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GROUND LEASE
by and between
CITY OF FONTANA,
a California municipal corporation
("Landlord")
and
WATER OF LIFE COMMUNITY CHURCH,
a California nonprofit religious corporation
("Tenant")
ATTACHMENT NO. 4
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TABLEOFCONTE NTS
Page
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ARTICLE 1. PREMISES AND BACKGROUND......................................................................1
1.01. The Premises..........................................................................................1
1.02. Lease ......................................................................................................1
1.03. Purchase Agreement; Leaseback ...........................................................1 ARTICLE 2. TERM 1
2.01. Term.......................................................................................................1
2.02. Commencement .....................................................................................1
2.03. Tenant Early Termination Right ............................................................2 ARTICLE 3. RENT 2
3.01. Base Rent ...............................................................................................2
3.02. CityLink Services Rent Reduction.........................................................2
3.03. Cessation of CityLink Social Services...................................................2
3.04. Rent Reset ..............................................................................................3
3.05. Net Lease ...............................................................................................3 ARTICLE 4. USE, CHARACTER AND OPERATION OF IMPROVEMENTS...................3
4.01. General...................................................................................................3
4.02. Use Obligations......................................................................................4
4.03. Use Prohibitions.....................................................................................4
4.04. Landlord Improvements.........................................................................5
4.05. Governmental Requirements .................................................................5
4.06. Governmental Capacity; No Entitlement...............................................6 ARTICLE 5. CONSTRUCTION AND MAINTENANCE OF IMPROVEMENTS ...............6
5.01. Required Governmental Permits............................................................6
5.02. Premises Conditions...............................................................................6
5.03. Grant of Easements ................................................................................7
5.04. Maintenance; Repairs, Alterations; Reconstruction ..............................7
5.05. Ownership of Improvements..................................................................8
5.06. Future Improvements; Landlord Approval ............................................9
5.07. Construction Costs; Liens......................................................................9
5.08. CEQA; Governmental Approvals ..........................................................9
5.09. Prevailing Wage Compliance ................................................................9
5.10. Landlord Review; No Responsibility...................................................10 ARTICLE 6. TAXES AND ASSESSMENTS............................................................................10
6.01. Personal Property Taxes ......................................................................10
6.02. Real Property Taxes.............................................................................10
6.03. Tenant's Tax Liability Prorated............................................................10
6.04. Revenue & Taxation Code Section 107.6............................................10 ARTICLE 7. UTILITIES............................................................................................................11 ARTICLE 8. INSURANCE AND INDEMNITY ......................................................................11
8.01. Indemnity .............................................................................................11
8.02. Insurance..............................................................................................11
8.03. Review .................................................................................................12 ATTACHMENT NO. 4
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TABLEOFCONTE NTS
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8.04. Proof of Coverage................................................................................12
8.05. Environmental Indemnity ....................................................................12
8.06. Hazardous Materials Compliance; Notice ...........................................14
8.07. Environmental Testing.........................................................................14 ARTICLE 9. CONDEMNATION ..............................................................................................15
9.01. Definitions............................................................................................15
9.02. Parties' Rights and Obligations to be Governed by Lease ...................15
9.03. Total Taking.........................................................................................15
9.04. Effect of Partial Taking........................................................................15
9.05. Restoration of the Premises .................................................................15
9.06. Waiver of Code of Civil Procedure Section 1265.130 ........................16
9.07. Award...................................................................................................16 ARTICLE 10. TENANT DEFAULTS AND LANDLORD'S REMEDIES ............................16
10.01. Defaults by Tenant...............................................................................16
10.02. Landlord's Remedies............................................................................16
10.03. Continuation.........................................................................................17
10.04. Entry.....................................................................................................17
10.05. Rights Cumulative ...............................................................................17
10.06. Landlord's Right to Cure Tenant's Default ..........................................18 ARTICLE 11. MISCELLANEOUS ...........................................................................................18
11.01. Holding Over .......................................................................................18
11.02. Attorneys' Fees.....................................................................................18
11.03. Quiet Possession ..................................................................................18
11.04. Force Majeure ......................................................................................18
11.05. Notices .................................................................................................19
11.06. Waiver..................................................................................................20
11.07. Surrender..............................................................................................20
11.08. Binding.................................................................................................20
11.09. Landlord's Right to Enter the Premises................................................20
11.10. Disclaimer of Partnership ....................................................................21
11.11. Memorandum.......................................................................................21
11.12. Quitclaim..............................................................................................21
11.13. Interpretation........................................................................................21
11.14. Covenants and Conditions ...................................................................21
11.15. Integration ............................................................................................21
11.16. Estoppel Certificate..............................................................................22
11.17. Landlord's Right to Sell .......................................................................22
11.18. Assignment; Sublease; Encumbrances ................................................22
11.19. Proprietary and Governmental Roles...................................................22
11.20. Non-Liability of City Officials ............................................................22 ATTACHMENT NO. 4
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LOT C GROUND LEASE
THIS GROUND LEASE (the "Lease") is made and entered into as of , 2026 (the “Effective Date ”), by and between the CITY OF FONTANA, a California municipal corporation ("Landlord " or “City”), and WATER OF LIFE COMMUNITY CHURCH, a California nonprofit religious corporation ("Tenant" or “WOL”), in connection with that certain Purchase and Sale Agreement and Joint Escrow Instructions dated , 2026, by and between Landlord, as buyer, and Tenant, as seller (the "Purchase Agreement"), who agree as follows:
ARTICLE 1. PREMISES AND BACKGROUND.
1.01. The Premises. Landlord is the owner, or concurrently with the commencement of this Lease will be the owner, of that certain real property commonly known as Lot C, APN 1100- 091-71-0000, located in the City of Fontana, County of San Bernardino, State of California, as more particularly described in Exhibit A, attached hereto and incorporated herein by reference (the " Premises"). A map of the Premises is attached as Exhibit B , attached hereto and incorporated herein by reference.
1.02. Lease. For and in consideration of the payment of rentals and the performance of all the covenants and conditions of this Lease, Landlord hereby leases and demises to Tenant, and Tenant hereby leases and hires from Landlord, the Premises for the purposes set forth herein.
1.03. Purchase Agreement; Leaseback. This Lease is entered into as a material part of, and concurrently with, the closing under the Purchase Agreement. The parties acknowledge that Tenant (as seller under the Purchase Agreement) conveyed, or concurrently with the commencement of this Lease will convey, fee title to the Premises to Landlord (as buyer under the Purchase Agreement) pursuant to the Purchase Agreement, and that this Lease constitutes the agreed leaseback of the Premises to Tenant. Nothing in this Lease shall modify, waive, or limit either party’ s rights or obligations under the Purchase Agreement, except to the extent expressly stated herein.
ARTICLE 2. TERM.
2.01. Term. The initial term of this Lease (the " Lease Term") shall be fifty-five (55) years and shall expire at 11:59 p.m. on the day immediately preceding the fifty-fifth (55th) anniversary of the Commencement Date, unless terminated earlier in accordance with the provisions of this Lease.
2.02. Commencement. The Lease Term shall commence on the date Landlord acquires fee title to the Premises pursuant to that certain Purchase and Sale Agreement and Joint Escrow Instructions between Landlord and Tenant relating to Lot C and Lot D, provided that this Lease has been fully executed by the parties (the " Commencement Date"). If the closing under the ATTACHMENT NO. 4
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Purchase Agreement does not occur, this Lease shall not commence and shall be of no force or effect.
2.03. Tenant Early Termination Right. Tenant may terminate this Lease at any time upon not less than six (6) months prior written notice to Landlord, which termination shall be effective on the date specified in Tenant’ s notice, but in no event earlier than six (6) months after Landlord’ s receipt of such notice. Tenant shall remain responsible for all Rent, taxes, insurance, maintenance obligations, indemnity obligations, surrender obligations, and other obligations accruing through the effective date of termination.
ARTICLE 3. RENT.
3.01. Base Rent. During years 1 through 14 of the Lease Term, the base rent for the Premises shall be Twelve Thousand Dollars ($12,000.00) per month (the "Base Rent"), payable monthly in advance on or before the first day of each calendar month, subject to reduction as provided in Section 3.02. The parties acknowledge that Base Rent is intended to reflect the agreed value differential between the amount forgiven by Landlord under that certain Promissory Note dated March 22, 2023, and the agreed value of Lots C and D acquired by Landlord pursuant to the Purchase and Sale Agreement.
3.02. CityLink Services Rent Reduction. Notwithstanding Section 3.01, and subject to all applicable notice and cure periods, so long as: (a) CityLink Social Services are continuously operated at the CityLink Campus, and (b) the Public Benefit Use Covenant remains in effect and WOL is not in default beyond applicable notice and cure periods thereunder, Base Rent shall be reduced to One Dollar ($1.00) per year. For purposes of this Lease, "CityLink Social Services" means the operation of homeless support, case management, food, clothing, resource navigation, or similar services for homeless, disadvantaged, and other vulnerable populations within the City, substantially consistent with the services operated as of the Commencement Date at that certain real property located at 16029 Arrow Boulevard, Fontana, California, consisting of APN 0232-201-12-000 (“Parcel 1”) as the same may be modified by any lot line adjustment affecting Parcel 1 (the “CityLink Campus ”). The parties acknowledge that the Public Benefit Use Covenant is intended to be recorded against Parcel 1, and not against the Premises. This Section
3.02 establishes a rent-reduction condition only and does not limit, modify, or supersede the Public Benefit Use Covenant. “Public Benefit Use Covenant” means that certain public benefit use covenant attached to this Lease and to be recorded against Parcel 1 (or such portion thereof as is described therein), requiring the continued operation of services for homeless, disadvantaged, and other vulnerable populations within the City for the period set forth therein.
3.03. Cessation of CityLink Social Services. If: (a) CityLink Social Services cease to be continuously operated at the CityLink Campus prior to the commencement of year 15 of the Lease Term, and such cessation continues beyond thirty (30) days after written notice from Landlord (or, if the cessation cannot reasonably be cured within thirty (30) days, such longer period as is reasonable so long as Tenant commences cure within such 30-day period and diligently pursues it to completion, but in any event not to exceed ninety (90) days without Landlord’ s written consent, not to be unreasonably withheld), or (b) if the Public Benefit Use Covenant remains in effect and Tenant is in default beyond any applicable notice and cure period thereunder, then Base Rent shall revert to the amount set forth in Section 3.01 beginning on the ATTACHMENT NO. 4
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first day of the calendar month following expiration of the applicable notice and cure period and continuing until the earliest of: (a) the date CityLink Social Services have resumed and Tenant is no longer in default beyond any applicable notice and cure period under the Public Benefit Use Covenant; (b) the commencement of year 15 of the Lease Term; (c) Tenant's proper termination of this Lease pursuant to Section 2.03; or (d) the expiration or earlier termination of this Lease. Reversion of Base Rent under this Section shall be in addition to, and shall not limit, any rights or remedies of Landlord or the City under the Public Benefit Use Covenant or the Purchase Agreement. Notwithstanding the foregoing, if CityLink Social Services cease to be continuously operated more than three (3) times during years 1 through 14 of the Lease Term, beyond any applicable notice and cure period then Tenant shall permanently lose the rent reduction under Section 3.02 for the remainder of years 1 through 14 of the Lease Term, and Base Rent shall thereafter be payable in the amount set forth in Section 3.01. For purposes of this Section, each separate cessation of CityLink Social Services that continues beyond thirty (30) days after written notice from Landlord shall count as one cessation.
3.04. Rent Reset. Commencing on the first day of year 15 of the Lease Term and continuing for the remainder of the Lease Term, Base Rent shall automatically be reduced to One Dollar ($1.00) per year. Nothing in this Section 3.04 shall modify, waive, limit, or supersede Tenant’ s obligations under the Public Benefit Use Covenant.
3.05. Net Lease. This Lease is a net lease, and Rent and other payments due and payable hereunder to or on behalf of Landlord shall be paid without notice or demand and without offset, counterclaim, abatement, suspension, deferment, deduction or defense, except for the rent reduction expressly provided in this Article 3.
ARTICLE 4. USE, CHARACTER AND OPERATION OF IMPROVEMENTS.
4.01. General. Tenant may only use the Premises as set forth herein:
A. Permitted Use. Tenant may use the Premises for parking, and related church, ministry, and ancillary uses, including parking and access uses ancillary to CityLink Social Services operated at the CityLink Campus, and for no other purpose without Landlord's prior written consent (the “Permitted Use”). No building, structure, canopy, solar facility, permanent vertical improvement, or material expansion (collectively, the "Improvements") or change in use shall be constructed, installed, or undertaken on the Premises without Landlord’ s prior written approval, which approval may be granted, conditioned, or withheld in Landlord’ s reasonable discretion, and shall be subject to all required governmental approvals, CEQA (as defined in Section 5.08) compliance, insurance, prevailing wage compliance, and the other requirements of this Lease.
B. Landlord Reserved Use Rights. Landlord reserves the right to access and use the Premises for public agency training operations and related governmental purposes, provided that Landlord shall coordinate such use with Tenant in advance and shall not unreasonably interfere with Tenant's Permitted Use or CityLink Social Services. Tenant shall not install gates, barriers, signage, striping, reserved parking, equipment, or other improvements that would materially impair Landlord’ s reserved rights under this Section without Landlord’ s prior ATTACHMENT NO. 4
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written consent. Landlord shall promptly repair any damage to the Premises solely caused by Landlord’ s use of the Premises.
C. Tenant Improvements. Tenant shall maintain, repair, replace, restripe, expand, or improve parking lot Improvements on the Premises at its sole cost, subject to Section
5.01. Tenant shall obtain all required governmental permits and approvals at Tenant's sole cost.
Any proposed building, structure, permanent vertical improvement, material alteration, change in drainage, change in access, change in parking layout, or improvement that may affect Landlord’ s reserved use rights shall require Landlord’ s prior written approval and shall be subject to Sections
5.07 through 5.10 below.
4.02. Use Obligations. There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, age, handicaps, sex, marital status, sexual orientation, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Premises or the improvements thereon, or any part thereof, and Tenant itself, or any person claiming under or through it, shall not establish or permit any such practice of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, subtenants or vendees of the Premises or the improvements thereon, or any part thereof. For the avoidance of doubt, nothing in this Section 4.02 shall be construed to restrict or interfere with Tenant’ s rights, as a church and nonprofit religious organization, to govern its internal affairs, conduct its worship and ministries, select its ministers, employees, volunteers, members, or participants, or make decisions consistent with its sincerely held religious beliefs, in each case to the fullest extent permitted by applicable law. Nothing in this Section shall waive or limit any exemption, defense, immunity, right, or protection otherwise available to Tenant under applicable law.
4.03. Use Prohibitions. Tenant agrees that in connection with the use and operation of the Premises it will not:
A. assign or otherwise transfer its interest in this Lease, without the express written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed; or
B. Sublease all or any portion of the Premises and improvements thereon without the express written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed; or
C. Use or permit the use of any objectionable advertising medium such as, without limitation, loudspeakers, phonographs, public address systems, sound amplifiers, radio or broadcast within the improvements in such manner that any sounds reproduced, transmitted or produced shall be directed primarily beyond the interior of the improvements or common areas (provided, however, that nothing herein shall be deemed to prohibit the installation and use of a public address system for security purposes), or background music and will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the interior of the improvements or common areas; or
ATTACHMENT NO. 4
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D. Cause or permit materially offensive odors to emanate from the Premises in a manner that constitutes a nuisance under applicable law; or E. Permit unreasonable accumulations of garbage, trash, rubbish or any other refuse; or
F. Create, cause, maintain or permit any nuisance (as defined under applicable law) in, on or about the Premises; or
G. Commit or suffer to be committed any waste (as defined under applicable law) in, on or about the Premises; or
H. Knowingly use or allow the Premises to be used for any unlawful purpose, or for any purpose which violates the terms of any recorded instrument which affects the Premises and which is senior in priority to this Lease; or
I. By any act or omission of Tenant, cause any insurance coverage required under this Lease to become void or voidable, unless Tenant obtains replacement coverage without a lapse, or make such required coverage unavailable at commercially reasonable rates; or J. Violate any law, ordinance or regulation applicable to the Premises and the improvements thereon.
K. Use any portion of the Premises for residential occupancy, school operations, daycare operations other than incidental child supervision during church or ministry activities, retail sales unrelated to Tenant’ s nonprofit religious or ministry purposes, commercial storage, industrial use, cannabis-related activities, adult-oriented uses, gambling, nightclub or entertainment uses, or any other use not expressly permitted under this Lease; or L. Use or permit the Premises to be used in a manner that materially interferes with Landlord’ s reserved use rights, public safety operations, access rights, or governmental functions.
4.04. Landlord Improvements. Landlord shall have the right to construct, install, maintain, repair, replace, and remove improvements on the Premises, provided that such improvements do not materially interfere with Tenant’ s continued use of the Premises for the Permitted Use. Landlord shall coordinate such work with Tenant in advance, except in an emergency or where immediate action is necessary for public health, safety, or governmental purposes.
4.05. Governmental Requirements. Tenant shall at all times comply in all respects with, and shall pay all costs and expenses incurred or required to be paid in order to comply with, any and all laws, statutes, ordinances, rules and regulations (“Laws”) applicable to Tenant’ s use, occupancy, operation, maintenance, repair, alteration or construction on the Premises, including those requiring alterations or additions to be made to, or safety appliances and devices to be maintained or installed in, on or about the Premises. Tenant shall also pay any fees, charges or assessments directly arising from Tenant’ s use or operation of the Premises. Tenant shall, at Tenant’ s sole cost, obtain and maintain all licenses, permits, approvals, certificates and ATTACHMENT NO. 4
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inspections required by applicable Law for Tenant’ s use, occupancy, maintenance, repair, alteration, construction or operation of the Premises. Notwithstanding the foregoing, Tenant shall not be responsible under this Section to the extent: (a) Tenant proves by clear and convincing evidence such condition or non-compliance predates Tenant’ s ownership of the Property; or (b) Tenant proves by clear and convincing evidence that a condition arises from Landlord’ s gross negligence or willful misconduct after the Commencement Date or arising from Landlord’ s reserved use, improvements, acts or omissions, except to the extent caused or exacerbated by Tenant. Tenant may contest any requirement in good faith, provided that such contest does not subject City or the Premises to any risk, lien or liability.
4.06. Governmental Capacity; No Entitlement. This Lease is entered into by Landlord in its proprietary capacity as owner and landlord of the Premises, and not in its governmental or regulatory capacity. Nothing in this Lease shall be deemed to grant, approve, vest, waive, modify, or supersede any entitlement, permit, approval, inspection, zoning requirement, CEQA determination, building permit, condition of approval, code requirement, or other governmental requirement applicable to the Premises or Tenant’ s use or improvements. Landlord’ s approval under this Lease shall not constitute approval by Landlord in its governmental capacity, and the Landlord shall retain full discretion to approve, condition, deny, or otherwise act on any permit, entitlement, CEQA determination, or governmental approval. Any failure or refusal by the City, acting in its governmental capacity, to approve any permit, entitlement, CEQA document, building permit, inspection, or other governmental approval shall not constitute a default by Landlord under this Lease.
ARTICLE 5. CONSTRUCTION AND MAINTENANCE OF IMPROVEMENTS.
5.01. Required Governmental Permits. Tenant shall procure, and upon Landlord's request, deliver to Landlord at Tenant's expense, evidence of compliance with all then applicable codes, ordinances, regulations and requirements for permits and approvals applicable to any construction, alteration, or other improvement work performed by or for Tenant on the Premises that requires a governmental permit or approval. Tenant shall not commence any construction, alteration, demolition, grading, paving, utility work, drainage work, building work, or other improvement work on the Premises unless Tenant has first obtained all required governmental approvals and Landlord’ s written approval under this Lease. Notwithstanding the foregoing, no Landlord approval shall be required for ordinary maintenance, repair, replacement in kind, cleaning, landscaping, restriping, or other non-structural/non-capital improvement work, provided such work in the aggregate does not exceed $250,000 in a calendar year.
5.02. Premises Conditions. Tenant acknowledges that Tenant is the prior owner of the Premises and, prior to the Commencement Date, owned, occupied, used, operated, maintained, and controlled the Premises. Tenant further acknowledges that Landlord is acquiring the Premises from Tenant pursuant to the Purchase Agreement and is leasing the Premises back to Tenant immediately following such acquisition. Landlord makes no covenants, representations, or warranties respecting any condition of the Premises, including its physical condition, environmental condition, prior use, suitability, access, utilities, zoning, compliance with laws, or fitness for any particular purpose, except to the extent expressly set forth in the Purchase Agreement. By entering on, continuing possession of, and accepting the Premises as of the Commencement Date, Tenant accepts the Premises AS IS, WHERE IS, WITH ALL FAULTS, ATTACHMENT NO. 4
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without reliance on any representation or warranty by Landlord under this Lease. Landlord shall have no obligation to investigate, remediate, repair, restore, improve, or otherwise alter the Premises, except as expressly provided in this Lease.
5.03. Grant of Easements. Landlord may, in its reasonable discretion, cooperate with Tenant in granting easements reasonably necessary to serve the Premises, subject to Landlord approval and at Tenant’ s cost.
5.04. Maintenance; Repairs, Alterations; Reconstruction.
A. Tenant Required to Maintain Premises.
(1) Definition of Duty; Compliance with Laws. Throughout the Term, Tenant shall, at Tenant's sole cost and expense, maintain the Premises and all Improvements, including all parking areas, drive aisles, striping, lighting, landscaping, drainage facilities, and other improvements located on the Premises, in good condition and repair (and in no event in a condition materially worse than as of the Commencement Date), ordinary wear and tear excepted, and in accordance with all applicable laws, rules, ordinances, orders and regulations of federal, state, county, municipal and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus and officials. Notwithstanding the foregoing, Tenant shall not be responsible for any condition or noncompliance to the extent: (i) Tenant proves by clear and convincing evidence that such condition or non-compliance predates Tenant’ s ownership of the Property; or (b) Tenant proves by clear and convincing evidence that a condition arises from Landlord’ s gross negligence or willful misconduct after the Commencement Date, or any condition arising from Landlord's reserved use, entry, improvements, acts, or omissions, except in each case, to the extent caused or exacerbated by Tenant. Tenant shall keep the Premises clean, safe, sanitary, secure, graffiti-free, free of debris and nuisance conditions, and suitable for the permitted parking, church, and ministry uses. Nothing in this Section shall be construed to make Tenant an insurer of the safety or security of the Premises. Landlord shall have no duty or obligation to insure the Premises or any Improvements. (2) Tenant shall promptly and diligently repair, restore, and replace as reasonably necessary to maintain or comply as above. Landlord shall not be required to furnish any services or facilities or to make any repairs or alterations of any kind in or on the Premises except to the extent necessitated by Landlord’ s acts or omissions. (3) Nothing in this provision defining the duty of maintenance shall be construed as limiting any right given elsewhere in this Lease to alter, modify, demolish, remove or replace any improvement, or as limiting provisions relating to condemnation or to damage or destruction during the final year or years of the Term. No deprivation, impairment or limitation of use resulting from any event or work contemplated by this section shall entitle Tenant to any offset, abatement, or reduction in rent nor to any termination or extension of the Term. (4) In determining whether Tenant has acted promptly as required under the foregoing paragraph, one of the criteria to be considered is the availability of any applicable insurance proceeds.
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(5) If Tenant elects not to restore after damage or destruction, in accordance with the provisions of this Lease, all insurance proceeds received by Tenant as a result of such damage or destruction shall be Tenant's sole property.
5.05. Ownership of Improvements.
A. Ownership of Any New Improvements. Any and all Improvements constructed on the Premises by Tenant as permitted by this Lease shall be owned by Tenant until expiration of the Term or sooner termination of this Lease. Tenant shall not waste, destroy or modify any Improvements on the Premises, except as permitted by this Lease.
B. Equipment, Chattel, Trade Fixtures. All articles of personal property, including all chattel and business and trade fixtures, machinery, equipment, furniture and movable partitions owned by Tenant or any subtenants, and which where installed by Tenant or subtenants at their expense on the Premises, shall remain the property of Tenant or subtenant, respectively, and may be removed at any time during the Term or upon termination of this Lease. Tenant shall be responsible for the repair of any damage caused by such removal.
C. Ownership at Termination. Subject to the provisions of Section 5.05.D, all Improvements on the Premises at the expiration of the Term or sooner termination of this Lease shall, without compensation to Tenant, then become Landlord's property free and clear of all claims to or against them by Tenant or any third person, and Tenant shall defend and indemnify Landlord against all liability and loss arising from such claims or from Landlord's exercise of the rights conferred by this paragraph.
D. Tenant's Duty to Remove. At the expiration or sooner termination of the Term, Landlord may, at Landlord's election, demand the removal from the Premises of all fixtures and Improvements constructed or placed on the Premises by Tenant or of certain fixtures or improvements or both, as specified in the notice provided for below. Notwithstanding the foregoing, with respect to the scheduled expiration of the Term only, Tenant shall not be required to remove any fixture or Improvement unless Landlord notified Tenant in writing at least one hundred eighty (180) days before the scheduled expiration of the Term. A demand to take effect at the normal expiration of the Term shall be effected by notice given at least one hundred eighty (180) days before the expiration date. A demand to take effect on any other termination of the Lease shall be effected by notice given in or concurrently with notice of such termination or within fifteen (15) days after such termination. Tenant shall comply with the notice before the expiration date, for normal termination, and within thirty (30) days after the notice for other terminations.
The cost of such removal shall be paid by Tenant. The duty imposed by this provision includes but is not limited to the duty to fill all excavations, return the surface to grade and leave the Premises safe and free from debris and hazards; provided that, after compliance with a demand for removal of less than all fixtures and Improvements, Tenant shall be required to remedy only willful and negligent injuries to the Premises or remaining Improvements or fixtures. The duty imposed by this Section 5.05 shall not include an obligation to remove underground utilities, parking and sidewalk areas and landscaping or any fixtures or improvements installed or constructed by or for Landlord.
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E. Waiver. The provisions of this Article 5 shall govern the rights of the parties in the event of any full or partial destruction of Improvements on the Premises. Tenant hereby waives the provisions of Civil Code section 1932(2) and Civil Code section 1933(4) with respect to any destruction of any Improvements on the Premises to the extent that such Civil Code sections are inconsistent with the provisions of this Article 5.
5.06. Future Improvements; Landlord Approval. Except for ordinary maintenance and repair of existing parking improvements that does not materially alter the Premises, Tenant shall not construct, install, demolish, expand, materially alter, or replace any Improvements without Landlord’ s prior written approval. Tenant’ s request for approval shall include plans, specifications, site layout, proposed schedule, contractor information, evidence of insurance, evidence of required governmental approvals, and such other information as Landlord may reasonably request. Landlord’ s review shall be solely in Landlord’ s proprietary capacity and shall not constitute approval in Landlord’ s governmental capacity.
5.07. Construction Costs; Liens. Tenant shall pay when due all costs of labor, services, materials, equipment, design, engineering, permits, fees, inspections, and other costs incurred in connection with any work performed by or for Tenant on the Premises. Tenant shall not permit any mechanic’ s lien, stop payment notice, bonded stop payment notice, encumbrance, or similar claim to be recorded, served, or asserted against Landlord’ s fee interest or the Premises. Tenant shall cause any such lien or claim to be released, bonded around, or otherwise discharged within thirty (30) days after Tenant obtains actual knowledge thereof. Tenant shall indemnify, defend, and hold harmless Landlord and its elected officials, officers, employees, agents, attorneys, representatives, volunteers, successors, and assigns from and against all claims, liens, stop notices, liabilities, penalties, attorneys’fees, costs, and expenses arising out of or relating to any work performed by or for Tenant on the Premises.
5.08. CEQA; Governmental Approvals. Tenant acknowledges that this Lease, the Purchase Agreement, Tenant’ s use of the Premises, and any construction, alteration, repair, expansion, replacement, or other work on the Premises may be subject to review under the California Environmental Quality Act, Public Resources Code Section 21000 et seq. (“CEQA”), and other applicable laws. Nothing in this Lease commits Landlord to approve any future discretionary approval, permit, entitlement, improvement, use, or project before completion of any required CEQA review. Tenant shall not commence any work or use requiring CEQA review or other governmental approval unless and until all required approvals have been obtained and all applicable CEQA requirements have been satisfied. Tenant shall be solely responsible for all costs associated with CEQA review required for Tenant’ s proposed use or work on the Premises, except to the extent otherwise expressly agreed by Landlord in writing. Tenant shall indemnify, defend, and hold harmless Landlord from and against any claims, actions, proceedings, costs, or liabilities arising out of Tenant’ s failure to comply with CEQA or other applicable governmental approval requirements.
5.09. Prevailing Wage Compliance. Tenant acknowledges that this Lease, any construction, alteration, demolition, installation, repair, maintenance, or other work performed on or about the Premises may be subject to California prevailing wage requirements, including Labor Code Section 1720 et seq. and Section 1770 et seq., depending on the nature of the work and the source and structure of any public funds, assistance, subsidy, rent reduction, loan ATTACHMENT NO. 4
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forgiveness, or other public participation. Tenant shall be solely responsible for determining whether prevailing wage requirements apply to any work performed by or for Tenant on the Premises and, if applicable, for complying with all such requirements, including payment of prevailing wages, contractor and subcontractor registration, certified payroll records, apprenticeship requirements, notices, and all related compliance obligations. Tenant shall indemnify, defend, and hold harmless City from and against any claims, liabilities, penalties, assessments, back wage obligations, liquidated damages, attorneys’fees, costs, or enforcement proceedings arising out of or relating to Tenant’ s failure to comply with applicable prevailing wage requirements. Nothing in this Lease shall be deemed an admission that any particular work is or is not a “public work” or otherwise subject to prevailing wage requirements. Tenant’ s obligations under this Section shall survive the earlier termination or expiration of this Lease.
5.10. Landlord Review; No Responsibility. Landlord shall have no duty to review, inspect, supervise, approve, or accept any plans, specifications, work, labor, materials, construction methods, contractors, subcontractors, or other matters relating to Tenant’ s Improvements or work on the Premises. Any review, inspection, observation, approval, or consent by Landlord shall be solely for Landlord’ s own purposes, shall not be relied upon by Tenant or any third party, shall not constitute approval of the quality, safety, sufficiency, legality, or compliance of any work, and shall not reduce or limit Tenant’ s obligations under this Lease.
ARTICLE 6. TAXES AND ASSESSMENTS.
6.01. Personal Property Taxes. Tenant shall pay before delinquency all taxes, assessments, license fees and other charges that are levied and assessed against Tenant's personal property installed or located in or on the Premises which become payable during the term. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments.
6.02. Real Property Taxes. Tenant shall pay all real property taxes (including, if applicable, any possessory interest taxes and personal property taxes), general and special taxes and assessments (" Real Property Taxes ") levied and assessed against the Premises, the Improvements, and Tenant's alterations on the Premises. Tenant shall pay the Real Property Taxes not later than the taxing authority's delinquency date. To the extent applicable, Landlord will forward copies of any relevant tax notices received by Landlord to facilitate Tenant’ s compliance with this Section.
6.03. Tenant's Tax Liability Prorated. Tenant's liability to pay Real Property Taxes and new assessments shall be prorated on the basis of a 365-day year to account for any fractional portion of a fiscal tax year included in the Lease Term at its inception and expiration or earlier termination in accordance with this Lease.
6.04. Revenue & Taxation Code Section 107.6. Possessory Interest Tax. Tenant recognizes and understands that this Lease may create a possessory interest subject to property ATTACHMENT NO. 4
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taxes and that, in the event that a possessory interest is created, Tenant shall be responsible for payment of any taxes levied against such possessory interest.
ARTICLE 7. UTILITIES.
Tenant shall pay when due and shall hold Landlord harmless from any liability for all charges for water, gas, sewage, garbage collection, electricity, telephone and other utility service supplied to the Premises.
ARTICLE 8. INSURANCE AND INDEMNITY.
8.01. Indemnity.
A. Tenant’ s Indemnity. Subject to Section 8.08, Tenant shall protect, indemnify, defend, and hold harmless Landlord and its elected officials, officers, employees, agents, attorneys, representatives, volunteers, successors, and assigns from all demands, claims, actions, and damages to any person or property (including reasonable attorneys' fees) arising out of or connected with the use or occupancy of the Premises by Tenant, and Tenant’ s agents, employees, volunteers, and invitees, except to the extent (and then only to the extent) attributable to the gross negligence or willful misconduct of Landlord or Landlord's agents, officials, or employees.
B. Landlord’ s Indemnity. Subject to Section 8.08, Landlord shall indemnify, defend, and hold harmless Tenant and its officers, directors, employees, agents, and representatives from all demands, claims, actions, and damages to any person or property (including reasonable attorneys' fees) to the extent (and then only to the extent) arising out of the gross negligence or willful misconduct of Landlord or its agents, officials, or employees in connection with Landlord's ownership, reserved use of, entry upon, or activities on the Premises, except to the extent attributable to the negligence or willful misconduct of Tenant.
C. The obligations under this Section shall survive the earlier termination or expiration of this Lease.
8.02. Insurance.
A. General. Without limiting Tenant's indemnification of Landlord, Tenant shall provide and maintain at its own expense during the Lease Term the following programs of insurance covering its operations hereunder. Such insurance shall be provided by insurer(s) reasonably satisfactory to Landlord and evidence of such programs satisfactory to Landlord shall be delivered to Landlord on or before the Commencement Date of this Lease. Such evidence shall specifically identify this Lease and shall contain express conditions that Landlord is to be given written notice at least 30 days in advance of any material modification or termination of any program of insurance. Before commencing any construction, alteration, demolition, grading, paving, utility, drainage, building, or other improvement work on the Premises, Tenant shall also provide evidence satisfactory to Landlord that Tenant and its contractors maintain insurance appropriate for such work, including commercial general liability, automobile liability, workers’ compensation, builder’ s risk or installation coverage, and, if invasive, subsurface, hazardous materials, or environmental work is involved, pollution legal liability or contractor’ s pollution ATTACHMENT NO. 4
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liability coverage, in each case in amounts reasonably required by Landlord. All such policies shall name Landlord and its elected officials, officers, employees, agents, attorneys, representatives, volunteers, successors, and assigns as additional insureds where applicable and shall include primary and noncontributory coverage and waiver of subrogation endorsements where commercially available.
(1) Comprehensive General Liability Insurance endorsed for property- operations, products/completed operations and contractual liability, in the amount of at least $1,000,000 for any occurrence, $2,000,000 annual aggregate and $1,000,000 property damage. (2) Comprehensive Auto Liability Insurance endorsed for all owned and non-owned vehicles with a combined single limit of at least One Million Dollars ($1,000,000) per occurrence.
(3) Worker's Compensation Insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California and which specifically covers all persons providing services on behalf of Tenant under this Lease and all risks to such persons and employer's liability insurance with a limit of no less than $1,000,000 per employee and $1,000,000 per occurrence.
8.03. Review. The liability insurance requirements may be reviewed by Landlord and Tenant every five years for the purpose of mutually increasing (in consultation with their respective insurance advisors) the minimum limits of such insurance from time to time to limits which shall be reasonable and customary for similar facilities of like size and operation in accordance with generally accepted insurance industry standards. If the parties are unable to mutually agree upon such new limits within 30 days of a written demand by one party upon the other, the determination of an independent insurance advisor selected by the parties' insurance advisors shall be binding upon the parties.
8.04. Proof of Coverage. All policies required hereunder shall be with companies having a Best's A/VIII rating (and if Best's no longer exists, an equivalent rating). Executed copies of all policies of insurance or certificates thereof shall be delivered to Landlord. All insurance policies required by this Article 8 shall name Landlord as an additional insured. As often as any such policies shall expire or terminate, renewal or additional policies shall be procured and maintained in like manner and to like extent. All policies of insurance must contain a provision that the company writing such policy will give all parties 30 days advance written notice of any cancellation or lapse of the effective date or any reduction in the amounts of insurance.
Nothing in this Article 8 shall prevent Tenant from carrying insurance of the kind required of Tenant under a blanket insurance policy or policies which cover other properties owned or operated by Tenant. Tenant shall provide Landlord with certificates of insurance naming Landlord as an additional insured and setting forth the required coverage.
8.05. Environmental Indemnity.
A. Indemnity. Tenant agrees, from and after the Commencement Date, to defend, indemnify, protect and hold harmless Landlord and its officers, beneficiaries, public officials, volunteers, employees, agents, attorneys, representatives, legal successors and assigns ATTACHMENT NO. 4
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("Indemnitees") from, regarding and against any and all liabilities, obligations, orders, decrees, judgments, liens, demands, actions, Environmental Response Actions (as defined herein), claims, losses, damages, fines, penalties, expenses, Environmental Response Costs (as defined herein) or costs of any kind or nature whatsoever, together with fees (including, without limitation, reasonable attorneys' fees and experts' and consultants' fees), resulting from or in connection with the actual or claimed generation, storage, handling, transportation, use, presence, placement, migration and/or release of Hazardous Materials (as defined herein), at, on, in, beneath or from the Premises arising from or relating to: (i) Tenant’ s ownership, use, occupancy, operation, maintenance, or control of the Premises before the Commencement Date (but solely to the extent actually caused by Tenant); (ii) Tenant’ s use, occupancy, operation, maintenance, or control of the Premises during the Term; (iii) any work performed by or for Tenant on the Premises; or (iv) any act or omission of Tenant or Tenant’ s employees, agents, contractors, subcontractors, consultants, licensees, invitees, or representatives (sometimes herein collectively referred to as "Contamination"), except to the extent: (a) Tenant proves by clear and convincing evidence that such condition or non-compliance predates Tenant’ s ownership of the Property; or (b) Tenant proves by clear and convincing evidence that a condition was solely caused by the Landlord or Landlord's agents, employees, or contractors during the term of the Lease. Tenant's defense, indemnification, protection and hold harmless obligations herein shall include, without limitation, the duty to respond to any governmental inquiry, investigation, claim or demand regarding the Contamination, at Tenant's sole cost. Tenant’ s obligations under this Section shall survive the earlier termination or expiration of this Lease.
B. Release and Waiver. Tenant hereby releases and waives all rights, causes of action and claims Tenant has or may have in the future against the Indemnitees arising out of or in connection with any Hazardous Materials (as defined herein), at, on, in, beneath or from the Premises, except to the extent caused by Landlord during the term of the Lease.
C. Definitions.
(1) As used in this Lease, the term " Environmental Response Actions" means any and all activities, data compilations, preparation of studies or reports, interaction with environmental regulatory agencies, obligations and undertakings associated with environmental investigations, removal activities, remediation activities or responses to inquiries and notice letters, as may be sought, initiated or required in connection with any local, state or federal governmental or private party claims, including any claims by Tenant. (2) As used in this Lease, the term " Environmental Response Costs" means any and all costs associated with Environmental Response Actions including, without limitation, any and all fines, penalties and damages.
(3) As used in this Lease, the term "Hazardous Materials" means any substance, material or waste which is (1) defined as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under any provision of California law; (2) petroleum or petroleum products; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. section 1251 et seq. (33 U.S.C.§ 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. § 1317); (7) defined as a "hazardous substance" ATTACHMENT NO. 4
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pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. section 6901 et seq. (42 U.S.C. § 6903) or its implementing regulations; (8) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601 et seq. (42 U.S.C. § 9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property.
D. Materiality. Tenant acknowledges and agrees that the defense, indemnification, protection and hold harmless obligations of Tenant for the benefit of Landlord set forth in this Lease are a material element of the consideration to Landlord for the performance of its obligations under this Lease, and that Landlord would not have entered this Lease unless Tenant's obligations were as provided for herein.
8.06. Hazardous Materials Compliance; Notice. Tenant shall comply, and shall cause Tenant’ s employees, agents, contractors, subcontractors, consultants, licensees, invitees, and representatives to comply, with all Environmental Laws applicable to the Premises. Tenant shall not cause or permit any Hazardous Materials to be released, discharged, spilled, stored, treated, disposed of, or used on, under, or about the Premises except for ordinary and customary materials used in compliance with all Laws and in quantities reasonably necessary for Tenant’ s permitted use. Tenant shall promptly notify Landlord in writing of any known or suspected release, discharge, spill, regulatory notice, claim, investigation, or other environmental condition affecting the Premises and shall provide Landlord copies of all notices, reports, correspondence, and other materials received from or provided to any governmental authority or third party relating thereto.
8.07. Environmental Testing. Landlord shall have the right, but not the obligation, to enter the Premises upon reasonable notice, or without notice in an emergency or where required by a governmental authority, to conduct environmental inspections, testing, or sampling.
Landlord shall conduct such activities in a commercially reasonable manner so as not to unreasonably interfere with Tenant’ s operations. Tenant shall reimburse Landlord for the reasonable costs of such inspections, testing, or sampling to the extent such activities confirm the presence of Hazardous Materials released or caused by Tenant or from Tenant’ s use, occupancy, operations, work, or other obligations in violation of this Lease. Landlord shall bear the cost of all other inspections, testing, or sampling.
8.08. Waiver of Subrogation. Notwithstanding anything to the contrary in this Lease, Landlord and Tenant each hereby waive, and release the other (and the other's elected officials, officers, employees, agents, and representatives) from, any and all rights of recovery, claims, actions, or causes of action against the other for any loss or damage to persons or property to the extent such loss or damage is covered by, or required to be covered by, insurance carried or required to be carried under this Lease, regardless of the negligence of the released party. Each party shall cause each insurance policy it carries or is required to carry under this Lease to contain a waiver of subrogation endorsement consistent with this Section, and, to the extent a party self- ATTACHMENT NO. 4
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insures, such party shall be deemed to have waived subrogation to the same extent as if the applicable coverage were carried through a third-party insurer.
ARTICLE 9. CONDEMNATION.
9.01. Definitions.
A. " Condemnation" means (1) the exercise of any governmental power in eminent domain, whether by legal proceedings or otherwise, by a condemnor, and (2) a voluntary sale or transfer to any condemnor, either under threat of condemnation or while legal proceedings for condemnation are pending.
B. " Date of taking" means the date the condemnor has the right to possession of the property being condemned.
C. " Award" means all compensation, sums or anything of value awarded, paid or received on a total or partial condemnation.
D. " Condemnor" means any public or quasi-public authority, or private corporation or individual, having the power of condemnation.
9.02. Parties' Rights and Obligations to be Governed by Lease. If during the Lease Term there is any taking of all or any part of the Premises, any improvements on the Premises or any interest in this Lease by condemnation, the rights and obligations of the parties shall be determined pursuant to the provisions of this Article 9.
9.03. Total Taking. If the Premises is totally taken by condemnation, this Lease shall terminate on the date of taking.
9.04. Effect of Partial Taking. If any portion of the Premises or the improvements thereon is taken by condemnation, this Lease shall remain in effect, except that Tenant may elect to terminate this Lease if the remaining portion of the Premises is rendered unsuitable (as defined herein) for Tenant's continued use. The remaining portion of the Premises shall be deemed unsuitable for Tenant's continued use if following a reasonable amount of reconstruction, Tenant's facility on the Premises could not be operated in a manner that is comparable to the manner of operation prior to the date of the taking. Tenant must exercise its right to terminate by giving Landlord written notice of its election within 90 days after the nature and extent of the taking have been finally determined. Such notice shall also specify the date of termination, which shall not be prior to the date of taking. Failure to properly exercise the election provided for in this paragraph will result in this Lease continuing in full force and effect.
9.05. Restoration of the Premises. If, in Tenant's reasonable judgment, it is reasonably possible and economically feasible to do so, Tenant shall be entitled to use so much of the award as is necessary to restore or to add on to the Premises so that the area and approximate layout of the Premises will be substantially the same after the date of taking as they were before the date of taking. In such a case the remainder of the award shall belong to Landlord. If it is not ATTACHMENT NO. 4
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reasonably possible to so restore the area and layout of the Premises, the remaining provisions of this Article 9 shall govern the rights of the parties.
9.06. Waiver of Code of Civil Procedure Section 1265.130. Each party waives the provisions of the Code of Civil Procedure section 1265.130 allowing either party to petition the Superior Court to terminate this Lease in the event of a partial taking of the Premises.
9.07. Award. The award for the Premises and for the improvements shall belong to Landlord, except as hereinafter provided. Tenant shall be entitled to the value of its interest in any personal property and fixtures which it has the right to remove and to any portion of the award specified to apply to Tenant's goodwill, and to be compensated for interruption of or damage to Tenant's business, and compensation based upon the then fair market value of Tenant's interest in this Lease.
ARTICLE 10. TENANT DEFAULTS AND LANDLORD'S REMEDIES.
10.01. Defaults by Tenant. Any of the following occurrences shall constitute a default under this Lease:
A. Tenant fails to pay Rent or any other monetary sum required under this Lease when due, and such failure continues for five (5) business days after written notice from Landlord specifying the amount due; or
B. Tenant fails to keep or perform any other covenant or agreement contained in this Lease, including, without limitation, failure to comply with any CEQA, prevailing wage, or construction lien obligation under this Lease, and such failure continues for thirty (30) days after written notice from Landlord specifying the particulars of such failure; provided, however, that if the failure cannot reasonably be cured within such thirty (30)-day period, no default shall occur so long as Tenant commences the cure within such period and thereafter diligently pursues the cure to completion, provided no cure period shall extend past ninety (90) days without Landlord’ s approval; or
C. Tenant (i) makes a general assignment for the benefit of its creditors or file a petition for bankruptcy or other reorganization, liquidation, dissolution or similar relief; (ii) has a proceeding filed against it seeking any relief mentioned in (i) above which is not discharged within sixty (60) days thereafter; or (iii) has a trustee, receiver or liquidator appointed for Tenant or a substantial part of its property; or
D. Tenant assigns (whether or not such assignment is deemed to be effective) this Lease (or any rights therein or herein), or sells, transfers, conveys, assigns or leases the whole or any part of the Premises or any improvement constructed thereon in violation of this Lease.
10.02. Landlord's Remedies. In the event of any such default by Tenant, in addition to any other remedies available to Landlord at law or in equity, Landlord shall have the ATTACHMENT NO. 4
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immediate option to terminate this Lease and all rights of Tenant hereunder. In the event that Landlord shall elect to so terminate this Lease, then Landlord may recover from Tenant:
A. The worth at the time of Award of any unpaid Rent which had been earned at the time of such termination; plus
B. The worth at the time of Award of the amount by which the unpaid Rent which would have been earned after termination until the time of Award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus C. The worth at the time of Award of the amount by which the unpaid Rent for the balance of the term after the time of Award exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided.
As used in subparagraphs 10.02.A and B above, the "worth at the time of Award" is computed by allowing interest at 10% per annum. As used in subparagraph C above, the "worth at the time of Award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus 1%.
10.03. Continuation. In the event of any such default by Tenant, Landlord shall also have the remedy contained in Civil Code 1951.4 in which Landlord has the right to continue this Lease in full force and effect, and this Lease shall continue in effect as long as Landlord does not terminate Tenant's right to possession, and collect Rent when due. During the period Tenant is in default, Landlord can enter the Premises and relet them, or any part of them, to third parties for its own account or for the Tenant's account. Tenant hereby appoints Landlord its special attorney-in-fact for purposes of reletting for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises, including, without limitation, brokers' commissions, expenses of remodeling the Premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this Lease. Tenant shall pay the Landlord the Rent due under this Lease on the dates the Rent is due, less the Rent Landlord receives from any reletting. No act by Landlord allowed by this Article shall terminate this Lease unless Landlord notifies Tenant that Landlord elects to terminate this Lease.
10.04. Entry. In the event of any such default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to reenter the Premises and remove all persons and property from the Premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. No reentry or taking possession of the Premises by Landlord pursuant to this subsection shall be construed as an election to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction.
10.05. Rights Cumulative. All rights, options, and remedies of Landlord contained in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Landlord shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law, whether or not stated in this Lease. No waiver of any default of Tenant hereunder shall be implied from any acceptance by Landlord of ATTACHMENT NO. 4
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any rent or other payments due hereunder or any omission by Landlord to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect defaults other than as specified in such waiver. The consent or approval of Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent or approval to or of any subsequent or similar acts by Tenant.
10.06. Landlord's Right to Cure Tenant's Default. Landlord, at any time after Tenant commits a default which Tenant has failed to cure beyond applicable notice and cure periods, may cure the default at Tenant's cost. In addition, if Landlord reasonably determines that immediate action is necessary to protect public health or safety, preserve the Premises, prevent interference with Landlord’ s reserved use rights, comply with Law, remove a lien, respond to an environmental condition, or prevent material damage or liability, Landlord may take such action without prior notice to Tenant. If Landlord at any time, by reason of Tenant's default, pays any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid, and if paid at a later date, shall bear interest at the maximum rate permitted by law from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant. The sum, together with interest on it, shall be additional rent. Tenant shall also reimburse Landlord for reasonable administrative, consultant, contractor, attorney, and staff costs incurred in connection with such cure.
ARTICLE 11. MISCELLANEOUS.
11.01. Holding Over. If Tenant shall hold over the Premises after the expiration of the term hereof with the consent of Landlord, either express or implied, such holding over shall be construed to be only a tenancy from month to month, subject to all the covenants, conditions and obligations contained in this Lease. Tenant hereby agrees to pay to Landlord as monthly rental an amount equal to one hundred fifty percent (150%) of the monthly Base Rent set forth in Section 3.01, without giving effect to any reduction, reset, waiver, or abatement of Base Rent under Section 3.02, Section 3.03, Section 3.04, or any other provision of this Lease, together with any other monetary sums which are Tenant's obligations to pay under this Lease.
11.02. Attorneys' Fees. In the event that any action or arbitration is brought by either party hereto as against the other party hereto for the enforcement or declaration of any right or remedies in or under this Lease or for the breach of any covenant or condition of this Lease, then and in that event the prevailing party shall be entitled to recover, and the other party agrees to pay, all fees and costs to be fixed by the court or arbitrator therein including, but not limited to, reasonable attorneys' fees.
11.03. Quiet Possession. Landlord agrees that Tenant, so long as Tenant is not in default after notice and time to cure under this Lease and is paying the rent and performing the covenants and conditions of this Lease, shall quietly have, hold and enjoy the Premises throughout the term hereof.
11.04. Force Majeure. Except as to the payment of rent, neither of the parties hereto shall be chargeable with, liable for, or responsible to, the other for anything or in any amount for any delay caused by fire, earthquake, explosion, flood, hurricane, the elements, acts of God or the public enemy, action, inaction or interference of governmental authorities or ATTACHMENT NO. 4
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agents, including a City referendum or initiative, war, invasion, insurrection, rebellion, riots, strikes or lockouts or any other cause whether similar or dissimilar to the foregoing which is beyond the reasonable control of such parties and any delay due to said causes or any of them shall not be deemed a breach of or default in the performance of this Lease.
11.05. Notices.
A. " Notice" means any notice, demand, request or other communication or document to be provided under this Lease to a party to this Lease.
B. The Notice shall be in writing and shall be given to the party at its address or telecopy number set forth below or such other address as the party may later specify for that purpose by Notice to the other party. Each Notice shall, for all purposes, be deemed given and received:
(1) If hand-delivered to a party against receipted copy, when the copy of Notice is receipted;
(2) If given by a nationally-recognized and reputable overnight delivery service, the day on which the Notice is actually received by the party; or (3) If given by certified mail, return receipt requested, postage prepaid, two business days after it is deposited with the United States Postal Service. Notices or other documents sent by personal delivery shall be deemed received on the date of such delivery.
To Landlord: City of Fontana
Attn: City Manager
8353 Sierra Ave.
Fontana, CA 92335
Email: [email protected]
With a copy to: Best Best & Krieger LLP
Attn: Ruben Duran
2855 E. Guasti Rd., Suite 400
Ontario, CA 91761
Email: [email protected]
To Tenant: Water of Life Community Church
14418 Miller Avenue, Suite K
Fontana CA 92336
Attention: Mark Nuaimi
Email: [email protected]
With a copy (not constituting notice) to:
Joshua M. Jacobs
ATTACHMENT NO. 4
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Attn: Joshua M. Jacobs
401 B Street Suite 1200
San Diego, CA 92101
Email: [email protected]
C. The provisions above governing the date on which a Notice is deemed to have been received by a party to this Lease shall mean and refer to the date on which a party to this Lease, and not its counsel or other recipient to which a copy of the Notice may be sent, is deemed to have received the Notice.
D. If Notice is tendered under the provisions of this Lease and is refused by the intended recipient of the Notice, the Notice shall nonetheless be considered to have been given and shall be effective as of the date provided in this Lease. The contrary notwithstanding, any Notice given to either party in a manner other than that provided in this Lease, that is actually received by the noticed party, shall be effective with respect to such party on receipt of the Notice.
E. Either party hereto may from time to time by written notice to the other party designate a different address which shall be substituted for the one above specified. Notices shall be effective when received.
11.06. Waiver. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed to be a waiver of any succeeding breach of the same or other terms, covenants, agreements, restrictions and conditions hereof.
11.07. Surrender. Upon the expiration or sooner termination of the term of this Lease, and notwithstanding anything herein contained to the contrary, Tenant shall surrender the Premises to Landlord, together with the improvements then situated thereon, unless specifically exempted by this Lease, in good condition and repair, except for reasonable wear and tear.
Tenant shall remove all personal property, trade fixtures, debris, trash, and Hazardous Materials introduced or permitted by Tenant, and shall repair any damage caused by such removal.
Tenant’ s surrender obligations shall survive expiration or earlier termination of this Lease.
11.08. Binding. Subject to the restrictions set forth herein regarding assignment of the leasehold estate, each of the terms, covenants and conditions of this Lease shall extend to and be binding on and shall inure to the benefit of not only Landlord and Tenant, but to each of their respective heirs, administrators, executors, successors and assigns. Whenever in this Lease reference is made to either Landlord or Tenant, the reference shall be deemed to include, wherever applicable, the heirs, administrators, executors, successors and assigns of such parties, the same as if in every case expressed.
11.09. Landlord's Right to Enter the Premises. Landlord and its authorized representatives shall have the right to enter the Premises at all reasonable times, after giving Tenant reasonable prior written notice, for any of the following purposes: to determine whether the Premises is in good condition and whether Tenant is complying with its obligations under this Lease; to do any necessary maintenance and to make any restoration to the Premises that Landlord has the right or obligation to perform; to serve, post or keep posted any notices required ATTACHMENT NO. 4
Error! Unknown document property name.
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or allowed under the provisions of this Lease; to post "for rent" or "for lease" signs during the last 6 months of the Lease term, or during any period while Tenant is in default; to show the Premises to prospective brokers, agents, buyers, tenants or persons interested in an exchange, at any time during the term; and to do any act or thing necessary for the safety or preservation of the Premises if any excavation or other construction is undertaken or is about to be undertaken on any adjacent property or nearby street. Landlord shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance or other damage arising out of Landlord's entry on the Premises as provided in this Section other than those caused by Landlord's gross negligence or willful misconduct. Tenant shall not be entitled to an abatement or reduction of rent if Landlord exercises any rights reserved in this Section. No prior notice shall be required in an emergency, where entry is required by Law or governmental authority, where necessary to protect public health or safety, where necessary to prevent damage to the Premises, or where necessary to exercise Landlord’ s reserved use rights under Section 4.01.B.
11.10. Disclaimer of Partnership. The relationship of the parties hereto is that of Landlord and Tenant, and it is expressly understood and agreed that Landlord does not in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant's business or otherwise.
11.11. Memorandum. A Memorandum of this Lease may be recorded in the Official Records of San Bernardino County. Any amendment or modification thereof may, at the request of either party, also be recorded in the Official Records of San Bernardino County, California. A form of the Memorandum may be attached to this Lease or prepared by the parties in form reasonably acceptable to Landlord and Tenant.
11.12. Quitclaim. At the expiration or earlier termination of this Lease, Tenant shall execute, acknowledge and deliver to Landlord within 30 days after written demand from Landlord to Tenant, any quitclaim deed or other document required by any reputable title company to remove the cloud of this Lease from the real property subject to this Lease.
11.13. Interpretation. The titles to the paragraphs of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part of this Lease.
11.14. Covenants and Conditions. Each term and each provision, including, without limitation, the obligation for the payment of rent, to be performed by Tenant or Landlord, as the case may be, shall be construed to be both a covenant and a condition of this Lease.
11.15. Integration. This Lease and the exhibits and documents incorporated by reference, constitutes the entire agreement between the parties and there are no conditions, representations or agreements regarding the matters covered by this Lease which are not expressed herein. This Lease is entered into in connection with the Purchase Agreement and shall not modify, waive, supersede, or limit either party’ s rights or obligations under the Purchase Agreement unless expressly stated herein. In the event of a conflict between this Lease and the Purchase Agreement regarding the conveyance of Lot C or Lot D, the closing under the Purchase Agreement, title matters, closing deliveries, prorations, or satisfaction of the Note, the Purchase Agreement shall control. In the event of a conflict regarding Tenant’ s leasehold use, occupancy, ATTACHMENT NO. 4
Error! Unknown document property name.
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maintenance, insurance, indemnity, surrender, construction, improvements, or other post- Commencement Date obligations with respect to the Premises, this Lease shall control.
11.16. Estoppel Certificate. Tenant agrees to deliver, within 15 days after written request therefor by Landlord an estoppel certificate in a form reasonably requested by Landlord certifying that this Lease is unmodified and is in full force and effect (if such be the case), certifying the commencement and termination dates of the Lease Term, certifying that there has been no assignment or sublease of this Lease and that there are no defenses or offsets hereto (or stating those claimed by Tenant) and containing such other information as may reasonably be requested by the party to whom such certificate is addressed. Failure to deliver the estoppel certificate within 15 days shall be a default of the Lease, and shall be conclusive that this Lease is in full force and effect and that Tenant has no defenses or offsets against Landlord.
11.17. Landlord's Right to Sell. Landlord shall have the right to sell its fee estate in the Premises and assign its interest in this Lease without limitation; provided, however, that any such sale shall be subject to this Lease. Upon any such conveyance, Landlord shall automatically be relieved of any obligations under this Lease first accruing after the date of such conveyance. Landlord shall also have the right to mortgage, hypothecate or otherwise pledge its interest in the Premises and this Lease, subject to Tenant's rights under this Lease.
11.18. Assignment; Sublease; Encumbrances. Tenant shall not assign this Lease, sublease all or any portion of the Premises, mortgage, pledge, hypothecate, encumber, or otherwise transfer any interest in this Lease or the Premises without Landlord’ s prior written consent, which shall not be unreasonably withheld. Any assignment, sublease, encumbrance, or transfer without Landlord’ s required consent shall be voidable at Landlord’ s election and shall constitute a default under this Lease. Notwithstanding the foregoing, Landlord shall consent to an assignment to an entity affiliated with Tenant, provided that: (a) the Permitted Use is not changed; (b) no Tenant default exists; (c) the assignee assumes all Tenant obligations in writing; and (d) Tenant remains jointly and severally liable for all Tenant obligations unless expressly released by Landlord in writing. No assignment, sublease, or transfer shall release Tenant from obligations accruing before the effective date of such transfer or from any other obligation that survives termination.
11.19. Proprietary and Governmental Roles. Except where clearly and expressly provided otherwise, Landlord enters into this Lease solely in its proprietary capacity as owner and landlord of the Premises. Nothing in this Lease shall waive, restrict, limit, modify, or supersede Landlord’ s governmental or regulatory authority over the Premises, Tenant, Tenant’ s use, or any proposed improvements, including Landlord’ s authority to adopt laws, impose conditions, conduct inspections, review and issue permits, enforce codes, conduct CEQA review, approve or deny discretionary approvals, and perform all legislative, administrative, and enforcement functions under federal, state, and local law.
11.20. Non-Liability of City Officials. No elected official, appointed official, officer, employee, agent, attorney, representative, consultant, or volunteer of Landlord shall be personally liable to Tenant, any successor, assignee, subtenant, contractor, lender, invitee, or ATTACHMENT NO. 4
Error! Unknown document property name.
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other person claiming by or through Tenant for any default, breach, obligation, claim, or liability arising under or relating to this Lease.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
ATTACHMENT NO. 4
Error! Unknown document property name.
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IN WITNESS WHEREOF, we have executed this instrument as of the Effective Date.
LANDLORD:
CITY OF FONTANA
By:
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
_________________________________
City Attorney
TENANT:
WATER OF LIFE COMMUNITY CHURCH,
a California nonprofit religious corporation
By:
Its: Secretary/Treasurer
By:
Its:
ATTACHMENT NO. 4
16 498. 10023\45171852. 3
Error! Unknown document property name.
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Exhibit A to
Ground Lease
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
[To be inserted.]
ATTACHMENT NO. 4
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Exhibit B to
Ground Lease
EXHIBIT B
MAP OF PREMISES
[To be inserted.]
ATTACHMENT NO. 4
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Exhibit C to
Ground Lease
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn: City Manager
APN: 1100-091-71-0000
Exempt from recording fee pursuant to
Government Code Section 27383.
No documentary transfer tax is due.
This instrument is not a conveyance.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
MEMORANDUM OF GROUND LEASE
This Memorandum of Ground Lease (" Memorandum") is made as of ____________, 2026, by and between the CITY OF FONTANA, a California municipal corporation (" Landlord"), and WATER OF LIFE COMMUNITY CHURCH, a California nonprofit religious corporation ("Tenant"), with reference to the following facts:
A. Landlord and Tenant have entered into that certain Ground Lease dated as of ____________, 2026 (the " Lease"), pursuant to which Landlord leases to Tenant, and Tenant leases from Landlord, certain real property commonly known as Lot C, APN 1100-091-71-0000, located in the City of Fontana, County of San Bernardino, State of California, as more particularly described in Exhibit A attached hereto (the "Premises").
B. The Lease was entered into in connection with that certain Purchase and Sale Agreement and Joint Escrow Instructions dated ____________, 2026, by and between Landlord, as buyer, and Tenant, as seller, relating to Landlord's acquisition of Lot C and Lot D from Tenant (the "Purchase Agreement").
C. The parties desire to record this Memorandum to give notice of the Lease and certain terms thereof.
NOW, THEREFORE, Landlord and Tenant give notice as follows:
1. Lease. Landlord has leased the Premises to Tenant, and Tenant has leased the Premises from Landlord, pursuant to the terms and conditions of the Lease.
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2. Term. The initial term of the Lease is fifty-five (55) years commencing on the Commencement Date defined in the Lease, unless terminated earlier in accordance with the Lease.
3. Permitted Use. Tenant may use the Premises only for parking and related church, ministry, and ancillary uses, including parking and access uses ancillary to CityLink Social Services operated at the CityLink Campus, and for no other purpose except as expressly permitted under the Lease.
4. CityLink Services Rent Reduction Condition. The Lease provides that, so long as CityLink Social Services are continuously operated at the CityLink Campus and Tenant is not in default beyond any applicable notice and cure period under the Public Benefit Use Covenant, Base Rent under the Lease shall be reduced to One Dollar ($1.00) per year. " CityLink Social Services" means the operation of homeless support, case management, food, clothing, resource navigation, or similar services for homeless, disadvantaged, and other vulnerable populations within the City of Fontana, substantially consistent with the services operated at the CityLink Campus as of the Commencement Date. This provision is a rent-reduction condition under the Lease and does not constitute a separate public benefit use covenant encumbering the Premises.
5. Public Benefit Use Covenant. In connection with the Purchase Agreement and related transaction documents, Tenant is required to execute and record a separate Public Benefit Use Covenant against the CityLink Campus or such portion thereof as described in that covenant.
The Public Benefit Use Covenant is separate from this Memorandum and is not intended to encumber the Premises except to the extent expressly stated in such covenant.
6. Landlord Reserved Rights. Landlord reserves the right to access and use the Premises for public agency training operations and related governmental purposes, subject to the terms of the Lease.
7. Improvements. Tenant's right to construct, install, alter, expand, or replace improvements on the Premises is subject to Landlord's prior written approval and the other terms and conditions of the Lease.
8. Assignment and Transfer Restrictions. Tenant's rights under the Lease are subject to the assignment, sublease, encumbrance, and transfer restrictions set forth in the Lease.
9. Lease Controls. This Memorandum is only a summary of certain provisions of the Lease and is not intended to amend, modify, or supersede the Lease. In the event of any conflict between this Memorandum and the Lease, the Lease shall control.
10. Counterparts. This Memorandum may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. [SIGNATURES ON FOLLOWING PAGE]
ATTACHMENT NO. 4
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum as of the date first written above.
LANDLORD:
CITY OF FONTANA,
a California municipal corporation
By: ______________________________
Name: ____________________________
Title: City Manager
ATTEST:
By: ______________________________
City Clerk
APPROVED AS TO FORM:
By: ______________________________
City Attorney
TENANT:
WATER OF LIFE COMMUNITY CHURCH,
a California nonprofit religious corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
APPROVED AS TO FORM:
By: ______________________________
A notary acknowledgment must be attached for each party executing this instrument.
ATTACHMENT NO. 4
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
[Insert legal description of Lot C / APN 1100-091-71-0000.] ATTACHMENT NO. 4
Exhibit D to
Ground Lease
EXHIBI TD
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn: City Manager
APN: 0232-201-12-000
Exempt from recording fee pursuant to
Government Code Section 27383.
No documentary transfer tax is due.
This instrument is not a conveyance.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
PUBLIC BENEFIT USE COVENANT
This Public Benefit Use Covenant ("Covenant") is made as of ____________, 2026, by WATER OF LIFE COMMUNITY CHURCH, a California nonprofit religious corporation (" Owner"), for the benefit of the CITY OF FONTANA, a California municipal corporation (" City"), with reference to the following facts:
A. Owner is the owner of certain real property located at 16029 Arrow Boulevard, Fontana, California, consisting of APN 0232-201-12-000 (" Parcel 1") as more particularly described in Exhibit A attached hereto. Owner also owns the adjacent parcel, APN 0232-201-13-0000 ("Parcel 2"), which is defined herein for reference only and, as set forth in Section 1, is not burdened by this Covenant.
B. Owner and City are parties to, or intend to enter into, that certain Purchase and Sale Agreement and Joint Escrow Instructions dated ____________, 2026 (the " Purchase Agreement"), pursuant to which City will acquire certain property commonly known as Lot C and Lot D from Owner and the parties will enter into related transaction documents, including this Covenant and Ground Lease dated , 2026. Owner intends to develop a residential and mixed use project on a portion of Parcel 2 (the "Permanent Housing Project").
C. The Purchase Agreement and the related transactions are intended, among other purposes, to support the continued operation of services for homeless, disadvantaged, and other vulnerable populations within the City.
D. As a material inducement to City to enter into and close the transactions contemplated by the Purchase Agreement, Owner has agreed to record this Covenant against the Covenant Property.
NOW, THEREFORE, Owner declares and covenants as follows:
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1. Covenant Property. This Covenant shall burden only the real property described in Exhibit A, being Parcel 1 (APN 0232-201-12-000), on which an existing CityLink facility is located (the "Covenant Property"). In no event shall this Covenant burden, encumber, or attach to Parcel 2, the Permanent Housing Project, or any parcel created or reconfigured to contain the Permanent Housing Project (the “Phase 2 Parcel”). If a lot line adjustment, parcel map, merger, subdivision, reconfiguration, or similar action modifies the boundaries of Parcel 1 (a “Lot Line Adjustment”), this Covenant shall continue to burden only Parcel 1 as so reconfigured and shall not extend to the Phase 2 Parcel. Notwithstanding anything in this Covenant to the contrary, Owner's right to pursue, process, and record a Lot Line Adjustment shall not be limited, and the City's consent shall not be required in connection therewith. Following recordation of a Lot Line Adjustment, Owner and City shall execute and record any confirmatory or corrective instrument reasonably necessary to conform the description of the Covenant Property to Parcel 1 as so reconfigured and to confirm that this Covenant does not encumber the Phase 2 Parcel.
2. CityLink Social Services. For purposes of this Covenant, " CityLink Social Services" means the operation of homeless support, case management, food, clothing, resource navigation, or similar services for homeless, disadvantaged, and other vulnerable populations within the City, substantially consistent with the services operated on Covenant Property as of the date this Covenant is recorded, as such services may be reasonably modified from time to time to address community needs and applicable legal requirements.
3. Public Benefit Use Covenant. Owner covenants that, during the Covenant Term, the Covenant Property shall be used and operated in service to homeless, disadvantaged, and other vulnerable populations within the City through the operation of CityLink Social Services. Owner may perform such services directly, through an affiliate, or through qualified service providers, but Owner shall remain responsible for compliance with this Covenant.
4. Covenant Term. The term of this Covenant (the " Covenant Term ") shall commence on the date this Covenant is recorded in the Official Records of San Bernardino County and shall continue for fifteen (15) years, unless earlier released by City by recorded instrument.
5. Reports and Records. Upon City's written request, but not more than once per calendar year unless Owner is then in default, Owner shall provide City a written certification describing Owner's compliance with this Covenant and the CityLink Social Services then being operated at the Covenant Property. Owner shall maintain records reasonably sufficient to demonstrate compliance with this Covenant and shall make such records available to City upon reasonable written request, subject to applicable privacy laws and confidentiality restrictions.
6. Transfer Restrictions. Owner shall not sell, assign, transfer, convey, lease, encumber, or otherwise dispose of the Covenant Property or any material interest therein without City's prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed, except for any related lender-approved documentation. In determining whether to consent, City may consider the proposed transferee’ s financial capacity, operational capacity, experience providing comparable services, willingness to assume this Covenant, and ability to continue CityLink Social Services. Any permitted transferee shall assume this Covenant in writing for the benefit of City, and no transfer shall release Owner from obligations accruing before the effective date of such transfer unless City expressly agrees otherwise in writing.
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7. Default. Subject to the notice and cure periods set forth in Section 8, a default shall occur if: (a) Owner fails to operate CityLink Social Services in material accordance with this Covenant; (b) Owner transfers or encumbers the Covenant Property in violation of this Covenant; (c) Owner becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to a bankruptcy, receivership, or similar proceeding that materially impairs performance under this Covenant; or (d) any other material breach of this Covenant occurs and remains uncured beyond the applicable cure period.
8. Notice and Cure. Before a default shall be deemed to have occurred, and before exercising any remedies in connection therewith, City shall give Owner written notice describing the alleged default. Owner shall have thirty (30) days after receipt of the written notice to cure the default; provided that if the default cannot reasonably be cured within thirty (30) days, Owner shall not be in default so long as Owner commences cure within that period and diligently prosecutes the cure to completion, not to exceed ninety (90) days without City's written consent, not to be unreasonably withheld. No notice or cure period shall be required for an unauthorized transfer or encumbrance in violation of Section 6.
9. City Remedies. Upon a default beyond applicable notice and cure periods, City may pursue all rights and remedies available at law or in equity, including specific performance, injunctive relief, declaratory relief, and recovery of enforcement costs as provided in Section 14.
For the avoidance of doubt, the remedies under this Covenant are independent of, and shall not enlarge, condition, or trigger, any separate rights or remedies, nor limit, waive, condition, or impair the City may have under the Purchase Agreement or other transaction documents, each of which shall be governed solely by its own terms. City's rights and remedies are cumulative, and the exercise of one remedy shall not preclude the exercise of any other remedy.
10. Separate Covenant; No Merger. This Covenant is separate from and in addition to the Purchase Agreement, the Lot C Ground Lease, and any other related transaction documents.
Nothing in this Covenant shall modify, limit, waive, or supersede either the City or Owner’ s rights under any other transaction document, except to the extent expressly stated in a recorded amendment signed by City and Owner.
11. Financing Coordination. City acknowledges that the Covenant Property may be subject to financing for the Permanent Housing Project or related improvements. This Covenant shall be subject to any subordination, recognition, lender consent, cure, or enforcement procedures expressly approved by City, or in any lender-approved documentation signed by City.
12. Covenants Running With the Land. This Covenant shall run with the land and shall bind Owner and all successors and assigns having any right, title, or interest in the Covenant Property during the Covenant Term. This Covenant is for the benefit of City and may be enforced by City and its successors and assigns.
13. Amendment; Release. This Covenant may be amended, modified, subordinated, or released only by a written instrument executed by City and Owner, or their respective successors or assigns, and recorded in the Official Records of San Bernardino County. Upon the expiration of the Covenant Term, or upon Owner's earlier satisfaction of the conditions for release set forth ATTACHMENT NO. 4
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herein, this Covenant shall automatically terminate and be of no further force or effect. Within thirty (30) days after written request by Owner, City shall execute, acknowledge, and deliver, at no cost to City, to Owner a recordable release and quitclaim of this Covenant in form reasonably acceptable to Owner and any applicable title company. If City fails to deliver such release within such period, Owner may record a copy of this Covenant together with evidence of the expiration of the Covenant Term, which shall conclusively evidence the termination of this Covenant of record.
14. Attorneys' Fees. If any action or proceeding is brought to enforce or interpret this Covenant, the prevailing party shall be entitled to recover its reasonable attorneys' fees, expert fees, costs, and expenses, including fees and costs incurred on appeal and in post-judgment proceedings.
15. Notices. Any notice under this Covenant shall be given by personal delivery, nationally recognized overnight courier, or certified mail, return receipt requested, to the addresses set forth below or such other address as a party may designate by written notice.
OWNER: Water of Life Community Church
7625 East Avenue
Fontana, CA. 92336-2901
Attention: Mark Nuaimi
Email: [email protected]
With a copy to: Joshua M. Jacobs
Attn: Joshua M. Jacobs
401 B Street Suite 1200
San Diego, CA 92101
Email: [email protected]
CITY: City of Fontana
Attn: City Manager
8353 Sierra Ave.
Fontana, CA 92335
Email: [email protected]
With a copy to: Best Best & Krieger LLP
Attn: Ruben Duran
2855 E. Guasti Rd., Suite 400
Ontario, CA 91761
Email: [email protected]
16. Severability. If any provision of this Covenant is held invalid or unenforceable, the remaining provisions shall remain in full force and effect to the fullest extent permitted by law.
17. Governing Law. This Covenant shall be governed by and construed in accordance with the laws of the State of California.
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18. Counterparts. This Covenant may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. [SIGNATURES ON FOLLOWING PAGE]
ATTACHMENT NO. 4
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Page vi
IN WITNESS WHEREOF, Owner has executed this Covenant as of the date first written above.
OWNER:
WATER OF LIFE COMMUNITY CHURCH,
a California nonprofit religious corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
CITY ACCEPTANCE:
City accepts this Covenant for purposes of enforcement and recordation.
CITY:
CITY OF FONTANA,
a California municipal corporation
By: ______________________________
Name: ____________________________
Title: City Manager
ATTEST:
By: ______________________________
City Clerk
APPROVED AS TO FORM:
By: ______________________________
City Attorney
A notary acknowledgment must be attached for each party executing this instrument.
ATTACHMENT NO. 4
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Page vii
EXHIBIT A
LEGAL DESCRIPTION OF COVENANT PROPERTY
THELAND REFERRED TO HEREIN BELOW I S SITUATED IN THECI TY OF
FONTANA,COUNTY OFSAN BERNARDINO,STATEOFCALI FORNIA ANDI S DESCRI BEDASFOLLOWS:
Par cel1:
The Wes t1/2ofLot193accor di ng t oMapofEt i wanda Vi neyar ds , i nt he Ci t yofFont ana, Count yofSanBer nar di no, St at e ofCali for ni a, asperMapr ecor ded i nBook17, Page 29 ofMaps , i nt he offi ce oft he Count yr ecor ded ofs ai d Count y.
ATTACHMENT NO. 4