HomeMy WebLinkAboutReso 104-2025 (25-744)
LEASE AGREEMENT
by and between the
CITY OF SOUTH SAN FRANCISCO
and
THE BOYS AND GIRLS CLUB OF THE PENINSULA
[MONTH DAY], 2025
274015051 vs
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TABLE OF CONTENTS
RECITALS ............................................................................................................................................... 1
ARTICLE I DEFINITIONS; DEMISE OF PROPERTY................................................................................ 1
ll DEFINITIONS ····································································································· ••••••1 .Ll. INCORPORATION OF RECITALS ............................................................................................... 2
Ll CREATION OF LEASE ................................................................................................................ 2
ARTICLE II TERM OF LEASE; RENT ...................................................................................................... 2
2. J_ TERM .......................................................................................................................................... 2
2.2 RENT .......................................................................................................................................... 3
2.3 ADDITIONAL RENT ..................................................................................................................... 3
2.4 TRIPLE NET LEASE .................................................................................................................... 3
ARTICLE Ill TAXES, ASSESSMENTS AND OTHER CHARGES ............................................................. 3
ll IMPOSITIONS ............................................................................................................................ 3
3.1.1 INSTALLMENTS ................................................................................................................ 4
3.1.2 EVIDENCE OF PAYMENT. ................................................................................................. 4
3.2 CITY RIGHT TO CONTEST ......................................................................................................... 4
3.3 CITY DUTY TO FILE .................................................................................................................... 4
ARTICLE IV USE OF PROPERTY ........................................................................................................... 5
il PERMITTED USES ..................................................................................................................... 5
4.2 PROHIBITED USES .................................................................................................................... 5
ARTICLE V ALTERATIONS AND NEW CONSTRUCTION ....................................................................... 5
hl CHANGES AND ALTERATIONS .................................................................................................. 5
5.2 RIGHT TO DEMOLISH ................................................................................................................ 6
5.3 COMPLIANCE WITH LAWS ......................................................................................................... 6
5.4 INDEMNITY ................................................................................................................................ 6
5.5 MECHANIC'S LIENS ................................................................................................................... 7
5.6 OWNERSHIP OF IMPROVEMENTS ............................................................................................ 7
ARTICLE VI NONDISCRIMINATION, MAINTENANCE ............................................................................ 7
§J. USES .......................................................................................................................................... 7
6.2 NONDISCRIMINATION .............................................................................................................. 8
6.3 EASEMENTS: RESERVATION OF RIGHTS ................................................................................. 8
6.4 MAINTENANCE.......................................................................................................................... 8
6.5 CITY RIGHT TO CONTEST ......................................................................................................... 8
ARTICLE VII CONDITION OF THE PROPERTY; ENVIRONMENTAL MATTERS .................................... 9
L.1 CONDITION OF THE PROPERTY................................................................................................ 9
7.1.1 AS-IS CONDITION .............................................................................................................. 9
7.1.2 NO REPRESENTATION .................................................................................................... 9
7.2 CITY'S COVENANTS .................................................................................................................. 9
7.3 ENVIRONMENTAL INDEMNITY................................................................................................ 11
7.4 DEFINITIONS ........................................................................................................................... 11
7.4.1 HAZARDOUS MATERIALS .............................................................................................. 11
7.4.2 HAZARDOUS MATERIALS LAWS .................................................................................... 12
ARTICLE VIII [RESERVED] ................................................................................................................... 12
ARTICLE IX INDEMNITY AND INSURANCE ......................................................................................... 12
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U INDEMNITY .............................................................................................................................. 12
9.2 INSURANCE REQUIREMENTS ................................................................................................ 12
ARTICLE X DAMAGE AND DESTRUCTION .......................................................................................... 13
10.1 DAMAGE OR DESTRUCTION ................................................................................................... 13
10.2 NOTICE REQUIRED ................................................................................................................. 13
ARTICLE XI THE CITY'S RIGHT TO PERFORM TENANT'S COVENANTS ........................................... 14
ARTICLE XII MORTGAGES ................................................................................................................... 14
12.1 NON-SUBORDINATION OF FEE ............................................................................................... 14
12.2 CITY FINANCING ..................................................................................................................... 14
ARTICLE XIII ASSIGNMENT, TRANSFER, SUBLETTING; NONDISTURBANCE AND ATTORNMENT
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 14
13.1 RESTRICTIONS ON TRANSFER ............................................................................................... 14
13.2 ASSUMPTION AGREEMENT AND RELEASE ............................................................................ 15
13.3 NONDISTURBANCE ................................................................................................................ 16
ARTICLE XIV DEFAULT, REMEDIES AND TERMINATION ................................................................... 16
14.1 EVENT OF DEFAULT ................................................................................................................ 16
14.2 NOTICEANDOPPORTUNITYTOCURE.................................................................................... 17
14.2.1 NOTICE OF DEFAULT ................................................................................................. 17
14.2.2 FAILURE TO GIVE NOTICE: NO WAIVER .................................................................... 17
14.3 .THE CITY'S REMEDIES ............................................................................................................. 17
14.4 REMEDIES CUMULATIVE ......................................................................................................... 18
14.5 RESERVED .............................................................................................................................. 18
14.6 SURVIVAL OF OBLIGATIONS ..................................................................................................... 19
ARTICLE XV GENERAL PROVISIONS .................................................................................................. 19
15.1 FORCE MAJEURE: EXTENSION OF TIMES OF PERFORMANCE. ............................................. 19
15.2 RESERVED .............................................................................................................................. 19
15.3 THE CITY'S RIGHT TO ENTER THE PROPERTY ........................................................................ 19
15.4 REPRESENTATIONSOFTHECITYAND BGC.......................................................................... 20
15.5 MISCELLANEOUS ................................................................................................................... 20
15.5.1 SEVERABILITY............................................................................................................ 20
15.5.2 NOTICES ..................................................................................................................... 21
15.5.3 CAPTIONS; CONSTRUCTIO ....................................................................................... 21
15.5.4 SUCCESSORS AND ASSIGNS .................................................................................... 22
15.5.5 SHORT FORM OF LEASE ............................................................................................ 22
15.5.6 GOVERNING LAW ....................................................................................................... 22
15.5.7 ATTORNEYS' FEES ..................................................................................................... 22
15.5.8 INDEMNITY INCLUDES DEFENSE COSTS ................................................................. 22
15.5.9 NO THIRD-PARTY BENEFICIARIES; DISCLAIMER OF PARTNERSHIP,
LENDER/BORROWER RELATIONSHIP. ...................................................................................... 22
15.5.10 ENTIREAGREEMENT ................................................................................................. 23
15.5.11 WAIVER; MODIFICATION ........................................................................................... 23
15,5.12 TIME IS OF THE ESSENCE. ........................................................................................ 23
15.5.13 COUNTERPARTS ....................................................................................................... 23
15.5.14 NON-LIABILITY OF OFFICIALS, EMPLOYEES AND AGENTS ..................................... 23
Exhibit A
Exhibit B
Description of the Property
Depiction of the Premises
. I
This LEASE AGREEMENT (this "Lease" or this "Agreement"), dated as of
[MONTH DAY], 2025 (the "Effective Date"), is entered into by and between the City of
South San Francisco, a California municipal corporation (the "City") and the Boys and
Girls Club of the Peninsula, a California nonprofit Corporation ("BGC"). The City and
BGC are hereafter each referred to as a "Party" and collectively referred to as the
"Parties."
RECITALS
A. The City is the owner of fee title to real property located at 840 West Orange
Avenue, known as Assessor Parcel No. 013-250-050, City of South San Francisco (the
"Property"), as depicted in Exhibit A attached hereto and incorporated herein by this
reference.
B. The South San Francisco Unified School District (District) is the owner of
fee title to real property located at 825 Southwood Drive , known as Assessor Parcel No.
013-011-010, City of South San Francisco (the “Adjacent Property”) depicted in Exhibit B
attached hereto and incorporated herein by this reference . Approximately 6,000 square
feet of the Adjacent Property is incorporated into the parking lot of the Property . The City
and the District have a license agreement in place for use of the portion of the Adjacent
Property incorporated into the parking lot . BGC must obtain a separate license or similar
agreement from the District for use of the portion of the parking lot that is part of the
Adjacent Property.
C. BGC will use the Property, including the building formerly operated as the
West Orange Library and the adjacent parking lot ..
D. The City parking lots on the Property are specifically included in this Lease,
except for the portion on the Adjacent Property, but may not be exclusively used by BCG
and shall remain open for the City and other tenants’ use.
E. The City has agreed to lease the Property to BGC and BGC desires to lease
the Property to operate a community membership club for youth six to eighteen years of
age, offering programs in character and leadership development, education and career
development, health and life skills, the arts, sports, recreation and fitness (the "Permitted
Use"), as set forth in this Agreement.
F. The City has determined that this Agreement is consistent with the General
Plan and will be of benefit to the health and welfare of the citizens of the City.
G. The lease of the Property is temporary to assist BGC during construction of
their permanent facility at 201 W. Orange Avenue. The Property will be returned to civic
uses by the City at the end of the Term or termination of the Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the City and BGC hereby agree as of the
Effective Date as follows:
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ARTICLE I
DEFINITIONS; DEMISE OF PROPERTY
1.1 Definitions. For purposes of this Agreement, the following terms have the
meanings set forth in this Section. Additional definitions are set forth in the Recitals and
the text of this Agreement.
(a) "Applicable Laws" is defined in Section 6.5.
(b) "Rent" is defined in Section 2.2.
(c) "Claims" is defined in Section 3.2.
(d) "Commencement Date" is defined in Section 2.1.
(e) "Expiration Date" is defined in Section 2.1.
(f) "Fixtures" is defined in Article IV.
(g) "Force Majeure" is defined in Section 15.1.
(h) "Hazardous Materials" is defined in Section 7.4.1.
(i) "Hazardous Materials Claims" is defined in Section 7.2(c).
G) "Hazardous Materials Laws" is defined in Section 7.4.2.
(k) "Impositions" is defined in Section 3.1.
(I) "Improvements" is defined in Section 5.1.
(m) "lndemnitees" is defined in Section 3.2.
(n) "Lease Termination" is defined in Section 2.1.
(o) "Property" is defined in Recital A.
(p) "Remedial Work" is defined in Section 7.2(e).
(q) "Renewal Term" is defined in Section 2.5.
(r) "Permitted Use" is defined in Recital E and Article IV.
(s) "Term" is defined in Section 2.1.
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1.2 Incorporation of Recitals. The Parties acknowledge the truth of the Recitals set
forth above, and all such Recitals are hereby incorporated into this Agreement.
1.3 Creation of Lease. The City hereby leases to BGC, and BGC hereby leases from
the City, the Property for the Term subject to the terms and conditions and for the
purposes set forth in this Agreement. City shall retain possession of rooms within the
former West Orange Library building, to be specified in writing by City. The specified
rooms will be used for storage and operati on of City computer systems. The specified
rooms shall remain locked with only City employees having access. City will retain
reasonable access rights to the specified rooms.
ARTICLE II
TERM OF LEASE; RENT
2.1 Term of Lease, Extension of Term.
2.1.1 Term. The term of this Agreement (the "Term") shall commence on [MONTH
AND DAY] , 2025 (the "Commencement Date"), and unless terminated earlier pursuant
to the provisions hereof, shall expire on the third (3rd) annual anniversary of the
Commencement Date (the "Expiration Date").
2.1.2 Extension of Term. Provided BGC is not in default under this Agreement,
BGC shall have the right to request an extension of the Term up to three (3) times for a
period of one (1) year each (each, a "Renewal Term") upon the same terms and
conditions set forth herein. BGC shall request an extension by delivering a written notice
to the City by no later than ninety (90) days prior to the expiration of the Term or
subsequent Renewal Term. The City has the right to accept or deny the request for a
Renewal Term in its sole but reasonable discretion. In the event that BGC’s facility at 201
W. Orange Avenue has received a certificate of occupancy, BGC shall not request, and
the City may reasonable deny a request for a Renewal Term.
2.1.3 Expiration of Term or Renewal Term. The expiration of the Term, the
Renewal Term or the sooner termination of this Agreement shall be referred to as "Lease
Termination."
2.1.4 Surrender. Upon the expiration of the Term, final Renewal Term, or the
earlier termination of this Lease, BGC shall deliver the Property to the City better than or
equal to the conditions found at the beginning of the lease . In the event that BGC does
not deliver the Property to the City in a condition that is better than or equal to the
conditions found at the beginning of the lease, The City will charge BGC for the cost to
return the Property to a condition that is equal to the conditions found at the beginning of
the lease. Costs to be reimbursed shall include costs incurred by internal staff as well as
any outside contractors.
2.2 Rent. On the Commencement Date, and on each anniversary of the
Commencement Date during the Term, and any extension of the Term, BGC shall pay
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to the City rent for the Property ("Rent") in the amount of One Dollar ($1.00).
2.3 Additional Rent. As additional Rent, BGC shall pay and discharge when due, all
Impositions described in Article 111, including but not limited to all taxes, insurance
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premiums, utility costs, and all other liabilities and obligations which BGC assumes or
agrees to pay or undertake pursuant to this Agreement.
2.4 Penalty Rent In recognition of the Rent Subsidy.
2.4.1 BGC shall provide priority to children living within the boundaries of the
South San Francisco Unified School District (the “SSF Children”) for program
participation. For two weeks prior to general enrollment in BGC programs, SSF Children
shall be offered priority enrollment. If after this priority enrollment period fewer than 51%
of available slots have been filled by SSF Children, then the remaining slots between
those filled during priority enrollment and 51% shall be reserved for SSF Children to fill
during the regular enrollment period.
2.4.2 No later than July 15 of each calendar year during the Lease Term, BGC
shall provide the City with a written report (“Enrollment Report”) detailing the percentage
of total available slots filled by SSF Children during the prior twelve (12) month period
between July 1 and June 30 (such 12 -month period, the “Enrollment Year”). If the
Enrollment Report evidences that fewer than 51% of total available slots were filled by
SSF Children during the Enrollment Year, then BGC shall have the immediately
following Enrollment Year (the “Cure Year”) to achieve a minimum of 51% of total
available slots being filled by SSF Children. If, at the end of the Cure Year, the
Enrollment Report evidences that BGC was unable to achieve a minimum of 51% or
total available slots being filled by SSF Children during such Cure Year, then an annual
penalty rent of $150,000 shall be retroactively assessed against BGC for such Cure
Year only (“Annual Penalty Rent”). Such Annual Penalty Rent shall be paid by BGC in
full no later than [___________]. The Annual Penalty Rent rate of $150,000 shall
increase 10% every 10 years during the Lease Term, regardless if BGC is assessed the
Annual Penalty Rent or not. If, at the end of any Cure Year, the Enrollment Report
evidences that BGC has achieved a minimum of 51% o f total available slots being filled
by SSF Children, then no Annual Penalty Rent shall be assessed against BGC or the
Property.
2.4.3 Nothwithstanding the foregoing, if BGC is unable to met the enrollment
requirements during the Cure Year, then, within 90 days following the end of such Cure
Year, BGC shall have the right to propose in writing (the “Proposal”) to the City a
revised requirement enrollment threshold, subject to review and appro val by the City
Council, for children enrolled in school in the City based on changing demographics in
the surrounding community. Such Proposal shall include reasonable details on BGC’s
efforts to satisfy the existing enrollment threshold. If BGC and the C ity are unable to
agree upon a revised required enrollment threshold within three months following BGC's
delivery of the Proposal to the City, then BGC shall have the right to terminate the
Lease, effective as of the end of the then -current Enrollment Year.
2.5 Triple Net Lease. This is a triple net lease to BGC. It is the intent of the Parties
that the Rent shall be an absolutely net return to the City, and that BGC shall pay all costs
and expenses relating to the Property of any kind or nature whatsoever. Such costs and
expenses shall include, without limitation, all amounts attributable to, or paid or incurred
in connection with, the ownership, operation, repair, restoration, maintenance and
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management of the Property; real property taxes, rent taxes; gross receipt taxes (whether
assessed against the City or assessed against BGC and collected by the City, or both);
water and sewer charges; insurance premiums; utilities; refuse disposal; lighting (including
outside lighting); elevator and other conveyance systems; fire / life safety systems including
monitoring, maintenance and repair; security; janitorial services; labor; air -conditioning
and heating; maintenance and repair costs and service contracts; costs of licenses,
permits and inspections; costs of landscaping; maintenance ; and all other costs and
expenses paid or incurred with respect to the Property. Notwithstanding anything to the
contrary in this Section 2.4, costs of repairs and maintenance actually reimbursed to the
City by any other party will not be the responsibility of BGC.
ARTICLE Ill
TAXES, ASSESSMENTS AND OTHER CHARGES
3.1 Impositions. Throughout the Term, BGC shall pay prior to delinquency, ,
possessory interest taxes, license and permit fees, sales, use or occupancy taxes,
assessments whether general or special, ordinary or extraordinary, unforeseen, as well
as foreseen, of any kind or nature whatsoever, pertaining to the Property or part thereof,
including, but not limited to (i) any assessment, levy, imposition or charge in lieu of or in
substitution for real estate taxes, and (ii) any assessment for public improvements or
benefits which is assessed, levied, or imposed upon or which becomes due and payable
and a lien upon (a) the Property or any part thereof or any personal property, equipment
or other facility used in the operation thereof, (b) the rent or income received by BGC from
subtenants or licensees, (c) any use or occupancy of the Property or part thereof, or (d)
this transaction or any document to which BGC is a party creating or transferring an estate
or interest in the Property or part thereof. All of the foregoing are hereinafter referred to
as "Impositions." Impositions shall not include business professional, occupational and
license taxes, federal, state or local income taxes, franchise, gift, transfer, excise, capital
stock, estate, succession, or inheritance taxes.
3.1.1 Installments. If by law any Imposition is Payable, or may at the option of the
taxpayer be paid in installments (whether or not interest shall accrue on the unpaid
balance of such Imposition), BGC may pay the same together with any accrued interest
on the unpaid balance of such Imposition in installments as the same respectively become
due and before any fine or penalty may be added thereto for the nonpayment of any such
installment and interest. Any Impositions relating to tax years that are only
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partially included in the Term of this Agreement shall be prorated between BGC and the
City.
3.1.2 Evidence of Payment. Upon request by the City, BGC shall furnish, in form
satisfactory to the City, evidence of payment prior to delinquency of all Impositions
payable by BGC.
3.2 BGC Right to Contest. BGC shall have the right before any delinquency occurs to
contest or object to the amount or validity of any Imposition by appropriate legal
proceedings, but such right shall not be deemed or construed in any way as relieving,
modifying or extending BGC's covenant to pay any such Imposition at the time and in the
manner required by law. Any such contest shall be conducted in accordance with and
subject to the requirements of all Applicable Laws and otherwise in a manner that does
not subject the City's title to the Property to foreclosure or forfeiture. BGC shall indemnify,
defend, and hold the City and its board members, employees, agents and representatives
(all of the foregoing, collectively the "lndemnitees") harmless from and a gainst all
liabilities, losses, damages, fines, deficiencies, penalties, claims, demands, suits, actions,
causes of action, legal or administrative proceedings, judgments, costs and expenses
(including without limitation reasonable attorneys' fees and court costs)(all of the
foregoing, collectively "Losses") arising as a result of or in connection with any such
contest brought by BGC. During any contest of an Imposition, BGC shall (by payment of
disputed sums, if necessary) prevent any advertisement of tax sale, foreclosure of, or any
divesting of the City's title, reversion or other interest in the Property. Upon final
determination of the amount or validity of any Imposition contested pursuant to this
Section 3.2, BGC shall immediately pay such Imposition and all costs and expenses
relating to such challenge.
3.3 BGC Duty to File. BGC shall have the duty of making or filing any declaration,
statement or report which may be necessary or advisable in connection with the
determination, equalization, reduction or payment of any Imposition which is or which may
become payable by BGC under the provisions of this Article 111, and shall notify the City
in writing upon making such filing, declaration, statement or report, and the City shall not
be responsible for the contents of any such declaration, statement or report; provided
however, the City shall cooperate with BGC in connection with the foregoing, including
joinder in any application pertaining thereto to the extent required under Applicable Law,
all at no cost to the City.
ARTICLE IV
USE OF PROPERTY
4.1 Permitted Use. BGC is only permitted to use the Property for the provision of youth
related programs in compliance with all local, state and federal laws, rules, regulations,
orders and decrees which are applicable to such use and such use shall be conducted in
a manner that does not unreasonably and negatively impact the surrounding
neighborhood with respect to parking and/or noise. For purposes of this Agreement, the
provision of youth related programs means BGC's provision of programs that serve the
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youth of the
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community and promote juvenile health, wellness and life skills and shall not include
activities such as Events as that term is defined in South San Francisco Municipal Code
section 6.48.010(c) (the "Permitted Use"). Use of the Property for Events shall require
BGC to obtain an Event permit from the City pursuant to Chapter 6.48 of the South San
Francisco Municipal Code. The fact that the Parties have entered into this Lease does not
guarantee City approval for any Event permit application.
4.2 Prohibited Uses. BGC shall not use the Property for any use that is not a Permitted
Use, including, but not limited to: (i) drug rehabilitation programs; (ii) homeless shelter or
for any other overnight occupation; (iii) use by any other entity other than BGC except as
permitted herein.
ARTICLE V
ALTERATIONS AND NEW CONSTRUCTION
5.1 Changes and Alterations. All changes, alterations and/or additions to the Property
(collectively, the "Improvements") must receive prior written approval from the City. The
Improvements shall be made at BGC's sole cost and expense and shall comply with all
of the following:
(a) The Improvements, if and when completed, shall not materially impair the
value of the Property.
(b) The Improvements shall be necessary or desirable for the Permitted Use.
(c) The Improvements shall be made in a good and workmanlike manner and
in accordance with all applicable permits and all Applicable Laws.
(d) During the construction of any Improvements in, to or of, the Property, or
'the permitted demolition or new construction or any restoration, BGC shall comply with
the insurance requirements set forth in Section 9.2, which policy or policies by
endorsement thereto, if not then covered, shall also insure any change, alteration or
addition or new construction, including all materials and equipment incorporated in, on or
about the Property.
(e) For minor construction, change, alteration or repair, BGC shall deliver to the
City not later than ten (10) business days written notice of the proposed work, a general
description of the proposed work and sufficient information to permit the City to post a
notice of non-responsibility on the Property.
(f) For major construction or reconstruction and alteration of the Property, BCG
shall go through the planning processes required under the South San Francisco
Municipal Code. The fact that the Parties have entered into this Lease does not guaranty
City approval for any proposed project to be constructed on the Property.
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5.2 Compliance with Laws. BGC shall carry out the construction of the Improvements
in conformity with all local, state and federal rules, regulations, orders and decrees which
are applicable to such construction.
5.3 Construction Indemnification . At its sole discretion, the City may participate at its
own expense in the defense of any claim, action or proceeding, but such participation
shall not relieve BGC of any obligation imposed by this Agreement. The City shall notify
BGC promptly of any Claim, action or proceeding and cooperate fully in its defense.
The City agrees to defend, indemnify and hold harmless BGC and BGC Parties
from any claim, action or proceeding against BGC Parties arising solely out of the gross
negligence or willful misconduct of the City in the performance of this Agreement. At its
sole discretion, BGC may participate at its own expense in the defense of any claim,
action or proceeding, but such participation shall not relieve the City of any obligation
imposed by this Agreement. BGC shall notify the City promptly of any claim, action or
proceeding and cooperate fully in the defense.
5.4 Mechanic's Liens. Subject to the right to contest the same prior to payment, BGC
shall keep the Property free and clear of all mechanics' liens and other liens on account
of work done by BGC. BGC shall indemnify, defend (with counsel reasonably acceptable
to City) and hold such the lndemnitees harmless from and against all liability, loss,
damages, costs and expenses (including reasonable attorney's fees) incurred by or
brought against the lndemnitees for claims of lien of laborers or materialmen or others for
work performed or materials or supplies furnished to BGC or persons claiming under it.
In the event any lien is recorded, BGC shall, within twenty (20) days following such
recordation, cause such lien to be removed of record by bonding or otherwise.
5.5 Ownership of Improvements. All Improvements constructed on the Property
immediately become the property of the City and shall remain on the Property upon
termination of this Agreement.
ARTICLE VI NONDISCRIMINATION,
MAINTENANCE
6.1 Uses. BGC may use the Property for the Permitted Use as described herein and
for no other purposes without the prior written consent of the City. BGC shall not use or
permit the Property to be used in whole or in part during the Term for any purpose other
than as permitted pursuant to this Agreement.
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6.2 Nondiscrimination. BGC herein covenants by and for itself, it's heirs, executors,
administrators, and assigns, and all persons claiming under or through it, and this lease
is made and accepted upon and subject to the following conditions: that there shall be no
discrimination against or segregation of any person or group of persons, on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as
those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1)
of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the
leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Property
herein leased.
6.3 Easements: Reservation of Rights. The City reserves the right to locate and
construct its own utilities and to grant nonexclusive easements across the Property for
utility and other purposes including the installation, maintenance, repair and replacement
of utilities; provided that the exercise of such rights do not unreasonably interfere with
BGC's use of the Property for the purposes set forth herein.
6.4 Maintenance.
6.4.1 At BGC's sole cost and expense throughout the Term, BGC shall operate,
maintain and manage the Property including all walls, windows, roofs, landscaping and
improvements thereon in good order and repair and in neat, clean sanitary and safe
condition in compliance with all local, state and federal laws, rules, regulations, orders and
decrees relating to the use, occupancy or operation of the Property. BGC shall ensure
that the Property is served by adequate lighting in accordance with applicable building
codes. BGC shall keep and maintain all portions of the Property in a clean and orderly
condition, free of accumulation of dirt, rubbish, and graffiti. If graffiti or accumulation of
dirt and/or rubbish occurs on the Property, it shall be BGC's sole responsibility to timely
remove it at its sole cost and expense. The City has no responsibility for any maintenance
of any part of the Property under this Lease.
6.4.2 BGC shall obtain permits from the City for all maintenance work on the
Property for which permits are legally required. For maintenance work for which permits
from the City are not required, BGC shall provide written notice to City prior to commencing
work that would modify any portion of the former West Orange Library, the parking lot on
the Property, or any other system or piece of physical infrastructure or improvements on
the Property.
6.5 Compliance with All Applicable Law . BGC shall conduct the Permitted Use and
occupy and use the Property in compliance with all local, state and federal laws, rules,
regulations, orders and decrees which are applicable to BGC and the Property including
without limitation, all environmental, health and safety, employment laws and maximum
occupancy limits as specified by the South San Francisco Fire Department ("Applicable
Law").
6.6 BGC Right to Contest. BGC shall have the right to contest by appropriate
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proceedings, in the name of BGC, and without cost or expense to the City, the validity or
application of any Applicable Law. If compliance with any Applicable Law may legally be
delayed pending the prosecution of any such proceeding without the incurrence of any
lien, charge or liability against the Property or City's interest therein, and without
subjecting BGC or the City to any liability, civil or criminal, for failure so to comply
therewith, BGC may delay compliance therewith until the final determination of such
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proceeding. BGC shall indemnify, defend, protect and hold the lndemnitees harmless
from and against all Claims arising in connection with any such contest brought by BGC.
The foregoing indemnity obligation shall survive the expiration or earlier termination of
this Agreement.
ARTICLE VII
CONDITION OF THE PROPERTY; ENVIRONMENTAL MATTERS
7.1 Condition of the Property.
7.1.1 AS-IS Condition. BGC will lease the Property in its "AS IS" condition as
such condition exists as of the Commencement Date . BGC has examined the condition
of the Property and by taking possession acknowledges that they have accepted the
Property in good order and in its current condition. Starting on the Commencement
Date,BGC is responsible for ensuring that the Property meets the requirements of all
Applicable Laws including, but not limited to, all requirements of the Americans with
Disabilities Act.
7.1.2 No Representations. BGC acknowledges that except as expressly set forth
herein, the City makes no other representations or warranties expressed or implied
regarding the condition of the Property or the fitness or suitability thereof for BGC's
purposes. including but not limited to, the condition of the soil, its geology, topography, the
presence or absence of fill, the presence or absence of Hazardous Materials, drainage,
flood zone designation, or compliance with Hazardous Materials Laws, and no patent or
latent defect or deficiency in the condition of the Property shall affect the rights of BGC or
the City hereunder. BGC shall rely solely on its own independent investigation and
judgment as to all matters relating to the Property.
7.2 BGC's Covenants. BGC hereby covenants and agrees that throughout the Term:
(a) BGC’s use and operation of the Property shall be in compliance with all
Hazardous Materials Laws, and BGC shall not cause or permit the Property or any portion
thereof to be in violation of any Hazardous Materials Laws.
(b) BGC shall not permit the Property or any portion thereof to be a site for the
use, generation, treatment, manufacture, storage, disposal or transportation of
Hazardous Materials nor shall BGC permit the presence or release of Hazardous
Materials in, on, under, about or from the Property with the exception of materials
customarily used in construction, operation, use or maintenance
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of childcare facilities, provided such materials are used, stored and disposed of in
compliance with Hazardous Materials Laws.
(c) Upon receiving knowledge of the same, BGC shall immediately advise the
City in writing of: (i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against BGC or the Property
pursuant to any applicable Hazardous Materials Laws; (ii) any and all complaints, claims,
citations, demands, inquiries, reports, or notices made or threatened by any third party
against BGC or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials; (iii) the presence or
release of any Hazardous Materials in, on, under, about or from the Property; or (iv) BGC's
discovery of any occurrence or condition on any real property adjoining or in the vicinity
of the Property classified as "Border Zone Property" under the provisions of California
Health and Safety Code, Sections 25220 et seq., or any regulation adopted in connection
therewith, that may in any way affect the Property pursuant to any Hazardous Materials
Laws or cause it or any part thereof to be designated as Border Zone Property. The
matters set forth in the foregoing clauses (i) through
(iv) are hereinafter referred to as "Hazardous Materials Claims." The City shall have the
right to join and participate in, as a party if it so elects, any legal proceedings or actions
initiated in connection with any Hazardous Materials Claim, and to have its reasonable
attorney's fees in connection therewith paid by BGC .
(d) Without the City's prior written consent, which shall not be unreasonably
withheld, BGC shall not take any remedial action in response to the presence of any
Hazardous Materials in, on, under, or about the Property (other than in emergency
situations or as required by governmental agencies having jurisdiction in which case the
City agrees to provide its consent), nor enter into any settlement agreement, consent
decree, or other compromise with respect to any Hazardous Materials Claim.
(e) If the presence of any Hazardous Material on the Property due to any of the
occurrences specified in Section 7.3 (Environmental Indemnity) results in any
contamination of the Property in violation of Hazardous Materials Laws, BGC shall
promptly take all actions at its sole expense as are necessary to remediate the Property
as required by law; provided that the City's approval of such actions shall first be obtained,
which approval may be withheld in the City's reasonable discretion. All costs and
expenses of any Remedial Work shall be paid by BGC, it being understood that the City
shall incur no cost, expense or liability in connection with any Remedial Work. The City
shall have the right, but no obligation, to join and participate in, as a party if it so elects at
the City's cost, any legal proceedings or actions initiated in connection with any
Hazardous Material Claims. For purposes of this Agreement, "Remedial Work" means
all investigation, testing, analysis, monitoring, restoration, abatement, detoxification,
containment, handling, treatment, removal, storage, decontamination, clean -up,
transport, disposal or other ameliorative work or response action required by (i) any
Hazardous Materials Laws, (ii) any order or request of any federal, state or local
governmental agency, or (iii) any judgment, consent decree, settlement or compromise
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with respect to any and all enforcement, clean -up, removal, remedial or other
governmental or regulatory actions or agreements or orders threatened, instituted, or
completed pursuant to any Hazardous Materials Laws or any actions, proceedings or
claims by such entities or third parties relating to or arising out of the breach of any
Hazardous Materials Laws or the presence or release of any Hazardous Material in, on,
under or from the Property.
7.3 Environmental Indemnity. BGC shall indemnify, defend (with counsel reasonably
acceptable to the City) and hold the lndemnitees harmless from and against all Claims
arising during the Term and resulting, arising, or based directly or indirectly in whole or in
part, upon (i) the use, generation, discharge, transport, storage or disposal of any
Hazardous Materials on, under, in or about, or the transportation of any such Hazardous
Materials to or from the Property during the Term, (ii) the failure of BGC, BGC's
employees, agents, contractors, subcontractors, licensees, permittees, or any person
acting on behalf of any of the foregoing to comply with Hazardous Materials Laws, or
(iii) the breach by BGC of any of its covenants contained in this Article VII. The foregoing
indemnity shall further apply to any residual contamination in, on, under or about the
Property or affecting any natural resources, and to any contamination of any property or
natural resources arising in connection with BGC’s generation, use, handling, treatment,
storage, transport or disposal of any such Hazardous Materials, and irrespective of
whether any of such activities were or will be undertaken in accordance with Hazardous
Materials Laws and shall include, without limitation, any Claims arising in connection with
any investigation of site conditions or any cleanup, remedial, removal or restoration work
ordered by a court or required by any federal, state, or local governmental agency or
political subdivision. Notwithstanding anything to the contrary contained herein, nothing
in this Section 7.3 shall be construed to make BGC responsible for any Hazardous
Materials which migrate onto the Property through air, water, or soil through no fault of
BGC, or are introduced by any third party not unde r BGC's control. This Section 7.3 shall
survive the expiration or earlier termination of this Agreement.
7.4 Definitions.
7.4.1 Hazardous Materials. As used herein, "Hazardous Materials" means any
substance, material, or waste which is or becomes regulated by any local, state or federal
authority, agency or governmental body, including any material or substance which is: (i)
defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous
waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of
the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law); (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner
Hazardous Substance Account Act); (iii) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Section 25501 of the California Health and
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and Inventory); (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated
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biphenyls; (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous"
pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter
20; (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean
Water Act (33 U.S.C. §1317); (x) defined as a "hazardous waste" pursuant to Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42
U.S.C. §6903); or (xi) defined as "hazardous substances" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
§9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be
amended.
7.4.2 Hazardous Materials Laws. As used herein "Hazardous Materials Laws"
means all federal, state and local laws, ordinances, regulations, orders and directives
pertaining to Hazardous Materials, including without limitation, the laws, statutes and
regulations cited in the preceding Section 7.4.1, as any of the foregoing may be amended
from time to time.
ARTICLE VIII
[RESERVED]
ARTICLE IX
INDEMNITY AND INSURANCE
9.1 Indemnity. BGC shall indemnify, defend (with counsel reasonably acceptable to
the City) and hold the lndemnitees harmless from and against any and all Claims arising
during the Term and arising from or in connection with any of the following: (i) BGC's
(including its employees, agents, representatives, guests, invitees, contractors, and
consultants) (collectively, the "BGC Parties") operation or management of the Property,
(ii) any work or thing done on or in the Property by the BGC Parties, (iii) any condition of
any alteration or addition constructed by the BGC Parties on the Property, (iv) any breach
or default by the BGC Parties in the performance of any covenant or agreement to be
performed by BGC pursuant to the terms of this Agreement, (v) any gross negligence of
the BGC Parties, (vi) any accident, injury or damage caused to any person and occurring
during the Term in or on the Property, and (vii) the furnishing of labor or materials by the
BGC Parties. In the event any such action or proceeding is brought against the City by
reason of any such Claim, BGC, upon notice from the City, covenants to defend such
action or proceeding by counsel reasonably satisfactory to the City. If an insurer under
insurance required to be maintained by BGC hereunder shall undertake to defend the
City under a reservation of rights with respect to ultimate coverage and the City shall
reasonably deem it necessary to retain independent counsel with respect to such matter,
BGC shall pay the reasonable fees of such counsel. The obligations of BGC under this
Article IX shall not apply to any Claim or other matter to the extent such arises as a result
of the gross negligence or willful misconduct of the lndemnitees. This Section shall
survive the expiration or earlier termination of this Agreement.
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9.2 Insurance Requirements. BGC shall procure, at its sole expense, and maintain in
full force and effect during the Term, the following insurance naming the City as additional
insured and/or loss payee:
a. Comprehensive General Liability insurance against claims for bodily and
personal injury, death and property damage caused by or occurring in conjunction with
the operation of the Property with a policy limit of at least Two Million Dollars ($2,000,000)
per occurrence.
b. BGC shall maintain property insurance covering all risks of loss including
flood (if required) for 100% of the replacement value of the Property and any
Improvements, naming the City as loss payee as its interests may appear.
c. Workers' compensation insurance that complies with the statutory
requirements of the state of California.
d. Automobile liability insurance for owned, hired and non -owned vehicles,
with a combined single limit of at least One Million Dollars ($1,000,000).
If BGC undertakes the construction of the Improvements pursuant to Article V,
BGC shall ensure that its general contractor carries liability, property damage, workers'
compensation, and builder's risk insurance throughout construction of the Improvements,
naming the lndemnitees as additional insureds and otherwise in compliance with all
requirements set forth in this Section 9.2.
ARTICLE X
DAMAGE AND DESTRUCTION
10.1 Damage or Destruction. In the event of any damage to or destruction of the
Property during the Term, BGC shall elect by written notice delivered to the City within
one hundred eighty (180) days following the date of the occurrence of the damage to
either terminate this Agreement or restore and rebuild the Property to be useable for the
Permitted Use, subject to any restrictions imposed by changes in any Applicable Law. If
BGC elects to restore the Property or any improvements thereon, BGC shall commence
diligently and continuously to carry out such rebuilding to full completion as soon as
possible and shall commence reconstruction of the Property by the date upon which
insurance proceeds are made available for such work, or such reasonable period of time
that is necessary to design a new building and to get such approvals and permits that are
necessary to construct the new building. BGC shall not be required to expend more than
the insurance proceeds in the restoration or rebuilding of the Property.
If BGC does not elect to restore the Property to be useable for the Permitted Use the City
may exercise its right to terminate this Agreement pursuant to Section 14.3. This
Agreement shall terminate upon delivery of written notice of
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Termination by the City to BGC. If this Agreement is terminated pursuant to this
paragraph on or before the Expiration Date, BGC shall promptly vacate the Property.
10.2 Notice Required. In the event of material damage to or destruction of the Property,
or any part thereof, BGC shall promptly give the City notice of such occurrence and take
all actions reasonably required to protect against hazards caused by such damage or
destruction. For purposes of this Article X, damage or destruction shall be deemed to be
material if the estimated cost to repair equals or exceeds One Hundred Thousand Dollars
($100,000).
ARTICLE XI
THE CITY'S RIGHT TO PERFORM BGC'S COVENANTS
If BGC shall at any time fail to pay any Imposition or other charge payable by BGC
to a third party as required by this Agreement, or to comply with the requirements set forth
in Section 9.2 pertaining to insurance, or to make any other payment or perform any other
act on its part to be made or performed hereunder within the time permitted by this
Agreement, then the City, after thirty (30) days' written notice to BGC and without waiving
or releasing BGC from any obligation of BGC hereunder, may (but shall not be required
to): (i) pay such Imposition or other charge payable by BGC; (ii) pay for and maintain the
insurance policies required pursuant to this Agreement, or (iii) make such other payment
or perform such other act on BGC's part to be made or performed under this Agreement;
and the City may enter upon the Property upon no less than 48 hours' written notice for
such purpose and take all such action thereon as may be reasonably necessary therefor.
All costs and expenses actually incurred by the City, including but not limited to
internal staff costs, in connection with any such payment or the performance of any such
act shall constitute additional Rent payable by BGC under this Agreement and shall be
paid by BGC to the City on demand.
ARTICLE XII
MORTGAGES
12.1 Non-Subordination of Fee. Nothing in this Agreement shall be construed as an
agreement by the City to subordinate its fee interest in the Property or its right to rent
payments hereunder or any other right of the City herein.
ARTICLE XIII
ASSIGNMENT, TRANSFER, SUBLETTING; NONDISTURBANCE AND
ATTORNMENT
13.1 Restrictions on Transfer. BGC shall not sublease or otherwise convey ("Transfer")
its leasehold interest hereunder or any portion of its interest in the Property.
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13.2 Assumption Agreement and Release. No permitted Transfer shall be effective until
any curable default hereunder shall have been cured and there shall have been delivered
to the City an assumption agreement, executed by the transferor and the proposed
transferee, whereby such transferee expressly assumes such obligations as arise and/or
accrue at any time after such Transfer takes place; and whereby such transferee assumes
liability for the obligations of this Agreement.
13.3 Nondisturbance. Provided that BGC is not in default under this Agreement, BGC's
possession, use and enjoyment of the Property shall not be interfered with, disturbed or
diminished, or otherwise affected in any manner as a result of any act or omission of the
City, or any exercise of any remedies under this Agreement. BGC shall also ensure that
its possession, uses and enjoyment of the Property does not interfere with, disturb or
diminish or otherwise affect in any manner any other tenants or users of the Property. As
of the Effective Date, the Property is subject to a Site Lease Agreement with New Cingular
Wireless PCS, LLC for 300 square feet (more or less) for the operation and maintenance of
a personal communication services facility (the “Cingular Lease”), shown on Exhibit A. The
Cingular Lease includes the right of the tenant to cross the Property for the purpose of
accessing the leased. As of the Effective Date, the Property is also subject to a license
agreement with the YMCA for storage and distribution of fo od, diapers, and other items (the
“YMCA License”). The YMCA license includes a right of access to the parking lot by YMCA
employees and volunteers and members of the public for the purpose of the YMCA’s
distribution events.
ARTICLE XIV
DEFAULT, REMEDIES AND TERMINATION
• 14.1 Event of Default. BGC shall be in default under this Agreement upon the
continuation of any of the following for ninety (90) days after the City gives BGC a written
Notice of Default (as defined in Section 14.2.1); provided however, if the default is of a
nature that it cannot be cured within ninety (90) days, an Event of Default shall not arise
hereunder if BGC commences to cure the default within ninety (90) days and thereafter
prosecutes the curing of such default with due diligence and in good faith to completion
("Events of Default"):
(a) Monetary Obligation. BGC at any time is in default hereunder as to any
obligation (including without limitation, BGC's obligation to pay taxes and assessments
due on the Property or part thereof, subject to BGC's rights to contest such charges
pursuant to Section 3.2);
(b) Insurance. BGC fails to obtain and maintain any insurance required
pursuant to Section 9.2 of this Agreement;
(c) Abandonment. BGC abandons the Property and ceases to use it for the
Permitted Use for a period of ninety (90) days or more or as established pursuant to
Section 1951.3 of the California Civil Code except when prevented by Force Majeure;
(d) Permitted Use. If BGC uses the Property for a purpose other than the
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Permitted Use; or
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(e) Liens. BGC's failure to satisfy the requirements of Section 5.6 hereof within
the time periods specified therein.
14.2 Notice and Opportunity to Cure.
14.2.1 Notice of Default. Upon the occurrence of a default hereunder, the non-
defaulting party shall deliver a notice to the nonperforming party (the "Notice of Default"),
stating the nature of the obligation which such nonperforming party has failed to perform,
and stating the applicable period of time, if any, permitted to cure the default.
14.2.2 Failure to Give Notice: No Waiver. Failure to give, or delay in giving, the
Notice of Default shall not constitute a waiver of any obligation, requirement or covenant
required to be performed hereunder. No failure or delay by either party in asserting any
rights and remedies as to any breach shall operate as a waiver of any breach or of any
such rights or remedies. Delay by either party in asserting any of its rights and remedies
shall not deprive such party of the right to institute and maintain any action or proceeding
which it may deem appropriate to protect, assert or enforce any such rights or remedies.
14.3 The City's Remedies. Upon the occurrence of any Event of Default, following
BGC's opportunity to cure set forth in Section 14.2.1, and in addition to any and all other
rights or remedies of the City hereunder and/or provided by law, the City shall have the
right to terminate this Agreement and/or BGC's possessory rights hereunder, in
accordance with applicable law to re-enter the Property and take possession thereof. The
City's re-entry or taking of possession of the Property shall not be construed as an election
on the City's part to terminate this Agreement unless the City gives written notice of such
intention to BGC.
14.4 Remedies Cumulative. No remedy shall be considered exclusive of any other
remedy, but the same shall be cumulative and shall be in addition to every other remedy
provided hereunder.
14.5 BGC’s Right to Terminate. BGC shall have the right to Terminate this Lease at any time
upon ninety (90) days’ prior notice to the City.
14.6 Survival of Obligations. Nothing herein shall be deemed to affect the right of the
City under Article IX of this Agreement to indemnification for liability arising prior to the
termination of this Agreement for personal injuries or property damage, nor shall anything
herein be deemed to affect the right of the City to equitable relief where such relief is
appropriate. No expiration or termination of the Term by operation of law, or otherwise,
and no repossession of the Improvements or any part thereof shall relieve BGC of its
previously accrued liabilities and obligations hereunder, all of which shall survive such
expiration, termination or repossession.
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ARTICLE XV
GENERAL PROVISIONS
15.1 Force Majeure: Extension of Times of Performance. Subject to the limitations set
forth below, performance by either Party shall not be deemed to be in default, and all
performance and other dates specified in this Agreement shall be extended where delays
are due to: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties,
acts of God, acts of the public enemy, epidemics, pandemics, quarantine restrictions,
freight embargoes, governmental restrictions or priority, litigation, including court dela ys,
unusually severe weather, acts or omissions of the other Party, acts or failures to act of
any public or governmental agency or entity (other than the Parties which shall not excuse
delay in performance), or any other cause beyond the affected Party's reasonable control
(all of the foregoing "Force Majeure"). An extension of time for any such cause shall be
for the period of the enforced delay and shall commence to run from the time of the
commencement of the cause, if notice by the Party claiming such extension is sent to the
other Party within thirty (30) days of the commencement of the cause and such extension
is not rejected in writing by the other Party within ten (10) days of receipt of the notice.
Neither Party shall unreasonably withhold consent to an extension of time pursuant to this
Section.
Times of performance under this Agreement may also be extended in writing by
the mutual agreement of the City (acting in the discretion of its City Manager unless
he or she determines in his or her discretion to refer such matter to City Council) and
BGC. Each Party expressly assumes the risk of such adverse economic or market
changes and/or financial inability, whether or not foreseeable as of the Effective Date.
15.2 Reserved.
15.3 The City's Right to Enter the Property. The City and its agents may enter the
Property from time to time with 14 days' notice to ensure that the Property is being used
or improved in compliance with the Permitted Use.
15.4 Representations of the City and BGC.
15.4.1 BGC hereby represents and warrants that all of the following are true and
correct as of the Effective Date:
(a) BGC has taken all requisite action in connection with the execution
of this Agreement and the undertaking of the obligations set forth herein. This Agreement
constitutes the legally valid and binding obligation of BGC, enforceable against BGC in
accordance with its terms, except as it may be affected by bankruptcy, insolvency or
similar laws or by legal or equitable principles relating to or limiting the rights of contracting
parties generally; and
(b) The execution of this Agreement and the acceptance of the
obligations set forth herein do not violate any court order or ruling binding upon BGC or
any provision of any indenture, agreement or other instrument to which BGC is a party or
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may be bound. Neither the entry into nor the performance of this Agreement will violate,
be in conflict with or constitute a default under any charter, bylaw, partnership agreement,
trust agreement, mortgage , deed of trust, indenture, contract, judgment, order or other
agreement, charge, right or interest applicable to BGC.
15.4.2 The City hereby represents and warrants that all of the following are true
and correct as of the Effective Date:
(a) The City has taken all requisite action in connection with the
execution of this Agreement and the undertaking of the obligations set forth herein. This
Agreement constitutes the legally valid and binding obligation of the City, enforceable
against the City in accordance with its terms, except as it may be affected by bankruptcy,
insolvency or similar laws or by legal or equitable principles relating to or limiting the rights
of contracting parties generally; and
(b) The execution of this Agreement and the acceptance of the
obligations set forth herein do not violate any court order or ruling binding upon the City
or any provision of any indenture, agreement or other instrument to which the City is a
party or may be bound. Neither the entry into nor the performance of this Agreement will
violate, be in conflict with or constitute a default under any charter, bylaw, partnership
agreement, trust agreement, mortgage, deed of trust, indenture, contract, judgment, order
or other agreement, charge, right or interest applicable to the City.
15.5 Miscellaneous.
15.5.1 Severability. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be held by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent permitted
bylaw.
15.5.2 Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Agreement shall be made in writing, and sent to the Parties at their
respective addresses specified below or to such other address as a Party may designate
by written notice delivered to the other parties in accordance with this Section. All such
notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt;
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(iii) nationally recognized overnight courier, with charges prepaid or
charged to the sender's account, in which case notice is effective on delivery if delivery is
confirmed by the delivery service; or
(iv) electronic transmission, in which case notice shall be deemed
delivered upon transmittal, provided that a duplicate copy of the notice is promptly
delivered by first-class or certified mail or by overnight delivery. Any notice given
electronically shall be considered to have been received on the next business day if it is
received after 5:00 p.m. recipient's time or on a nonbusiness day.
City:
BGC:
City of South San Francisco
P.O. Box 711
South San Francisco, CA 94083
Attn: City Manager
Telephone: (650) 829-6620
Boys and Girls Club of the Peninsula
401 Pierce Road.
Menlo Park, CA 94025
Attn: Chief Administrative Officer
Telephone:
15.5.3 Captions; Construction. The section headings and captions used herein are
solely for convenience and shall not be used to interpret this Agreement. The Parties
acknowledge that this Agreement is the product of negotiation and compromise on the
part of both Parties, and the Parties agree that since both Parties have participated in the
negotiation and drafting of this Agreement with the advice of counsel, this Agreement
shall not be construed as if prepared by one of the Parties, but rather according to its fair
meaning as a whole, as if both Parties had prepared it.
15.5.4 Successors and Assigns. Subject to the restrictions on transfer set forth in
Article XV, this Agreement shall be binding upon and shall inure to the benefit of the
Parties and their respective successors and assigns. Any reference in this Agreement to
a specifically named Party shall be deemed to apply to any permitted successor and
assign of such Party who has acquired an interest in compliance with this Agreement as
if in every case so expressed.
15.5.5 Reserved.
15.5.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to principles of conflicts
of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior
Court of San Mateo County, California or in the Federal District Court for the Northern
District of California.
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15.5.7 Attorneys' Fees. If either Party commences an action against the other to
enforce any obligation contained herein, or to interpret any provision hereof, the prevailing
party shall be entitled to recover from the other Party reasonable counsel fees, costs and
necessary disbursements, as determined by the court having jurisdiction over the action.
15.5.8 Indemnity Includes Defense Costs. In any case where either Party is
obligated under an express provision of this Agreement, to indemnify and to save the
other Party harmless from any damage or liability, the same shall be deemed to include
defense of the indemnitee by the indemnitor, such defense to be through legal counsel
reasonably acceptable to the indemnitee.
15.5.9 No Third-Party Beneficiaries: Disclaimer of Partnership, Lender/Borrower
Relationship. Nothing contained in this Agreement is intended to or shall be deemed to
confer upon any person, other than the Parties any rights or remedies hereunder. The
relationship of the parties under this Agreement is solely that of the landlord and tenant,
and it is expressly understood and agreed that the City does not as a result of this
Agreement in any way nor for any purpose become a partner of BGC or a joint venturer
with BGC in the conduct of BGC's business or otherwise. This Agreement is not intended
to, and shall not be construed to, create the relationship of principal and agent,
partnership, joint venture, or association as between the City and BGC. It is further
expressly understood and agreed that this Agreement is not intended to, and shall not be
construed to create the relationship of lender and borrower, and the City does not, solely
as a result of this Agreement, become a lender to BGC.
15.5.10 Entire Agreement. This Agreement, together with Exhibits A and B, which
by this reference are hereby incorporated herein, contains the entire agreement between
the Parties relative to the transactions covered hereby. All previous correspondence,
communications, discussions, agreements, understandings or proposals and
acceptances thereof between the Parties or their representatives, whether oral or written,
are deemed to have been integrated into and superseded by this Agreement and are of
no further force and effect except as expressly provided in this Agreement.
15.5.11 Waiver: Modification. No waiver of any breach of any covenant or
provision of this Agreement shall be deemed a waiver of any subsequent breach of the
same or any other covenant or provision hereof. No waiver shall be valid unless in writing
and executed by the waiving party. An extension of time for performance of any obligation
or act shall not be deemed an extension of the time for performance of any other obligation
or act, and no extension shall be valid unless in writing and executed by the waiving party.
This Agreement may be amended or modified only by a written instrument executed by
the Parties.
15.5.12 Time is of the Essence. Time is of the essence of this Agreement and of
each provision hereof.
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15.5.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which together shall constitute
one and the same instrument.
15.5.14 Non-Liability of Officials, Employees and Agents. No member, official,
employee or agent of BGC shall be personally liable to City or its successors in interest
in the event of any default or breach by BGC or for any amount which may become due
from BGC or BGC's permitted successors in interest pursuant to this Agreement.
SIGNATURES ON THE NEXT PAGE
ii
IN WITNESS WHEREOF, the Parties have entered into this Lease as of the
Effective Date.
TENANT:
BOYS AND GIRLS CLUB OF
THE PENINSULA
By:
Its:
CITY:
CITY OF SOUTH SAN FRANCISCO
By
City Manager
APPROVED AS TO FORM
City Attorney
5302837.1
Exhibit A
DEPICTION OF THE PROPERTY
Exhibit B
DEPICTION OF THE SCHOOL DISTRICT PROPERTY