Agenda Item No. 11
CITY COUNCIL STAFF REPORT
TO: Honorable Mayor and City Council DATE: March 14, 2022 FROM: Matthew Bronson, City Manager
PREPARED BY: Matthew Bronson, City Manager
Bruce Buckingham, Community Development Director
David Hale, City Attorney
SUBJECT: Property Acquisition for 955 South 4th Street for Homeless Housing Facility Use and Approval of an Assignment of Purchase Agreement, Escrow Documents, Purchase Contract, Agency Use Plan, Resolution Adopting the Plan, and a Categorical Exemption under CEQA Guidelines, Section 15303
RECOMMENDATION
Approve acquisition of property at 955 South 4th Street (APN No. 060-542-014), including approval of an assignment of purchase agreement, escrow documents, purchase contract, agency use plan, resolution adopting the plan, and approval of a Categorical Exemption under California Environmental Quality Act (CEQA) Section 15303 for $425,000 in the City’s allocation of American Rescue Plan Act funding with the intent to enter into a long-term ground lease with the 5Cities Homeless Coalition to develop and operate a homeless housing facility use and authorize the City Manager to execute the acquisition.
BACKGROUND
Homelessness is a significant challenge not only in Grover Beach but throughout San Luis Obispo County and California. The Council has recognized the importance of addressing this challenge with the selection of Housing and Homelessness as a Major City Goal for FY 2021-23 which states:
Housing and Homelessness. Update City codes and standards to encourage housing construction to meet diverse needs; collaborate with developers and non-profits in efforts to increase overall housing stock with a priority on affordable housing availability; and partner with regional agencies and organizations to address homelessness and related sheltering issues in the city and region.
This issue has strong resonance with the community as evident by the City’s recent community survey conducted in fall 2021. Homelessness was identified by respondents as the most important issue facing the city (cited by 35% of respondents) exceeding the next most cited issues of road and infrastructure improvements (27%), affordable housing (11%), and crime and safety (11%).
When asked if the City should do more to address homelessness, 70% of respondents indicated yes with the most supported activity to address homelessness being temporary or permanent shelter space for homeless individuals (46%) followed by outreach to homeless on accessing services and housing (39%) and clearing encampments and enforcing camping ordinances (28%).
Amended to Amend Attachment 1 - Resolution
Staff Report: Property Acquisition for 955 South 4th Street for Homeless Housing Facility Use Page 2 March 14, 2022
The City has a long-standing record of working with partner agencies and organizations on addressing homelessness including securing over $1,000,000 in past years in Community Development Block Grant (CDBG) funding for eviction prevention and security deposits administered by the 5Cities Homeless Coalition (5CHC) to prevent homelessness among Grover Beach residents. The City also received over $450,000 in additional CDBG funding in 2021 from the federal CARES Act to support the South County winter warming center, provide assistance to homeless individuals including mental health services, and expand child care opportunities which supports employment. The City also declared a homeless shelter crisis in October 2018 along with other jurisdictions in San Luis Obispo County given the increased number of unsheltered individuals in our communities. San Luis Obispo County has one of the highest percentages of unsheltered homeless individuals in the nation with limited shelter space available in the county and none in South County. The updated Point-In-Time Count which occurred on February 23, 2022 will provide further information on the current number of homeless individuals in the County.
However, the City continues to face increased challenges with homelessness in our community.
The City’s overarching goals with addressing homelessness are to demonstrate compassion with enabling unhoused individuals to obtain needed housing and services while ensuring order with maintenance and cleanliness of public spaces including public parks. Homelessness is an issue much larger than the traditional role of cities and while cities did not create homelessness, we are having to address it and the impacts it creates in our communities. This is truly a regional issue with substantial engagement by the County in establishing safe parking areas, coordinating trash removal efforts, providing social and human services, and facilitating grant funding opportunities.
The City’s efforts and those of other public agencies are complicated by the legal ramifications of the Martin vs. Boise case. This case law from the 9th Circuit Court of Appeals significantly limits enforcement of camping prohibitions in public spaces if there is no designated shelter space or public space for unhoused individuals to go. This law governs communities throughout the western United States and has a profound impact on the ability of local government to legally address homelessness particularly in areas like South County that do not currently have available shelter space.
Efforts to Provide Shelter Space
Providing shelter space is critical to enable homeless individuals to secure stable housing and services while enabling the City to enforce camping prohibitions in public spaces. The City has worked diligently with other cities along with the County and 5CHC on potential sites in the South County area for additional shelter spaces both temporary and permanent. 5CHC has looked at potential sites for shelter space over the past 10 years throughout the South County area but has not been able to secure suitable and available property.
A potential site for transitional housing, a winter warming center, and case management services and administrative offices was identified by 5CHC and People’s Self-Help Housing (PSHH) in 2019 at the former Hillside Church in Grover Beach using approximately $2 million in Homeless Emergency Aid Program grant funding from the State. However, this site did not move forward given a property ownership dispute and the funds were reallocated to other homeless-related facilities including transitional housing for PSHH in Pismo Beach and case management and administrative offices for 5CHC in Grover Beach.
More recently, 5CHC is working with the County on a temporary emergency shelter on County property at 286 South16th Street in Grover Beach. The shelter concept involves installation of up to 20 “cabins” roughly 100 square feet in size that would have 24/7 case management and support to clients. 5CHC will also install bathing and bathroom facilities, administrative offices, communal Staff Report: Property Acquisition for 955 South 4th Street for Homeless Housing Facility Use Page 3 March 14, 2022
spaces, shaded eating and resting area, and a storage area. The facility will be managed and monitored 24/7 with 5CHC staff with security cameras and privacy fencing installed. This temporary emergency shelter is anticipated to be operational this spring through at least December 2022 and will serve as the first shelter space in South County. Despite the significance of this initial shelter space, it is just a temporary location and only provides 20 housing units towards meeting the need for shelter space in South County.
Proposed Property Acquisition for Homeless Housing Facility Use As referenced earlier, 5CHC has been working diligently to locate suitable and available property in South County for homeless facilities which could include an emergency shelter, youth and family shelter, adult transitional housing, winter warming center, day use shelter, and/or safe houses that are more residential in nature. The City has allocated up to $800,000 in the City’s American Rescue Plan Act (ARPA) $1.6 million funding this year towards homeless facilities and services in Grover Beach in a flexible manner based on the needs with acquisition of any property for this purpose requiring Council approval.
5CHC recently identified vacant property for sale at 955 South 4th Street that could be developed as a homeless facility. This property is 0.44 acres and potential uses include another emergency shelter in conjunction with the Long Branch cabins, youth and family shelter, or adult transitional housing. Attachment 2 shows the location of this property. 5CHC’s preference for this site is to create non-congregate temporary housing that could serve as bridge housing or an emergency shelter. Development of the site as an emergency shelter will give the City additional options in the enforcement and relocation of homeless encampments though clients at the site would also come from other South County communities. The property is zoned Coastal Industrial but located in the City’s “Emergency Shelter Overlay Zone”. The property is adjacent to the future Central Coast Blue treatment facility on Barca Street with a 30-foot easement needed through the property for future project utility lines. 5CHC would be expected to provide a similar level of management and monitoring as they will for the Long Branch cabins with the Police Department also serving as the lead in responding to safety issues. 5CHC is in escrow for the property with a sales price of $420,000 with the escrow expiring on March 22. Given the City’s allocation of ARPA funding and the adjacency of the Central Coast Blue project, staff is recommending that the Council approve an acquisition of the property using the City’s ARPA allocation of $425,000 which includes anticipated closing costs. The purchase agreement and request for assignment is shown in Attachment 1 Exhibit B. Pending such approval, staff would finalize a long-term ground lease with 5CHC for the development and operation of a homeless housing facility as the City is not in a position to carry this out. A draft version of the ground lease is included as Attachment 1 Exhibit C and staff would anticipate bringing a final version of the ground lease for Council approval in April. Staff would also anticipate bringing a letter of support for a Project Homekey grant application for State funding to the Council in conjunction with this ground lease given an upcoming grant application deadline. The timeframe for opening a facility on this property would be based on obtaining grant funding, but could occur as early as 2023.
It is important to note that City’s proposed funding for this action would just cover property acquisition and 5CHC would seek funding for this development and operation from a variety of sources most notably the Project Homekey funds from the State and potentially the County and other agencies in the South County. This would be one of many homeless facilities needed in our area to increase shelter space and the City will continue to work with other agencies in South County in locating facilities throughout our region as a mix of emergency shelters, safe parking areas, transitional housing, group homes, and other facilities is key to making progress on this Staff Report: Property Acquisition for 955 South 4th Street for Homeless Housing Facility Use Page 4 March 14, 2022
critical issue. The proposed project is Categorically Exempt pursuant to CEQA Guidelines Section 15303, because it meets the criteria established for new construction of facilities not greater than 10,000 square feet as documented in the attached resolution.
Surplus Land Act
Lastly, staff would acknowledge some uncertainty related to this property acquisition pertaining to the State Department of Housing and Community Development (HCD). A recent state law (Surplus Land Act) is codified within Government Code section 54221 et seq. and defines extensive procedures wherein local agencies are required to submit written notices of availability to public entities or developers interested in developing housing projects if the governmental agency has surplus property they no longer need for further development or use. Government Code Section 54221 outlines those procedures wherein an agency can define a use for their property that would allow them to sell or lease the property without compliance with the Surplus Land Act (SLA). Section 54221 (C) (1) requires the City to adopt an “Agency Use Plan” that would identify a specific property along with the use for the property by the City if it desires to be exempt from the SLA. If an agency adopts such a plan, then HCD should permit the lease of the subject property without the necessity to comply with the Act. Approval of an agency use plan takes the property out of the definition of surplus property.
The City Attorney has been working with HCD to seek concurrence that the City has the authority to enter into the subject agreements to purchase and ground lease the property without complying with the SLA. The City of Grover Beach Siting Plan to Address Homelessness shown in Attachment 1 Exhibit A is the City’s proposed planning document that defines the use of the property and the need for the City to not only retain ownership of the property but to ground lease the property to 5CHC for the construction and operation of the subject homeless housing facility.
While the City has not yet received a formal response from HCD, this business structure was already approved by HCD when the City of Sacramento submitted a similar project for a ground lease to construct a homeless shelter for terminally ill individuals in December 2021. Staff and the City Attorney believe this project is very similar to the Sacramento development and do not see any distinctions between them that would inhibit HCD from permitting the City to ground lease the property to 5CHC after it is acquired. The Council is required to approve the attached Agency Use Plan before HCD will grant permission to ground lease the property. Upon approval of this plan by the Council, the City Attorney will submit a request for a written determination from HCD which will be required prior to finalizing a ground lease with 5CHC.
FISCAL IMPACT
The cost of this property acquisition is $425,000 which would be funded through the City’s ARPA funding allocation with no General Fund operating budget impact. A budget adjustment shown in Attachment 3 is needed to move the already approved budget appropriation from the economic development account to the capital purchase account.
ALTERNATIVES
The Council has the following alternatives to consider:
1) Approve acquisition of property at 955 South 4th Street (APN No. 060-542-014) for $425,000 in the City’s allocation of American Rescue Plan Act with the intent to enter into a long-term ground lease with the 5Cities Homeless Coalition to develop and operate a homeless housing facility use and authorize the City Manager to execute the acquisition; or
Staff Report: Property Acquisition for 955 South 4th Street for Homeless Housing Facility Use Page 5 March 14, 2022
2) Do not approve acquisition; or
3) Provide alterative direction to staff.
PUBLIC NOTIFICATION
The agenda was posted in accordance with the Brown Act.
Attachments
1. Resolution
Exhibit A Agency Use Plan
Exhibit B Purchase Agreement, Escrow Documents and Assignment Request Exhibit C Draft Ground Lease
2. Site Location
3. Budget Adjustment
Attachment 1
RESOLUTION NO. 22-__
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GROVER BEACH,
CALIFORNIA APPROVING AN AGENCY USE PLAN FOR A
NONCONGREGATE TEMPORARY HOUSING SHELTER, AN ASSIGNMENT
OF ESCROW DOCUMENTS AND PURCHASE AGREEMENT, AND
ACQUISITION OF PROPERTY
WHEREAS, there have been a proliferation of homeless encampments within the City of Grover Beach; and
WHEREAS, these encampments have been located in areas that are environmentally sensitive or wherein said encampments have created tension with other adjacent land uses; and WHEREAS, the City has been working with local nonprofit organizations in attempting to afford sleeping and camping accommodations and other related services for the homeless, and WHEREAS, due to legal requirements for the establishment of homeless shelters created by the case of Martin v. City of Boise, 920 F.3rd. 584 (9th Cir. Court of Appeals, 2019) the city is restricted in its ability to further any reasonable enforcement of its sleeping and camping ordinances; and
WHEREAS, by the City acquiring the subject property, APN No. 060-542-014 and working with local non-profit organizations for the development of these emergency and homeless shelters, the city can implement one of its long-term goals; and WHEREAS, the acquisition of the subject property is necessary for the city to be able to maintain municipal uses for the subject property for numerous public works utility lines required for the Central Coast Blue water reclamation project without litigation related to eminent domain; and
WHEREAS, the development of the referenced acquisition and entering into a ground lease is critical since the current escrow would need to be assigned to the city to construct this facility and entering into the ground lease would allow the transfer of title to the city for implementation of the Plan and the ability to partner with private nonprofit organizations for construction and operation of this facility.
WHEREAS, surplus land is land owned by a local agency that is determined to be no longer necessary for the agency's use; and
WHEREAS, AB 1486 requires local agencies to adopt a resolution declaring property as either “surplus” or “exempt surplus” at a regular public meeting of the agency’s governing body; and
WHEREAS, the requirements of the Surplus Land Act (Government Code Section 54221 et seq.) are not applicable to property that is necessary for an “agency’s use,” which definition includes land that is planned to be used pursuant to a written plan adopted by the local agency’s governing board; and
WHEREAS, because the subject property is to be developed and used pursuant to the City’s Siting Plan to Address Homelessness, the subject property is necessary for the City’s use and is therefore not subject to the Surplus Land Act.
NOW, THEREFORE, BE IT RESOLVED:
1. That the above stated WHEREAS provisions are hereby incorporated by reference herein as if set out in full and carry the same weight and authority as all other provision of this resolution.
2. The City Council, with this action, approves the Agency Use Plan for the subject property otherwise referred to as the Site Plan to Address Homelessness, attached hereto, as a binding document designating the subject site, APN No. 060-542-014, 955 4th Street, Grover Beach, CA. as the location for the development of a noncongregate housing shelter otherwise referred to as a low barrier navigation center, to add further city capacity for homeless housing and emergency shelters along with other services to the homeless while establishing greater flexibility for the City to implement and maintain land uses that are compatible with each other along with the city’s general plan and zoning.
3. The City Council directs the City Manager to implement the programmatic strategies contained within the Site Plan to Address Homelessness to add further capacity for noncongregate homeless shelters or low barrier navigation centers.
4. The City Council further directs the City Manager to begin implementation of the Site Plan to Address Homelessness immediately. The City Manager or City Manager’s designee is authorized to establish the Site Plan to Address Homelessness with initial resources to be transferred from the City’s General Fund using American Rescue Plan (ARP) funding.
The City Manager is authorized to implement any and all financial transactions needed to properly manage and account for the City’s efforts necessary to implement and administer the Site Plan to Address Homelessness including the following activities:
a) Adjust revenue and expenditure budgets in General Fund related to all federal, state, county and ARP funding received by the City in support of this program. b) Adjust interdepartmental transfers related to the Site Plan to Address Homelessness and efforts to reduce homelessness as needed for the duration of that program. c) Adjust the project budget based on available resources from Council approved use of ARP funding.
5. That the City Council directs the City Manager to work with the 5 Cities Homeless Coalition (5CHC) to acquire the subject property defined with the Site Plan to Address Homelessness, including entering into the Assignment of the Purchase Agreement and Escrow Documents, entering into the purchase agreement, and negotiating a ground lease with 5CHC for a 55 year lease to accommodate a low barrier navigation center, attached hereto and incorporated by reference.
6. The City Council hereby finds entering into a ground lease with 5CHC is necessary and required to assure the implementation of the Site Plan to Address Homelessness and to assure development and construction of the facility and further directs the City Manager to negotiate a ground lease with 5CHC for the use of the property as a noncongregate housing shelter or low barrier navigation center in substantially the form as attached hereto. The City Manager shall bring the ground lease back to the City Council for final approval.
7. Based on the oral and documentary evidence received at the hearing and contained in the staff report on the Site Plan to Address Homelessness, along with the escrow documents, purchase agreement and ground lease, the City Council finds the Site Plan to Address Homelessness is Categorically Exempt (Class 3) from the provisions of the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., “CEQA”) and CEQA Guidelines (Title 14 California Code of Regulations §§ 15000, et seq.), because the project use is allowed in the CI zone, would not exceed 10,000 square feet of new building, will not involve the use of hazardous substances, and has the necessary public services and facilities available to serve the site, Further the project is not located in an environmentally sensitive area and will not impact an environmental resource; will not have a cumulative effect of successive projects of the same type, in the same place, over a period of time because the project impacts are the same or less than those allowed in the same zone and area; the project will not have a significant effect on the environment due to unusual circumstances; the project is not located on a designated scenic highway or scenic resource; the project is not located within an official state scenic highway; the project is not located on any hazardous list pursuant to Section 65962.5 of the Government Code; and the project site is not a historical resource and will not cause a substantial adverse change to the significance of a historic resource. Additionally, the plan is exempt under Government Code section 65660(b) to the extent the plan covers low barrier navigation centers as defined by the Government Code.
On motion by ______ seconded by _______, and on the following roll-call vote, to wit:
AYES: Council Members -
NOES: Council Members -
ABSENT: Council Members -
ABSTAIN: Council Members -
the foregoing Resolution was PASSED, APPROVED, and ADOPTED at a Regular meeting of the City Council of the City of Grover Beach, California this 14th day of March, 2022. __________________________________
JEFF LEE, MAYOR
ATTEST:
_______________________________
WENDI SIMS, CITY CLERK
Attachments: Exhibit A, Siting Plan To Address Homelessness Exhibit B, Assignment of Escrow Agreement, Escrow Documents, Purchase Agreement
Exhibit C, Draft Ground Lease
Attachment 1 Exhibit A
CITY OF GROVER BEACH
SITING PLAN TO ADDRESS HOMELESSNESS
March 14. 2022
PROPERTY LOCATION (“SUBJECT PROPERTY”)
APN 060-542-014
955 4TH Street
Grover Beach, CA
PLAN OBJECTIVE
This Siting Plan to Address Homelessness (“the Plan”) is a proposal to identify a site within the city for a non-congregate temporary housing facility. One of the initial and foremost challenges to the city related to this Plan is the lack of available undeveloped land that can be used for temporary housing. The Subject Property is one of only a few sites that could accommodate a temporary housing facility of this size. Council’s approval of this Plan will provide binding authority for use of the above referenced site to provide a non-congregate temporary housing development with capacity to accommodate up to 30 unsheltered individuals. No other use will be authorized for this Subject Property. With approval of this plan by the City Council, the City Manager will be granted authority to implement homeless housing solutions related to the Subject Property with only acquisition, leasing and financing approvals returning for future City Council approval.
The Plan is the result of City Council and staff’s implementation of defined City Goals related to housing and homelessness. An important effort of the City Council in establishing goals is to address and develop opportunities wherein it can meet the needs of the homeless while working with other local and regional agencies and organizations (both private and public) as defined in the following city goal:
HOUSING AND HOMELESSNESS. Update City codes and standards to encourage housing construction to meet diverse needs; collaborate with developers and nonprofits in efforts to increase overall housing stock with a priority on affordable housing availability; and partner with regional agencies and organizations to address homelessness and related sheltering issues in the city and region. 2 The Plan is intended to develop a non-congregate temporary housing project through funding from federal, state, and local resources. This Plan will be funded from one-time and ongoing sources that will include but not be limited to funds coming from the American Rescue Plan Act (ARPA) and any other legally available revenues.
CITY USE OF THE PROPERTY
The city for a number of years has been working with other adjacent municipal agencies to meet a regional need for the construction of a water reclamation facility identified as the Central Coast Blue Project. This project is going to be located on an adjacent lot to the Subject Property. There are a multitude of utility easements that will be required for this project that will need to be located across the Subject Property. The city will therefore need control of the subject property for the placement and support of many of the public works needs of this future regional project.
Although this Site Plan is being developed for many compelling reasons including the sheltering of homeless individuals and placement of public utility lines for a major regional water reclamation project, an additional legal purpose for the acquisition of this property by the city deals with the question of meaningful alternatives to sleeping or camping on public property.
The city has been working with a number of local agency and private organizations for the development of temporary housing and emergency shelters for the homeless that addresses the proliferation of camping and sleeping on public property throughout the city. Many of these areas are in environmentally sensitive areas that are not suited or compatible for this type of occupancy. Further, in September 2018, the Ninth Circuit Court of Appeals decided the Martin v.
City of Boise case, and ruled that, except under specific circumstances, enforcement of ordinances that prohibit sleeping or camping on public property by individuals experiencing homelessness is unconstitutional when meaningful alternatives, such as a shelter space or legal places to camp, do not exist. Currently in the City of Grover Beach, there are no non-congregate temporary shelters available. This Plan and the Subject Project will allow for the creation of a non-congregate temporary housing facility, and to further the city’s ability to address the prolific homelessness within its community while creating a compatible solution to the environmental concerns and land use consistency needs throughout the city. 3 IMPLEMENTATION OF THE PLAN
The Subject Property is currently under contract with a local non-profit organization, (501c-3). The terms of the existing escrow and close of escrow was conditioned upon the nonprofit obtaining necessary funding. To establish that funding source, the non-profit organization is willing to assign any right, title, and interest they have in the current escrow to the City subject to the city agreeing to ground lease the property back to the non-profit for the purposes stated herein. The ground lease is a funding mechanism for the non-profit to construct the subject facility.
The City Council will approve the assignment and the acquisition of the Subject Property through the identified funding sources enumerated herein. The city would then enter into an assignment of the escrow, and an acquisition or purchase agreement wherein, upon the close of escrow and transfer of title of the Subject property to the city, the city would enter into a ground lease with the non-profit organization, for the construction, development, operation, and maintenance of the housing facility. The Ground Lease would be for a period of 55 years and would define the requirements of the non-profit related to the construction, development, operation, and maintenance of the housing facility. The requirements of the ground lease would impose an obligation for continued operation of the housing facility for the entire term of the ground lease. Any material breach of the agreement would allow termination of the ground lease and unencumbered title to revert to the city including land improvements. This ground lease would be a vital component of the Plan that would function as a financing agreement for the non-profit and would be necessary for fulfillment of the city goals, the construction of this non-congregate temporary housing facility and enable the city to enhance its abilities to afford housing to individuals that need it the most.
X Joseph A. Wolosz, Trustee
McCarty Davis, Inc.
Steve Davis 01843738
McCarty Davis, Inc., 641 Higuera St, Suite #201 San Luis Obispo CA 93401 8055431801 8055431857 Vacant Parcel - Steve Davis
Attachment 1 Exhibit B
Vacant Parcel -
Joseph A. Wolosz, Trustee
McCarty Davis, Inc., 641 Higuera St, Suite #201 San Luis Obispo CA 93401 8055431801 8055431857 Vacant Parcel - Steve Davis
1 12/17/2021
12/13/2021 955 4th Street (APN: 060-542-014), Grover Beach, CA 5 Cities Homeless Coalition
Joseph A. Wolosz, Trustee
Purchase Price: $420,000
X
5:00 X 12/22/2021
Joseph A. Wolosz, Trustee
McCarty Davis, Inc., 641 Higuera St, Suite #201 San Luis Obispo CA 93401 8055431801 8055431857 Vacant Parcel - Steve Davis
5 Cities Homeless Coalition
Vacant Parcel -
X Seller Multiple Counter Offer
12/17/2021 955 4th Street (APN: 060-542-014), Grover Beach, CA 5 Cities Homeless Coalition
Joseph A. Wolosz, Trustee
X
Joseph A. Wolosz
5 Cities Homeless Coalition
955 4th Street (APN: 060-542-014), Grover Beach, CA
5 Cities Homeless Coalition
McCarty Davis, Inc., 641 Higuera St, Suite #201 San Luis Obispo CA 93401 8055431801 8055431857 Vacant Parcel - Steve Davis
Vacant Parcel -
Seller Multiple Counter Offer 12/17/2021
955 4th Street (APN: 060-542-014), Grover Beach, CA
5 Cities Homeless Coalition
Joseph A. Wolosz, Trustee
X
Joseph A. Wolosz, Trustee
5 Cities Homeless Coalition
McCarty Davis, Inc., 641 Higuera St, Suite #201 San Luis Obispo CA 93401 8055431801 8055431857 Vacant Parcel - Steve Davis
X
5Cities Homeless Coalition
JONES Commercial 01892221
01128892
Kevin Jones
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
5CHC - 955 4th -
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
5Cities Homeless Coalition
Joseph A. Wolosz
5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433
5Cities Homeless Coalition
Joseph A. Wolosz
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
12/13/2021
5Cities Homeless Coalition
X
955 S 4th Street
Grover Beach San Luis Obispo 93433 060542014
Four Hundred Thousand
400,000.00
X 45
X
McCarty Davis, Inc. 01240829
X
Stephen McCarty 00977930
X
JONES Commercial 01892221
X
Kevin Jones 01128892
X
X
10,000.00
X
390,000.00
400,000.00
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 X
Contingent upon funds to be received by 5Cities Homeless Coalition in the form of grants from the municipalities.
X X
Sellers Choice
X Physical Inspection
5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 X X 50-50
First American - Stacy Axan
X
First American - Stacy Axan
X
5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 X 30
X
5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 30 3
5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 Kevin Jones
X 400 X
December 17, 2021
X
5Cities Homeless Coalition
Joseph A. Wolosz
5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433 December 13, 2021 JONES Commercial 01892221
Kevin Jones 01128892
791 Price Street Pismo Beach CA 93449
(805)473-0300 [email protected]
McCarty Davis, Inc. 01240829
Stephen McCarty 00977930
641 Higuera St, Suite #201 San Luis Obispo CA 93401
(805)543-1801 (805)543-1857 [email protected]
5CHC - 955 4th -
955 S 4th Street , Grover Beach, CA 93433
5Cities Homeless Coalition
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
Joseph A. Wolosz
5Cities Homeless Coalition
JONES Commercial 01892221
01128892
Kevin Jones
McCarty Davis, Inc. 01240829
00977930
Stephen McCarty
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
5Cities Homeless Coalition
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
5Cities Homeless Coalition
X X
Ken Dalebout Chairperson
Joseph A. Wolosz
12/13/2021
Joseph A. Wolosz
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
Joseph A. Wolosz
Joseph A. Wolosz
5CHC - 955 4th -
X Commercial Purchase Agreement
December 13, 2021
955 S 4th Street , Grover Beach, CA 93433
5Cities Homeless Coalition
Joseph A. Wolosz
X
X
X
5Cities Homeless Coalition
Joseph A. Wolosz
McCarty Davis, Inc. 01240829
00977930
Stephen McCarty
JONES Commercial 01892221
01128892
Kevin Jones
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
October 18, 2021
X Commercial Purchase Agreement
955 S 4th Street , Grover Beach, CA 93433
5Cities Homeless Coalition
Joseph A. Wolosz
X November 30, 2021
X
December 13, 2021 130 X
5Cities Homeless Coalition
Joseph A, Wolosz
X
5Cities Homeless Coalition
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
12/13/2021
955 S 4th Street , Grover Beach, CA 93433
5Cities Homeless Coalition
Joseph A. Wolosz, Trustee
X
City of Grover Beach
X
X
X
See Text Overflow Addendum (C.A.R. Form TOA) paragraph 1 REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
5Cities Homeless Coalition
X
City of Grover Beach
Joseph A. Wolosz, Trustee
5CHC - 955 4th -
1 955 S 4th Street , Grover Beach, CA 93433
5Cities Homeless Coalition
Joseph A. Wolosz, Trustee
1) AOAA, paragraph 7, Other Terms:
City of Grover Beach to replace deposit of 5Cities Homeless Coalition and intial deposit to be returned. 5Cities Homeless Coalition
Joseph A. Wolosz, Trustee
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
X
December 13, 2021 955 S 4th Street , Grover Beach, CA 93433 5Cities Homeless Coalition
Joseph A. Wolosz, Trustee
March 22, 2022
5Cities Homeless Coalition
Joseph A. Wolosz, Trustee
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
X
12/13/2021 955 S 4th Street , Grover Beach, CA 93433
Joseph A. Wolosz, Trustee, X
City of Grover beach
X X City Municipality
12/13/2021 955 S 4th Street , Grover Beach, CA 93433
REALTY PROFESSIONALS, 791 Price Street Pismo Beach CA 93449 8054730300 5CHC - 955 4th - Kevin Jones
JONES Commercial
JONES Commercial
Kevin Jones
5Cities Homeless Coalition
Joseph A. Wolosz, Trustee,
5Cities Homeless Coalition
Ken Dalebout
Joseph A. Wolosz, Trustee,
5CHC - 955 4th -
Attachment 1 Exhibit C
DRAFT GROUND LEASE
This Ground Lease (“Lease”) is dated as of [Month, Date] 2022 (the “Effective Date”), by and among the CITY OF GROVER BEACH, a municipal corporation (the “Landlord”), and 5Cities Homeless Coalition (the “Tenant”). The Landlord and Tenant may be referred to individually as a “Party” or together as the “Parties.” This LEASE, dated as of the above date, by and between Landlord and Tenant, is made with reference to the following facts:
A. Landlord is the owner of certain real property, situated in the County of San Luis Obispo, State of California, more particularly described on attached Exhibit “A” (the “Premises”), but excepting all buildings, structures and improvements hereafter located on the Premises (the “Improvements”), the ownership of which will be acquired and will be retained by Tenant, subject to the provisions of this Lease. (The Improvements and the Premises are sometimes referred to as the “Property.”) It is the intention of Landlord and Tenant that the separation of title to the Premises and the Improvements is not to change the character of the Improvements as real property and that the same shall be and remain real property; and B. Tenant desires to lease the Premises from Landlord, and Landlord desires to lease the Premises to Tenant upon the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the rent, covenants and agreements contained in this Lease, Landlord hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord, and Landlord and Tenant hereby covenant and agree as follows:
CERTAIN DEFINITIONS
For all purposes of this Lease, unless the context otherwise requires, the following words and phrases shall have the following meanings:
(a) “Improvements” shall mean any structures or improvements now or hereafter erected or situated on the Premises, including without limitation, the foundations and footings thereof, title and ownership of which shall be in Tenant, any and all fixtures, equipment and machinery of every kind and nature whatsoever now or hereafter affixed or attached thereto, or now or hereafter used or procured for use in connection with the operation, use or occupancy thereof, and the appurtenances thereto, but excluding from the foregoing all fixtures and articles of personal property, title of which, pursuant to any lease of space in the Improvements shall be vested in the tenant under such lease;
(b) “Premises” shall mean the real property particularly described on Exhibit “A”; (c) “Termination of this Lease” shall mean the expiration of the term of this Lease or any sooner termination of the term of this Lease pursuant to any of the provisions of this Lease; (d) “Leasehold Mortgage” shall mean any mortgage or deed of trust constituting a lien upon this Lease and the leasehold estate hereby created and Tenant's title to the Improvements; (e) “Institution” shall mean a savings bank, a savings or building and loan association, a commercial bank or trust company (whether acting individually or in any fiduciary capacity), an insurance company, an educational institution or a state, municipal or similar public employees' welfare, pension or retirement fund or system, a charitable or other eleemosynary institution, a real estate investment trust or any other person or entity with assets (capital and surplus) in excess of Fifty Million Dollars ($50,000,000), whose principal businesses include interim or permanent financing secured by real estate;
(f) “Institutional Leasehold Mortgage” and “Institutional Leasehold Mortgagee” shall mean respectively, a Leasehold Mortgage held by an Institution and the holder of an Institutional Leasehold Mortgage;
(g) “Fee Mortgage” shall mean any mortgage or deed of trust constituting a lien upon the Premises subject to the encumbrance of this Lease and to any new lease made pursuant to Section 14.04 below and to the rights of Tenant hereunder and thereunder; (h) “Event of Default” shall have the meaning set forth in Article 15; (i) “Unavoidable Delays” shall mean the delays due to strikes, lockouts, acts of God, inability to obtain labor or materials, governmental restrictions, enemy action, civil commotion, fire, unavoidable casualties or similar causes beyond the control of Tenant; (j) “Mortgage” shall include an indenture of mortgage and deed of trust and Institutional Leasehold Mortgagee shall include a bank or trust company acting as trustee under such indenture of mortgage or deed of trust; and
(k) “Initial Improvements” shall mean the first Improvements to be constructed by Tenant on the Premises and shall include a 30 bed non-congregate temporary housing project such as bridge housing or an emergency shelter type building of not less than _____ stories containing not less than (____) net square feet, together with on-site parking facilities for not less than the number of cars required by Landlord consistent with the Grover Beach Municipal Code, and such other reasonable facilities, improvements and appurtenances necessary or desirable in connection with such a development as required by Landlord.
ARTICLE 1
TERM
The term of this Lease shall commence, on the Effective Date of this Lease (the “Effective Date”) and unless sooner terminated under any subsequent provision of this Lease, shall expire and terminate at 12:00 midnight, ______________, 2077, a period of fifty five (55) years.
ARTICLE 2
RENT
Section 2.01. Tenant shall pay to Landlord as basic annual rent, without deduction, set-off, prior notice or demand, the sum of______________ and no/100 Dollars ($) per annum, which sum is subject to possible upward adjustment as provided in Section 2.02 below, in advance in equal monthly installments on the first day of each calendar month, commencing on the Effective Date and continuing during the Lease term. Basic rent for the first month or portion of it shall be paid on the Effective Date. Basic rent for any partial month shall be prorated on the basis of 1/360th of the basic annual rent, per day. All rent shall be paid to Landlord at the address to which notices to Landlord are given, or to such other person or such other place as directed from time to time by written notice to Tenant from Landlord.
Section 2.02. The basic annual rent provided for in Section 2.01 above shall be subject to adjustment at the commencement of the third year of the lease term and every third year thereafter (the “adjustment date”) as follows:
(a) The base for computing the adjustment is the Consumer Price Index for Los AngelesLong Beach-Anaheim, published by the United States Department of Labor, Bureau of Labor Statistics (the “Index”), which is published for the month nearest the Effective Date (the “Beginning Index”). If the Index published nearest the adjustment date (the “Extension Index”) has increased over the Beginning Index, the basic annual rent until the next rent adjustment shall be set by multiplying the basic annual rent set forth in Section 2.02 above by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index.
In no case shall the basic annual rent be less than the basic annual rent set forth in Section 2.01 above. Upon adjustment of the basic annual rent as set forth in this Lease, the parties shall immediately execute an amendment to the Lease stating the new basic annual rent. (b) If the Index is changed so that the base year differs from that used as of the month immediately preceding the month in which the Effective Date occurs, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the Lease term, such other government index or computation with which it is replaced shall be used to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised.
Section 2.03. It is the purpose and intent of Landlord and Tenant that the rent payable under this Article 2 shall be absolutely net to Landlord and this Lease shall yield, absolutely net to Landlord, the rent specified and provided in this Article 2, and that Tenant shall pay all costs, charges and expenses of every kind and nature whatsoever against the Property which may arise or become due during the term and which, except for the execution and delivery of this Lease, would or could have been payable by Landlord. However, nothing in this Lease shall require, or be construed to require, Tenant to pay any interest or principal payments or other payments on or required under any mortgage or trust deed on the fee of the Premises should there be any.
ARTICLE 3
PAYMENT OF TAXES, ASSESSMENTS, ETC.
Section 3.01. Tenant covenants and agrees to pay, before any fine, penalty, interest or cost may be added thereto for the non-payment thereof, all property taxes, possessory interest taxes, assessments, water and sewer rates and charges, and other governmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind and nature whatsoever (all of which taxes, assessments, water and sewer rates or charges, and other governmental charges are hereinafter referred to as “imposition”), which are legally assessed, levied, imposed or become a lien upon the Premises and/or the Improvements and the sidewalks or streets in front of or adjoining the Premises and the Improvements, or become payable, during the term of this Lease; provided, however, that if, by law, any such imposition may at the option of the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of such imposition), Tenant may exercise the option to pay the same (and any accrued interest on the unpaid balance of such imposition) in installments and shall pay only such installments as may become due during the term of this Lease as the same respectively become due and before any fine, penalty, interest or cost may be added thereto, for the non-payment of any such installment and interest; and provided, further, that any imposition relating to a fiscal period of the taxing authority, a part of which period is included within the term of this Lease and a part of which is included in a period of time after the termination of this Lease, other than a termination of this Lease pursuant to Article 15 below, shall (whether or not such imposition shall be assessed, levied, imposed or become a lien upon the Premises and/or the Improvements, or shall become payable, during the term of this Lease) be adjusted between Landlord and Tenant as of the expiration of the term of this Lease, so that Landlord shall pay that portion of such imposition which relates to that part of the fiscal period after the termination of this Lease, if any, and Tenant shall pay that portion of which relates to the period prior to the termination of the Lease, if any.
Section 3.02. NOTIFICATION TO TENANT PURSUANT TO CALIFORNIA REVENUE AND TAXATION CODE SECTION 107.6: A POSSESSORY INTEREST SUBJECT TO PROPERTY
TAXATION MAY BE CREATED BY ENTERING INTO THIS AGREEMENT AND TENANT MAY BE SUBJECT TO THE PAYMENT OF PROPERTY TAX LEVIED ON SUCH INTEREST.
Section 3.03. Tenant covenants, upon request of Landlord, to furnish to Landlord for inspection by it within sixty (60) days after the date when any imposition is payable, official receipts of the appropriate taxing authority, or other evidence satisfactory to Landlord, evidencing the payment of such imposition.
Section 3.04. Tenant shall have the right to contest the amount or validity, or to seek a refund, in whole or in part, of any imposition by appropriate proceedings, and notwithstanding the provisions of Section 3.01 above, this shall not be deemed or construed in any way as relieving, modifying or extending Tenant's covenants to pay any such imposition at the time and in the manner as provided in this Article 3 unless Tenant shall have deposited with Landlord or a bank or trust company designated by Landlord, as security for the payment of such imposition, money or a corporate surety bond or other security acceptable to Landlord in the amount so contested and unpaid together with the estimated amount of all interest and penalties in connection therewith and all charges that may or might be assessed against or become a charge on the Premises and/or Improvements or any part thereof in said proceedings, whereupon Tenant may postpone or defer payment of such imposition. Upon the termination of such proceedings, Tenant shall pay the amount of such imposition or part thereof as finally determined in such proceedings, the payment of which may have been deferred during the prosecution of such proceedings, together with any costs, fees, interest, penalties or other liabilities in connection therewith, and upon such payment Landlord shall return, or cause such bank or trust company to return, the amount above referred to without interest. If, at any time during the continuance of such proceedings, Landlord shall deem the amount deposited with it insufficient, Tenant shall, upon demand, deposit with Landlord or such bank or trust company such additional sum as Landlord may reasonably request, and upon failure of Tenant to do so, the amount theretofore deposited may be applied by Landlord or such bank or trust company to the payment, removal and discharge of such imposition and the interest and penalties in connection therewith any costs, fees or other liability accruing in any such proceedings, and the balance, if any, shall be returned to Tenant. Notwithstanding the foregoing provisions of this Section, if an Institutional Leasehold Mortgagee shall be the tenant under this Lease, such Institutional Leasehold Mortgagee shall not be required to make the deposit required under this Section. Landlord agrees not to unreasonably withhold its consent to joining in any such proceedings or permitting the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceeding, and Tenant covenants to indemnify, save and hold harmless Landlord from any such costs or expenses. Tenant shall be entitled promptly to any refund of any such imposition and penalties or interest thereon, which have been paid by Tenant, or which have been paid by Landlord and for which Landlord has been fully reimbursed.
Section 3.05. The certificate, advice or bill of the appropriate official designated by law to make or issue the same or to receive payment of any imposition, of non-payment thereof, shall be prima facie evidence that such imposition is due and unpaid at the time of the making or issuance of such certificate, advice or bill.
ARTICLE 4
INSURANCE
Section 4.01. At all times Tenant shall keep the Improvements insured for the mutual benefit of Landlord and Tenant against
(a) loss or damage by fire, and such other risks as may be included in the standard form of extended coverage insurance from time to time available, in an amount not less than one hundred percent (100%) of the then full insurable value of the Improvements; and (b) claims for personal injury or property damage, under a policy of general public liability insurance, with such limits to be not less than One Million Dollars ($1,000,000.00) for any one (1) person and One Million Dollars ($1,000,000.00) for any one (1) occurrence in respect of bodily injury or death, and One Million Dollars ($1,000,000.00) for property damage.
The term “full insurable value” shall mean the actual replacement cost of the Improvements (excluding foundation and excavation costs) and said “full insurable value” shall be determined by an architect, appraiser, appraisal company or one of the insurers, reasonably acceptable to Landlord, selected by Tenant, which determination shall be made no less frequently than once every three (3) years.
Section 4.02. All insurance provided for under this Lease shall be affected under valid enforceable policies issued by insurers of recognized responsibility and licensed to do business in the State of California. The original policies shall be delivered to the holder of the first Leasehold Mortgage and certificates of such insurance shall be delivered to Landlord and to the holder of the Fee Mortgage, if any. If there is no Leasehold Mortgage, the original policies shall be delivered to the holder of the Fee Mortgage, or if there is none, to Landlord. At least ten (10) days prior to the expiration date of any policy, the original renewal policy for such insurance shall be delivered by Tenant to the holder of the expiring original policy, and certificates thereof shall be delivered as aforesaid, together with satisfactory evidence of payment of the premium on such policy. All such policies shall contain a non-cancellation clause except upon thirty (30) days prior written notice to each named insured and loss payee.
Section 4.03. All policies of insurance required under this Lease shall name Landlord and Tenant as the insureds as their respective interests may appear. Subject to the provisions and limitations hereinafter set forth in this Section 4.03 and Sections 4.04 and 4.05 below, all policies of the character referred to in Section 4.01 above shall also provide, if required by either Landlord or Tenant, for any loss thereunder to be payable to the holder of any Fee Mortgage and the holder of any Leasehold Mortgage, as the respective interests of such holders may appear, pursuant to a standard mortgagee clause or endorsement. The loss, if any, under the policies referred to in Section 4.01 above, shall be adjusted with the insurance companies by Tenant, except that in case of any particular casualty resulting in damage or destruction exceeding Five Hundred Thousand Dollars ($500,000.00) in the aggregate, no adjustment shall be made with the insurance companies without the prior approval of Landlord, unless an Institutional Leasehold Mortgagee shall have approved the amount of the adjustment, in which event Landlord's prior approval shall not be required.
Section 4.04. The loss, if any, under all policies of the character referred to in Section 4.01 above shall be payable (a) in the case of any particular casualty resulting in a loss payment not exceeding______________ Dollars ($) to Tenant, or (b) in case of any particular casualty resulting in a loss payment in excess of_______________ Dollars ($) to the Institutional Leasehold Mortgagee holding the first Leasehold Mortgage, or if there is none, to a bank or trust company, as insurance trustee, to be designated by Tenant in a notice given to the insurance companies and to Landlord promptly following the occurrence of the casualty, which bank or trust company shall have its principal office in _____________ , California, and have a capital and surplus account according to its last published statement in excess of Fifty Million Dollars ($50,000,000). All policies of the character referred to in Section 4.01 above shall expressly provide that loss thereunder shall be adjusted and paid as provided in Section 4.03 and this Section 4.04.
Section 4.05. Any loss paid under any insurance policy to Tenant shall be held by Tenant in trust for application to the cost of restoring, repairing, replacing, or rebuilding the Improvements.
Any loss so paid to the Institutional Leasehold Mortgagee, or the insurance trustee shall be disbursed by it in accordance with the provisions of Article 11 below.
ARTICLE 5
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS ADDITIONAL RENT Tenant covenants and agrees that if it shall at any time fail, within the time limit in Section
15.01(b), below, after any notice of any default has been given thereunder, (except in the case of maintaining the insurance policies provided in Article 4 above for which such time limitation shall not apply for purposes of this Article 5), to pay any imposition in accordance with the provisions of Article 3, or to take out, pay for, maintain or deliver any of the insurance policies provided for in Article 4, or fail to cause any lien of the character referred to in Article 12 to be discharged as provided therein, or shall fail to perform any other act on its part to be performed, then Landlord may (but shall not be obligated to) and without further notice or demand upon Tenant and without waiving or releasing Tenant from any obligations of Tenant contained in this Lease contained, (a) pay any imposition payable by Tenant pursuant to the provisions of Article 3, or (b) take out, pay for and maintain any of its insurance policies provided for in Article 4, or (c) discharge any lien of the character referred to in Article 12 as provided therein, or (d) perform any other act on Tenant's part to be performed as provided in this Lease; provided, however, that so long as a Leasehold Mortgage shall be outstanding, (i) Landlord shall not take any action of the character specified in the foregoing clauses (a), (b), (c), or (d) (except in the case of an emergency) until after the expiration of the time limited in Section 14.04 after the notice specified therein has been given to the Leasehold Mortgagee, and (ii) with respect to any action of the character specified in the foregoing clause (d), Landlord shall not take any such action (except in the case of an emergency) if the holder of the Leasehold Mortgage, prior to the expiration of the time limited in Section 14.04 below, shall have given the notice provided for in clause (d) of Section 14.04. All sums so paid by Landlord and all necessary incidental costs and expenses paid or incurred by Landlord in connection with the performance of any such act by Landlord, together with interest thereon at the rate of ten percent (10%) per annum from the date of making of such expenditure by Landlord, shall be payable to Landlord on demand or, at the option of Landlord, may be added to any basic rent then due or thereafter becoming due under this Lease, and Tenant covenants to pay any such sum or sums payable by Tenant for impositions pursuant to Article 3, insurance premiums pursuant to Article 4 and all other charges and expenses of whatsoever nature which Tenant assumes or agrees to pay pursuant to this Lease, shall be deemed additional rent under this Lease and payable as provided in this Lease, and Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the non-payment of any such sums by Tenant as in the case of default by Tenant in the payment of basic rent.
ARTICLE 6
COVENANTS TO MAINTAIN THE PREMISES AND THE IMPROVEMENTS Tenant, at its sole expense, shall keep the Improvements, the Premises and the adjoining sidewalks and curbs clean and in good condition free of accumulations of dirt and rubbish, and shall make all repairs (including structural repairs) and replacements necessary to maintain the Premises and the Improvements in a condition appropriate for buildings of similar construction, use or class in San Luis Obispo County, California; provided, that in any event Tenant shall make all repairs necessary to avoid any structural damage or injury to the Improvements.
Landlord shall not be required to furnish any services or facilities or to make any repairs or alterations to the Premises or the Improvements and Tenant hereby assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Premises and the Improvements.
ARTICLE 7
COMPLIANCE WITH ORDERS, ORDINANCES, ETC.
Section 7.01. Tenant covenants throughout the term of this Lease, at Tenant's sole cost and expense, promptly to comply with all laws and ordinances and the orders, rules, regulations and requirements of all federal, state and municipal governments and appropriate departments, commissions, boards and officers thereof, and the orders, rules, and regulations of the California Board of Fire Underwriters, or any other body hereafter constituted exercising similar functions, which may be applicable to the Premises and the Improvements. Tenant shall likewise observe and comply with the requirements of all policies of public liability, fire, and all other policies of insurance at any time in force with respect to the Improvements.
Section 7.02. Tenant shall have the right to contest by appropriate legal proceedings, in the name of Tenant or Landlord or both, without costs or expense to Landlord, the validity or application of any law, ordinance, order, rule, regulation or requirement of the nature referred to in Section 7.01 above, and if by the terms of any such law, ordinance, order, rule, regulation or requirement, compliance therewith pending the prosecution of any such proceeding may legally be held in abeyance without the incurrence of a lien, charge or liability of any kind against the Premises or the Improvements or Tenant's leasehold interest therein and without subjecting Tenant or Landlord to any criminal liability of whatsoever nature for failure so to comply therewith, Tenant may postpone compliance therewith until the final determination of any proceedings, provided that all such proceedings shall be prosecuted with all due diligence and dispatch, and if any lien, charge or civil liability is incurred by reason of non-compliance, Tenant may nevertheless make such contest and delay compliance as provided above, provided that Tenant furnishes to Landlord security, reasonably satisfactory to Landlord, against any loss or injury by reason of such non-compliance or delay therein and prosecutes the contest aforesaid with due diligence. Notwithstanding the foregoing provisions of this Section, if an Institutional Leasehold Mortgagee shall be the tenant under this Lease, such Institutional Leasehold Mortgagee shall not be required to furnish the security required under this Section. Landlord agrees to execute and deliver any papers which may be necessary or proper to permit Tenant to contest the validity or application of any such law, ordinance, order, rule, regulation or requirement.
ARTICLE 8
DAMAGE TO OR DESTRUCTION OF THE IMPROVEMENTS
Section 8.01. Tenant covenants that in case of damage to or destruction of the Improvements by fire or any other cause, similar or dissimilar, insured or uninsured, it will promptly, at its sole cost and expense, but subject to reimbursement to the extent provided in Article 11 below, restore, repair, replace or rebuild the Improvements as nearly as possible to the condition, quality and class it was in immediately prior to such damage or destruction, or with such changes or alterations as Tenant shall elect to make in conformity with Article 10 below. Such restoration, repairs, replacement, or rebuilding shall be commenced promptly and prosecuted with reasonable diligence.
Section 8.02. If insurance proceeds, if any, recovered in respect of any insured damage or destruction, less any cost of recovery, shall be insufficient to pay the entire cost of such restoration, repairs, replacement or rebuilding, Tenant covenants to pay the deficiency.
Section 8.03. Tenant's obligation to make payment of the basic rent and all other charges on the part of Tenant to be paid and to perform all other covenants and agreements on the part of Tenant to be performed shall not be affected by any such damage to or destruction of the Improvements and Tenant hereby waives the provisions of Sections 1932(2) and 1933(4) of the California Civil Code and of any other statute or law now or hereafter in effect contrary to such obligations of the Tenant as set forth in this Lease, or which relieves Tenant from such obligation.
ARTICLE 9
CONDEMNATION
Section 9.01. If, at any time during the term of this Lease, there shall be a total taking or a constructive total taking of the fee title to the Premises and Improvements in condemnation proceedings or by any right of eminent domain, this Lease shall terminate on the date of such taking and the basic rent and other charges payable by Tenant under this Lease shall be apportioned and paid to the date of such taking. For the purposes of this Article, the term “a constructive total taking” shall mean a taking of such scope that the untaken portion of the Premises and Improvements is insufficient to permit the restoration of the existing Improvements so as to constitute a complete, economical project. In the event of a dispute between Landlord and Tenant as to whether or not there has been “a constructive total taking” within the meaning above set forth, such dispute shall be determined by arbitration in the manner provided in Article 21 below, except that Tenant may elect, at Tenant's sole option and notwithstanding the foregoing, that the same does not constitute “a constructive total taking”, in which event the provisions of this Article 9 subsequent to Section 9.02 hereof shall apply.
Section 9.02. In the event of any such total taking or constructive total taking and the termination of this Lease, the award, or awards for such taking, less the costs of the determination and collection of the amount of the award or awards (“Condemnation Proceeds”), shall be distributed as follows:
(a) Landlord shall first be entitled to receive and retain as its own property, and Tenant hereby assigns to Landlord, such portion of the Condemnation Proceeds as shall equal the fair market value of the Premises as encumbered by this Lease including any untaken portion of the Premises, exclusive of the Improvements; however, to the extent Condemnation Proceeds on account of such total taking are available therefor, in no event shall Landlord receive less than:
(i) the sum of ------------------Dollars ($) if such total taking or constructive total taking occurs prior to the last day of the tenth (10th) year of the Lease term; (ii) the sum of ___________Dollars ($) if such total taking or constructive total taking occurs on or subsequent to the last day of the tenth (10th) year of the Lease term but prior to the last day of the twentieth (20th) year of the Lease term; (iii) the sum of _______________ Dollars ($) if such total taking or constructive total taking occurs on or subsequent to the last day of the twentieth (20th) year of the Lease term but prior to the last day of the Lease term.
(b) Tenant shall then be entitled to receive, and Landlord hereby assigns to Tenant, the balance of the Condemnation Proceeds, if any.
Section 9.03. In the event of a taking which is less than a total taking or constructive total taking (a “partial taking”), this Lease shall not terminate or be affected in any way, except as provided in Section 9.04, below, and Landlord shall first be entitled to receive and retain as its own property, that portion of the Condemnation Proceeds applicable to the Premises as encumbered by this Lease, equal to the fair market value of the portion of the Premises as encumbered by this Lease so taken exclusive of the Improvements (“Landlord's Proceeds”). Tenant shall then be entitled to receive the balance of the Condemnation proceeds (“Tenant's Proceeds”).
Section 9.04. In the event of a partial taking, Tenant, at its sole cost and expense, but subject to reimbursement as provided in Article 11 below, and whether or not Tenant's Proceeds shall be sufficient for the purpose, shall proceed with due diligence to restore, repair, replace or rebuild the remaining part of the Improvements to substantially its former condition or with such changes or alterations as Tenant may elect to make in conformity with Article 10 below so as to constitute a complete, rentable project.
Section 9.05. In the event of a partial taking, this Lease shall terminate as to the portion of the Premises so taken and the basic rent payable for the balance of the term of this Lease shall be reduced by a sum equivalent to the portion of the Premises taken, such reduction to be effective as of the date of Landlord's receipt of such Condemnation Proceeds. Until the amount of the reduction of the basic rent shall have been determined, Tenant shall continue to pay to Landlord the basic rent provided for in Article 2 above.
Section 9.06. If, at any time during the Lease term, the whole or any part of the Premises, or of Tenant's leasehold estate under this Lease, or of the Improvements shall be taken in condemnation proceedings or by any right of eminent domain for temporary use or occupancy (a “temporary taking”) the foregoing provisions of this Article shall not apply and Tenant shall continue to pay, in the manner at the times specified in this Lease, the full amounts of the basic rent and all additional rent and other charges payable by Tenant under this Lease, and, except only to the extent that Tenant may be prevented from so doing pursuant to the terms of the order of the condemning authority, Tenant shall perform and observe all of the other terms, covenants, conditions and obligations of this Lease upon the part of Tenant to be performed and observed, as though such taking had not occurred. In the event of any such temporary taking, Tenant shall be entitled to receive the entire amount of the Condemnation Proceeds made for such taking, whether paid by way of damages, rent or otherwise unless such period of temporary use or occupancy shall extend beyond the termination of this Lease, in which case the Condemnation Proceeds shall be apportioned between Landlord and Tenant as of the date of termination of this Lease. Tenant covenants that, upon the expiration of any such period of temporary use or occupancy during the Lease term, it will, at its sole cost and expense, restore the Improvements, as nearly as may be reasonably possible, to the condition in which the same was immediately prior to such taking, wear and tear during such temporary use or occupancy excepted. To the extent that Landlord receives any portion of the Condemnation Proceeds as compensation for the cost of restoration or repair of the Improvements, Landlord shall, upon restoration of the Improvements by Tenant as provided above, pay such sum to Tenant. Any portion of the Condemnation Proceeds received by Tenant as compensation for the cost of restoration of the Improvements shall, if such period of temporary use or occupancy shall extend beyond the term of this Lease, be paid to Landlord on the date of termination of this Lease.
Section 9.07. If the order or decree in any condemnation or similar proceeding shall fail separately to state the amount to be awarded to Landlord and the amount to be awarded to Tenant under the provisions of Section 9.02 or 9.03, above, or the amount of the compensation for the restoration of the Improvements under Section 9.05, above, and if Landlord and Tenant cannot agree thereon within sixty (60) days after the final award or awards shall have been fixed and determined, any such dispute shall be determined by arbitration in the manner provided in Article 21 below.
Section 9.08. If Tenant shall assign to any Leasehold Mortgagee any Condemnation Proceeds to which it shall be entitled under the provisions of Section 9.02(b), above, Landlord shall recognize such assignment and shall consent to the payment of the Condemnation Proceeds to such assignee as its interest may appear.
Section 9.09. Tenant and the holder of any Leasehold Mortgage shall have the right to participate in any condemnation proceeding for the purpose of protecting their rights under this Lease, and in this connection, specifically and without limitation to introduce evidence independently of Landlord to establish the value of or damage to the Improvements.
ARTICLE 10
CONSTRUCTION OF INITIAL IMPROVEMENTS;
CHANGES AND ALTERATIONS BY TENANT
Section 10.01. Tenant shall have the right, at any time and from time to time during the Lease term, to construct the Initial Improvements, to make such changes and alterations, structural or otherwise, to the Initial Improvements and/or other Improvements as Tenant shall deem necessary or desirable, including, without limiting the foregoing, the right to increase or reduce the height of any of the Improvements, or to demolish any of the Improvements or any part thereof. Such changes, alterations, demolition, new construction, or construction of the Initial Improvements (collectively referred to as “Changes or Alterations” or “Changes and Alterations”) shall be made in all cases subject to the following conditions which Tenant covenants to observe and perform:
(a) No Change or Alteration shall be undertaken until Tenant shall have procured and paid for, so far as the same may be required, from time to time, all City of Grover Beach and other governmental permits and authorizations of the various municipal departments and governmental subdivisions having jurisdiction;
(b) Any structural Change or Alteration shall be conducted under the supervision of an architect or engineer licensed as such in the State of California (who may be an employee of Tenant) selected by Tenant and plans therefore shall be submitted to Landlord, in order to give Landlord an opportunity to determine that such Changes or Alterations will comply with the provisions of this Article;
(c) All work done in connection with any Change or Alteration shall be done in a good and workmanlike manner and in compliance with all applicable laws, ordinances, orders and requirements of all federal, state and municipal governments and their appropriate departments, commissions, boards and officers. The cost of any such Change or Alteration shall be paid in cash or its equivalent, so that the Premises and the Improvements shall at all times be free of liens for labor and materials supplied or claimed to have been supplied. The work of any Change or Alteration shall be prosecuted with reasonable dispatch, Unavoidable Delays excepted. Worker's compensation insurance covering all persons employed in connection with the work and with respect to whom death or bodily injury claims could be asserted against Landlord, Tenant or the Premises or the Improvements, and general liability and property damage insurance (which may be effected by indorsement, if obtainable, on the insurance required to be carried pursuant to Section 4.01 above) for the mutual benefit of Tenant and Landlord with limits of not less than those required to be carried pursuant to Section 4.01, above, shall be maintained by Tenant at Tenant's sole cost and expense at all times when any work is in process in connection with any Change or Alteration.
Section 10.02. Tenant covenants that in performing any work or repairs to, or restoration, replacement or rebuilding of, any of the Improvements required to be performed by Tenant pursuant to the provisions of Article 6, Article 7, Article 8, or Article 9, it will observe and perform, insofar as the nature of such repairs, restoration, replacement or rebuilding make such observation and performance appropriate, the conditions relating to Changes and Alterations set forth in Section 10.01, above.
Section 10.03. [Describe any unique requirements regarding reconstruction.] Section 10.04. Tenant covenants and agrees to construct the Initial Improvements, as approved by Landlord in accordance with the provisions of Section 10.01, above, and in accordance with all of the provisions of this Lease, with the demolition of any existing Improvements and construction of the Initial Improvements to be commenced no later than__________ months following the date of this Lease, and to complete the same (as evidenced by a duly executed and recorded notice of completion for all such Improvements) subject to Unavoidable Delays, not later than ___________months following the date of this Lease, or such later date as diligent prosecution and pursuance of such construction, subject to Unavoidable Delays, would permit such completion. In the event demolition of the existing Improvements and construction of the Initial Improvements stops or is terminated for a continuous period of more than ninety (90) days after the commencement of such work, except for Unavoidable Delays, the same shall, at the option of Landlord, constitute an Event of Default as provided in Article 15, below.
ARTICLE 11
DISBURSEMENT OF DEPOSITED MONEYS
Section 11.01. All sums of the character referred to in Section 4.04 or 9.03, above, (collectively referred to as “Deposited Sums”) paid to or deposited with a bank or trust company or paid to the Institutional Leasehold Mortgagee holding the first Leasehold Mortgage (the “Depositary”), shall be disbursed in the manner provided in this Article 11.
Section 11.02. From time to time as any Change or Alteration progresses, or as the restoration, repair, replacement or rebuilding of any Improvement or any portion thereof damaged or destroyed by fire or any other cause, or not taken in a proceeding of the character described in Section 9.03 progresses (collectively referred to as the “Work”), disbursement of any Deposited Sums shall be made upon receipt by the Depositary of the following:
(a) A certificate signed by an architect or engineer licensed as such in the State of California (who may be an employee of Tenant) selected by Tenant who shall be reasonably satisfactory to Landlord and also signed by Tenant, dated not more than thirty (30) days prior to the application for such disbursement, setting forth in substance the following:
(i) That the sum then requested to be disbursed either has been paid by Tenant and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered and furnished certain labor and materials for the Work and giving a brief description of such services and materials and the principal subdivisions or categories of such Work, and the several amounts so paid or due to each of such persons in respect of such Work, and stating the progress of the Work up to the date of such certificate;
(ii) That the sum then requested to be disbursed, plus all sums previously disbursed, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate, and that the balance of the Deposited Sums will be sufficient to pay in full for the completion of the Work, or Landlord shall have received other assurances reasonably satisfactory to it of payment in full for completion of such Work; (iii) That except for the amounts, if any, stated in such certificate pursuant to Subsection 11.02(a)(i), above, to be due for services or materials, there is no outstanding indebtedness known to the person signing the certificate, after due inquiry, which is then due and payable for work, labor, services and materials in connection with the Work, which, if unpaid, might become the basis of a vendor's, mechanic's, laborer's or materialmen's statutory or similar lien upon Tenant's leasehold estate or Tenant's interest in the Improvements or Landlord's interest in the Premises or future interest in the Improvements or any part thereof. (b) A certificate signed by an officer or other duly authorized representative of Tenant dated not more than thirty (30) days prior to the application for such disbursement, setting forth in substance that, to the best knowledge of the signer, after due inquiry:
(i) All materials and all property described in the certificate furnished pursuant to Subsection 11.02(a)(i), above, are free and clear of all mortgages, liens, charges or encumbrances, except (A) encumbrances, if any, securing indebtedness due to persons (whose names and addresses and the several amounts due then shall be stated) specified in such certificate, which encumbrances will be discharged upon payment of such indebtedness, (B) the leasehold estate created by this Lease, (C) any Mortgage on Tenant's interest under this Lease or the Improvements, (D) encumbrances created by Landlord, (E) impositions not due and delinquent, and (F) encumbrances to which this Lease is subject; and (ii) That no Event of Default has occurred which has not been remedied.
Upon compliance with the foregoing provisions of this Section 11.02, the Depositary shall, out of the Deposited Sums, disburse to the persons named in the certificate pursuant to the foregoing Subsection 11.02(a)(i) the respective amounts stated in the certificate to be due to them and/or shall disburse to Tenant the amount stated in the certificate to have been paid by Tenant.
Section 11.03. At any time after the completion in full of the Work, the whole balance of the Deposited Sums not theretofore disbursed pursuant to the provisions of Section 11.02, above, shall be disbursed to Tenant upon receipt by the Depositary of:
(a) a certificate signed by an officer of Tenant, dated not more than thirty (30) days prior to the application for such disbursement, setting forth in substance the following: (i) that the Work has been completed in full; (ii) that all amounts which Tenant is or may be entitled to have disbursed under the foregoing provisions of this Section 11.02 on account of services rendered or materials furnished in connection with the Work have been disbursed under such provisions; (iii) that all amounts for whose payment Tenant is or may become liable in respect of the Work have been paid in full; and (iv) that no Event of Default has occurred which has not been remedied, and
(b) an official search or a certificate of a title company reasonably satisfactory to Landlord showing that there has not been filed with respect to Tenant's leasehold estate or Tenant's interest in the Improvements or Landlord's interest in the Premises or any part thereof, any vendor's, mechanic's, laborer's, or materialmen's statutory or similar lien which has not been discharged of record, or if the same has not been discharged, Tenant has given Landlord security therefor in an amount equal to one and one-half (1-1/2) times the amount of the lien or claim of lien.
Section 11.04. If an Event of Default shall have occurred and be continuing prior to the disbursement of the Deposited Sums or any part thereof, Landlord may notify the Depositary and thereupon the Depositary shall have no further right or obligation to disburse any of the Deposited Sums to Tenant as provided in this Article 11, but shall disburse the same to or for the account of the Leasehold Mortgagee who shall have given the notice as provided in Section
14.04(d) below, or, in the event of the termination of this Lease, who shall have obtained a new lease pursuant to Section 14.04(f) below, or, if any such Leasehold Mortgagee shall not have elected within the period specified in Section 14.04 to obtain a new lease, to Landlord upon Landlord's direction to do so.
Section 11.05. Landlord and Tenant agree that the Depositary shall have the right to deduct from the Deposited Sums prior to any disbursement pursuant to Sections 11.02 or 11.03, above, its reasonable charges for acting as Depositary under this Lease. An executed copy of this Lease shall be deposited by Tenant with the Depositary and shall constitute authority to the Depositary to act as such in accordance with the provisions of this Article 11 without further direction from Landlord or Tenant.
ARTICLE 12
MECHANIC'S LIENS
Tenant shall not suffer or permit any mechanic's, vendor's, laborer's, or materialman's statutory or similar liens (collectively “mechanic's liens”) to be filed against the Premises or the Improvements, nor against Tenant's leasehold interest in the Premises, by reason of work, labor, services or materials supplied or claimed to have been supplied to Tenant or anyone holding any interest in the Premises and/or the Improvements or any part thereof through or under Tenant. If any such mechanic's lien shall be filed, Tenant shall, within thirty (30) days after notice of the filing thereof, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise; provided, however, that Tenant shall have the right to contest, with due diligence, the validity or amount of any such lien or claimed lien, if Tenant shall give to Landlord security in an amount equal to one and one-half (1- 1/2) times the amount of such lien or claimed lien. Subject to the foregoing provisions, if Tenant shall fail to cause such lien to be discharged within such 30-day period, then, in addition to any other right or remedy of Landlord, Landlord may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. Nothing in this Lease contained shall be deemed or construed in any way as constituting the consent or request of Landlord, express or implied by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvements, alteration to or repair of the Premises or the Improvements or any part thereof, nor as giving Tenant a right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanic's liens against the Premises.
ARTICLE 13
LAWFUL USE; SURRENDER OF IMPROVEMENTS AND THE PREMISES; INSPECTION OF
IMPROVEMENTS AND THE PREMISES
Section 13.01. Tenant shall not use or allow the Improvements or any part thereof, or the Premises, to be used or occupied for any unlawful purpose or for any dangerous or noxious trade or business. This restriction shall not apply during any period of governmental occupancy.
Section 13.02. Upon termination of this Lease, Tenant shall surrender to Landlord the Premises and the Improvements, in good order and repair, reasonable wear and tear excepted and also except as Tenant may have been prevented from maintaining the Improvements in good order and repair by occupation of the Improvements by any sovereign who shall have taken the temporary use of the Improvements and shall then be in possession of the Improvements. Upon such termination, Tenant shall also deliver to Landlord all leases, lease files, plans, records, registers and all other papers and documents which may be necessary or appropriate for the proper operation and management of the Premises and the Improvements.
Section 13.03. Tenant agrees to permit Landlord and the authorized representatives of Landlord and of the holder of any Fee Mortgage to enter the Premises or the Improvements at all reasonable times during usual business hours for the purpose of inspecting the same or exhibiting the same to prospective purchasers of the Premises.
ARTICLE 14
ASSIGNMENT, SUBLETTING AND MORTGAGING
Section 14.01. Prior to the lien-free completion of construction of the Initial Improvements, this Lease and the interest of Tenant under this Lease may not be assigned without the prior written consent of Landlord in each instance. Subsequent to completion of such construction, and without the prior consent of Landlord, this Lease and the interest of Tenant under this Lease may be assigned on one or more occasions to any person, firm or corporation, provided that (a) no such assignment shall be effective for any purpose unless and until (i) the assignor's interest in the Improvements shall be transferred to the assignee of this Lease and (ii) there shall be delivered to Landlord (A) a duplicate original of the instrument or instruments of transfer of this Lease and of the assignor's interest in the Improvements in recordable form, containing the name and address of the transferee and (B) an instrument of assumption by the transferee of all of Tenant's obligations under this Lease; and (b) no such assignment and assumption shall operate or be deemed to operate as a release of the within-named Tenant and/or the duties, obligations and liabilities of Tenant (and/or any guarantor or guarantors of the duties, obligations and liabilities of the within-named Tenant) under this Lease.
Section 14.02. Without the prior consent of Landlord, Tenant shall have the right at any time during the term of this Lease to sublet the Premises or the Improvements or any portion thereof, provided that the term of any such sublease (including any options to extend the same as therein provided) shall not have a term extending beyond the then remaining term of this Lease and the sublease use shall be for an emergency or homeless shelter.
Section 14.03. Reserved.
Section 14.04. Without the prior consent of Landlord, Tenant shall have the right to mortgage this Lease and the leasehold estate hereby created and Tenant's interest in the Improvements; provided, however, that no such mortgage shall be valid for any purpose unless it shall constitute both a lien on the leasehold estate created by this Lease and on Tenant's interest in the Improvements. The execution and delivery of any Leasehold Mortgage shall not be deemed to constitute an assignment or transfer of this Lease nor shall the holder of any Leasehold Mortgage, as such, be deemed an assignee or transferee of this Lease so as to require such holder to assume the performance of any of the terms, covenants or conditions on the part of Tenant to be performed under this Lease. Landlord and Tenant agree that so long as any Leasehold Mortgage is a lien on the Improvements and the leasehold estate created by this Lease as follows:
(a) If Tenant or any Leasehold Mortgagee shall have delivered to Landlord prior written notice of the address of any Leasehold Mortgagee, Landlord will mail to such Leasehold Mortgagee a copy of any notice or other communication from Landlord to Tenant under this Lease at the time of giving such notice or communication to Tenant, and will give to such Leasehold Mortgagee notice of any rejection of the Lease by the trustee in bankruptcy of the Tenant or by Tenant as debtor in possession, and no termination of this lease or termination of Tenant's right of possession of the Premises or reletting of the Premises by Landlord predicated on the giving of any notice shall be effective unless Landlord gives to such Leasehold Mortgagee written notice or a copy of its notice to Tenant of such default or termination, as the case may be.
(b) In the event of any default by Tenant under the provisions of this Lease, any Leasehold Mortgagee will have the same periods as are given Tenant for remedying such default or causing it to be remedied, plus, in each case, an additional period of thirty (30) days after the expiration of the initial period or after Landlord has served a notice or a copy of a notice of such default upon the Leasehold Mortgagee, whichever is later. (c) In the event that Tenant shall default under any of the provisions of this Lease, any Leasehold Mortgagee, without prejudice to its rights against Tenant, shall have the right to cure such default within the applicable grace periods provided for in the preceding Subsection
14.04(b), above, whether the same consists of the failure to pay rent or the failure to perform any other matter or thing which Tenant is hereby required to do or perform, and Landlord shall accept such performance on the part of such Leasehold Mortgagee as though the same had been done or performed by Tenant. For such purpose, Landlord and Tenant hereby authorize such Leasehold Mortgagee to enter upon the Premises and to exercise any of its rights and powers under this Lease and subject to the provisions of this Lease. (d) In the event of any default by Tenant, and if prior to the expiration of the applicable grace period specified in Subsection 14.04(b), above, a Leasehold Mortgagee shall give Landlord written notice that it intends to undertake the curing of such default, or to cause the same to be cured, or to exercise its rights to acquire the leasehold interest of Tenant by foreclosure or otherwise, and shall immediately commence and then proceed with all due diligence to do so, whether by performance on behalf of Tenant of its obligations under this Lease, or by entry on the Premises and/or the Improvements by foreclosure or otherwise, then Landlord will not terminate or take any action to effect a termination of the Lease or re-renter, take possession of or relet the Premises or the Improvements or similarly enforce performance of this Lease in a mode provided by law so long as such Leasehold Mortgagee is with all due diligence and in good faith engaged in the curing of such default, or effecting such foreclosure; provided, however, that the Leasehold Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings if such default shall be cured. (e) In the event that Tenant's interest under this Lease shall be terminated by a sale, assignment or transfer pursuant to the exercise of any remedy of a Leasehold Mortgagee, or pursuant to judicial proceedings, and if (i) no rent or other charges shall then be due and payable by Tenant under this Lease, or (ii) the Leasehold Mortgagee shall have arranged to the reasonable satisfaction of Landlord for the payment of all rent and other charges (less a credit for any income received by Landlord during such period) due and payable by Tenant under this Lease as of the date of such termination, together with the rent and other charges which but for such termination would have become so due and payable from the date of such termination through the sixtieth (60th) day thereafter, and upon payment of all expenses, including attorneys' fees, incident thereto, Landlord will execute and deliver to such Leasehold Mortgagee or its nominee a new lease of the Premises. Such new lease shall be for a term equal to the remainder of the term of this Lease before giving effect to such termination and shall contain the same covenants, agreements, terms, provisions and limitations as this Lease, and shall be subject only to the encumbrances and other matters recited in this Lease and acts done or suffered by Tenant. Upon the execution and delivery of such new lease, the new tenant, in its own name or in the name of Landlord, may take all appropriate steps as shall be necessary to remove Tenant from the Premises and the Improvements, but Landlord shall not be subject to any liability for the payments of fees, including reasonable attorneys' fees, costs or expenses in connection with such removal; and such new tenant shall pay all such fees, including attorneys' fees costs and expenses or, on demand make reimbursements therefor to Landlord. (f) In the event a default under a Leasehold Mortgage shall have occurred, such Leasehold Mortgagee may exercise with respect to the premises and the Improvements any right, power or remedy under the Leasehold Mortgage which is not in conflict with the provisions of this Lease.
(g) This Lease may be assigned, without the consent of Landlord, to or by any Leasehold Mortgagee or its nominee, or pursuant to foreclosure or similar proceedings, or the sale, assignment or other transfer of this Lease in lieu thereof, or the exercise of any other right, power or remedy of the Leasehold Mortgagee, and any Leasehold Mortgagee shall be liable to perform the obligations imposed on Tenant in this Lease only for and during the period it is in possession or ownership of the leasehold estate created by this Lease. (h) There shall be no merger of this Lease or any interest in this Lease nor of the leasehold estate created by this Lease with the fee estate in the Premises, by reason of the fact that this Lease or such interest in this Lease or such leasehold estate may be directly or indirectly held by or for the account of any person who shall hold the fee estate in the Premises, or any interest in such fee estate, nor shall there be such a merger by reason of the fact that all or any part of the leasehold estate created by this Lease may be conveyed or mortgaged in a Leasehold Mortgage to a Leasehold Mortgagee who shall hold the fee estate in the Premises or any interest of the Landlord under this Lease.
(i) No surrender (except a surrender upon the expiration of the term of this Lease or upon termination by Landlord pursuant and subject to the provisions of this Lease) by Tenant to Landlord of this Lease, or of the Premises, or any part thereof, or of any interest therein, and no termination of this Lease by Tenant shall be valid or effective, and neither this Lease nor any of the terms of this Lease may be amended, modified, changed or cancelled and no consents of Tenant under this Lease shall be valid or effective without the prior written consent of any Leasehold Mortgagee who shall have previously given Landlord written notice of the existence of its Leasehold Mortgage.
(j) Landlord consents to a provision in Leasehold Mortgages or otherwise for an assignment of rents from subleases of the Property to the holder of any such Leasehold Mortgage, effective upon any default under such Leasehold Mortgage. (k) If at any time there shall be more than one Leasehold Mortgage constituting a lien on this Lease and the leasehold estate created by this Lease and Tenant's interest in the Improvements, and the holder of the Leasehold Mortgage prior in lien to any other Leasehold Mortgage shall fail or refuse to exercise the rights set forth in this Article 14, each holder of a Leasehold Mortgage in the order of the priority of their respective liens shall have the right to exercise such rights and provided further, however, that with respect to the right of the holder of a Leasehold Mortgage under Section 14.04(e), above, to request a new lease, such right may, notwithstanding the limitation of time set forth in Section 14.04(e), be exercised by the holder of any junior Leasehold Mortgage, in the event the holder of prior Leasehold Mortgage shall not have exercised such right, more than sixty (60) days but not more than seventy-five (75) days after the giving of notice by Landlord of termination of this Lease as provided in said Section.
ARTICLE 15
DEFAULT; BANKRUPTCY
Section 15.01. Tenant agrees that in the event all or substantially all of Tenant's assets are placed in the hands of a receiver or trustee, and such receivership or trusteeship continues for a period of thirty (30) days, or should Tenant make an assignment for the benefit of creditors or be finally adjudicated a bankrupt, or should Tenant institute any proceeding under the Federal Bankruptcy Code as the same now exists or under any amendment thereof which may hereafter be enacted, or under any other act relating to the subject of bankruptcy, or to be discharged of its debts, or to effect a plan of liquidation, composition or reorganization, or should any involuntary proceeding be filed against Tenant under any such bankruptcy laws and such proceeding is not dismissed within ninety (90) days thereafter, then this Lease or any interest of Tenant in and to the Property shall not become an asset in any of such proceedings and, in any such events and in addition to any and all rights or remedies of Landlord under this Lease or as otherwise provided by law, it shall be lawful for Landlord to declare the Lease term ended and to reenter the Property and take possession thereof and remove all persons therefrom, and Tenant shall have no further claim thereon or hereunder. The provisions of this Section 15.01 shall also apply to any guarantor of this Lease.
Section 15.02. (i) Should Tenant at any time be in default with respect to any rental payments or other charges payable by Tenant under this Lease, and should such default continue for a period of ten (10) days after written notice from Landlord to Tenant; or (ii) should Tenant default in the timely payment of rent or other charges payable by Tenant under this Lease so as to necessitate the issuance by Landlord of written notice of default, on two or more occasions within any consecutive six (6) month period (whether or not any such default is subsequently cured by Tenant within ten (10) days after any such notice; or (iii) should Tenant be in default in the prompt and full performance of any other of its promises, covenants or agreements contained in this Lease and should such default or breach of performance continue for more than a reasonable time (not to exceed thirty (30) days except as otherwise expressly provided in Section 15.08, below) after written notice thereof from Landlord to Tenant specifying the particulars of such default or breach of performance; or (iv) should Tenant abandon the premises; then Landlord may treat the occurrence of any one or more of the foregoing events as a breach of this Lease (an “Event of Default”), and in addition to any or all other rights or remedies of Landlord under this Lease or as otherwise permitted by law, it shall be, at the option of Landlord, without further notice or demand of any kind to Tenant or any other person, except as otherwise expressly provided in Article 14, above:
(a) The right of Landlord to declare the Lease term ended and to reenter the Property and take possession thereof and remove all persons therefrom, and Tenant shall have no further claim thereon or thereunder; or
(b) The right of Landlord without declaring this Lease ended to reenter the Property and occupy the whole or any part thereof for and on account of Tenant and to collect the rent and any other charges that may thereafter become payable.
(c) The right of Landlord, even though it may have reentered the Property, to thereafter elect to terminate this Lease and all of the rights of Tenant in or to the Property.
Section 15.03. Should Landlord have reentered the Property under the provisions of Subsection
15.02(b), above, Landlord shall not be deemed to have terminated this Lease, or the liability of Tenant to pay rent thereafter to accrue, or its liability for damages under any of the provisions of this Lease, by any such reenter or by any action in unlawful detainer, or otherwise, to obtain possession of the Property, unless Landlord shall have notified Tenant in writing that it has so elected to terminate this Lease. Tenant further covenants that the service by Landlord of any notice pursuant to the unlawful detainer statutes of the State of California and the surrender of possession pursuant to such notice shall not (unless Landlord elects to the contrary at the time of or at any time subsequent to the serving of such notices and such election is evidenced by a written notice to Tenant) be deemed to be a termination of this Lease. In the event of any entry or taking possession of the Property as provided above, Landlord shall have the right, but not the obligation, to remove from the Property all or any part of the personal property located therein and may place the same in storage at a public warehouse at the expense and risk of the owner or owners thereof.
Section 15.04. Should Landlord elect to terminate this Lease under the provisions of Subsections 15.02(a) or (c), above, Landlord may recover from Tenant as damages:
(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 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 Tenant proves could be reasonably avoided; plus
(d) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, any costs or expenses incurred by Landlord in maintaining or preserving the Property after such default, preparing the Improvements for reletting to a new tenant, any repairs or alterations to the Improvements for such reletting, leasing commissions, or any other costs necessary or appropriate to relet the Property;
(e) at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by the laws of the State of California.
Section 15.05. As used in Subsections 15.04(a) and (b) above, the “worth at the time of award” is computed by allowing interest at the rate of ten percent (10%) per annum. As used in Subsection 15.04(c), above, the “worth at the time of award” is computed by discounting such amount at the discount rate of the San Francisco Federal Reserve Bank, at the time of award, plus one percent (1%).
Section 15.06. For all purposes of this Lease, “rent” shall be deemed to be the basic annual rent and all other sums required to be paid by Tenant pursuant to the terms of this Lease.
Section 15.07. In the event of default, all of Tenant's fixtures, furniture, equipment, improvements, additions, alterations, and other personal property shall remain on the Premises and in that event, and continuing during the length of such default, Landlord shall have the right to take the exclusive possession of same and to use same, rent or charge free, until all defaults are cured or, at its option, at any time during the Lease term, to require Tenant to forthwith remove same.
Section 15.08. Notwithstanding any other provisions of this Article 15, Landlord agrees that if the default complained of, other than for the payment of monies, is of such a nature that the same cannot be rectified or cured within the thirty (30) day period requiring such rectification or curing as specified in the written notice relating thereto, then such default shall be deemed to be rectified or cured if Tenant within such period of thirty (30) days shall have commenced the rectification and curing thereof and shall continue thereafter with all due diligence to cause such rectification and curing and does so diligently complete the same.
Section 15.09. Upon the expiration of the term of this Lease pursuant to any of the provisions of this Article, it shall be lawful for Landlord, without formal demand or notice of any kind, to reenter the Premises and the Improvements by summary dispossess proceedings or any other action or proceeding authorized by law, or by force or otherwise and to remove Tenant therefrom without being liable for any damages therefor.
Section 15.10. Landlord shall not be deemed to be in default in the performance of any obligation required to be performed by it under this Lease until it has failed to perform such obligation within thirty (30) days after written notice by Tenant to Landlord specifying the nature of Landlord's default; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for its performance, then Landlord shall not be deemed to be in default if it shall commence such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
ARTICLE 16
INDEMNIFICATION OF LANDLORD
Tenant agrees to indemnify and save harmless Landlord against and from any and all claims by or on behalf of any person arising from the conduct or management of or from any work or thing whatsoever done in and on the Premises and/or Improvements and will further indemnify and save Landlord harmless against and from any and all claims arising during the term of this Lease from any condition of the Improvements or any street, curb, or sidewalk adjoining the Premises and/or Improvements, or passageways or space therein or appurtenant thereto, or arising from any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed pursuant to this Lease, or arising from any act or negligence of Tenant or any subtenant or occupant of the Improvements or any part thereof, or of its or their agents, contractors, servants, employees or licensees, or arising from any accident, injury or damage whatsoever caused to any person or property occurring during the term of this Lease in or about the Premises and/or Improvements, or upon or under the sidewalks and the land adjacent thereto, and from and against all judgments, costs, expenses and liabilities incurred in or about any such claim or action or proceeding brought therein; and in case any action or proceeding is brought against Landlord by reason of any such claims, Tenant upon notice from Landlord covenants to resist or defend such action or proceeding by counsel reasonably satisfactory to Landlord.
ARTICLE 17
LIMITATION OF LANDLORD'S LIABILITY
The term “Landlord” as used in this Lease so far as covenants or obligations on the part of Landlord are concerned shall be limited to mean and include only the owner or owners at the time in question of the fee of the Premises and in the event of any transfer or transfers of the title to such fee Landlord herein named (and in case of any subsequent transfers or conveyances the then grantor) shall be automatically freed and relieved from and after the date of such transfer or conveyance from all obligations on the part of Landlord contained in this Lease to be performed thereafter, provided that any prepaid rent or trust funds in the hands of such Landlord or the then grantor at the time of such transfer, shall be transferred to the grantee or transferee, who shall expressly assume, subject to the limitations of this Article, all of the terms, covenants and conditions in this Lease contained on the part of Landlord thereafter to be performed, it being intended by this Article that the covenants and obligations contained in this Lease on the part of Landlord shall, subject to the provisions of this Article 17, be binding on Landlord, its successors and assigns, only during and in respect of their respective successive periods of ownership.
ARTICLE 18
INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law.
ARTICLE 19
CERTIFICATES OF LANDLORD AND TENANT
Section 19.01. Tenant agrees at any time and from time to time upon not less than twenty (20) days prior notice by Landlord to execute, acknowledge and deliver to Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications that the Lease is in full force and effect as modified and stating the modifications), and the dates to which the basic rent has been paid, and stating whether or not to the best knowledge of the signer of such statement Tenant is then in default or may be in default with notice or the passage of time, or both, in keeping, observing or performing any term, covenant, agreement, provision, condition or limitation contained in this Lease, and, if in default, specifying each such default, it being intended that any such statement delivered pursuant to this Section may be relied upon by Landlord or any prospective purchaser of the fee or any Fee Mortgage thereof or any assignee of any Fee Mortgage but reliance on such statement may not extend to any default as to which the signer shall have had no actual knowledge.
Section 19.02. Landlord agrees at any time and from time to time upon not less than twenty (20) days prior notice by Tenant or any Leasehold Mortgagee to execute, acknowledge and deliver to Tenant a statement in writing certifying that this lease is unmodified and in full force and effect (or if there shall have been modifications that the Lease is in full force and effect as modified and stating the modifications) and the dates to which the basic rent has been paid, and stating whether or not to the best knowledge of the signer of such statement Tenant is then in default or may be with notice or the passage of time, or both, in keeping, observing or performing any term, covenant, agreement, provision, condition or limitation contained in this Lease and, if Tenant shall be in default, specifying each such default of which the signer may have knowledge, it being intended that such statement delivered pursuant to this Section may be relied upon by any prospective transferee of Tenant's interest in this Lease and the Improvements or any Leasehold Mortgagee or any assignee of any Leasehold Mortgage, but reliance on such certificate may not extend to any default as to which the signer shall have had no actual knowledge.
ARTICLE 20
NOTICES
All written notices or demands of any kind which either party may be required or may desire to serve on the other in connection with this Lease must be served (as an alternative to personal service) by registered or certified mail, shall be deposited in the United States mail with postage thereon fully prepaid and addressed to the party to be served as follows:
If the party so to be served is Landlord, address Landlord at:
with a copy thereof
to
If the party so to be served is Tenant, address Tenant at:
with a copy thereof
to
Service of any such notice or demand so made by mail shall be deemed completed on the day of actual delivery as shown by the addressee's registry or certification receipt or at the expiration of the second day after the date of mailing, whichever is earlier in time. If requested in writing by the holder of any Leasehold Mortgage (which request shall be made in the manner provided above as between the parties hereto and shall specify an address to which notices or demands shall be given or made) any such notice or demand shall also be given or made in the manner specified in this Article and contemporaneously to such holder. Either party, and the holder of any Leasehold Mortgage who shall have made the request referred to above, may designate by notice in writing given in the manner specified above a new or other address to which such notice or demand shall thereafter be so given or made. No Event of Default predicated on the giving of any notice to Tenant shall be complete unless like notice shall have been given contemporaneously therewith to each holder of a Leasehold Mortgage who shall have made a request for notices and demands as provided above.
ARTICLE 21
ARBITRATION
Section 21.01. If at any time, or from time to time during the Lease term, any dispute shall occur between Landlord and Tenant or any assignee of Tenant pursuant to any provision of this Lease with respect to a matter which this Lease provides shall be settled by arbitration, such dispute shall be settled by arbitration in accordance with the Rules then obtaining of the American Arbitration Association and the law of the State of California, and judgment upon the award rendered in such arbitration may be entered in any court having jurisdiction thereof; provided, however, that in any arbitration proceeding conducted pursuant to this Section, at least one arbitrator shall be an attorney at law, admitted to practice in the State of California.
Section 21.02. In the event Tenant shall fail to proceed diligently with any matter which is the subject of arbitration under this Lease, Landlord agrees that the holder of any Leasehold Mortgage shall have the right in the place and stead of Tenant to arbitrate such dispute as provided in this Article and any award made in such arbitration proceeding shall be binding upon Tenant with the same force and effect as if Tenant had proceeded with such arbitration. The arbitrator or arbitrators may not change any of the terms of this Lease or deprive any party to this Lease of any right of remedy expressly or impliedly reserved under this Lease.
ARTICLE 22
CUMULATIVE REMEDIES—NO WAIVER—NO ORAL CHANGE
Section 22.01. The specified remedies to which Landlord may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may be lawfully entitled in case of any breach or threatened breach by Tenant of any provision of this Lease. The failure of Landlord to insist in any one or more cases upon the strict performance of any of the covenants of this Lease or to exercise any option contained in this Lease shall not be construed as a waiver or a relinquishment for the future of such covenant or option. A receipt by Landlord of rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision of this Lease shall be deemed to have been made unless expressly in writing and signed by Landlord. In addition to the other remedies provided in this Lease, Landlord shall be entitled to the restraint by injunction of the violation, or attempted or threatened violation, of any of the covenants, conditions or provisions of this Lease.
Section 22.02. This Lease cannot be changed orally, but only by an agreement in writing signed and acknowledged by Landlord and Tenant.
ARTICLE 23
QUIET ENJOYMENT
Landlord covenants and agrees that Tenant, upon paying the rent provided for in this Lease and upon observing and keeping all of the covenants, agreements and provisions of this Lease on its part to be observed and kept, shall lawfully and quietly hold, occupy and enjoy the Premises during the term of this Lease, without hindrance by or from anyone claiming by, through or under Landlord.
ARTICLE 24
REAL ESTATE BROKERS
Tenant hereby represents and warrants that it has dealt with no real estate broker, agent or party who may be entitled to a commission or fee on account of this Lease. Tenant hereby indemnifies and agrees to hold Landlord harmless from and against any loss, cost, liability and expense, including reasonable attorneys' fees, which may be incurred in the event the foregoing representation and warranty proves incorrect.
ARTICLE 25
REPRESENTATIONS
Landlord hereby disclaims any warranty, guaranty or representation of the nature and condition of the Premises, including (but not by way of limitation) the soil and geology and suitability thereof for any and all activities and uses which Tenant may elect to conduct thereon at any time during the Lease term, the manner of construction and the conditions and state of repair or lack of repair of all improvements located thereon, and the nature and extent of the rights of others with respect to the Premises, whether by way of easement, right of way, lease, possession, lien, encumbrance, license, reservation, condition or otherwise.
ARTICLE 26
MISCELLANEOUS
Section 26.01. All rent and other sums which may from time to time become due and payable by Tenant to Landlord under any of the provisions of this Lease shall bear interest from and after the due date thereof at the rate of ten percent (10%) per annum.
Section 26.02. In all cases the language in all parts of this Lease shall be construed simply, according to its fair meaning and not strictly for or against Landlord or Tenant.
Section 26.03. The word titles underlying the article designations contained in this Lease are inserted solely for convenience and under no circumstances are they or any of them to be treated or construed as any part of this instrument.
Section 26.04. Subject to the other provisions of this Lease, this Lease shall be binding upon and inure to the benefit of Landlord and Tenant and their respective successors and assigns, and wherever a reference in this Lease is made to either Landlord or Tenant, such reference shall be deemed to include, wherever applicable, also a reference to the successors and assigns of such party, as if in every case so expressed.
Section 26.05. At the request of either Landlord or Tenant, a Memorandum of Lease (in the form attached hereto as Exhibit “B”) shall be executed by Landlord and Tenant and recorded in the Office of the County Recorder of County, California. In no event shall this Lease be recorded.
Section 26.06. This Lease shall be governed by and construed in accordance with the laws of the State of California.
Section 26.07. This Lease, together with any written modifications or amendments hereafter entered into shall constitute the entire agreement between the parties relative to the subject matter of this Lease, and shall supersede any prior agreement or understanding, if any, whether written or oral, which Tenant may have had with Landlord relating to the subject matter of this Lease.
Section 26.08. This instrument may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
Section 26.09. In the event of any litigation or arbitration between Landlord and Tenant with respect to the subject matter of this Lease, the unsuccessful party to such litigation or arbitration shall pay to the prevailing party all costs and expenses, including reasonably attorneys' fees, incurred therein by the successful party, all of which shall be included in and as a part of the judgment rendered in such litigation or arbitration.
ARTICLE 27
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above written.
LANDLORD: TENANT:
By: By:
Title: Title:
By: By:
Title: Title:
Exhibit “A”
[DESCRIPTION OF PREMISES]
EXHIBIT “B”
MEMORANDUM OF GROUND LEASE
RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO
MEMORANDUM OF GROUND LEASE
THIS MEMORANDUM OF GROUND LEASE (this “Memorandum”) is made and entered into this day of , , by and between , whose present address is , California (“Landlord”) and , whose present address is , California (“Tenant”), with reference to the following facts:
A. Landlord is the owner of that certain real property located in the City of , County of , State of California, commonly known as and more particularly described in Exhibit “A” attached hereto (the “Property”).
B. Landlord desires to lease the Property to Tenant, and Tenant desires to lease the Property from Landlord, all subject to the terms and provisions of this Memorandum.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Lease of the Property. Landlord hereby leases the Property to Tenant, and Tenant hereby leases the Property from Landlord for a term of () years commencing on and terminating on , , all subject to and on terms and conditions more fully set forth in that certain Ground Lease executed by and between Landlord and Tenant and dated , (the “Lease”). The said Ground Lease is incorporated herein by this reference. Should any party require any information concerning the said Ground Lease, they should contact the Landlord and Tenant at the abovereferenced addresses.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum on the day and year first above written.
TENANT LANDLORD
[Add Notary Acknowledgement] [Add Notary Acknowledgement] Site Location
955 South 4th
Street
Legal Description
Lot 21 and 22 of Block 3, of
re-subdivision No.3 of part of
Lot 1 of Pismo Beach
Gardens (3 RM 77).
Land Use Data
LUD: Industrial
Zoning: Coastal Industrial (CI)
APN: 060-542-014
Lot Size: 20,625 s.f.
Attachment 2
Budget JE #
AGENDA DATE
3/14/2022
AMOUNT
$425,000
$425,000
$425,000
$425,000
JUSTIFICATION: (attach letter if required) - CM requestREQUESTED BY:
Date Date
APPROVED by the City Council of the City of Grover Beach, State of California, this day of 20____. Agenda Item No.
ATTEST:
APPROVED BY:
Date City Manager
Department Head Administrative Services
City Clerk
TOTAL EXPENDITURES
Move appropriation for ARPA funding from Economic Development to Capital Purchase REVIEWED & APPROVED BY:
TOTAL REVENUES
EXPENDITURE USES
Capital Purchase 01-000-57000-000 ARPA
REVENUE SOURCES
Economic Development 01-000-54120-000 ARPA
DESCRIPTION # #
Approvals/workflow 1.
Dept Head 2.
Admin Svcs
3. City Council
4. City Manager
City of Grover Beach
BUDGET ADJUSTMENT REQUEST
4th Street Property Acquisition of $425,000 using ARPA
Account PROJECT/GRANT
Attachment 3