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CI-l J. OF .SAN BERNARD[ .0 - REQUL ;T FOR COUNCIL AC. iON
From:
Donald J. Burnett, Chief of Poli"'EctO.-_~ O{~~se Authorization For the Area C
C '5 lU 7P~l1ce Community Service Office at
Police lSa8 DE N\'~ W. Mill Street, Unit 106
D"tlt:
Date: November 17, 1988
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Synopsis of Previous Council action: In 1984 the Ci ty Counci 1 approved Reso 1 uti on #84-404,
authorizing a lease agreement with Mr. Willie Clark to rent office space at 2656 W. Foothill
Blvd. to be utilized as the Area C Police Community Service Office. This lease agreement was
extended through fiscal year 1985-1986 with the passing of Resolution #85-307 on August 5,
1985.
On September 8, 1986, the City Council extended the lease on a month-to-month basis pending
the evaluation of alternative Community Service Office locations.
Recommended motion:
ADOPT RESOLUTION.
Contact person: Robert W. Curtis. Lieutenant
Phone:
384-5776
Supporting data attached:
Yes
FUNDING REQUIREMENTS:
1. F.Y. 1988-89,
Amount: _ $2,570 Total
Ward: Thi rd Ward
$1200 lease + $1,370 moving costs
. Source: 001-214-53010/001-211-52020
Already approved in 1988/89
Finance:_~ZJ2
Co""~il Notes:
75-0262
Agenda Item No.
S,L
CI.~ I OF .SAN BERNARD[ .0 - REQU[lT FOR COUNCIL AC ]ON
STAFF REPORT
The Police Department, since 1984, has operated the Area C Community Service Office at
2656 W. Foothill Blvd.
In December, 1987, a study entitled, "An Analysis of Community Oriented Policing in the
City of San Bernardino" identified a need to evaluate the placement of the current Community
Service Offices. The study recommended that the relocation of the CSO should be based on
a site selection criteria which would include actual need, central location, optimal vis-
ibility, foot traffic, adequate parking, and convenience to the pu~lic. The current Area
C CSO located at 2656 W. Foothill Blvd. fails to meet this criteria with the exception of
adequate parking. The CSO is physically located in Area A and is situated at the extreme
western terminus of Area C. The location is inconvenient to the largest segment of the
area residents who reside in the central portion of the area command and to almost the
entire business community located in the central and southern portion. A survey of altern-
ative sites was conducted, and the K\'dk Korner complex at 1292 W. Mill Street was determined
to be the only location that met all of the site selection cr'fteria. The owner of the
Kwik Korner complex, Dick Churchwell was contacted and has agreed to lease a vacant 600
square foot office at a cost of $200 a. month for the remainder of fiscal year 1988-89 and at
a cost of $300 per month for the next two fiscal years.
The projected moving costs, listed below, are reasonable when spread across the periOd of
the lease. The monthly rent for the remainder of FY 1988-89 is identical to what is cur-
rently paid for the Foothill location. The monthly rate of $300 for the next two fiscal
years is below current market price and comparable for the Area F CSO.
PROJECTED MOVING COSTS
COST
$450
500
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215
ITEM
Business signs over office front and at sign post located at intersection.
Transfer and reinstall telephones.
Disconnect, reconnect electrical service.
200
$1,370
Moving, reinstalling computer system.
Moving, reinstalling alarm system.
TOTAL
The term of this lease will commence January 1, 1989.
In order to meet the beginning date of this lease and accomplish moving the
area Police Community Service Office from its present location prior to that
date, this matter must be heard on the December 19, 1988 Council Meeting
Supplemental Agenda.
75-0264
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1 RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A LEASE AGREEMENT FOR A POLICE COMMUNITY SERVICE
3 OFFICE FOR AREA C.
4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1.
The Mayor of the City 9f San Bernardino is
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hereby authorized and directed to execute on behalf of said City
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a lease agreement effective January 1, 1989 through June 30,
1991, with Richard K. and D. Marlene Churchwell for a Police
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Community Service Office for Area C, to be located at 1292 W.
Mill Street, Unit 106, San Bernardino.
A copy of said lease
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agreement is attached hereto marked Exhibit "A" and incorporated
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herein by reference as though fully set forth at length.
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I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof, held on the
day of
, 1988, by the following vote, to wit:
AYES:
Council Members
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NAYS:
ABSENT:
City Clerk
/ / / /
/ / / /
/ / / /
/ / / /
/ / / /
HE/dys 1
December 14, 1988
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Resolution . . . authorizing the execution of a lease agreement
for a Police Conum '.ty Service 07" '.ce for Area C.
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The foregoing resolution is hereby approved this
day
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of
, 1988.
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Evlyn Wilcox, Mayor
City of San B~rnardino
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Approved as to
form and Legal Content:
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JAMES F. PENMAN,
City Attorney
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By ~~ 1 ~"~c'----
y
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HE/dys
December 14, 1988
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COMMERCIAL LEASE
1. PARTIES. This Lease, dated, for reference purposes
only November 4, 1988, is made by and between RICHARD K.
CHURCHWELL and D. MARLENE CHURCHWELL, Trustees of the Churchwell
Family Trust, (herein called "Landlord") or assignee as
designated, and CITY OF SAN BERNARDINO, (herein called "Tenant").
2. PREMISES. Landlord does hereby lease~to Tenant and
Tenant hereby leases from Landlord that certain space (herein
called "Premises"), having dimensions of approximately 18' in
frontage and a depth of 37' (with an irregular entry) and
containing approximately 600 square feet of floor area. The
location and dimension of said Premises are delineated on Exhibit
"A" attached hereto and incorporated herein by reference. Said
Premises are located at 1292 W. Mill St., #106 in the City of San
Bernardino, County of San Bernardino, State of California.
Said Lease is subject to the items, covenants and
conditions herein set forth and the Tenant covenants as a
material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions by
it to be kept and performed. AN ~
3. USE. Tenant shall use the Premises as ~ area
community service office for the City of San Bernardino Police
Department and related uses. Tenant shall not use or permit the
premises to be used for any other purpose without the prior
written consent of Landlord which consent shall not be
unreasonably withheld.
4. TERM. This Lease shall commence on the Commencement
date and shall continue thereafter during the Lease Term
specified herein, unless sooner terminated as hereinafter
provided in this Lease.
4.A. The Commencement Date shall be January 1, 1989.
4.B. The Lease Term shall be a period of thirty (30)
months, commencing on the Commencement Date, thereafter
terminating on June 30, 1991.
5. MINIMUM RENT / SECURITY DEPOSIT
5.A. Tenant agrees to pay to Landlord as Minimum
Rent without notice or demand, the monthly sums as set forth
below:
First Six Months $200.00
Next Twenty-four Months$300.00
Rental paYments shall commence on the Commencement Date and shall
be paid thereafter, in advance, on or before the first day of
each and every successive calendar month thereafter during the
term hereof, except that the first month's rent shall be paid
upon the execution hereof. Rent for any period during the term
hereof which is for less than one (1) month shall be a prorated
portion of the monthly installments herein, based upon a thirty
(30) day month. Said rental shall be paid to Landlord, without
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deduction or offset, in lawful money of the United States of
America, at such place as Landlord may from time to time
designate in writing.
If said rent and adjustment as outlined in Paragraph 6.B are
not received by the Landlord by the first day of each month of
the term of the Lease, a late charge will be assessed as out
lined in Paragraph 33(ix) of this Lease.
S.B. There will be no security deposit required.
S.C. Minimum rent shall not include common area
expenses as set forth in paragraph 6. below.
6. ADDITIONAL CHARGES.
6.A. Adiustments.
I. In addition to the Minimum Rent provided in
Article S hereinabove, and commencing at the same time as Minimum
Rent commences, Tenant shall pay to Landlord the following items,
herein called Adjustments:
(a) All real estate taxes and insurance
premiums on the Premises, including land, building and
improvements thereon. Said real estate taxes shall include all
real estate taxes and assessments that are levied upon and/or
assessed against the Premises. Said insurance shall include all
insurance premiums for fire, extended coverage, liability, and
any other insurance that (i) Landlord deems necessary on the
Premises and (ii) insures risks found in similar commercial
shopping centers. Said taxes and insurance premiums for the
purpose of this provision shall be reasonably apportioned in
accordance with the total floor area of the Premises as it
relates to the total gross leasable floor area of the building or
buildings of which the Premises are a part, (provided however,
that if any tenants in said building or buildings pay taxes
directly to any taxing authority or carry their own insurance, as
may be provided in their leases, their square footage shall not
be deemed a part of the floor area.)
(b) That percent of the total cost of the
following items as Tenant's total floor area bears to the total
gross leasable floor area of the Shopping Center which is from
time to time completed as of the first day of each calendar
quarter.
(i) All real estate taxes including
assessments, all insurance costs, and all reasonable costs to
maintain repair and replace existing common areas, landscaping,
parking lots, sidewalks, driveways, and other areas used in
common by the tenants of the Shopping Center.
(ii) All costs to supervise and
administer said common areas, landscaping, parking lots,
sidewalks, driveways and other areas used in common by the
tenants or occupants of the Shopping Center. Said costs shall
include trash removal fees and such fees as may be paid to a
third party in connection with the same.
(iii) Any utilities surcharges, or
any other costs levied, assessed or imposed by, or at the
direction of, or resulting from statutes or regulations, or
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interpretations thereof, promulgated by any governmental
authority in connection with the use or occupancy of the premises
or the parking facilities serving the premises.
II. Upon commencement of rental Landlord shall
submit to Tenant a statement of the anticipated monthly
Adjustments for the period between such commencement and the
following January and Tenant shall pay same and all subsequent
monthly paYments concurrently with the paYment of Minimum Rent.
Tenant shall continue to make said monthly paYments until
notified by Landlord of a charge thereof. By M~ch I of each
year Landlord shall endeavor to give Tenant a statement showing
the total Adjustments for the Shopping Center for the prior
calendar year and Tenant's allocable share thereof, prorated from
the commencement of rental. In the event the total of the
monthly paYments which Tenant has made for the prior calendar
year be less than the Tenant's actual share of such Adjustments
then Tenant shall pay the difference in a lump sum within ten
days after receipt of such statement from Landlord and shall
concurrently pay the difference in monthly paYments made in the
then calendar year and the amount of monthly paYments which are
then calculated as monthly Adjustments based on the prior year's
experience. Any overpaYment by Tenant shall be credited towards
the monthly Adjustments next coming due. The actual Adjustments
for the prior year shall be used for purposes of calculating the
anticipated monthly Adjustments for the then current year with
actual determination of such Adjustments after each calendar year
as above provided; excepting that in any year which resurfacing
is contemplated Landlord shall be permitted to include the
anticipated cost of same as part of the estimated monthly
Adjustments. Even though the term has expired and Tenant has
vacated the premises, when the final determination is made of
Tenant's share of said Adjustments for the year in which this
Lease terminates. Tenant shall immediately pay any increase due
over the estimated Adjustments previously paid an, conversely,
any overpaYment made shall be immediately rebated by Landlord to
Tenant.
G.B. Rental Tax. Tenant shall pay to the Landlord
any and all excise, privilege or other taxes other than net
income and estate taxes levied or assessed by any federal, state
or local authority upon the rent received by the Landlord
hereunder. Tenant shall not bear business tax imposed upon the
Landlord by any government authority which is based or measured
as whole or part by amounts charged or received by the Landlord
from the Tenant under the Lease.
7. USES PROHIBITED. Tenant shall not do or permit
anything to be done in or about the Premises nor bring or keep
anything therein which will in any way increase the existing rate
of or affect any fire or other insurance upon the Building or any
of its contents, or cause a cancellation of any insurance policy
covering said Building or any part thereof or any of its
contents. Tenant shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or interfere
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with the rights of other tenants or occupants of the Building or
injure or annoy them or use or allow the Premises to be used for
any improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause, maintain or permit any nuisance in, on or
about the Premises. Tenant shall not commit or allow to be
committed any waste in or upon the Premises. Notwithstanding
anything to the contrary contained in this Lease, Tenant shall
not violate any exclusive arrangement to sell merchandise that
Landlord may have with any other Tenant. Tenant agrees not to
prepare or sell hot fried chicken or fry or bake-donut-related
products on the premises. If Tenant is found to be in violation
of said exclusive arrangement, such violation shall constitute an
event of default and breach of this Lease by Tenant.
8. COMPLIANCE WITH LAW. Tenant shall not use the
Premises, or permit anything to be done in or about the Premises,
which will in any way conflict with any law, statute, ordinance
or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Tenant shall, at its sole
cost and expense, promptly comply with all laws, statutes,
ordinances, and governmental rules, regulations or requirements
now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar
bodies now or hereafter constituted relating to or affecting the
condition, use or occupancy of the Premises, excluding structural
changes not related to or affected by Tenant's improvements or
acts. The judgment of any court of competent jurisdiction or the
admission of Tenant in any action against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any
law, statute, ordinance or governmental rule, regulation or
requirement, shall be conclusive of that fact as between the
Landlord and Tenant.
9. ALTERATIONS AND ADDITIONS. Tenant shall not make or
allow to be made any alterations, additions or improvements to or
on the Premises or any part thereof without the written consent
of Landlord first had and obtained and any alterations, additions
or improvements to or of said Premises, including but not limited
to wall covering, paneling and built-in cabinet work, but
excepting movable furniture and trade fixtures, shall at once
become a part of the realty and belong to the Landlord and shall
be surrendered with the Premises. In the event Landlord consents
to the making of any alterations, additions or improvements to
the Premises by Tenant, the same shall be made by Tenant at
Tenant's sole cost and expense. Upon the expiration or sooner
termination of the term hereof, Tenant shall, upon written demand
by Landlord, given at least thirty (30) days prior to the end of
the term, at Tenant's sole cost and expense, forthwith and with
all due diligence, remove any alterations, additions or
improvements made by Tenant, designated by Landlord to be
removed, and Tenant shall, forthwith and with all due diligence,
at its sole cost and expense, repair any damage to the Premises
caused by such removal.
10. REPAIRS.
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lO.A. By entry hereunder, Tenant shall be deemed to
have accepted the Premises as being in good, sanitary order,
condition and repair. Tenant shall, at Tenant's sole cost and
expense, keep the Premises and every part thereof in good
condition and repair (except as hereinafter provided with respect
to Landlord's obligations) including, without limitation, the
maintenance, replacement and repair of any storefront, doors,
window casements, glazing, interior and exterior walls, roof,
floors and heating and air-conditioning system. Tenant shall,
upon the expiration or sooner termination of thie Lease hereof,
surrender the Premises to the Landlord in good condition, broom
clean, ordinary wear and tear and damages from causes beyond the
reasonable control of Tenant excepted. Any damage to adjacent
premises caused by Tenant's use of the Premises shall be repaired
at the sole cost and expense of Tenant.
lO.B. Notwithstanding the provisions of Article
lO.A. hereinabove, Landlord's obligation shall be limited to the
repair of the structural portions of the building only. However,
if such repairs are caused, in part or in whole by the neglect,
fault or omission of any duty by the Tenant, its agents,
servants, employees, invitees, or any damage caused by breaking
and entering, Tenant shall pay to Landlord the reasonable cost of
such repairs. Landlord shall not be liable for any failure to
make any such repairs unless such failure shall persist for an
unreasonable time after written notice of the need of such
repairs is given to Landlord by Tenant. Except as provided in
Article 24 hereof, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the building
or the premises or in or to fixtures, appurtenances and equipment
therein. Tenant waives the right to make repairs at Landlord's
expense under any law, statute or ordinance now or hereafter in
effect.
11. LIENS. Tenant shall keep the Premises and the
property in which the Premises are situated free from any liens
arising out of any work performed, materials furnished or
obligations incurred by Tenant. Landlord may require, at
Landlord's sole option, that Tenant shall provide to Landlord at
Tenant's sole cost and expense, a lien and completion bond in an
amount equal to the estimated costs of any improvements.
12. ASSIGNMENT AND SUBLETTING. Tenant shall not either
voluntarily, or by operation of law, assign, transfer, mortgage,
pledge, hypothecate, or encumber this Lease or any interest
therein, and shall not sublet the said Premises or any part
thereof, or any right or privilege appurtenant thereto, or allow
any other person (employees, agents, servants and invitees of
Tenant excepted) to occupy or use the said Premises, or any
portion thereof, without the written consent of Landlord first
had and obtained, which consent shall not be unreasonably
withheld. A consent to one assignment, subletting, occupation or
use by any other person shall not be deemed to be a consent to
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any subsequent assignment, subletting, occupation or use by
another person. Consent to any such assignment or subletting
shall in no way relieve Tenant of any liability under this Lease.
Any such assignment or subletting without such consent shall be
void, and shall, at the option of the Landlord, constitute a
default under the terms of this Lease.
13. HOLD HARMLESS. Tenant shall indemnify and hold
harmless Landlord against and from any and all claims arising
from Tenant's use of the Premises or from the conduct of its
business or from any activity, work, or other things done,
permitted or suffered by the Tenant in or about the Premises, and
shall further indemnify and hold harmless Landlord against and
from any and all claims arising from, any breach or default in
the performance of any obligation on Tenant's part to be
performed under the terms of this Lease, or arising from any act
or negligence of the Tenant, or any officer, agent, employee,
guest, or invitee of Tenant, and from all costs, attorney's fees,
and liabilities incurred in or about the defense of any such
claim or action or proceeding brought thereon and in case any
action or proceeding be brought against Landlord by reason of
such claim, tenant upon notice from Landlord shall defend the
same at Tenant's expense by counsel reasonably satisfactory to
Landlord. Tenant as a material part of the consideration to
Landlord hereby assumes all risk of damage to property or injury
to persons in, upon or about the Premises, from any cause other
than Landlord's negligence, and Tenant hereby waives all claims
in respect thereof against Landlord.
Landlord or its agents shall not be liable for any loss or
damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, water or rain which may
leak from any part of the building or from the pipes, appliances,
or plumbing works therein or from the roof, street or subsurface
or from any other place resulting from dampness or any other
cause whatsoever, unless caused by or due to the negligence or
Landlord, its agents, servants, or employees. Landlord or its
agents shall not be liable for interference with the light, air,
or for any latent defect in the Premises. Tenant shall give
prompt notice to Landlord in case of major casualty or accidents
on the Premises.
14. SUBROGATION. As long as their respective insurers so
permit, Landlord and Tenant hereby mutually waive their
respective rights of recovery against each other for any loss
insured by fire, extended coverage and other property insurance
policies existing for the benefit of the respective parties. Each
party shall apply to their insurers to obtain such waivers. Each
party shall obtain any special endorsements, if required by their
insurer to evidence compliance with the aforementioned waiver.
15. INSURANCE.
IS.A. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of
comprehensive public liability insurance insuring Landlord and
Tenant against any liability arising out of the ownership, use,
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occupancy, or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in the form of a
combined single limit policy for bodily injury and property
damage in an amount no less than $1,000,000 per occurrence. The
limit of any such insurance shall not, however, limit the
liability of the Tenant hereunder. Tenant may provide this
insurance under a blanket policy, provided that said insurance
shall have a Landlord's protective liability endorsement attached
thereto. If Tenant shall fail to procure and maintain said
insurance, Landlord may, but shall not be required to procure and
maintain same, but at the expense of Tenant. Insurance required
hereunder shall be in companies rated A+ AAA or better in "Best's
Insurance Guide". Tenant shall deliver to Landlord, prior to
right of entry, copies of policies of liability insurance
required herein or certificates evidencing the existence and
amounts of such insurance with loss payable clauses satisfactory
to Landlord. All such policies shall be written as primary
policies not contributing with and not in excess of coverage
which Landlord may carry.
1S.B. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of insurance
insuring the contents of the premises such as inventory,
furniture, equipment and leasehold improvements against all risks
of physical loss. Such insurance shall be in an amount
sufficient to cover 100% of any loss. Tenant shall deliver to
Landlord, prior to right of entry, copies of policies of
insurance required herein or certificates evidencing the
existence and amount of such insurance.
1S.C. In lieu of providing copies of insurance as
required in Paragraphs A and B above, Tenant may provide letters
of self-insurance which warrant coverage of Landlord and the
Premises in amounts sufficient to satisfy the requirements of
said paragraphs.
16. UTILITIES. Tenant shall pay for all water, gas,
heat, light, power, sewer charges, telephone service and all
other services and utilities supplied to the Premises, together
with any taxes thereon. If any such services are not separately
metered to Tenant, Tenant shall pay that percent of all charges
jointly metered with other Premises as Tenant's total floor area
bears to the total gross leasable floor area of the Shopping
Center.
17. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause
to be paid, before delinquency any and all taxes levied or
assessed and which become payable during the term hereof upon all
Tenant's leasehold improvements, equipment, furniture, fixtures,
and any other personal property located in the Premises. In the
event any or all of the Tenant's leasehold improvements,
equipment, furniture, fixtures and other personal property shall
be assessed and taxed with the real property, Tenant shall pay to
Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting
forth the amount of such taxes applicable to Tenant's property.
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18. RULES AND REGULATIONS. Tenant shall faithfully
observe and comply with all reasonable rules and regulations that
Landlord shall from time to time promulgate and/or modify. The
rules and regulations shall be binding upon the Tenant upon
delivery of a copy of them to Tenant. Landlord shall not be
responsible to Tenant for the nonperformance of any said rules
and regulations by any other tenants or occupants.
19. HOLDING OVER. If Tenant remains in possession of the
Premises or any part thereof after the expiration of the term
hereof with the express written consent of Landlprd, such
occupancy shall be a tenancy from month to month at a rental in
the amount of the last Monthly Minimum Rent, plus all other
charges payable hereunder, and upon all the terms hereof
applicable to a month to month tenancy.
20. ENTRY BY LANDLORD. Landlord reserves, and shall at
all times during Tenants normal business hours, with a City
representative present, have the right to enter the Premises to
inspect the same, to submit said Premises to prospective
purchasers or tenants, to post notices of non-responsibility, to
repair the Premises and any portion of the Building of which the
Premises are a part that Landlord may deem necessary or
desirable, without abatement of rent, and may for that purpose
erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, always
providing that the entrance to the Premis~s shall not be blocked
thereby and further providing that the business of the Tenant
shall not be interfered with unreasonably. Tenant hereby waives
any claim for damages or for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or
quiet enjoYment of the Premises, and any other loss occasioned
thereby.
Landlord shall have the right to use any and all means
which Landlord may deem proper to open said doors in an
emergency, in order to obtain entry to the Premises without
liability to Tenant except for any failure to exercise due care
for Tenant's property and any entry to the Premises obtained by
Landlord by any of said means, or otherwise shall not under any
circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction of
Tenant from the Premises or any portion thereof.
21. TENANT'S DEFAULT. The occurrence of anyone or more
of the following events shall constitute a default and breach of
this Lease by Tenant.
21.A. The vacating or abandonment of the Premises by
Tenant, without continued paYment of rent.
21.B. The failure by Tenant to make any paYment of
rent or any other paYment required to be made by Tenant
hereunder, as and when due, where such failure shall continue for
a period of three (3) days after written notice thereof by
Landlord to Tenant.
21.C. The failure by Tenant to observe or perform
any of the covenants, conditions or provisions of this Lease to
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be observed or performed by the Tenant, 9ther than described in
Article 21.0., above, where such failure shall continue for a
period of thirty (30) days after written notice hereof by
Landlord to Tenant; provided, however, that if the nature of
Tenant's default is such that more than thirty (30) days are
reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant commences such cure within said thirty
(30) day period and thereafter diligently prosecutes such cure to
completion.
21.0. The making by Tenant of any geperal assignment
or general arrangement for the benefit of creditors; or the
filing by or against Tenant of a petition to have Tenant adjudged
a bankrupt, or a petition or reorganization or arrangement under
any law relating to bankruptcy (unless, in the case of a petition
filed against Tenant, the same is dismissed within sixty (60)
days); or the appointment of a trustee or a receiver to take
possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially
all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease where such seizure is not discharged in
thirty (30) days.
22. REMEDIES IN DEFAULT. In the event of any such
default or breach by Tenant, Landlord may at any time thereafter,
with or without notice or demand and without limiting Landlord in
the exercise of a right or remedy which Landlord may have by
reason of such default or breach:
22.A. Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall
terminate and Tenant shall immediately surrender possession of
the Premises to Landlord. In such event Landlord shall be
entitled to recover from Tenant all damages incurred by Landlord
by reason of Tenant's default including, but no limited to; to
the cost of recovering possession of the Premises; expenses of
reletting, including necessary renovation and alterations of the
Premises; reasonable attorney's fees; the worth at the time of
award by the court having jurisdiction thereof of the amount by
which the unpaid rent and other charges and Adjustments called
for herein for the balance of the term after the time of such
award exceeds the amount of such loss for the same period that
Tenant proves could be reasonably avoided; and that portion of
any leasing commission paid by Landlord and applicable to the
unexpired term of this Lease. In the event of default only,
unpaid installments of rent or other sums shall bear interest
from the date due at the rate of fifteen (15) percent per annum;
or,
22.B. Maintain Tenant's right to possession, in
which case this Lease shall continue in effect whether or not
Tenant shall have abandoned the Premises. In such event Landlord
shall be entitled to enforce all of the Landlord's rights and
remedies under this Lease, including the right to recover the
9
rent and any other charges and Adjustments as may become due
hereunder; or
22.C. Pursue any other remedy now or hereafter
available to Landlord under the laws or judicial decisions of the
State in which the Premises are located.
23. DEFAULT BY LANDLORD. Landlord shall not be in
default unless Landlord fails to perform obligations required of
Landlord within a reasonable time, but in no event later than
thirty (30) days after written notice by Tenant to Landlord
specifying wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required
for performance then Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion. In no
event shall Tenant have the right to terminate this Lease as a
result of Landlord's default and Tenant's remedies shall be
limited to damage and/or an injunction. Tenant agrees to give
the beneficiary of any deed of trust written notice of any
default by Landlord under the terms of this lease and Tenant
agrees further that he will not terminate this Lease because of
any such default if, within a period of sixty (60) days after
Tenant has mailed written notice of his intention to terminate
this Lease for such cause to the beneficiary at its last known
address, the beneficiary shall either cure such default or, if
the same cannot be cured by the payment of money, shall undertake
in writing to perform all covenants of this lease capable of
performance by it, and the time for performance of any obligation
of the Landlord then in default shall be extended by the
reasonably necessary to complete such with due diligence. This
extension of time to cure such default shall include time to
bring an expeditious foreclosure action if this should be
necessary to effect a cure.'
24. RECONSTRUCTION. In the event the Premises are
damaged by fire or other perils covered by extended coverage
insurance, Landlord agrees to forthwith repair same, and this
Lease shall remain in full force and effect, except that Tenant
shall be entitled to a proportionate reduction of the Minimum
Rent from the date of damage and while such repairs are being
made, such proportionate reduction to be based upon the extent to
which the damage and making of such repairs shall reasonably
interfere with the business carried on by the Tenant in the
Premises. If the damage is due to the fault or neglect of Tenant
or its employees, there shall not be abatement of rent.
In the event the Premises are damaged as a result of any
cause other than the perils covered by fire and extended coverage
insurance, then Landlord shall forthwith repair the same,
provided the extent of the destruction be less than ten (10)
percent of the then full replacement cost of the Premises. In the
event the destruction of the Premises is to an extent of ten (10)
percent or more of the full replacement cost then Landlord shall
have the option; (1) to repair or restore such damage, this Lease
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continuing in full force and effect, but the Minimum Rent to be
proportionately reduced as hereinabove in this Article provided;
or (2) give notice to at any time within sixty (60) days after
such damage, terminating this Lease as of the date specified in
such notice, which date shall be no more than thirty (30) days
after the giving of such notice. In the event of giving such
notice, the Lease shall expire and all interest of the Tenant in
the Premises shall terminate on the date so specified in such
notice and the Minimum Rent, reduced by a proportionate
reduction, based upon the extent, if any, to which such damage
interfered with the business carried on by the Tenant in the
Premises, shall be paid up to date of such termination.
Notwithstanding anything to the contrary contained in this
Article, Landlord shall not have any obligation whatsoever to
repair, reconstruct or restore the Premises when the damage
resulting from any casualty covered under this Article occurs
during the last six (6) months of this lease or any extension
thereof.
Landlord shall not be required to repair any injury or
damage by fire or other cause, or to make any repairs or
replacements of any leasehold improvements, fixtures or other
personal property of Tenant.
25. EMINENT DOMAIN. If any part of the Premises shall be
taken or appropriated by any public or quasi-public authority
under the power of eminent domain, if there is a transfer in lieu
thereof, or if there is a taking or appropriating of the parking
area and driveway such that there is less than thirty (30) feet
of parking and driveway abutting on Mt. Vernon Avenue, Lessee
shall have the right, at its option, within thirty (30) days
after such taking or appropriating or transfer in lieu thereof to
terminate this Lease. In the event of any taking or
appropriation whatsoever, Landlord shall be entitled to any and
all awards and/or settlements which may be given and Tenant shall
have no claim against Landlord for the value of any unexpired
term of this Lease. If this Lease is terminated early under
terms of eminent domain, Tenant shall not be required to remove
leasehold improvements.
26. TENANT'S STATEMENT. Within five (5) days after the
request therefor by Landlord, or in the event that upon any sale,
assignment or hypothecation of the demised premises or land
thereunder by Landlord, an estoppel certificate and/or such
financial statement shall be requested of Tenant. The Tenant
agrees to deliver such financial statement and/or such estoppel
certificate (in recordable form) addressed to any such mortgages
or purchaser or to Landlord certifying the requested information
including, among other things, the dates of commencement and
termination of the Lease; the amount of security deposit; and
that this Lease is in full force and effect (if such be the
case); and that there are no differences, off-sets or defaults of
the Landlord, or, noting such differences, off-sets or defaults
as actually exits. Tenant shall be liable for any loss or
liability resulting from any incorrect information certified, and
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such mortgagee and purchaser shall have the right to rely on such
estoppel certificate and financial statements.
27. PARKING AND COMMON AREAS. Landlord covenants that an
area approximately equal to the common and parking areas as shown
on the attached Exhibit "A" shall be at all times available for
the non-exclusive use of Tenant during the full term of this
Lease or any extension of the term hereof, provided that the
condemnation or other taking by any public authority, or sale in
lieu of condemnation, of any or all of such common and parking
areas shall not constitute a violation of this covenant. Landlord
reserves the right to change the entrances, exits, traffic lanes
and the boundaries and locations of such parking area or areas,
provided, however, that anything to the contrary notwithstanding
contained in this Article 27, said parking area or areas shall at
all times be substantially equal or equivalent to that shown on
the attached Exhibit "A".
27.A. The Landlord shall keep said automobile
parking and common areas in a neat, clean and orderly condition,
and shall repair any damage to the facilities thereof, but all
expenses in connection with said automobile parking and common
areas shall be charged and prorated in the manner set forth in
Article 7 hereof.
27.B. Tenant, for the use and benefit of Tenant, its
agents, employees, customers, licensees and sub-tenants, shall
have the non-exclusive right in common with Landlord, and other
present and future owners, tenants and their agents, employees,
customers, licensees and sub-tenants, to use said common and
parking areas during the entire term of this Lease, or any
extension thereof for ingress and egress, and automobile parking.
27.C. The Tenant, in the use of said common and
parking areas, agrees to comply with such reasonable rules and
regulations for parking as the Landlord may adopt from time to
time for the orderly and proper operation of said common and
parking areas. Such rules may include but shall not be limited
to the following: (1) The restricting of employee parking to a
limited, designated area or areas within the shopping center or
outside the shopping center; (2) The regulation of the removal,
storage and disposal of Tenant's refuse and other rubbish at the
sole cost and expense of Tenant.
28. AUTHORITY OF PARTIES.
28.A. Corporate Authoritv. If Tenant is a
corporation, each individual executing this Lease on behalf of
said corporation, in accordance with a duly adopted resolution of
the Board of Directors of said corporation, a copy of which is
attached thereto in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation
in accordance with its terms.
28.B. Limited Partnerships. If the Landlord herein
is a limited partnership, it is understood and agreed that any
claims by Tenant on Landlord shall be limited to the assets of
the limited partnership, and furthermore, Tenant expressly waives
any and all rights to proceed against the individual partners or
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the officers, directors or shareholders of any corporate partner,
except to the extent of their interest in said limited
partnership.
29. SIGNS.
29.A. No signs, advertising placards, names,
insignia, trademarks and descriptive material shall be affixed or
maintained upon the glass panes and supports of the show windows
and within twelve (12) inches of any window and upon the exterior
walls of the premises without prior written approval of the
Landlord as to type, size, color, location, copy.nature and
display qualities. Anything to the contrary in this Lease
notwithstanding, Tenant shall not affix any sign to the roof.
29.B. Tenant shall, however, be granted sign space
on the free standing pole sign. It shall be Landlord's
responsibility to maintain said free-standing pole sign with
respect to Tenant's advertising on said sign. Tenant will pay
its prorata share of the maintenance costs of said sign. Upon
termination of this Lease, Landlord shall remove any such
advertising or names placed on said sign at Tenant's expense.
29.C. Tenant shall be allowed one store front facia
sign. Tenant shall at its sole cost and expense be fully
responsible for maintenance and repair of the store front facia
sign. Maintenance and repair of facia sign shall be completed
within ten (10) working days of occurrence.
30. DISPLAYS. The Tenant may not sell merchandise or
allow grocery carts or other similar devices within the control
of Tenant to be stored or to remain outside the defined exterior
walls and permanent doorways of the Premises. Tenant further
agrees not to install any exterior lighting, amplifiers or
similar devices or use in or about the Premises any advertising
medium which may be heard or seen outside the Premises, such as
flashing lights, searchlights (except during the grand opening of
Tenant), loudspeakers, phonographs or radio broadcasts.
31. AUCTIONS. Tenant shall not conduct or permit to be
conducted any sale by auction, in, upon or from the Premises,
whether said auction be voluntary, involuntary, pursuant to any
assignment for the paYment of creditors or pursuant to any
bankruptcy or other insolvency proceeding.
32. COMPETITION. During the term of this Lease, Tenant
shall not directly or indirectly engage in any similar or
competing business within a driving radius of two (2) miles from
the outside boundary of the Shopping Center.
33. GENERAL PROVISIONS.
(i) Plats and Riders. Clauses, plats, riders and
addendums, if any, affixed to this Lease are a part hereof.
(ii) Waiver. The waiver by Landlord of any term,
covenant or condition herein contained shall not be deemed to be
a waiver of such term, covenant or condition or any subsequent
breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding
default at the time of the acceptance of such rent.
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(iii) Joint Obliqation. If there be more than one
Tenant the obligations hereunder imposed shall be joint and
several.
(iv) Marqinal Headinqs. The marginal headings and
article titles to the articles of this Lease are not a part of
this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
(v) Time. Time is of the essence of this Lease and
each and all of its provisions in which performance is a factor.
(vi) Successors and Assiqns. The covenants and
conditions herein contained subject to the provisions as to
assignment apply to and bind the heirs, successors, executors,
administrators, and assigns of the parties hereto.
(vii) Quiet Possession. Upon Tenant paying the rent
reserved hereunder and observing and performing all of the
covenants, conditions and provisions on Tenant's part to be
observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to
all the provisions of this Lease.
(viii) Recordation. Neither Landlord nor Tenant
shall record this Lease, but a short form memorandum hereof may
be recorded at the request of Landlord or Tenant.
(ix) Late Charqes. Tenant hereby acknowledges that
late paYment by Tenant to Landlord of rent or other sums due
hereunder will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult
to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be
imposed upon Landlord by terms of any mortgage or trust deed
covering the Premises. Accordingly, if any installment of rent
or any sum due from Tenants shall not be received by Landlord or
Landlord's designee within five (5) days after written notice
Tenant shall pay to Landlord a late charge equal to ten (10)
percent of such overdue amounts, plus one (1) percent per day of
the full amount of the rent that is not paid, plus any attorney's
fees incurred by Landlord by reason of Tenant's failure to pay
rent and/or other charges when due hereunder. The parties hereby
agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of the
late paYment by Tenant. Acceptance of such late charges by the
Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted
hereunder.
(x) Prior Aqreements. This Lease contains all of
the agreements of the parties hereto with respect to any matter
covered or mentioned in this Lease, and no prior agreements or
understandings pertaining to any such matters shall be effective
for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties
hereto to their respective successors in. interest. This Lease
shall not be effective or binding on any party until fully
14
executed by both parties hereto.
(xi) Inability to Perform. This Lease and the
obligations of the Tenant hereunder shall not be affected or
impaired because Landlord is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike, labor troubles,
acts of God, or any other cause beyond the reasonable control of
the Landlord. If Landlord is unable to provide Premises to
Tenant for reasons stated under this Article "Inability to
Perform" within 90 days of Commencement Date, then Tenant may
terminate this Lease upon written notice to Landlord.
(xii) Partial Invalidity. Any provision of this
Lease which shall prove to be invalid, void or illegal shall in
no way affect, impair or invalidate any other provision hereof
and such other provision shall remain in full force and effect.
(xiv) Attorney's Fees. In the event of any action
or proceeding brought by either party against the other under
this Lease the prevailing party shall be entitled to recover for
the fees of its attorneys in such action or proceeding, including
costs of appeal, if any, in such amount as the court may adjudge
reasonable as attorney's fees. In addition, should it be
necessary for Landlord to employ legal counsel to enforce any of
the provisions herein contained, Tenant agrees to pay all
attorney's fees and court costs reasonably incurred.
(xv) Choice of Law. This Lease shall be governed by
the laws of the State in which the Premises are located.
(xvi) Sale of Premises by Landlord. In the event of
any sale of the Premises by Landlord, Landlord shall be and is
hereby entirely freed and relieved of all liability under any and
all of its covenants and obligations contained in or derived from
this Lease arising out of any act, occurrence or omission
occurring after the consumm~tion of such sale, and the purchaser,
at such sale or any subsequent sale of the Premises shall be
deemed, without any further agreement between the parties and any
such purchaser, to have assumed and agreed to carry out any and
all of the covenants and obligations of the Landlord under this
Lease, including any obligation owed to Tenant for pre-paid rent.
(xvii) Subordination, Attornment. Upon request of
the Landlord, Tenant will in writing subordinate its rights
hereunder to the lien of any mortgage, or deed of trust, to any
bank, insurance company or other lending institution, now or
hereafter in force against the Premises, and to all advances made
or hereafter to be made upon the security thereof or to the
interest of any lease in which Landlord is the lessee.
In the event any proceedings are brought for
foreclosure or in the event of the exercise of the power of sale
under any mortgage or deed of trust made by the Landlord covering
the Premises or should the lease in which Landlord is the lessee
be terminated, the Tenant shall attorn to the purchaser or to the
lessor under said lease upon any such foreclosure or sale or
lease termination and recognize such purchaser or lessor as the
Landlord under this Lease.
15
The prov~s~ons of this Article to the contrary
notwithstanding, and so long as Tenant is not in default
hereunder, this Lease shall remain in full force and effect for
the full term hereof.
(xviii) Notices. All notices and demands which may
or are to be required or permitted to be given by either party on
the other hereunder shall be in writing. All notices and demands
by the Landlord to the Tenant shall be sent by United States
mail, postage prepaid, addressed to the Tenant at the address
hereinbelow, or to such other place as Tenant may from time to
time designate in a notice to the Landlord. All notices and
demands by the Tenant to the Landlord shall be set by United
States mail, postage prepaid, addressed to the Landlord at the
address set forth herein, and to such other person or place as
the Landlord may from time to time designate in a notice to the
Tenant.
To the Landlord at: Richard K. and D. Marlene Churchwell
Trustees of the Churchwell Family
Trust
916 Rolling Hills Drive
Fullerton, CA 92635
To the Tenant at: Chief of Police
City of San Bernardino
4 6 6 W. 4 th
San Bernardino, CA 92418
34. NO ORAL AGREEMENTS. This Lease covers in full each
and every agreement of every kind and nature whatsoever between
the parties hereto concerning this Lease, and preliminary
negotiations and agreements of whatsoever kind or nature are
merged herein, and there are no oral agreements or implied
covenants.
35. CONDITION OF PREMISES. Tenant hereby accepts the
leased premises in an "as is" condition unless otherwise noted in
this Lease.
36. DELIVERY OF POSSESSION.
a. If Landlord is unable to deliver possession of
the Premises to Tenant by the Commencement Date, Landlord shall
not be liable to Tenant for damages of any kind. Any such delay
in delivery shall not affect Tenant's obligations hereunder nor
extend the Expiration Date of this Lease; however, Tenant's
obligation to pay rent shall not commence until possession is
tendered to Tenant.
b. If Landlord has not tendered possession of the
Premises to Tenant within ninety (90) days after the Commencement
Date, Tenant may terminate this Lease by giving Landlord ten (10)
days prior written notice of such election to terminate within
thirty (30) days from the end of said ninety (90) day period.
c. If, as a result of causes beyond Landlord's
control, Landlord has not delivered possession of the Premises to
16
Tenant within one year after the Commencement Date, Landlord may
terminate this Lease by giving Tenant ten (10) days prior written
notice of such election to terminate.
d. If either party terminates this Lease in
accordance with this section 36, all money paid by Tenant to
Landlord shall be refunded and both parties shall be released
from all obligations under this Lease.
e. If Landlord permits Tenant to take possession of
the Premises before the Commencement Date, all provisions of this
Lease shall apply; however the Expiration Date of this Lease
shall remain the same and Tenant's obligation to pay rent shall
commence from the date Tenant takes possession.
LANDLORD:
Richard K. Churchwell, Trustee
D. Marlene Churchwell, Trustee
TENANT:
ATTEST:
CITY OF SAN BERNARDINO
City Clerk
Mayor
Approved as to form
and legal content:
JAMES F. PEN}~N,
City Attorney
n
, !
By:
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