LEASE AND OPERATING AGREEMENT
{!,,of;~s· ~ 2.-1-08
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This LEASE AND OPERA TJNO AGREEMENT ("Agreement") is made and cnte:-cd into as of this~ day of FISIMJ.>ll(.!', 2008, by and between the CITY OF SAN CLEMENTE, a municipal corporation of the State of California ("City"), and SOUTH COUNTY SENIOR SERVICES, INC., a California nonprofit corporation ("Seniors"). City and Seniors are hereinafter sometimes referred to collectively as the "Parties" and individually as a "Party." A. City is the owner in fee of that certain real property consisting of approximately
0.735 acres of land area located in the City of San Clemente, County of Orange, State of California, which real property is more particularly described in the legal description attached hereto as Exhibit "A" (the "Site").
B. City contemplates constructing on the Site an approximately 16.000 square foot building (the ''Building"). City anticipates that approximately 8,000 square feet of the Building will be developed and operated as a community center offering programs and services specifically for senior citizens and other uses as expressly provided in this Agreement (the "Senior Facility"). City anticipates that the remainder of the Building (the "Fire Station Facility") will be developed and operated as a fire station.
C. City and Seniors desire to enter into this Agreement to provide for the following:
(i) City's lease to Seniors, and Seniors' lease from City, of the Senior Facility; (ii) Seniors' use of the Senior Facility for the purpose of operating a senior citizens' community center along with other incidental and related uses; (iii) City's temporary use of the Senior Facility as an Emergency Operations Center ("EOC") in accordance with City procedures in the event of a disaster; and (iv) the rights and obligations of City and Seniors with respect to such matters, all as more particularly described herein.
D. On or about the date the Parties are entering into this Agreement, City and Seniors are entering into that certain "Project Funding Agreement" that sets forth the Parties' respective rights and obligations concerning the design, financing, and construction of the Senior Facility.
COVENANTS
Based upon the foregoing Recitals, which are incorporated into this Agreement by reference. and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both Parties, City and Seniors hereby agree as fo !lows:
I. Lease of Leased PropertJ:'. and Rent.
J. I Leased Property. City hereby agree~ to lease to Seniors and Seniors hereby agrees to lease from City the portion of the Site and all landscaping, improvements, and structures to be constructed thereon that will be used as and for the Senior Facility and all Jointly Used FF&E (as defined below} to be located within the Senior Facility (collectively, the "Leased Property"), for the Term, and upon the tem1s and conditions set forth in this Agreement. In addition, City hereby grants to Seniors for the Term, and upon the terms and conditions set forth 69J.'D6226t'•Ollie
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in this Agreement, a license and right of use in, on, over and through the Site in parking areas and common areas designated by City ("Parking Areas") for pedestrian and vehicular ingress, egress, access and parking purposes to use the number of parking spaces required by any applicable governmental authority in order for the Leased Property to be in compliance with all laws governing the use and operation of the Leased Property as of the Commencement Date. As of the date of this Agreement, the plans and specifications for the Building, the Senior Facility, the Fire Station Facility, and the balance of the improvements proposed to be developed on the Site have not been finalized, but the Parties have agreed to the conceptual site plan, preliminary fioor layouts, and overall size of the Building envelope and the Senior Facility (the "Conceptual Sile Plans"). Upon City's and Seniors' approval of the "Final Site Plans," as provided in Section 2.1 of the Project Funding Agreement, the Parties shall prepare a depiction of the property that will serve as the Leased Property and attach said depiction to this Agreement as Exhibit "B," which will then be incorporated by this reference.
1.2 Rent. Seniors shall pay to City as rent for the Leased Property the sum of One Dollar ($ 1.00) per year, based upon the City's fiscal year (July 1 through June 30). Rent shall be payable annually in arrears, no later than June 30 for each then-current fiscal year. Rent shall be paid pursuant to Section 11 of this Agreement.
2. Term.
2.1 Commencement !lnd Duration. Subject to the possibility of earlier tennination as provided for herein and in the Project Funding Agreement, the tenn of this Agreement (the "Term") shall be for a period of forty (40) years, commencing on the date that City delivers possession of the Leased Property to Seniors, which shall in no event be earlier than fourteen (14) days nor later than thirty (30) days following the completion of construction of the Leased Property and the Building by City in accordance with the provisions of the Project funding Agreement (the "Commencement Date"). Seniors acknowledges and understands that as of the date of this Agreement the proposed development of the Site is in the planning stages and City does not warrant or represent to Seniors that the Senior Facility, the Fire Station facility, or any other improvement will be constructed on the Site or constructed by a specific date; provided, however, that nothing contained herein shall serve to modify or amend in any manner the terms of the Project funding Agreement.
2.2 Right to Tcnninate. City and Seniors shall each have the right to terminate this Agreement in accordance with the Project Funding Agreement in the event that a Termination Contingency, as defined in Section 6 of the Project Funding Agreement, occurs.
Upon the terminating Party's election to terminate this Agreement and delivery of the notice of termination as provided for in the Project Funding Agreement, this Agreement shall tcnninate and ndthcr Party shall have any further rights or obligations hereunder. Not by way of limitation of the foregoing, City shall have the right to unilaterally continue with the development and use of the Site in accordance with the Final Site Plans or such other plans as may be prepared and approved by City if this Agreement and the Project Funding Agreement are terminated as a result of the occurrence of a Termination Contingency and City performs its remaining obligations to Seniors on account of such termination in accordance with the Project Funding Agreement. 69!106l266..0l06
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3. Use of Leased Property.
3.1 Type of Use. Seniors shall use the Leased Property for the purpose of operating a community center offering programs and services specifically for senior citizens (and other related and incidental uses), including without limitation the programs listed in Exhibit "C" attached hereto and incorporated by reference (the "Permitted Uses"). and for no other purpose, except as may be approved by City pursuant to Section 3.7 below; provided, however, that Seniors' obligation to provide the programs listed on Exhibit "C" is expressly conditioned on Seniors' receipt of adequate third-party funding for the provision of such programs, and provided, further, that in the event Seniors fails to open and operate the Leased Property for Permitted Uses for six (6) consecutive months or more solely because Seniors fails to obtain adequate third~party funding therefore from any lawful source (and not because of casualty losses, repairs, maintenance and the like), the City shall have the right to termin.:ne this Agreement eighteen (18) days after delivery to Seniors of a notice of belief of abandonment of the Leased Property, if Seniors has failed to resume operations as authorized herein within the eighteen (18) day period. Such right of termination shall be City's sole remedy on account of Senior's failure to open and operate the Leased Property for Permitted Uses for six (6) consecutive months or more because of Senior's failure to obtain adequate third-party funding therefore. Seniors shall use no more than twenty percent (20%) of the square footage of the Leased Property for office space.
3.2 Hours of Operation. Subject to temporary interruptions for casualty losses, repairs, maintenance and the like, and subject to closure (a) on national and state holidays, (b) on those days in which the City's offices are closed and (c) to accommodate City's use of the Senior Facility as an EOC pursuant to the terms of Section 3. 10, Seniors covenants and agrees to keep the community center on the Leased Property open for use by seniors and to continuously operate the Leased Property for the Pennitted Uses a minimum of 40 hours per week (the "Minimum Weekly Hours") throughout the Term of this Agreement; provided, however, thnt Seniors' obligation to operate the Leased Property for the Permitted Uses for the Minimum Weekly Hours is expressly conditioned on Seniors' receipt of adequate third-party funding for the provision of such Permitted Uses for the Minimum Weekly Hours (subject to City's tennination right set forth in Section 3.1 above). The Minimum Weekly Hours shall not be changed without prior written consent of City's Director of Beaches, Parks and Recreation or authorized designce (the "Director"), which consent may be granted or denied in Director's sole :md absolute discretion. Subject to temporary inteJTuptions for casualty losses, repairs, maintenance and the like, and subject to the other provisions of this Section 3.2, Seniors shall keep the community center on the Leased Property open for use by senior citizens and Seniors shall operate the Leased Property for the Permitted Uses Monday through Friday from 8:30 a.m. until 4:30 p.m, national and state holidays and those days in which the City's offices are closed excepted (the ''Standard Seniors Hours of Operation"), unless modified pursuant to Section 3.3 hereinbdow.
3.3 Modification to Hours of Operation fer Seniors Use. As long as Seniors keeps the community center on the Leased Property open for use by seniors and continuously operates the Leased Property for the Permitted Uses for the Minimum Weekly Hours, Seniors shall have the right, .'>ubject to the Director's approval, to modify the Standarc.l Seniors Hours of Operation from time to time in response to demand for use of the Leased Property by senior 69t'0672G6,U)06
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citizens. In the event Seniors desires to modify the Standard Seniors Hours of Operation, Seniors shall deliver a written request to the Director no later than thirty (30) days prior to the date that Seniors desires the modification to become effective. The written request shall state the days and hours that Seniors desires to operate the Leased Property for the Permitted Uses, including hours of operation on Saturdays and Sundays, if applicable. The Director shall review the written request and shall not unreasonably withhold or condition approval of the modified hours of operation as long as such proposed modified hours of operation do not interfere with third party or City uses as approved pursuant to Section 3.7 of this Agreement. Upon City's approval, the modified Seniors' hours of operation are referred to herein as the "Modified Seniors Hours of Operation." Seniors shall keep for its records any approved written request for Modified Seniors Hours of Operation.
3.4 Seniors Hours of Operation. The Standard Seniors Hours of Operation and any approved Modified Seniors Hours of Operation shall be referred to in this Agreement as the "Seniors Hours of Operation" for the Leased Property. During the Seniors Hours of Operation the Leased Property shall be used for the Permitted Uses, and for no other purpose. 3 .5 Authorization for Use by Third Parties: Revenues Generated From Use by Third Parties. Subject to City's approval as provided in Section 3.7 below and City's temporary use of the Senior Facility as an EOC pursuant to the terms of Section 3.10, Seniors shall have the right to rent out the Leased Property to third parties or allow the Leased Property to be used by third parties for special events during those dates and times that are not required to be the Seniors Hours of Operation.
Seniors shall be responsible for coordinating and managing the use of the Leased Property for third party special events subject to City approval and approved scheduling of third party and City uses pursuant to Section 3. 7 below. In the event that any net operating income is generated from the use of the Leased Property by third parties, Seniors shall be entitled to one hundred percent (l 00%) of such net operating income.
3.6 Coordination of Operations. Seniors shall coordinate and produce the annual master schedule ("Master Schedule'') for all uses of the Leased Property. The first Master Schedule shall be for the period of time between the Commencement Date and December 31 of the calendar year in which the Commencement Date occurs. Thereafter, the Master Schedule shall be updated annually to cover the period of time between January I and December 31 of the applicable calt:ndar year. The !\faster Schedule shall specify: {i) the Minimum Weekly Hours; (ii) the hours during the week that are Seniors Hours of Operations; (iii) the periods during which the Leased Property will be used for approved third party events; (iv) the periods during which City may use the Leased Property pursuant to Section 3.7 below; and (v) such other information as City and Seniors deem necessary and appropriate.
3. 7 Approval of Third Party Uses and Use of Lease Property by Citv; City Budgeting for Permitted Uses; Expedited Dlspute Resolution. 6?810~2260 ·OlOO
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(A) Annual Approval of Events for Master Schedule. City shall approve the use of the Leased Property prior to any use by a third party, and City -4-
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shall have the right to reserve, enter, and use the Leased Property for Citysponsored events, pursuant to one of the procedures in clauses (i) and (ii) below:
(i) No later than October I of each year, the Director and a representative from Seniors shall meet and determim: the hours and dates for the following calendar year when (aa) Seniors will allow the use of the Leased Property by a third party or for a third party event, and (bb) City will have the right to enter and use the Leased Property for City-sponsored events. The Director shall not unreasonably withhord or condition approvar for the use by a third party of the Leased Property so long as parking will be available and other limits to capacity will not be breached, and the representative from Seniors shall not unreasonably withhold or condition approval for the use by the City of the Leased Property so long as such City-sponsored use will not interfere with Seniors' use of the Leased Property. In tht: event that the Director does not approve Seniors' request to allow a third party to use the Leased Property, or in the event that the representative from Seniors does not approve City's request to enter and use the Leased Property, the Party that has been denied the request to use the Leased Property for the use requested sh;dl have the right to appeal the decision to the Expedited Review Board pursuant to the expedited review procedure set forth in Section 3.7(C) below, whose decision on the matter shall be final; provided, however, that in no event shall the City use the Leased Property during the Seniors Houts of Operation or if such use will interfere with Seniors' Permitted Uses or Seniors' ability to operate the Leased Property for the Prnnitted Uses for the Minimum Weekly Hours. The hours and dates for the applicable calendar year during which third parties and City shal 1 have the right to enter and use the Leased Property shall be incorporated into the Master Schedule.
(ii) If an event is not incorporated into the l\•faster Schedule pursuant to Section 3.7(A)(i) above, then no later than thirty (30) days prior to the datc(s) upon which either (aa) City desires to enter and use the Leased Property for a City-sponsored event, the Director shall deliver to a representative for Seniors, or (bb) Seniors desires to allmv a third party to use the Leased Property, a representative from Seniors shall deliver to the Director, a written request for the right to enter and use the Leased Property. The written request shall describe the intended use of the Leased Property and shall disdose whether the intended use will be a recreational program or other event or activity that will occm on an ongoing and continuous basis (a "Continuing Program"}. The Director shall not unreasonably withhold or condition approval for the use by a third party of the Leased Property so long as parking will be available and other ltmits to capacity will not be breached, and the representative from Seniors shall not unn;asonably withhold or condition approval for the use by the City of the Lcc1sed Property so long as such City-sponsored use will not interfere with Seniors' use of the Leasi:J Property. In the event that 698/062266-0306
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the Director does not approve Seniors' request to allow a third party to use the Leased Property, or in the event that the representative from Seniors does not approve City's request to enter and use the Leased Property, the Party that has been denied the request to use the Leased Property for the use requested shall have the right to appeal the decision to the Expedited Review Board pursuant to the expedited review procedure set forth in Section 3.7(C) below, whose decision on the matter shall be final; provided, however, that in no event shall the City use the Leased Property during the Seniors Hours of Operation or if such use will interfere with Seniors' Permitted Uses or Seniors ability to operate the Leased Property for the Permitted Uses for the Minimum Weekly Hours. For any use of the Leased Property by City approved pursuant to clause (i) above or this clause (ii), City, upon the request of Seniors, shall enter into a separate use agreement in a form approved by the Parties. With regard to any use of the Leased Property by City constituting a Continuing Program, (yy) the separate use agreement shall cover the continued operation and neither Party shall be required to enter into subsequent use agreements for each use of the Leased Property, and (zz) the Continuing Program shall be incorporated into the Master Schedule until such time as the Party requesting the Continuing Program determines it is no longer feasible or desirable to continue said Continuing Program.
(B) Concurrently when the Director and a representative from Seniors meet to detennine the Master Schedule for the upcom.ing year pursuant to Section
3.7(A)(i) above, Seniors shall submit to Director a request for funds from the City to assist in paying for Permitted Uses for the upcoming calendar year (the "Permitted Uses Budget Request"). The Permitted Uses Budget Request shall specify by line-item the amount of money Seniors seeks from City for each Permitted Use. No later than thirty (30) days after delivery to the Director of the Pennitted Uses Budget Request for the upcoming calendar year, the Director shall approve, partially approve, conditionally approve, or deny the Permitted Uses Budget Request in Director's reasonable discretion, subject to any applicable laws and policies for the budgeting of City funds and expenditure thereof. In the event that the Dire-ctor does not approve or conditionally or partially approves any part of Seniors' Pennitted Uses Budget Request, the Director shall provide written explanation therefore. Seniors shall seek funding for payment of all Pennitted Uses from any available third-party funding source, including other governmental agencies, and it is expressly understood that Seniors shall not have the right to rely on City funds for payment of expenses incurred for Permitted Uses except as may be approved from year to year in accordance with this Section 3.7(B). (C} ln the event that either Party has been denied a requested use for the ·Leased Property after following the procedures in Section 3.7(A) above, or in the event that Director d_enics or conditionally or partially approves a Permitted Uses Budget Request by Seniors for any given year as provided in Section 3.7(8) above, and the aggrieved Party seeks review of said decision, then the aggrieved -6-
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Party shall have the right to appeal said decision solely pursuant to the expedited review procedure in this Section 3.7(C)
(i) Expedited review proceedings shall be conducted before the "Expedited Review Board," which shall consist of Two (2) City Council members, Two (2) members of the Board of Directors for Seniors, and One (I) neutral person selected by both Parties. The neutral person shall be selected by the Parties concurrently when the Director and a representative from Seniors meet to determine the Master Schedule for the upcoming year, but in no event later than October l of each year. The neutral person shall remain on the Expedited Review Board from the date of selection and through the following year until the Patties meet again to determine the Master Schedule. The Parties may re-select the same neutral person fro rn year to year. If for any reason the Parties cannot agree upon the identity of the neutral person to serve on the Expedited Review Board, the identity of such neutral person shall be dctennined pursuant to the arbitration provisions set forth in Section 9. l l of the Project Funding Agreement.
(ii) Expedited revie\V proceedings shall be commenced no later than fifteen (15) days after delivery of \vTilten notice to the aggrieved Party of the denial of the reque~tcd approval. To commence proceedings, the aggrieved Party shall deliver to the non-aggrieved Party and the city clerk of the City ("City Clerk") a written demand to participate in an expedited review pursuant to Section 3.7(C) of thi5 Agreement, a brief statement setting forth the nature of the dispute, and a request for the remedy and/or amount of money (if any) sought {the "Review Demand"), No later than five (5) business days after delivery of the Review Demand, the non-aggrieved Party may deliver to the aggrieved Party and City Clerk a response to the statement of the nature of the dispute and request that a different remedy and/or amount of money be awarded (the "Demand Response"). In the event that the non-aggrieved Party does not deliver a Demand Response, the non-aggrieved Party shall be deemed to have denied in full the aggrieved Party's request for the remedy am.I/or amount of money (if any) sought. The City Clerk shall be the custodian of the original Review Demand and Demand Response (if any)
(iii) No later than ten ( I 0) days after delivery of the Review Demand to the non-aggrieved Party and City Clerk, the City Clerk shall designate a place, date, and time for the hearing on the Review Demand.
The date for the hearing shall be no later th:m fifteen (15) days afcer delivery of Review Demand, subject to brief delays caused by any notice requirements as required by law and availability of Expedited Review Board mernhers. The City Clerk shall deliver notice to the Parties of the ptac-e, date, and time of the hearing no later than seventy-two (72) hours prior to the hearing.
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(iv) The Expedited Review Board shall have the power to control the hearing. Subject to reasonable rules and procedures required by the Expedited Review Board. the Parties may present documents, witnesses, and other relevant evidence at the hearing. The rule of evidence under federal and California law shall not apply. Either Party may be represented by counsel or other authorized representative. Upon receiving aJI testimony and evidence from the Parties, the Expedited Review Board shall close the hearing and shall render a decision no later than five (5) days after the closing of the hearing. Any award of an amount of money shall be in writing and shall be expressly conditioned upon compliance with applicable federal, state, and local Jaws concerning the budgeting and appropriation of public funds. The decision rendered by the majority of the Expedited Review Board shall be final and shall not be subject to further appeal.
(v} THE PARTIES HEREBY EXPRESSLY WAIVE ANY
RIGHT THEY MAY HA VE TO APPEAL ANY DECISION BY THE
EXPEDlTED REVIEW BOARD, WHETHER BY ADMlNlSTRA TIVE
OR JUDICIAL APPEAL, PETrTION FOR WRlT OF MANDATE. OR
OTHER PROCESS OF REVIEW AS MAY BE AV AIL/\BLE UNDER
LAW. BY IN1T1AUNG IN THE SPACE BELOW, THE PARTIES ARE
AGREEING TO HA VE A DISPUTE ARISING OUT OF THE
MATTERS INCLUDED IN THE "EXPEDITED REVIEW
PROCEDURE" SET FORTH IN SECTION 3.7(C) DECIDED BY A
FINAL AND BlNDING DECISION OF THE EXPEDITED REVIEW
BOARD. THE PARTIES HEREBY EXPRESSLY ACKNOWLEDGE
THAT THEY MAY BE GJVTNG UP RJGHTS THEY POSSESS TO
HAVE THE SPECIFIED DISPUTE OTHERWISE REVIEWED OR
LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING fN
THE SPACE BELOW, THE PARTIES ARE GIVfNG UP THEIR
flJDJCIAL RIGHTS TO DISCOVERY AND APPEAL FOR TI-IE
MATTERS SPECIFIED SECTION 3. 7. THE PARTIES EXPRESSLY
ACKNOWLEDGE THAT IF A PARTY REFUSES TO SUBMIT TO
THE EXPEDITED REV[EW PROCEDURE AFTER AGREETNG TO
THIS PROVISION. THE PARTY MAY BE COMPELLED TO SUBMIT
THE MATTER TO THE EXPEDITED REVIEW BOARD. EACH
PARTY'S AGREEMENT TO THIS PROVISION IS VOLUNTARY.
CITY'S INITIALS:
SENIORS' INITIALS:
(D) Except for lhe i;osts anJ expenses for which City has an obligation to pay pursuant to this Agreement, Seniors shall not require City to pay a fee by whatever name so called for City's use of the Leased Property. Notwithstanding -8-
anything to the contrary contained in this Section 3.7, Seniors shall have the right, at any time that the Leased Property is being used for a City-sponsored event or otherwise used by a third-party, to restrict access to the offices, supply rooms and equipment and other personal property of Seniors. The right to restrict access in the preceding sentence shall not apply when City temporarily uses the Leased Property for an EOC; provided, however, that City shall be solely responsible for, and shall indemnify and hold harmless Seniors from and against, any loss or damage to Seniors' offices, supply rooms or equipment or other personal property during such use of the Leased Property for an EOC.
3.8 Compliance with Laws: Conduct of Operations. Subject to the provisions of Section 6 below, Seniors shall, at its sole cost and expense, comply with all federal, state, and local statuics, luws, rules, regulations, and ordinances applicable to the Leased Property and Seniors' use, operation, and occupancy of the Leased Property. Seniors shall not conduct or permit to be conducted on the Leased Property any public or private nuisance or commit or permit to be committed any waste upon the Leased Property. Subject to the provisions of Section 6 below, Seniors shall prepare and obtain at its sole cost and expense all licenses, permits, consents, and authorizations as may be necessary or required by law for the operation of the Leased Property and shall cause the Leased Property to comply with any applicable law with respect to Seniors' use, operation, and occupancy of the Leased Property. Seniors shall conduct its operations on the Leased Property in a competent manner, and will at all times retain qualified, competent, and experienced personnel to operate the Leased Property. Seniors shall be solely responsible for monitoring the conduct and ensuring the safety of its employees, agents, and invitees on the Leased Property. City shall be solely responsible for monitoring the conduct and ensuring the safety of its employees, agents, and invitees on the Leased Property. 3 .9 Compliance with Environmental Laws. Seniors shall not engage in any activity on or about the Leased Property that violates any "Environmental Law" (as defined below) and shal! promptly, at Seniors' sole cost and expense, take all investigatory and/or remedial action re4uired or ordered by any governmental agency or Environmental Law for clean-up and removal of any contamination involving any "Hazardous Material" (as defined below) created or caused directly or indirectly by or under Seniors. The tenn "Environmental Lav/' shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Leased Property including, without limitation, (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (''CERCLA"), 42 U.S.C. Sections 9601 el seq.; (ii) the Resource Conservacion and Recovery Act ("RCRA"), 47 lJS.C. Sections 6901 el seq.; (iii) California Health and Safciy Code Sections 25100 et seq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of I 986, California Health and Safety Code Section 25249.5 et seq.; (v) the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.; and (vi) California Water Code Seciion 1300 et seq.; (vii) California Civil Code Section 3479 et seq; and (viii) San Clemente City Council Resolution No. 04-27 (Prohibiting the Use of rood Service Items Comprised of Expandable Polystyrene (Commonly Referred to by the Trade Name "Styrofoam")), as such l::1ws are amended and the regulations and administrative codes applicable thereto. The term "Hazardous Material" includes, without limitation, any material or substance which is ( i) defined or listed as a "hazardous waste," "extremely hazardous waste," "restrictive hazardous waste" or ''hazardous substance" or considered a waste, condition of 698/061266-0306
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pollution or nuisance under the Environmental Laws; (ii) petroleum or petroleum product or fraction thereof; (iii) asbestos' and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. It is the intent of the parties hereto to construe the tenns "Hazardous Materials" and "Environmental Laws" in their broadest sense. Seniors shall provide all notices required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq. Seniors shall provide prompt written notice to City of the existence of Hazardous Materials on the Leased Property and all notices of violation of the Environmental Laws received by Seniors.
3. IO Use of Senior Facility as Emergency Operations Center. Notwithstanding any provision in this Agreement to the contrary, City shall have the right to temporarily enter and use the Leased Property for the City's EOC in the event of a disaster if City has declared the need for the EOC in accordance with City procedures. From the time of the disaster meriting the need for the EOC, and for the duration of City's use of the Leased Property for the EOC (which use by the City shall not extend beyond the period of time reasonably required lo address the effects of such disaster), neither Seniors nor any third-party shall have the right to use the Leased Property. City shall immediately deliver to Seniors verbal notice that City requires the use of the Leased Property for the EOC, and Seniors shall promptly evacuate or cause the evacuation of the Leased Property (it being acknowledged and agreed, however, that in no event shall such evacuation require the removal of any personal property, equipment, trade fixtures or other property of Seniors). City shall deliver to Seniors verbal and written notice of the date and time when City's required use of the Leased Property for the EOC ceases. City's right to enter and use the Leased Property for the EOC shall remain in force for the duration of the Term. For purposes of this Agreement, "disaster" shall mean any sudden catastrophic event, including but not limited to acts of God, earthquakes, severe weather, nooding, landslides or severe subsidence of earth. terrorist attack, and similar events.
4. R.ight to Name Senior Facilrty. Suhject to City's reasonable approval, Seniors shall have the right to name the Senior Facility. Seniors shall have the right to name rooms within the Leased Property without City's prior approval.
5. Condition of Leased Property. Upon completion of the construction of the improvements to be constructed by City on the Site and prior to the Commencement Date, Seniors shall have an opportunity to walk through and inspect the Leased Property to review and approve the work completed. Upon Seniors' approval of the work, or upon Seniors' taking possession of the Leased Property, whicht:ver occurs first, Seniors shall be deemed to have accepted the Leased Property in an AS-IS condition without any representations or warranties of any nature or kind whatsoever from City. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the provisions of this Section 5 serve to modify, amend or limit in any manner Seniors' rights and remedies under the Project funding Agreement on account of any breach or default by City of its obligations thereunder, irrespective of when such breach or default is discovertd by Seniors.
6. Maintenance and Repairs.
6.1 Exterior of Leased Property. City, at its sole cost and expense, shall maintain, repair, and replace, as detennined by City to be reasonably necessary, and perform 69B/D6H66°0J06
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alterations and improvements to, the exterior of the Leased Property which is limited specifically to the roof, exterior walls (including painting), exterior building structure, exterior fixtures and equipment, and 1he landscaping and Parking Art.:a improvements on the Leased Property, as reasonably necessary to insure the same is kept in good order, repair and condition, and in compliance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal and other governmental agencies having jurisdiction, during the entire Term.
Jn no event shall City be responsible to Seniors for any lemporary interruptions in Senior,s' use of or access to the Leased Property resulting from City's perfonnance of any such maintenance. repair, replacement, alteration or improvement; it being acknowledged and agreed, however, that City shall perform such maintenance, repair, replacement, alteration or improvement in a manner so as to at all times minimize to the extent possible interference with Seniors' use of or access to the Leased Property.
6.2 Annual City Equipment Replacement Contribution. Commencing on July I of the fiscal year commencing after the Commencement Date and on each July I thereafter during the Term of th is Agreement City shall pay to Seniors the sum of Ten Thousand Dollars ($10,000) (the "Annual Replacement Contribution"). Seniors shall place the Annual Replacement Contribution in a separate interest-bearing account held with a reputable financial institution licensed to do business in the State of California (the "Reserve Account") and shall use said funds solely for the repair and replacement of fixtures, furnishings, and equipment used by both City and Seniors (the "Jointly Used FF&E" as defined below} within the interior of the Bui I ding of the Leased Property. Prior to the disbursement of any funds from the Reserve Account. Seniors shall deliver to City for its approval, which shall not be unreasonably withheld or delayed, each invoice or payment demand for the repair or replacement of Jointly Used FF&E. "Jointly Used FF&E" shall mean: (i) the fixtures and equipment for the kitchen facility; (ii) the fixtures and equipment for the men's and women's restroom facilities; (iii) ancillary furnishings such as couches, tables, chairs, and similar furniture used by the community served by the Senior Facility (including "Seniors FF&E'' as defined in Section 7 below); and (iv) any other fixtures, furnishings and equipment that City and Seniors mutually agree in writing should be covered by the Annual Replacement Contribution. In no event shall Seniors be entitled to use any of the funds in the Reserve Account to pay or reimburse Seniors for any of Seniors' administrative or overhead expenses relating to the daily maintenance of any of the Jointly Used FF&E. Seniors shall retain all records of any disbursements from the Reserve Account, and City shall have the right, upon reasonable request in wrlting, to review the records. Upon receipt of City's request, Seniors shall deliver or provide access to City of the records within thirty (30) days of receipt. In the event that City reasonably determines a disbursement from the Reserve Account was not for an authorized purpose or was not in an authorized amount, Seniors shall promptly refi1nd to City (or redeposit into the Reserve Account) the amount of the unauthorized disbursement.
Seniors shall be responsible for repairing and replacing the Jointly Used FF&E as needed 10 keep all of such Jointly Used FF&E in good order and first class condition, quality, and repair and in accordance with all applicable laws, rules, ordinances, orders, and regulations of all federal, state, county, municipal, and other governmental agencies having jurisdiction, during the entire Term. All repairs shall be at !cast equal in quality and class to the original work. If any pennits or governmental approvals arc needed to effectuate repairs or replacemt:nts, Seniors shall be responsible for obtaining any such permits or approvals. Seniors' actual and reasonable cost paid to third parties (including without limitation governmental processing and
69.\.'iJbl266-C}06
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permit fees) in seeking such pennits and approvals shall be included in the calculation of costs eligible for payment or reimbursement as provided in this Section 6.2, and City agrees to cooperate with Seniors with respect to obtaining such permits or approvals (with the understanding that City does not agree to waive code requirements and reserves its full police power discretion with respect to any permits or approvals that may be required from City).
6.3 Daily Maintenance. Seniors shall have the obligation to perfonn or cause to be performed within the interior of the Building of the Leased Property the "Daily Custodial Activities," which shall include janitorial services, cleaning, restocking of paper goods, and similar daily maintenance activities that would be required for the community served by the Senior Facility to use the Leased Property. City shall have the obligation to perform or cause to be performed within the interior of the Duilding of the Leased Property the "Structural Maintenance Activities," which shall include plumbing, electrical, mechanical and painting maintenance activities and alterations relating to the interior of the Building of the Leased Property, all maintenance activities and alterations relating to the interior of the Building of the Leased Prol)Crty that are not Daily Custodial Activities, and other related activities that would be required for the community served by the Senior Facility to use the Leased Property. The costs incurred from the Daily Custodial Activities and the Structural Maintenance Activities are collectively the "Maintenance Costs." Seniors and City shall share fifty-fifty (50/50) all Maintenance Costs. City shall be responsible for the initial payment of any Maintenance Costs to any contractor, and City shall promptly deliver to Seniors an invoice for payment to City of Seniors' portion of the Maintenance Costs and any supporting documentation reasonably requested by Seniors relating to such Maintenance Costs. Seniors shall pay City any amount owing by Seniors within thirty (30) days after receipt of such invoice and supporting documentation. Interest shall accrue at the rate of ten percent (I 0%} per annum or the maximum rate allowed by law, whichever is less, on any delinquent amount that Seniors fai Is to pay to City within the 30-day period, with said interest beginning to accrue on the next business day after payment is due. Not by way of limitation of any other remedy City may have for a failure by Seniors to timely pay any amount owing by Seniors to City for Maintenance Costs, City may offset its Annual Replacement Contribution that would otherwise be owing to Seniors for the fiscal year in question and any future fiscal years until Seniors' payment obligation (including accrued interest) has been fully discharged.
City and its officers, officials, agents, employees, and representatives shall have a right, upon twenty-four (24) hours' prior notice to Seniors, to enter the Leased Property during Seniors Hours of Operation and non-Seniors Hours of Operation to perfonn or cause to be performed such maintenance activities as City is required to perfonn pursuant to this Agreement; it being acknowledged and agreed, however, that City shall perform such maintenance activities in a manner so as to at all times minimize to the extent possible interference with Seniors' use of or access to the Leased Property.
7. Alterations and lmprovcmenls. Seniors shall make no alteration or improvement to the Leased Property without the prior written consent of City. Any improvements constructed or placed upon the Leased Property by Seniors, other than Seniors' fixtures, furnishings, equipment and personal property as listed in Exhibit "D" {attached hereto and incorporated herein by this reference) and any replacements thereof ("Seniors FF&E"}. shall remain on the Leased Property and become the property of City without any cost to City at the end of the Term 69SiD611r.6°0JOo
1 llb05 I.! l oO 1111/01 -!2-
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of this Agreement unless City delivers notice to Seniors on or before the date "vhich is thirty (30) days after the end of the Term of this Agreement or the date Seniors vacates the Leased Property and delivers possession thereof to City, whichever is later, to remove such improvements, in which case the removal shall be at Seniors' sok cost and expense, and Seniors shall repair any damage to the Leased Property occasioned by the removal. Seniors shall have the right to remove Seniors FF &E on or before expiration of the Term or earlier termination of this Agreement, provided that Seniors repairs any damage occasioned by such removal. Seniors shall pay when due all claims for labor or materials furnished to or for Seniors at or for use on the Leased Property, which claims are or may be secured by any mechanic's or materialmen 's lien against the Leased Property or any interest therein. Seniors shat! give City not less than tv_:enty (20) days prior written notice before the commencement of any work on the Leased Property which could give rise to a mechanic's or materialmen's lien against the Leased Property, and City shall have the right to post notices of nonresponsibilicy as provided by !aw. If Seniors shall, in good faith, contest the validity of any lien, claim or drn1and. then Seniors shall, al its sole expense defend itself and City against the same and shall pay and satisfy any adverse judgment that may be rendered thereon prior to the enforcement thereof against City or the Leased Property; provided that if City shall require, Seniors shall furnish to City a surety bond in the amount required by applicable statute to remove the lien from record. Seniors agrees to indemnify, defend and hold City harmless from and against any lien or claim of lien filed against the Leased Property as a result of labor or materials furni~hed to or for Seniors at or for use on the Leased Property
8 Surrender. At the expiration or earlier termination of this Agreement, Seniors shall deliver the Leased Property (excepting the Seniors' FF&E which shall be governed by Section 7 above) to City in the same condition as when received, ordinary wear and tear and casualty covered by Section I 4 excepted.
9. Utilities. For the first five (5) years after the Commencement Date City shall pay I 00% of tJ1e costs. as and when they become due and payable, of all charges for gas, water, sewer, electricity, cable television, internet access service, trash, and other utility and communication services rendered or used on or in the Leased Property, with the exception that the Parties shall share equally (50/50) the cost of telephone utility services. Thereafter, for the balance of the Tenn, City and Seniors shall share equally (50/50) the costs, as and when they become due and payable, of all charges for gas, water, sewer, cfcctricity, telephone, cable television, internet access service, trash, and other utility and communication snvices (collectively, "Utilities" and individually a "Utility") rendered or used on or in the Leased Property. City shall be responsible for complete payment when due of any Utility service, and shall promptly deliver to Seniors an invoice lor payment to City of Seniors' portion of said Utility payment, if any, and any supporting documentation reasonably requested by Seniors relating to ~uch Utility service. Seniors shall pay City Seniors· portion of said Utility payment within thirty (JO) days of receipt of such invoice and supporting documentation. Interest shall accrue at the rate of ten pecrcent (I 0%) per annum or the maximum rate allowed by !av,, whichever is less. on any delinquent amount that Seniors fails to pay to City within the JO-day period, with said interest beginning to accrue on the next business day after payment is due. City shall not be li:ible to Seniors or any third party for a11v failun: or interruption of any Utility service, except to the extent caused solely by the City's foilurc to p:iy when due any such Utility 69ai'0(i.2266~0306
IOM)5115 r.01fi4/(.1/i:
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service and Seniors is not delinquent in payment to City for Seniors' portion of said Utility service.
IO. Taxes and Assessments. City shall pay prior to delinquency any real property taxes and assessments, including without limitation any possessory interest tax.es, that are levied on the Leased Property, the Building and/or the Site during the Term of this Agreement. Seniors shall pay prior to delinquency all personal property taxes for any and all equipment, furnishings, and all other personal property owned by Seniors and located at the Leased Property.
11. Manner of Payment. All payments and charges due under this Agreement shall be paid by Seniors to City without prior demand therefor in lawful money of the United States of America, which shall be legal tender at the time of payment, at:
City of San Clemente
100 Avenida Presidio
San Clemente, CA 92672
Attn: Cashier
or to such other person or at such other place as City may from time to time designate in writing.
Seniors shall reference the purpose for which payment is being delivered. The acceptance by City of Seniors' payment shall not constitute a waiver of City's right to subsequently demand that any additional amount be paid that may be owing.
l 2. Payment of Expenses. Except as expressly set forth in this Agreement, it is the intention of City and Seniors that all costs, expenses and obligations relating to the use, operation, or occupancy of the Leased Property which may arise or become due during the Term of this Agreement shall be paid by Seniors.
13. Eminent Domain. In the event that the Leased Property or any portion thereof is taken under the power of eminent domain, or is sold under the threat of the exercise of such power (hereinafter referred to as "Condemnation"), this Agreement shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever first occurs.
In the event that so much of the Leased Property is taken by Condemnation that the continued operation of the Senior Center becomes impracticable, then the entirety of this Agreement shall terminate as of the date that the condemning authority takes title or possession, whichever occurs first. Any award for the taking of all or any portion of the Leased Property by Condemnation and/or any payment made under threat of the exercise of Condemnation shall be the sole property of City, whether such award is made as compensation for diminution in the value of the leasehold or for the taking of the fee, or severance damages; provided, however, that Seniors shall be entitled from any Condemnation a·ward: (a) any leasehold "bonus value" ht:ld by Seniors in the real estate based on the existing use and all of the terms and conditions of this Agreement; (b) the costs for any relocation assistance as may be required by federal, state, or local law; and (c) a sum attributable to the loss ofor damage to Seniors' FF&E.
14. Damage and Destruction. In the event that (a) the Leased Property is destroyed or damaged such that the continued operation of the Senior Facility becomes impracticable as a result of a disaster, Condemnation or casualty not caused or permitted by Seniors, and (b) such 69ll/0&2266--0306
1060.n,n aOlll IOB -14-
destruction or damage is covered completely ( I 00%) by the insurance described in Section
17. I (b) or any issued Condemnation award, City shall repair the damages and restore the Leased Property to substantially the same condition as existed immediately before such damage or destruction and continue this Agreement. In the event that {a) the Leased Property is destroyed or damaged such that the continued operation of the Senior Facility becomes impracticable as a result of a disaster, Condemnation or casualty not caused or permitted by Seniors and (b) such destruction or damage is not covered completely ( I 00%) by the insurance described in Section
17.1 (b) or any issued Condemnation award, City may elect (i) to repair the damages and restore the Leased Property to substantially the same condition as existed immediately before such damage or destruction and continue this Agreement or (ii) not to repair the damages, in which case this Agreement shall tenninate without further liability or obligation by either City or Seniors. In the event that the Leased Property is partially destroyed or damaged such that the continued operation of the Senior Facility does not become impracticable as a result of a disaster, Condemnation or casualty not caused or permitted by Seniors (irrespective of whether or not such destruction or damage is covered by the insurance described in Section 17. l (b) or any issued Condemnation award), City shall repair the damages and restore the Leased Property and the Building to substantially the same condition as existed immediately before such damage or destruction and continue th is Agreement.
15. Assignment and Subletting. Seniors shall not assign, sublet, transfer, alienate, encumber or otherwise convey any interest in this Agreement, the Leased Property or any portion thereof, or any right or privilege appurknanl thereto, or permit any party to occupy any part of the Leased Property (except for Seniors' guests, employees, licenses and agents and except in accordance with Section 3.7 above), without the express prior written consent of City first being had and obtained, which consent may be withheld in City's sole, absolute, and arbitrary discretion. Seniors shall not encumber the Leased Property or tts interest in this Agreement nor shall Seniors cause or permit any lien or other charge to exist upon the Leased Property or Seniors' interest in this Agreement, subject to the provisions of Section 7 above.
16. Defaults and Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by Seniors: (i_) subject to the provisions of Section 3.1 above, the •..-acating or abandonment of the Leased Property by Seniors; (ii) the failure by Seniors to make payment when due of any charges payable hereunder and such failure continues for a period of ten (I 0) days after written notice from City to Seniors; (iii) the failure by Seniors to observe or perform any of the covenants of this Agreement to be observed or performed by Seniors, other than described in paragraph (ii) above, where such failure shall continue for a period of thirty (30) days (unless a different time period is expressly provided for herein) after written notice thereof from City to Seniors, proY ided that, if the nature of the failure is such that it cannot be reasonably cured within thirty (30) days, Seniors shall not be deemt:d in default if it shall commence curing the failure within such thirty (30) day period and diligently prosecutes the same to completion; (iv) the making by Seniors of any general assignment for the benefit of creditors; (v) the appointment of a trustee or receiver to take possession of substantially all ot· Seniors' assets located at the Leased Property or of Seniors' interest in this Agreement, which such appointment is not discharged within sixty (60) days; (vi) the atcachment, execution or other judicial seizure of substantially all of Seniors' assets located at the Leased Property or of Seniors' interest in this Agreement, where such seizure is not discharged within sixty (60) days; or (vii) the filing by Seniors of a voluntary or involuntary 69!!Rl6ll&6·0)06
101,0jl IS o01/14ro8 -15-
petition in bankruptcy, which, in the case of an involuntary petition in bankruptcy, such petition is not discharged within sixty (60) days.
In the event of any such default or breach by Seniors, City may at any time thereafter, except as expressly limited in this Agreement (including, without limitation, Section 3.1 above), exercise any right or remedy which City may have by reason of such default or breach, including: (i) immediately terminate this Agreement and Seniors' right to possession of the Leased Property; (ii) continue this Agreement in effect without terminating Seniors' right to possession even though Seniors has breached this Agreement and to enforce all of City's rights and remedies under this Agreement; provided, however, that City may' at any time thereafter elect to terminate this Agreement for such pn:vious breach by notifying Seniors in writing that Seniors' right to possession of the Leased Property has been terminated; and (iii) pursue any other remedy now or hereafter available to City under applicable law. In the event that City or Seniors elects to terminate thiti Agreement and the Project Funding Agreement because a Termination Contingency has occurred, such Party shall deliver a notice of tenninatJon to the other. This Agreement and the Project Funding Agreement shalt terminate upon the date specified in the notice of termination, which shall be no less than three days after delivery of the notice, or if no date is specified, then the date that is three days after delivery of the notice.
17. Insurance and Indemnity.
17. I Insurance.
(a) By Seniors. Seniors shall procure and maintain, at all limes during the Term of this Agreement, in a form and content reasonably satisfactory to City, the following policies of insurance:
6</8i06Z166--0J06
i%0Jl.ll ,Dlll~/08
(i) Comprehensive General Liability lnsurancc. A policy of comprehensive general liability insuranc'e written on a per occurrence basis in an amount not less than Two Million Dollars ($2,000,000.00) combined single limits.
(ii) Workers' Compensation Insurance. Workers'
compensation insurance as required by law.
(iii) Other Coverage. Such other insurance as City may
reasonably require from time to time that is, at the time of City's requirement, being required of comparable tenants leasing comparable amounts of space in comparable buildings in the vicinity of the Leased Property.
(b) By City City shall procure and maintain, at all times during the Term of this Agreement, in a form and content reasonably satisfactory to Seniors, the following policies of insurance:
( i) All Risk I nsurancc. A policy of property insurance in the form of an "all-risk" property policy, including fire, casualty and extended coverage, vandalism, thi:ft, and malicious mischief, and plate glass and -16-
sprinkler damage, in an amount sufficient to covt:r one hundred percent ( I 00%) of the replacement cost of the entire Building and Jointly Used FF&E.
The policies of insurance required by this Agreement (i) shall be issued by companies qualified to do business in California and rated "A:VII" or better in the most recent edition of Be1,t's Insurance Guide, (ii) shall be primary insurance and not contributory with any other insurance which City or Seniors', as applicable, may have, {iii) with respect to the insurance to be maintained by Seniors pursuant to Section 17. l(a), shall name (except for the Workers' Compensation Insurance) City and its officials and employees as additional insureds, (iv) shall contain no limitation on the scope of protection afforded to City, (v) shall be "occurrence" and not "claims made" insurance, (vi) shall provide that the insurer shall waive all rights of subrogation and contribution it may have against City or Seniors', as applicable, and its insurers, and (vii) with respect to the insurance to be maintained by Seniors pursuant to Section 17. l(a), shall provide that the policy shall not be cancelled without providing thirty (JO) days' prior written notice to City. Each party shall del lver to the other evidence of the required insurance policies no later than thirty (JO) days prior to the Commencement Date, and for each calendar year after the year in which the Commencement Date occurs, no later than October I, or with respect to the insurance to be maintained by Seniors pursuant to Section 17. I (a), at such other time as City's risk manager may require. In the event any of said policies of insurance are cancelled, Seniors or City, as applicable, shall, prior to the cancellation dale, submit new evidence of insurance in conformance with this Section 17.1.
None of the above-described policies shall require City er Seniors to meet a deductible or self-insured retention amount of more than Five Thousand Dollars ($5,000.00) unless, in the case of Seniors, approved in writing by the City Manager.
Notwithstanding the foregoing provisions of th is Section 17. I, City may satisfy its insurance requirements Lhrough a policy or program of self-insurance or public agency joint powers insurance pooling arrangement so long as the min imurn coverage requirements as provided herein are procured and maintained for the duration of the Term. City shall deliver to Seniors evidence of said self-insurance and/or joint powers insurance arrangement no later than thirty {30) days prior to the Commencement Date, and for each calendar year after the year in which the Commencement Date occurs, no later than October I.
If either Party shall at any time believe that the limits of the insurance required hereunder are insufficient, such Party shall have the right to notify the other in writing of the same and the Parties shall thereafter endeavor to agree in writing on the proper and reasonable limits for such insurance to be carried. ff the Parties shall be unable to agree thereon, the proper and reasonable limits for such insurance to be carrieJ shall bt: ddi.:nnini.:J by an impartial third party rcasouably selected by City and approved by Seniors and the determination of such impartial third party shall be binding. Upon agreement by the Parties or determination by such third party the new increased limits as so agreed upon or detemiined, as the case may be, shall be in effect and carried by the applicable Party until further change pursuant to the provisions of this Section. 69&."062li,6-IJJ06
!06051 15 a0l/14,\!8 -17-
698;06216&-0306
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17 .2 Indemnity.
(a) By Seniors. Seniors shall indemnify, defend, and hold harmless City and its elected and appointed boards, commissions, officers, officials, agents, employees, and representatives from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees and costs) arising out of or related to (i) any act or omission of Seniors or Seniors' agents, contractors, subcontractors, agents, employees or invitees with respect to the Leased Property during the Term (collectively, "lndemnitors"), (ii) the condition, use, possession, conduct or operation of the Leased Property during the Seniors Hours of Operation or any period of time the Leased Property is used by Indemnitors, (iii) any work or thing whatsoever done on or about the Leased Property during the Seniors Hours of Operation or any period of time the Leased Property is used by lndemnitors, and (iv) any breach or default on the part of Seniors of any provision of this Agreement. City shall provide Seniors with notice of the pendcncy of any such action and request that Seniors defend such action. lf Seniors fails to do so, City may defend the action and Seniors shall pay the cost thereof. The provisions of this Section 17 .2(a) shall not apply to the extent such damage, liability or claim (aa) is caused by the actions, omissions, misconduct or negligence of City, or Ci1y's officers, officials, agents, employees or representatives or (bb) arises oul of or is related to the use of the Leased Property for a City-sponsored event as approved by the Parties in accordance with Section 3.7(A) above or as an EOC. (b) By City. City shall indemnify, defend, and hold harmless Seniors and its elected and appointed boards, commissions, officers, officials, agents, employees, and representatives from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees and costs) arising out of or related to (i) any act or omission of City or City's agents, contractors, subcontractors, agents, employees or invitees with respect to the Leased Property during the Tenn, (ii) the use, possession, conduct or operation of the Leased Property during any period of time the Leased Property is used for a City-sponsored event as approved by the Parties in accordance with Section 3.7(A) above or as an EOC; or (iii) any breach or default on the part of City of any provision of this Agreement. Seniors shall provide City with notice of the pendency of any such action and request that City defend such action. If City fails lo do so, Seniors may defend the action and City shall pay the cost thereof. The provisions of this Section 17 .2(b) shal I not apply to the ex.tent such damage, liability or claim is caused by the actions, omissions, misconduct or negligence of Seniors, or Seniors' officers, officials, agents, employees or representatives.
(c) General. The indemnity prov1s1ons set forth in this Agreement shall survive termination of this Agreement. Seniors' duty to defend City as required in this Agreement shall be with legal counsel of City's choosing. City's duty to defend Seniors as required in this Agreement shall be with legal counsel of Seniors' choosing.
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18. Quiet Enjoyment. Subject to all rights reserved by City under this Agreement. and upon Seniors performing all of the terms, covenants and conditions contained herein, City hereby covenants, warrants and represents that during the Term of this Agreement Seniors may quietly have, ho !d, occupy, and enjoy the Leased Property without hindrance from City. Further, City hereby covenants, warrants and represents to Seniors that as of the Commencement Date, no mortgage or deed of trust encumbers the Building, the Leased Property or the Site (or any portion thereof or interest therein, fee or otherwise). On and after the Commencement Date, City may encumber the Building, Leased Property, or Site with a mortgage, deed of trust, or other instrument used to secure financing so long as the City obtains from any lender a nondisturbance and recognition agreement in a form approved by Seniors, which approval shall not be unreasonably withheld.
19. Miscellaneous.
19.1 Binding on Heirs. This Agreement shall be binding upon the Parties hereto and their respective representatives, transferees, successors, and assigns; provided, however, that nothing in this Section I 9.1 is intended to modify or restrict the scope of the provisions set forth in Section 15.
19.2 Litigation Expenses. If either Party to this Agreement commences an action against the other Party to this Agreement arising out of or in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees, expen witness fees, costs of investigation, and costs of suit from the losing Party.
19.3 Notices. All notices required to ht! delivered under this Agreement to another party must be in writing and shall be effective (i) when personally delivered by the other Party or messenger or courier thereof; (ii) three (3) business days after deposit in the United States mail, registered or certified; (iii) one (I) business day after deposit before the daily deadline time with a reputable overnight courier or service; or (iv) upon receipt of a tclecopy or fax transmission, provided a hard copy of such transmission shall be thereafter delivered in one of the methods described in the foregoing (i) through (iii); in each case postage fully prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the Parties may hereafter designate by written notice to the other Parties hereto:
o ;,,062 nc. .o JOo
1060!1.ll o01il41()g
To City:
Copy to:
City of San Clemente
City Hall
I 00 Avenida Presidio
San Clemente, CA 92672
Attn: City Manager
Tdecopier: (949) 36l-8316
Rutan & Tucker, LLP
61 I Anton Rou levard, Suite 1400
Costa Mesa, CA 92626
Attn: Jeffrey M. Odennan. Esq.
Tdcrnpicr: (714) 546-9035
-19-
To Seniors:
Copy to:
-
South County Senior Services, Inc.
24300 El Toro Road, Building A, Suite 2000
Laguna Woods, CA 92653
Attn: Marilyn L. Ditty, ODA
Telecopier: (949) 498-1021
Latham & Watkins LLP
6S0 Town Center Drive, 20th Floor
Costa Mesa, CA 92626
Attn: Andy Dawson, Esq.
Telecopier: (714) 755-8290
19.4 Entire Agreement. Waivers, and Amendments. With the ex.ccption of the Project Funding Agreement, this Agreement incorporates all of the tenns and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the Parties with respect to all or part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Party to be charged. A waiver of the breach of the covenants, conditions or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. Any amendment or modification to this Agreement must be in writing and executed by the appropriate authorities of City and Seniors.
19.5 Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both Parties hereto. This Agreement shall be construed in accordance with the internal laws of the State of California without regard to any conflict of law principles in effect at the time of the execution of this Agreement.
19.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
19. 7 Signs. No sign visible from the exterior of the Building shall be installed or maintained by Seniors without City's prior written approval, which approval shall not be unreasonably withheld.
19.8 No Joint Venture or Partnership. It is understood and agreed by and between the Parties that the lease and use of the Leased Property pursuant to this Agreement docs 1~ot create an agency.joint venture, or partnership relationship of any kind whatsoever, :md that each Party is an independent contracting entity with respect to the terms, covenants, and conditions contained in this Agreement.
19.9 Execution in Counterpart. This Agreement may be executed in several counterparts. and all so executed shall constitute one agreement binding on both Parties hereto, notwithstanding that both Parties are not signatories to the original or the same counterpart. 698/062166-0J0b
ll'.>60:H I l ,01114/03
[ signatures on next page}
.20.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first set forth above.
ATTEST:
APPROVED AS TO FORM:
~/~ J r . Od rman -= ~rncy
6QB/C6J266•0l06
1060.1).ll a-011W08
"CITY"
"SENIORS"
SOUTH COUNTY SENIOR SERVrCES, INC.,
a California nonprofit corporation
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--
EXHIBIT "A"
LEGAL DESCRIPTION OF THE SITE
That certain real property located in the City of San Clemente, County of Orange, State of California, more particularly described as follows:
6911!06226t•OJO<I
11)1\0'il LI 101/l~~K
fAttached]
-]-
EXHIBIT A
LEGAL DESCRIPTION
;.33? • I,·,
Thi~ p121 i~, for ycur ,iid in lc<.:,1:rg yoor land wi~h referar.ca i ,:'";r p;;r::?'.1. l1 is r.ol a 5urvey. V./hile lhLS
• :.- : :::::0;v. t':::i c.6mp~y assumes no
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- File No.: 6103755.
PARCEL: 1
LOT 9 JN BLOCK 8 OF TRACT NO. 779, lN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 23, PAGES 19 TO 25 INCLUSIVE, OF M1SCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL: 2
LOT 10 IN BLOCK 8 OF TRACT NO. 779, IN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 23, PAGES 19 TO 25
INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL: 3
LOT 11 IN BLOCK 8 OF TRACT NO. 7i9, IN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 23, PAGES 19 TO 25
INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL: 4
LOT 12 IN BLOCK 8 OF TRACT NO. 779, IN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 23, PAGES 19 TO 25
INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL: 5
LOT 25 IN BLOCK 8 OF TRACT NO. 779, IN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNlA, AS PER MAP RECORDED IN BOOK 23, PAGES 19 TO 25 INCLUSIVE, OF ?vtlSCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY .
. . \RCEL 6
LOT 26 IN BLOCK 8 OF TRACT NO. 779, IN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 23, PAGES 19 TO 25
INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNT)' RECORDER OF SAID COUNTY.
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PARCEL 7
LOT 27 AND THE NORTHEASTERLY 20 FEET OF LOT 28, IN BLOCK 8 OF TRACT NO. 779, IN THE
CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 23, PAGES 19 TO 25 INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL: 8
THE SOUTHWESTERLY 20 FEET OF LOT 28 IN BLOCK 8 OF TRACT NO 779, IN THE CITY OF
SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 23, PAGES 19 TO 25 INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
69&'062266--0306
106051 15 a0l/14l08
EXHIBIT "B"
DESCRIPTION OF THE LEASED PROPERTY
[to be Attached upon completion of Senior Facility]
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- -
EXHIBIT "C"
PROGRAMS
Programs
• Congregate Meals ( daily) 50-125 participants
• Bridge (twice per week) 60-plus participants each day • Poker (twice per week) I 6-plus participants each day • Quilting (twice per week) 12-plus participants each day • Knitting (once per week) 15-plus participants
• Legal Assistance (once per week)
• Chi Kong (twice per week) IS-plus participants each day • Mah Jongg (once per week) varies in participation
• Bingo (once per week) SO-plus participants
• Trips and Travel (approx. 10 trips per year) participation based on available space • Wellness Program (once or more per month) varies in participation • Blood Pressure Check (once per week) 20-plus participants • HrCAP/Medicare (monthly)
• PACE (once per week) "People With Arthrilis Can Exercise" IO-plus participants • Ralance and Mobility Research Project (once per week) 25 participants • Balance Mobility Class (once per week) 20 participants • Chronic Disease Support Program (once per week) l S-plus participants Additional Programs
• Emeritus Institute (subject to provision of funding by, and availability at, Saddlcback Community College): Classes include poetry, watercolor, china painting, and world civilizations
• Healthcare Seminars
69Si06Jlb6-0J06
166011 I 5 aO!I I 1.'0K -l-
-
• Tax Assistance (February through April 15)
• Braille Class
• Encore: YWCA programs providing mammograms to the community. Please note that the identified program is not all inclusive to the activities that occur at the San Clemente Senior Center. There are many programs and services that arc provided on an "as needed" basis,
In addition to the foregoing classes and programs, the facility wdl be available for other services to be provided by professionals to the seniors of the community. These include, but are not I imited to, programs in financial planning, healthcare issues, health insurance topics, tax planning, "55 Alive," and other topics that are of interest and important to seniors. 69,3,{jt,22 61, .{.1-j.),6
1 t.1-60 ~ i 1 ~ Elm, r .~;r: s -2-
&98/0622 66--0J 06
106051.15 a0l/14/08
-
EXHIBIT '"D"
SENIOR'S FIXTURES, FURNISHINGS, AND EQUIPMENT
[to be Attached upon completion of Senior Facility]
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t,9!{.;ut12t6--0Jr>t'J
1060SI I l all •14/0&
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(REPLACE THIS PAGE WITH LIST OF SENIORS' FF&E)
-1-