LEASE AGREEMENT
BETWEEN
CITY OF FULLERTON
AND
THE FRIENDLY CENTER, INC.
FOR
MAPLE NEIGHBORHOOD CENTER
THIS LEASE AGREEMENT ("Agreement" or "Lease") is entered into on this 15th day of March, 2022, by and between the CITY OF FULLERTON, a municipal corporation ("City" or "Lessor") and THE FRIENDLY CENTER, INC., a California nonprofit corporation ("Lessee").
WHEREAS, the City is the owner of that certain parcel of real property located at 701 S. Lemon St., in the City of Fullerton, County of Orange, State of California, known as Lemon Park (the "Property"); and
WHEREAS, the Property includes the facility that is approximately 4,224 square feet in size known as the Maple Neighborhood Center ("Maple Center"); and WHEREAS, the City desires to allow the Maple Center to be used for civic, social and/or cultural uses of benefit to the residents of the City of Fullerton and surrounding communities; and
WHEREAS, the City now desires to enter into this Agreement with Lessee to enable Lessee to use the Maple Center for the purpose and activities described in Section 2 below, subject to all of the terms and conditions set forth herein; and NOW, THEREFORE, in consideration of the promises and the respective and mutual Agreements contained herein, said parties hereby agree as follows:
1.0 PREMISES
A.
8. Premises. City hereby leases to Lessee the portion of the Property as depicted in Exhibit A, attached hereto and incorporated herein (the "Premises").
Acceptance of Premises. Lessee acknowledges that Lessee has inspected and accepts the Premises in its present condition, as is, and as suitable for, the Permitted Use defined herein, and for Lessee's intended operations in the Premises. Lessee agrees that the Premises and existing improvements are in good and satisfactory condition as of when possession was taken.
Lessee further acknowledges that no representations as to the condition or repair of the Premises nor promises to alter, remodel or improve the Premises have been made by City or any agents of City unless such are expressly set forth in this Lease. If for any reason City cannot deliver 1 of 20
Maple Neighborhood Center Lease
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EXHIBIT A
DESCRIPTION OF PREMISES
Lemon Park
Maple Center
Maple Neighborhood Center Lease
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EXHIBIT B
DESCRIPTION OF PERMITTED USE
Lessee may use the Premises to:
• Meet the various basic needs and provide social services for the residents of the City of Fullerton and surrounding communities
• Provide emergency assistance, case management, food distributions, information & referral services, and utility assistance
• Host family engagement events and holiday events
• Provide after school enrichment programs for youth, and other programs for students through community partners
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EXHIBIT C
ACKNOWLEDGEMENT AND DISCLAIMER OF INTERESTS
Lease Agreement - Maple Neighborhood Center - Final
2297679
TO BE RECORDED AND WHEN RECORDED RETURN TO:
Banc of America Public Capital Corp
11333 McCormick Road
Hunt Valley II
M/C MD5-032-07-05
Hunt Valley, MD 21031
Attention: Contract Administration
ACKNOWLEDGMENT AND DISCLAIMER OF INTERESTS
DATED AS OF [_________]
Banc of America Public Capital Corp
Hunt Valley, MD
RE: Equipment Lease/Purchase Agreement (Escrow Account) dated as of December ___, 2021, between Banc of America Public Capital Corp and the City of Fullerton, California The City of Fullerton, California (with its successors and assigns, the “Fee Owner”), is the owner of the real estate commonly known as [_________] and described on Exhibit A attached hereto (the “Real Property”)1.
Fee Owner has previously located and installed and continues to operate, maintain and use certain property and equipment (collectively, the “City Equipment”) on the Real Property. Banc of America Public Capital Corp (with its successors and assigns, “Secured Party”) has previously extended credit to the Fee Owner that is secured by, among other things, the City Equipment.
The Fee Owner has entered into an Equipment Lease/Purchase Agreement dated December ___, 2021 (as amended or supplemented, the “Financing Agreement”), with the Secured Party for the financing of capital improvements, equipment and othe r property, together with all replacements, repairs, restorations, modifications and improvements thereof or thereto and all accessories, equipment, parts and appurtenances appertaining or attached to any of such equipment, and all substitutions, renewals, or replacements of and additions, improvements, accessions and accumulations to any and all of such equipment, together with all the rents, issues, income, profits, proceeds and avails therefrom (the “Collateral”), a portion of which is located upon the Real Property and a portion of which includes the City Equipment. The Secured Party has an exclusive first priority security interest constituting a first lien on such Collateral.
The Fee Owner desires to finance [________] by issuing or entering into [Des cribe lease/leaseback documents] (the “[LRB/COPs Documents] ”) with
1 This Disclaimer is required for encumbrances to be located at any of: (a) the City Hall located at 303 West Commonwealth Avenue, Fullerton, California 92832; (b) the Police Department located at 237 West Commonwealth Avenue, Fullerton, California 92832; (c) the Main Library located at 353 West Commonwealth Avenue, Fullerton, California 92832; (d) the Main Water Plant located at ______, Fullerton, California 92832; and/or (e) the SOCO Parking Garage located at 150 West Santa Fe Avenue, Fullerton, California 92832.
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[Lessee/Sublessor/Authority] and [Describe lease revenue bond or COPs documents] with [Trustee]. [Payments under the [LRB/COPs] are insured by [Bond Insurer].] Section 2.01(k) of the Financing Agreement prohibits any mortgage, pledge, lien, security interest, charge or other encumbrance of any nature on or with respect to the Real Property, without a waiver of interest in the Collateral from a mortgagee or any other party having an interest in the Real Property, such waiver to be in form and substance satisfactory to the Secured Party. The Secured Party, as a condition to permitting the leasehold interest on the Real Property (excluding all Collateral) contemplated by the [LRB/COPs Documents] , requires that the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer]
2 provide the waivers, disclaimers and further assurances set forth in this Acknowledgment and Disclaimer of Interests (this “Disclaimer”).
NOW, therefore, for good and sufficient consideration, receipt of which is hereby acknowledged, the Fee Owner, [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] represent, acknowledge, covenant and agree to and for the benefit of the Secured Party as follows:
1. Each of the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] waives, disclaims, relinquishes and releases all interest in, right or claim to and lien on the Collateral, including, but not limited to, any right of levy or distraint upon the Collateral for rent.
2. Each of the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] acknowledges Secured Party’s exclusive first priority security interest in the Collateral located on the Real Property. Each of the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] acknowledges and agrees that they have no right to remove or disturb any of the Collateral located on the Real Property. The Fee Owner (or Secured Party, to the extent permitted under the Financing Agreement) may from time to time, at its own expense, make additions, modifications and improvements to the Collateral (to the extent doing so complies with the terms of the Financing Agreement). Such additions, modifications and improvements to the Collateral shall remain the sole property of the Fee Owner (subject only to Secured Party’s exclusive first priority security interest), and none of the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] shall have any interest therein. The Secured Party is granted the right of ingress and egress on the Real Property to inspect, use and/or remove the Collateral, and at any time may enter upon the Real Property to inspect, use and/or remove the Collateral located there without any liability whatsoever to the Secured P arty, except for any damages to the Fee Owner’s buildings or other improvements on the Real Property directly caused by the failure of the Secured Party to remove or use the Collateral with reasonable care.
3. Each of the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] agrees not to take any action to terminate the Fee Owner’s right to occupy the Real Property under the [LRB/COPs Documents] without sixty (60) days prior written notice to the Secured Party.
2 Both Bond Insurer, if any, and Trustee should sign. If there is a Bond Insurer, Disclaimer should be revised to reference both entities throughout and additional signature block should be added.
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4. Notwithstanding anything to the contrary in any agreement or instrument, and notwithstanding the means by which the Collateral may be attached or affixed to the Real Property, the Collateral shall be and remain equipment or other personal property and shall not be considered a fixture, a part of or affixed to the Real Property. Title to the Collateral shall vest in the Fee Owner, subject only to Secured Party’s exclusive first priority security interest therein, and otherwise shall be controlled by the terms of the Financing Agreement.
5. The Fee Owner represents that other than the Secured Party’s interests in the City Equipment and the proposed [LRB/COPs Documents] , no other lien, mortgage, hypothecation, encumbrance, security interest or other arrangement (including any financing arrangement or conditional sale or other encumbrance on title to real property or any financing lease having substantially the same economic effect as any of the foregoing) exists on, or is proposed or contemplated, with respect to the Real Property.
6. The Fee Owner agrees to notify any purchaser of the Real Property, or any party obtaining a mortgage or other lien on the Real Property, of this Disclaimer. Each of the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] agrees to notify any sublessee of the Real Property, or any party obtaining an interest in the leasehold interest in the Real Property under [LRB/COPs Documents], of this Disclaimer. This Disclaimer shall be binding upon the successors and assigns of the Fee Owner, the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] and inure to the benefit of the Secured Party and its successors and assigns. The Fee Owner, the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] shall ensure that no other Person with any interest in the Real Property has any interest in, right or claim to and lien on the Collateral without Secured Party’s prior written consent in its sole and absolute discretion. “Person” means any individual, corporation, not for profit corporation, partnership, limited liability company, joint venture, association, professional association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other form of entity.
7. This Disclaimer shall be continuing, absolute and unconditional, with no act of any kind taken or not taken by any party at any time to affect or impair this Disclaimer.
This Disclaimer shall remain in full force and effect until all obligations of the Fee Owner to the Secured Party created or existing have been fully paid and performed.
8. The Fee Owner is the fee simple owner of the Real Property and warrants that it has authority to execute and deliver this Disclaimer to the Secured Party. Each of the [Lessee/Sublessor/Authority] and the [Trustee/Bond Insurer] warrants that it has authority to execute and deliver this Disclaimer to the Secured Party.
9. This Disclaimer shall be governed by and construed under the laws of the State of California.
[Signature Page to Disclaimer of Interests]
IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgment and Disclaimer of Interests to be executed by its respective officer thereunto duly authorized, all as of the day and year first above written.
CITY OF FULLERTON, CALIFORNIA, as Fee Owner
By: ____________________________________
Name: ______________________________
Title: _______________________________
[LESSEE/SUBLESSOR/AUTHORITY]
By: ____________________________________
Name: ______________________________
Title: _______________________________
[TRUSTEE/BOND INSURER]3
By: ____________________________________
Name: ______________________________
Title: _______________________________
3 Both Bond Insurer, if any, and Trustee should sign. If there is a Bond Insurer, Disclaimer should be revised to reference both entities throughout and additional signature block should be added.
STATE OF __________ )
) ss
COUNTY OF _____________ )
On ______________________ before me, ____________________, Notary Public, personally appeared ________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s ) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
[Seal]
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF __________ )
) ss
COUNTY OF _____________ )
On ______________________ before me, ____________________, Notary Public, personally appeared ________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
[Seal]
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Maple Neighborhood Center Lease
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STATE OF __________ )
) ss
COUNTY OF _____________ )
On ______________________ before me, ____________________, Notary Public, personally appeared ________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
[Seal]
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF __________ )
) ss
COUNTY OF _____________ )
On ______________________ before me, ____________________, Notary Public, personally appeared ________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
[Seal]
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
EXHIBIT A
DESCRIPTION OF THE REAL PROPERTY
The land referred to herein is situated in the State of California, and is more particularly described as follows: