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CITY OF FONTANA
C A L I F O R N I A
LEASING AGREEMENT
FOR
FONTANA COMMUNITY SENIOR CENTER
COFFEE/JUICE BAR
SP-83-CS-22
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FONTANA COMMUNITY SENIOR CENTER COFFEE/JUICE BAR LEASE
AGREEMENT
Tracking No. SP-83-CS-22
This Fontana Community Senior Center Coffee/Juice Bar Lease Agreement (“Lease” or “Agreement”) is dated for reference purposes as of the 2nd day of January, 2023 by and between the City of Fontana, a municipal corporation and general law city (hereinafter r eferred to as “ City” or “Landlord”) and Vernon Wyllie -James a sole proprietor, d/b/a Very Special Mini Market (hereinafter referred to as “Tenant”). The Landlord and Tenant are sometimes referred to individually herein as “Party” and collectively as “Parties.”
RECITALS
A. Landlord is the owner of that certain real property generally located at 16710 Ceres Avenue in the City of Fontana , County of San Bernardino, State of California, which is commonly known as the Fontana Community Senior Center.
B. Landlord d esires to establish food and beverage preparation and retail sa les service areas at the Fontana Community Senior Center.
C. Tenant is a private company in the business of providing food and beverage preparation and retail sales services.
D. Tenant desires to locate food preparation and retail sales s ervice facilities at the Fontana Community Senior Center to provide services to its customers.
E. Tenant agrees to operate and maintain a food and beverage preparation and retail sales service area at the Fontana Community Senior Center as more specifically described herein.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
TERMS
1. INCORPORATION OF RECITALS. The Parties hereby affirm the facts set forth in the Recitals above. Said Recitals are incorporated herein and made an operative part of this Agreement.
2. LEASED PREMISES. Subject to the following terms and conditions, Landlord leases to Tenant and Tenant leases from Landlord that portion of the Fontana Community
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Senior Center commonly referred to as the “Coffee/Juice Bar.” The Coffee/Juice Bar is more specifically described and depicted in the attached Exhibit “A”, and contains approximately one hundred sixty eight (168) square feet of net leas able floor area . For purposes of this Lease, the approximate square footage noted herein shall be used as the actual total square footage leased whether or not such square footage actually exists.
2.1 Improvements. For the purposes of this Agreement, the term “Improvements” shall include any additions, alterations, attachments, fixtures, improvements, installations or property affixed to the Coffee/Juice Bar so that they cannot be removed without material damage to the Coffee/Juice Bar. Improvements shall be considered a permanent part of the Coffee/Juice Bar, regardless of whether made by Landlord or Tenant. Improvements shall not include furniture, or trade fixtures which can be removed without material damage to the Coffee/Juice Bar.
2.1.1 Upon the expiration or earlier termination of this Agreement, Improvements made by Tenant become the property of Landlord and shall remain on the Coffee/Juice Bar premises. Landlord shall have the option, however, on the expiration or earlier ter mination of this Le ase, to require that Tenant, at Tenant’s sole cost and expense, remove any such Improvements made by Tenant.
3. EFFECTIVE DATE - The term of this Agreement shall commence on July 01, 2012.
4. TERM.
4.1 Initial Term . The initial term of t his Agreement (“Initial Term”) shall commence on the Effective Date and shall terminate on June 30, 20 25, unless earlier terminated as provided herein.
4.2 Extended Term. Provided that Tenant is not then in default under this Agreement, Tenant shall have the option a nd right to extend the Initial Term of this Agreement for consecutive periods of one (1) year, commencing on expiration of the Initial Term and ending on June 30th of the following calendar year (“Extended Term(s)”). This Agreement shall automatic ally be extended for each successive Extended Term unless a Party notifies the other Party in writing of said Party’s intention not to extend this Agreement at least sixty (60) days prior to the expiration of the Initial Term or the then applicable Extended Term. The terms and conditions of this Agreement shall apply equally to the Extended Term, if any.
5. HOLDOVER.
If Tenant fails to surrender possession of the Coffee/Juice Bar at the expiration, or earlier termination of this Agreement, Tenant's continue d o ccupancy of the Coffee/Juice Bar shall be considered a month -to-month tenancy subject to all the terms and conditions of this Lease.
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6. RENT.
6.1 Base Rent. Upon the Effective Date, the monthly rent (“Rent”) shall be one hundred seventy five dollars and no cents ($175.00) per month and shall be adjusted annually as provided in Section 6.2. Rent shall be payable to the City of Fontana, Accounts Receivable or such other address provided by Landlord and shall be paid in advance on the first day of each and eve ry calendar mont h and without demand, deduction, offset, or abatement. Rent for any partial calendar month shall be prorated appropriately.
6.2 Annual Adjustment. Rent shall be adjusted annually throughout the Initial Term and any Extended Term, on the ann iversary of the first day of the first full calendar month following the Effective Date by an amount equal to (i) the increase in the Consumer Price Index -All Urban Consumers (“CPI”) for the Los Angeles -Orange- Riverside County (1982 -84=100) during the prio r t welve month p eriod, or (ii) three percent (3%), whichever is greater.
6.3 Late Payment Charges. Tenant acknowledges that in the event Tenant fails to pay Rent within ten (10) business days of when due, such failure will cause Landlord to incur costs not co ntemplated in th is Agreement, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing, personnel and accounting costs. Accordingly, if any such payment is not received by Landlord when du e, Tenant shall pay Landlord a late payment charge equal to ten percent (10%) of the overdue payment as well as interest on the outstanding amount due that shall accrue at the rate of ten percent (10%) per annum. In no event shall the late charge exceed t he maximum allowable by law. Tenant agrees that this late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of Tenant’s late payment. Landlord’s acceptance of such late charge shall in no event constitute a waiver by Landlord of Tenant’s default with respect to the overdue payment, nor prevent Landlord from exercising any of the other rights or remedies granted to Landlord under this Agreement, at law, or in equity.
7. USE OF PREMISES
7.1 During the term of this Agreemen t ( including the Initial Term and any Extended Term), the Coffee/Juice Bar shall be used exclusively for the purpose of providing food and beverage preparations and retail sales services (“Services”) and for uses normally incident to that purpose. Services are more specifically described in the attached Exhibit “C”. Tenant shall not use or permit the Coffee/Juice Bar to be used for any other purpose, without the prior written consent of Landlord. Permitted use of the Coffee/Juice Bar includes the right t o i nstall, maint ain, repair, replace and secure equipment necessary for the provision of Services.
7.2 During the term of this Agreement, Tenant shall operate the Coffee/Juice Bar in a diligent and business like manner.
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7.3 Tenant shall comply with all applicable laws, codes, rules and regulations relating to Tenant’s operation and use of the Coffee/Juice Bar, including without limitation:
(a) any and all zoning and development permits, plan reviews , and approvals issued by applicable governmental agencies. (b) any and a ll health and sa fety requirements , permits or approvals necessary for operation, including but not limited to ensuring (i) that the design, planning and installation of all improvement s, fixtures and equipments meet with required codes and regulations ; (ii) that all applications and notifications are filed with the appropriate government agency ; and (iii) that any and all placards, licenses, and permits are secured and displayed as appropriate prior to operation.
7.4 Tenant acknowledges Landlord’s need to prote ct the public’s right to the quiet use and enjoyment of the Fontana Community Senior Center . Tenant shall use the Coffee/Juice Bar in a manner that does not unreasonably disturb the u se and occupancy of the Fontana Community Senior Center . Upon notice from the Landlord, Tenant shall take reasonable steps to mitigate any such disturbance.
8. COFFEE/JUICE BAR HOURS AND OPERATIONS.
8.1 Normal Business Hours. The Coffee Bar shall be open to the public for business generally at the following times, which times repre sent Pacific Standard Time and shall be referred to herein, collectively, as the “Normal Business Hours”:
a. Monday through Friday, 9:00 a.m. - 2:00 p.m.
b. Saturday, Closed
c. Sunday, Closed
d. Approved Special Events, as defined below.
8.2 Special Events. Tenant shall work with Landlord in programming use of the Coffee /Juice Bar with special events, including but not limited to, live musical performances, performance art, and fine art displays (“Special Events”) and arranging for and facilitating the scheduling of such Special Events, provided that the Party proposing a Special Event shall provide advance written notice of such Special Event to the other Party. Approval of Special Events proposed by Tenant shall be in the Landlord’s sole and absolute discretion.
8.2.1 Additional Access. Access to the Coffee/Juice Bar outside of the Normal Business Hours for Coffee Bar maintenance and operational purposes shall be provided to Tenant and employees of Tenant, and to no other persons, between 7:00 AM and 8:00 PM, Pacific Standard Time. Access to the Coffee Bar outside of the Normal Business Hours or during Special Events shall be subject to change by Landlord upon twenty-four (24) hours notice.
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8.2.2 Change of Normal Business Hours. Landlord and Tenant may from time to time, agree to change the No rmal Business Hours, but in no case shall the Coffee/Juice Bar be open for business earlier than 7:00 A.M., or later than 10:00 P.M., Pacific Standard Time.
8.3 Alcohol. The handling, sale, or consumption of alcohol within the Coffee/Juice Bar is prohibited u nless otherwise permitted by the City of Fontana Municipal Code, or City Ordinance or Regulation, and approved in writing by the City.
8.4 Smoking. Smoking within the Coffee Bar is prohibited.
8.5 Music. Music may be played in the Coffee/Juice Bar in compliance with Landlord approved sound levels and in accordance with the following restrictions:
8.5.1 Permissible music shall include only radio -edited music that contains no profanity.
8.5.2 No music that contains a Parental Advisory rating may be played in the Coffee/Juice Bar.
8.5.3 Landlord reserves the right to approve the content of any music played.
8.5.4 The Landlord reserves the right to require that any music being played is discontinued, or may be discontinued by Landlord at any time without prior notice.
8.5.5 Any denial by Lan dlord of music content or music play lists shall be made on a viewpoint neutral basis, and shall be reasonable in light of maintaining the Fontana Community Senior Center for its intended purpose.
8.5.6 Tenant shall comply with all copyright laws and sha ll, prio r to playing music on the Coffee/Juice Bar premises during the Normal Business Hours of the Coffee/Juice Bar, obtain any and all music licensing rights as may be required by law.
8.6 Parking. A marked loading and unloading zone will be at the back of the facility (north side of the building) that the Tenant may use for loading and unloading only. Parking for Tenant’s employees, patrons and deliveries shall also be available in the public p arking areas, in accordance with the provisions and lim itations of any applicable government code sections.
9. IMPERMISSIBLE USES
9.1 Hazards. Tenant shall not commit or permit the commission of any acts on the Coffee/Juice Bar premises, nor use or permit the use of the Coffee/Juice Bar premises in any manner that will increase the existing rates for, or cause the cancellation of, any insurance policy insuring the Coffee/Juice Bar or the Fontana Community Senior Center. Tenant shall, at its own cost and expense, comply with any and all requirements
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of Landlord's i nsurance carriers necessary for the continued maintenance, at reasonable rates, of Landlord’s insurance policies covering the Fontana Community Senior Center.
9.2 Waste or Nuisance. Tenant shall not commit or permit the commission by others of any waste on t he Coffee/Juice Bar premises. Tenant shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Civil Code Section 3479 on the Coffee Bar premises. Tenant shall not use or permit the use of the Coffee/Juice Bar for any unlawful purpose.
10. COMPLIANCE WITH LAWS.
Throughout the term of this Agreement, Tenant shall at its own cost and expense comply with all statutes, ordinances, regulations, and requirements, of all governmental entities, both federal and state and count y o r mun icipal, relating to Tenant's use, operation and occupancy of the Coffee/Juice Bar, including without limitation Section 3700 of the California Labor Code which requires every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with that Code.
11. UTILITIES.
11.1 Utility Service Costs. Landlord shall furnish, at its sole cost and expense, subject to Subsection 11.2 herein, the services described below to the Coffee/Juice Bar on an access and override basis.
(a) Electricity for normal lighting and equipment.
(b) Heat and air conditioning as required in Landlord’s sole and reasonable judgment for the comfortable use and
occupation of the Coffee/Juice Bar during the Normal
Business Hours, as defined in Section 8.1.
(c) Water in quantities reasonably required by Tenant.
(d) Gas in quantities reasonably required by Tenant.
(e) Refuse disposal in quantities reasonably required by Tenant.
(f) Building smoke detection, security alarm, including a security monitoring camera, and l ighting reasonably
required for safe operation of the Coffee/Juice Bar.
11.2 Landlord shall not be liable for, and Tenant shall not be entitled to, any reduction of Rent by reason of Landlord’s failure to furnish any of the foregoing when such failure is caused by accident, br eakage, repairs, strikes, lockouts or other labor disturbances or labor disputes of any character, or by any other cause, similar or dissimilar, beyond the reasonable control of Landlord. Landlord shall not be liable under any circumstances for the loss of or injury to property, however occurring, through or in
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connection with or incidental to failure to furnish any of the foregoing, except to the extent such loss or injury is directly caused by Landlord.
11.3 Tenant will not, without written consent of Landlord, use any apparatus or device in the Coffee/Juice Bar which will in any way increase the amount of utilities normally furnished or supplied for a food and beverage preparation and retail sales service facility. Tenant shall not connect an y a pparatus or d evice to a utility location/outlet located outside of the Coffee/Juice Bar, unless required for the provision of entertainment services during approved Special Events and as mutually agreed upon by Landlord and Tenant.
11.4 Landlord estimates th at the cost of T enant’s required utility use shall not exceed one hundred percent (10 0%) of the monthly Rent (“Estimated Utility Costs”). If Tenant’s utility usage shall exceed the Estimated Utility Costs, Landlord may, in its sole and reasonable discretion and after consultation with Tenant:
(a) cause a meter(s) to be installed in the Coffee/Juice Bar, so as to measure Tenant’s utility usage. The cost of any such meter(s) and of installation, maintenance and repair thereof shall be paid for by Tenant and Te nant agrees to p ay to Landlord promptly upon demand therefore by Landlord, for all such utilities consumed as shown by said meter(s), at the rate charged for such services by the local public utility furnishing the same, plus any additional expense incurre d i n kee ping acc ount of the utilities so consumed;
(b) bill Tenant for all costs in excess of the Estimated Utility Costs.
(c) at Tenant’s request, and at Tenant’s sole cost and expense, Tenant may pay for the utility company or an el ectrical engineer, approved by Landlord, to provide an estimated allocation of costs in excess of the Estimated Utility Costs.
12. TAXES.
12.1 Personal Property Taxes. Tenant covenants and agrees to pay, before any fine, penalty, interest or cost may be added thereto for the nonpayment thereof , all taxes (including any possessory interest taxes which may be created hereby or imposed pursuant to law), assessments, and other governmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of a ny kind and natu re whatsoever, which shall during the term of this Lease be laid, assessed, levied or imposed upon or become due and payable with respect to any furniture, trade fixtures, appliances, and other personal property placed by Tenant in, on, or about the Coffee/Juice Bar, including, without limitation, any shelves, counters, vaults, vault doors, wall safes, partitions, fixtures, machinery, equipment, television, radio antenna, and communication equipment brought onto the Coffee/Juice Bar by Tenant.
12.2 Real Property Taxes. Tenant covenants and agrees to pay, before any fine, penalty, interest or cost may be added thereto for the nonpayment thereof, all taxes (including any possessory interest taxes which may be created hereby or imposed
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pursuant to law), assessments, a nd ot her gove rnmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of a ny kind and nature whatsoever, which shall during the term of this Lease be laid, assessed, levied or imposed upon or become due and paya ble with respect to the Coffee/Juice Bar imposed by any governmental entity for any reason whatsoever.
13. CONDITION OF PREMISES.
Tenant accepts the Coffee/Juice Bar, as well as any Improvements located on the Coffee/Juice Bar premises, in an “as is” conditio n without warranty, express or implied, as to the condition or usability of the Coffee/Juice Bar, except as may be expressly set forth in this Agreement. Tenant further agrees with and represents to Landlord that Tenant shall inspect the Coffee/Juice Bar prior to taking possession, and that the Coffee/Juice Bar is being leased by Tenant as a result of its own inspection and investigation and not as a result of any representations made by Landlord or any agent of Landlord except those expressly set forth in this Lease.
14. MAINTENANCE OF PREMISES.
14.1 Landlord Obligations. Landlord shall maintain the St ructural Elements of the Fontana Community Senior Center , including the Coffee/Juice Bar, in good condition and repair. “Structural Elements” include the roof, ex terior w alls, st ructural support and foundation. Structural Elements shall not include show window glass.
14.1.1 Landlord may, for the purpose of maintaining the Structural Elements, erect scaffolding and other necessary structures where reasonably required b y the character of the work to be performed. Landlord shall not block the entrance to the Coffee/Juice Bar during Normal Business Hours, except in the case of an emergency, and shall not unreasonably interfere with operation of the Coffee/Juice Bar. Tenan t h ereby waives any claim for damages, for any injury or inconvenience to or interference with Tenant’s business, or for any loss of occupancy or quiet enjoyment of the Coffee/Juice Bar, and any other loss occasioned thereby, provided that Landlord make a reasonable effort to avoid any such injury, inconvenience or interference.
14.1.2 Landlord shall have the right to use any and all means which Landlord may deem proper to open any doors or otherwise obtain access to the Coffee/Juice Bar in an emergency, without liability to Ten ant, except for any failure to exercise due care for Tenant’s property, and any entry to the Coffee/Juice Bar obtained by Landlord by any of said means or otherwise shall not under any circumstances be construed or deemed to be forcible or unlawful entry into a detainer of the Coffee/Juice Bar or an eviction of Tenant from the Coffee/Juice Bar or any portion thereof.
14.2 Tenant’s Obligations . Tenant shall operate, maintain, and repair at no cost or expense to Landlord, the Coffee/Juice Bar throughout t he Initi al Term and any Extended Term of this Agreement. All Improvements and any items and equipment provided by the City for operation of the Coffee /Juice Bar, as specified in Exhibit “B”, shall be maintained in good and workable order and repai r a nd in as safe and clean a
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condition as they were when received by Tenant, or as when they were installed by Tenant, reasonable wear and tear excepted.
14.2.1 Required maintenance includes, but is not limited to providing clean and sanitary custodial/janitorial services and removal of graffiti and safety hazards within twenty-four (24) hours of receiving written or verbal notification from Landlord.
14.2.2 Tenant shall make any repairs to the Coffee/Juice Bar and to any Improvements, items and equipment provided by the Cit y for op eration of the Coffee/Juice Bar, as specified in Exhibit “B”, caused by or incident to Tenant’s use of the Coffee/Juice Bar or implementation of this Agreement at its sole cost, expense and liability. Maintenance and repairs shall be made promptly to protect public safety.
14.2.3 Tenant shall be responsible for the rep air of any damage to the Fontana Community Senior Center caused by Tenant or its contractors at its sole cost, expense and liability. All such work is to be performed in accordance with the standards approved by Landlord.
14.2.4 The janitorial closet as depicted in Exhibit “A”, are made available for the use of the Tenant and its employees and are the maintenance responsibility of the Tenant.
14.2.5 Tenant shall perform all non -safety and non -graffiti repairs within thirty (30) days of notification to Tenant by Landlord. Failure by Tenant to perform non - safety or non-graffiti repairs within thirty (30) days of notification to Tenant by Landlord, Landlord may make any such repairs at Tenant’s e xpense. Tenant shall promptly reimburse Landlord for any such repairs.
14.2.6 Tenant shall provide site security during all construction and maintenance activities.
14.3 Maintenance of Plate Glass . Tenant shall be sole ly responsible for the cost and expense of maintenance, repair or replacement of plate glass in any Coffee/Juice Bar show window, unless such window is damaged or broken by Landlord or by an employee or agent of Landlord. Should Tenant fail to repair or replace any glass broken in a Coffee/Juice Bar show window, Landlord may replace or repair the broken window, and Tenant shall promptly reimburse Landlord for the cost of the repair, replacement.
15. ALTERATIONS AND LIENS.
15.1 Alterations. Tenant shall not make or allow to be made any alterations to the Coffee/Juice Bar, including interior design and color selections, without the prior written consent of Landlord, which consent shall not be unreasonably withheld.
15.1.1 In the event that Landlord consents to Tenant’s requested alterations, additions or improvements to the Coffee/Juice Bar, the same shall be made by Tenant at Tenant’s sole cost and expense.
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15.2 Liens. Tenant shall keep the Coffee/Juice Bar free and clear from any and all liens, claims, and demands for work performed, materials furnished, or operat ions conducted on the Coffee/Juice Bar premises at the instance or request of Tenant . Any construction of alterations, additions or improvements shall be completed in compliance with all laws and governmental requirements, including but not limited to the payment of Prevailing Wages.
16. ENTRY BY LANDLORD.
Landlord or Landlord's agents, representatives, or employees shall have the right, at any and all reasonable times during Normal Business Hours and upon twenty -four (24) hours prior notice to Tenant, except as expressly provided herein, to enter the Coffee/Juice Bar for the purpose of inspecting the Coffee/Juice Bar to determine whether Tenant is complying with the terms of this L ease, for the purpose of doing other lawful acts that may be necessary to protect Landlord's interest in the Coffee/Juice Bar, or for the purpose of performing Landlord's duties under this Lease, as Landlord may deem necessary or desirable. Tenant shall not be entitled for any abatement in rent upon such entry by Landlord.
17. SURRENDER OF PREMISES.
Upon the expiration or earlier termination of this Agreement, Tenant shall promptly vacate the Coffee/Juice Bar and deliver the Coffee/Juice Bar, including all Improvements thereto and all items and equipment provided by the City for operation of the Coffee/Juice Bar, as specified in Exhibit “B”, to Landlord in as good condition as the Coffee/Juice Bar existed on, as applicable: (i.) the Effective Date of this Agreement; or (ii.) on the date that such Improvements were made or installed, exclu ding rea sonable wear and tear, and repairs required to be made by Landlord under this Lease.
18. INDEMNITY
18.1 Tenant’s Obligations . Tenant agrees to defend, indemnify, and hold Landlord, its directors, officials, officers, employees, agents, or volunteers, and each of them harmless from and against any all liability to third parties resulting from Tenant's occupation and use of the Coffee/Juice Bar, specifically including, without limitation, any claim, liability (including, without limitation attorney’s fees co sts and expenses incurred in defending against such claims), loss, or damage (including, without limit, all consequential damages) arising by reason of:
(a) The death or injury of any person or persons, or by reason of the damage to or destruction of any prop erty, including property owned by Tenant or any person who is an employee or agent of Tenant, and caused or allegedly caused by either the condition of the Coffee/Juice Bar, or some act or omission of Tenant or of some agent, contractor, employee, servant, customer, or concessionaire of Tenant on the Coffee/Juice Bar premises;
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(b) Any work performed on the Coffee/Juice Bar premises or materials furnished to the Coffee/Juice Bar at the instance or request of Tenant or any agent or employee of Tenant; and
(c) Tenant's failure to p erform any provision of this
Agreement.
18.2 Landlord’s Obligations. Landlord agrees to defend, indemnify, and hold Tenant, its directors, employees, agents, and each of them harmless from and against any and all liability to third parties res ulting f rom Land lord’s o ccupation and use of the Fontana Community Senior Center , excluding the Coffee/Juice Bar, or from Landlord’s maintenance or failure to maintain the St ructural Elements of the Fontana community Senior Center, including the Coffee/Juice Bar. This obligation to defend, indemnify and hold harmless specifically includes, without limitation, any claim, liability (including, without limitation attorney’s fees costs and expenses incurred in defending against such claims), loss, or damage (i ncluding, without limit, all consequential damages) arising by reason of:
(a) The death or injury of any person or persons, or by reason of the damage to or destruction of any property, including property owned by Landlord or any person who is an employee or agent of Landlord, and caused or allegedly caused by either the condition of the Fontana Community Senior Center, excluding the Coffee/Juice Bar, or the Structural Elements of the Coffee/Juice Bar, or some act or omission of Landlord or of some agent, cont ractor, employee, or p atron of Landlord on the Fontana Community Senior Center premises, including the Coffee/Juice Bar; (b) Any work performed on the Coffee/Juice Bar premises or materials furnished to the Coffee/Juice Bar by Landlord or its employees or agents; and (c) Landlord’s failure to perform any provision of this Agreement.
19. INSURANCE.
19.1 Tenant’s Insurance. At all times throughout the Initial Term and any Extended Term of this Agreement, Tenant shall, at its own cost and expense, provide the following insurance coverages:
19.1.1 Fire and casualty coverage insurance covering the Coffee/Juice Bar and all Improvements either now or hereafter located on the Coffee/Juice Bar premises, against loss or damage by fire or other risks or perils, including vandalism and mali cious mischief, in an amount not less than one hundred percent (100%) of the full replacement cost of the Coffee/Juice Bar and Improvements.
19.1.2 Comprehensive public liability insurance against claims for personal injury, death, or property damage occurring in connection wi th the use and occupancy of the Coffee/Juice Bar and Improvements thereon by Tenant, and providing coverage with minimum limits of liability of not less than One Million and No/100
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Dollars ($1,000,000.00) for bodily injury or death in any o ne occurrence, T wo Million and No/100 Dollars ($2,000,000.00) in the aggregate per policy year, and One Million and No/100 Dollars ($1,000,000.00) for property damage. Tenant's policy shall name the Landlord as an additional insured.
19.1.3 Such other insurance as Landlord may reasonably require from time to time in such amounts and against such insurable risks as may be commonly maintained for Lease Property similarly situated and containing comparable improvements.
19.1.4 Policies. All policies required to be maint ained by Tenant pursuant to this Section 19 shall be effected under enforceable policies issued by insurers licensed to do business in the State of California. All policies shall contain language to the effect that: (a) Landlord to receive written notif ication of not less than ten (10) days prior to any cancellation or modification of Tenant's insurance coverage, and shall provide that Landlord’s interest shall not be invalidated by any acts, omissions or neglect of anyone other than Landlord; (b) the in surer wa ives the right of subrogation against Landlord and against Landlord’s agents and representatives; (c) the policies are primary and noncontributing with any insurance that may be carried by Landlord.
In the event Tenant fails to timely pay any p remiums with respect to its insurance, Landlord shall have the right, but not the obligation, to pay the premiums and obtain the insurance, and any amounts paid by Landlord therefor e shall be deemed additional rent payable by Tenant upon demand. Tenant sh all cause the in surer(s) to furnish to Landlord certificate(s) evidencing any insurance required to be maintained by Tenant hereunder. Nothing contained in this Section 19 shall prohibit Tenant from carrying deductibles or self -insured retentions on any p olicies of insur ance as deemed appropriate by Tenant.
19.2 Landlord’s Insurance . Landlord is self -insured with coverage in amounts at least equal to the amounts provided herein. The Landlord shall provide evidence of such insurance as reasonably requested by Tenant.
20. SIGNS AND TRADE FIXTURES
20.1 Installation and Removal of Trade Fixtures . During the term of this Agreement, Tenant may, at Tenant's sole cost and expense, install and affix in, to, or on the Coffee/Juice Bar any items, herein called ''trade fixtures,' ' for use in Tenant's trade or business that Tenant may, in Tenant's sole discretion, deem advisable. Any and all trade fixtures that can be removed without structural damage to the Coffee/Juice Bar shall remain the property of the Tenant and may be remov ed by Tenant at any time before the expiration or earlier termination of this lease, subject to Section 20.3 herein, provided Tenant repairs any damage caused by the removal.
20.1.1 Landlord waives any lien rights it may have concerning the Coffee/Juice Bar for property that is deemed Tenant’s personal property.
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20.2 Unremoved Trade Fixtures. Any trade fixtures described in this Section that are not removed from the Coffee/Juice Bar by Tenant within thirty (30) days after the expiration or earlier termination regard less of cause, of this Agreement shall be deemed abandoned by Tenant and shall automatically become the property of Landlord as owner of the real property to which they are affixed.
20.3 Right of First Refusal. The Parties agree that upon the expiration or earlier termination of this Agreement, the Landlord shall have the first right of refusal to purchase Tenant’s removable trade fixtures. The purchase price offered to Landlord shall be based on the IRS deduction schedule.
20.4 Signs. Tenant shall not place any signage, logos, or graphics on the interior or exterior of the Coffee/Juice Bar, or the Fontana Community Senior Center , except as may be approved in writing by the Landlord, or as may be required by law.
21. DAMAGE AND DESTRUCTION
21.1 Tenant’s Options . If the Coffee/Juice Bar, or Tenant’s improvements located therein, are materially destroyed or damaged, by other than an act of Tenant, so as, in Tenant’s commercially reasonable judgment, to materially and adversely impair Tenant’s effective use of the Coffee/Juice Bar, T enant ma y elect to terminate this Agreement as of the date of the damage or destruction by notifying Landlord no more than forty -five (45) days following the date of such damage or destruction. If Tenant elects to terminate this Agr eement pursuant to this Section, all rights and obligations of the parties that do not survive the termination of this Agreement shall cease as of the date Landlord receives Tenant’s termination notice. If Tenant chooses not to terminate this Agreement, Rent shall be re duced or abated in proportion to the actual reduction or abatement of use of Coffee/Juice Bar for a period until such damage can be repaired by Tenant, not to exceed six (6) months, unless Tenant and Landlord determine in good faith that the Coffee/Juice Bar cannot be rebuilt in a commercially reasonable manner. In the event of dama ge or destruction to the Fontana Community Senior Center that prevents Tenant from operating Coffee/Juice Bar, Landlord shall abate the rent in its entirety until such a time as the dam age can be corrected and the Tenant can return to normal operations, pursuant to the provisions of this Agreement. Landlord reserves the right to audit Tenant’s reduction or abatement request.
21.2 Landlord’s Options. In the event that the Coffee/Juice Bar and/or t he Fontana Community Senior Center are materially and adversely damaged or destroyed, or Improvements thereto are determined by applicable law to be unsafe, Landlord shall have the right to terminate this Agreement upon written notice to Te nant, pr ovided t hat Landlord shall give such notice within forty -five (45) days of the date of such damage or destruction or determination as to safety. If Landlord elects to terminate this Agreement pursuant to this Section, all rights and obligations of the parties that do not survive the termination of this Agreement shall cease as of the date of Coffee/Juice Bar's receipt of Landlord’s termination notice. In no event shall Landlord be obligated to repair any casualty or other damage or destruction to the improvements located in the Coffee/Juice
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Bar and/or the Fontana Community Senior Center , whether or not covered by Landlord’s insurance, if any.
21.3 Insurance Proceeds . If either Party exercises its right to terminate, Tenant may utilize insurance proceeds, if any, of the insurance required to be carried by Tenant pursuant to this Agreement, to satisfy liens expressly approved, in writing, by the Landlord. The Landlord shall be entitled to any and all remaining insurance proceeds.
22. EMINENT DOMAIN
22.1 In the event that t he whole or substantial part of the Property shall be acquired or condemned by eminent domain for a public or quasi -public use or purpose, this Agreement shall terminate. The date of termination pursuant to the exercise of eminent domain authority by a governmental entity shall be the date on which title vests in said governmental entity.
22.2 An award for condemnation, if any, shall be paid first to the Tenant so that the Tenant may satisfy any other liens for which the Tenant obtained the expr ess written consent of the Landlord to incur. The Landlord shall be entitled to the remainder of any condemnation award.
23. DEFAULT AND RIGHT OF REENTRY
23.1 Events of Default. Each of the following occurrences shall be an event of default hereunder:
23.1.1 If default shall b e made b y Tenant in any of the covenants, agreements, conditions or undertakings herein to be kept, observed and performed by Tenant and Tenant shall not have commenced to cure such default within thirty (30) calendar days after notice thereof in writing to Tenant.
23.1.2 If Tenant shall voluntarily file any petition, or have an involuntary petition filed on its behalf, under any chapter or section of the Federal Bankruptcy Code or any similar law, state or federal, whether now or hereafter existing, or sh all file an answer admitting insolvency or inability to pay its debts; provided however, that Tenant shall not remain in default if Tenant shall continue to pay all Rent and Additional Charges and comply with all other terms and conditions of the Agreement.
23.1.3 If a trustee or receiver shall be appointed for Tenant or for a major portion of its property or for any portion of the Coffee/Juice Bar.
23.1.4 If any court shall have taken jurisdiction of a major portion of the property of Tenant or any potion of the Coffee/Juice Bar in any involuntary proceeding for dissolution, liquidation or winding up of Tenant and such jurisdiction shall not be relinquished or vacated within sixty (60) calendar days.
23.1.5 If Tenant shall make an assignment for the benefit of its creditors.
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23.2 Right of Reentry. Upon the occurrence of any default that is not cured within the applicable cure period, and at any time after the expiration of the applicable cure period, Landlord shall have the right, at its election, to reenter the Coffee/Juice Bar, or any part thereof, either with process of law, and to expel, remove and put out Tenant, using such force as may be necessary in so doing, and again to possess the Coffee/Juice Bar and enjoy the same as in their former estate and to take full possession of and control over the Coffee/Juice Bar and to have, hold and enjoy the same and to receive all rental income of and from the same. No reentry by Landlord shall be deemed an acceptance of a surrender of this Agreement, nor shall it absolve or discharge Tena nt from any liability under this Agreement. Upon such reentry, all rights of Tenant to possess the Coffee/Juice Bar shall cease and terminate.
24. TERMINATION.
This Agreement may be terminated, without further liability on the part of the party terminating the Agreement, with sixty (60) days prior written notice (or upon such notice as otherwise expressly provided below) as follows:
24.1 By either party upon a default of any covenant, condition or term herein by the other party, which default is not cured within thirty (30) days of receipt of written notice of default, provided that the grace period for any monetary default is only ten (10) days from receipt of notice. No default will be deemed to exist if the party alleged to be in default has commenced to cure such default within such period and provided that such efforts are brought to completion with reasonable diligence; or
24.2 By Tenant after the Effective Date for any reason or for no reason, provided Tenant delivers written notice of early termination to Landlo rd no la ter than sixty (60) days prior to termination; or
24.3 By Landlord, upon sixty (60) days’ written notice to Tenant, in the event Landlord causes interference with the Landlord’s operatio n and maintenance of the Fontana Community Senior Center , provided, however, that L andlord has first given Tenant written notice of such interference and Tenant is unable to correct or cease such interference within thirty (30) days of written notice of such interference.
24.4 By either party in the event that any certificate s, permits and o ther approvals (collectively the “Governmental Approvals”) that may be required by any Federal, State or Local authorities should be finally rejected or any Governmental Approval issued to Tenant is canceled, expires, lapses, or is otherwis e w ithdrawn or terminated by governmental authority, b y either party, upon ten (10) days’ notice, should Landlord fail to complete construction of the Coffee /Juice Bar or adjacent portions of the Fontana Community Senior Center within sixty (60) days of th e date first referenced in this Agreement.
24.5 Rights Upon Termination . Upon termination neither party shall have any further rights, obligations or liabilities to the other except: (i) with respect to provisions of this Agreement that by their sense and context survive termination; (ii) with
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respect to the rights and remedies of the parties relating to the period prior to termination; and (iii) upon notice to Tenant within ten (10) days of Landlord’s receipt of a notice terminating the Agreement, Landlord may require that Te nant remove all construction caused by Tenant which has not been completed and restore the Coffee/Juice Bar within sixty (60) days of the termination notice, to the condition (to the extent such change in condition was caused by Tenant) exi sting prior to t he full execution of this Agreement, wear and tear, and casualty excepted.
25. ASSIGNMENT. Tenant shall not encumber, transfer or assign this Agreement or any interest in this Agreement or sublet the Premises or any portion thereof without fir st obtaining the written consent of Landlord. Any attempted transfer, encumbrance, assignment or subletting, including any involuntary transfers or assignments by operation of law, without such written consent shall be void and confer no rights upon any t hird person. No such transfer, assignment or subletting shall relieve Tenant of its liability for the full performance of all of the terms, agreements, covenants and conditions of this Agreement.
25.1 Financing Arrangements . Notwithstanding Section 15.2, up on Landlord’s consent and written approval, Tenant may enter into an approved financing arrangement for the purchase of trade fixtures necessary for operation of the Coffee/Juice Bar, and for approved Improvements to the Coffee/Juice Bar. Any encumbrance shall be, at all times, subordinate to the ownership rights of the Landlord.
26. SAFETY AND ENVIRONMENTAL PROTECTION.
26.1 In carrying out its work, Tenant shall at all times, exercise all necessary precautions for the safety and environmental protection of the Coffee/Juice Bar, and be in compliance with all federal, state and local statutory and regulatory requirements including State of California, Division of Industrial Relations (Cal/OSHA) regulations, Cal/EPA, US/EPA and the U.S. Department of Transportation including the Om nibus Transportation Employee Testing Act (as applicable).
26.2 Tenant shall not use or allow anyone else to use the Coffee/Juice Bar to generate, manufacture, refine, transport, treat, store, handle, recycle, release or dispose of any hazardous material, other than as reasonably necessary for the operation of the Tenant’s activities as contemplated under this Agreement. The term "hazardous material" means any hazardous substance, material or waste, including but not limited to those listed in 4 9 C FR 17 2.101 (U .S. Department of Transportation), the Cal/EPA Chemical Lists of lists or petroleum products and their derivatives. However, this shall not apply to the use of petroleum products and related substances incidental to operation of motorized equipment and ve hicles whose operation in the Coffee/Juice Bar is contemplated by this Agreement.
26.3 Tenant shall immediately notify the Landlord in writing upon becoming aware of any release of hazardous material, violation of any environmental law or action s brought by third parties against the Tenant alleging environmental damage.
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26.4 Landlord represents, warrants and agrees (1) that neither Landlord nor, to Landlord’s actual knowledge (without Landlord having researched the matter), any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any hazardous material on, under, about or within the Coffee/Juice Bar in violation of any law or regulation, and (2) that Landlord has not, and will not permit any third party to use, generate, store or dispose of any hazardous material on, under, about or within the Fontana Community Senior Center in violation of any law or regulation.
26.5 Landlord and Tenant each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys’ fees and costs) arising from any breach of any representation, warranty or Agreement contained in this section. This section shall survive the termination of this Agreement.
27. Notices. Any notice, demand or payment required to be given herein, or change of the address provided in this Section 27, shall be made by certified or registered mail, return receip t r equested, or reliable overnight courier to the address of the respective parties set forth below:
Landlord:
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attention: City Manager
Tenant:
Vernon Wyllie-James
d/b/a Very Special Mini Market
PO Box 642
Palm Desert, CA 92260
Attn: Vernon Wyllie-James
Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other party.
28. MISCELLANEOUS PROVISIONS.
28.1 Nondiscrimination. Tenant herein covenants by and f or itself and its assigns, and all persons claiming under or through Tenant, that this Lease is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the subleasing, transferring, use, occupancy, tenure, or enjoyment of the Coffee/Juice Bar nor shall the Tenant, itself, or any person claiming under or throug h T enant, establish or permit any such practice or practices of discrimination or segregation.
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28.2 Attorney's Fees. In the event legal action by either party is brought to enforce any term hereof or in the recovery of damages for any breach hereof, or to determine an y rights of the parties under this Agreement, the prevailing party in such actions may recover reasonable attorneys' fees.
28.2.1 When any provision of this Agreement entitles either party to receive costs or expenses from the other for a breach of any te rm herein, the terms costs and expenses shall include reasonable attorney's fees incurred, notwithstanding any reference or lack of reference to attorney's fees. When any article or provision of this Agreement provides that a party will hold an indemnitee harmless from claims, such shall pay all such indemnitee’s reasonable attorney's fees incurred in investigating and defending such claims.
28.3 Prevailing Wages. Tenant has been advised of California Labor Code section 1770 et seq. Tenant has also been advis ed of the Attorney General Opinion (No. 86 803) and California Senate Bill 975.
28.3.1 It shall be the sole responsibility of Tenant to determine whether to pay prevailing wages for any or all work required by this Agreement. Tenant shall be liable if it violates applicable law.
28.4 As a further material part of this Agreement, Tenant shall be liable to Landlord, its officials, officers, employees, consultants and agents from any and all claims, liability, loss, costs, damages, expenses, fines and penalties, of what ever type or nature, including all costs of defense and attorneys' fees, arising from any failure of the Tenant or Tenant's contractors to comply with the prevailing wage laws of the State of California.
28.5 Relationship. Nothing contained in this Lease shall be deemed or construed by the Parties or by any third Person to create the relationship of principal and agent, or of partnership or joint venture, or of any association between Landlord and Tenant, and none of the provisions contained in this Lease or an y acts of the Parties shall be deemed to create any relationship other than lessor and lessee between Landlord and Tenant, nor shall this Lease be construed, except as expressly provided, to authorize either to act as agent for the other.
28.6 Entire Agreement. This Agreement constitutes the entire Agreement and understanding between the parties, and supersedes all offers, negotiations and other Agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties.
28.7 Severability. If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
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28.8 Successors and Assigns . This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. Any reference to the "Landlord" or "Tenant" shall be deemed to refer to any authorized agent of such referenced party.
28.9 Applicable Law. This Agreement shall be interpreted in accordance with the laws of the S tate of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
28.10 Cooperation, Further Acts. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent.
28.11 Waiver or Modification. No waiver by a Party hereto at an y time of any of the terms, conditions, or covenants of this Agreement shall constitute a waiver at any time thereafter of the same or any other term, condition, or covenant of this Agreement.
28.12 Exhibits. All Exhibits attached hereto are material parts of t his Agreement and are hereby incorporated herein by reference.
28.13 Counterparts. This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original.
28.14 Authority. Each party to this Agreement represents and warrants that it has all requisite power and authority to conduct its business and to sign, deliver and perform the Agreement. Each party warrants that the individual who has signed this Agreement has the legal power, right and authority to make and enter into this Agreement and bind each respective party.
28.15 Time. Time is of the essence in this Agreement and every provision hereof.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE
TO
FONTANA COMMUNITY SENIOR CENTER COFFEE/JUICE BAR LEASE
AGREEMENT
LANDLORD:
CITY OF FONTANA
By:
Matthew C. Ballantyne
City Manager
TENANT:
Vernon Wyllie-James, a sole proprietor,
d/b/a VERY SPECIAL MINI MARKET
By:
Attest:
By:
City Clerk
Approved as to form:
Best Best & Krieger LLP
City Attorney
By: _____________________________
Daniel Schneider, Department Head
By: _____________________________
Rakesha Thomas, Risk Management
IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES
,
Jessica Brown, Director of Management
Services
Exhibit A
RVPUB\HSHANE\747813.1
EXHIBIT “A”
DESCRIPTION AND DEPICTION OF THE COFFEE/JUICE BAR
[Map attached on following page]
Directly adjacent to the courtyard and near the entrance of this extraordinary new facility is a designated space for the coffee/juice bar. Specifically, this space will provide an opportunity for patrons of the Senior Center to purchase coffee, juice, smoothies and prepackaged foods, access wirel ess Internet, enjoy one of the ma ny programs inside the facility or simply sit and visit with friends in a “coffee house” atmosphere.
Exhibit A
RVPUB\HSHANE\747813.1
(The area encompassing the Coffee Bar is circled in red on the map attached below)
Exhibit B
RVPUB\HSHANE\747813.1
EXHIBIT “B”
DESCRIPTION OF IMPROVEMENTS, ITEMS AND EQUIPMENT PROVIDED BY
CITY FOR OPERATION OF THE COFFEE BAR
ITEM 1 Refrigerator
True Food Service Equipment, INC. #T-
19 Solid door reach-in
300 series stainless steel solid doors
115 volt, single phase 8.9 amps
19 Cu. Ft. capacity
ITEM 2 Microwave
Solwave Commercial Microwave
#180MW1000SS
1000 Watts
.9 cu. ft cavity
3 power levels
ITEM 3 Espresso Machine Accorto Model 1000i
120 VAC, 20 Amp dedicated circuit
Built in refrigerator holds one gallon of milk
Produce 21 drinks at the push of a button
ITEM 4 Coffee Brewer (Qty. 2) Bunn Coffee Brewer Model #23400.0011 12 cup Coffee Brewers
Gravity flow dispense tube system
Thermally insulated
ITEM 5 Refrigerated/Dry Display Case Structural Concepts Model H5C4850LR Self contained unit furnished with front and rear locks 120 volts, 11.13 Amps
Shelf/shelves removable and adjustable
vertically
Exhibit C
RVPUB\HSHANE\747813.1
EXHIBIT “C”
SERVICES
The intention of the City of Fontana is to obtain a qualified, knowledgeable vendor to operate the coffee/juice bar. Qualified vendors will demonstrate the ability to create an atmosphere that compliments the programming offered within the facility (operated during the Fontana Community Senior Center operating hours and during City sponsored special events) and provide a relaxed setting for customers to enjoy their refreshments while surfing the Internet, reading a book, or enjoying one of the many programs at the facility. Current operating hours of the Fontana Co mmunity Senio r Center are Monday through Friday 8 a.m. to 5:00 p.m.; Saturday 8 a.m. to 12 p.m. and closed on Sundays. Please note that the hours of operation may change.
The ideal vendor will demonstrate the ability to create an operations plan that will maintain the desired coffee/juice bar atmosphere and will be willing to work with City staff to offer customers access to scheduled and special programming.