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HomeMy WebLinkAbout1999-035 1 RESOLUTION NO. 1999-35 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 3 EXECUTION OF A GROUND LEASE WITH CALIFORNIA GOLF HOLDINGS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, RELATING TO CERTAIN 4 PROPERTY LOCATED 290.00 FEET NORTH OF THE NORTHWEST CORNER OF HIGHLAND AVENUE AND ORANGE STREET. 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 9 directed to execute on behalf of said City a ground lease with California Golf Holdings, LLC, 10 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and A California Limited Liability Company, relating to certain real property located 290 feet 11 North of the Northwest corner of Highland Avenue and Orange Street, a copy of the ground 12 lease is attached as Exhibit "A" and made a part hereof. 13 14 SECTION 2. The authorization to execute the above referenced agreement is 15 rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage 1 2 Res 1999~35 RESOLUTION AUTHORIZING THE EXECUTION OF A GROUND LEASE BETWEEN THE CITY OF SAN BERNARDINO AND CALIFORNIA GOLF HOLDINGS, LLC. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 3 Common Council of the City of San Bernardino at a ioint re~lar meeting thereof 4 held on the 1st 17 18 The foregoing resolution IS hereby approved this 19 19 99 20 5 wit: 6 7 8 9 10 11 12 13 14 15 16 day of March , 19~, by the following vote, to Council Members: AYES NA YES ABSTAIN ABSENT ESTRADA x LIEN x MCGINNIS x SCHNETZ x DEVLIN x ANDERSON x MILLER x ~.{~ Cit 1erk C~ day of M.arch 21 22 Approved as to form 23 and legal content: ALLES, Mayor an Bernardino 24 JAMES F. PENMAN 25 City A 26 27 28 .f~ 02/04/99 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35 ~ LEASE (CALIFORNIA GOLF HOLDINGS) THIS AGREEMENT (Lease), made and entered into this 1st day of March. 1999, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and California Golf Holdings, LLC, a California Limited Liability Company hereinafter referred to as "Lessee". RECITALS This Lease is made and entered into with respect to the following facts: (a) Lessor is the owner of the property herein described, (b) Estoppel Agreement from the State of California attached as Exhibit" B " waives Deed restrictions so a lease can be executed for the purposes of a golf cart path and maintenance building. (c) Lessor is willing to lease the property to lessee upon the terms and conditions hereinafter set forth. (d) Lessee desires the use of said property for golf cart path and golf cart maintenance, and paved parking, NOW THEREFORE, the parties hereto agree as follows: 1. Property Leased. Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, a vacant property located in the City of San Bernardino, County of San Bernardino, State of California, described as follows: That portion of the Southwest one-quarter of the southwest one-quarter of Section 29, Township 1 North, Range 3 West, San Bernardino Meridian, described as follows: Commencing on the southerly line of said Section 29 said point being also on the centerline of Highland Avenue and the southwest corner of the land described in Quitclaim Deed to the City of San Bernardino as per docwnent in Book 7065, Page 990 recorded July 25, 1968, EXHIBIT A Res 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Official Records of San Bernardino County; thence leaving the southerly line of Section 29 and the centerline of said Highland A venue Northwest a distance of 334.26 feet along the Westerly line of said City of San Bernardino land to the True Point of Beginning; thence Easterly leaving the westerly line of said City of San Bernardino Land, a distance 214.15 feet more or less along a straight line parallel with the centerline of said Highland Avenue, to the Westerly line of Orange Street; thence North a distance of 126.34 feet more or less along the Westerly line of Orange Street to the northerly line of said City of San Bernardino Land; thence West a distance of 153.05 feet more or less along the northerly line of said City of San Bernardino Land; thence Southwest a distance of 68.21 feet to the westerly line of said City of San Bernardino Land; thence South, a distance of 121.24 feet more or less along the westerly line of said City of San Bernardino Land to the True Point of Beginning. Said property is shown on the attached Exhibit "A". 2. Use. The leased premises shall be used for golf cart path, golf maintenance building, and paved parking upon the Lessee's acquisition of all appropriate governmental permits for said use of the property and Lessor's approval. Lessee agrees to use the premises for such purposes, and not to use or permit the use of the property for any other purpose unless the Lessor has previously approved such use in writing. Lessee also agrees to exercise due diligence in the protection of the property from damage or destruction by fire, vandalism, earthquake, floods or other cause. Lessee shall not commit, or allow to be committed, on the property any waste thereon, nor the presence, use, manufacture, handling, generation, storage, treatment, discharge, release, burial, or disposal of any hazardous substance which is or becomes listed, regulated, or addressed under any federal, state, or local statue, law, ordinance, resolution, code, rule, regulation, order or decree, nor create or allow any nuisance to exist on the property, nor use or allow the property to be used for any unlawful or unconstitutional purpose. Lessee, at its sole cost and expense shall be responsible for 2 ,----- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Res 1999-35 ensuring that the property, and lessee use and occupancy thereof, complies with all of the requirements of all local, state, and federal authorities now in force, or which may be in force. 3. Term. The term of this Lease shall be for a period of thirty (30) years commencing on March L 1999, and shall expire on February 28 ,2029 unless terminated at an earlier date as provided in Paragraph 8. 4. Lease Payments. (a), Lessee agrees to pay and Lessor agrees to accept as rental for said premises, for the ("Commencing Rent"), a annual base rent of FOUR THOUSAND SIX HUNDRED EIGHTY DOLLARS ($4,680.00). The annual rent shall be paid on the first day of July every year during the term of this lease, which payment shall be deemed delinquent on the fifteenth day of July . The Commencing Rent shall be increased in accordance with 15 section 4b hereof. Payments shall be directed to: 16 17 18 19 20 21 22 23 24 25 26 27 28 City of San Bernardino Development Services Department, Public Works Division 300 North "D" Street San Bernardino, CA 92418 (b). The rent will increase beginning July L 2009 and every 10 years thereafter as follows: 1. As immediately as possible after the end of the initial ten (10) year period and each subsequent ten (10) year period thereafter, Lessor shall compute the increase, if any, in the cost of living for the preceding ten-year period based upon the Consumer Price Index for All Urban Consumers, for the Los Ange1es-Anaheim-Riverside Area (1982-84=100) published by the United States Department of Labor's Bureau of Labor Statistics 3 Res 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The Index number for the month and year of Ju1v L 1999 shall be the "Base Index Number" and the corresponding Index number for the month and year of Ju1v L 2009 and every ten years thereafter as applicable, shall be the "Current Index Number". 3. The Current Index Number shall be divided by the Base Index Number, and any resulting positive number shall be deemed to be the percentage of increase in the cost of living. 4. The percentage of increase multiplied by the annual rent payable for the proceeding ten-year period shall be the increase required section 4a hereof. 5. Utilities Lessee shall pay for all electricity, gas, water, telephone service, and all other services, meters and utilities, including service installation fees, repairs, maintenance and charges for such utilities during the term of this Lease. 6. Taxes/Possessorv Interest. Lessee agrees during the term of this Lease to pay, when due, all taxes and assessments that may be assessed or imposed upon the Lessee's possessory interest in and to the premises and upon personal property located on the premises. During Lessee's possession and use ofthe leased premises, should any taxes thereon be assessed against Lessor, Lessee agrees to indemnify Lessor thereon. Lessee agrees to, and shall defend, indemnify and hold harmless, Lessor from any and all liability for any such taxes due by virtue of tenant's leasehold improvements, equipment, furniture, fixtures, or other personal property. 4 REs 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. Insurance, (a) Securitv. City reserves the right to demand at any time during the term of this Lease and any extensions thereof that the Lessee procure and maintain bonds from an acceptable surety, cash deposits, or other form of security in amounts and upon terms deemed sufficient by City in its sole discretion to protect City from any and all exposure to loss or liability. (b) Coverage During term. Lessee agrees to procure and maintain in force during the term of this Lease and any extensions there in policies of insurance as follows: Worker's Compensation insurance, as required by law in the State of California, and Employer's Liability Insurance (including diseases coverage) in the amount not less than $1,000,000.00 per occurrence. This insurance shall also waive all right to subrogation against City, its elected officials, officers, employees, representatives and agents. General Commercial Liability insurance which shall include coverage for contractua11iabi1ity, independent contractors, products and completed operations, broad form property damage, explosions, collapse, underground hazards, and acts or omissions committed by the Lessee in the course of performing any activities on the property. This insurance shall be on comprehensive occurrence basis form with a standard (ISO CG 2010 or equivalent). City shall be named as an additional insured, and the limit for this insurance shall be not less than $1,000,000.00 per occurrence, combined single limit for bodily injury and property damage. Real Property insurance and fire lega11iabi1ity covering any and all buildings, improvements, and property against loss or damage by fire, lighting, extended 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35 coverage, vandalism, malicious mischief, and earthquake. This insurance shall have an endorsement naming the City as an additional insured and with a standard cross liability clause and endorsement (ISO CG 2010 or equivalent). The limit amount for this insurance shall be not less than $1,000,000.00 per occurrence, combined single limit for bodily injury and property damage. Environmental Liability insurance to the extent available by industry standards with an endorsement naming City as an additional insured and with a standard cross liability clause and endorsement (ISO CG 2010 or equivalent). The limit amount for this insurance shall be not less than $1,000,000.00 per occurrence, combined single limit per occurrence. (c) Supplemental Coverage During Construction. During the period of any construction activities on the property, Lessee shall procure and maintain, or cause its contractors or subcontractors to furnish, the following policies of insurance in addition to the requirements set forth above: Builders All-Risk insurance shall be maintained to cover the property and all work performed thereon against loss or damage until ,completion. This insurance shall be on a comprehensive occurrence basis form with a standard cross liability clause and endorsement (ISO CG 2010 or equivalent), for broad form property damage. City shall be named as an additional insured, and the limit for this insurance shall not be less than the replacement cost of all property thereon, per occurrence, combined single limit. Automobile Liability insurance shall be maintained with coverage for any vehicle including those owned, leased, rented or borrowed. This insurance shall have 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35 an endorsement naming the City as an additional insured and with a standard cross liability clause and endorsement (ISO CG 2010 or equivalent). The limit amount for this insurance shall be not less than $1,000,000.00 per occurrence, combined single limit for bodily injury and property damage. Professional liability insurance shall be maintained with coverage for wrongful acts, errors, or omissions committed by any of the lessee's contractors and/or subcontractors in the course of performing any activities on the property. This insurance shall include coverage for liability assumed under this agreement when such liability is caused by the wrongful acts, errors, or omissions of said contractors and/or subcontractors. The limit for this insurance shall be not less than $1,000,000.00 per claim. (d) Policy Requirements. City shall not be liable or responsible for the payment of any premiums or assessments for the insurance coverage required under this lease. Insurers shall have at least an A15 policyholder's rating in accordance with the current Best's Key Rating Guide or equivalent. In addition, any and all insurers must be authorized to conduct business in the State Of California, as evidenced by a listing in the official publication of the Department ofInsurance ofthe State of California. Lessee shall provide to Lessor a certificate of insurance and an additional insured endorsement which provides: (1) The City of San Bernardino named as an additional insured, (2) The insurance company name, policy number, period of coverage, and the amount of insurance. 7 Res 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (3) That the Real Property Section of the Department of Development Services the City of San Bernardino must be given notice in writing at least thirty (30) days prior to cancellation, material change, or refusal to renew the policy. (4) That Lessee's insurance will be primary to any coverage the City of San Bernardino may have in effect. Lessee agrees that, if such insurance polices are not kept in force during the term of the lease and any extension thereof, Lessor may have the option to immediately declare this Lease in default, and to terminate said Lease. S. Maintenance and Operation The Lessee is familiar with the leased premises and has knowledge of the present conditions that exist thereon. Lessee shall, at its own expense, maintain the leased premises and all improvements thereon in good order, condition, and repair. Lessee shall provide or cause to be provided all security services, maintenance service, and repair service, which are required for the proper care and use of the premises. (a) Licenses. Lessee shall post in a prominent place and manner in the demised premises all business licenses, certificates, a copy of this Lease, and all permits that are required to do Lessee's business in the City of San Bernardino. (b) Vendors, Lessee shall not permit vendors to display wares, materials, or advertisements inside or outside the demised premises unless prior written permission is secured from Lessor and such written permission is posted in a prominent place and manner in the premises. 8 Res 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. ImDrovements Lessee shall not make, or suffer to be made, any alterations to the demised premises, or any part thereof, without the prior written consent of Lessor. Any and all improvements, repairs, and construction performed on the property by the Lessee or its employees, agents, contractors, consultants or sub contractors shall comply with the applicable rules, regulations, laws, statutes, and standards of the City and any other entity with jurisdiction over the activities conducted thereon. No alteration of the property or construction of improvements thereon shall be permitted until the City has approved the complete plans and specifications therefore as prepared by an architect duly registered by the State of California. Any and all alterations and/or improvements made to the demised premises pursuant to this section, upon termination of this Lease, may remain as a part of the premises or be removed from the premises and the land returned to its previous state and at no cost or obligation to the Lessor, upon Lessor's approval. lfthe Lessor accepts the improvements, the Lessee shall deliver said improvements, structures to the Lessor in good condition and repair, reasonable wear and tear excepted, and free and clear of any and all liens and/or claims and hazardous materials or substances. 10. Make Alterations. Additions. or Chanl!:es Required bv Law If, during the term of this Lease, any law, regulation, or rule requires that an alteration, addition, or other change be made to the demised premises, the parties agree as follows: (a) lfthe alterations, additions, or changes are required as a result of Lessee's use ofthe premises, Lessee will make them and bear all expense. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35 (b) If the alterations, additions, or changes are required as a result of the condition or nature of the premises at the time of execution of this Lease, and are not caused by use of the premises by Lessee, Lessor will make them and bear all expenses. 11. Default In the event Lessee is in default in the payment of rentals or other charges hereunder or is otherwise in breach of its covenants or obligations hereunder, and such default exists for a period of thirty days after written notice from Lessor to Lessee of such default, Lessor shall have the right and privilege of terminating this Lease and declaring the same at an end, and of entering upon and taking possession of said premises, and shall have the remedies now or hereafter provided by law for recovery ofrent, repossession of the premises and damages occasioned by such default. If such default should occur then Lessor shall have the right to take possession of and appropriate to itself without payment therefor, any property of Lessee or anyone claiming under it, then remaining on said premises. 12. InsDections Lessor, its agents, officers, or employees may enter upon the demised premises at such reasonable times during Lessor's normal business hours as it deems necessary for the purpose of inspection of the premises to determine whether the terms and conditions of this Lease are being performed and kept by Lessee. 13. Effect of Lessor's waiver. Lessor's waiver of breach of any term, covenant, or condition of this Lease is not a waiver of breach of any other, nor of any subsequent breach of the one waived. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35 14. Non- Discrimination, Lessee hereby covenants by and for itself, its successors, executors, administrators, and assigns, all persons under or through it, and this Lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, disability, sex, national origin, or ancestry, in the leasing, sub-leasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the Lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. 15. Assienments. Lessee shall not assign this lease or sublet the said premises or any part thereof without obtaining the prior written consent of the Lessor, which shall not be unreasonably withheld. 16. V aliditv. If anyone or more of the terms, provisions, promises, covenants, or conditions, ofthis Lease shall, to any extent, be adjudged invalid, unenforceable, void, or voidable for any reason whatsoever by a court of competent jurisdiction, each and all the remaining terms, provisions, promises, covenants, and conditions of this Lease shall not be affected thereby and shall be enforceable to the fullest extent permitted by law. 11 Res 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. Lease Applicable to Successors. Etc. This Lease and the terms, covenants, and conditions hereof apply to and are binding on the successors, executors, administrators, and assigns of the parties hereto. 18. Lease Breached bv Lessee's Receivership. Assil!:nment for the Benefit of Creditors. Insolvencv. or Bankruptcv. Appointment of a receiver to take possession of Lessee's assets, Lessee's general assignment for benefit of creditors, or Lessee's insolvency or taking or suffering action under the Bankruptcy Act is a breach of this Lease and shall terminate same. 19. Eminent Domain. If the whole of the leased premises, or so much thereof as to render the remainder unusable for the purpose for which the same was leased, shall be taken under the power of eminent domain, then this Lease shall terminate as of the date possession shall be so taken. If less than the whole of the leased premises shall be taken under the power of eminent domain, and the remainder is usable for the leased purpose, then this Lease shall continue in full force and effect and shall not be terminated by virtue of such taking and the parties may waive the benefit of any law to the contrary, in which event there shall be partial abatement of the rent hereunder in an amount equivalent to the prorated use of the remaining premises. Any award made in eminent domain proceedings for the taking of damaging of the leased premises in whole or in part shall be paid to the Lessor (together with any other money which shall be or may be made available for such purpose), except such funds which are directly attributed to the improvements constructed on the property and the Lessee's moving expenses. 12 Res 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. Indemnification and Hold Harmless. Lessee shall indemnify and hold harmless Lessor, its elective and appointive boards, commissions, officers, agents, and employees from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Lessee's operations under this Lease, whether such operations be by Lessee or by anyone or more persons directly or indirectly employed by or acting as agent for Lessee. Lessee agrees to and shall defend Lessor and its elective and appointive boards, commissions, officers, agents, and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of Lessee's operations under this Lease, 21. Amendment. This Lease may be amended or modified only by written agreement signed by both parties hereto. Failure on the part of either party to enforce any provision of this Lease shall not be construed as a waiver of the right to compel enforcement of such provision or provisions, nor act to release any party from its obligations under this Lease. 22. Notices. All notices given in connection with this Lease shall be in writing and delivered in person or sent by certified mail, postage prepaid, addressed as follows: LESSOR City of San Bernardino Development Services Department Real Property Section 300 North "D" Street San Bernardino, CA 92418 LESSEE California Golf Holdings, LLC P.O. Box 458 Patton, Ca. 92369 13 Res 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23. Time of Essence. Time is of the essence herein, 24. Compliance with Laws. Lessee shall not violate, nor allow the violation of, any law of the City, State or Federal governments or rules of the City, in conducting its operations under this Lease. 25. Option to Renew At the expiration of this thirty (30) year lease, if Lessee has fully performed all of the terms, conditions, and covenants of this Lease for the lease term, then Lessee shall have the option to renew this Lease for four (4) separate options, each of which shall be an additional five (5) year term in duration for a maximum period of twenty (20) years. Said renewal shall be at a total rent to be negotiated by the Lessor and Lessee, but at a rate no less than the rent payment at the end of the thirty (30) year term, in addition to a five percent (5%) increase. To exercise the option to renew, Lessee must give Lessor written notice of Lessee's intention to do so at least one hundred-twenty (120) days prior to the expiration of this Lease. 26. Covenants There are no covenants or warranties other than those expressed in this Lease, 27. Entire Ae:reement. This agreement constitutes the entire Agreement between the parties and may be modified only by further written agreement between parties. 14 Res 1999-35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28. Severabilitv In the event this agreement, or any portion thereof, should be determined to be void, illegal or improper, for any reason whatever, all other portions of the agreement shall remain fully enforceable to the extent possible after such determinations. 29. Attornevs' Fees. The prevailing party in any legal action to enforce or interpret any provision of this Lease will be entitled to recover from the losing party all attorneys' fees, court costs, and necessary disbursements in connection with that action. The costs, salary, and expenses of the City Attorney, and members of his office, in connection with that action shall be considered as attorneys' fees for the purpose of this Lease. 15 Res 1999-35 1 IN WITNESS WHEREOF, the parties have executed this Lease on the day and year 2 set forth at the beginning of this Lease, 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTEST: BY~~ RA EL CLARK, City Clerk CALIFORNIA GOLF HOLDINGS, LLC By: ~ (fju,ee.e;w. Cb-m~~ By: _ Approved as to form and legal content James F, Penman, City Attrrey By: ~L 16 Res 1999-35 Res 1999-35 I , VACANT LOT J. ! ~I ~ JOI ~, I I , I , , , I I I , it- '14"" 1 ,.., :Al ,(.. o. :J ..l - - I' Res 1999-35 20' PROPOSED GOLF CART PATH AREA LEASED 29,000 SQ. FT. +/- l HIGHLAND AVENUE i \ i \.~\ \ \ \ \ \ I I , , : I , , J I I I I I II iJ J - I , t I ..J {i , ,.... ~. : J J J , I , : ,: I I , I , I I I r- w cr: r- (f) w o z <( 0::: o EXHIBIT A SCALE: 1" = 100' ...... f ~ CITY OF SAN BERNARDINO CITY CLERK ~" \'\', Recorded in ,Official Records, cou~ of San Bernardlno, Larry Walker, Recorder No Fee Doc No. 19990124024 1:38pm 03/25/99 l,-t. ~~ "~'''' , , --"-..,;. . ., . fIU:ASE COIIPI.ETE 1R8 ...llftIIATlClN ~.~ ;.fHUY"-,,:u BY: 4HD WHEN RECORDED IIAII. TO: 205 20191672 02 04 (TrY HATJ, _ 300 NOR1H "D" 'STREET SAN BERNARDINO, CA. 92418 PS FEE APF SIllS PH CPY ClIT CPY ADD'" PSI PI PCDR -e- 5_ 8_ NDN S 1lI SVY err -co TIWlS TAX ND FEE ClIRs Ell...- SPACE ABOVE FOR RECORDER a USE ONLY LEASE BE'ThJEEN CITY OF SAN BERNARDINO AND CALIFORNIA ' GOLF HOLDINGS, ILC, A CALIFORNIA LIMITED LIABILITY COMPANY 1ltIe 01 ~It .mmIIW~f .~W '%I ~ :~m .~.~~= 'N"", 1'1' '14 , W'th '~'.~ f''''' ~... m -'~ .. n II))IJ$]/ Nf1t~,-','" 1#, ;~ . ffff!ifJ '~ 'a:""m;iW.Tff ',' " ./1 "I '\ , ,~% ''''% #&'W1 'tiW'1V 1,i.<wA, ~i ',tl~ E, ,~""""..,,% $:;..i!W ' "~,,,%"%,,. ~fr~'"<~~''' if; jf- , ~..m:.. 1'-:::':'::<<-~"..6: . _""<<'X;._:' . ':. Y I 'tVf ~,;~l!L .~ W$& '. THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Addition.. RKorcIIng Fee AppIIee) ". TI2OIIS):IIw C'.._1h.._1olI ..., PI! ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35 , --::L,,\.. ,- !\ . LEASE (CALIFORNIA GOLF HOLDINGS) THIS AGREEMENT (Lease), made and entered into this 1st day of March, 1999, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and California Golf Holdings, LLC, a California Limited Liability Company hereinafter referred to as "Lessee". RECITALS This Lease is made and entered into with respect to the following facts: (a) Lessor is the owner of the property herein described. (b) Estoppel Agreement from the State of California attached as Exhibit" B " waives Deed restrictions so a lease can be executed for the purposes of a golf cart path and maintenance building. (c) Lessor is willing to lease the property to lessee upon the terms and conditions hereinafter set forth. (d) Lessee desires the use of said property for golf cart path and golf cart maintenance, and paved parking, NOW THEREFORE, the parties hereto agree as follows: 1. ProDertv Leased. Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, a vacant property located in the City of San Bernardino, County of San Bernardino, State of California, described as follows: That portion of the Southwest one-quarter of the southwest one-quarter of Section 29, Township I North, Range 3 West, San Bernardino Meridian, described as follows: Commencing on the southerly line of said Section 29 said point being also on the centerline of Highland Avenue and the southwest corner of the land described in Quitclaim Deed to the City of San Bernardino as per document in Book 7065, Page 990 recorded July 25, 1968, EXHIBIT A Res 1999-. . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Official Records of San Bernardino County; thence leaving the southerly line of Section 29 and the centerline of said Highland A venue Northwest a distance of 334.26 feet along the Westerly line of said City of San Bernardino land to the True Point of Beginning; thence Easterly leaving the westerly line of said City of San Bernardino Land, a distance 214.15 feet more or less along a straight line parallel with the centerline of said Highland Avenue, to the Westerly line of Orange Street; thence North a distance of 126.34 feet more or less along the Westerly line of Orange Street to the northerly line of said City of San Bernardino Land; thence West a distance of 153.05 feet more or less along the northerly line of said City of San Bernardino Land; thence Southwest a distance of 68.21 feet to the westerly line of said City of San Bernardino Land; thence South, a distance of 121.24 feet more or less along the westerly line of said City of San Bernardino Land to the True Point of Beginning. Said property is shown on the attached Exhibit "A", 2. Use. The leased premises shall be us -t path, golf maintenance building, and paved parking upon the Lessee's ac ~overnrnental permits for said use of the property and Lessor's ."ises for such purposes, and not to use or p' .n1ess the ,~) ? ~rcise due Lessor has previously apr ,,----'> ~ ~' ' .-~ ) diligence in the protec' . ) ,- .ire, vandalism, , ..__-:;0 ,~ "\ -:> 19 earthquake, floods or ". 20 property any waste thereon, nOl , , , , , , J be committed, on the .ndling, generation, 21 22 23 24 25 26 27 28 storage, treatment, discharge, release, bur.. nazardous substance which is or becomes listed, regulated, or addressed under an) , state, or local statue, law, ordinance, resolution, code, rule, regulation, order or decree, nor create or allow any nuisance to exist on the property, nor use or allow the property to be used for any unlawful or unconstitutional purpose. Lessee, at its sole cost and expense shall be responsible for 2 Res 1999-35. . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ensuring that the property, and lessee use and occupancy thereof, complies with all of the requirements of all local, state, and federal authorities now in force, or which may be in force. 3. Term. The term of this Lease shall be for a period of thirty (30) years commencing on March 1. 1999, and shall expire on February 28 ,2029 unless terminated at an earlier date as provided in Paragraph 8. 4. Lease Payments. (a). Lessee agrees to pay and Lessor agrees to accept as rental for said premises, for the ("Commencing Rent"), a annual base rent of FOUR THOUSAND SIX HUNDRED EIGHTY DOLLARS ($4,680.00). The annual rent shall be paid on the first day of July every year during the term ofthis lease, which payment shall be deemed delinquent on the fifteenth day of July. The Commencing Rent shall be increased in accordance with 15 section 4b hereof. Payments shall be directed to: 16 17 18 City of San Bernardino Development Services Department, Public Works Division 300 North "D" Street San Bernardino, CA 92418 19 (b). The rent will increase beginning 20 thereafter as follows: July 1. 2009 and every 10 years 21 22 23 24 25 26 27 28 1. As immediately as possible after the end of the initial ten (10) year period and each subsequent ten (10) year period thereafter, Lessor shall compute the increase, if any, in the cost of living for the preceding ten-year period based upon the Consumer Price Index for All Urban Consumers, for the Los Angeles-Anaheim-Riverside Area (1982-84=100) published by the United States Department of Labor's Bureau of Labor Statistics 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . Res 1999-35 . . 2. The Index number for the month and year of Ju1v 1. 1999 shall be the "Base Index Number" and the corresponding Index number for the month and year of Julv 1. 2009 and every ten years thereafter as applicable, shall be the "Current Index Number". 3. The Current Index Number shall be divided by the Base Index Number, and any resulting positive number shall be deemed to be the percentage of increase in the cost of living. 4. The percentage of increase multiplied by the annual rent payable for the proceeding ten-year period shall be the increase required section 4a hereof. 5. Utilities Lessee shall pay for all electricity, gas, water, telephone service, and all other services, meters and utilities, including service installation fees, repairs, maintenance and charges for such utilities during the term of this Lease. 6. Taxes/Possessorv Interest. Lessee agrees during the term of this Lease to pay, when due, all taxes and assessments that may be assessed or imposed upon the Lessee's possessory interest in and to the premises and upon personal property located on the premises. During Lessee's possession and use of the leased premises, should any taxes thereon be assessed against Lessor, Lessee agrees to indemnify Lessor thereon. Lessee agrees to, and shall defend, indemnify and hold harmless, Lessor from any and all liability for any such taxes due by virtue of tenant's leasehold improvements, equipment, furniture, fixtures, or other personal property. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REs 1999-3. . 7. Insurance. (a) Security. City reserves the right to demand at any time during the term of this Lease and any extensions thereof that the Lessee procure and maintain bonds from an acceptable surety, cash deposits, or other form of security in amounts and upon terms deemed sufficient by City in its sole discretion to protect City from any and all exposure to loss or liability. (b) Coverage During term. Lessee agrees to procure and maintain in force during the term of this Lease and any extensions there in policies of insurance as follows: Worker's Compensation insurance, as required by law in the State of California, and Employer's Liability Insurance (including diseases coverage) in the amount not less than $1,000,000.00 per occurrence. This insurance shall also waive all right to subrogation against City, its elected officials, officers, employees, representatives and agents. General Commercial Liability insurance which shall include coverage for contractual liability, independent contractors, products and completed operations, broad form property damage, explosions, collapse, underground hazards, and acts or omissions committed by the Lessee in the course of performing any activities on the property. This insurance shall be on comprehensive occurrence basis form with a standard (ISO CG 2010 or equivalent). City shall be named as an additional insured, and the limit for this insurance shall be not less than $1,000,000.00 per occurrence, combined single limit for bodily injury and property damage. Real Property insurance and fire lega11iabi1ity covering any and all buildings, improvements, and property against loss or damage by fire, lighting, extended 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35 . . coverage, vandalism, malicious mischief, and earthquake. This insurance shall have an endorsement naming the City as an additional insured and with a standard cross liability clause and endorsement (ISO CG 2010 or equivalent). The limit amount for this insurance shall be not less than $1,000,000.00 per occurrence, combined single limit for bodily injury and property damage. Environmental Liability insurance to the extent available by industry standards with an endorsement naming City as an additional insured and with a standard cross liability clause and endorsement (ISO CG 2010 or equivalent). The limit amount for this insurance shall be not less than $1,000,000,00 per occurrence, combined single limit per occurrence. (c) Suoo1emental Coverage During Construction. During the period of any construction activities on the property, Lessee shall procure and maintain, or cause its contractors or subcontractors to furnish, the following policies of insurance in addition to the requirements set forth above: Builders All-Risk insurance shall be maintained to cover the property and all work performed thereon against loss or damage until.completion. This insurance shall be on a comprehensive occurrence basis form with a standard cross liability clause and endorsement (ISO CG 2010 or equivalent), for broad form property damage. City shall be named as an additional insured, and the limit for this insurance shall not be less than the replacement cost of all property thereon, per occurrence, combined single limit. Automobile Liability insurance shall be maintained with coverage for any vehicle including those owned, leased, rented or borrowed. This insurance shall have 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-3. . an endorsement naming the City as an additional insured and with a standard cross liability clause and endorsement (ISO CG 2010 or equivalent). The limit amount for this insurance shall be not less than $1,000,000.00 per occurrence, combined single limit for bodily injury and property damage. Professional liability insurance shall be maintained with coverage for wrongful acts, errors, or omissions committed by any of the lessee's contractors and/or subcontractors in the course of performing any activities on the property. This insurance shall include coverage for liability assumed under this agreement when such liability is caused by the wrongful acts, errors, or omissions of said contractors and/or subcontractors. The limit for this insurance shall be not less than $1,000,000.00 per claim. (d) Policy Requirements. City shall not be liable or responsible for the payment of any premiums or assessments for the insurance coverage required under this lease. Insurers shall have at least an Al5 policyholder's rating in accordance with the current Best's Key Rating Guide or equivalent. In addition, any and all insurers must be authorized to conduct business in the State Of California, as evidenced by a listing in the official publication of the Department oflnsurance of the State of California. Lessee shall provide to Lessor a certificate of insurance and an additional insured endorsement which provides: (1) The City of San Bernardino named as an additional insured. (2) The insurance company name, policy number, period of coverage, and the amount of insurance. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35 , . . (3) That the Real Property Section of the Department of Development Services the City of San Bernardino must be given notice in writing at least thirty (30) days prior to cancellation, material change, or refusal to renew the policy. (4) That Lessee's insurance will be primary to any coverage the City of San Bernardino may have in effect. Lessee agrees that, if such insurance polices are not kept in force during the term of the lease and any extension thereof, Lessor may have the option to immediately declare this Lease in default, and to terminate said Lease. 8. Maintenance and Ooeration The Lessee is familiar with the leased premises and has knowledge of the present conditions that exist thereon. Lessee shall, at its own expense, maintain the leased premises and all improvements thereon in good order, condition, and repair. Lessee shall provide or cause to be provided all security services, maintenance service, and repair service, which are required for the proper care and use of the premises. (a) Licenses. Lessee shall post in a prominent place and manner in the demised premises all business licenses, certificates, a copy of this Lease, and all permits that are required to do Lessee's business in the City of San Bernardino. (b) Vendors. Lessee shall not permit vendors to display wares, materials, or advertisements inside or outside the demised premises unless prior written permission is secured from Lessor and such written permission is posted in a prominent place and manner in the premises. 8 Res 1999-3. . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. Improvements Lessee shall not make, or suffer to be made, any alterations to the demised premises, or any part thereof, without the prior written consent of Lessor. Any and all improvements, repairs, and construction performed on the property by the Lessee or its employees, agents, contractors, consultants or sub contractors shall comply with the applicable rules, regulations, laws, statutes, and standards of the City and any other entity with jurisdiction over the activities conducted thereon. No alteration of the property or construction of improvements thereon shall be permitted until the City has approved the complete plans and specifications therefore as prepared by an architect duly registered by the State of California. Any and all alterations and/or improvements made to the demised premises pursuant to this section, upon termination of this Lease, may remain as a part of the premises or be removed from the premises and the land returned to its previous state and at no cost or obligation to the Lessor, upon Lessor's approval. If the Lessor accepts the improvements, the Lessee shall deliver said improvements, structures to the Lessor in good condition and repair, reasonable wear and tear excepted, and free and clear of any and all liens and/or claims and hazardous materials or substances. 10. Make Alterations, Additions, or Chan!!es Required bv Law If, during the term of this Lease, any law, regulation, or rule requires that an alteration, addition, or other change be made to the demised premises, the parties agree as follows: (a) If the alterations, additions, or changes are required as a result of Lessee's use of the premises, Lessee will make them and bear all expense. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-3. . (b) If the alterations, additions, or changes are required as a result of the condition or nature of the premises at the time of execution of this Lease, and are not caused by use of the premises by Lessee, Lessor will make them and bear all expenses. 11. Defa ult In the event Lessee is in default in the payment ofrentals or other charges hereunder or is otherwise in breach of its covenants or obligations hereunder, and such default exists for a period of thirty days after written notice from Lessor to Lessee of such default, Lessor shall have the right and privilege ofterminating this Lease and declaring the same at an end, and of entering upon and taking possession of said premises, and shall have the remedies now or hereafter provided by law for recovery of rent, repossession of the premises and damages occasioned by such default. If such default should occur then Lessor shall have the right to take possession of and appropriate to itself without payment therefor, any property of Lessee or anyone claiming under it, then remaining on said premises. 12. InsDections Lessor, its agents, officers, or employees may enter upon the demised premises at such reasonable times during Lessor's normal business hours as it deems necessary for the purpose of inspection of the premises to determine whether the terms and conditions of this Lease are being performed and kept by Lessee. 13. Effect of Lessor's waiver. Lessor's waiver of breach of any term, covenant, or condition of this Lease is not a waiver of breach of any other, nor of any subsequent breach of the one waived. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-. . 14. Non- Discrimination. Lessee hereby covenants by and for itself, its successors, executors, administrators, and assigns, all persons under or through it, and this Lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, disability, sex, national origin, or ancestry, in the leasing, sub-leasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the Lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. 15. Assil!nments. Lessee shall not assign this lease or sublet the said premises or any part thereof without obtaining the prior written consent of the Lessor, which shall not be unreasonably withheld. 16. V aliditv. If anyone or more of the terms, provisions, promises, covenants, or conditions, of this Lease shall, to any extent, be adjudged invalid, unenforceable, void, or voidable for any reason whatsoever by a court of competent jurisdiction, each and all the remaining terms, provisions, promises, covenants, and conditions of this Lease shall not be affected thereby and shall be enforceable to the fullest extent permitted by law. II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-3. . 17. Lease ADDlicab1e to Successors. Etc. This Lease and the terms, covenants, and conditions hereof apply to and are binding on the successors, executors. administrators, and assigns of the parties hereto. 18. Lease Breached bv Lessee's ReceivershiD. Assil!nment for the Benefit of Creditors. Insolvencv. or BankruDtcv. Appointment of a receiver to take possession of Lessee's assets, Lessee's general assignment for benefit of creditors, or Lessee's insolvency or taking or suffering action under the Bankruptcy Act is a breach of this Lease and shall terminate same. 19. Eminent Domain. If the whole of the leased premises, or so much thereof as to render the remainder unusable for the purpose for which the same was leased, shall be taken under the power of eminent domain, then this Lease shall terminate as of the date possession shall be so taken. If less than the whole of the leased premises shall be taken under the power of eminent domain, and the remainder is usable for the leased purpose, then this Lease shall continue in full force and effect and shall not be terminated by virtue of such taking and the parties may waive the benefit of any law to the contrary, in which event there shall be partial abatement of the rent ' hereunder in an amount equivalent to the prorated use of the remaining premises. Any award made in eminent domain proceedings for the taking of damaging of the leased premises in whole or in part shall be paid to the Lessor (together with any other money which shall be or may be made available for such purpose), except such funds which are directly attributed to the improvements constructed on the property and the Lessee's moving expenses. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-3. . 20. Indemnification and Hold Harmless. Lessee shall indemnify and hold harmless Lessor, its elective and appointive boards, commissions, officers, agents, and employees from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Lessee's operations under this Lease, whether such operations be by Lessee or by anyone or more persons directly or indirectly employed by or acting as agent for Lessee. Lessee agrees to and shall defend Lessor and its elective and appointive boards, commissions, officers, agents, and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of Lessee's operations under this Lease. 21. Amendment. This Lease may be amended or modified only by written agreement signed by both parties hereto. Failure on the part of either party to enforce any provision of this Lease shall not be construed as a waiver of the right to compel enforcement of such provision or provisions, nor act to release any party from its obligations under this Lease. 22. Notices. All notices given in connection with this Lease shall be in writing and delivered in person or sent by certified mail, postage prepaid, addressed as follows: LESSOR City of San Bernardino Development Services Department Real Property Section 300 North "D" Street San Bernardino, CA 92418 LESSEE California Golf Holdings, LLC P.O. Box 458 Patton, Ca. 92369 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35. . 23. Time of Essence. Time is of the essence herein. 24. Compliance with Laws. Lessee shall not violate, nor allow the violation of, any law of the City, State or Federal governments or rules of the City, in conducting its operations under this Lease. 25. Option to Renew At the expiration of this thirty (30) year lease, if Lessee has fully performed all of the terms, conditions, and covenants of this Lease for the lease term, then Lessee shall have the option to renew this Lease for four (4) separate options, each of which shall be an additional five (5) year term in duration for a maximum period of twenty (20) years. Said renewal shall be at a total rent to be negotiated by the Lessor and Lessee, but at a rate no less than the rent payment at the end of the thirty (30) year term, in addition to a five percent (5%) increase. To exercise the option to renew, Lessee must give Lessor written notice of Lessee's intention to do so at least one hundred-twenty (120) days prior to the expiration of this Lease. 26. Covenants There are no covenants or warranties other than those expressed in this Lease. 27. Entire Al!:reement. This agreement constitutes the entire Agreement between the parties and may be modified only by further written agreement between parties. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Res 1999-35. . 28. Severabilitv In the event this agreement, or any portion thereof, should be determined to be void, illegal or improper, for any reason whatever, all other portions of the agreement shall remain fully enforceable to the extent possible after such determinations. 29. Attornevs' Fees. The prevailing party in any legal action to enforce or interpret any provision of this Lease will be entitled to recover from the losing party all attorneys' fees, court costs, and necessary disbursements in connection with that action. The costs, salary, and expenses of the City Attorney, and members of his office, in connection with that action shall be considered as attorneys' fees for the purpose of this Lease. 15 , Res 1999-35 . . 1 IN WITNESS WHEREOF, the parties have executed this Lease on the day and year 2 set forth at the beginning of this Lease. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Approved as to form and legal content CITY OF SAN BERNARDINO By JUDITH Vi ATTEST: BY~~ RA L CLARK, City Clerk CALIFORNIA GOLF HOLDINGS, LLC By r{n':;:~7~ By: James F. Penman, City Att[ey By: ~ t--l!:~ ( /~ 16 , Res 1999-3_ \ \ i \.~\ \ \ \ \ \ I I I I II I I I I I I I I 20' PROPOSED GOLF CART PATH i)1 J - I f I -If I I I", ~ : I I I I , I : I J r I I I I I AREA LEASED 29,000 SQ. FT. +/- l " , r''''.' ... I I ' : 1:1 , " 'Iii , , , , I i I ' I : I ' 1 : (;0 II, N []!I~ I ;; rw) I " f ' 'I' I I 'I i ~ I J ----___:~_..J /,' - I VACANT LOT I , , , I I I , :Ai it- "4'" 1 ~I "- O. ~ .,J - - r HIGHLAND AVENUE I , '. ! 1~1 JOI ~, I I , . I I f- W 0::: f- U') W o Z <C n:: o EXHIBIT A SCALE: 1" = 100' ();s State of California . Department of General Services . Gray Davis, Governor REAL ESTATE SERVICES DIVISION Professional Services Branch 400 R Street, Suite 5000 . Sacramento, California 95814-6280 January 27, 1999 Bernard Castro, Real Property Specialist City of San Bernardino Development Services Department Public Works Division 300 North D Street San Bernardino, CA 92418 Dear Mr. Castro: ESTOPPEL LETTER The State of California provides the following information concerning the property conveyed to the City of San Bernardino, located at 3398 East Highland Avenue, San Bernardino, California and as further described on the Quitclaim Deed dated July 12, 1968 and recorded July 25, 1968, San Bernardino County, Book 7065 Page 990 and 991. The granting of a lease for the purpose of a golf cart path and cart storage and maintenance area, on a portion of the above mentioned property, is not deemed by the State of California as a violation of the restrictive covenants of the Quitclaim Deed. If you have any questions, please call me at (916) 445-1359. Sincerely, {1,V\-&jY )~~A~ CAROLYN MOMSEN Staff Real Estate Officer CM :cm'p:patton:estopJtr EXHIBIT B File No. 15.06-145