceeding by either of them against the other arising out of or in connection with this Agreement shall, upon the motion of either party, be submitted to arbitration. The parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the arbitration. The arbitrator shall have the authority to try all issues, whether of fact or law, and to report a statement of decision to the court. To the extent not inconsistent with State law, Seller and Purchaser shall use the procedures for arbitration and judicial reference, if any, adopted by Judicial Arbitration and Mediation Services/Endispute (“JAMS”), as relevant, to supplement any applicable State statutes, provided that the following rules and procedures shall apply in all cases unless the parties agree otherwise:
(a) The proceedings shall be heard in the City of Los Angeles, California; (b) Unless the parties agree otherwise, JAMS shall provide a list of three (3) reputable arbitrators experienced in arbitrating commercial disputes to the parties who may each strike one (1) from the list, and the parties shall consent to appointment of the remaining person as the arbitrator. If JAMS is no longer in existence or unwilling to arbitrate the matter, then the American Arbitration Association shall provide said list. If neither is willing or able to arbitrate the matter, then the trial court shall appoint the arbitrator; (c) Any dispute regarding the selection of the arbitrator shall be resolved by JAMS or the entity providing the reference services; or if no entity is involved, by the court with appropriate jurisdiction; (d) The arbitrator may require one (1) or more pre-hearing conferences; (e) The parties shall be entitled to discovery as allowed by state law. The arbitrator shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge; (f) A stenographic record of the arbitration may be made, provided that the record shall remain confidential except as may be necessary for post-hearing motions and any appeals; (g) The arbitrator’s statement of decision shall contain findings of fact and conclusions of law to the extent applicable; and
(h) The arbitrator shall have the authority to rule on all post-hearing motions in the same manner as a trial judge.
The statement of decision of the arbitrator upon all of the issues considered by the arbitrator shall be binding upon the parties, and upon filing of the statement of decision with the clerk of the court, or with the judge
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Calimesa CA6-211 19
where there is no clerk, judgment may be entered thereon. The decision of the arbitrator shall be appealable as if rendered by the court. This provision shall in no way be construed to limit any valid cause of action which may be brought by any of the parties.
BY INITIALING BELOW, THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE FOREGOING AND ACCEPT THAT BY CHOOSING ARBITRATION THEY ARE GIVING UP THE RIGHT TO A JURY TRIAL.
Seller’s initials ___________ Purchaser’s initials ___________
IN ANY ACTION OR PROCEEDING ARISING HEREFROM, SELLER AND PURCHASER HEREBY
CONSENT TO (A) SUBJECT TO THE FOREGOING PROVISIONS OF THIS SECTION, THE
JURISDICTION OF ANY COMPETENT COURT IN THE STATE OF CALIFORNIA, AND (B) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY CALIFORNIA LAW. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION, TERMINATION OR CLOSING OF THIS AGREEMENT.
(SIGNATURES FOLLOW ON NEXT PAGE)
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Calimesa CA6-211 20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by persons duly empowered to bind the parties to perform their respective obligations hereunder the day and year set forth beside their respective signatures.
DATE OF EXECUTION
BY SELLER:
__________________, 202__
SELLER:
BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking
association
By:
Name: Kathleen M. Luongo
Title: Vice President
Date:
For information about how Bank of America
protects your privacy, including California
specific rights that may apply, please visit
www.bankofamerica.com/privacy.
DATE OF EXECUTION
BY PURCHASER:
__________________, 202__
PURCHASER:
CITY OF CALIMESA, CALIFORNIA, a
California municipal corporation
By: ___________________________
Name: Linda Molina
Title: Mayor
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Calimesa CA6-211 21
ACKNOWLEDGMENT AND AGREEMENT BY THE ESCROW AGENT
The undersigned joins in execution of this Agreement for the purpose of acknowledging and agreeing to the terms and provisions of this Agreement relative to the obligations of Escrow Agent hereunder, including, without limitation, the Earnest Money Escrow Agreement Terms attached to this Agreement as Exhibit B.
Escrow Agent has not, as of the date hereof, received the Earnest Money, but on receipt thereof shall (a) hold the Earnest Money in accordance with this Agreement and the Earnest Money Escrow Agreement Terms attached to this Agreement as Exhibit B, and (b) issue a notice of its receipt of the Earnest Money to Purchaser and Seller by email to the addresses noted herein.
DATE OF EXECUTION
BY ESCROW AGENT:
__________________, 202__
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By: ________________________________
Name: __________________________
Title: ___________________________
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Calimesa CA6-211 22
ACKNOWLEDGMENT AND AGREEMENT BY PURCHASER’S BROKER
The undersigned joins in execution of this Agreement for the purpose of representing and warranting to Purchaser and Seller that the undersigned (i) is a duly licensed real estate broker under the real estate licensing act(s) of the State in which the Property is located and any applicable regulations, (ii) is duly authorized to earn and receive a commission in connection with the transaction evidenced by this Agreement, and (iii) acknowledges and agrees to the terms and provisions of Section 10.2 hereof, including, without limitation, the entitlement to commission only accruing upon a final closing of the transaction. The undersigned shall indemnify and hold Purchaser and Seller harmless from any loss, liability, damage, cost or expense (including attorneys’ fees) resulting by reason of a breach of the representations and warranties made herein.
DATE OF EXECUTION
BY PURCHASER’S BROKER:
__________________, 202__
PURCHASER’S BROKER:
_______________________________________
By: ________________________________
Name: __________________________
Title: ___________________________
Email: ___________________________
Purchaser’s Initials ___________
Calimesa CA6-211 A-1
EXHIBIT A
LAND
Legal Description for the Land to be verified by title commitment and survey Being that property situated in the City of Calimesa, County of Riverside, State of California, described as follows:
Parcel 1 of Parcel Map No. 17178 in the City of Calimesa, as shown by map on file in Book 105, Pages 8 and 9 of Parcel Maps, in the Office of the County Recorder of Riverside County, California.
Address: 1055 Calimesa Blvd., Calimesa, CA 92320
Riverside County Tax Parcel No. APN 411-180-023
Purchaser’s Initials ___________
Calimesa CA6-211 B-1
EXHIBIT B
EARNEST MONEY ESCROW AGREEMENT TERMS
These Earnest Money Escrow Agreement Terms are made by and among the Seller, Purchaser, and Escrow Agent referenced in the Purchase and Sale Agreement with ATM Leaseback (the “Agreement”).
RECITALS
Seller and Purchaser have entered into the Agreement concerning Property referenced in the Agreement.
In connection with the Agreement, Seller and Purchaser have requested Escrow Agent to receive funds to be held in escrow and applied in accordance with the terms and conditions of this Escrow Agreement.
NOW THEREFORE, in consideration of the above recitals, the mutual promises set forth herein and other good and valuable consideration, the parties agree as follows:
1. ESCROW AGENT. First American Title Insurance Company hereby agrees to act as Escrow Agent in accordance with the terms and conditions hereof.
2. INITIAL DEPOSIT/ADDITIONAL DEPOSITS. Escrow Agent shall receive an initial deposit in the amount set forth in Section 3.1 of the Agreement. Any additional amounts deposited with Escrow Agent shall be added to the initial deposit and together with the initial deposit and all interest and other earnings thereon shall be referred to herein collectively as the “Escrow Fund”.
3. DEPOSITS OF FUNDS. All checks, money orders or drafts will be processed for collection in the normal course of business. Escrow Agent may initially deposit such funds in its custodial or escrow accounts which may result in the funds being commingled with escrow funds of others for a time; however, as soon as the Escrow Fund has been credited as collected funds to Escrow Agent’s account, then Escrow Agent shall immediately deposit the Escrow Fund into an interest bearing account with any reputable trust company, bank, savings bank, savings association, or other financial services entity approved by Seller and Purchaser, not to be unreasonably withheld. Deposits held by Escrow Agent shall be subject to the provisions of applicable state statutes governing unclaimed property. Seller and Purchaser will execute the appropriate Internal Revenue Service documentation for the giving of taxpayer identification information relating to this account. Seller and Purchaser do hereby certify that each is aware the Federal Deposit Insurance Corporation coverages apply to a maximum amount of $250,000.00 per depositor. Further, Seller and Purchaser understand that Escrow Agent assumes no responsibility for, nor will Seller or Purchaser hold same liable for any loss occurring which arises from a situation or event under the Federal Deposit Insurance Corporation coverages.
3.1. All interest will accrue to and be reported to the Internal Revenue Service for the account of Purchaser, at the address set forth in Section 10.1 of the Agreement, Tax Identification No: ___________.
3.2. Escrow Agent shall not be responsible for any penalties, or loss of principal or interest, or any delays in the withdrawal of the funds which may be imposed by the depository institution as a result of the making or redeeming of the investment pursuant to Seller and Purchaser instructions.
4. DISBURSEMENT OF ESCROW FUND. Escrow Agent may disburse all or any portion of the Escrow Fund in accordance with and in reliance upon written instructions from both Seller and Purchaser. The
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Calimesa CA6-211 B-2
Escrow Agent shall have no responsibility to make an investigation or determination of any facts underlying such instructions or as to whether any conditions upon which the funds are to be released have been fulfilled or not fulfilled, or to whom funds are released. If Escrow Agent receives a notice from Seller or Purchaser that the Agreement has been Terminated other than pursuant to Section 8.2 of the Agreement on account of Seller’s default, Escrow Agent shall immediately deliver all of the Escrow Fund to Seller. Escrow Agent shall release the Escrow Fund to Seller without the consent of Purchaser or notice to Purchaser.
5. DEFAULT AND/OR DISPUTES. In the event any party to the transaction underlying this Agreement shall tender any performance after the time when such performance was due, Escrow Agent may proceed under this Agreement unless one of the parties to this Agreement shall give to the Escrow Agent written direction to stop further performance of the Escrow Agent’s functions hereunder. In the event written notice of default or dispute is given to the Escrow Agent by any party, or if Escrow Agent receives contrary written instructions from any party, the Escrow Agent will promptly notify all parties of such notice. Thereafter, Escrow Agent will decline to disburse funds or to deliver any instrument or otherwise continue to perform its escrow functions, except upon receipt of a mutual written agreement of the parties or upon an appropriate order of court. In the event of a dispute, the Escrow Agent is authorized to deposit the escrow into a court of competent jurisdiction for a determination as to the proper disposition of said funds. In the event that the funds are deposited in court, the Escrow Agent shall be entitled to file a claim in the proceeding for its costs and counsel fees, if any. Notwithstanding the foregoing, if Escrow Agent receives a notice from Seller that the Agreement has been Terminated based on Purchaser’s default, in accordance with Section 8.1 of the Agreement, Escrow Agent shall immediately deliver all of the Escrow Fund to Seller without the consent of Purchaser or notice to Purchaser.
6. PERFORMANCE OF DUTIES. In performing any of its duties under this Agreement, or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may occur as a result of Escrow Agent so acting, or failing to act; provided, however, Escrow Agent shall be liable for damages arising out of its willful default or gross negligence under this Agreement. Accordingly, Escrow Agent shall not incur any such liability with respect to (i) any good faith act or omission upon advice of counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent hereunder, or (ii) any good faith act or omission in reliance upon any document, including any written notice or instructions provided for in the Agreement, not only as to its due execution and to the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by the proper person or persons and to conform with the provisions of this Agreement.
7. LIMITATIONS OF LIABILITY. Escrow Agent shall not be liable for any loss or damage resulting from the following:
7.1. The effect of the transaction underlying this Agreement including without limitation, any defect in the title to the real estate, any failure or delay in the surrender of possession of the property, the rights or obligations of any party in possession of the property, the financial status or insolvency of any other party, and/or any misrepresentation of fact made by any other party;
7.2. The default, error, act or failure to act by any other party to the escrow;
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Calimesa CA6-211 B-3
7.3. Any loss, loss of value or impairment of funds which have been deposited in escrow while those funds are in the course of collection or while those funds are on deposit in a depository institution if such loss or loss of value or impairment results from the failure, insolvency or suspension of a depository institution;
7.4. Any defects or conditions of title to any property that is the subject of this escrow provided, however, that this limitation of liability shall not affect the liability of First American Title Insurance Company under any title insurance policy which it has issued or may issue. NOTE: No title insurance liability is created by this Agreement.
7.5. Escrow Agent’s compliance with any legal process including but not limited to, subpoena, writs, orders, judgments and decrees of any court whether issued with or without jurisdiction and whether or not subsequently vacated, modified, set aside or reversed.
8. HOLD HARMLESS. Purchaser and Seller shall indemnify the Escrow Agent and hold the Escrow Agent harmless from all damage, costs, claims and expenses arising from performance of its duties as Escrow Agent including reasonable attorneys’ fees, except for those damages, costs, claims and expenses resulting from the gross negligence or willful misconduct of the Escrow Agent.
9. RELEASE OF PAYMENT. Payment of the funds so held in escrow by the Escrow Agent, in accordance with the terms, conditions and provisions of this Escrow Agreement, shall fully and completely discharge and exonerate the Escrow Agent from any and all future liability or obligations of any nature or character at law or equity to the parties hereto or under this Agreement.
10. NOTICES. Shall be sent in accordance with the within Agreement.
11. MISCELLANEOUS.
11.1. This Agreement shall be binding upon and inure to the benefit of the parties respective successors and assigns.
11.2. This Agreement shall be governed by and construed in accordance with the Laws of the State in which the Property is located.
11.3. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute but one and the same instrument.
11.4. Time shall be of the essence of this Agreement and each and every term and condition hereof.
11.5. In the event a dispute arises between Purchaser and Seller under this Agreement, the losing party shall pay the attorney’s fees and court costs of the prevailing party.
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Calimesa CA6-211 C-1
EXHIBIT C
PERMITTED EXCEPTIONS
1. Rights of parties in possession, if any.
2. Governmental rights of police power or eminent domain unless notice of the exercise of such rights appears in the public records as of the date hereof; and the consequences of any law, ordinance or governmental regulation including, but not limited to, building and zoning ordinances.
3. Defects, liens, encumbrances, adverse claims or other matters (a) not known to the Grantor and not shown by the public records but known to the Grantee as of the date hereof and not disclosed in writing by the Grantee to the Grantor prior to the date hereof; (b) resulting in no loss or damage to the Grantee; or (c) attaching or created subsequent to the date hereof.
4. Visible and apparent easements and all underground easements, the existence of which may arise by unrecorded grant or by use.
5. Any and all unrecorded leases, if any, and rights of parties therein.
6. Taxes and assessments for the year of closing and subsequent years.
7. All judgments, liens (excluding construction liens), assessments, code enforcement liens, encumbrances, declarations, mineral reservations, covenants, restrictions, reservations, easements, agreements and any other matters as shown on the public records.
8. Any state of facts which an accurate survey or inspection of the Property would reveal, including inland/tidal wetlands designation if applicable.
9. Any liens for municipal betterments assessed after the date of the within Agreement and/or orders for which assessments may be made after the date of the within Agreement.
10. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records.
11. Without limiting the foregoing, all covenants, conditions, restrictions and other matters of record recorded or filed in the applicable records of Riverside County, California, with respect to the real property conveyed hereby.
12. The ATM Lease Agreement between Purchaser, as landlord, and Seller, as tenant, to be executed at Closing.
13. All exceptions and other matters shown on that First American Title Insurance Company Title Commitment No. NCS-CA6-211-CHAR, with an effective date of May 22, 2025 at 7:30 a.m.
Purchaser’s Initials ___________
Calimesa CA6-211 D-1
EXHIBIT D
FORM OF BILL OF SALE
BILL OF SALE AND ASSIGNMENT
FOR VALUE RECEIVED, BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association (“Assignor”), hereby, as of _________ ___, 202__, sells, bargains, conveys, assigns, transfers and sets over to ________________________, a _______________________ (“Assignee”), its successors and assigns forever, all of Seller’s right, title and interest in and to the furniture, fixtures, equipment and other items of personal property, if any, owned by Seller (collectively, the “Personal Property”), all as located on or attached to the real estate and the building and improvements erected thereon located at 1055 Calimesa Boulevard, Calimesa, California (the “Property”).
TO HAVE AND TO HOLD the above-mentioned Personal Property unto Assignee, its successors and assigns forever.
Assignor covenants, represents and warrants that it has good and legal title to the Personal Property free and clear of all claims, liens, security interests, charges and encumbrances, subject to the Permitted Exceptions shown in any public records or listed in the Deed from Assignor to Assignee of even date herewith conveying the Property, and that Assignor has the right to transfer and convey such title to the Personal Property to Assignee. All terms, covenants, representations and warranties contained herein shall be for and inure to the benefit of, and shall bind, the parties hereto and their respective successors and assigns.
Assignee takes the Personal Property “AS IS” and “WITH ALL FAULTS” and acknowledges that Assignor has not made and does not make any representations or warranties as to physical condition, operation, merchantability, marketability, profitability, suitability or fitness for a particular use or purpose or any other matter.
Notwithstanding anything contained herein to the contrary, no computer servers, desktop stations, laptops, files, documents, records or other personal property which could reasonably be expected to contain customer information, proprietary information or other confidential information (collectively, the “Protected Items”) shall become the property of or shall be disposed of by Assignee. In the event any Protected Items remain on the Property after closing, Assignee agrees to notify Assignor immediately and to promptly provide access during normal business hours for Assignor to retrieve said items; it being acknowledged by both Assignee and Assignor that such items may contain sensitive, confidential and/or proprietary information which is subject to federal regulations as to ownership, possession, storage, disposal, removal or other handling. Further, Assignee agrees not to make any copies of the information contained in the Protected Items, nor display or disseminate the Protected Items or the information contained therein to any third parties. Assignee agrees that it will not contact any media outlet or other third party to publicize any Protected Items left on the Property. In addition, upon request, Assignee agrees to execute a certificate in a form prepared and provided by the Assignor, attesting under penalty of perjury to the foregoing. This provision shall survive the Closing of the sale of the Property.
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Calimesa CA6-211 D-2
The parties agree to accept a digital image of this Bill of Sale and Assignment, as executed, as a true and correct original and admissible as best evidence for the purposes of State law, Federal Rule of Evidence 1002, and the like statutes and regulations.
IN WITNESS WHEREOF and intending to be legally bound hereby, the undersigned have executed this Bill of Sale and Assignment as of the date first set forth hereinabove.
ASSIGNOR:
BANK OF AMERICA, NATIONAL ASSOCIATION, a
national banking association
By: ________________________________
Name: Kathleen M. Luongo
Title: Vice President
For information about how Bank of America protects your privacy, including California specific rights that may apply, please visit www.bankofamerica.com/privacy.
ASSIGNEE:
________________________, a _______________________
By: ________________________________
Name: __________________________
Title: ___________________________
Calimesa CAW-H16 Purchaser’s Initials _________
E-1
EXHIBIT E
FORM OF ATM LEASE AGREEMENT
ATM LEASE AGREEMENT
(Drive-Up ATM)
1055 Calimesa Blvd., Calimesa, CA 92320 [Calimesa CAW-H16] THIS ATM LEASE AGREEMENT (this “Lease”) is made and entered into on this day of , 20 (the “Effective Date”), by and between ________________________________ (“Landlord”) and BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association (“Tenant”), who agree as follows:
1. SUMMARY OF LEASE TERMS:
1.1 PREMISES: Tenant’s drive-up ATM facility consisting of an automated teller machine and network equipment room, located on that certain parcel of real property located at the address shown above (the “Property”) and as generally depicted on Exhibit “A” attached hereto, and is incorporated herein by reference, along with Tenant’s signage, lighting, equipment, canopy, bollards and other improvements constructed thereon, as well as the concrete and asphalt paving and similar improvements located between the concrete curbs demarking the drive aisles dedicated to the ATM’s (the “Premises”).
1.2 PROPERTY: as defined in Section 1.1 above.
1.3 CRITICAL AREA: That portion of the Property as marked in yellow shown as such on Exhibit “A”.
1.4 COMMON AREAS: Those portions of the Property that are generally available for use by Landlord and members of the public and not a part of the Premises (the “Common Areas”).
1.5 COMMENCEMENT DATE: The “Commencement Date” is the Effective Date of this Lease.
1.6 TERM: The “Term” of this Lease shall consist of the Initial Term and any Renewal Terms that are exercised by Tenant. The “Initial Term” shall commence on the Commencement Date and shall expire, if not sooner terminated, on the last day of the calendar month within which the fifth (5th) anniversary of the Commencement Date occurs. Tenant may extend the Term of the Lease for up to two (2) additional periods of five (5) years each (each, a “Renewal Term” or collectively, the “Renewal Terms”), which are exercisable in accordance with Section 3 below.
1.7 BANKING USE: As used in this Lease, the term “Banking Use” shall mean the operation of, or use of services for the operation of, automated teller machines or other self-service banking devices capable of accepting and operating with any and all credit, debit, and/or identification cards, or by other means, as may exist in the future through advances in technology, including, but not limited to, devices used to make and/or receive deposits, make loans to the general public, open accounts, and provide video or other remote access to representatives of Tenant, including but not limited to soPage 143 of 186 Calimesa CAW-H16 Purchaser’s Initials _________
E-2
called “ATMs with Teller Assist” and/or “Video Teller Machines” (individually and collectively, as the context may require, “ATMs”).
1.8 RENTAL: During the Term of this Lease, including any Renewal Terms exercised by Tenant, Tenant shall pay rental to Landlord in accordance with the following schedule (the “Rental”):
Period Rental
Years 1 – 5* $2,000.00 per month
Years 6 – 10** $2,200.00 per month
Years 11 – 15** $2,420.00 per month
* “Year” or “Lease Year” shall refer to twelve (12) calendar-month periods of time during the Term. The first (1st) Lease Year shall commence on the Rent Commencement Date and end on the last day of the twelfth (12th) full calendar month thereafter such that, unless the Rent Commencement Date is the first (1st) day of a calendar month, the first (1st) Lease Year shall actually be twelve (12) months plus the period of time from the Rent Commencement Date (defined in Section 1.9 below) until the end of that calendar month in which the Rent Commencement Date occurs. Thereafter, each Lease Year shall commence on the first (1st) day of the first (1st) full calendar month following the anniversary of the Rent Commencement Date and shall continue for twelve (12) months thereafter. For example, if the Rent Commencement Date is March 20, the first Lease Year shall end on March 31 of the following year, and each successive Lease Year shall commence on April 1. Rental shall be prorated for any partial month of the Term. **Denotes a Renewal Term if exercised.
1.9 RENT COMMENCEMENT DATE: The “Rent Commencement Date” shall be the Commencement Date.
2. LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord the Premises for the Term, at the Rental and upon the conditions set forth herein. Tenant and its employees, agents and invitees shall have the non-exclusive right, along with others designated from time to time by Landlord, to the free use of the Common Areas (including, but not limited to, the non-exclusive access and parking on the Property) twenty-four (24) hours per day, seven (7) days per week.
3. RENEWAL TERM. Tenant’srespective optionsto renew the Term for a Renewal Term shall be exercised, if at all, by Tenant’s giving to Landlord notice in writing of such exercise no later than thirty (30) days prior to the expiration of the then-existing Term (Initial Term or Renewal Term, as applicable) of this Lease.
4. PROHIBITED USES. Landlord represents and warrants to Tenant that the Property shall be used for purposes that are consistent with the operation of a first-class development. Without limiting the generality of the foregoing, the following uses shall not be permitted: pool or billiard hall, massage parlor (other than massage facilities employing certified therapists, e.g., Massage Envy), tattoo parlor or body piercing parlor/establishment, marijuana dispensaries, any establishment exhibiting pornographic materials or which sells drug related paraphernalia, adult entertainment, video arcade or gambling facility.
Calimesa CAW-H16 Purchaser’s Initials _________
E-3
5. REPRESENTATIONS AND WARRANTIES. Landlord represents and warrants to Tenant that, as of the date hereof and throughout the Term:
(a) Landlord has fee simple title to the Premises and Property. (b) Unrestricted access to and from a publicly dedicated road to the Premises and to utilities necessary for Tenant’s operation of the ATM shall be available through the Common Areas to the Premises during the Term.
(c) The execution, delivery and performance of this Lease will not conflict with, be inconsistent with, or result in any breach or default of any of the terms, covenants, conditions or provisions of any indenture, mortgage, deed of trust, instrument, document, lease, license, agreement or contract of any kind or nature to which Landlord is a party or by which Landlord or the Premises may be bound and Landlord has received all third party approvals required for Tenant to occupy the Premises, construct its improvements and operate the Banking Use on the Premises. (d) Landlord is not a party to any litigation which could adversely affect Tenant’s rights or entitlements under this Lease, or which would otherwise adversely affect the ability of Landlord to perform its obligations under this Lease.
(e) To the best of Landlord’s knowledge, the Property and the Premises are in full compliance with all state, federal and local laws, ordinances and regulations (including all Environmental Regulations (defined in Section 5(g)) and the provisions of the Americans with Disabilities Act and related state and local laws (collectively, the “ADA”)) (collectively “Laws”) and will remain in full compliance during the Term.
(f) As of the Commencement Date, there are no tenants or occupants located within the Property currently operating a Banking Use except for Tenant. (g) To the best of Landlord’s knowledge, the Property has not been used as a landfill or a dumpsite and there are no Hazardous Materials (defined herein) present in, on, upon or under the Property, the land, soils, groundwater or the improvements thereon, if any, in violation of Laws or posing any threat to human health,safety and the environment. “Hazardous Materials” shall mean (i) any waste, material or substance (whether in the form of a liquid, a solid, or a gas and whether or not airborne) which is deemed to be a pollutant or a contaminant, or to be hazardous, toxic, ignitable, reactive, infectious, explosive, corrosive, dangerous, harmful or injurious to public health or to the environment, and which is now or becomes regulated in the future by or under the authority of any applicable local, state or federal law, judgment, ordinance, order, rule, regulation, code or other governmental restriction or requirement, any amendment or successor thereto, replacement thereof or publication promulgated pursuant thereto (collectively, “Environmental Regulations”, and each individually, an “Environmental Regulation”); (ii) petroleum; (iii) asbestos and asbestos containing materials; (iv) any polychlorinated biphenyl or formaldehyde; and (v) any radioactive material. Landlord shall be solely responsible for the remediation and removal (and all costs associated therewith) of all Hazardous Materials at the Property (including the Premises), unless the existence of such Hazardous Materials is caused by the acts or omissions of Tenant or its agents, employees or contractors during the Term, in which event Tenant shall be solely responsible for such costs.
If at any time during the Term, Tenant encounters any Hazardous Materials or other condition which presents a potential health and/or safety concern to Tenant or Tenant’s personnel,
Calimesa CAW-H16 Purchaser’s Initials _________
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customers or invitees requiring abatement or remediation that is not the responsibility of Tenant under this Lease, Landlord shall, at its sole cost and expense, promptly undertake such abatement or remediation in accordance with all applicable Environmental Regulations, and Tenant shall be entitled to a one-day abatement of any of its obligations pursuant to this Lease, including without limitation, its obligation to pay Rental, for each day Tenant is unable to proceed with its construction or installation or operation of Tenant’s improvements or operation of the Banking Use within or upon the Premises until such time as Landlord has caused such Hazardous Materials to be so abated or remediated. This subsection shall survive the expiration or termination of this Lease.
(h) No employee (or spouse, domestic partner or dependent child of an employee) of Tenant has a controlling interest in Landlord.
6. USE.
6.1 Use Rights. The Premises may be used and occupied for the Banking Use and related uses (including for the sale of proprietary financial products). Landlord agrees that during the Term, Tenant shall have the exclusive right to the Banking Use on the Property and that Landlord shall not sell, lease nor license any portion of the Property to anyone other than Tenant for the Banking Use.
Tenant is not required to occupy the Premises or conduct any business therein, and neither the failure to occupy or operate on the Premises, nor abandonment of the Premises by Tenant, shall be a default or breach of this Lease.
6.2 Lighting and Security. Tenant shall have the right to provide security and lighting for the Premises and ATM in accordance with the requirements of applicable Law and Tenant’s applicable standards. Tenant will also comply with all other applicable Laws now or hereafter in effect regarding ATM security and lighting standards. Tenant may modify its then-existing lighting and/or security improvements for the Premises and/or provide additional security and/or lighting in connection with its ATM at any time. If required by applicable Law or deemed necessary by Tenant, in its sole discretion, to protect the health and safety of its customers, agents, employees, contractors and invitees, Tenant shall have the right, at Tenant’s sole cost and expense and subject to Landlord’s prior approval, which such approval shall not be unreasonably withheld, conditioned or delayed, to add supplemental security measures and/or lighting (the “Supplemental Security and Lighting”) in the Common Areas outside of the Premises. A copy of Tenant’s current Supplemental Security and Lighting requirements will be provided upon Landlord’s written request.
6.3 Equipment, Personal Property, Protected Items. Tenant shall, at all times during the Term, as same may be extended, have the right to erect, install, maintain and operate on, and remove from, the Premises such equipment, trade and business fixtures and other personal property as Tenant may deem necessary or appropriate for the Banking Use. Tenant’s personal property shall include all cash and securities, computer servers, software, intellectual property and other personal property that could reasonably be expected to contain customer information and that may be subject to federal regulations as to ownership, possession, storage, disposal and handling (collectively, the “Protected Items”).
6.4 Parking. Tenant, its employees, contractors, agents, customers and invitees shall have the right, at no charge, to use in common with the other tenants and occupants of the Property, those parking spaces in the closest possible proximity to the Premises, while such persons are installing, operating, using or servicing the ATM. Tenant’s armored vehicle contractors who service the ATM shall be permitted, at no charge, to park in the closest, most secure location reasonably possible in relation to the ATM.
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7. BRANDING AND SIGNS.
7.1 Branding. Tenantshall have the right to maintain, repair and replace all existing signage. In addition, Tenant shall be entitled, at Tenant’s sole cost and expense, to install on the Premises, including on the ATM, Tenant’s standard corporate branding package for a free-standing or drive-through ATM, including, without limitation, Tenant’sstandard ATM surround and standard ATM canopy and/or sunscreen. During the Term, Tenant shall have the right, at Tenant’s sole option and expense, to modify such branding, subject only to applicable Laws.
7.2 Signs. Subject only to all applicable Laws, including but not limited to local ordinances, Tenant shall have the right during the Term to install its standard corporate signage consistent with that which is installed in Tenant’s other free-standing or drive-through ATMs in the Calimesa, California market, as well as any directional signage required. Landlord shall not permit any other person or entity to place any signage or advertisements for a Banking Use within or upon any portion of the Property, including, but not limited to, the Common Areas or any outlots, during the Term; provided that nothing in this Lease shall be construed to prohibit Purchaser from including the name or any financial institution as part of a sign, public announcement, notice, or other publication relating to an event held or expressly sponsored by Purchaser.
7.3 Pylon/Monument Sign. Tenant shall have the option to place one full-width sign panel (“Tenant’s Panel”) in the second (2nd) position on all pylon/monument signs serving the Property (“Pylon/Monument Signs”), if any. Except as set forth below, Tenant’s Panel shall be installed, maintained and repaired by Landlord, at Landlord’s sole cost and expense and shall comply with all laws, including any restrictions, rules or regulations. Tenant has the right, at Tenant’s sole cost and expense, to update and modify Tenant’s Panel from time to time in accordance with Tenant’s standard corporate signage, logo, and/or image, without Landlord’s consent; provided, however that all such updating and modifications will be in accordance with all applicable Laws.
8. RENT.
8.1 Rental. Commencing on the Rent Commencement Date, Tenant shall pay the Rental stated in Section 1.8 above in lawful money of the United States. Rental shall be payable on or before the first (1st) day of each calendar month. It is understood between the parties that this Lease is intended to be a so called “gross lease” and that Tenant shall not be responsible for the payment of any additional charges related to Common Area maintenance, real estate taxes and/or insurance.
8.2 ACH Payments. Tenant shall have the right to make all payments of Rental or additional rent hereunder via ACH (Automated Clearing House) payments. Landlord agreesto cooperate with Tenant to complete all necessary forms in order to accomplish such method of payment simultaneously with the execution of this Lease or subsequently, within thirty (30) days of Tenant’s written request. Tenant shall have the right from time to time during the Term and any extensions or renewals thereof to change its method of rental payment upon not less than thirty (30) days’ prior written notice to Landlord.
8.3 Rental Payment Verification. Landlord shall complete and execute a Request for Taxpayer Identification Number and Form W-9, together with Tenant’s required vendor forms (collectively, the “Vendor Forms”) simultaneously with the execution of this Lease, which Vendor
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Forms are attached hereto and incorporated herein as Exhibit “B”. Landlord also acknowledges that the Vendor Forms are required by Tenant prior to its issuance of payments for Rental.
9. PROPERTY TAXES; UTILITIES.
9.1 Property Taxes & Personal Property Taxes. Landlord shall pay all ad valorem property taxes and other taxes assessed against the Premises and the Property. Tenant shall pay all business personal property taxes related to the improvements located within the Premises. Tenant shall pay or cause to be paid, before delinquency, any and all taxes and assessments levied and assessed against its interest in the Premises, upon all of Tenant’s leasehold improvements, equipment, furniture, fixtures, and any other personal property located in or on the Premises, or which may become a lien against the Tenant’s interest in the Premises or its property. Tenant shall co-operate with the Riverside County Assessor in providing any information necessary for the Assessor to make a property tax determination.
If for any reason Tenant’s interest in the Premises is assessed for tax purposes as part of Property, Tenant shall reimburse Landlord any increase in Landlord’s taxes attributable to the value or cost of Landlord’s interest in the Premises. Reimbursement shall be due thirty (30) days following Tenant’s receipt of a written request and reasonable evidence of the increase. Tenant agrees to pay to Landlord the applicable sales or excise tax due on the Rental payable under this Lease in those jurisdictions that impose such a tax.
9.2 Utilities. Landlord and Tenant acknowledge that electrical service to the Premises is not separately metered. Tenant agrees to pay the sum of One Hundred and NO/100 Dollars ($100.00) per month as a “Utility Reimbursement” to Landlord for electrical utilities furnished to and used by Tenant at the Premises. Notwithstanding the foregoing, Tenant and Landlord each have the right, but not the obligation, to install a separate electrical meter serving the Premises, at which time the Utility Reimbursement to Landlord shall cease. Notwithstanding anything to the contrary set forth herein, if electrical service shall be unavailable to the Premises for a period of three (3) consecutive days, due to the negligence or misconduct of Landlord, its agents, employees or contractors, then Tenant shall be entitled to an abatement of all Rental attributable to the entire period of unavailability. The amount of the Utility Reimbursement shall increase by 15% at the commencement of any Renewal Term.
10. MAINTENANCE.
10.1 Maintenance of Premises. Throughout the Term, Tenant, at its sole expense, shall maintain the Premises (excluding any Common Areas located on the Premises) in good condition, ordinary wear and tear, and damage through casualty, condemnation and/or the negligence or misconduct of Landlord excepted.
10.2 Maintenance of Common Areas. Landlord shall at all times operate and maintain the Common Areas, including all Common Areas located on the Critical Area, in accordance with standards of first-class retail properties located in the Calimesa, California area. Landlord shall ensure that the Property remains in compliance with all Laws, including the provisions of federal and state accessibility Laws, including the ADA, and Landlord is responsible for all ADA-related improvements other than those included on the Premises. Landlord’s obligation to maintain theCommon Areas includes rubbish disposal, and removal of any other weather-related sediment or debris (including, without limitation, snow and ice removal). In no event shall Landlord’s maintenance of the Common Areas adversely affect pedestrian and vehicular access to and from the Premises or the visibility of Tenant’s ATM or signs.
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10.3 Changes to Critical Area. Landlord shall not undertake any modifications to the Critical Area which will have a material adverse effect on: (a) the visibility of Tenant’s ATM; (b) vehicular and pedestrian access to and from the Premises; or (c) parking within the Critical Area.
11. ALTERATIONS AND ADDITIONS. Tenant shall have the right at any time to make any alterations, additions or improvements to the Premises, as Tenant deems reasonable or appropriate, in its sole discretion, without the prior written consent of Landlord and without the payment of any increased Rental, additional rent or other charges, provided that such alterations, additions or improvements shall be made in compliance with applicable Laws and shall not reduce the value of the Premises or impede the public use of the Common Areas without Landlord’s prior written consent.
12. ASSIGNMENT AND SUBLETTING.
12.1 By Tenant. Tenant may assign this Lease or sublet the whole or any part of the Premises, without the prior written consent of Landlord: (a) to any parent, subsidiary or affiliate of Tenant (including a partnership in which Tenant or an affiliate of Tenant is a partner); (b) in connection with an assignment of Tenant’s interest under this Lease whether by operation of law, sale of assets or as the consequence of a merger of Tenant (or Tenant’s parent entity) into or with another entity, or a dissolution of or change of control of ownership of Tenant; (c) to any financial institution which acquires Tenant; or (d) to any other financial institution. Otherwise, Tenant shall not assign or sublease this Lease to any other third party without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. So long as Tenant remains liable for performance of its obligations under this Lease, fifty percent (50%) of any subrent received by Tenant (in excess of Rental) less any reasonable brokerage, marketing, or tenant improvement allowance shall be paid to Landlord.
12.2 By Landlord. Landlord shall have the right to transfer and assign, in whole or in part, all of its rights and obligations hereunder and in the Premises, provided that Tenant shall not be liable forredirection ofRental or any additional rent paid to the transferor unless occurringmore than sixty (60) days after written notice of such transfer has been provided to Tenant. Landlord shall provide Tenant with at least thirty (30) days’ prior notice of any assignment or transfer of this Lease, which notice shall include the transferee’s name, address, tax identification number, and state and country of formation.
13. INSURANCE.
13.1 Tenant’s Insurance.
(a) Tenant shall (i) insure the Premises against loss or damage by fire and other casualties included in the so-called “Special Causes of Loss Coverage” in an amount not less than one hundred percent (100%) of the replacement value thereof, and (ii) insure against property damage and public liability arising by reason of occurrences on or about the Premises in an amount not less than Five Hundred Thousand Dollars ($500,000.00) in respect of loss or damage to property, in an amount not less than Two Million Dollars ($2,000,000.00) in respect of injury to or death of any one person, and in an amount not less than Two Million Dollars ($2,000,000.00) in respect of any one accident or disaster.
(b) It is agreed and understood that the insurance coverages maintained by Tenant provided for herein may be maintained pursuant to master policies of insurance covering other locations of Tenant or its corporate affiliates. It is further agreed and
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understood that Tenant may satisfy any of the insurance coverages provided herein by umbrella coverage. All insurance policies required to be maintained by Tenant hereunder shall name Landlord (and, if requested by Landlord, Landlord’s mortgagee) as an additional insured, as appropriate. Notwithstanding any other provision of this Lease, Tenant shall have the right to assume in whole or in part, without insurance, any and all risks otherwise required by this Lease to be insured against by Tenant.
13.2 Landlord’s Insurance. Landlord shall maintain a policy of commercial general liability insurance on the Property affording minimum protection for bodily injury, death or property damage of not less than Two Million Dollars ($2,000,000.00) in any one accident or occurrence and Two Million Dollars ($2,000,000.00) in the aggregate. Landlord shall deliver to Tenant a copy of a duly executed certificate of insurance reflecting Landlord’s coverage required under this Section 13.2. Said insurance shall be issued and binding on a reputable insurance company selected by Landlord and qualified and licensed to do business in California and having a current Best’s Rating of A or better. Landlord’s insurance shall be commercially reasonable with the coverage (including the premiums and the deductible) being similar to the insurance coverage carried by other prudent owners of retail properties of approximately the same size and character in Calimesa, California. Notwithstanding any other provision of this Lease, Landlord shall have the right to assume in whole or in part, without insurance, any and all risks otherwise required by this Lease to be insured against by Landlord.
13.3 Waiver of Recovery. Anything in this Lease to the contrary notwithstanding, Landlord and Tenant each hereby waives any claim it (“Injured Party”) may now or hereafter have (and to the extent permitted by applicable law, any claim any of its insurers may now or hereafter have based on subrogation or an assignment from its insured) against the other or the other’s directors, shareholders, officers, employees or agents (each a “Released Party”), for loss of or damage to any of Injured Party’s property located in or constituting a part or all of the Premises or the Property, now or hereafter occurring, EVEN
IF THE LOSS OR DAMAGE IS CAUSED BY THE NEGLIGENCE OF ANY RELEASED PARTY, OR IF ANY RELEASED PARTY IS STRICTLY LIABLE FOR THE LOSS OR DAMAGE, if the loss or damage is covered by insurance, or ifthe loss or damage could have been covered by the terms of customary all-risk replacement cost property insurance in the state where the Property is located, in each case without regard to the amount of deductible or the amount of proceeds, if any, and whether or not either or both of Landlord and Tenant have any property insurance.
14. INDEMNIFICATION.
14.1 BY TENANT. TENANT AGREES TO INDEMNIFY, DEFEND AND HOLD
HARMLESS LANDLORD FROM AND AGAINST ANY AND ALL LIABILITY, EXPENSE, OR
DAMAGE RESULTING FROM A CLAIM OF PERSONAL INJURY, DEATH OR PROPERTY
DAMAGE, TO THE EXTENT CAUSED BY (A) THE NEGLIGENCE, WILLFUL MISCONDUCT OF TENANT OR TENANT’S EMPLOYEES, AGENTS OR CONTRACTORS; AND/OR (B) TENANT’S BREACH OF ANY REPRESENTATION, COVENANT AND/OR WARRANTY MADE ELSEWHERE IN THIS LEASE.; PROVIDED, HOWEVER, IN NO EVENT SHALL TENANT BE
LIABLE FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE AND/OR LOSS OR DIMINUTION OF VALUE.
14.2 BY LANDLORD. LANDLORD AGREES TO INDEMNIFY, DEFEND AND
HOLD HARMLESS TENANT FROM AND AGAINST ANY AND ALL LIABILITY, EXPENSE, OR
DAMAGE RESULTING FROM A CLAIM OF PERSONAL INJURY, DEATH OR PROPERTY
DAMAGE, TO THE EXTENT CAUSED BY (A) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR LANDLORD’S EMPLOYEES, AGENTS OR CONTRACTORS; AND/OR (B) LANDLORD’S BREACH OF ANY REPRESENTATION, COVENANT AND/OR WARRANTY
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MADE ELSEWHERE IN THIS LEASE; PROVIDED, HOWEVER, IN NO EVENT SHALL
LANDLORD BE LIABLE FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE AND/OR LOSS OR DIMINUTION OF VALUE.
14.3 HAZARDOUS MATERIALS INDEMNITY. LANDLORD HEREBY
AGREES AND SHALL INDEMNIFY, DEFEND AND HOLD TENANT AND ITS AGENTS,
EMPLOYEES, CONTRACTORS, CUSTOMERS AND INVITEES HARMLESS FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, LIABILITIES, PENALTIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AT ALL
TRIAL AND APPELLATE LEVELS, WHETHER OR NOT SUIT IS BROUGHT) ARISING
DIRECTLY OR INDIRECTLY FROM OR OUT OF, OR IN ANY WAY CONNECTED WITH THE
PRESENCE, LEAKAGE, ESCAPE, EMANATION, MIGRATION OR RELEASE OF ANY
HAZARDOUS MATERIALS ON, UNDER, ABOVE OR ABOUT THE PREMISES THAT WERE
NOT CAUSED BY THE ACTS OR OMISSIONS OF TENANT OR ITS AGENTS, EMPLOYEES OR CONTRACTORS DURING THE TERM. TENANT HEREBY AGREES AND SHALL INDEMNIFY,
DEFEND AND HOLD LANDLORD AND ITS AGENTS AND EMPLOYEES HARMLESS FROM
AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, LIABILITIES, PENALTIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AT ALL
TRIAL AND APPELLATE LEVELS, WHETHER OR NOT SUIT IS BROUGHT) ARISING
DIRECTLY OR INDIRECTLY FROM OR OUT OF, OR IN ANY WAY CONNECTED WITH THE
PRESENCE, LEAKAGE, ESCAPE, EMANATION, MIGRATION OR RELEASE OF ANY
HAZARDOUS MATERIALS ON, UNDER, ABOVE OR ABOUT THE PREMISES THAT WERE
DIRECTLY CAUSED BY THE ACTS OR OMISSIONS OF TENANT OR ITS AGENTS, EMPLOYEES OR CONTRACTORS DURING THE TERM. THIS SECTION 14 SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.
15. CONDEMNATION AND CASUALTY.
15.1 Condemnation. If (i) the Premises or any part thereof shall be taken for any public or quasi-public use under any statute or by right of eminent domain or by any private purchase by any public authority in lieu thereof, (ii) reasonable access to the ATM is materially and adversely impaired in connection with the foregoing, or (iii) parking at the Property is reduced below the minimum required by Law, then in any such event, at Tenant’s option, this Lease shall cease and expire on the date on which possession shall be taken of any part thereof, all Rental and other charges shall be prorated and paid to such date, neither party shall have any further rights or obligations unless specifically stated otherwise herein and this Lease shall be of no further force and effect. Landlord shall be entitled to any award or payment that is payable in connection with the Premises, except that Tenant shall be entitled to that portion of the award representing payment for improvements constructed on the Premises by Tenant, trade fixtures, moving expenses, business interruption or loss of profits. Landlord and Tenant agree that this Lease shall control the rights of Landlord and Tenant with respect to any such award, and any contrary provision of any present or future law is hereby waived to the extent permitted by Law.
15.2 Casualty. If the Property (excepting the Premises) is damaged by fire or other casualty, Landlord may, at its option, repair any resultant damage. If Landlord elects to repair any such damage, Landlord shall promptly repair the same at Landlord’s sole expense. If the Premises is damaged by fire or other casualty, Tenant may, at its option,repair the damage at its expense, provided that Landlord shall be responsible for restoring any Common Areas on the Premises, and the utilities serving the Premises, to the point of connection on the Premises, if and to the extent damaged in the casualty.
15.3 Rental Abatement. Rental shall abate during any period of time during which
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Tenant is unable to use the Premises for the Banking Use due to any of the events described in this Section
15. 16. DEFAULTS; REMEDIES.
16.1 Defaults by Tenant. It shall be a default hereunder if Tenant shall continue in default in the payment of any Rental or other sum of money becoming due hereunder for a period of thirty (30) days after receipt by Tenant of written notice of such default, or if Tenant shall default in the performance of any other of the terms, conditions or covenants contained in this Lease to be observed or performed by it and does not remedy such default within thirty (30) days after receipt of written notice thereof or does not, within such thirty (30) days, commence to remedy the default and thereafter diligently pursue such remedy.
16.2 Remedies. In the event of any default or breach by Tenant as described above, Landlord shall have, as its sole and exclusive remedy, the right to terminate this Lease. Landlord shall use commercially reasonable effortsto mitigate damages hereunder. In no event shall Tenant be liable for consequential, indirect or punitive damages, including, but not limited to, lost profits, loss of use and/or loss or diminution of value.
16.3 Default By Landlord; Remedy. In addition to all other legal and equitable remedies of Tenant in connection with a Landlord default, if Landlord fails to maintain the Property and Common Areas as provided for herein, Tenantshall be entitled to terminate this Lease upon written notice to Landlord. Notwithstanding the foregoing and without waiving the right to terminate hereunder, if Landlord fails to maintain the Property and Common Areas as provided for herein and does not cure such failure within thirty (30) days of receipt of written notice thereof, Tenant shall have the right, but not the obligation, at Landlord’s sole cost and expense, to cure such default, including the payment of monies directly to the party to whom the obligation is owed. Notwithstanding anything to the contrary set forth herein, or elsewhere in this Lease, in the event that any such default results in an emergency or hazardous situation and/or a situation which threatens or potentially threatens the health or safety of Tenant or its employees, contractors, agents, customers or invitees, and Landlord fails to cure such default immediately upon written or oral notice thereof, whichever is practicable (provided, however, that in the event of oral notice, Tenant shall give Landlord written notice thereof as soon thereafter as practicable), Tenant shall have the right, but not the obligation, to cure such default at Landlord’s sole cost and expense. In the event of any payment of monies by Tenant in connection with the foregoing, Tenant shall receive a credit toward any Rental due to Landlord to the extent of any payment made or, at Tenant’s option, by reimbursement thereof within ten (10) days’ of Tenant’s written demand therefor. Tenant shall be entitled to a fair and reasonable abatement of Rental during the time and to the extent that the Premises are untenantable as a result of Landlord’s failure to perform any condition or covenant required by this Lease to be performed by Landlord.
17. SUBORDINATION; NON-DISTURBANCE. This Lease will be subject and subordinate to the lien of all current or futuremortgages and deeds of trustsecuring any amount or amounts whatsoever which are or may hereafter be placed on or against all or any portion of the Property, or on or against all or any portion of Landlord’s interest or estate therein (each a “Mortgage”), only if, when and after Landlord, Tenant and the secured party execute and deliver to Tenant in recordable form a Subordination, Non-disturbance and Attornment Agreement in a mutually agreed upon form (each, an “SNDA”). Upon request by Tenant, Landlord shall obtain and deliver to Tenant an SNDA from each holder of a Mortgage (“Existing Mortgagee”) encumbering the Property and/or Premises within thirty
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(30) days following Tenant’s request. In the event of a foreclosure of any Mortgage or any other action or proceeding for the enforcement thereof, or of any sale thereunder, this Lease will not be terminated or extinguished, nor will the rights and possession of Tenant hereunder be disturbed. Tenant will attorn to the person who acquires Landlord’s interest hereunder through any such Mortgage. There shall be no charge to Tenant for any SNDA provided in accordance with this paragraph.
18. WAIVER OF LANDLORD’S LIENS. Landlord hereby waives any lien it has against Tenant, the ATM, Protected Items and any other personal property of Tenant in, on or around the Premises, except that such waiver shall not apply to any judgment lien that may hereafter arise in favor of Landlord. Notwithstanding the foregoing, in no event whatsoever shall Landlord have or be entitled to obtain a lien, security interest or other encumbrance of any kind or nature whatsoever on Tenant’s ATM units and/or the Protected Items.
19. SURRENDER OF PREMISES. Tenant shall at all times be considered the owner and original user of the ATM and all other Tenant improvements, as well as of any equipment and personal property, including Protected Items. Upon the expiration or any earlier termination of this Lease, Tenant shall within ninety (90) days after the expiration of this Lease, remove from the Premises, the ATM, and all equipment and other personal property including Protected Items installed in, on or about the Premises, provided that any damage caused to the Premises by virtue of such removal shall be repaired at the sole cost and expense of Tenant. Tenant may elect to surrender all other improvements with the Premises. In no event shall Tenant be responsible for the removal of any concrete pad upon which the ATM was erected.
20. HOLDOVER. If Tenant remains in possession of the Premises after the expiration of the Term, such possession by Tenant shall be deemed to be a month-to-month tenancy, terminable on thirty (30) days’ notice given at any time by either party and Tenant shall pay monthly an amount not to exceed one hundred twenty-five percent (125%) of the Rental paid by Tenant during the last month of the Term. In no event shall Tenant be liable for any consequential and/or indirect damages suffered by Landlord by reason of Tenant’s holdover. All other provisions of this Lease, except those pertaining to the Term, shall apply to this month-to-month holdover tenancy.
21. TIME OF ESSENCE. Time is of the essence with respect to each and every provision of this Lease. In the event the time of performance of any matter to be performed by Landlord or Tenant falls on a Saturday, Sunday, or a legal holiday under the laws of the United States or the State of California the time of performance for such matter shall be extended until the next following business day that is not a Saturday, Sunday, or legal holiday. Unless expressly stated to the contrary, any time for performance between the parties hereto with respect to the transaction contemplated by this Lease shall be governed according to Eastern Time Zone.
22. INTERPRETATION OF LEASE; VENUE. This Lease shall be construed and interpreted in accordance with the laws and decisions of the State of California. Venue for any action regarding this Lease shall be in Calimesa, California.
23. BINDING EFFECT. This Lease shall be binding upon the parties hereto and their respective successors, assigns and transferees, where applicable.
24. INTEGRATION. This Lease and the documents specifically referred to herein, upon acceptance by the parties hereto, shall constitute the sole and only agreement between Landlord and Tenant as to the subject matter hereof and are intended by each to constitute the final written memorandum of all of their agreements and understandings with respect to this transaction. No representations or warranties, express or implied, and no promises or prior agreements whatsoever have
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been made, agreed to or entered into by Landlord or Tenant which are not expressly set forth herein; and if Landlord or Tenant has attempted to make such representations, warranties, promises or prior agreements, the same are each superseded hereby and waived.
25. ATTORNEYS’ FEES. If any legal action or other proceeding is brought for the enforcement of this Lease, or because of an alleged dispute, breach or default of this Lease, or to interpret this Lease or any of the provisions hereof, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding whether or not the action or proceeding goes to final judgment, in addition to any other relief to which the successful or prevailing party may be entitled.
26. COUNTERPARTS. This Lease may be executed in any number of counterparts with the same force and effect as if all signatures were appended to one document, each of which shall be deemed an original.
27. INVALIDITY. If any term or provision of this Lease or application thereof is held invalid or unenforceable as to any party, the balance of this Lease shall not be affected thereby, and each remaining term and provision of this Lease shall be valid and shall be enforced to the fullest extent permitted by law.
28. NOTICE. Except as otherwise provided in this Lease, all notices and demands given by either party to the other hereunder shall be in writing and shall be hand delivered, or sent by (a) certified U.S. Mail, return receipt requested, (b) nationally recognized overnight courier for next business day delivery, or (c) electronic mail to the electronic mail address shown on the signature page, which notification by electronic mail shall be accompanied by notice sent in accordance with one of the other foregoing methods on the day the electronic mail is sent, or on the following business day. Notices and demands shall be deemed delivered when received or when delivery is first refused, whichever shall first occur, except that for notices sent via electronic mail, a message received indicating that delivery was unsuccessful or that the recipient is out of office shall not be deemed to be receipt.
29. NON-WAIVER. Any waiver or breach of the covenants herein contained to be kept and performed by either party hereto shall not be deemed or considered as a continuing waiver and shall not operate to bar or prevent the other party hereto from declaring a forfeiture, termination or cancellation for any succeeding breach, either of the same condition or covenant or otherwise.
30. CONSTRUCTION. The agreements contained herein shall not be construed in favor of or against either party, but shall be construed as if all parties prepared this Lease. Masculine and neuter genders, the singular number and the present tense shall be deemed to include the feminine gender, plural number and past and future tenses, respectively, where the context so requires. The section headings herein are used only for the purposes of convenience and shall not be deemed to limit the subject of the sections hereof.
31. DIGITAL IMAGING. The parties agree to accept a digital image of this Lease, as executed, as a true and correct original and admissible as best evidence for the purposes of state law, Federal Rule of Evidence 1002, and the like statutes and regulations.
32. QUIET ENJOYMENT. Upon paying the Rental and observing and performing all of the covenants, conditions and provisions on Tenant’s part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the Term.
33. COMMISSION. Landlord represents and warrants to Tenant, and Tenant represents and
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warrants to Landlord that, except as provided for herein, neither party has incurred any liability, contingent or otherwise, for brokerage or finder’s fee or agent’s commissions or other like payments in connection with this Lease, or the transactions contemplated hereby. EACH PARTY HEREBY
AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY THE OTHER FROM ANY
CLAIMS, DEMANDS, CAUSES OF ACTION OR DAMAGES RESULTING FROM A BREACH OF SUCH REPRESENTATION AND WARRANTY.
34. FORCE MAJEURE. The parties shall not be liable for any delay in performance or failure to perform any term or condition of this Lease caused by (a) fire, (b) explosion, (c) accident, (d) flood, (e) strike, (f) any regulation, rule or act of governmental agency precluding performance, (g) any act of God, (h) armed conflict, (i) civil commotion, (j) any failure by any network group or financial institution which has an agreement with Tenant to provide any of its ATM services, (k) any failure beyond either party’s control by any utility services (e.g. electrical, telecommunications), or (l) any failure on the part of the ATM supplier to timely deliver and install the ATM, and all Rental payments shall abate during the period of any such events.
35. AUTHORITY. Tenant and Landlord each warrant and represent to the other that each person signing this Lease on such party’s behalf has authority to do so and to bind such party to the terms, covenants and conditions herein. Each shall deliver to the other promptly upon request all documents reasonably requested by the other evidencing such authority. If applicable, each of the entities comprising the “Landlord” hereunder shall be jointly and severally liable under this Lease, and the term “Landlord” shall include each as well as all of them.
36. DISPUTE RESOLUTION. Seller and Purchaser agree that any action or proceeding by either of them against the other arising out of or in connection with this Agreement shall, upon the motion of either party, be submitted to arbitration. The parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the arbitration. The arbitrator shall have the authority to try all issues, whether of fact or law, and to report a statement of decision to the court. To the extent not inconsistent with State law, Seller and Purchaser shall use the procedures for arbitration and judicial reference, if any, adopted by Judicial Arbitration and Mediation Services/Endispute (“JAMS”), as relevant, to supplement any applicable State statutes, provided that the following rules and procedures shall apply in all cases unless the parties agree otherwise:
(a) The proceedings shall be heard in the City of San Diego, California. (b) Unless the parties agree otherwise, JAMS shall provide a list of three reputable arbitrators experienced in arbitrating commercial disputes to the parties who may each strike one from the list, and the parties shall consent to appointment of the remaining person as the arbitrator. If JAMS is no longer in existence or unwilling to arbitrate the matter, then the American Arbitration Association shall provide said list. If neither is willing or able to arbitrate the matter, then the trial court shall appoint the arbitrator;
(c) Any dispute regarding the selection of the arbitrator shall be resolved by JAMS or the entity providing the reference services; or if no entity is involved, by the court with appropriate jurisdiction;
(d) The arbitrator may require one or more pre-hearing conferences; (e) The parties shall be entitled to discovery as allowed by state law. The arbitrator shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge;
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(f) A stenographic record of the arbitration may be made, provided that the record shall remain confidential except as may be necessary for post-hearing motions and any appeals; (g)The arbitrator’s statement of decision shall contain findings of fact and conclusions of law to the extent applicable; and
(h) The arbitrator shall have the authority to rule on all post-hearing motions in the same manner as a trial judge.
The statement of decision of the arbitrator upon all of the issues considered by the arbitrator shall be binding upon the parties, and upon filing of the statement of decision with the clerk of the court, or with the judge where there is no clerk, judgment may be entered thereon. The decision of the arbitrator shall be appealable as if rendered by the court. This provision shall in no way be construed to limit any valid cause of action which may be brought by any of the parties.
BY INITIALING BELOW, THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE FOREGOING AND ACCEPT THAT BY CHOOSING ARBITRATION THEY ARE GIVING UP THE RIGHT TO A JURY TRIAL.
Seller’s initials ___________ Purchaser’s initials ___________
IN ANY ACTION OR PROCEEDING ARISING HEREFROM, SELLER AND PURCHASER HEREBY
CONSENT TO (I) SUBJECT TO THE FOREGOING PROVISIONS OF THIS SECTION, THE
JURISDICTION OF ANY COMPETENT COURT IN THE STATE OF CALIFORNIA AND (II) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY CALIFORNIA LAW. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION, TERMINATION OR CLOSING OF THIS AGREEMENT.
37. SUCCESSOR AND ASSIGNS. All covenants and obligations contained herein shall bind, extend and inure to the benefit of the successors and permitted assigns of each of Landlord and Tenant, and shall inure to the benefit of Landlord’s mortgagee and its successors and assigns.
38. CANCELLATION OPTIONS. The parties shall have the option to terminate this Lease in accordance with the following terms:
38.1 Termination Option. Tenant shall have the ongoing right, at its option, to elect to terminate this Lease for any reason or for no reason at all by delivering to Landlord not less than ninety (90) days’ prior written notice thereof specifying the date upon which Tenant is terminating this Lease.
38.2 Transaction Termination. Intentionally Deleted.
38.3 Store Closure Termination Option. Intentionally Deleted.
38.4 Plans; Permits; Approvals. Intentionally Deleted.
38.5 Subsequent Covenants. Tenant shall have the right to terminate this Lease upon thirty (30) days’ prior written notice to Landlord if any Subsequent Covenants prevent or materially interfere with the development or operation of the Premises for the Banking Use or the access to the ATM.
38.6 Conditions Precedent. In the event that: (a) any of the representations of
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Landlord in Section 5 prove to be materially inaccurate; or (b) Landlord declines to remediate an environmental condition as provided for in Section 5(g), Tenant may terminate this Lease following, as applicable (x) the expiration of the noted time periods, (y) within thirty (30) days following the day that Tenant has actual knowledge that any of Landlord’s representations are materially inaccurate, or (z) receipt of written notice that Landlord will not remediate an environmental condition, by delivering to Landlord written notice thereof.
38.7 Casualty. Tenant may terminate this Lease by written notice to Landlord if following a casualty event (a) Tenant is not able to obtain permits to restore the Premises without payment of excessive fees or costs or the satisfaction of unusual conditions, (b) Tenant is prevented from restoring the Premises by events or conditions beyond its reasonable control, or (c) the Property is damaged to an extent that Tenant’s use of the Premises is materially and adversely affected and (w) Landlord elects not to repair such damage within thirty (30) days from the date of such casualty and Tenant receives notice thereof within such period of time, (x) Landlord elects to repair such damage, but it is reasonably anticipated that such damage shall take more than one hundred eighty (180) days to repair, or (y) Landlord elects to repair such damage and such repairs take more than one hundred eighty (180) days to complete, or (d) upon a total destruction of the Property.
38.8 Subordination, Non-Disturbance and Attornment Agreement. Tenant may terminate this Lease by written notice to Landlord if Landlord fails to deliver an SNDA from an Existing Mortgagee (if applicable) within thirty (30) days following a request from Tenant to provide such SNDA.
38.9 Effect of Termination. Any notice of termination under this Section 38 may be delivered on behalf of Tenant by its attorneys. As of any termination date identified in this Section 38 (each, a “Termination Date”), this Lease and the obligations of the parties hereunder shall terminate and this Lease shall be null and void, excepting those obligations which expressly survive the expiration or any earlier termination hereof, provided each party shall pay to the other all sums and charges due and owing through and including the Termination Date, and in connection with a termination under Section
38.1 the terms and provisions of Section 19 relating to Tenant’s obligation to restore the land or the Premises shall apply. In the event of termination under Sections 38.5, 38.6, 38.7, 38.8 or if this Lease is terminated following a Landlord default hereunder, Tenantshall have no obligation to restore the Property or Premises and Landlord shall within thirty (30) days following the Termination Date, reimburse Tenant for its costs associated with any plans and permits for the Premises and ATM and all related construction and installation expenses. Any sum due and owing by a party hereunder which cannot be determined as of the Termination Date shall be paid within thirty (30) days after receipt of a final statement therefor.
The foregoing obligation shall survive termination of this Lease.
39. CONFIDENTIALITY. To the extent permitted by law, Landlord and Tenant and their respective personnel, agents and representatives shall keep in strict confidence all information furnished hereunder concerning their respective businesses (the “Confidential Information”). Notwithstanding any other terms of this Lease, nothing shall prohibit Tenant from disclosing any of the Confidential Information to any governmental agency, regulatory authority or self-regulatory authority claiming to have authority to regulate or oversee any aspect of its business, including, without limitation, bank and securities examiners. Tenant expressly acknowledges that Landlord is a public agency subject to the requirements of the California Public Records Act, the Ralph M. Brown Act, and similar governmental transparency laws, and Tenant therefore expressly agrees that nothing in this Agreement or any other agreement between Seller and Purchaser shall be construed as limiting or inhibiting Purchaser’s ability to comply with such laws.
40. TRANSFER DECLARATIONS. If applicable, the parties hereto agree that they will execute, acknowledge, and deliver any required transfer declarations so the same may be timely filed
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and/or recorded in the applicable governmental office. Recording charges, if any, shall be paid by Tenant.
41. RECORDING SHORT FORM OF LEASE. This Lease shall not be recorded but the parties hereto agree that if Tenant and Landlord elect to record a short form of lease, they will execute, acknowledge, and deliver a short form of lease to the end that the same may be recorded in the official records to the County Clerk for the County in which the Premises is located, in the form similar to that attached hereto as Exhibit “C” and incorporated herein by reference. Recording charges shall be paid by recording party.
42. ECONOMIC SANCTIONS COMPLIANCE; OFAC.
(a) Landlord represents that neither Landlord, nor any of its subsidiaries, nor, to the knowledge of Landlord, any director, officer, employee, agent, affiliate or representative of Landlord (nor any third-party to whom Landlord directs Tenant to make any payments required by the Lease), is an individual or entity (“Person”) currently the subject of any sanctions administered or enforced by the United States Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or other relevant sanctions authority (collectively, “Sanctions”), nor is Landlord located, organized, or resident in a country or territory that is the subject of Sanctions; and Landlord represents and covenants that it has not knowingly engaged in, is not now knowingly engaged in, and shall not knowingly engage in any dealings or transactions with any Person, or in any country or territory, that is the subject of Sanctions, unless allowable under applicable law, rule or regulations. Landlord shall endeavor to provide Tenant with written notice prior to any assignment or transfer of the Lease by Landlord, which notice shall include the transferee’s name, address, tax identification number, and state and country of formation.
(b) Likewise, Tenant represents that neither Tenant nor any of its subsidiaries nor, to the knowledge of Tenant, any director, officer, employee, agent, affiliate or representative of Tenant is a Person currently the subject of any sanctions administered or enforced by OFAC, or other relevant sanctions authority, nor is Tenant located, organized, or resident in a country or territory that is the subject of Sanctions. Tenant represents and covenants that it has not knowingly engaged in, is not now knowingly engaged in, and shall not knowingly engage in any dealings or transactions with any Person, or in any country or territory, that is the subject of Sanctions, unless allowable under applicable law, rule or regulations. (c) The parties hereby agree to indemnify, defend, and hold one another harmless from and against any and all claims, losses, and damages (including attorneys’ fees and costs) arising from or related to any breach of the foregoing representations. [SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, this Lease has been executed by the parties hereto as of the later of the dates accompanying a signature by Landlord and Tenant below. [LANDLORD’S SIGNATURE PAGE]
______________________________________, a
__________________________________
By:
Name:
Title:
Date of Landlord’s Signature: , 20__
Contact information for Notices:
Attn:
Telephone:
Email:
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[TENANT’S SIGNATURE PAGE]
BANK OF AMERICA, NATIONAL ASSOCIATION, a
national banking association
By:
Name:
Title:
Date of Tenant’s Signature: , 20__
For information about how Bank of America protects
your privacy, including California specific rights that may apply, please visit
www.bankofamerica.com/privacy.
Contact information for Notices:
Via email to: [email protected] using the Subject: Property ID (CAW-H16) With a hard copy to: Bank of America, National Association 100 N. Tryon Street
Mail Code NC1-007-25-50
Charlotte, North Carolina 28255
Property ID: (CAW-H16)
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EXHIBIT “A” TO FORM ATM LEASE
DEPICTION OF PREMISES & CRITICAL AREA
* Premises highlighted in blue.
* Critical Area highlighted in yellow.
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EXHIBIT “A” TO FORM ATM LEASE CONTINUED
DEPICTION OF PREMISES CONTINUED
Calimesa CAW
-H16 Purchaser’s Initials _________ E-21
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-H16 Purchaser’s Initials _________ E-22
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EXHIBIT “B” TO FORM ATM LEASE
TENANT’S VENDOR FORMS
Instructions for Completing the Attached Vendor Forms
In order to receive payments under your Lease with Bank of America, the attached forms* must be completed and returned [email protected]
1. To receive payment via paper Check, the following forms must be submitted:
a. W-9
b. JLL – Remittance Form
2. To receive payment via ACH, the following forms must be submitted:
a. W-9
b. JLL – Remittance Form
c. JLL – ACH Form
If you have any questions or concerns regarding the attached forms and/or future payments, please contact: [email protected]
For questions regarding the ACH set up and payments, please contact:
[email protected]
PLEASE NOTE: Payments cannot be issued until all required forms are received. *All required form must be fully completed in order to be processed.
Calimesa CAW
-H16 Purchaser’s Initials _________ E-24
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-H16 Purchaser’s Initials _________ E-25
Calimesa CAW
-H16 Purchaser’s Initials _________ E-26
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EXHIBIT “C” TO FORM ATM LEASE
FORM OF MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into as of ____________________, 20___ by and between_____________________________________, a ______________________________________________, having an address of __________________________________________ (“Landlord”), and BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association having an address of 100 N. Tryon Street, Mail Code: NC1-007-25-50, Charlotte, North Carolina, 28255 (“Tenant”).
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a certain ATM Lease Agreement dated ____________, 20___ (the “Lease”) whereby Landlord did demise and lease to Tenant, and Tenant did lease from Landlord the Premises (as defined in the Lease) located at 1055 Calimesa Blvd., Calimesa, CA 92320 (the “Land”) and described on Exhibit “A”; and
WHEREAS, Landlord and Tenant desire to enter into and record this Memorandum of Lease in order that third parties may have notice of Tenant’s interest and rights under the Lease, of the leasehold estate of Tenant, and of the Lease.
NOW, THEREFORE, Landlord, in consideration of the rents and covenants provided for in the Lease to be paid and performed by Tenant, has leased unto Tenant, and Tenant has leased from Landlord, the Premises in accordance with the terms and provisions of the Lease.
Specific reference is hereby made to the following provisions of the Lease:
1. Recitals Incorporated; Definitions. The recitals set forth above are incorporated into this Memorandum of Lease and shall be deemed terms and provisions hereof, the same as if fully set forth in this Paragraph 1. Capitalized terms used herein without meaning shall have the meaning ascribed to such terms in the Lease.
2. Term. Tenant shall have and hold the Premises for a Term of five (5) years, which shall commence on the Commencement Date and expire on the date that is the last day of the calendar month in which the Commencement Date occurs, all as more particularly described in the Lease.
3. Renewal Terms. Tenant may extend the Term of the ATM Lease for up to two (2) additional periods of five (5) years each.
4. Exclusive. Tenant shall have the exclusive right to the Banking Use on the Land. Landlord shall not sell, lease nor license any portion of the Land to any purchaser, tenant or licensee for the Banking Use, other than Tenant. All or any one or more of the following are referred to as the “Banking Use”:
receiving deposits or making loans to the general public, engaging in the sale of insurance or securities, providing trust services or engaging in stock or mortgage brokerage, whether done by a state bank, national bank, savings and loan association, credit union or other entity, whether by walk-in or drive-up teller facility, ATM or otherwise. Landlord shall not permit any tenant, licensee or purchaser of all or any portion of the Land to place any signage or advertisements for a Banking Use within or upon the Land, during the Term.
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5. Additional Provisions. All terms, conditions, provisions and covenants of the Lease are incorporated in this Memorandum of Lease by reference as though fully set forth herein, and the Lease and this Memorandum of Lease shall be deemed to constitute a single instrument or document. This Memorandum of Lease has been entered into by Landlord and Tenant for purposes of recordation in the appropriate real estate records Calimesa, California to provide notice to third parties of the Lease and nothing contained herein shall be deemed or construed to amend, modify, change, alter, amplify, interpret or supersede any of the terms and provisions of the Lease. In the event of a conflict between the terms of the Lease and the terms of this Memorandum of Lease, the terms of the Lease shall control.
6. Counterparts. This instrument may be executed in one or more counterparts which, when taken together, shall constitute one and the same instrument. [signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the date first above written.
LANDLORD:
______________________________________________, a
________________________________________________
By:
Name:
Its:
TENANT:
BANK OF AMERICA, NATIONAL ASSOCIATION,
a national banking association
By:
Name:
Its:
STATE OF )
) ss.
COUNTY OF )
On this _________ day of ___________________, 20__, before me, the undersigned, a Notary Public in and for the State of ___________________, duly commissioned and sworn, personally appeared __________________________________, to me known as, or providing satisfactory evidence that he/she is the ____________________________ of _____________________________________, a _____________________________________, the party that executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said party for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year this certificate is above written.
NOTARY PUBLIC, in and for the State of
______________, residing at
Commission expires:
Print Name:
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STATE OF )
) ss.
COUNTY OF )
On this _________ day of ___________________, 20__, before me, the undersigned, a Notary Public in and for the State of ___________________, duly commissioned and sworn, personally appeared __________________________________, to me known as, or providing satisfactory evidence that he/she is the Vice President of BANK OF AMERICA, NATIONAL ASSOCIATION, a national association, the party that executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said party for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year this certificate is above written.
NOTARY PUBLIC, in and for the State of
______________, residing at
Commission expires:
Print Name:
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EXHIBIT A TO MEMORANDUM OF LEASE
[To be attached prior to recording]
1055 CALIMESA BLVD | CALIMESA, CA
F O R S A L E | ±8,065 SF Former Bank
Attachment 10C
• The subject property is a single-story, freestanding building located at the signalized intersection of Calimesa Boulevard and Avenue L in Calimesa, CA, County of Riverside. This former 1-story bank branch building is ±8,065 square feet and sits on a ±52,159 square foot parcel with ample parking (±50 stalls). Per the City of Calimesa, this property is zoned as DVC, Downtown Village Commercial.
• ATM Sale Leaseback Requirement: Seller has a requirement to maintain the existing drive-thru ATM locations and will lease back from Buyer.
PROPERTY DESCRIPTION
DUE DILIGENCE
Due diligence can be found at:
www.BankingCentersForSale.com
SITE DETAILS Parcel Size ±52,159 SF (±1.197 AC)
Address 1055 Calimesa Blvd.
Calimesa, CA 92320
Building Size ±8,065 SF
Floors 1-Story
Year Built 1983
APN 411-180-023
Zoning DVC (Downtown Village Commercial)
Parking 48 Standard / 2 Handicap Spaces
Source: ESRI 2024 & CoStar
SUMMARY
3 MILE 5 MILES 7 MILES
Population 53,847 90,852 147,540
AHH Income $104,416 $122,534 $126,614
Daytime Population 9,172 14,520 23,051
DEMOGRAPHICS | 2024
1055 CALIMESA BLVD | EL CAJON, CA
BID DUE DATE
September 30, 2025
3 MI
5 MI
7 MI
TRAFFIC COUNTS
Calimesa Blvd.: 6,966 ADT
W. Avenue L: 3,802 ADT
SURVEY MAP
(For Illustration Purposes Only)
W AVENUE L
CALIMESA BLVD
1055 CALIMESA BLVD | EL CAJON, CA
±8,065 SF 1-Story Bldg
±18.1 Building Height
ATM Sale
Leaseback Area
BIRDSEYE VIEW
CALIMESA BLVD | 6,996
1055 CALIMESA BLVD | EL CAJON, CA
W. AVENUE L | 3,802 ADT
SITE
MARKET AERIAL
CALIMESA
COUNTRY CLUB &
GOLF COURSE
MESA VIEW
MIDDLE SCHOOL
±723 STUDENTS
5TH STREET
0.5 MI
1055 CALIMESA BLVD | EL CAJON, CA
SITE
10 10
CALIMESA BLVD
CALIMESA
ELEMENTARY
SCHOOL
±539 STUDENTS
W COUNTRY LINE RD
W AVENUE L
MYRTLEWOOD DR
120,201 ADT
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Main: 858 452 6500
www.cushwake.com
For more information please contact:
CHAD IAFRATE
Executive Director
[email protected]
1.760.431.4234
LIC #01329943
PHIL LYONS
Managing Director
[email protected]
1.760.431.4210
LIC #01093731
1055 CALIMESA BLVD | CALIMESA, CA
City Council Meeting
Agenda Report
Joint Meeting Agenda Item No. 1
SUBJECT: CITY COUNCIL ANNUAL REORGANIZATION WITH THE ROTATION OF
MAYOR AND MAYOR PRO TEM
MEETING DATE: December 1, 2025
PRESENTED BY: Darlene Gerdes, Deputy City Manager/City Clerk RECOMMENDATION: That City Council confirm the rotation and selection of Mayor and Mayor Pro Tem with a ratified majority vote to serve a one-year term commencing this first regular scheduled meeting of December.
BACKGROUND: According to Section 2.10.030(a) of Chapter 2.10 of the Calimesa Municipal Code, the Council must meet annually to choose one of its members as Mayor and another of its members as Mayor Pro Tem. In the years in which a General Municipal Election is scheduled, such meeting shall be held as soon as possible after the official canvass is received from the County following the election. In the years in which no general municipal election is scheduled, such meeting shall be held on the first regularly scheduled meeting of December.
On September 15, 2025, City Council adopted Resolution No. 2025-52 establishing a Mayor and Mayor Pro Tem Rotation Policy. The policy established the process for rotation of the Mayor and Mayor Pro Tem in order to ensure fairness, transparency, and preparedness for councilmembers serving in presiding officer roles. The Mayor and Mayor Pro Tem shall each serve a one-year term.
No Councilmember shall serve consecutive terms as Mayor or Mayor Pro Tem, unless all other Councilmembers decline to serve. A Councilmember is eligible for Mayor after one year of service on the City Council. The Mayor and Mayor Pro Tem shall rotate each year according to seniority of service. After serving as Mayor, a Councilmember moves to the end of the sequence. The Mayor Pro Tem shall normally succeed the Mayor in the following year.
Selection of Mayor and Mayor Pro Tem must be ratified by a majority vote (3 votes). If a nominee fails to receive three votes, they are moved to the end of the sequence. A Councilmember may decline to serve as Mayor or Mayor Pro Tem. In such case, the position passes to the next Councilmember in sequence.
Pursuant to the list of rotational sequence, Mayor Pro Tem Cervantez moves to the office of Mayor and Mayor Molina moves to the end of the sequence. Council Member Manly moves to the office of Mayor Pro Tem according to his seniority of service.
The City Clerk will request confirmation of the rotation of Mayor Pro Tem Cervantez to Mayor and Council Member Manly to Mayor Pro Tem, with a required action by the City Council of three or more affirmative votes.
ATTACHMENTS:
Resolution No. 2025-52 – Mayor and Mayor Pro Tem Rotation Policy
Attachment JM1A
City Council Meeting
Agenda Report
Joint Meeting Agenda Item No. 2
SUBJECT: SUCCESSOR AGENCY TO THE CALIMESA REDEVELOPMENT
AGENCY REORGANIZATION
MEETING DATE: December 1, 2025
PRESENTED BY: Darlene Gerdes, Agency Secretary
RECOMMENDATION: That the Board of Directors choose one of its members as Chairperson and another of its members as Vice-Chairperson.
BACKGROUND: CSA Resolution 2012-01, Successor Agency Rules and Regulations states that the offices of Chair and Vice-Chair shall be elected by the Board of Directors as the City Council annually selects its Mayor and Mayor Pro Tem.
Due to the newly established Mayor and Mayor Pro Tem Rotation Policy, staff would respectively recommend that the Chair and Vice-Chair follow the Mayor and Mayor Pro Tem rotations. However, if that is not the desire of the Agency Board of Directors, the Agency Secretary will open the nominations for Successor Agency Chair and Successor Agency Vice-Chair, action is required by the Successor Agency with three or more affirmative votes.