HomeMy WebLinkAboutThe Boys and Girls Club of Huntington Valley - 2010-05-17 Council/Agency Meeting Held: / /C7
Deferred/Continued to:
AAppr vec, ❑ Conditionally Approved ❑ Denied City' ler�s Signat re
-t
Council Muueeting Date: May 17, 2010 Department ID Number: ED 10-20
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Administrator
PREPARED BY: Stanley Smalewitz, Director of Economic Development
SUBJECT: Approve and authorize execution of an Estoppel Certificate for The
Boys and Girls Club of Huntington Valley located at 2309 Delaware St.
Statement of Issue: The Boys and Girls Club of Huntington Valley is requesting City
Council approval of an Estoppel Certificate. This is required in order for the Boys and Girls
Club to obtain a Letter of Credit to secure a program grant for future services for their
preschools and after school programs.
Financial Impact: Not Applicable
Recommended Action: Motion to:
Authorize Mayor to execute the Estoppel Certificate for the Boys and Girls Club of Huntington
Valley.
Alternative Action(s):
Do not approve the Estoppel Certificate for the Boys and Girls Club of Huntington Valley.
-37- Item S. - Page 1
REQUEST FOR COUNCIL ACTION
MEETING DATE: 5/17/2010 DEPARTMENT ID NUMBER: ED 10-20
Analysis: In 1986, the City Council approved a land-lease Agreement with the Boys and
Girls Club of Huntington Valley for 5.8 acres of McCallen Park and the construction of the
facility, which is owned by the Boys and Girls Club. This Agreement is for fifty (50) years and
also calls for the continued use of the facilities as a Boys and Girls Club of America and
maintenance of the park.
Independence Bank is underwriting a Letter of Credit in the amount of $750,000 for the Boys
and Girls Club of Huntington Valley to secure a program grant for future services for their
preschools and after school programs. These funds will also allow the Boys and Girls Club to
buy equipment and hire staff. It is anticipated that these funds will allow the Boys and Girls
Club to offer services to the community for the next ten (10) years.
The Club has offered their leasehold as collateral for the loan. The leasehold improvements,
which are owned by the Boys and Girls Club, are located on land leased to them by the City
of Huntington Beach. Independence Bank is requiring the City of Huntington Beach, as
property owner, to sign the attached Estoppel Certificate in connection with their Letter of
Credit.
The City Attorney's Office and Community Services have reviewed this request and
recommend its approval.
Environmental Status: Not Applicable
Strategic Plan Goal: Maintain, improve and obtain funding for public improvements.
Attachment(s):
.
1. Lessor's Estoppel Certificate
Item 5. - Page 2 -38-
ATTACHMENT # 1
LESSOR'S ESTOPPEL CERTIFICATE
TO WHOM IT MAY CONCERN:
Re: Lease dated November 3, 1986, by City of Huntington Beach as Lessor and Boys & Girls Club of Huntington Valley as
Lessee for 2309 Delaware Street, Huntington Beach,CA("Premises"),as amended 6-21-96 (collectively,the"Lease") and
guaranteed by ("Guarantor(s)")(it will be presumed no amendments or guarantees exist unless stated above).
he City of Huntington Beach
Lessor hereby certifies:
1, True and complete copies of the Lease and all amendments thereto and any guaranties thereof are attached as Exhibit 1.
2. The Lease term commenced 11-03-1986 and expires 11-03-2036
3. Lessee's current monthly rent and pass-through expenses, if any,are as follows: None
4. No rents or pass-through expenses have been prepaid except(if no exceptions write"none"): None
5. Other than the documents included in Exhibit 1 there are no oral or written agreements or understandings between Lessor
and Lessee as to the Premises except(if no exceptions write"none"): Lessee performs park maintenance
6. The current amount of Lessee's security deposit held by Lessor is$ 2,000.00
7. The Lease is in effect and is Lessor's and Lessee's entire agreement,except(if no exceptions write"none"): None
8. The improvements and space required to be provided by Lessor have been provided and completed,and all promises of an
inducement nature by Lessor have been fulfilled except(if no exceptions write"none"): None
9. Lessor is not in default and doesn't believe Lessee is in default of the Lease, except(if no exceptions write"none"):None.
10, There are no disputes between Lessor.and Lessee concerning the Lease, the Premises or the improvements thereon,
except(if no exceptions write"none"): None
11. To Lessor's knowledge, Lessee is in complete possession of the Premises and has not assigned, sublet, transferred or
encumbered any portion of the Premises or the Lease,except(if no exceptions write"none"): None
12. Lessor is unaware of any alterations or additions to the Premises by Lessee except(if no exceptions write"none"): None.
13. The guarantees of the Guarantors are in effect,except(if no exceptions write"none"): None
14. Lessor is not currently the subject of a bankruptcy proceeding and to Lessor's knowledge neither Lessee nor any Guarantor
is involved in such a proceeding,except(if no exceptions write"none"): None
15. Additional items(if no additional items write"none"): None
16. Lessor consents to the reliance on Lessor's statements in this Estoppel Certificate by Lessee's lender.
Dated: May 17, 2010 CITY OF HU TINGTON BEACH
By:
Printed Name:
Title:
CADocuments and SettingslkrausetIocal SettingslTemporary Intemet FileslOLKALesso(s Estoppel Certdoc
GROUND LEASE AGREEMENT BETWEEN THE
CITY OF HUNTINGTON BEACH AND THE BOYS AND GIRLS CLUB
OF HUNTINGTON VALLEY
THIS LEASE AGREEMENT is made ana executed on ,
19b6 , between the CITY OF FUNTINGTON BEACH (CITY) , a municipal
corporation organized and existing under the laws of the State of
California , having as its ousiness address at 2000 Main Street,
Huntington Beach , California 92648 , herein referred to as LESSOR,
and the BOYS AND GIRLS CLUB OF HUNTINGTON VALLEY (CLUB) , a non-
profit corporation organized and existing under the laws of the
State of California having its principal office at 19699 Education
Lane , Huntington Beach, California 92646, herein referred to as
LESSEE .
RECITALS
'WHEREAS, LESSOR owns McCallen Park , property consisting or
live-and-eight-tenths ( 5. 8 ) acres , lying between Delaware Street
and Huntington Street at Wichita Avenue, in the City of Huntington
peach , County of Orange, California , more particularly described
in Exhibit A, attached hereto and incorporated herein by this
reference; and,
The property is currently unimproved parkland, zoned R2-0 by
the CITY . LESSEE desires to lease the property for the purpose of
constructing a full-service Boys and Girls Club facility thereon
and providing the use and services of said facility to the general
public and the surrounding community; and,
LESSOR desires to lease the property and shall landscape the
property . LESSOR shall install walkway lights , but lights for
-41 a 1- Item 5. - Page 5
parking and sports fields shall be the responsibility of LESSEE.
NOW THEREFORE, the parties covenant and agree as follows :
1 . DEFINITIONS.
For the purposes of this Lease Agreement and all incorporated
documents :
a . The term " Land" means and refers to McCallen Park , as
described above , including facilities , buildings , parking, land-
scaping , signs and appurtenances to be constructed thereon.
b . The term " Improvements " means and refers to buildings and
other structures , excavations , paving and landscaping and other
improvements hereafter erected or placed upon the Land, plus all
fixtures , including trade fixtures , attached thereto ;
C . The term "Premises " means and refers to the Land and
those Improvements located on the Land from time to time ;
d . The term "Facility" means and refers to the Improvements
to be constructed for office , meeting , programs and other usual
Boys and Girls Club purposes .
2 . LEASE OF PROPERTY; TERM.
The Term of this Lease Agreement is fifty ( 50 ) years . Such
Term shall commence on the date of issuance to LESSEE of a
Certificate of Occupancy by the City of Huntington Beach in its
governmental capacity . The parties agree to negotiate in good
faith for an extension of the Lease Agreement Term at the
conclusion thereof . However , the parties are aware of the
possible application of California Government Code, Section 37380
to any extension of the Term hereof .
item 5. m Page 6 -42-_2_
3. WARRANTIES OF TITLE AND QUIET POSSESSION.
LESSOR covenants that LESSOR is seized of the land in fee
simple and has full right to make this Lease Agreement, and that
LESSEE shall have quiet and peaceable possession of the Premises
during the Term hereof .
4. PURPOSE.
LESSEE shall use the Premises for the usual and customary
recreational services and facilities provided by the Boys and
Girls Clubs of America, including but not limited to athletic
facilities , food and beverage services , cultural facilities and
services and other facilities , services and accommodations
assoeiatea thereto .
5 . RENT.
In lieu of the payment of monetary rent to LESSOR, LESSEE is
required , (at its sole expense and cost ) , to maintain and
supervise the Premises for the entire Term of this Lease Agreement .
a . Maintenance Standards . The Premises shall be maintained
at all times in strict accordance with CITY 'S Arboricultural and
Landscape Standard Plans and Specifications , as amended from time
to time , issued by and on file with CITY' S Department of Public
Works ; said plans and specifications are made a part of and incor-
porated herein by this reference .
b . Maintenance Security Deposit. To insure its faithful and
diligent performance of the maintenance requirements set forth
herein, LESSEE shall provide LESSOR, upon the date of issuance of
a Certificate of Occupancy , with a two thousand dollar ($2, 000 )
-43--3- Item 5. - Page 7
cash deposit, payable to LESSOR, to be used by LESSOR to repair
and maintain the Premises upon LESSEE ' S noncompliance with the
maintenance requirements .
Should LESSEE fail at any time to maintain the Premises to the
required standard, LESSOR may, upon ten ( 1Q) days written notice
of such noncompliance, enter the Premises and expend whatever sums
of LESSEE ' S cash deposit as are necessary to return the Premises
to the required state of maintenance . Within twenty ( 20 ) days of
LESSOR ' S written notice of expenditure and the completion of the
required work , LESSEE shall redeposit with LESSOR an amount of
cash equal to that expended by LESSOR in returning the Premises to
the re�iuirea state of maintenance , so as to return LESSEE' S main-
tenance security deposit to the original two thousand dollar
amount . Should LESSEE fail to make up LESSOR' S depose'
expenditures within the allotted twenty ( 20 ) day notice period ,
LESSEE shall be in breach of this Lease Agreement and LESSOR shall
have the the option of terminating this Lease Agreement as
provided in Article 16 herein .
If , at the conclusion of the Term, any maintenance security
aeposit sums remain on deposit with LESSOR they shall be refunded
to LESSEE, less any amounts previously expended by LESSOR and not
made up by LESSEE as required hereunder .
C . Maintenance Deposit Adjustment . LESSOR may require an
adjustment in the amount of the maintenance security deposit on
the fifth anniversary of the commencement date of the Lease
Agreement and on each fifth anniversary of that date thereafter ,
to reflect any change in the costs of maintaining the Premises .
-4-
Item S. - Page 8 -44-
6 . CONSTRUCTION.
LESSEE shall construct on the Premises, at its sole risk and
expense , a Facility for offices , meetings , programs and other
usual Club purposes . This Lease Agreement is made subject to
LESSEE ' S successful completion of and CITY ' S subsequent approval
of Facility construction, provided that in any case said construc-
tion shall begin no later than two ( 2 ) years after the execution
of this Agreement and be completed and ready for use no later than
three ( 3 ) years from execution of this Agreement . The specific
reciuirements pertaining to Facility construction are set forth and
more fully detailed in Exhibit b, attached hereto and, incorporat_ec
herein by this reference . LESSEE shall be responsible for si*_e
preparation for t_r- Cluo ' o bulloing Lind parkinc; lot . Thi_, shall
include , but not be limited To, the necessary excavation anu
recompaction of ' t;ese sites . Should t�;e ex:cavation ar-
recompaction cost be grea--er than $70, 000, the parties agree to
renegotiate this agreement .
r . hYPOTHECATION.
There shall be no hypothecation of the leasehold interest of
the LESSEE without the prior written consent of the LESSOR. Any
suci: consent shall not be in any Iiianner deemed to be a waiver of
any future right of the LESSOR to approve an additional hypothe-
cation . It is the contemplation of the parties that in order to
obtain funds to construct the Facility, the LESSEE may be required
to pledge, mortgage or otherwise hypothecate its leasehold
interest in some reasonable amount which is not foreseeable to the
parties at the time of the execution hereof .
-45--5- Item 5. - Page 9
The consent to hypothecate which is required by this Article
shall not be unreasonably withheld and any such consent shall
provide that the lender or its designee shall receive all notices
of default and shall have the right to cure any defaults which may
be cured by the payment of money and that in the event that
noncurable defaults occur that LESSOR agrees that it will take and
hold the leasehold and not cause the leasehold to merge with its
fee ownership and at its sole option will operate or relet the
Premises or allow the lender to designate who small be the tenant
under this Lease Agreement .
8 . LIENS.
a . LESSEE ' S Duty To Keep Premises Free Of Liens . LESSEE
sail keep all of the Premises ana every part thereof , inc lading
the Facility and all other Improvements at any time located
tnereGn free and clear of any and all it?echanics ' , materlaliilen ' s ,
and other dens for or arisin^ our of or in connection with worn
or labor done , services performea , or materials or appliances used
or furnished for or in connection with any operations of LESSEE,
any alteration, improvement , or repairs or additions which LESSEE
may make or permit or cause to be made, or any work or construc-
tion , by , for , or permitted by LESSEE on or about the Premises , or
any ooiigations of any king incurred by LESSEE. LESSEE shall at
all times promptly and fully pay and discharge any and all claims
on which any. such lien may or could be based, and shall indemnify
LESSOR and all of the Premises , including Facility and
Improvements thereon against all such liens and claims of liens ,
and suits or the proceedings pertaining thereto .
Item 50 - Page 10 -46- 6-
b . Contesting Liens . If LESSEE desires to contest any such
lien, it shall notify LESSOR of its intention to do so within ten
(10 ) days after the claim for such lien has been filed. In such
case , and provided that LESSEE shall on demand protect LESSOR by a
good and sufficient surety bond against any such lien and any
cost , liability, or damage arising out of such contest , LESSEE
shall not be in default hereunder until thirty ( 30 ) days after the
final determination of the validity thereof , within which time
LESSEE shall satisfy and discharge such lien to the extent held
vaiia . However , the satisfaction and discharge of any such lien
shall not , in any case, be delayed until execution is had on .any
judgment rendered thereon, and such delay shall be a default of
LESSEE nereunder . In the event of any such contest , LESSEE shall
protect and inaetitnify LESSOR against all loss , expense , anQ aaI<iage
resulting therefrom.
9 . USES PROHIBITED
LESSEE shall not use or permit the Premises , or any parr
thereof , to be used for any purpose or purposes that will Cause
the cancellation of any insurance policy covering the Land,
Improvements , Premises or Facility , or any part thereof ; nor shall
LESSEE sell , or permit to be kept , usea, or sold , in or about the
Land , Improvements , Premises or Facility any article prohioltea by
the standard form of fire insurance policies . LESSEE shall , at
its sole cost , comply with all requirements , pertaining to the
Premises , of any insurance organization or company, necessary for
the maintenance of insurance , as herein provided, covering any
building appurtenance, activity and/or occurrence at any time on
_7_
-47- Item 5. - Page II
the Premises .
10 . CARE AND INSPECTION OF PREMISES/WASTE.
LESSEE shall at all times maintain the Premises in conformity
with all state and local laws and regulations and to the standards
set forth in Article 4 ( a ) herein .
LESSOR, through its authorized officers , agents or employees
shall have the right to enter the Premises at all reasonable timtes
ro view both the state and condition tnereof and the conduct of
LESSEE ' S business .
LESSEE; shall no} suffer , cause or permit waste on the Prerises
or any part in any manner wnatsoev`r and LESSEE. snail save
and hold harmless LESSOR from any inDury or damage to the Premises
caused by LESSEE, its officers , agents or employees . I,,e riqr.t to
damages from, wastes or in3ury arising from: this Article is
separate from any responsibility or liability for uoaily inDury c:r
for property damage caused by thira parties , against 47nich LESSEE
holds LESSOR harmless under indemnification provisions of this
Lease Agreement .
11 . INDEriNIFICATION , hOLD HARMLESS, DEFENSE.
LESSEE hereby agrees to defend , indemnify and hold harmless
LESSOR, its officers , agents and employees , from ano against any
and all liability , damages , costs , losses , claims and expenses ,
however caused, resulting directly or indirectly from or connected
with LESSEE ' S performance of this Lease Agreement ( including but
-8-
Item 5. - Page 12 -48-
not limited to such liability, cost, damage, loss, claim or
expense arising from the death of or injury to an agent or
employee of LESSEE, subcontractor , or of LESSOR or of damage to
the property of LESSEE, subcontractor , or of LESSOR or of any
agent or employee of LESSEE, subcontractor or LESSOR) , except
where such liability, damages, costs , losses , claims or expenses
are caused solely by the negligent or wrongful acts of LESSOR or
of any of its agents or employees , including negligent omissions
or commissions of LESSOR, its agents or employees .
12 . INSURANCE.
During the entire Term of this Lease Agreel,jent LESSEE shall
maIntaln in full force and effect the following contra --s of
insurance accept-able in ford; to the City Attorney . On eacr: fifth
anniversary of this Lease Agreement , file city may ir: Pose such
ad(.itioIial or revisea ins Trance rE;LI1reIClentS as are `,on ist_nt
with its citywide and general regulations and policies they in
force .
a . Liability
A general liability insurance policy ( in which LESSOR is
named as an Additional Insured ) insuring LESSEE ana its officers
ana employees, while acting within the scope of their duties ,
against any and all claims arising out of or in connection with
this Lease Agreement . The policy shall provide coverage in not
less than the following amounts : combined single limit bodily
injury and/or property damage of One-million Dollars
( $1 , 000, 000 . 00 ) per occurrence . Such policy of insurance shall
specifically provide that any other insurance carried by LESSOR
-9-
-49- Item 5. - Page 13
which may be applicable shall be deemed excess and LESSEE ' S
insurance primary despite any conflicting provisions in said
policy . Liability insurance will be reviewed every five (5 ) years
and limits set by City Council resolution .
b . Fire
A standard broad form fire insurance policy for full
replacement of the Facility itself , as well as the contents
thereof , in which the LESSEE is named and in which any and all
losses are made payable to LESSEE . The face amount of said policy
shall be 100% of building replacement cos} , and be in forir,
acceptable to the City Attorney . If LESSEE does not rebuild or
repair the structure LESSEE shall remove all the structure , and
return the building pad and surrounding area to its original
condir_ion .
C . Worker 's Compensation
LESSEE shall comply with all of the provisions of the ;porker ' s
Compensation Insurance ana Safety Acts of the State of California ,
the applicable provisions of Divisions 4 and 5 of the California
Labor Code and all amendrients }hereto and all similar state cr
federal acts or laws applicable ; and shall , independent of ana in
addition to LESSEE ' S covenant to indemnify and hold LESSOR
harmless in Article 11 herein , indemnity, defend and hold harmless
LESSOR from and against all claims , demands , payments , suits ,
actions , proceedings and judgments of every nature and
description , including attorney ' s fees and costs , presented ,
brought or recovered against LESSOR, for or on account of any
liability under any of said acts which may be incurred by reason
Of LESSEE ' S performance of this Lease Agreement .
-10-
Item 5. - Page 14 -50-
13 . ASSIGNMENT OR SUBLEASE.
Tne interest of the LESSEE in the Premises or the leasehold
may not be transferred, assigned , sublet , licensed or otherwise
conveyed voluntarily or involuntarily by LESSEE without the prior
written consent of LESSOR, which consent shall not be unreasonably
witnhela. The n'ierger or restructure of the Huntington Valley Boys
and Girls Club shall not be deemea subject to this Article 13 . Any
attempt of the LESSEE to violate this covenant not to assign this
Lease Agreement without such prior written consent shall consti-
tute a breach of this Lease Agreement and LESSOR may, at its
option , thereupon terminate this Lease Agreement and immediately
re-enter and reoccupy the Premises .
14 . PrG�iInIT!ON OF ASSIGINF_ENT; EFFECT GF LANKRUPTCY OR
INSOLVENCY
a . Prohibition c_f: Involuntary Assi nment . Neit,ner th1::
Lease Ayreen;ent nor t%e leasehold estate of LESSEE nor any
interest of LESSEE hereunaer in the Premises or in the Facility or_
Improvements thereon shall be subject to involuntary assignment ,
transfer , or sale, or to assignment , transfer , or sale Dy
operation of law in any manner whatsoever (except through
statutory merger or consolidation ) . Any such attempt at involun-
tary assignment , transfer , or sale shall be void and of no effecr .
b . Effect of Bankruptcy . Without limiting the generality of
the provisions of the preceeding Subsection ( a ) of this Article ,
LESSEE agrees that in the event any proceedings under the federal
Bankruptcy Act or any amendment thereto are commenced by or
against LESSEE, and, if against LESSEE, such proceedings shall not
-11-
-51- Stem 5. - Page 15
be dismissed before either an adjudication in bankruptcy or the
confirmation of a composition, arrangement , or plan or reorganiza-
tion, or in the event LESSEE is adjudged insolvent or makes an
assignment for the benefit of its creditors , or if a receiver is
appointed in any proceeding or action to which LESSEE is a party,
with authority to take possession or control of the Premises or
the business conducted thereon by LESSEE, and such receiver is not
discharged within a period of sixty ( 60 ) days after this appoint-
ment , any such event or any involuntary assignment prohibited by
the provisions of the preceding Subsection ( a ) of this Article
shall be deemed to constitute a breach of this Lease Agreement by
LESSEE and shall , at the election of LESSOR, but not otherwise ,
without notice or entry or other action of LESSOR terminate this
Lease Agreement and also all rights of LESSEE ereiina&r aria in anc
to the Premises ana also all rights of any and all persons
claiming under LESSEE .
i5 . TAXES .
Nothing in this 'Lease Agreement shall oe construed to relieve
LESSEE of any obligation to pay any federal , state , county or
local license tax or tax whlcin ivay be imposea or payable by reason
of any statute or ordinance, and LESSEE agrees to pay prompt-ly all
licenses and taxes and other lawful charges that are imposed by
any governmental body or agency including the possessory interest
tax imposed upon LESSEE ' S use of the Premises . Further, nothing
in this Lease Agreement shall be construed as relieving LESSEE of
any obligation to obtain and pay any fees required by City for
permits or licenses , imposed by any ordinance or resolution of the
-12-
Item 5. - Page 16 -52-
City.
16 . DEFAULT, ABANDONMENT, RIGHT OF RE-ENTRY.
Time and each of the terms , covenants and conditions hereof
are expressly made the essence of this Lease Agreement .
Should LESSEE fail to comply with any of the terms , covenants
or conditions of this Lease Agreement , including the maintenance
requirements set forth in Article 5 herein , and fail to remedy
such default within thirty ( 30 ) days after service of written
notice from LESSOR so to do if the default may be cured by the
payment of money, or commence in gooa faith to remedy any other
default within thirty ( 30 ) days and thereafter diligently
prosecute the same to completion, or if LESSEE shall abana0n or
vacate the Premises , LESSOR may , at its option , an6 without pr1or
notice or demanc , terlrlinate this Lease Agreement and enter upon
the rremises and take possession }hereof and remove all perso-1
therefrom with or without process of law . upon such termination ,
LESSEE shall have no further rights hereunder , and all
Improvements shall become the property of LESSOR .
Upon re-entry LESSOR for any reason other than abandonment
LESSOR shall pay to lease a reasonable and fair amount for the
building based upon the useful life of the structure taking into
account the length of time remaining on the lease .
17 . CONDEMNATION.
a . Definition of Terms
( 1 ) 'Taking" means a taking of the Premises or an
-13-
-53- Item 5. - Page 17
interest therein pursuant to, or damage related to the exercise
of, the power of condemnation and includes a voluntary conveyance
to any agency, authority, public utility, person or corporate
entity empowered to condemn property in lieu of court proceedings ;
( 2 ) "Total Taking " means a Taking of the entire Premises
or so much of the Premises as to prevent or substantially impair
the use thereof by LESSEE for the uses proviaed in this Lease
Agreement ,
( 3 ) "Partial Taking " means a Taking of only a portion of
the Premises that does not constitute a Total Taking ;
( 4 ) "Date of making" means the date upon which title to
the Premises , an interest therein , or a portion thereof passes *_:a
and vests in --tie condemnor , the date damage related +-o the
exercise of the Uow`r of co.-ae,T-tnat_ lor,, is Suttereo, or 'he
effective Gate of any oraer for possession if *hat order is issue ,t
prior to the aate `_.i} le vests in the conaej-,mor ;
( �J- ) "Awar a" means the amount of any award Made, corupen-
satlon paid , cr daiciages oraered as a result of a Taking ;
( 6 ) "Total Temporary Taxing" means a Total Taking for a
temporary term; aria,
( 7 ) "Partial Temporary Taking" means a Partial Taking
for a temporary term.
b . Rights
LESSOR aria LESSEE agree that, in the event of a Taking ,
all rights oetween them and in and to an Award shall be as set
forth herein, and LESSEE and LESSOR shall have no right to any
Award except as set forth herein .
-14-
Item 5. - Page 18 -54-
C . Total Taking
In the event of a Total Taking during the Term, (1 ) the
rights of LESSEE under this Lease Agreement and the leasehold
estate of LESSEE in and to the Land shall cease and terminate as
of the Date of Taking, ( 2 ) LESSEE shall pay to LESSOR any sums due
to LESSOR under this Lease Agreement as of the Date of Taking , ( 3 )
LESSEE shall receive from the Award those portions of the Award
that are attributable to the value of, and paid as compensation
for , LESSEE ' S interest in the Improvements , and (4 ) the remainder
of the Award shall be allocated between LESSOR and LESSEE as
follows : to LESSEE for the value of the Improvements ; to LESSOR
for the fee value of the Land ; ana the balance of the Award
between LESSOR and LESSEE as their interest shall appear . The
value of the iriproveri,ents in this context shall mean an aiIcunt
ecjual to the replacement cost of said 7ruprovements less
depreciated value as of the dare the Taking is to be effective .
In the event the parties cannot agree upon the depreciated value
of the Improvements , such value will De determined by ar.
indepenaent appraiser appointed by, and satisfactory to LESSOR and
LESSEE . The expense of such appraisal shall be borne equally by
both parties . In the event the parties shall not agree upon said
appraiser , the dispute shall be handled as described in Article 26
below .
d . Partial Taking
In the event of a Partial Taking during the Term, ( 1 ) the
rights of LESSEE under this Lease Agreement and the leasehold
estate of LESSEE in and to the portion of the Land taken shall
cease and terminate as of the Date of Taking , ( 2 ) LESSEE shall
-15-
-55- Item 5. - Page 19
receive from the Award those portions of the Award that are attri-
butable to the value of, and paid as compensation for, LESSEE' S
interest in the Future Improvements, ( 3 ) the remainder of the
Award shall be allocated between LESSOR and LESSEE as follows : to
LESSEE for the value of the Improvements as defined in Article
17 (c) above ; to LESSOR for the fee value of the Land ; and the
balance of the Award between LESSOR and LESSEE as their interest
shall appear ; and ( 4 ) LESSEE agrees to use whatever severance
damages it receives by reason of the Partial Taking of
Improvements , but not of the Land , to pay the cost of enclosing,
if necessary after all severance carriages received by LESSOR have
Deen expended to pay the cost of enclosing , any Improvement that
is a part of the portion that is not so taken if the Partial
Taxing causes such Improvements to be no longer fully enclosed,
provleea that such severance damages are available t0 T LSS,.::? and
are not taken by a mortgage under a mortgage or beneficiary of a
need of trust encumoering the Land .
e . Temporary Taking
In the event of a Total or Partial Temporary Taking
during the Term for a period ending on or before the expiration of
the Term this Lease Agreement snail continue in full force and
effect , except that the maintenance requirements of Article
herein shall abate during the period of same to the extent of t-he
Taking .
18 . ALTERATIONS, ADDITIONS AND TRADE FIXTURES .
LESSEE shall make no alterations, additions or improvements of
any kind to the exterior of the Facility and no major alteration
-lb-
Item 5. - Page 20 -56-
to the interior without the prior written consent of LESSOR, which
consent shall not be unreasonably withheld . Major alterations
mean construction costs of more than five percent ( 5% ) of the
value of the Facility . All alterations , additions or improvements
snail , at the option of LESSOR, either become a part of the realty
and the property of LESSOR and remain upon and be surrendered with
the Premises at tt,e expiration or termination of the Term, or be
deemed trade fixtures that LESSOR may require LESSEE to remove at
the expiration or termination of the Term as hereinafter provided,
the LESSEE being obligated to return the Facility to fits condition
as originally constructed. All articles of personal property and
trade fixtures installed by LESSEE on the Premises shall be and
remain the property of LESSEE, and may be removed by LESSEE at any
tine auring the Tern: when LESSEE is not in default under tnis
Lease Agreement , and shall be removea by LESSEE promptly upon the
expiration or earlier termination of the Terri .
19 . USE OF PREMISES - FEES AND CHARGES; HOURS .
a . Permitted Uses
LESSEE shall use the Premises only for the purposes set
forth in Article 4 herein .
b . Reasonable Fees and Charges
Reasonable fees and charges comparable to ttiose charged
at like facilities and for like services within Grange County may
be chargea for the services provided and for the use of the
Facility by the LESSEE. All facilities and services shall be open
and available for use by the general public and all public accomi-
modations laws and regulations will be observed .
-17-
-57- Item 5. a Page 21
c . Hours
LESSEE shall provide service to the public and remain
open for business during such hours as best serve the public.
LESSEE ' S schedule of the hours when such services are provided
shall be submitted to LESSOR ' S City Administrator or his designee
for prior written approval , which approval shall not be
unreasonably withheld , any changes or deviations to such schedule
thereafter must be approved in writing by the City Administrator .
d . Lessor ' s Use
LESSOR shall , with proper notice to LESSEE, have the right
to use the facility 12 days per year and may be granted tine in
addition to this ray LESSEE.
20 . UTILIILTES .
LESSEE shall fu111" ana promptly pay for all wa-_er , gas , heat
light , power , telephone service, and other puclic utilities of
every Kirin furnished: to the Premises throughout 1-ne Term hereof ,
and all other costs ana expenses of every kind whatsoever of or in
connection with the use, operation , ana r,aintenance of the
Premises and all activities conducted }hereon . LESSOR shali have
no responsibility of any kind for any thereof .
21 . LESSOR ' S RIGHT TO PERFORM.
In addition to and notwithstanding any provision of Article
5 (b ) herein , in the event that LESSEE, by failing or neglecting to
do or perform any act or thing herein required to be done or
performed , shall be in default hereunder and should such failure
continue for a period of ten ( 10 ) days after written notice froh.
LESSOR specifying the nature of the act or thing required to be
Item 5. - Page 22 -58=18-
done or performed, then LESSOR may, but shall not be required to,
do or perform or cause to be done or performed such act or thing
(entering on the premises for such purposes , if LESSOR shall so
elect ) , and LESSOR shall not be or be held liable or in any way
responsible for any loss, inconvenience, annoyance, or damage
resulting to LESSEE on account thereof , and LESSEE shall repay to
LESSOR on demand the entire expense thereof , including compen-
sation to the agents and employees of LESSOR. Any act or thing
done by LESSOR pursuant to the provisions of this Article shall
not be or be construed as a waiver of any such default by LESSEE,
or as a waiver of any covenant , term, or condition herein
contained or the performance thereof , or of any other rigfit or
remedy of LESSOR, hereunder or otherwise . All amounts payable by
LESSEE to LESSOR unaer any of the provisions of this Lease
Agreement- , if not Uai.a when the same Decome due as tiereln
providea , shall bear interest from the date they becorie due until
Pala at the rate of ten per cent ( lU ) per annum, compoundea
annually .
22 . COYIPLIANCE 4vITH LAW.
LESSEE shall comply with all of the provisions of the State of
California Worker ' s Compensation Insurance and Safety Acts , the
applicable provisions of Divisions 4 and 5 of the California Labor
Coae , ana all similar state or federal acts or laws applicable .
LESSEE further agrees ( 1 ) to comply at its sole cost and expense
with the requirements of all municipal , state , federal and other
governmental authorities now or hereafter in force , whether by
statute , ordinance , rule, regulation or judicial or administrative
-19-
-53- Item 5. - Page 23
order , decree or judgment, or otherwise, and with the requirements
of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition , use
or occupancy of the Premises and ( 2 ) to make at its sole cost and
expense any additions to, deletions from, or changes in the
Premises of whatever nature, including , but not iiirtited to ,
structural adaitions , deletions or chancres , necessary to comply
with such requirements . LESSEE agrees that the judgment of any
court of competent jurisdiction or the admission by LESSEE in any
action in which LESSEE is a party, whether or not LESSOR may be a
party thereto, that LESSEE has violated such requirement shall rye
conclusive of the fact as between LESSOR and LESSEE .
23 . RIGHT TO CONTEST GOVERNMENTAL ORULR.
LESSEE has the right to contest Uy appropriate juv1C.al or
administrative proceedings , without cosy or expense to LESSOR, the
vallalty or application of any law, ordinance , order , rule , r egu-
lation or requirement ( hereafter caller: law ) that LESSEN repair ,
maintain , alter or replace the Improvements in whole or in part
and LESSEE shall not ue in aefault for failing to do such work
until a reasonable time following final determination of LESSEE ' S
contest . If LESSOR gives notice of request , LESSEE shall first
turnish LESSOR a bond , satisfactory to LESSOR. in forr,;, amount ana
insurer , guaranteeing compliance by LESSEE with the contested law
and indemnifying LESSOR against all liability that LESSOR may
sustain by reason of LESSEE ' S failure or delay in complying with
the law . LESSOR may, but is not required to , contest any such law
independently of LESSEE. LESSOR may, and on LESSEE ' S notice of
-20-
Item 5e - Page 24 -60-
request shall , join in LESSEE ' S contest.
24 . DAhIAGE, CANCELLATION.
If the Facility shall be substantially damaged, LESSEE shall
have the option of repairing , replacing or removing said
Facility . If the election to remove is made, LESSEE shall give
sixty ( 60 ) days written notice of such election which shall
constitute a termination of this Lease Agreement .
25 . DELIVERIES.
LESSOR will approve the days and times deliveries may be made
to the Premises by LESSEE, LESSEE' S employees , or any other
person . To enable LESSEE to have access upon LESSOR' S property,
LESSEE must have written consent from LESSOR.
26 . ARBITRATION OF DISPUTES .
All disputes arising under this Lease Agreement shall e
resolved by arbitration , under the rules of the American
Arbitration Association . The arbitrators shall be bouna uy the
terrr;s and provisions hereof . Within ten days after notice to the
other party of a dispute requiring arbitration , each party shall
nominate an arbitrator and each of those chosen shall select a
third . The resultant award shall be final and binding .
27 . REVERSION OF FACILITY,
At the end of the Term the LESSOR shall have the option to
require the LESSEE to remove the Facility and to restore the Land
to its original condition or to take possession of the Facility in
-21-
-51- Item 5. - Page 25
good condition, reasonable wear and tear excepted .
28. REDELIVERY OF PREMISES .
LESSEE shall maintain and supervise the Premises , and do all
other things required to be done by LESSEE hereunder in the
amounts , at the times , and in the manner herein provided, and
shall keep and perform all the terms and conditions hereof on its
part to be kept and performed, and at the expiration or sooner
termination of this Lease Agreement , LESSEE shall peaceably and
quietly quit and surrender the Premises to LESSOR in good order
and condition subject to the other provisions of this Lease
Agreement . In the event of the non-performance by LESSEE of any:
of the covenants of LESSEE undertaken .ierein this Lease Agreemient
may be terminated as herein proviaea .
29 . WAIVER.
The waiver by LESSOR of, or the failure of LESSOR to take
action with respect to, any breach of any term, covenant , or
condition herein contained shall not be deemed to be a waiver of
such term, covenant , or condition , or subsequent breach of the
same , or any other term, covenant , or condition herein contained .
The subsequent acceptance by LESSOR of any performance by LESSEE
nereunder snail not be deemed to be a waiver of any preceding
breach by LESSEE of any term, conversant , condition of this Lease
Agreement , regardless of LESSOR ' S knowledge of such preceding
breach at the tire of acceptance of such performance .
-22-
Item 5. - Page 26 -62-
30 . REMEDIES CUMULATIVE.
All remedies hereinbefore conferred on LESSOR shall be deemed
cumulative and no one exclusive of the other , or of any other
remedy conferred by law.
31 . NOTICES.
All notices , demands , or other writings in this Lease
Agreement provided to be given or made or sent , or which may be
given or made or sent , by either party hereto to the other , shall
be deemed to have been fully given or made or sent when made in
writing and deposited in the United States mail , registered and
postage prepaid, and addressed as follows :
TO LESSOR.
City Aaministrator
P. O. Box 190
huntington beach , California 92648
TO LESSEE:
Boys and Girls Cluo
19699 Education Lane
Huntington Beach , California 92646
The address to which any notice, demand , or other writing may
be given or made or sent to ar,y party as above provided may be
changed by written notice given by such party as above provided .
32 . EFFECT OF LESSEE ' S HOLDING OVER.
Any holding over after the expiration of the Term of this
Lease Agreement, with consent of LESSOR, shall be construed to be
a tenancy f.rom rionth to month , on the same terms as required
herein for the period immediately prior to the expiration of the
Term hereof , and shall otherwise be on the terms and conditions
-23-
-63- Item 5. - Page 27
herein specified, so far as applicable .
33 . ARTICLE CAPTIONS.
The captions appearing under the Article number designations
of this Lease Ayreement are for convenience only and are not a
part of this Lease Agreement and do not in any way limit or
amplify the terms and provisions hereof .
IN 6vITNESS WHEREOF the parties hereto have executed this Lease
Agreement on the day, month and year appearing below .
DATED: _ , 1986
CITY OF HUNTINGT N BEACH,
a T:,uni cipal corporation
Mayor
ATE ES i APPROVED AS TO F ORIvi :
City Clerk City A} _orney
REVI -' ND APPROVED: INITIATED AND APPROVED:
City Administrator Director of Community Services
BOYS & GIRLS CLUB OF HUNTINGTON
VALLEY
By
By
0778E -
-24-
Item 5. - Page 28 -64-
EXHIBIT "A"
McCALLEN PARK
DESCRIPTION
PARCEL 1
BLOCK 2304 OF EAST SIDE VILLA TRACT, AS SHOWN ON A MAP RECORDED IN
BOOK 4 , PAGE 65 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM, THE NORTH 66 . 00 FEET OF SAID BLOCK.
AKA, A .P. r25-071-06, 07
PARCEL 2
THE NORTH 165 FEET OF BLOCK 2204 , EAST SIDE VILLA TRACT, AS SHOWN
ON A MAP RECORDED IN BOOK 4 , PAGE 65 OF MISCELLANEOUS MAPS IN T%E
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
AKA, A.P . #25-071-05
PARCEL 3
THE NORTH ONE-HALF OF' BLOCK 2203 OF EAST SIDE VILLA TRACT, :S
SHOWN ON A MAP RECORDED IN BOOK 4 , PAGE 65 OF MISCELLANEOUS MAPS
IN THE OFFICE OF THE COUNTY RECORDER 10F SAID -OUNTY.
EXCEPT `rhE�IEFK'J'i, hE NORTH 33 FEET` TEERE.GF .
AKA, A ,P . #25-071-14
PARCEL 4
THE NORTH 33 FELT OF BLOCK 2203 OF EAST SIDE VILLA TRAC''I', A SzHOIVIiNi
ON A MAP RECORDED IN BOOK 4 , PAGE 65 OF MISCELLANEOUS MAPS .
AKA, A .P . # 25-071-15
PARCEL 5
THE SOUTH 33 FEET OF BLOCK 2203 , EAST SIDE VILLA TRACT, AS SHOWN
ON A MAP RECORDED IN BOOK 4 , PAGE 65 OF MISCELLANEOUS MAPS IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY .
AKA, A.F . #25-071-i6
PARCEL 6
THAT PORTIO114 OF BLOCK 2303 OF EAST SIDE VILLA TRACT, AS SHOWN ON A
MAP RECORDED IN BOOK 4 , PAGE 65 OF MISCELLANEOUS MAPS, ORANGE
COUNTY, SHOWN AS PARCELS 2, 3 , 4 AND A, ON PARCEL MAP FILED IN
BOOK 91 , PAGE 32 OF PARCEL MAPS .
AKA, A.P. 25-071-40, 41 , 42 & 43
-65- Item 5. - Page 29
EXHIBIT "B"
Facility Construction
at McCallen Park
Pursuant to Article 6 of the Lease Agreement into which this
Exhibit "B" is incorporated in full , LESSEE shall construct on the
leased Premises, at its sole risk and expense, a full-service Boys
and Girls Club facility ( "Facility" ) . Said construction shall be
carried out to completion according to and in full compliance with
the following terms :
1 . GENERAL PROVISIONS
(a ) LESSEE shall construct on the leased Premises, at its
sole risk and expense , a Facility for offices , meetings , programs ,
cultural events, recreation and other usual Boys and Girls Club
( CLUB ) purposes .
( b ) LESSEE shall oegln const.ruc- ion of i-he Facility withir
two ( G ) _years Of the execution of the Lease Agreement and complete
construction within three ( 3 ) Y'ears of saITle . Tne terrr, of tree
Lease Agreement shall commence upon the date of issuance of a
Certificate of Occupancy for the Facility by the City of
Huntington Beach in its governmental capacity.
( c) LESSEE shall bear the cost of installation and connection
of all utilities appurtenant to the Facility as well as the
monthly billings for the use of said utilities .
( d ) To coincide with the cor;,pietion of the Facility construc-
tion, LESSEE, shall construct and complete a parking lot on the
Land adjacent to said Facility, as provided for herein .
_i _.
Item 5e - Page 30 -66-
2. CONDITIONS OF MAJOR CONSTRUCTION
(a ) Introductory Clause - Before any major work of construc-
tion , alteration or repair is commenced on the Facility, and
before any building materials have been delivered to the Premises
by LESSEE or under LESSEE 's authority, LESSEE shall comply with
all the following conditions or procure LESSOR ' s written waiver of
the condition or conditions specified in the waiver .
(b ) Plans and Specifications
( 1 ) Delivery to LESSOR - LESSEE shall deliver to
LESSOR' s City Engineer for LESSOR' s approval , eight ( 8 ) sets of
preliminary construction plans and specifications , prepared by an
architect or engineer licensed to practice as such in the State of
California, including but not limited to preliminary grading and
drainage plans , utilities , sewer and service con- nections ,
locations of ingress and egress to and from public ~_hor-
oughfares , curbs , gutters , parkways , such lighting as need for
Club operation, designs and locations for outdoor signs , storage
areas and landscaping , all sufficient to enable potent-ia1
contractors and subcontractors to make reasonably accurate bib
estimates and to enaole LESSOR to make an informed Judgment about
the design and quality of con- struction and about any effect on
the reversion . All Improvements shall be constructed within the
exterior property lines of the Premises ; provided that required
work beyond the Premises on utilities, access and conditional use
requirements do not violate this provision. With the plans ,
LESSEE shall deliver to LESSOR the certificate of the person or
persons who prepared said plans and specifications certifying
either that they have been fully paid for by LESSEE or that the
-2-
-67- Item 6e - Page 31
preparer is waiving payment and is also waiving any right to a
lien for their preparation.
( 2 ) LESSOR ' s Approval - LESSOR shall not unreasonably
disapprove preliminary plans and specifications . Approval or
disapproval shall be communicated in the manner provided in
Article 31 of the Lease Ayreement , disapproval to be communicated
in the same manner and accompanied by specification of the grounds
for disapproval ; provided that LESSOR' s failure to disapprove
within forty-five ( 45 ) days after delivery to LESSOR shall be
conclusively considered to be approval . LESSEE shall not deliver
working drawings to any governmental body for a building permit-
until preliminary plans are approved as set forth in t n i s
;paragraph . Following LESSjRIs firs} or any suDsec uent dISaU-
proval , LESSEE n;ay elect ( i ) to surjimit revised plans ana specifi-
cations or ( 2 ) to give notice contesting the reasonableness of
LESSOR ' S disapproval . A contest of reasonableness shall be deter-
mined in accoraance with the terms of Section 3 below. Ij- the
reasonableness of LESSOR's disapproval is sustained , LESSEE shall
perform as in ( 1 ) above ; if it is not sustained, the plans anti
specifications shall be considered approved .
( 3 ) LENVER ' s Approval - Upon LESSOR ' s approval of
preliminary plans and specifications , LESSEE shall deliver to
LESSOR ' s City Engineer the written approval of the plans and
specifications by the financial institution that shall have made
the commitment for financing the construction .
( 4 ) Final Plans and Specifications - LESSEE shall
prepare final working plans and specifications substantially
_3__
Item 5. - Page 32 -68-
conforming to preliminary plans previously approved by LESSOR,
submit them to the appropriate governmental agencies for approval ,
and deliver to LESSOR eight ( S ) complete sets as approved by the
governmental agencies . Changes from the preliminary plans shall
be considered to be within the scope of the preliminary plans if
they are not substantial or if they are made to . comply with sug-
gestions , requests or requirements of a governmental agency or
official in connection with the application for permit or
approval, and if they do not depart substantially in size,
utility or value from the minimum requirements of LESSOR.
( c ) Notice of Intent to Construct
LESSEE shall notify LESSOR' s City Engineer of LESSEE 's
intention to commence a work of Improvement at least thirty ( 30 )
days before commencement of any such work; or delivery of any
materials . The notice shall specify the approximate location and
.nature of the intended Improvements . LESSOR shall have the right
to post and ;Maintain on the Premises any not- ices of nonrespon-
sibility provided for under applicable law and to . inspect the
Premises in relation to the construction at all reasonaole times .
( d ) LESSOR's Approval of General Contractor
LESSEE shall furnish LESSOR' s City Engineer with a true
copy of LESSEE ' s contract with its general contractor and with
evidence of the general contractor ' s financial condition for
LESSOR ' s approval . The contract shall give LESSOR the right but
not the obligation to assume LESSEE ' s obligation and rights under
that contract if LESSEE should default .
LESSOR may disapprove by notice given within thirty ( 30 ) days
following delivery of the copy of the contract ; the notice shall
-L-
-69- Item 5. - Page 33
specify the grounds for such disapproval . LESSOR shall not
unreasonably disapprove and shall be considered to have approved
in the absence of notice of disapproval given within thirty ( 30 )
days after LESSEE furnishes the contract and evidence specified
above . It LESSEE elects to act as general contractor, reference
above to contract and evidence shall be considered to apply to the
subcontractor of each subcontract in excess of $500, 000.
(e ) Approval of Construction ( Interim) Financing
( 1 ) Documentation - LESSEE shall deliver to LESSOR ' S
City Engineer true copies of all documents to evidence the com-
mitment of financing for any new construction . "Financing"
includes both the construction ( or interim) financing and the
take-out ( also called permanent or long-term) loan . LESSOR may
recjulre by notice that no construction commence until the take-out
financing is firmly committed but may disapprove the financing
only if it violates an express provision of the Lease Agreement .
( 2 ) LESSOR 's Right to Assume LESSEE ' s Financing
LESSOR shall have the right but no} the obligation to assume
LESSEE ' s financing for any Improvements on the Premises . LESSEE
shall cause the lender to execute ail documentation facilitative
of this right . LESSOR ' s exercise of this right shall not consti-
tute a waiver of any other right LESSOR may have against LESSEE,
any surety or guarantor , or anyone else .
( f ) Assurance of Completion
( 1 ) Completion Eond or Voucher System - LESSEE shall
furnish LESSOR a bond as described below, if and promptly after ,
LESSOR gives notice of demand within thirty ( 30 ) days after LESSEE
has complied with all the foregoing conditions of major construc-
Item 5. - Page 34 -70-
tion. The bond shall be that of a responsible surety company,
licensed to do business in California, in an amount not less than
the construction contract value and shall remain in effect until
the entire cost of the work shall have been paid in full and the
new Improvements shall have been insured as provided in the Lease
Agreement . The bond shall state the following:
( i ) That it is conditioned to secure the
completion of the proposed construction, free from all liens and
claims of contractors , subcontractors, mechanics , laborers and
materialmen for six months following commencement of occupancy;
( ii ) That the construction work shall be effected
by LESSEE, the general contractor , or , on their default , the
surety;
( III ) That in default of such completion and
payment , such part of the amount of the bond as shall be required
to complete the work shall be paid to LESSOR as liquidated and
agreed damages for the nonperformance of LESSEE ' s ayreements , i._
being agreed that the exact amount of LESSOR's damages is
difficult and impractical to ascertain ; and
( iv ) That the surety will aefend and indemnify
LESSOR against all loss , cost , damage , expense and liability
arising out of or connectea with the work Improvement . LESSOR
may , but shall not unreasonably, disapprove the bond . The bone;
shall be deemed approved unless notice of disapproval is given
within thirty ( 30 ) working days after receipt of the proposed bond .
( 2 ). Approval of Disbursement as an Alternate to the
Furnishing by LESSEE of a Completion Bond - LESSOR shall have the
right to approve the method of disbursing the construction loan
- 6-
-71- Item 5. - Page 35
funds during the period of construction and may monitor such
disbursements to ensure itself that no liens are asserted against
its fee ownership or the leasehold .
(g ) Required Governmental Permits
LESSEE shall procure and deliver to LESSOR's City
Engineer at LESSEE ' s expense evidence of compliance with all then
applicable codes , ordinances,- regulations and requirements for
permits and approvals , including but not restricted to a grading
permit , building permits , zoning and planning requirements and
approvals from various governmental agencies and bodies having
jurisdiction ; provided , however , that the Environmental Impact
Report ( EIR ) for the Facility shall be at the sole cost and
expense of the LESSOR.
(h ) Builder ' s Risk and Other Insurance
LESSEE shall aeliver to LESSOR certificates of insurance
acceptable in form to the City Attorney evidencing coverage for
"builder ' s kisk" coverage in the amount of $i , 000 , 000 . 00 CSk,
evidence of worker ' s compensation insurance with limits of
$100, 000 covering all persons employed in connection with the work
and with respect to whom death or bodily injury claims coald be
asserted against LESSOR or the Premises . Further , LESSEE shall
provide evidence that LESSEE has paid or caused to be paid all
premiums for the coverage described above in this paragraph and
any increase in premiums on insurance provided for in Section 3
below, sufficient to assure maintenance of all insurance above
during the anticipated course of the work . LESSEE shall maintain
and keep in force and pay all premiums required to maintain and
keep in force all insurance above at all times during which such
--7--
Item 5. - Page 36 -72-
work is in progress .
3 . COMPLETION:
(a ) Diligent Prosecution to Completion . Once the work on the
Facility and Improvements are begun, LESSEE shall with reasonable
diligence prosecute to completion all construction thereof .
The work set forth herein shall be completed and ready
for use within three years after commencement of construction,
provided that the time for completion shall be extended for as
long as LESSEE shall be prevented from completing the construction
by delays beyond LESSEE ' s control ; but failure , regardless of
cause , to complete construction within six years following the
commencement date of the Lease Agreement , at LESS6R ' s election
exercised by notice, shall terminate the Lease Agreement .
All work shall be performed in a good and workmanlike
rianner , shall substantially comply with plans and specifications
submitted to LESSOR as required herein and shall comply with all
applicable government perriits , laws, ordinances and regulations .
(b) Protection of LESSOR Against Cost of Claim. LESSEE shall
pay or cause to be paid the total cost and expense of all works of
improvements , as that phrase is defined in the Mechanics ' Lien Law
in effect at the place of construction when the work begins . No
such payment shall be construed as rent . LESSEE shall not suffer
or permit to be enforced against the Premises or any part of it
any mechanic ' s , materialman ' s , contractor ' s , or subcontractor ' s
lien arising from any work of improvement, however it may arise .
However , LESSEE may in good faith and at LESSEE' s own expense
contest the validity of any such asserted lien , claim, or demand,
provided LESSEE has furnished the bond required in California
- Q-
-73- Item 5. - Page 37
Civil Code, Section 3143 ( or any comparable statute hereafter
enacted for providing a bond freeing the Premises from the effect
of such a lien claim) .
( c ) Notice of Changes in Plans . On completion of any
Improvement , LESSEE shall give LESSOR' s City Engineer notice of
all changes in plans and specifications ;Wade during the course of
the work . LESSOR acknowledges that it is common practice in the
construction industry to make numerous changes during the course
of construction on substantial projects . Changes that do not-
substantially alter plans and specifications previously approved
by LESSOR do not constitute a breach of LESSEE ' s obligations .
4 . RELIEF FOR SUBSTANTIAL LOSS OF AREA:
If any damage to or destruction of the Preirtises or the
Improvements is such that fifty percent ( 50% ) of the area is
rendered unusable for purposes stated in the Lease Agree:,(ent ,
LESSEE may , at LESSEE ' s election , delay the work required above
for not to exceed six ( 6 ) months . Nothing contained in ;his
Section 4 shall be construed to negate or modify any provision of
the Lease Agreement as to damage or destruction during the final
year (s ) of the Term.
PARKING FACILITY :
LESSEE shall construct on the Premises and adjacent to The
Facility a parking lot with spaces not less than required to cover
City ' s parking ordinance although additional spaces may be added
with LESSOR ' s approval . LESSOR, at its expense , may add more
spaces to the parking lot to satisfy park needs . The cost of the
parking lot shall be divided between LESSOR and LESSEE on a
percentage basis . LESSEE ' s percentage shall be calculated by
-9-
Item 5. - Page 38 -74-
taking the total number of parking spaces divided into the number
of parking spaces required by the City's parking ordinance, plus
additional LESSEE spaces if any for LESSEE 's Facility ( "LESSEE's
Percentage" ) and multiplying the quotient obtained by the cost of
the parking lot . LESSOR shall pay to LESSEE the, difference
between the total cost of the parking lot and the LESSEE 's share
as described above . The cost of maintenance of the parking lot
shall be borne by both parties on a percentage basis with LESSEE
paying the product obtained by multiplying the cost of maintenance
by the LESSEE ' s percentage.
6 . INDEMNIFICATION, DEFENSE, HOLD HARMLESS - FACILITY AND
IMPROVEMENT CONSTRUCTION:
LESSEE hereby agrees to protect, defend, indemnify and hold
and save harmless LESSOR, its officers, agents and employees
against any and all liability, claims , judgments, costs and
demands , however caused, including those resulting from death or
injury to LESSEE, officers, agents and employees, its contractor ,
if any , subcontractor , and damage to property, arising directly or
indirectly out of the obligations herein undertaken by LESSEE, or
out of the operations conducted by LESSEE, its officers , agents
and employees , contractor, if any, and subcontractors, regardless
of the active or passive nature of any negligence by LESSOR, save
and except those which arise out of the sole negligence or sole
willful misconduct of LESSOR. LESSEE will defend any such suits
at the sole cost and expense of LESSEE when requested by LESSOR,
and any costs of defense or attorney ' s fees incurred by LESSOR in
enforcing this obligation will be reimbursed to LESSOR or may be
awarded to LESSOR by a court of competent jurisdiction .
0778L
-10-
-75- Item 5. - Page 39
l
EXHIBIT A
RECORDING REQUESTED BY, AND
WIZEN RECORDED, RETURN TO:
City of Huntington Beach
City Hall
2000 Main Street
Huntington Beach, CA 92648
Attn: City Clerk
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE ("Memorandum") is executed as of
1996, by and between the City of Huntington Beach, a municipal
corporation formed under the laws of the State of California ("City"), and Boys and Girls Club of
Huntington Valley, a California non-profit corporation organized and existing under the laws of
the State of California("Club").
RECITALS
WHEREAS, City and Club have executed that certain Facility Lease ("Lease") dated as of
Qfc�.e 1 1996, covering certain Facility ("Facility") situated on certain real property
located in the City of Huntington Beach, County of Orange, State of California, and more
particularly described in Exhibit"A" attached hereto and incorporated herein by this reference;
and
WHEREAS, City and Club desire to record notice of the Lease in the Official Records of
Orange County, California;
NOW, THEREFORE, in consideration of the foregoing, City and Club hereby declare as
follows:
1. Demise. City has leased the Facility to Club and Club has hired the Facility
from City, subject to the terms, covenants and conditions contained in the Lease.
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` i 1
2. Expiration Date. The term of the Lease ("Term") shall be for a period of
fifteen (15)years commencing at 12:01 A.M. on QL, , Al , 1996,and ending at 12:01
A.M. on 2011, unless terminated sooner as provided in this Lease.
3. Lease Controlling. This Memorandum is solely for the purpose of giving
constructive notice of the Lease. In the event of conflict between the terms of the Lease and this
Memorandum, the terms of the Lease shall control.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Memorandum of Lease
as of the date and year first written above.
BOYS AND GIRLS CLUB OF CITY OF HUNTINGTON BEACH,
HUNTINGTON VALLEY a municipal corporation of the
a California non-profit corporation State of California
By: f✓ �- G1�C -c __-----_—
ayor
(print name)
Its: (circle one)Chairmanq,esiden ice President ATTEST:
By: City Clerk
APPROVED AS TO FORM:
(print name) -
Its: (circle one)Secretary hief Financial Office
Asst. Secretary-Treasurer �6� City Attorney
WED APPROVED: INITIATED AND APPROVED:
City Administrator Director of Economic Development
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� 3
FACILITY LEASE
Table of Contents
Page
Preamble I
ARTICLE 1. TERM OF LEASE 2
1.01 Lease 2
1.02 Original Term 2
1.03. Surrender of Facility 3
ARTICLE 2. RENT AND TAXES 3
2.01 Fixed Rent 3
ARTICLE 3. REPAIRS AND MAINTENANCE 4
3.01 Present Condition of Facility 4
3.02 Repairs by Club 4
3.03 Facility Alterations 4
3.04 Liens 5
3.05 City's Right of Inspection 6
ARTICLE 4. USE OF FACILITY 6
4.01 Permitted and Prohibited Use of Facility 6
4.02 Compliance With Law 7
ARTICLE 5 INSURANCE 7
5.01 Insurance 7
5.02 City's Right to Procure Insurance 8
ARTICLE 6 DESTRUCTION OF FACILITY 9
6.01 Duty to Repair or Restore 9
602 Time for Construction of Repairs 10
ARTICLE 7 TAKING 10
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ARTICLE 8 INDEMNIFICATION 10
8.01 Indemnification 10
ARTICLE 9 DEFAULT AND REMEDIES 11
9.01 Remedies on Club's Default 11
9.02 Termination by City 11
9.03 Default by Club 12
9.04 Cumulative Remedies 12
9.05 Waiver of Breach 12
ARTICLE 10 MISCELLANEOUS 12
10.01 Assignment or Sublease 12
10.02 Prohibition of Involuntary Assignment 13
10.03 Effect of Bankruptcy 13
10.04 Binding on Heirs and Successors 13
10.05 Time of Essence 14
10.06 Notices 14
10.07 Memorandum of Lease 14
10.08 Article Captions 14
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FACILITY LEASE
THIS LEASE is entered into on the 17th day of June 1996, by and between the City
of Huntington Beach, a municipal corporation formed under the laws of the State of California
("City"), and Boys and Girls Club of Huntington Valley, a California non-profit corporation
organized and existing under the laws of the State of California("Club").
Preamble
WHEREAS, the City previously leased the Bushard gymnasium to the Club, and used
Community Development Block Grant ("CDBG") moneys to build the gymnasium and then
leased the gymnasium to the Club to serve low and moderate income clientele through
recreational and after school care programs;
The property on which the Bushard gymnasium was located was sold by the Fountain
Valley School District, and the then-fair market value of the gymnasium was paid to the City in
the amount of$237,000.00, which funds were returned to the CDBG program;
The City previously has leased McCallen Park to the Club pursuant to a lease dated
November 3, 1986 ("Park Lease"), on which the Club has built a new Facility to serve the same
clientele with the same programs as were offered at the Bushard gymnasium;
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r
The City desires to purchase an interest in the McCallen Park Facility in order to insure
that-it, too, will be used for recreational and after school care programs serving low and moderate
income families;
Pursuant to separate agreement, dated June 17, 1996 ("Sale Agreement"), the City has
purchased a 20.26%fee interest in the McCallen Park Facility with CDBG money, and now
proposes to lease back the Facility to the Club pursuant to this Agreement, subject to conditions
insuring that the Club will continue to offer recreational and after school care programs serving
low and moderate income families.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. TERM OF LEASE
Section 1.01 Lease. City hereby leases to Club on the terms and conditions set forth in
this Lease the City's Twenty and Twenty-six Hundredths Percent (20,26%) interest in the
recreational facilities located in the County of Orange, California, at 2309 Delaware Street,
Huntington Beach (the"Facility").
Section 1.02. Term. The term of this Lease shall be for a period of fifteen (15) years
commencing at 12.01 A.M. on June 17, 1996, and ending at 12:01 A.M. on June 16, 2011, unless
terminated sooner as provided in this Lease.
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Section 1.03. Surrender of Facility. On expiration or earlier termination of this Lease,
City-shall (without further consideration from Club) convey by grant deed its fee interest in the
Facility to Club, subject only to (i) the Permitted Exceptions (as defined in the Sale Agreement),
and (ii) exceptions created by or with the consent of Club. Such conveyance shall be recorded in
Official Records of Orange County no later than thirty (30) days after expiration or earlier
termination of this Lease. If this Lease should terminate prior to June 16, 2011, Club shall pay
City the Two Hundred Thirty-Seven Thousand Dollars ($237,000.00) prorated over one hundred
eighty (180) months. By way of example, if the Lease terminates on November 16, 1998, then
Club shall pay City $198,816.67, determined as follows:
(180 months-29 months)x $237,000 = $198,816.67
(180 months)
ARTICLE 2. RENT AND TAXES
Section 2.01. Fixed Rent.
(a) Club agrees to pay to City during the original term of this Lease specified
in Section 1.01, rent in the amount of One Dollar ($1.00) per year on June 17 every year,
commencing on June 17, 1996. Club shall pay all rent without deduction to City at the address
set forth in this Lease for mailing notices to City, or at any other place or places that City may
from time to time designate by written notice given to Club.
(b) Club shall pay all utilities, taxes and assessments levied or assessed against
the Facility during the term of this Lease.
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ARTICLE 3. REPAIRS AND MAINTENANCE
Section 3.01. Present Condition of Facility. Club agrees and hereby stipulates with City
that the Facility is in good and tenantable condition on the date of this Lease and that the Facility
is in good and tenantable condition.
Section 3.02. Repairs by Club. During the term of this Lease and any renewal or
extension of the term of this Lease, Club shall, at Club's own cost and expense:
(a) Keep the exterior roof, sidewalls, structural supports, and foundation of
the Facility in good repair and make all necessary repairs to, or replacements of, the plumbing,
heating, air conditioning, and electrical systems of the Facility;
(b) Keep and maintain the Facility in good order, repair, and tenantable
condition, including maintaining yards, grounds, paving, building doors, and glazing in good order
and repair; and
(c) Regularly employ a heating, venting and air conditioning maintenance firm
to service and maintain the heating, venting and air conditioning system of the Facility in good
working order.
Section 3.03. Facility Alterations. Subject to the provisions of the Park Lease, Club
may make alterations or improvements to the Facility deemed necessary by Club for Club's
business without City's approval, provided that Club notifies City in writing at least three days
before the date construction for alterations or improvements is to commence so that City may
post and record a notice of nonresponsibility, and further provided that all construction complies
with the requirements of all appropriate government agencies. All improvements or alterations
made by Club on the Facility shall comply with the requirements of any federal, state, or municipal
authority having jurisdiction.
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Section 3.04 Liens.
(a) Club agrees to keep all of the Facility and every part thereof and the
building and other improvements at any time located on the Facility free and clear of any and all
mechanics', materialmen's, and other liens for or arising out of or in connection with work or
labor done, services performed, or materials or appliances used or furnished for or in connection
with any operations of Club, any alteration, improvement, or repairs or additions that Club may
make or permit or cause to be made, or any work or construction by, for, or permitted by Club on
or about the Facility, or any obligations of any kind incurred by Club. Club further agrees to pay
promptly and fully and discharge any and all claims on which any such lien may or could be based,
and to save and hold City and all of the Facility and the building and any other improvements on
the Facility free and harmless from any and all such liens and claims of liens and suits or other
proceedings pertaining there.
(b) If Club desires to contest any such lien, it shall notify City of its intention
so to do within 15 days after the filing of that lien. In such a case, and provided that Club on
demand of City protects City by a good and sufficient surety bond against any such lien and any
costs, liability, or damage arising out of that contest, Club shall not be in default hereunder until
15 days.after the final determination of the validity thereof, within which time Club shall satisfy
and discharge that lien to the extent held valid. The satisfaction and discharge of any such lien
shall not in any case, be delayed until execution is had on any judgment rendered on the lien, and
that delay shall be a default of Club under this Lease. In the event of any such contest Club shall
protect and indemnify City against all Lease, cost, expense, and damage resulting from the
contest.
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Section 3.05. City's Right of Inspection. City or City's duly authorized agents may
enter the Facility at any and all reasonable times during the term of this Lease, to determine
whether Club is complying with the terms and conditions of this Lease or to perform any other
acts authorized by this Lease to be performed by City or reasonably necessary to protect City's
rights under this Lease.
ARTICLE 4. USE OF FACILITY
SECTION 4.01. Permitted and Prohibited Use of Facility. Club shall use the
Facility for operating programs for children, teenagers and adults and for no other purpose
without the written consent of City. The programs must meet the requirements of property
acquisitions under the Community Development Block Grant ("CDBG") funding requirements
found at Title 24 of the Code of Federal Regulations, Section 570.200-.204 and Section 570.500-
.503. Club acknowledges that the City has purchased an interest in the Facility from Club with
the use of CDBG funds, and that, if not for Club's agreement to comply with CDBG regulations,
the City would not have purchased an interest in the Facility, or leased-back the Facility to the
Club. Some, but not all of the CDBG Regulations that the Club must comply with are the
following:
(a) The programs for children, teenagers and adults must be for the
principal benefit of low and moderate income families. (24 CFR § 570.200(a)(2).)
(b) The programs must provide a suitable living environment and
expanding economic opportunities for low and moderate income families.
(24 CFR § 570.200(a)(3).)
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(c) The Club may charge a reasonable fee for the use of its Facility, but
the amount of the fee may not have the effect of precluding low and moderate income persons
from using the Facility. (24 CFR § 570.200(b)(2).)
(d) Fifty-one percent (51%) of the clientele to the Facility must be
members of low and moderate income households. The Club will keep adequate records and
obtain satisfactory information from the clientele to insure compliance with this requirement. (24
CFR § 570.503(b).)
Section 4.02. Compliance With Law. The Facility shall not be used or permitted by
Club to be used in violation of any law or ordinance.-Club shall maintain the Facility in a clean
and sanitary manner and shall comply with all ordinances, rules, and regulations applicable to the
Facility, enacted or promulgated by any public or governmental authority or agency having
jurisdiction over the Facility.
ARTICLE 5. INSURANCE
Section 5.01. Insurance. During the entire Term of this Lease Agreement, Club shall
maintain in full force and effect the following contracts of insurance acceptable in form to the City
Attorney. On each fifth anniversary of this Lease Agreement, the City may impose such
reasonable additional or revised insurance requirements as are consistent with its citywide and
general regulations and policies then in force.
(a) Liability. A general liability insurance policy (in which City is named
as an Additional Insured) insuring Club and its officers and employees, while acting within the
scope of their duties, against any and all claims arising out of or in connection with this Lease.
The policy shall provide coverage in not less than the following amounts: combined single limit
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bodily injury and/or property damage of One Million Dollars($1,000,000.00) per occurrence.
Such policy of insurance shall specifically provide that any other insurance carried by City which
may be applicable shall be deemed excess and Club's insurance primary despite any conflicting
provisions in said policy. Liability insurance will be reviewed every five (5) years and reasonable
limits set by City Council resolution.
(b) Fire. A standard broad form fire insurance policy for full replacement of
the Facility itself, as well as the contents thereof, in which the Club is named and in which any and
all losses are made payable to Club. The face amount of said policy shall be 100% of Facility
replacement cost, and be in form acceptable to the City Attorney. If Club does not rebuild or
repair the structure, Club shall remove the structure, and return the building pad and surrounding
area to its original condition.
(c) Workers' Compensation. Club shall comply with all of the provisions
i
of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable
provisions of Divisions 4 and 5 of the California Labor Code and all amendments thereto and all
similar state or federal acts applicable; and shall, independent of and in addition to Club's
covenant to indemnify and hold City harmless in Article 5 herein, indemnify, defend and hold
harmless City from and against all claims, demands, payments, suits, actions, proceedings and
judgments of every nature and description, including attorney's fees and costs, presented, brought
or recovered against City, for or on account of any liability under any of said acts which may be
incurred by reason of Club's performance of this Lease.
Section 5.02. Cit s Right to Procure Insurance. If at any time Club fails to procure or
maintain the insurance required by this Article, City may obtain that insurance and pay the
premiums on it for the benefit to Club. Any reasonable amounts paid by City to procure or
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� •3
maintain insurance pursuant to this Section shall be immediately due and repayable to City by
Club with the next then due installment of rent under this Lease; failure to repay at that time any
amount expended by City shall be considered the same as a failure to pay rent and a default by
Club under this Lease.
ARTICLE 6. DESTRUCTION OF FACILITY
Section 6.01. Duty to Repair or Restore. If any improvements, including buildings and
other structures, located on the Facility are damaged or destroyed during the term of this Lease or
any renewal or extension thereof, the damage shall be repaired as follows:
(a) If the damage or destruction is caused by a peril against which fire and
extended coverage insurance is required to be carried by Section 5.01 of this Lease, Club shall
repair that damage as soon as reasonably possible and restore the Facility and improvements to
substantially the same condition as existed before the damage or destruction, regardless of
whether the insurance proceeds are sufficient to cover the actual cost of repair and restoration. If
insurance required to be carried by Section 5.01 of this Lease has lapsed or not been carried, Club
shall be solely responsible for the full cost and expense of necessary repairs.
(b) If the damage or destruction is caused by a peril against which insurance is
not required to be carried by this Lease, Club shall repair that damage as soon as reasonably
possible and restore the Facility to substantially the same condition as existed before the damage
or destruction, or may terminate the lease.
(c) If the damage or destruction is caused by a peril against which fire and
extended coverage insurance is required by this Lease to be carried, Club expressly waives any
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�T
right under Civil Code Sections 1931-1933 to terminate this Lease for damage or destruction to
the-Facility.
Section 6.02. Time for Construction of Repairs. Any and all repairs and restoration of
improvements required by this Article shall be commenced by Club within a reasonable time after
occurrence of the damage or destruction requiring the repairs or restoration; shall be diligently
pursued after being commenced; and shall be completed within a reasonable time.
ARTICLE 7, TAKING
In the event of any taking by eminent domairr of any portion of the Facility, Club shall pay
City out of any condemnation award the prorated amount of the $237,000 purchaselprice
determined pursuant to Section 1.03.
ARTICLE 8. INDEMNIFICATION
8.01 Indemnification. Club hereby agrees to defend, indemnify and hold harmless
City, its officers, agents and employees, from and against any and all liability, damages, costs,
losses, claims and expenses, however caused, resulting directly or indirectly from or connected
with Club's performance of this Lease (including but not limited to such liability, cost, damage,
loss, claim or expense arising from the death of or injury to an agent or employee of Club,
subcontractor, or of City or of damage to the property of Club, subcontractor, or of City or of
any agent or employee of Club, subcontractor or City), including those arising from the passive
concurrent negligence of City, but save and except those which arise out of the active concurrent
negligence, sole negligence or the sole willful misconduct of City.
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The City will defend, indemnify and hold harmless Club, its officers, agents and
employees, from and against any and all liability, damages, costs, losses, claims and expenses,
however caused, which arise out of the active concurrent negligence, sole negligence or the sole
willful misconduct of the City.
ARTICLE 9. DEFAULT AND REMEDIES
9.01 Remedies on Club's Default. If Club breaches this Lease or breaches this Lease
and abandons the Facility before the natural expiration of the term of this Lease, City, in addition
to any other remedy given City by law or equity, may:
(a) Continue this Lease in effect by not terminating Club's right to possession
of the Facility, in which case City shall be entitled to enforce all City's rights and remedies under
this Lease, including the right to enforce the use restrictions set forth at Article 4; or
(b) Terminate this Lease and recover from Club the prorated value of the
$237,000.00 purchase price pursuant to Section 1.03, provided that if the Club terminates the
lease because of the destruction of the Facility following an earthquake, then the duty to repay the
City the prorated value of the $237,000 purchase price is foregiven.
9.02 Termination by City. No act of City, including but not limited to City's entry on
the Facility or efforts to relet the Facility, or the giving by City to Club of a notice of default, shall
be construed as an election to terminate this Lease unless a written notice of the City's election to
terminate is given to Club or unless termination of this Lease is decreed by a court of competent
jurisdiction.
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9.03 Default by Club. All covenants and agreements contained in this Lease are
declared to be conditions to this Lease and to the term hereby leased to Club. The following
constitute a material default and breach of this Lease by Club:
(a) Any failure to pay rent when due when the failure continues for 10 days
after written notice to pay that rent or surrender possession of the Facility is served on Club by
City; or
(b) Any failure to perform any other covenant, condition, or agreement
contained in this Lease when the failure is not cured within 30 days after written notice of the
specific failure is given by City to Club.
(c) The bankruptcy or insolvency of Club.
9.04 Cumulative Remedies. The remedies granted to City in this Article shall not be
exclusive but shall be cumulative and in addition to all other remedies now or hereafter allowed by
law or authorized in this Lease.
9.05 Waiver of Breach. The waiver by City of any breach by Club of any of the
provisions of this Lease shall not constitute a continuing waiver or a waiver of any subsequent
default or breach by Club either of the same or a different provisions of this Lease.
ARTICLE 10. MISCELLANEOUS
10.01 Assignment or Sublease. The interest of the Club in the Facility or the
leasehold may not be transferred, assigned, sublet, licensed or otherwise conveyed voluntarily or
involuntarily by Club without the prior written consent of City, which consent shall not be
unreasonably withheld. The merger or restructure of the Club shall not be deemed subject to this
Article 10. Any attempt of the Club to violate this covenant not to assign this Lease without such
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prior written consent shall constitute a breach of this Lease and City may, at its option, thereupon
terminate this Lease and immediately re-enter and reoccupy the Facility.
10.02 Prohibition of Involuntary Assignment. Neither this Lease nor the leasehold
estate of Club nor any interest of Club in the Facility shall be subject to involuntary assignment,
transfer, or sale, or to assignment, transfer, or sale by operation of law in any manner whatsoever
(except through statutory merger or consolidation). Any such attempt at involuntary assignment,
transfer, or sale shall be void and of no effect.
10.03 Effect of Bankruptcy. Without limiting the generality of the provisions of the
preceding Subsection 10.02 of this Article, Club agrees that in the event any proceedings under
the Federal Bankruptcy Act or any amendment thereto are commenced by or against Club, and, if
against Club, such proceedings shall not be dismissed before either an adjudication in bankruptcy
or the confirmation of a composition, arrangement, or plan or reorganization, or in the event Club
is adjudged insolvent or makes an assignment for the benefit of its creditors, or if a receiver is
appointed in any proceeding or action to which Club is a party, with authority to take possession
or control of the Facility or the business conducted thereon by Club, and such receiver is not
discharged within a period of sixty (60) days after this appointment, any such event or any
involuntary assignment prohibited by the provisions of the preceding Subsection 10.02 of this
Article shall be deemed to constitute a breach of this Lease by Club and shall, at the election of
City, but not otherwise, without notice or entry or other action of City terminate this Lease and
also all rights of Club hereunder to the Facility and also all rights of any and all persons claiming
under Club.
10.04 Binding on Heirs and Successors. This Lease shall be binding on and shall inure
to the benefit of the heirs, executors, administrators, successors, and assigns of each
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= x3
City and Club, but nothing contained in this section shall be construed as a consent by City to any
assignment of this Lease or any interest in this Lease by Club.
10.05 Time of Essence. Time is expressly declared to be of the essence in this Lease.
10.06 Notices. All notices, demands, or other writings in this Lease Agreement
provided to be given or made or sent, or which may be given or made or sent, by either party
hereto to the other, shall be deemed to have been fully given or made or sent when made in
writing and deposited in the United States mail, registered and postage prepaid, and addressed as
follows:
TO CITY: TO CLUB:
City Administrator Boys and Girls Club
City of Huntington Beach of Huntington Valley
P.O. Box 190 2309 Delaware Street
Huntington Beach, CA 92648 Huntington Beach, CA 92648
The address to which any notice, demand, or other writing may be given or made or sent
to any party as above provided may be changed by written notice given by such party as above
provided.
10.07 Memorandum of Lease. Upon request either party may require that a
Memorandum of Lease for any Schedule be recorded in the form of Exhibit "A".
10.08 Article Captions. The captions appearing under the Article number
designations of this Lease are for convenience only and are not a part of this Lease and do not in
any way limit or amplify the terms and provisions hereof.
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l
IN WITNESS WIEREOF, the parties hereto have executed this Lease Agreement on the
day, month and year appearing below.
DATED: /rJ , 1996
BOYS AND GIRLS CLUB OF CITY OF HUNTINGTON BEACH,
HUNTINGTON VALLEY a municipal corporation of the
a Californian non-profit corporation State of California
r % - ,Q
By: U au-"
Mayor
(print name)
Its: (circle one)ChairmanQreside Vice President ATTEST:
By: City Clerk �l C o nl IVX—
/� SL Q exw1y
X. c e f 7',;-- APPROVED AS TO FORM:
(print name) '
Its: (circle one)Secretary hief Financial Officer
Asst. Secretary-Treasurer City Attorney
T'�' t 1 rl to
REVIEWED AND APPROVED: INITIATED AND APPROVED:
it Adminisiratol Director of Economic Development
15
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City ®f Huntington Beach
2000 Main Street e Huntington Beach CA 92648
OFFICE OF THE CITY CLERIC
e JOAN L. FLYNN
CITY CLERK
May 24, 2010
The Boys and Girls Club of Huntington Valley
2309 Delaware St.
Huntington Beach, CA 92648
To Whom It May Concern:
Enclosed for your records is a fully executed copy of the Lessor's Estoppel Certificate
between the City of Huntington Beach, and the Boys and Girls Club of Huntington Valley.
Sincerely,
Jo n L. Flynn, CMC
City Clerk
JF:pe
Enclosure
Hies:Sister Cities: Anjo, Japan • Waitakere, New Zealand
(Telephone:714-536.5227)