Loading...
HomeMy WebLinkAbout41-Public Works (. CITY OF SAIl ...a....o~QUUT ... File No. 15.06-136 l COUNCIL ACTION F ROGER G un..V'....VE Direc.,~r'o. - AUMIH. OF,F ','ect: RHn: . DftAUU~, ~ SUb Dept: Public Works/Engineering 1~,9G M~R 2 e w ''): 30 Resolution.Authorizing the execution of a parking lot lease agreuent: SDchcnr1tz-W 110.:1; Vacated Proutace Road at the S0uth- west ConJer of Wat_ Avenue & Caroline street Dste: Karch 21, 1990 Synopsis of Prsvious Council ection: NONE Rscommencled motion: Adopt Resolution ." ~~::..-=..'='=--,....,_ /7.) ~ 6i6 /""'" >-n. City -_ ~- (l:./ Andrew Green, Director of Finance Anne DeBolt 53:18 Resolution, HAp, Phone: Lease Werd: Contact penon: staff Report"; Supporting dste fttaChed: 3 FUNDING REQUIREMENTS: Amount: None Source: IAcct. No.1 N/A IAcct, DescriDtionl N/A Finlllce: Council No1BS: 03/22/90 75-0262 Agenda Item NO.-!:I:.J · CITY OF SAIl ...&ma1lO - R.QUaT & COUNCIL ACTION STAFF REPORT The proposed lellSe area was street right-of way owned by the City of Sen Bernardino, end vacated in Deceaber, 1989. The Sunset Group is developing the area adjacent to the area proposed for the subject lellSe. They have also leased property to the South frOll the City of Riverside for a fifty year period. The tel'll of the Lease is fifty (50) years, c~cing Jenuary I, 1990. The rental llIIOunt is two thousend four hundred dollars ($2,400.00) per year, payable monthly, at the rate of $200.00, on the first day of each calendar month. There is a cost of living increase each five year period (Section 3). The Lessee shall be responsible for the uintenence of all i~rov..ents end lendscaping constructed on the property, as well as the cost of all services end utilities. Easements have been retained across the subject property for the. City of Riverside. the City of Sen Bernardino, Pacific Bell Telephone end Southern California Edison. 03/22/90 15-0214 03/22/90 o o 1 2 3 4 5 6 7 RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHOlU7.ING TIlE EXECUTION OF A PARKING LOT LEASE WITH THE SUNSET GROUP, RELATING TO CERTAIN REAL PROPERTY SInJATED AT TIlE SOUTHWEST CORNER OF WA'I'ERKAN AVENUE AND CAROLINE STREET . BE IT RESOLVED BY TIlE HAYOR AND COMMON COUNCIL OF TIlE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The /layor of the City of San Bernardino is hereby 8 authorized and directed to execute on behalf of said City, a Lease relating 9 to certain real property located at the Southwest corner of Waterman Avenue 10 and Caroline Street, a copy of which is attached hereto, urked Exhibit "A" 11 and incorporated herein by reference as fully as though set forth at length. 12 SECTION 2. The authorization to execute the above-referenced 13 agree.ent is rescinded if the parties to the agreeaent fail to execute it 14 within sixty (60) days of the passage of this resolution. 15 / / 16 / / 17 / / 18 / / 19 / / 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 03/22/90 PARKING LOT AAsE WITII TIlE SUNSET GROUP - S~T CORNER OF WATERMAN AVENUE AND CB8LINE STREET I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Co-.on Council of the City of San Bernardino at a meeting thereof, held on the day of , 1989, by the following vote, to wit: AYES: Council Members NAYS: ABSENT: City Clerk The foregoing resolution is hereby approved this day of , 19_ W. R. Holcomb, Kayor City of San Bernardino Approved as to fol'll and legal content James F. Penman City Attorney 2 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 o o LEASE AGREEMENT - PARKING LOT LEASE NO. 15.06-136 This Lease is made IS of this day of ,19 ,by and betwen the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor" and S IMCHOW ITZ-W NO.1, a Ca 11 forn1l 11m1 ted partnership, the ent1tr that owns the adjacent property, hereinafter referred to IS "Lessee". Recitals Th1s LeISe 15 made and e'ntered into with respect to the following facts : A. Lessor is the owner of the property herein described. B. Lessee desires to lease this property from Lessor, and Lessor 15 willing to lease the property to Lessee upon the terms and conditions hereinafter set forth. NOW, THEREFORE, the parties hereby agree as fOllows: 1. Property. Lessor hereby leases unto Lessee, and Lessee hereby lelSes from Lessor, the vacant property located at the Southwest corner of Waterlllln Avenue and Caroline Street in the City of Sin Bernardino, California, and legally described as: That portion of Waterman Avenue, vacated per Resolution No. 89-477 of the City of San Bernardino, lying within Lot 4, Block 65 of Rancho San Bernardino, IS per plat thereof, recorded in Book 7 of Maps, Page 2, Records of San Bernardino County, State of California, described as follows: . C~ncing at the intersection of the centerlines of Waterman Avenue and Caroline Street; thence South 89. 47' 49" West, along the centerline of said Caroline Street, a distance of 195.09 feet; thence South 00. 12' U" ElSt, a di stance of 30.00 feet to the South 11 ne of said Caroline Street, said point also being the True Poi nt of Begi nning; thence South 00. 01' 25" East, a distance of 40.00 feet; thence South 36. 14' 39" East, a d15tance of 160.77 feet to a point 100.00 feet Westerly of the centerline of Waterman Avenue; thence South 00. EXHIBIT "A" 1 .. 1 2 3 4 5 6 7 8 9 10 . o 01' 25" East, and parallel with said centerline of Waterman Avenue, a distance of 290.48 feet; thence South 030 29' II" West, a dfstance of 256.64 feet; thence South 890 47' 54" West, a distance of 49.66 feet; thence South 000 01' 25" East, a distance of 110.00 feet; thence North 890 47' 54" East, a distance of 85.00 feet; thence North 040 39' 41" East, a distance of 367.30 feet, to a pOint 50.00 feet .Westerly of Waterman Avenue; thence North 000 01' 25" West, and parallel with said centerline of Waterman Avenue, a distance of 375.79 feet; thence North 050 20' 55" West, a distance of 60.19 feet; thence North 470 46' 33" West, a distance of 36.91 feet; thence South 890 47' 49" West, parallel wi th the centerline of said Qarolfne Street, a distance of 112.09 feet to the True Point of Beginning. The property is outlined in red on Exhibit "A" attached hereto and incorporated herein. 11 Said Lease is also subject to the following easements and 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 restri cti ons: A. Any existing easements for public utilfty purposes belonging ei ther to the Ci ty of San Bernardi no or to any public utili ty. B. An easement reserved for the City of Riverside for the right at any time, or from time to time to construct, maintain, operate, replace and renew one or more pipelines and appurtenances thereto, for the transportation of water, and for the maintenance of water wells, and for incidental purposes, including the right of ingress and egress thereto. C. An easement for Pacific Bell and Southern California Edison to construct, place operate, inspect, maintain, repair, replace and remove such aerial and underground telephone, telegraph and communication structures and electrical transmission structures respectively, as the companies may from time to time require, consisting of poles, anchors, wires, cables, conduits, manholes, markers and necessary fixtures and appurtenances. D. An easement for the City of San Bernardino, in, over, under and across the North twenty-fhe feet (25') of the property herei nabove 2 . . . o 1 described. as measured at right angles to the North line thereof. for 2 street light and storm drain purposes and all appurtenant facilities. 3 . In utilizing the easements described in Paragraphs A through 0 above. 4 the holders of the easements shall d9 as little damage as is practical to 5 any improvements. of any nature. which Lessee has by then constructed upon 6 the leased property. and will promptly restore the leased property. as far 7 as is practical. to its immediately prior condi tion. 8 2. USe Restrictions. 9 A. Lessee's permitted uses of the leased property shall be limited to 10 (a) construction. installation and maintenance of a parking lot. (b) 11 landscaping. and (c) such on-site and off-site improvements as shall be 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 required by the City of San Bernardino or any other local governmental entity having jurisdiction over the leased property with respect to such improvements. (d) Such signage in compliance with Ci1;y and State law. No other use shall be permitted. The term "parking lot" as used herein shall designate the plural number if there is more than one parking lot area within said leased property. 3. Lease Payments. A.. For the lease period January 1. 1990 through December 31. 1994. the rent shall be Two Thousand Four Hundred Dollars ($2.400.00) ("Beginning Rent") per year. which shall be due and payable in equal monthly installments. in advance. of Two Hundred Dollars ($200.00). payable on the first day of each calendar month beginning January 1. 1990. The Beginning Rent shall thereafter be increased in accordance with Section 3B hereof. All rents shall be sent to the Lessor at the following address: CITY OF SAN BERNARDINO FINANCE DEPARTMENT. PARKING LOT LEASE NO. 15.06-136 300 NORTH "0" STREET SAN BERNARDINO. CA 92418 3 .' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 . o The Lease number shall be, indicated at the bottom of the monthly rent check. 8. The rent will increase beginning January 1. 1995 and every five (5) years thereafter as follows: 1. As promptly as practicable after the end of the initial five (5) year period and each subsequent five (5) year period thereafter. Lessor shall compute the increase. if any. in the cost of living fOr the preceding five-year period based upon the Consumer Price Index for Urban Wage Earners and Clerical Workers. Los Angeles-Anaheim-Riverside Areas-All Items-Series A (1982-84-100) as published by the lklited States Oepartment of Labor's Bureau of Labor Statistics. 2. The Index number for the month of January. 1990 shall be the "Base Index Number" and the corresponding Index number for the month of January 1. 1995. and every five years thereafter as applicable. shall be the "Current Index Number". 3. The Current Index Number shall be divided by the Base Index llumber. and any resul ti ng posi the number sha 11 be deemed to be the percentage of increase in the cost of living. 4. The percentage of increase multiplied by the annual rent payable for the precedin9 five year period shall be the increase required by 5ecti on 3A hereof. 4. .!!!:!. The term of this agreement shall be for a period of fifty (50) years. commencing January 1. 1990. 5 . Improvemen ts. Lessee shall not make. or suffer to be made. any alterations to the demised premises, or any part thereof. other than as set forth in Paragraph 2 herein, without the prior written consent of Lessor. Any and all 4 < 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 '16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 . o alterations and/or improvements made to the demised premises pursuant" to this section shall. upon termination of this Lease agreement. remain as a part of the premises and at no cost or obligation to the Lessor. 6. Duty to Make Alterations. Additions or Changes Required by Law. If. during the term of this Lease. any law. regulation or rule requires that an alteration. addition or other change be made to the premises. it is agreed between the parties to this Lease that the alterations. additions or changes are required as a result of Lessee's use of the premises. Lessee will make them and bear all expense connected therewith; provided. however. if the cost of such alterations. additions or changes is in excess of the annual rent for the year in which such alterations . are required. Lessee sball have the option to terminate this Lease in lieu of making such changes. 7. Maintenance. Lessee shall. at Lessee's own cost and expense. keep and maintain all improvements and landscaping hereinafter constructed on the property in good condition and repair. and shall use all reasonable precaution to prevent waste. damage or injury to the property. Lessor shall. at any reasonable time. have the right to go upon the property and inspect and examine the same relative to such maintenance and upkeep. 8. Utilities. Lessee shall pay for all electricity. gas. water. telephone service. and all other services and utilities. including service installation fees and charges for such utilities during the term of this Lease. 9. ownershiP. Lessee aCknowledges Lessor's title. paramount interest and ownership of the subject property. and Lessee agrees never to challenge or contest said t1 tle. ownershi p or interest of Lessor. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 o o 10. Alsi gnment. Lessee shall be entitled to assign or sublease the leased property, or any portion thereof to any person or entity who owns fee title to all or a portion of the adjacent property which is more fully described on Exhibi t "B" hereto; provided, however, that Lessee shall (a) give to Lessor thirty (30) days written notice of such assignment, (b) provide to Lessor the name, address and taxpayer number of assignee or sublessee, and (c) assignee or sublessee shall execute such documents as Lessor shall reasonably require in connection with such assignment or sublease. Upon full assignment of this Lease, and assumption of the oblfgations hereunder by the assignee or sublessee, Lessee shall be relfe.ved of any obligations hereunder. 11. Encumbrances. Lessee shall payor cause to be paid all costs of construction and/or installation of the parking lot and landscaping referred to above, and all utilities used in connection with said parking lot. Lessee shall keep the property free and clear of any and all claims arising out of performance of work, furnishing of materials and use of utilities. 12. Permits and Fees. Lessee shall obtain all necessary permits and pay all license fees, assessments, taxes, penalties or fines which may be levied against said parking lot. 13. Taxes/PosseSSOry Interest. Lessee covenants duri ng the term of this Lease to pay, when due, all taxes and assessments that may be assessed or imposed upon the Lessee's possessory interest in and to the premises and upon personal property located on the leased premises. During Lessee's posseSSion and use of the leased premises, should any taxes thereon be a'ssessed against Lessor, 6 , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 . o Lessee agrees to indemnify lessor thereon. 14. Right to Enter. lessor shill at all times hive the right to enter upon the property. 15. Rules and Regulations. Lessee shall observe all rules, regulations, codes and enactments of the Lessor and all applicable statutes of the State of California in constructing, installing and maintaining said parking lot. 16. Amendment. This agreement may be amended or modified only by written agreement signed by both parties. 17. Liability Insurance. Lessee agrees to procure and maintain in force during the term of this agreement and any extension, at its expense, pUblic liabili ty insurance in companies and through brokers approved by lessor through its Risk Manager, adequate to protect against liabili~ resulting from, arising out of, or in any way connected wi th, the construction, installation and' maintenance of the parking lot in a minimum amount of at least ONE MILLION DOLLARS ($1,000,000.00) combined single limit. Lessee shall provide to Lessor's Risk Management Oivision, an annual policy of insurance which includes: A. The City of Sin Bernardino as an additional named insured; 8. The insurance company name, policy number, period of coverage and the amount of insurance; C. Condition that lessor be given notice, in writing, at least thirty (30) days prior to cancellation, material change or refusal to renew poliCY; and D. Condition that Lessee's insurance will be primary to any coverage that Lessor may have in effect. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 '16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 . o 18. Dlmage by Fire, Earthquake or Calamity. If by earthquake, flood or other similar calamity or act of God, or if by fire, act of war or other similar cause, the improvements to be constructed by lessee on the leased property are destroyed or damaged to a substantial degree, lessee shall repair them when such repairs can be made in conformity with any applicable law, and if, within ninety (90) days after the date when such destruction or damage occurs, lessee has not commenced repair or reconstruction, the lessor may terminate this lease upon forty-five (45) days' written notice to lessee. If so terminated, then lessee shall, at its own expense, and upon election by lessor, forthwith remove any or all of the damaged improvements. 19. Indemnification. lessee shall exercise its privileges under this lease at its own risk. lessee shall indemnify and hold harmless lessor, its elective and appointive boards, commissions, officers, agents and employees from liability resulting from, arising out of, or in any way connected with, the' construction, installation and maintenance of said parking lot, or with the occupation of the property, including claims resulting from the conduct of lessee, its employees, invitees, guests or agents of lessee, or lessee's failure to perform its promises in connection herewith. lessee shall defend lessor, its elective and appointive boards, commissions, officers, agents and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of lessee's opera ti ons under this agreement. lessor shall not be li ab le to lessee if lessee's occupation or use of the property is hindered or disturbed. Notwithstanding the provisions of this Section 19, lessee shall not be responsible for, and shall not be obligated to indemnify lessor against, any liability resulting from, arising out of, or in any way 8 " 1 2 3 4 5 6 7 8 9 10 11 12 13 . o connected with, the use of the leased property by lessor, the City 'of Riverside, Pacific Bell, Southern california Edison or any other entity or governmental or quasi-governmental agency entering the leased property pursuant to the easements retained in accordance with Paragraphs A, B, C and 0 of Secti on 1 hereof. 20. Notices. All notices herein required shall be in 'writing and delivered in person or sent by certified mail, postage prepaid, addressed as follows: lESSOR: CITY OF SAN BERNAROINO Real Property Section 300 North "0" Street San Bernardino, CA 92418 (714) 384-5111 lESSEE: SIMCHOWITZ-W NO. 2 225 West Hospitality lane, Sui te 100 . San Bernardino, CA 92408 (714) 381-4381 14 21. Recordation. 15 lessor shall have this lease recorded in the Office of the County 16 Recorder, San Bernardino County, State of California, together with the 17 appropri a te Reso 1 uti on of the Governi ng Body of lessor. 18 22. Condition of Property Upon Surrender. 19 Upon termi nati on of this agreement, lessee agrees to surrender the 20 said property occupied under the lease herein granted, in as good 21 22 23 24 25 26 27 28 12/20/89 condition as same was at the time of lessee's original entry, and to remove the parking lot paving and landscaping upon demand of, and without expense to, lessor. If lessee fails to do so, lessor shall have the right to remove the parking lot and landscaping at the expense of lessee, who shall pay the amount of the expense to lessor on demand. lessor may elect to take possession of and appropriate to itself without payment any property of lessee, or anyone claiming under lessee, which lessee fa11s to remove after notice. 9 1 2 3 4 5 6 7 8 9 10 11 12. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10/23/89 . o 23. Severabflfty. In the event this agreement, or any portf on thereof, shoul d be determfned to be vofd, f11ega1 or improper, for any reason whatever, all other portions of the agreement sh~ll remain fully enforceable to the extent possfb1e after such determinations. 24. Defaul t. In the event Lessee shall be in default fn the payment of rentals or other charges hereunder, or shall otherwise breach Hs covenants or obligatfons hereunder, and shall be and remafn fn default for a period of thfrty (30) days after wrftten notfce from Lessor to ft of such default, Les sor shall hive the r1 ght and prhfl ege of termf na tf ng thfs Lease and dec1arfng the same at an end, and of enterfng upon and taking possessfon of said premfses, and shall have the remedfes now or hereafter provfded by law for recovery of rent, repossessfon of the premfses and damages occasioned by such default. If such defau1 t shoul d occur, then Lessor shall have the right to take possession of and approprfate to itself without payment therefor, any property of Lessee or anyone claiming under him, then remaining on said premfses. 25. Effect of Lessor's Waiver. Lessor's waher of breach of one term, covenant, or cond1tfon of thfs Lease fs not a wafver of breach of others, nor of subsequent breach of the one waived. Lessor's acceptance of rent fnsta11ments after breach fs not a waher of the breach, except of breach of the covenant to pay the rent fnsta1lment or fnsta11ments accepted. 26. Emfnent Domafn. If the whole of the leased Pl"emhes, or $0 much thereof as to render the remafnder unusable for the purposes for whfch the same was leased, shall be taken under the power of eminent domafn, then thfs Lease shall 10 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10/23/89 . o terminate as of the date possessfon shall be so taken. If less than the whole of the leased premises shall be taken under the power of eminent domain. and the remainder is usable for the leased purposes. then this Lease shall continue in full force a.nd effect and shall not be termfnated by virtue of such taltfng. and the parties may waive the benefit of any law to the contrary. fn whfch event there shall be a partial abatement of the rent hereunder fn an amount equfvalent to the prorated use of the remafnfng premises. Any award made fn emfnent domafn proceedfngs for the takfng or damagfng of the leased premises. fn whole or fn part. shall be pafd to the Lessor (together with any other money whfch shall be or may be made avaflable for such purpose). 27. Ffnancfng - Secured Interest. A. Lessee shall have the right to borrow funds for the constructfon and permanent ffnancfng of fmprovements on the leased property and the commercial busfness center for whfch the leased property shall serve as a parltfng area. and to provfde fts lender a secured fnterest fn Lessee's leasehold estate created herein. Lessor hereby consents to such ffnancfng and the encumbrance of Lessee's leasehold estate by mortgage. deed of trust or other sfmflar securfty devfce ("Leasehold Mortgage") subject to the followfng condftfons: 1. A copy of the loan and Leasehold Mortgage documents shall be furnished to the Cfty prfor to executfon thereof; and 2. Lessee shall not be released from fts oblfgatfon of performance of all of the covenants of this Lease on fts part to be Itept and performed durf ng such perf od as Lessor accepts performance by a Leasehold Mortgagee. unless Lessor shall execute and deliver to Lessee a release fn wrftfng. B. For the benefft of any Leasehold Mortgagee who records a Leasehold 11 .' 1 2 3 4 5 6 7 8 9 10 11 12 13 a 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 . o Mortgage in the Recorder's Office of San Bernardino County, CAlifornia and sends written notice of such to Lessor, and for so long as the recorded Leasehold Mortgage remains a Hen on Lessee's Leasehold estate created by this Lease, Lessor and Lessee agree as follows: 1. Lessor shall deliver to the Leasehold Mortgagee, at its designated address and in the same manner delivered to Lessee, a copy of any notice or demand under this Lease at the same time of giving such notice or demand to Lessee. 2. Lessor shall provide the Leasehold Mortgagee with written notice of Lessee's failure to cure any default within the time period allowed by this Lease and of Lessor's intention to. terminate the Lease based upon such default or upon any other event which gives Lessor the ri ght to termi na te the Lease. 3. Lessor shall not terminate the Lease on the basis of any such default or event if the Leasehold Mortgagee, at its election: (a) cures such default within sixty (60) days after receipt of written notice from Lessor of its intention to terminate the Lease specifying such default or event (the "Termination Notice") if the default can be cured by the payment of money required to be paid under the Lease; or commences to cure such default within such sixty (60) day period and thereafter diligently prosecutes such cure to completion if the default is nomonetary; or (b) Institutes jUdicial or non-judicial foreclosure pro- ceedings under the Leasehold Mortgage within sixty (60) days after receipt of the Termination Notice and thereafter diligently prosecutes such proceedings to completion; cures such default within sixty (60) days after receipt of the Termination Notice if the default can be cured by the payment of money requi red to be pai d under the Lease; commences to cure 12 o. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 . o such default within such Sixty (60) cIlIy period and thereafter diligently prosecutes such cure to completion if the default is nonmonetary, but is otherwise reasonable susceptible to being cured by the Leasehold Mortgagee; AND performs all of the terms and conditions of the Lease which require the payment of money by Lessee or which are otherwise reasonably susceptible to being performed by the Leasehold Mortgagee until such time as the Lease is sold by jUdicial or non-judicial foreclosure under the Leasehold Mortgage or is transferred by an assignment in lieu of foreclosure. Any default by Lessee under the Lease which is not reasonably susceptible to being cured by a Leasehold Mortgagee or purchaser at a foreclosure shall be deemed to be waived by Lessor upon completion of foreclosure proceedings by any Leasehold Mortgagee or upon transfer of the Lease in lieu of foreclosure. (c) Notwithstanding the provisions of the above Paragraph b, if the threatened termination of the Lease is based on a default by Lessee arising from a fail ure to cure a defect or unsafe condition on the leased property, Lessor shall be entitled to terminate this Lease unless, within ninety (gO) cIlIys after Leasehold Mortgagee receives the Termination Notice, Leasehold Mortgagee delivers to Lessor a bond, letter of credit, or other security device reasonably approved by Lessor (collectively the "Bond") in compliance with the following criteria: (1) the issuer of the Bond shall be subject to reasonable approval of Lessor, (2) the Bond shall be in an amount reasonably determined by Lessor (and specified in the Termination Notice) to be adequate to repair such defect or unsafe condition, (3) the Bond shall provide that if the defect or unsafe condition is not cured within one hundred eighty (180) days after the Leasehold Mortgagee receives the Termination Notice, Lessor shall be entitled to draw 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 . o down on the Bond for the purpose of reimbursing Lessor for the cost of curing such defect or unsafe condition. C. For the purpose of preserving the Leasehold Mortgagee's right to cure any default by Lessee and without prejudice to the Leasehold Mortgagee's rights against Lessee, Lessor and Lessee hereby authorize the Leasehold Mortgagee to enter upon the leased property and to exercise any of Lessee's rights and powers under the Lease and the Leasehold Mortgage. 1. Inless the Leasehold Mortgagee has complied with all of the conditions contained in part (a) of Subsection (3) above, or all of the conditions contained in parts (b) and (c) of Subsection (3) above, Lessor shall have the right to terminate the Lease in accordance with the terms of the Lease. Nothing contained in Subsection (3) above shall be deemed to require the Leasehold Mortgagee to cure Lessee's default. 2. In the event Lessee defaults under the Leasehold Mortgage, the Leasehold Mortgagee may exercise with respect to the leased property any right, power or remedy under the Leasehold Mortgage which is not in. conflict with the provisions of this Lease. 3. If required by the Leasehold Mortgagee, the fire and extended coverage insurance policy maintained by the Lessee with respect to the leased property shall contain a standard lender's loss payable endorsement naming the Leasehold Mortgagee as loss payee. 4. Lessor and Lessee shall from time to time upon not less than (10) days prior wri tten request by the other or any subtenant of Lessee or any Subleasehold Mortgagee, deliver to the requesting party a signed written statement certifying that (a) the Lease is unmodified and in full force and effect (or if the Lease has been modified or if the Lease is not in full force or effect, stating the nature of the modification or the basis on which the Lease has been terminated, whichever is applicable); (b) 14 , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/20/89 . o to its knowledge, the requesting party (or other party specified) is not in default under the Lease (or if any such default exists, stating the specific nature and extent of the default); and (c) the dates to which monthly rent and other charges under .the Lease have been paid in advance. Each certificate delivered pursuant to this Subsection may be relied upon by any prospective purchaser of the 1 eased property or the Lessee's interest under the Lease (or any portion thereof) and by any prospective subtenant or Leasehold or Subleasehold Mortgagee. 5. Without the written consent of the Leasehold Mortgagee, there shan be no merger of the leasehold estate created under this Lease with the fee estate in the leased premises by reason of the fact that such leasehold estate may be held directly or indirectly by or for the benefit of any person who owns the fee estate in all or part of the leased property. Notwithstanding the above, this provision does not require the consent of the Leasehold Mortgagee for sale of the property by Lessor, including sale to Lessee. 6. No voluntary surrender or mutual termination of this Lease shall be effective without the prior written consent of the Leasehold Mortgagee. No amendment or modification of this Lease shall be binding upon or enforceable against a Leasehold Mortgagee unless the Leasehold Mortgagee has approved such modification or amendment in writing. D. In the event that this Lease is terminated by Lessor or Lessee for any reason whatsoever, or in the event Lessee's interest under this Lease shan be sold, assigned or transferred pursuant to the exercise of any remedy contained in the Leasehold Mortgage or pursuant to Judicial proceedings, and no rent or other sums payable hereunder are then due and payable to Lessor then Lessor, within thirty (30) days after receipt of wrftten request thereof from the Leasehold Mortgagee which shall be given 15 ; . o 1 within sixty (60) days after such termination or transfer, will execute and 2 deliver a new lease for the leased property to the Leasehold Mortgagee or 3 its nOlllinee, or to the purchaser, assignee or transferee, as the case may 4 be, for the remainder of the term of this Lease, containing the same 5 covenants, agreements, terms, provisions and 1fmi tations contained herein. 6 Any new lease made pursuant to this Paragraph shall be prior to any 7 mortgage or other 1fen, charge or encumbrance on the fee of the leased 8 property created by Lessor, but shall be subject to any subleases in effect 9 immediately prior to the termination of the Lease. All 1fens, charges or 10 other encumbrances on the fee of the leased property created by Lessor 11 shall contain express provisions to the effect that (a) such 1fen, charge 12 or encumbrance shall be subordinate to any such new lease, and (b) the 13 mortgagee or other beneficiary thereof shall, upon request, confirm to 14 Lessee any Leasehold Mortgagee such subordination. 15 Notwithstanding the above, Lessor shall not be obligated to execute a 16 new lease if, at such time, a person other than Lessor or Leasehold 17 Mortgagee is asserting a claim that execution of a new lease by Lessor 18 wrongfully clouds ti tle to an estate in the leased property held by such 19 person, unless Lessee or a Leasehold Mortgagee undertakes in writ1ng to 20 1ndemnify, defend and hold Lessor and Lessor's elective and appointive 21 boards, commissions, officers, agents and employees harmless from and 22 against any and all liab1l1ty, loss, damage or expense, 1ncluding 23 attorneys' fees, incurred by Lessor as a result of executing a new lease 1n 24 accordance with this Paragraph. 25 28. Lease Applicable to Successors, Etc. 26 This Lease and the terms, covenants and conditions hereof apply to, and 27 are binding on the heirs, successors, executors, administrators and assigns 28 of the parties hereto. 12/20/89 16 25 26 27 28 12/20/89 . o 1 29. Compl.te Agr....nt/L.ase. 2 This document repr.sents the total and complete a9reement and no 3 oth.r written and/or oral agreements exist in this regard. 4 / / 5 / / 6 / / 7 I I 8 I I 9 IN WITNESS WHEREOF. the parties hereto hav. ex.cuted thi s agreement 10 on the date first above written. 11 12 LESSOR: CITY. OF SAN BERNARDINO 13 14 DATED: 15 16 ArnST: 17 18 19 20 21 22 DATED: 23 24 Approv.d as to form and l.gal content: By: Cf ty Clerk LESSEE: SIMCHOWITZ-W NO.1 BY IT'S GENERAL PARTNER, nE . HOWI.TZ CORPORATION, CAL FORNIA CORPORATION / .~ \ r, BY :,-./ .(.lA,i.<<, . . , PATRICIA GREEN VICE PRESIDENT JAMES F. PENMAN. Cf ty Attorney By: 17 . , . . 1tG,.3 ., @ ~ @ : ~. II /J4AC. ~ !) 'AC. o. .... Par. , @ " AIr.2 -,Q II 'Cl' ~ , . . ... Jr' @ '.HAC. o - "' I I I I I I II~ I I '. I ~." '-;, , - ItGd 8 , , ;! AIr. ~ 7 ~@ ~ I ~ ~ A~aA ,." -a. LEAseD @ ,...4 I", .c. @) "UAC. MU 4OI-"'1OA Nit. =: !(. - --~. - -_. 1" .,. 2.00' I @ I I ... I ~ I I " ~ I CITY OF SAN BERNARDINO FILE NO.: 15.06-136 LEASE FOR: SIMCHOWITZ-W NO.1. FOR A PARKING LOT LOCATION: SOUTHEAST CORNER OF WATERMAN AVENUE AND CAROLINE STREET ....".. .