Agenda Item No.
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Megan Wolfe, Director of Community ServicesG�
Sarah Martinez, Recreation Superintendent �
FOR: City Council Meeting of July 24, 2023
SUBJECT: Facility Lease Agreement — Yucaipa Senior Nutrition Site RECOMMENDATION:
That the City Council approve and authorize the City Manager to renew a Facility Lease Agreement with Family Service Association for the Yucaipa Senior Nutrition Site.
BACKGROUND/DISCUSSION:
In 1974, the San Bernardino County Department of Aging and Adult Services (DAAS) began operating the Senior Nutrition Program (Program) in Yucaipa. The Program provides low-cost meals in both a congregate setting, at the Scherer Community Center Nutrition Site (Center), and through the homebound meal delivery program (Meals on Wheels). From 2003 until 2005, DAAS contracted with the Community Action Partnership of San Bernardino County to provide the Program.
In September of 2005, the San Bernardino County Board of Supervisors (County) awarded the Program contract to Family Services Association (FSA) under a cost reimbursement contract. At its November 28, 2005, meeting, City Council approved a Real Property Lease Agreement with FSA to utilize the Center for the Program, with an expiration date of June 30, 2006.
Since June 2006, and following additional renewals from the County to FSA, City Council has continued to approve Facility Lease Agreements with FSA to provide the Program.
Staff recommends that City Council approve and authorize a renewed Facility Lease Agreement with Family Service Association for the Program at the Center.
FISCAL IMPACT:
Under the terms of the three-year lease, FSA will pay the City $10,212 annually for use of the Center.
Attachment:
1. Facility Lease Agreement Yucaipa Senior Nutrition Site GApproved by: �-�`
ATTACHMENT 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of Yucaipa
34272 Yucaipa Boulevard
Yucaipa, CA 92399
Exempt from fees per GC 6103
FACILITY LEASE AGREEMENT
YUCAIPA SENIOR NUTRITION SITE
This Facility Lease Agreement ("Lease") is made and entered into this 12_day of June 2023 by and between the CITY OF YUCAIPA, a municipal corporation ("Landlord" or "City") and Family Service Association, a California non-profit corporation ("Tenant" or "FSA"). The parties to this Lease are sometimes referred to herein as "party" or collectively as the "parties."
1. RECITALS
A. City is the owner of fee title to that certain real property located at 12202 First St., Yucaipa, San Bernardino County, California more particularly described on Exhibit "A" hereto (the "Land"). The Premises are depicted on the site plan attached hereto as Exhibit `B" (the "Site Plan"). A kitchen and dining facility consisting of approximately five thousand (5,000) square feet, together with certain fixtures and furniture described in Exhibit "C" hereto (the "Facility") are located on the Land.
The Land and Facility are collectively referred to herein as the "Premises".
B. The Tenant desires, at its cost, to develop, maintain, and manage the dining room, kitchen, and dish room, rear food packing room, and offices on the Premises. In addition, the tenant desires to prepare food and deliver to additional sites listed in F.xhihit "T)"_
C. The term of the extended July 1, 2020, Lease Agreement expires on June 30, 2023, and the parties hereto desire to enter into a new Lease Agreement, providing for the continued lease of the Premises from the City to Tenant, and the continued operation by Tenant of the nutrition and home delivery meal site programs.
In consideration of the mutual covenants, conditions and agreements contained herein to be done, kept, and performed, City and Tenant hereby agree as follows:
2. LEASED PREMISES
City hereby leases the Premises to Tenant and Tenant hereby leases the Premises from City, on the terms and conditions hereinafter set forth in this Lease without representation or warranty, express or implied.
3. TERM OF LEASE; EXTENSION; TERMINATION
A. Term. The term of this Lease shall commence on July 1, 2023, and shall expire -on June 30, 2026, unless sooner terminated as provided herein.
B. Option to Extend. Provided that Tenant shall not be in default or breach of any term of this Lease, Tenant may extend the term of this Lease by two, one (1) calendar year by written notice to the City given at least ninety (90) days prior to the expiration of the original (or extended) term hereof, on the same terms and conditions of this Lease, provided that in no event shall the initial term plus any extensions exceed a term of 55 years.
C. Termination. This Lease may be terminated by either party, without cause, upon thirty (30) days' written notice to the other party.
4. RENT
A. In consideration of the benefits accruing to the public and to the City of Yucaipa by Tenant's performance of its obligations under this Lease, Tenant shall pay to the City rent in the amount of one dollar ($1.00) per year, on or before the 151h day of June of the preceding year of tenancy.
B. Rent shall be payable in lawful money of the United States to the City at the address stated herein for notices or to such other person or such other place as the City may designate to Tenant in writing.
5. TAXES; ASSESSMENTS AND LICENSES
A. Payment of Taxes and Assessments. City is exempt from payment of property taxes and represents that at the beginning of the Lease term, no taxes, assessments, fees, or charges are due or owing on the Premises as a result of the City's ownership thereof. Tenant agrees to pay or cause to be paid, prior to delinquency any and all taxes, assessments, license fees and public charges levied, assessed, or imposed or which may become payable during the term hereof upon the Premises and upon all of Tenant's furnishings, appliances, equipment, and all other personal property installed or located on the Premises, including, but not limited to, personal property.
At the end of the Lease term, the taxes, assessments, and public charges to be paid by Tenant shall be prorated so that at the end of the Lease term, with respect to any taxes, assessments and public charges levied or assessed for a tax year extending beyond the Lease term, Tenant will pay only such proportion thereof as the portion of the tax year preceding the end of the Lease term bears to the entire tax year. 0 B. Tenant shall pay all possessory interest taxes assessed on Tenant's leasehold interest hereunder.
6. TENANT LEGAL STATUS
Tenant shall always maintain in good standing its non-profit status during the term of this Lease and shall not allow any for -profit use of the Premises, without the prior written consent of the City.
7. USE OF PREMISES
A. Tenant shall use the Premises solely for the purpose of operating a nutrition program for seniors and shall be used for no other use or uses by Tenant without the express written consent of the City. Any requests for changes in the use of the facility must be presented to the City thirty (30) days in advance of the proposed changes.
B. Tenant shall in good faith and with reasonable diligence develop and offer programs that reflect community needs. During the term of this Lease Tenant shall endeavor to involve the residents of Yucaipa in all aspects of their activities and shall continue to invite Yucaipa residents to be involved in their activities through local media and City Community Services Department resources.
C. Tenant Signs. Tenant may, at Tenant's sole cost and expense, place signs on and within the Premises which incorporate Tenant's name, together with the City's for the Premises. All such signs placed on the Premises shall be approved by the City prior to their installation and must be in compliance with City ordinances and regulations.
D. Waste.
1) Tenant shall not conduct or permit to be conducted any public or private nuisance on or from the Premises, or commit or permit to be committed any waste upon the Premises; provided, however, that Tenant may perform any work reasonably necessary to cause the Premises to be suitable for Tenant's permitted uses subject to the terms of this Lease, and in particular obtaining City approvals as may be required pursuant to Section 10 A. 2) Tenant shall not do, bring, or keep anything in or about the Premises that will cause a cancellation of any insurance covering the Premises.
E. Prohibited Activities. Tenant may not do any of the following on the Premises:
1) Conduct or permit any type of unlawful conduct on the Premises; or 2) Allow the consumption or sale of alcohol in or outside of the Premises.
F. Securily. Tenant may, at its option, and at Tenant's sole cost and expense, employ or post a security person at the Premises.
G. City Use of Premises. City shall retain the right to use the Premises for City- sponsored/sanctioned activities, special events or meetings. Wherever possible, the City shall notify the Tenant at least thirty (30) days in advance of a proposed event or meeting. Event and/or meeting times requested by the City shall not be unreasonably denied by Tenant. The City shall not be charged for its scheduled use of the Premises.
8. COMPLIANCE WITH GOVERNMENTAL REGULATIONS.
A. Compliance With Law. Tenant shall comply with all applicable laws and obtain all governmental licenses, permits and approvals necessary for its operation of the Premises. Tenant shall defend, indemnify, and hold the City and its elected officials, employees, and agents from and against any and all liabilities, claims, losses, costs, expenses, penalties, and/or damages which result from Tenant's failure to comply with this requirement.
B. Non -Discrimination. Tenant shall not discriminate in the use of the Premises or in its operations thereon, including, but not limited to, membership, administration, and/or employment, against any person or class of persons by reason of race, color, creed, national origin, religion, age, or sex or for any other reason prohibited by law.
C. Drug Free Workplace. Tenant shall at all times observe and comply with the City's Drug Free Workplace policy, as that policy may in the future be amended, and a copy of which Tenant acknowledges having received from City.
9. CONDITION OF PREMISES
A. Tenant's leasehold estate in the Premises is and shall be subject to all matters of record, all matters visible upon a detailed inspection of the Premises, and any matters disclosed or known to Tenant, and subject to the provisions of this Lease.
B. Tenant acknowledges that it is sophisticated and knowledgeable with regard to evaluating and leasing real property in the area and has had sufficient opportunity to enter the Premises to perform such tests and investigations Tenant deems necessary to satisfy itself as to the condition of the Premises for the uses set forth in this Lease. Tenant shall not be responsible for Hazardous Materials (as defined in this Lease) that may be present on the Premises as of the Initial Occupation Date that are not known to Tenant.
TENANT IS ACQUIRING A LEASEHOLD INTEREST IN THE PREMISES "AS IS"
WITHOUT ANY REPRESENTATIONS OR WARRANTY OF ANY KIND WHATSOEVER
AS TO ITS CONDITION EXCEPT AS DESCRIBED IN THIS LEASE, PROVIDED,
HOWEVER, THAT TENANT SHALL NOT BE RESPONSIBLE FOR HAZARDOUS
MATERIALS (AS DEFINED IN THIS LEASE) ON THE PREMISES WHICH MAY BE 4 PRESENT ON THE PREMISES AS OF THE INITIAL OCCUPATION DATE THAT ARE NOT KNOWN TO TENANT.
C. Tenant represents that during the term of its occupancy and use of the Premises pursuant to any previous lease or agreement, no waste was committed, that Tenant has fully disclosed to City all matters which are subject to disclosure or which may affect the condition of the Premises, and that Tenant has not permitted any Hazardous Materials (as defined in this Lease) to be present on the Premises during Tenant's previous occupancy of the Premises.
D. City represents that (1) it is the owner in fee simple of the Premises; (2) the use of the Premises as set forth in this Lease does not violate any restrictions applicable to the Premises; (3) the use of the Premises as set forth in this Lease is a use permitted upon the Premises by the applicable zoning requirements, subject to issuance of applicable permits and approvals; and (4) this Lease has been approved as required by law.
E. Tenant and the persons executing this Lease on behalf of Tenant represent that: (1) this Lease has been approved by all persons and boards required to approve it within the corporate or other organizational structure of Tenant; and (2) the persons executing this Lease on behalf of the Tenant are duly authorized to do so.
F. Tenant hereby accepts the Premises and accepts this Lease subject thereto and to all matters disclosed thereby.
10. ALTERATIONS AND ADDITIONS
A. Alterations and Additions. Tenant shall make no alterations, additions, or improvements to the Premises, except for non-structural work, without the City's prior written consent. City shall not unreasonably withhold such consent to non- structural work.
B. Mechanic's Liens. To the extent Tenant performs any work on the Premises, Tenant shall promptly pay or cause to be paid, all money due and payable for and on account of the construction, repair, restoration, replacement, or improvement done by or on behalf of Tenant to or on the Premises. Tenant shall indemnify, defend, and keep and hold the City and the Premises free and harmless from any and all mechanics', materialmen's, contractors', and subcontractors' liens arising from or growing out of the aforesaid work.
C. Ownership of Improvements/Alterations. All alterations, improvements or additions which are made on the Premises by the Tenant shall become the property of the City and shall remain upon and be surrendered with the Premises at the expiration of the term of this Lease. Upon expiration of this Lease, or earlier termination thereof, the Premises (and any alterations or additions thereto) shall be free, clear, and unencumbered, and Tenant shall defend and indemnify City against any future claims, liabilities, losses, costs, and damages arising in connection with any encumbrance placed upon or allowed to be placed upon the Premises by 5 Tenant. Notwithstanding the above, this paragraph shall not apply to Tenant's trade fixtures, furniture, equipment and other machinery; which are not affixed to the Premises in a manner so that they cannot be removed without material or structural damage to the Premises, which shall remain the property of the Tenant and may be removed by the Tenant on or before the expiration of the term of this Lease, but Tenants' property shall not include the items listed in Exhibit "C" which shall remain on the Premises. Tenant must remove all personal property upon the expiration or earlier termination of the Lease, and if not removed, Landlord can retain or dispose of it in Landlord's sole and absolute discretion, without liability to Tenant, and Tenant waives all laws to the contrary.
11. UTILITIES
A. During the term of this Lease, Tenant agrees to pay eight hundred fifty-one dollars ($851.00) per month to Landlord as "utilities" for all electric, gas and water used by Tenant's on the Premises, which shall be paid on or before the first business day of each calendar month without offset or deduction. City reserves the right to increase these utility fees on an annual basis, contingent upon variances in utility fees.
12. MAINTENANCE AND REPAIRS
A. During the term of this Lease, Tenant shall be responsible for all costs associated with routine maintenance of the Premises. The term "routine maintenance" shall mean and include the day-to-day or periodic maintenance activities such as janitorial services, which are intended to maintain the Premises in a sanitary and clean manner, and such that it will not deteriorate from its condition prior to Tenant's occupancy, with normal wear and tear excepted.
B. City shall pay the direct costs of (and perform) landscaping and major or structural maintenance of the Premises, as deemed appropriate by City.
C. If Tenant fails to perform Tenant's obligations as stated herein, City may elect to perform any obligation of Tenant pursuant to this Section at Tenant's cost and expense following ten (10) days' written notice delivered to Tenant and opportunity to cure as set forth in this Lease. The election by the City shall not constitute a waiver of any right or remedy for Tenant's default. Tenant shall reimburse City for the cost and expense it incurred in the performance of Tenant's obligation within thirty (30) days of City's request for payment.
13. INDEMNIFICATION AND HOLD HARMLESS
A. The Tenant shall indemnify, defend (with legal counsel approved by City, which such approval by City shall not be unreasonably withheld) and hold harmless City and its elected and appointed officials, officers, employees, servants and agents from and against all claims, actions, liabilities, losses, damages, costs, attorneys' fees and other expense(s) of any nature for loss or damage to property, or injury to or death of persons, arising in any manner whatsoever, directly or indirectly, by C01
reason of this Lease or the use or occupancy of the Premises by Tenant or the delivery by Tenant of food to other locations (collectively "Claim(s)"), whether the Claim be made during the Lease term or thereafter, except such loss, damage, injury or death caused by the negligence of City or any of its elected and appointed officials, officers, employees, servants or agents. The liability of Tenant hereunder shall not be limited by the insurance provisions of this Lease. The indemnification, legal defense and hold harmless provisions of this Section shall survive the expiration or termination of this Lease and shall relate back to all periods of Tenant's previous possession of the Premises.
B. Additionally, Tenant shall indemnify, defend with legal counsel approved by City (which such approval shall not be unreasonably withheld) and hold harmless City and its elected officials, officers, employees, servants and agents from and against any and all claims, actions, liabilities, losses, damages, costs, attorneys' fees and other expenses of any nature including, without limitation, all foreseeable and all unforeseeable consequential damages, directly or indirectly arising out of (a) the presence, use, generation, storage, release or disposal of Hazardous Materials on the Premises, except for those present on the Premises as of the Initial Occupation Date, which were not caused by Tenant during Tenant's occupancy of the Premises, or which may be placed on the Premises by City or City's employees, agents or contractors after the date of this Lease, and (b) any required or necessary repair, cleanup, or detoxification, and the preparation of any response, remediation, closure or other required plans, to the full extent that such action is attributable, directly or indirectly, to the presence, use, generation, storage, release, or disposal of Hazardous Materials on the Premises.
C. As used in this Section, Hazardous Materials means any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated or addressed pursuant to (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et seq. ("CERCLA"); the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Sections 690let seq.; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the Clean Water Act, 33 U.S.C. Sections 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Sections 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as amended, (2) any other federal or state law or any local law regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now is, or at any time hereafter may be, in effect, and (3) any rule or regulation adopted or promulgated under or pursuant to any of those laws.
7 D. The provisions of this Section shall survive the expiration or termination of this Lease and shall relate back to all periods of Tenant's and City's previous ownership or possession of the Premises. The provisions of this Section are intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 U.S.C. Section 9607(e), and Health and Safety Code Section 25364 to insure, protect, hold harmless and indemnify Tenant and City from any liability pursuant to such laws.
14. INSURANCE REQUIREMENTS
A. Lessee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Lessee's operation and use of the leased premises. The cost of such insurance shall be borne by the Lessee.
B. MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2) Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. (for lessees with employees).
3) Property insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision.
If the Lessee maintains broader coverage and/or higher limits than the minimums shown above, the Entity requires and shall be entitled to the broader coverage and/or higher limits maintained. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Entity.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The Entity, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Lessee including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Lessee's insurance (at least as broad as ISO Form CG 20 10.)
Primary Coverage
For any claims related to this contract, the Lessee's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 0104 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self- insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Lessee's insurance and shall not contribute with it.
Notice of Cancellation
Lessee shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self -insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Lessee shall forthwith obtain and submit proof of substitute insurance.
Waiver of Subrogation
Lessee hereby grants to Entity a waiver of any right to subrogation which any insurer of said Lessee may acquire against the Entity by virtue of the payment of any loss under such insurance. Lessee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer. However, Lessee must obtain a workers' compensation endorsement waiving subrogation against the Entity.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A: VII, unless otherwise acceptable to the Entity.
Self -Insured Retentions
Self -insured retentions must be declared to and approved by the Entity. At the option of the Entity, either: the Lessee shall obtain coverage to reduce or eliminate such self -insured retentions as respects the Entity, its officers, officials, employees, and volunteers; or the Lessee shall provide a financial guarantee satisfactory to the Entity guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or Entity.
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Verification of Coverage
Lessee shall furnish the Entity with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Entity before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Lessee's obligation to provide them. The Entity reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
Special Risks or Circumstances
Entity reserves the right to modify these requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
15. ASSIGNMENT AND SUBLETTING
Tenant shall not assign nor sublet this Lease or the Premises at any time.
16. MORTGAGES AND OTHER ENCUMBRANCES
Tenant shall not mortgage, hypothecate or otherwise encumber or cause any liens to be placed upon the Premises.
17. DEFAULT
A. Except as otherwise provided in this Lease, at any time one party is in default or breach of any provision of this Lease, the other party may give written notice to remedy such default or breach. If, (1) such default or breach is not remedied within thirty (30) days after said notice, or (2) if the nature of the default or breach is such that it cannot reasonably be cured within thirty (30) days after the notice and the defaulting party fails to commence to cure within the thirty (30) day period or thereafter fails to diligently prosecute the cure to completion, then the non - defaulting party may, at its option, terminate this Lease and shall also be entitled to such damages or other remedies at law or in equity are available to either party because of such default or breach. In the event of such termination, City may take possession of the Premises without further notice to Tenant. Termination of this Lease pursuant to this Section shall not be considered a waiver of damages or other remedies at law or in equity available to either party because of such default or breach. Each term and condition of this Lease shall also be deemed to be a covenant.
B. A waiver by either party of any default or breach by the other party of any provision of this Lease shall not constitute or be deemed to be a waiver of any subsequent or other default or breach. No waiver shall be binding, unless executed in writing by the party making the waiver; waivers on behalf of City shall only be given by resolution of the City Council. No waiver, benefit, privilege, or service voluntarily 10 given or performed by either party shall give the other party any contractual right by custom, estoppel, or otherwise. The subsequent acceptance of rent pursuant to this Lease shall not constitute a waiver of any preceding default by Tenant other than default in the payment of the particular rental payment so accepted, regardless of City's knowledge of the preceding breach at the time of accepting the rent; nor shall acceptance of rent or any other payment after expiration or termination constitute a reinstatement, extension, or renewal of the Lease or revocation of any notice or other act by City.
C. The making by Tenant by any general assignment, or general assignment for the benefit of creditors; the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy unless the same is dismissed within sixty (60) days; the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in the Lease, where possession is not restored to Tenant within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interests in the Lease, where such seizure is not discharged within thirty (30) days; shall constitute a default under this Lease.
D. City's Remedies. City shall have the following remedies if Tenant is in default or breach of the Lease, following notice and opportunity to cure, as set forth hereinabove:
1) City may continue this Lease in full force and effect, and the Lease will continue in effect so long as City does not terminate Tenant's right to possession, and the City shall have the right to the continued performance of Tenant of all of Tenant's obligations and duties under this Lease, and to collect rent when due.
2) No act by the City other than giving written notice to the Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the Premises, the appointment of a receiver at the City's initiative to protect the City's interest in this Lease shall not constitute a termination of Tenant's right to possession.
18. SUBORDINATION
A. Except as provided in Subsection B of this Section, this Lease and all of Tenant's rights in this Lease shall be subject and subordinate to any mortgage, deed of trust, ground lease, or other instrument of encumbrance (collectively referred to in this Section as a "security instrument") that is now or hereafter placed against any part of the real property on which the Premises are located. On written request of the holder of any security instrument ("Lender") or City, Tenant shall execute, acknowledge, and deliver any documents evidencing subordination that the Lender or City may reasonably request. For each security instrument, the Lender shall agree in writing that, in the event of a default under the security instrument, Lender 11 shall not terminate this Lease and shall not disturb Tenant's right to possession under this Lease, provided Tenant is not then in default under this Lease and continues thereafter to fully perform all of its obligations under this Lease.
B. Notwithstanding the provisions of Subsection, A of this Section, any Lender may subordinate its security instrument to this Lease by executing and recording a written document subordinating its security instrument to this Lease as provided in the document. In that case, this Lease shall be deemed prior to the security instrument as provided in the document, without regard to the execution, delivery, or recording dates of the subordination document or the security instrument.
Subordination of a security instrument described in this subsection shall not require the consent of Tenant, but Tenant agrees to execute and deliver, in record able form, any instrument requested by Lender or City to confirm or acknowledge the subordination.
19. SURRENDER OF PREMISES AT END OF TERM
On the last day of the term hereof, or on any sooner termination, Tenant shall surrender the Premises to the City in good condition, broom clean, ordinary wear and tear excepted.
Tenant shall repair any damage to the Premises, and furnishings provided by City, occasioned by Tenant's use thereof, or by the removal of Tenant's trade fixtures, furnishings, and equipment, which repair shall include the patching and filling of holes and repair of structural damage. Tenant may remove all its personal property and fixtures on the Premises prior to the expiration of the term of this Lease, so long as Tenant continues to perform its service obligations in accordance with the requirements hereof. Personal property not removed by the Tenant upon the expiration or earlier termination of the Lease, Landlord can retain or dispose of it in Landlord's sole and absolute discretion, without liability to Tenant, and Tenant waives all laws to the contrary.
20. GENERAL PROVISIONS
A. Attorneys' Fees. In the event that any action is brought by either party hereto as against the other party hereto for the enforcement or declaration of any right or remedy in or under this Lease or for the breach or enforcement of any covenant or condition of this Lease, the prevailing party shall be entitled to recover reasonable attorneys' fees and litigation costs from the other party.
B. Waiver.
1) No waiver of any breach of any of the terms, covenants, agreements, restrictions, or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions, and conditions hereof.
2) The City's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of City's consent to or approval of any subsequent act by Tenant. The acceptance of rent hereunder by City shall not constitute a waiver of any preceding breach by Tenant of any provision hereof, other 12 than the failure of Tenant to pay the particular rent so accepted, regardless of City's knowledge of such preceding breach at the time of its acceptance of such rent.
C. Lease Binding on Successors and Assigns.
1) Subject to the limitations of assignment, each of the terms, covenants and conditions of this Lease shall extend to and be binding on and inure to the benefit of not only the City and Tenant, but to each of their respective successors and assigns. Whenever in this Lease reference is made to either City or Tenant, the reference shall be deemed to include, whenever applicable, the legal representatives, successors and assigns of each of the parties, the same as if they were in every case expressed. 2) The term "City" or "Landlord" as used in this Lease shall mean only the owner or owners of the fee title to the Premises at the time in question, or a lessee's interest in a ground lease of the Premises. In the event of any transfer of such title or interest, Landlord herein named (and in case of any subsequent transfers to the then successor) shall be relieved from and after the date of such transfer of all liability in respect to that Landlord's obligations thereafter to be performed. The obligations contained in this Lease to be performed by the City shall be binding upon the landlord's successors and assigns, only during their respective periods of ownership.
D. Entry by Inspection. City reserves the right for City and City's agents and representatives to enter upon the Premises at any reasonable time and after reasonable notice to Tenant for the purpose of inspecting the Premises, to examine the condition thereof, including their environmental condition; showing the same to prospective purchasers, tenants or lenders; making such alterations, repairs, improvements or additions to the Premises, as City deems reasonable or necessary; or attending to City's business and City's interest hereunder, as City may deem necessary or desirable. City may, at any time during the last ninety (90) days of the term of this Lease, place any ordinary "For Sale or Lease" signs on the Premises, without rebate of rent or liability to Tenant.
E. Relationship of the Parties. The relationship of the parties hereto is that of landlord and tenant, and it is expressly understood and agreed that City does not in any way, nor for any purpose, become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant's business, or otherwise.
F. Incorporation of Prior Agreements. This Lease supersedes all prior agreements between Landlord and Tenant regarding the Premises.=This Lease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease may be modified only in writing and signed by the parties of interest at the time of such modification.
13 G. Time of Essence. Time is expressly declared to be of the essence of this Lease.
Each term and each provision of this Lease, performable by Tenant, shall be construed to be both a covenant and a condition.
H. Quitclaim. At the expiration or earlier termination of this Lease, Tenant shall execute, acknowledge, and deliver to City, within five (5) days after written demand from City to Tenant, any quitclaim deed or other document deemed necessary or desirable by City's counsel to remove any cloud of this Lease from the real property subject hereto and terminate of record the memorandum described in Section 24 below.
I. Construction of Lease. The language in all parts of this Lease shall, in all cases, be construed as a whole and in accordance with its fair meaning and not restricted for or against either City or Tenant. The captions of the sections and subsections of this Lease are for convenience only and shall not be considered or referred to in resolving questions of construction.
J. Construction -Related Accessibility Standards. The Premises have not been inspected by a Certified Access Specialist (CASp). A Certified Access Specialist (CASp) can inspect the Premises and determine whether the Premises comply with all of the applicable construction -related accessibility standards under state law.
Although state law does not require a CASp inspection of the Premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the Premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction -related accessibility standards within the premises.
In that regard, the parties agree that in the event Tenant requests a CASp inspection, Tenant shall pay any such inspection fees and the cost of making any such repairs.
K. "City" and "Tenant". The words "City" and "Tenant ", wherever used herein, shall be applicable to one or more persons, as the case may be; the singular shall include the plural; the neuter shall include the masculine and feminine; and, if there be more than one, obligations thereof shall be joint and several. The word "person," whenever used herein, shall include individuals, firms, associations, and corporations. Whenever in this Lease any words denoting undertaking, covenant or duty are used, such words shall have the same force and effect as though made in the form of conditions.
L. Choice of Law; Venue. This Lease shall be governed by the laws of the State of California, with venue for any legal actions which may be brought by either party against the other party in the County of San Bernardino, California. 14 21. NOTICES
Any notice to be given or other document to be delivered by either party to the other hereunder may be delivered in person to either party, or may be deposited in the United States mail, in the State of California, duly certified, with postage fully prepaid and addressed to the party for whom intended as follows:
TO CITY: Director of Community Services
City of Yucaipa
34272 Yucaipa Blvd.
Yucaipa, CA 92399
(909) 797-2489 EX:241
TO TENANT: Family Service Association
21250 Box Springs Road
Suite 212
Moreno Valley, CA 92557
(951) 686-1096
Attention: President/CEO
Either party hereto may, from time to time, by written notice to the other party, designate a different address which shall be substituted for the one above specified. If any notice or other document is sent by certified mail, as aforesaid, the same shall be deemed served or delivered on the third business day after the mailing thereof, as provided above.
22. AMENDMENTS
A. Inte rag tion. This Lease may not be modified or amended except in a writing duly approved and signed by all the parties hereto. Both parties agree that no estoppel argument can be raised during legal proceedings in order to avoid the provisions of this Section.
23. MEMORANDUM OF LEASE
The parties hereto shall, concurrently with the execution hereof, execute, acknowledge, and record in the office of the County Recorder of San Bernardino County a memorandum of this Lease, in the form set forth at Exhibit "E" and incorporated herein.
24. SEVERABILITY
If any provision of this Lease shall be adjudged to be invalid, void, or illegal, it shall in no way affect, impair or invalidate any other provision(s) hereof, the parties hereby agreeing that they would have entered into the remaining portion of this Lease notwithstanding the omission of the portion or portions adjudged invalid, void, or illegal. t5
25. COUNTERPARTS
This Lease may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date and year first above written.
CITY OF YUCAIPA
Chris Mann, City Manager
ATTEST:
Ana V. Sauseda, CMC
Director of General Services/City Clerk
APPROVED AS TO FORM:
City Attorney
Family Service Association
Tom Donahue, Director Senior Nutrition
16 EXHIBIT A
Legal Description of Premises and APN
The Premises is a 5000 square foot facility located in the City of Yucaipa, County of San Bernardino, State of California, within Lots 13,14,15, and 16, Block 91 according to Revised Map of YUCAIPA CITY, as per plat recorded in Book 17 of Maps, pages 91,92, and 93, records of said County.
EXCEPTING THEREFROM the West 5 feet of said Lot 16.
APN: 0319-052-26
A-1
STAGE AREA
Ramp
(A)
----------------------
(B)
----------------------
(C)
GRANNY'S
CORNER STORAGE ][STORAGE]
EXHIBIT B
Site Plan of Facility
12202 First Street
SENIOR LOUNGE
(D)
LEASED PREMISES
ACTIVITY ROOM (E)
--------------------
NUTRITION
e• •s
��
CENTER
(F)
x z
= n
n
=
x y
m
m
z ❑
z O
a z
—
13REEZEWAY -�
EXHIBIT C
The following is the list of furniture, fixtures, and equipment that will be available for use by the Tenant. A count should be made, and Tenant should inspect and agree to the count and condition of these items:
Quantity Items
23 Six Feet Long Folding Dining Tables
102
Dining Chairs
1 Walk in Freezer
1 Walk in Refrigerator
1 3 Door Refrigerator
2 2 Door Freezers
2 Stainless Steel Food Preparation Tables
1 Stove/Oven
1 Double Convection Oven
6 Stainless Steel Serving Carts
1 Ice Machine
1 Four Well Steamer Table
5 Desks
3 Desk Chairs
EXHIBIT "E"
Form of Memorandum of Lease
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
City of Yucaipa
34272 Yucaipa Blvd.
Yucaipa, CA 92399
[Space Above for Recorder's Use]
The undersigned declare that this Memorandum of Lease is exempt from Recording Fees pursuant to California Government Code 27383 and exempt from Documentary Transfer Tax pursuant to California Revenue and Taxation Code 11922.
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE (this "Memorandum") is dated as of July 1, 2023, by and between the CITY OF YUCAIPA, a California municipal corporation ("City") and FAMILY SERVICE ASSOCIATION, a California non-profit corporation ("Tenant").
RECITALS
A. City and Tenant have entered into that certain Facility Lease Agreement dated as of July 1, 2023 (the "Lease"), pursuant to which City has agreed to lease and demise to Tenant, and Tenant has agreed to lease and accept from City, premises at 12202 First Street, in the City of Yucaipa, County of San Bernardino, State of California more particularly described on Exhibit A attached hereto (the "Premises"), as provided in the Lease.
B. City and Tenant now desire to enter into this Memorandum to provide record notice of the Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Tenant agree as follows:
Lease. City hereby leases and demises the Premises to Tenant, and Tenant hereby leases and accepts the Premises from City, for an initial term of three years, with two (1) year extensions, commencing on July 1, 2023, at the rental and upon the other terms and conditions set forth in the Lease, which terms and conditions are incorporated herein by this reference. Tenant has the right to extend the term.
2. Purpose. This Memorandum is prepared for the purposes of recordation only, and in no way modifies the terms and conditions of the Lease. In the event any provision of this Memorandum is inconsistent with any term or condition of the Lease, the applicable term or condition of the Lease shall prevail.
3. Counterparts. This Memorandum may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the date first written above.
CITY OF YUCAIPA
Family Service Association
Chris Mann, City Manager Tom Donahue, Director Senior Nutrition ATTEST:
Ana V. Sauseda, CMC
Director of General Services/City Clerk
APPROVED AS TO FORM:
City Attorney
[Signatures must be notarized]
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On before me, (here insert name and title of the officer), personally appeared. who proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public Signature
Notary Public Seal
EXHIBIT A
Legal Description of Premises and APN
The Premises is a 5000 square foot facility located in the City of Yucaipa, County of San Bernardino, State of California, within Lots 13,14,15, and 16, Block 91 according to Revised Map of YUCAIPA CITY, as per plat recorded in Book 17 of Maps, pages 91,92, and 93, records of said County.
EXCEPTING THEREFROM the West 5 feet of said Lot 16.
APN: 0319-052-26