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HomeMy WebLinkAboutCDC/2005-18 RESOLUTION NO. CDC/2005-18 5 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE LEASE OF CERTAIN REAL PROPERTY BY THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO THE YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF GREATER SAN BERNARDINO, INC., AND AUTHORIZING THE AGENCY EXECUTIVE DIRECTOR TO EXECUTE THE LEASE AGREEMENT BETWEEN THE AGENCY AND THE YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF GREATER SAN BERNARDINO, INC. (567 NORTH SIERRA WAY, SAN BERNARDINO, CALIFORNIA) 2 3 4 6 7 8 WHEREAS, the Community Development Commission of the City of San Bernardino 9 (the "Commission") is the governing board of the Redevelopment Agency of the City of San 10 Bernardino (the "Agency"); and 11 WHEREAS, the Agency Property is located at 567 North Sierra Way, San Bernardino, 12 California (APN: 0135-061-19) within the Central City East Redevelopment Project Area and 13 is improved with an approximately 24,000 square-foot building; and 14 WHEREAS, the Young Women's Christian Association of Greater San Bernardino, 15 Inc., (the "Lessee"), has offered to lease a portion (approximately 12,370 square feet) of the 16 Agency Property for $1.00 per annum and to undertake certain other covenants and 17 performance obligations and to incur other financial commitments which together shall provide 18 additional consideration to the Agency for the lease of the Agency Property to the Lessee as 19 described below; and 20 WHEREAS, the Agency intends to enter into a Lease Agreement (the "Lease") 21 pursuant to which the Agency proposes to lease a portion of the Agency Property to the Lessee 22 for $1.00 per annum in addition to the commitments of the Lessee to undertake certain 23 programs and community services and activities for the benefit of the Agency for which the 24 total cost of such programs and community services and activities exceeds the fair rental value 25 of the Agency Property; and P:\Agendas\Rcsolutions\Resolutions\2005\05-05-16 YWCA CDC Resot,doc WHEREAS, pursuant to Section 15301 of the CEQA Guideline (Class I), the lease of a 2 part of the Agency Property, as identified in the Lease, is a Class I categorical exemption under 3 the CEQA Guidelines as there will be no expansion of the use of the Agency Property by the 4 Lessee because the building is already in existence and no further development is needed or 5 contemplated; and 6 WHEREAS, disposition of a portion of the Agency Property to the Lessee is consistent 7 with the Central City East Redevelopment Plan and will assist in the elimination of blight in 8 the Central City East Redevelopment Project Area; and 9 WHEREAS, it is appropriate for the Commission to approve the disposition of a 10 portion ofthe Agency Property to the Lessee as set forth in the Lease and this Resolution. 11 NOW, THEREFORE, THE COMMUNTIY DEVELOPMENT COMMISSION OF THE 12 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS 13 FOLLOWS: 14 Section 1. This Resolution is adopted in furtherance of the provisions of Health & 15 Safety Code Section 33433, which requires the preparation and the making available for public 16 inspection of a report summarizing the financial impacts of certain real estate transactions 17 ("Summary Report"). Said Summary Report is attached hereto as Exhibit "A". Health & Safety 18 Code Section 33433(b) further requires that certain findings be made which are set forth herein 19 based upon the Summary Report and the Staff Report as presented to the Community 20 Development Commission at the time of adoption of this Resolution. 21 Section 2. The Community Development Commission has conducted a full and fair 22 public hearing regarding the disposition of a portion of the Agency Property pursuant to the 23 terms and conditions of the Lease. The total value and consideration to be realized by the 24 Agency under the Lease for the disposition of a portion of the Agency Property is less than the 25 fair market value of the Agency Property, determined at its highest and best use in accordance 2 P:\Agendas\Resolutions\Resolutions\200S\05-05-16 YWCA CDC Resol doc with the Lease and the Redevelopment Plan. The Community Development Commission 2 hereby approves the disposition of a portion of the Agency Property on the terms set forth in the 3 Lease for the amount of the consideration as set forth in the Summary Report. The Summary 4 Report sets forth the facts and circumstances identified as applicable for the lease of a portion of 5 the Agency Property for the annual consideration as further discussed in the Summary Report 6 which consists of the undertaking of certain programs and community services and activities 7 which are of benefit to the Agency and the Central City East Redevelopment Project Area and 8 which will eliminate blight within said Redevelopment Project Area. The Community 9 Development Commission hereby approves the Lease in the form as presented at the meeting at 10 which this Resolution is adopted. The Executive Director of the Agency is hereby authorized 11 and directed to execute the Lease on behalf of the Agency, together with such technical and 12 non-material conforming changes as may be recommended by Agency Counsel. The Lease as 13 hereby approved shall have no force or effect until it has been executed by the Executive 14 Director of the Agency. 15 Section 3. The Community Development Commission finds and determines, base 16 upon the facts set forth in the Recitals and Section 2 above and the additional facts stated in, an 17 based upon the information as further provided in, both the Summary Report and the Staf 18 Report as presented to the Community Development Commission, that (i) the lease of th 19 Agency Property as described in the Lease will assist in the elimination of blight in Central Cit 20 East Redevelopment Project Area, and (ii) the consideration to be remitted by the Lessee throu 21 the undertaking of the programs and community services and activities required of the Lessee b 22 the Agency pursuant to the covenants and other performance obligations assumed by the Lesse 23 pursuant to the Lease, together with the remittance of the annual rental amount, is not less th 24 the fair reuse value for the Agency Property when determined at the use and with the covenant 25 and conditions in the form of property maintenance obligations for the Agency Property all a 3 P:\Agendas\Resolutions\Resolutions\2005\05-05-16 YWCA CDC Reso I_doc further required by the terms and provisions of the Lease and which have been accepted by th 2 Lessee. The Community Development Commission finds, based upon the evidence and othe 3 facts submitted to this Community Development Commission at and prior to the time of adoptio 4 of this Resolution, that the Lease for a portion of the Agency Property and the performanc 5 obligations set forth there to be undertaken by the Agency and the Lessee are consistent with th 6 most recent Implementation Plan as adopted by the Agency pursuant to Health & Safety Cod 7 Section 33490. 8 Section 4. The Community Development Commission finds that the disposition of 9 the real property as contemplated under the Lease will not expand the existing use of the 10 Agency Property and no further environmental review of the disposition of the Agency Property 11 is necessary as provided for in CEQA Guidelines Section 15301. The Executive Director of the 12 Agency is hereby authorized and directed to prepare and file with the County Clerk, the 13 appropriate form of a Notice of Exemption in connection with the adoption of this Resolution. The Resolution shall become effective immediately upon its adoption. 14 Section 5. 15 /II 16 /II 17 /II 18 /II 19 /II 20 /II 21 /II 22 /II /II 23 /II 24 /II 25 1/1 P:\Agendas\Resolutions\Resolutions\200.5\05-05-16 YWCA CDC Resol.doc 4 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE LEASE OF CERTAIN REAL PROPERTY BY THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO THE YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF GREATER SAN BERNARDINO, INC., AND AUTHORIZING THE AGENCY EXECUTIVE DIRECTOR TO EXECUTE THE LEASE AGREEMENT BETWEEN THE AGENCY AND THE YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF GREATER SAN BERNARDINO, INC. (567 NORTH SIERRA WAY, SAN BERNARDINO, CALIFORNIA) 3 4 5 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the joint Community Development Commission of the City of San Bernardino at a regular 8 9 meeting thereof, held on the 16th day of May , 2005, by the following vote to wit: 10 Commission Members: 11 ESTRADA 12 LONGVILLE 13 MCGINNIS 14 DERRY KELLEY 15 JOHNSON 16 MC CAMMACK Ayes Navs Abstain Absent x x x x x x X 17 18 19 20 The foregoing resolution is hereby approved this /i Id day of 22 May ,2005. 21 23 24 Approved as to form and Legal Content: 25 By. ~~tJ~) Agency C nsel 5 P:\Agendas\Rc:solutioRs\ResolutKms\2005\05-05-16 YWCA CDC Reso I_doc EXHIBIT "A" SUMMARY REPORT PURSUANT TO HEALTH AND SAFETY CODE SECTION 33433 OF THE CALIFORNIA COMMUNITY REDEVELOPMENT LAW ON A LEASE AGREEMENT BY AND BETWEEN THE SAN BERNARDINO REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND THE YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF GREATER SAN BERNARDINO, INC. -CENTRAL CITY EAST REDEVELOPMENT PROJECT AREA INTRODUCTION This Summary Report has been prepared for the San Bernardino Redevelopment Agency of the City of San Bernardino (the "Agency") pursuant to Section 33433 of the California Health and Safety Code. This Summary Report sets forth certain details of the proposed Lease Agreement (the "Lease") between the Agency and the Young Women's Christian Association of Greater San Bernardino, Inc., (the "YWCA" or the "Lessee") regarding the lease of a portion of the building situated at 567 North Sierra Way in the City of San Bernardino (the "Property"). This Summary Report is organized into the following six (6) sections: I. Salient Points of the Proposed Lease Al!reement: This section includes a description of the project and the major responsibilities to be assumed by the Agency and the Lessee. II. Cost of the Lease Al!reement to the Al!ency: This section outlines the proposed Lease costs to the Agency, if any. III. Estimated Value of the Interests to be Conveyed by the Lease Determined at the Hil!hest and Best Use Permitted Under the Redevelopment Plan: This section summarizes the value of the portion of the building to be conveyed by the Lease to the Lessee at the highest use permitted. IV. Estimated Reuse Value of the Interests to be Leased Determined at the Required Use and with the Conditions. Covenants and Development Costs Required by the Proposed Lease: This section summarizes the payments, which the lessee will be required to make during the term of the lease. If the rental amount is less than the fair market value of the interest to be leased, determined at the highest and best use consistent with the redevelopment plan, the Agency shall provide as part of the summary an explanation of the reasons for the difference. V. Blil!ht Alleviation: This section describes the existing blighting conditions in and around the building that is the subject of the Lease, and an explanation of how the proposed Lease will assist in alleviating the blighting conditions. VI. Conformance with the AB 1290 Implementation Plan: This section identifies how the proposed Lease will result in a development activity that fulfills goals and objectives established in the Agency's AB 1290 Five-Year Implementation Plan. I I. SALIENT POINTS OF THE PROPOSED LEASE AGREEMENT A. Description of the Proposed Project The purpose of the proposed Lease Agreement is to effect the operation of a community service center in the Seccombe Lake area. Based on the proposed Lease Agreement with the YWCA, the proposed project would enable the YWCA, a social service organization, to continue to provide community services to downtown area residents. The Agency owns the Property and will lease a portion of the building (approximately 12,370 sq. ft.) of such property to the YWCA through the Lease Agreement. The Property is located within the Central City East Redevelopment Project Area and was acquired by the Agency in order to guarantee a continuing presence of the YWCA in the downtown area, to provide social service programs for project area residents, and as part of an overall strategy to preserve a deteriorating neighborhood. B. Agency Responsibilities 1. Enter into the Lease Agreement with the YWCA for a period of five (5) years with three (3) separate 5-year options. C. YWCA Responsibilities 1. Enter into the Lease Agreement with the Agency for a period of five (5) years with three (3) separate 5-year options. 2. Pay to the Agency initial rent of$l per annum. 3. Assume all responsibilities for property maintenance and management. 4. Provide property and liability insurance. 5. Continue to use the buildings for community services as noted in Section IV of this Report. The YWCA does not have purchase option rights under the Lease. II. COST OF THE LEASE AGREEMENT TO THE AGENCY The costs of the lease to the Agency is nominal since the Lessee has agreed to incur all costs associated with the maintenance, management, and operations of a portion of the Property and to fund all social and community programs. III. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED OR LEASED, DETERMINED AT THE HIGHEST AND BEST USES PERMITTED UNDER THE REDEVELOPMENT PLAN. Given the location and current use characteristics of the Property, public and recreational uses represents the highest and best use of the Property. Based on current market rents, the Property could potentially be leased at the rate of $.50 per square foot. Consequently, based on the market rents, and using one-half of the square footage of the building (12,370 sq. ft.) it is estimated that the portion to be leased to the Lessee under the Lease is $6,189 per month, or $74,220 yearly. 2 P:\Agendas\Agenda Anachments\Sunvnary Rcports\200S\OS-OS-16 YWCA Summary Rcponl.doc IV. ESTIMATED REUSE VALUE OF THE INTERESTS TO BE LEASED DETERMINED AT THE REQUIRED USE AND WITH THE CONDITIONS, COVENANTS AND DEVELOPMENT COSTS REQUIRED BY THE LEASE AGREEMENT As stated above, the current market rental value of a portion of the subject Property is estimated at $74,220 per year. However, under the Lease Agreement, the Lessee is restricted to using only one- half of the Property strictly for community and social programs that benefit the Central East Redevelopment Project Area, as well as other surrounding neighborhoods. The Lessee, YWCA of San Bernardino, is a community based organization with a history of 90 years of providing services to the San Bernardino area. These community and social programs include, but are not limited to: Heigh Ho Preschool & Day Care, a program that provides activities that enhance children's social, emotional, physical and cognitive development and promotion of positive self-image; the Bridges Computer Center, focusing primarily on the need for women and young girls to have training necessary for economic advancement; the YW Day Camp Program providing after school and off track care for the community's youth, the Parent & Anger Management Training Program, which provides court mandated training for parents who are in need of parenting skills and works to reduce child abuse and domestic violence; and last be not least, the Parents and Children Together program, which provides supervised visitations referrals from the San Bernardino County Family Court Services. The programs are estimated to cost the Lessee in excess of $950,000 per year. Hence, the cost of the services provided to the community at large, far exceed the market rent that the Agency could potentially derive from leasing a portion of the Property. Moreover, the Lessee has agreed to incur all expenses with the maintenance and management of the leased area pursuant to the Lease, which is not included in the cost of operation of such community programs. V. BLIGHT ALLEVIATION The YWCA will lease a portion of the Agency Property strictly for the purpose of undertaking implementation of community programs, which said programs are intended to provide much needed services to benefit residents of the Central City East Redevelopment Project Area. Furthermore, the Lease is intended to insure that the YWCA continues to remain on the premises for a specific period of time, and to provide these programs to Project Area residents and residents at large, thus eliminating the possibility of another vacant and blighted building within the Project Area. VI. CONFORMANCE WITH THE AB 1290 IMPLEMENTATION PLAN The Five-Year Implementation Plan adopted by the Agency contains several broad operational goals and objectives. Among these are the following: . Eliminate blighting influences including deteriorating buildings, uneconomic land uses, obsolete structures, and other environmental, economic, and social deficiencies. . Improve the appearance of existing buildings, streets, parking areas and other facilities. . To facilitate land assembly to prevent piecemeal development that would leave economic potential underachieved. 3 P:\Agendas\Agenda Auachmcnls\Summary Repons\2005\OS.OS-16 YWCA Summary Report I_doc · To re-plan, redesign and develop underdeveloped areas that are stagnant or improperly utilized. · To encourage cooperation and participation of residents, businesspersons, public agencies and community organizations in revitalizing the area. The proposed Agreement Lease will assist the Agency in meeting the objectives and goals of its Five- Y ear Implementation Plan in the following way: 1. The execution of the Lease Agreement with the YWCA will continue the redevelopment activities of providing public programs and community programs within an existing Agency designated redevelopment project area services. Based upon the preceding factors, the proposed Lease is consistent with the adopted Five-Year Implementation Plan. 4 P. \Agcndas\Agenda Attac:hments\Surrmary Repons\200S\OS-OS-16 YWCA Summary Rq:x>nl.doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND THE YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF GREATER SAN BERNARDINO, INC. LEASE 1. PARTIES. THIS LEASE AGREEMENT is made and entered into this 16th day of May 2005 (this "Lease"), by and between the Redevelopment Agency of the City of San Bernardino (hereinafter referred to as "Landlord") and the Young Women's Christian Association of Greater San Bernardino, Inc. (hereinafter referred to as "Tenant"). 2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, on the terms and conditions hereafter set forth a portion of that certain real property and a portion of the building and other improvements located thereon situated in the City of San Bernardino, County of San Bernardino, State of California, commonly known as 567 North Sierra Way (said portions of real property are hereinafter called the "Premises" which is further set forth on a drawing of the Premises attached hereto and incorporated herein as if fully set forth herein, identified as Exhibit "A" illustrating that portion of the real property and the building thereon which are the subject of this Lease). 3. TERM. The term of this Lease shall be for a period of not less than five (5) years at a rate of $1.00 per year, commencing on April I, 2005, and continuing thereafter through and including March 31, 2010 ("Initial Term"). Landlord gives Tenant the option to extend the term of this Lease on the same provisions and conditions for three (3) separate five (5) year periods ("Extended Term") following expiration of the Initial Term, by Tenant giving written notice of its intention to exercise each such option to extend to Landlord within not less than sixty (60) days prior to the expiration of the preceding term. Tenant understands and agrees that Landlord or Tenant may terminate this Lease at any time at Tenant and Landlord's discretion, as applicable. In the event that this Lease is terminated by Landlord or Tenant, a notice of termination of Lease shall provide Tenant not less than ninety (90) days' written notice prior to the termination date established by such notice to provide Tenant with adequate time to vacate the Premises. Tenant recognizes and agrees that no relocation payments of any nature shall be payable by Landlord to Tenant under any circumstances upon any termination or expiration or non-renewal of this Lease either by Landlord or by Tenant due to the facts of the situation whereby Landlord purchased the building in which the Premises are located in an all cash transaction from Tenant in an effort to assist Tenant in the reorganization of its prior financial situation. 4820-7387-6992.1 Page 1 ofl 0 P:\Agcndas\Agenda A.rt.achmc:RlJ\Agrnu-Amc:nd 2005105-oS-16 YWCA Lcuc: AgrccmenlI ,dlx 4. RENT. Tenant shall pay Landlord as rent for the Premises the foIlowing sums per month, in advance on the anniversary date of this Lease for each year during the Initial Term and any Extended Term of this Lease. During the Initial Term of this Lease, the sum of One Dollar ($1.00) per year shall be payable as rent. Rent for any period during the Initial Term or the Extended Term of this Lease shall be deemed to be for the entire year with no reductions or credits in the event actual occupancy is for a period less than such one-year period for which rent was paid. Rent shall be payable without notice or demand and without any deduction, off-set or abatement in lawful money of the United States to the Landlord at the address stated herein for notices or to such other persons or such other places as the Landlord may designate to Tenant in writing. 5. SECURITY DEPOSIT. Landlord and Tenant agree that any requirement for a Security Deposit is hereby waived by Landlord. 6. USE. Tenant shall use the Premises only for conducting business related to programs and services to benefit youths and adults in downtown San Bernardino and the surrounding areas, and for no other purpose without the Landlord's prior written consent at the sole discretion of the Landlord. Tenant shall not do, bring or keep anything in or about the Premises that will cause a cancellation of any insurance covering the Premises or the building in which the Premises are located. If the rate of any insurance carried by the Landlord is increased as a result of Tenant's use, Tenant shall pay to Landlord within ten (10) days after written demand from Landlord, the amount of any such increase. Tenant shall comply with all laws concerning the Premises and Tenant's use of the Premises, including without limitation, the obligation at Tenant's cost to alter, maintain, or restore the Premises in compliance and conformity with all laws relating to the condition, use, or occupancy of the Premises by Tenant during the term of this Lease. Tenant shall not use or permit the use of the Premises in any manner that wiIl tend to create waste or a nuisance or, if there shall be more than one tenant of the building containing the Premises, which shall be unreasonably disturb any other tenant within the remainder portion of the building wherein the Premises are located. Tenant hereby accepts the Premises in their "as-is" condition existing as of the date that Tenant possesses the Premises, subject to all applicable zoning, municipal, county and state laws, ordinances and to all matters disclosed thereby. Tenant hereby acknowledges that neither the Landlord nor the Landlord's agent has made any representation or warranty to Tenant as to the suitability of the Premises for the conduct of Tenant's business. 7. UTILITIES. Tenant will pay for all water, gas, heat, light, and power and shall arrange for and pay for all separate utility meters as may be required by the appropriate utility providers. Tenant shall pay for telephone and other utility services supplied to the Premises together with any taxes thereon and for all connection charges. 4820-7387-6992.1 2 of 10 P:IAICIlcWIAJcndI ArtIdlmerlls\ASrmb-Amend 2005'05.05-16 YWCA Lcue AJfUlTIC"tl.doc: 8. MAINTENANCE AND REPAIRS. Tenant shall be responsible for the maintenance of the Premises. Except as provided in Article 9, and except for damage caused by any negligent or intentional act or omission of Tenant, Tenant's agents, employees, or invitees, Landlord as its sole cost and expense shall keep in good condition and repair the foundations, exterior walls, and exterior roof of the Premises. Landlord shall also maintain the unexposed electrical, heating and air conditioning systems, plumbing and sewage systems including, without limitation, those improvements that are a part of the Premises or of which the Premises are a part. 9. ALTERATIONS AND ADDITIONS. a. Tenant shall not, without the Landlord's prior written consent, make any alterations, improvements, or additions in or about the Premises except for non-structural work, which does not exceed $1,000.00 in cost. As a condition to giving any such consent, the Landlord may require the Tenant to remove any such alterations, improvements, or additions at the expiration of the final term of this Lease, and to restore the Premises to their prior condition by giving Tenant thirty (30) days' written notice prior to the expiration of the applicable Initial Term or the Extended Term that Landlord requires Tenant to remove any such alterations, improvements, or additions that Tenant has made to the Premises. If Landlord so elects, Tenant at its sole cost shall restore the Premises to the condition designated by Landlord in its election before the last day of the then applicable term of this Lease. b. Tenant shall not permit any mechanic's liens or materialman's liens to be levied against the Premises for any labor or material furnished to Tenant or claimed to have been furnished to Tenant or Tenant's agents or contractors in connection with work of any character performed or claimed to have been performed on the Premises by or at the direction of Tenant. Tenant shall have the right to assess the validity of any such lien if, immediately on demand by Landlord, Tenant procures and records a lien release bond meeting the requirements of California Civil Code Section 3143 and shall provide for the payment of any sum that the claimant may recover on the claim (together with the costs of suit, it if is recovered in the action). c. Unless the Landlord requires their removal as set forth above, all alterations, improvements or additions which are made on the Premises by the Tenant shall become the property of the Landlord and remain upon and be surrendered with the Premises at the expiration of the Initial Term or any Extended Term, as applicable. Notwithstanding the provisions of this paragraph, Tenant's trade fixture, furniture, equipment and other machinery, other than that which is affixed to the Premises so that it cannot be removed without material or structural damage to the Premises, shall remain the property of the Tenant and removed by Tenant at the expiration of this Lease. 10. INSURANCE: INDEMNITY. a. Liability Insurance. Tenant, at its sole cost and expense, shall maintain during the term of this Lease public liability insurance with a liability limit of not less than One Million Dollars ($1,000,000.00), and property damage insurance of not less than Three Hundred Thousand Dollars ($300,000.00), insuring against all liability of Tenant and its authorized 4820-7387.{j992.1 3 of 10 P:\AaendalA.cnd8 Attachmenll\Apmrs-Amcnd 200S'DS.oS-16 YWCA lease Ap'eemenU.doc representatives arising out of and in connection with Tenant's use or occupancy of the Premises. Both public liability insurance and property damage insurance shall insure performance by Tenant of the indemnity provisions in Sub-paragraph (c) below, but the limits of such insurance shall not limit the liability of Tenant hereunder. Both Landlord and Tenant shall be named as additional insureds, and the policies shall contain cross-liability endorsements. If Tenant shall fail to procure and maintain such insurance the Landlord may, but shall not be required to, procure and maintain same at the expense of Tenant and the cost thereof, together with interest thereon at the rate of ten percent (10%) per annum, shall become due and payable as additional rental to Landlord together with Tenant's next rental installment. b. Waiver of Subrogation. Tenant and Landlord each waives any and all rights of recovery against the other, or against the officers, employees, agents, and representatives of the other, for loss of or damage to such waiving party or its property or the property of others under its control, where such loss or damage is insured against under any insurance policy in force at the time of such loss or damage. Each party shall cause each insurance policy obtained by it hereunder to provide that the insurance company waive all right of recovery by way of subrogation against either party in connection with any damage covered by any such policy. c. Hold Harmless. Tenant shall indemnify and hold Landlord harmless from and against any and all claims arising from Tenant's use or occupancy of the Premises or from the conduct of its business or from any activity, work, or things which may be permitted or suffered by Tenant in or about the Premises including all damages, costs, attorney's fees, expenses and liabilities incurred in the defense of any claim or action or proceeding arising therefrom. Except for Landlord's willful or grossly negligent conduct, Tenant hereby assumes all risk of damage to property or injury to person in or about the Premises from any cause, and Tenant hereby waives all claims in respect thereof against the Landlord. d. Exemption of Landlord from Liability. Except for Landlord's willful or grossly negligent conduct, Tenant hereby agrees that Landlord shall not be liable for any injury to Tenant's business or loss of income therefrom or for damage to the goods, wares, merchandise, or other property of Tenant, Tenant's employees, invitees, customers or any other person in or about the Premises; nor shall Landlord be liable for injury to the person or Tenant. Tenant's employees, agents, contractors, or invitees, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or from the air conditioning and heating units and electrical components thereof, or lighting fixtures, or from any other cause, whether such damage results from conditions arising upon the Premises or upon other portions of the building in which the Premises are a part, or from any other sources or places. Landlord shall not be liable to Tenant for any damages arising from any act or neglect of any other tenant, if any, of the building in which the Premises are located. 4820-738H992.1 4 of 10 P:\Agcndll\AlcndI Anxhmenll\AJ"fdJ-Amend 200S'D5-05-16 YWCA leuc A{vccmcnU.doc 11. ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily or by operation of law assign, transfer, sublet, mortgage, or otherwise transfer or encumber all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent which consent shall be given at the sole discretion of Landlord. Any attempted assignment, transfer; mortgage, encumbrance, or subletting without such consent shall be void and shall constitute a breach of this Lease. Tenant is a non-profit corporation, and any dissolution, merger, consolidation or other reorganization of Tenant, or the sale of other transfer or reorganization of a controlling interest in Tenant, or the sale of at least fifty-one percent (51 %) of the value of the assets of Tenant, shall be deemed a voluntary assignment. The phrase "controlling interest" means the control and the right to vote an amount equal to at least fifty-one percent of the total combined voting power of all parties and individuals entitled to vote for the election of directors of Tenant. Regardless of Landlord's consent, no subletting or assignment shall release Tenant or Tenant's obligation to pay rent and to perform all other obligations to be performed by Tenant hereunder for the Initial Term and any Extended Term of this Lease. The acceptance of rent by Landlord from any other person or party shall not be deemed a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. 12. DEFAULT. a. Events of Default. The occurrence of anyone or more of the following events shall constitute a default and a breach of this Lease by Tenant: I. Failure to pay rent when due, if the failure continues for five (5) days after written notice has been given by Landlord to Tenant. 11. Abandonment and vacation of the Premises (either failure to occupy the Premises for fourteen (14) consecutive calendar days or any cessation in the provision of the community services identified in Article 6 shall be deemed an abandonment and vacation). Landlord may, at its option, terminate the Tenant's right to possession of the Premises at any time. Acts of maintenance, efforts to rent the Premises, or the appointment of a receiver on Landlord's initiative to protect Landlord's interest in this Lease shall not constitute a termination of Tenant's right to possession. In the event of such termination, Landlord has the right to recover from Tenant: 1. The worth, at the time of the award, of the unpaid rent that had been earned at the time of the termination of this Lease; 11. The worth, at the time of the award, of the amount by which the unpaid rent that would have been earned after the date of the termination of the Lease, until the time of the award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; 4820-7387-6992.1 5 of 10 P:\Agendu\Agendl Attachmenm\Agnnts.Amcnd 2005\05-05-16 YWCA Lease Aarcemcntl.doc: 111. The worth, at the time of the award, of the amount by which the unpaid rent for the balance of the then applicable term of this Lease after the time of the award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; and IV. Any amount, including court costs, necessary to compensate Landlord for all detriment proximately caused by Tenant's default. "The worth at the time of the award", as used in (i) and (ii) of this paragraph shall be computed by allowing interest at the maximum rate an individual is permitted by law to charge. "The worth at the time of the award", as referred to in (iii) of this paragraph is to be computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent (I %). If Tenant is in default under the terms of this Lease, Landlord shalI have the additional right to have a receiver appointed to collect rent and conduct Tenant's business. Neither the filing of a petition for the appointment of a receiver nor the appointment itself shall constitute an election by Landlord to terminate this Lease. Landlord at any time after Tenant commits a default, may cure the default at Tenant's cost and expense. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid, and if paid at a later date, shall bear interest at the maximum rate an individual is permitted by law to charge from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant in whole. The sum as so determined, together with interest thereon, shall be considered additional rent and shall be payable in the manner as provided in this Lease. 13. . SIGNS. Tenant shalI not have the right to place, construct or maintain any sign, advertisement, awning, banner, or other exterior decorations on the building or other improvements that are a part of the Premises without Landlord's prior, written consent, which consent shall not be unreasonably withheld; provided, however, that all such signs shall comply with the City Development Code and all applicable zoning laws and such signs shall be subject to approval by the City of San Bernardino in the manner required under the City Municipal Code. 14. EARLY POSSESSION. Landlord has permitted Tenant to occupy the Premises prior to the commencement date of the Initial Term of this Lease in accordance with a prior sale and purchase agreement pursuant to which Landlord acquired fee title to the building in which the Premises are located and authorized Tenant to remain in the Premises pending the final execution and delivery of this Lease. Such early possession and occupancy shalI be subject to all the provisions of this Lease and said early possession and occupancy shall not advance or in any other manner affect the final termination date of this Lease whether upon the expiration of the Initial Term or any Extended Term, as applicable. 4820-7387-6992.1 6 of 10 P:\Aamda\A.endI AttKhmerus\AJITI'U-Ammd 200SIDS.QS-16 YWCA leIse Aarccmmll.doc 15. SUBORDINATION. This Lease, at Landlord's option, shall be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation for security now or hereafter placed upon the real property of which the Premises are a part and to all advances made on the security thereof and to all renewal, modifications, and extensions thereof. Not withstanding any such subordination, Tenant's right to quiet possession of the Premises shall not be disturbed if Tenant is not in default and so long as Tenant shall pay the rent and observe and perform all the other provisions of this Lease, unless this Lease is otherwise terminated pursuant to its terms. If any mortgagee, trustee, or ground lessor obtained by Landlord shall elect to have this Lease become subordinate to the lien of its mortgage or deed of trust or ground lease, and upon Landlord providing written notice thereof to Tenant, this Lease shall become and shall for all purposes be deemed subordinate to such mortgage, deed of trust or ground lease, whether this Lease is dated prior to or subsequent to the date of such mortgage, deed of trust or ground lease, or the date of recording thereof. Tenant agrees to execute any documents requiring to effect such subordination or, if requested by Landlord, to make this Lease prior to the lien of any mortgage, deed of trust, or ground lease, as the case may be, and failure of Tenant to so execute the appropriate documents within ten (10) days after written demand from Landlord does hereby make, constitute and irrevocably appoint Landlord as Tenant's attorney in fact and in Tenant's name, place and stead to do so. 16. SURRENDER. On the last day of the Initial Term or any Extended Term hereof, or on any sooner termination, Tenant shall surrender the Premises to Landlord in good condition, broom clean, ordinary wear and tear accepted. Tenant shall repair any damage to the Premises occasioned by its use thereof, or by the removal of Tenant's trade fixtures, furnishing and equipment, and such repair shall include, to the extent necessary under the circumstances, the patching and filling of holes and all repair of structural damage to the Premises and the portion of the building wherein the Premises are located. Tenant shall remove all of its personal property and fixtures on the Premises prior to the expiration of the Initial Term or any Extended Term of this Lease, as applicable, and if required by Landlord pursuant to Article 9(a) above, any alterations, improvements or additions made by Tenant to the Premises. If Tenant fails to surrender the Premises to Landlord on the expiration of the Lease as required by this paragraph, Tenant shall hold Landlord harmless from all damages resulting from Tenant's failure to surrender the Premises. 17. HOLDING OVER. If the Tenant, with the Landlord's consent, remains in possession of the Premises after the expiration or termination of the final term of this Lease, such possession by Tenant shall be deemed to be a tenancy from month-to-month at a rental in the amount of the last monthly rental plus all other charges payable hereunder, upon all the provisions of this Lease applicable to month-to-month tenancy. 18. BINDING ON SUCCESSORS AND ASSIGNS. The terms, conditions and covenants of this Lease shall be binding upon and shall inure to the benefit of each of the parties hereto, their heirs, personal representatives, successors and assigns. 4820-7387-6992.1 7 of 10 P:\ApMIaI\A8CftdI Attachmcnll\ApmlJ-Amcnd 2OOS'<J5-oS-16 YWCA Leuc: Asreemenll.dcx: 19. NOTICES. Whenever under this Lease a provision is made for any demand, notice or declaration of any kind, it shall be in writing and served either personally or sent by registered or certified United States mail, postage prepaid, or dispatched through other private courier or express delivery companies addressed at the addresses set forth below: TO LANDLORD AT: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attn.: Executive Director TO TENANT AT: YWCA 567 North Sierra Way San Bernardino, California 92401 Attn.: Christena H. Elshof, President Such notices shall be deemed to be received within forty-eight (48) hours from the time of mailing, if mailed as provided for in this paragraph, and upon receipt if personally served upon the other party or if dispatched through a private courier or express delivery company. 20. LANDLORD'S RIGHT TO INSPECTION. Landlord and Landlord's agents shall have the right to enter the Premises at all reasonable times for the purpose of inspecting same, showing the same to prospective purchasers or lenders, and making such alternation, repairs, improvements, or additions to the Premises or to the building of which the Premises are a part as Landlord may deem necessary or desirable. Landlord may at any time place on or about the Premises any ordinary "For Sale" signs and Landlord may at any time during the last one hundred twenty (120) days of the Initial Term and any Extended Term of this Lease for which no further extension has been exercised by Tenant, place on or about the Premises any ordinary "For Sale or Lease" signs, all without rebate of rent or liability to Tenant. 21. CHOICE OF LAW. This Lease shall be governed by the laws of the State of California. 22. ATTORNEY'S FEES. If either Landlord or Tenant becomes a party to any litigation or arbitration concerning this Lease, the Premises, or the building or other improvements in which the Premises are located, by reason of any act or omission of the other party or its authorized representative, and not by reason of any act or omission of the party that becomes a party to that litigation or any act or omission of its authorized representatives, the party that causes the other party to become involved in the litigation shall be liable to that party for reasonable attorney's fees and court costs incurred by it in the litigation. If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the non-prevailing party reasonable attorneys' fees and cost of suit. For the purposes of this Lease, the costs, salaries, and expenses of the City Attorney and members of his office shall be considered as 4820-7387-6992.1 8 of 10 P:\Apdu\Apnda Anachmenll\Aafmb-Amend 2005'05-05.16 YWCA Lcuc Agreemmtl.doc attorneys' fees to determine the amount of any payment or reimbursement of attorneys' fees to Landlord as may be appropriate pursuant to this Lease. 23. LANDLORD LIABILITY. The term "Landlord" as used in this Lease shall mean only the owner or owners at the time in question of the fee title to the Premises or any ground lessee's interest in a ground lease of the Premises, and 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 Landlord's obligations thereafter to be performed. The obligations contained in this Lease to be performed by Landlord shall be binding upon the Landlord's successors and assigns, only during their respective period of ownership. 24. WAIVERS. No waiver by Landlord of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Tenant of the same or any other provision. Landlord's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Landlord's consent to or approval of any subsequent act by Tenant. The acceptance of rent hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of any provision hereof, other than the failure of Tenant to pay the particular rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of its acceptance of such rent. 25. INCORPORATION OF PRIOR AGREEMENTS. 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 supercedes in its entirety all provisions contained in the prior sale agreement concerning the possession and occupancy of the building in which the Premises are located as previously executed by Landlord and Tenant which sale agreement provides for the transfer of fee title to said building from Tenant to Landlord. This Lease may be modified only in writing, and signed by the parties in interest at the time of such modification. . The parties hereto have executed this Lease on the date first above written. LANDLORD: TENANT: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO .) YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF GREATER SAN BERNARDINO, INC. 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