HomeMy WebLinkAboutReso 195-2022 (22-944)274015051 v5
DRAFT 10-02-22
Lease Agreement
BGC, Inc.
LEASE AGREEMENT
by and between the
CITY OF SOUTH SAN FRANCISCO
and
THE BOYS AND GIRLS CLUB OF THE PENINSULA
October _____, 2022
274015051 v5
Lease Agreement
Boys and Girls Club
ii
TABLE OF CONTENTS
RECITALS .................................................................................................................................................... 1
ARTICLE I DEFINITIONS; DEMISE OF PROPERTY .................................................................................. 1
1.1 DEFINITIONS .................................................................................................................................. 1
1.2 INCORPORATION OF RECITALS. ................................................................................................. 2
1.3 CREATION OF LEASE .................................................................................................................... 2
ARTICLE II TERM OF LEASE; RENT ......................................................................................................... 2
2.1 TERM ............................................................................................................................................... 2
2.2 RENT................................................................................................................................................ 3
2.3 ADDITIONAL RENT ......................................................................................................................... 3
2.4 TRIPLE NET LEASE ........................................................................................................................ 3
ARTICLE III TAXES, ASSESSMENTS AND OTHER CHARGES ............................................................... 3
3.1 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
4.1 PERMITTED USES .......................................................................................................................... 5
4.2 PROHIBITED USES ......................................................................................................................... 5
ARTICLE V ALTERATIONS AND NEW CONSTRUCTION ........................................................................ 5
5.1 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
6.1 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 PREMISES; ENVIRONMENTAL MATTERS ...................................... 9
7.1 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
274015051 v5
Lease Agreement
Boys and Girls Club
ii
9.1 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 NOTICE AND OPPORTUNITY TO CURE. .................................................................................... 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 REPRESENTATIONS OF THE CITY AND 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 ENTIRE AGREEMENT ..................................................................................................... 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 Property Description
Exhibit B Depiction of the Premises
DRAFT 10-02-22
3434753.1 Lease Agreement
Church Property
1
This LEASE AGREEMENT (this “Lease” or this “Agreement”), dated as of
October ___, 2022 (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 201 West Orange
Avenue, known as Assessor Parcel No. _____________, City of South San Francisco
(the “Property”), as depicted in Exhibit A attached hereto and incorporated herein by this
reference.
B. There is an approximately 21,000 square foot building located on the
Property (the “Building”) that is owned by BGC.
C. The Building is not a part of the Property, and the City has no possessory
interest in, or maintenance responsibility for, the Building.
D. BCG, or its predecessors, have been using a portion of the Property (the
“Premises”), as more particularly depicted on Exhibit B attached hereto and incorporated
by this reference, pursuant to a permit originally approved by the City and County of San
Francisco and assigned to the City in 2008.
E. The City parking lots adjacent to the Premises are specifically excluded
from this Lease, may not be exclusively used by BCG and shall remain open for the
general public’s use.
F. The City has agreed to lease the Premises to BGC and BGC desires to
lease the Premises 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.
G. 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.
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:
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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).
(j) “Hazardous Materials Laws” is defined in Section 7.4.2.
(k) “Impositions” is defined in Section 3.1.
(l) “Improvements” is defined in Section 5.1.
(m) “Indemnitees” 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.
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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 Premises for the Term subject to the terms and conditions and for the
purposes set forth in this Agreement.
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 October
___, 2022 (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 upon written request to City and approval of a Renewal Term
by City. 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.
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 or final Renewal Term, or the
earlier termination of this Lease, BGC shall remove the Building and deliver the Premises
to the City free and clear of the Building and any debris related to the Building or use of
the Premises. In the event that BGC does not remove the Building from the Premises,
the City has the right to demolish and remove the Building from the Premises and to
charge BGC for the costs of demolition and removal. BCG will promptly reimburse the
City for the costs of demolition and removal within thirty (30) days of receipt of an invoice
for the costs. 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
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 III, including but not limited to all taxes, insurance
274015051 v5
Lease Agreement
Boys and Girls Club
ii
premiums, utility costs, and all other liabilities and obligations which BGC assumes or
agrees to pay or undertake pursuant to this Agreement.
2.4 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 Premises 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
management of the Premises; 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); fire detection 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 repair of playground equipment; and all other costs and
expenses paid or incurred with respect to the Premises. 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 III
TAXES, ASSESSMENTS AND OTHER CHARGES
3.1 Impositions. Throughout the Term, BGC shall pay prior to delinquency, all real
property taxes, 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
Premises 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 Premises 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 Premises 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
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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 “Indemnitees”) harmless from and against 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 III, 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 Premises 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 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 youth of the
274015051 v5
Lease Agreement
Boys and Girls Club
ii
community and promote juvenile health, wellness and life skills and shall not include
activities such as Events as that term is defined in San Francisco Municipal Code section
6.48.010(c) (the “Permitted Use”). Use of the Premises 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 guaranty
City approval for any Event permit application.
4.2 Prohibited Uses. BGC shall not use the Property or the Building 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 Premises
(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 Premises, 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 nonresponsibility on the Premises.
(f) For major construction or reconstruction and alteration of the Premises,
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 Premises.
274015051 v5
Lease Agreement
Boys and Girls Club
ii
5.2 Right to Demolish. Notwithstanding any other provisions of this Article V, BGC has
the right to remove the Building located on the Property, subject to the obligation of BGC
to construct or reconstruct new Improvements that will permit BGC to provide the
Permitted Use.
5.3 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.
5.4 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.
5.5 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 Indemnitees harmless from and against all liability, loss,
damages, costs and expenses (including reasonable attorney’s fees) incurred by or
brought against the Indemnitees 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.
5.6 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. For the avoidance of doubt, the Building shall remain the
property of BCG.
ARTICLE VI
NONDISCRIMINATION, MAINTENANCE
6.1 Uses. BGC may use the Premises 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 or the Building to be used in whole or in part during the Term for any
purpose other than as permitted pursuant to this Agreement.
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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 premises
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 Premises for the purposes set forth herein.
6.4 Maintenance. At BGC’s sole cost and expense throughout the Term, BGC shall
operate, maintain and manage the Premises including all walls, windows, roofs, outdoor
playground equipment, landscaping, including but not limited to the landscaped area
along Orange Avenue located between the street and the Building, 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 Premises. 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 Premises or adjacent to the Building, 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 or the Building under this
Lease.
6.5 Compliance with All Applicable Law. BGC shall conduct the Permitted Use and
occupy and use the Premises in compliance with all local, state and federal laws, rules,
regulations, orders and decrees which are applicable to BGC, the Property and the
Premises 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
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
274015051 v5
Lease Agreement
Boys and Girls Club
ii
proceeding. BGC shall indemnify, defend (with counsel approved by the City), protect
and hold the Indemnitees 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 PREMISES; ENVIRONMENTAL MATTERS
7.1 Condition of the Premises.
7.1.1 AS-IS Condition. BGC will lease the Premises in its “AS IS” condition as
such condition exists as of the Commencement Date. BGC is responsible for ensuring
that the Premises meet 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 representations or warranties expressed or implied regarding
the condition of the Premises 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. BGC acknowledges and agrees that prior to the
Effective Date it has made such investigations of the Property, including without limitation
such inquiries of governmental agencies, soils testing, tests and inspections as City
deemed necessary to determine the condition of the Property, and has approved all such
characteristics and conditions and shall lease the Property in its condition as of the
Effective Date “AS-IS” “WHERE-IS” AND WITH ALL FAULTS. BGC further
acknowledges that the City has made available all data and information on the Property
available to the City, but without warranty or representation by the City as to the
completeness, correctness or validity of such data and information, except as otherwise
set forth in this Agreement.
7.2 BGC’s Covenants. BGC hereby covenants and agrees that throughout the Term:
(a) The Premises, and the use and operation thereof, shall be in compliance
with all Hazardous Materials Laws, and BGC shall not cause or permit the Property, the
Premises or any portion thereof to be in violation of any Hazardous Materials Laws.
(b) BGC shall not permit the Property, the Premises, 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 or the Premises with the
exception of materials customarily used in construction, operation, use or maintenance
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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, the Premises 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, the Premises 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 Premises; or (iv) BGC’s discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Premises 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 Premises
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 Building or 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 in the Building or 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
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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 Building or the Property.
7.3 Environmental Indemnity. BGC shall indemnify, defend (with counsel reasonably
acceptable to the City) and hold the Indemnitees 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 the 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 under BGC’s’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
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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 Indemnitees 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 Premises,
(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 Premises, 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 Indemnitees. This Section shall
survive the expiration or earlier termination of this Agreement.
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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 Building, 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 Indemnitees 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 Building or 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 Building or 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 Building or
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 Building or Property.
If BGC does not elect to restore the Building or 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
274015051 v5
Lease Agreement
Boys and Girls Club
ii
Termination by the City to BGC. If this Agreement is terminated pursuant to this
paragraph on or before the Expiration Date, BGC shall promptly remove the Building from
the Property and vacate the Property.
10.2 Notice Required. In the event of material damage to or destruction of the Building,
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. BGC may
274015051 v5
Lease Agreement
Boys and Girls Club
ii
transfer the Building, with City’s consent, upon the termination of this Agreement;
provided that the Building will continue to be used for the Permitted Use.
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 on the Property.
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 (i) when prevented by Force Majeure
or (ii) in the event that BGC determines and provides notice to the City that it is in the best
interest of BGC to demolish the Building and construct new Improvements that will best
permit BGC to provide the Permitted Use to the citizens in the community and
construction of those Improvements will take longer than 90 days;
(d) Permitted Use. If BGC uses the Property or the Building for a purpose other
than the Permitted Use; or
274015051 v5
Lease Agreement
Boys and Girls Club
ii
(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 Premises 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 Reserved.
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.
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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 delays, 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
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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
by law.
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;
274015051 v5
Lease Agreement
Boys and Girls Club
ii
(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: City of South San Francisco
P.O. Box 711
South San Francisco, CA 94083
Attn: City Manager
Telephone: (650) 829-6620
BGC: 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.
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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.
274015051 v5
Lease Agreement
Boys and Girls Club
ii
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
274015051 v5
Lease Agreement
Boys and Girls Club
ii
IN WITNESS WHEREOF, the Parties have entered into this Lease as of the
Effective Date.
TENANT: CITY:
BOYS AND GIRLS CLUB OF CITY OF SOUTH SAN FRANCISCO
THE PENINSULA
By: __________________________ By:
Its: City Manager
ATTEST:
______________________________
City Clerk
APPROVED AS TO FORM
City Attorney
274015051 v5
DRAFT 10-02-22
5232818.1
A-1
Exhibit A
PROPERTY DESCRIPTION
[TO BE PROVIDED]
274015051 v5
DRAFT 10-02-22
5232818.1
B-1
Exhibit B
DEPICTION OF PREMISES
[TO BE PROVIDED]