SR 05-14-2019 3F
City Council
Report
City Council Meeting: May 14, 2019
Agenda Item: 3.F
1 of 2
To: Mayor and City Council
From: Karen Ginsberg, Director, Community & Cultural Services
Subject: Lease Agreement with the Growing Place for the use of Marine Park, located
at 1406 Marine Street, Santa Monica for continued use as a childcare center
Recommended Action
Staff recommends that the City Council authorize the City Manager to negotiate and
execute an amendment to the lease with the Growing Place Marine Park (the Growing
Place) at 1406 Marine Street for continued use as a childcare center in Santa Monica
for a term of five years for $1/year with no escalation.
Summary
Since 2008, the City has leased the property located at 1406 Marine Street to the
Growing Place for the operation of childcare facilities. The Growing Place intends to
remain at this location and staff seeks authorization to continue to lease this property to
the Growing Place for continued operation of childcare facilities. The current lease
agreement expires June 30, 2019. The proposed lease term is for a period of five years
with one five-year option to renew. The rent will continue to be $1/year and the lease
would be effective on July 1, 2019.
Discussion
The Growing Place Marine Park runs a full-day, full-year early childhood education
program serving children of full-time working parents. The facility is licensed for 12
infants and 39 preschoolers. Enrollment priority is given to Santa Monica residents and
full-time City employees, and Tuition Assistance is made available to low-income Santa
Monica residents through the Human Services Grants Program.
In April 2004, the City executed its initial Lease Agreement #8767 with the Growing
Place for full use of the building for operation of childcare facilities. Subsequently, Lease
Agreement #9427 was executed in November 2011 and Le ase Agreement #10135 was
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approved by Council on June 23, 2015 and executed in November 2015. The term of
the most recent lease agreement expires June 30, 2019.
The proposed lease with the Growing Place would be for a term not to exceed five
years at $1/year with one five-year option to extend. This rent is consistent with
comparable leases of City-owned buildings leased to community non-profits. Staff
recommends amendments to the existing Lease to include language to address
Lessee’s responsibility to conform with ADA requirements.
SUMMARY OF PROPOSED LEASE TERMS
Lease Commencement July 1, 2019
Rent Commencement July 1, 2019
Term Ends June 30, 2024
Options to Renew One five-year term
Rental Rate $1/year
Escalations None
Financial Impacts and Budget Actions
The recommended lease with the Growing Place would continue to generate $1/year in
revenues. There are no changes to the revenue budget for the FY 2019 -20 Proposed
Budget.
Prepared By: Claire Hester, Senior Administrative Analyst
Approved
Forwarded to Council
Attachments:
A. The Growing Place Lease
Agreement No. 10135 (CCS)
LEASE AGREEMENT
by and between
THE CITY OF SANTA MONICA
and
THE GROWING PLACE
LEASE AGREEMENT NO. 10135 (CCS)
This Lease Agreement ("Lease") is entered into as of VJiL,;~ '' (p ,),,c ( {/ , 2015
("Execution Date"), by and between the CITY OF SANTA MONICA, a municipal
corporation ("City" or "Lessor"), and THE GROWING PLACE, a California non-
profit corporation ("Lessee"), with respect to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City,
B, Lessee is a California non-profit corporation, duly incorporated or formed, validly
existing, and in good standing under the laws of the State of California, Lessee is an
active member of the National Association for the Education of Young Children
(NAEYC) and has met all of the criteria for accreditation through the National
Academy of Early Childhood Programs,
C. City ovvns certain real property, commonly known as Marine Park, located at 1406
Marine Street, in the City of Santa Monica, County of Los Angeles, California (the
"Property").
D. On or about November 21, 2011, City and Lessee entered into a Lease Agreement
No. 9427 (CCS) for a four-year lease of a portion of the Property for Lessee's
operation of child care facilities.
E. City and Lessee desire to enter into this Lease for the continued lease of a portion
of the Property for Lessee's operation of child care facilities upon the terms and
conditions set forth below.
NOW THEREFORE, the parties mutually agree as follows:
TERMS AND CONDITIONS
1. Lease of Premises. In consideration of the faithful performance of the covenants
and conditions hereinafter agreed upon by City and Lessee, City does hereby lease
and Lessee does hereby take and accept a portion of the Property consisting of
approximately 3,000 square feet of building space and an adjacent outdoor
courtyard (the "Premises"), as more particularly described in Exhibit A, attached to
this Lease and incorporated by this reference.
2. Lease Term. The term of this Lease commences on July 1, 2015, and tenninates on
June 30, 2019, unless terminated earlier as provided in this Lease ("Term").
3. Use of the Premises. The use of the Premises is limited to providing child care
facilities and programming consistent with the terms of the Grant Agreement,
Contract Number 10120 (CCS), entered into by and between City and Lessee on
or about September 21, 2015 ("Grant Agreement").
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4. Business Operations. Lessee agrees to operate all aspects of its child care business
in a manner comparable to a first-class business of the same type that is located
within a 100-mile radius of the City of Santa Monica and as required by the State of
California for all child care facilities. All business operations, including enrollment,
scholarships, waiting lists, and outreach efforts, must be consistent with the terms
and conditions of the Grant Agreement.
5. Utility Charges. Lessee agrees to pay directly to the appropriate supplier, all charges
due for telephone, comn1unication, internet, cable, co1nputer, and trash re1noval
services. City agrees to pay all charges for gas, water, sewer, and electrical services to
the Premises.
6. Rent. In consideration of Lessee's use and occupancy of the Premises, Lessee agrees
to pay the City the annual sum of $1.00, without set off or deduction, during the
tenn of this Lease. Lessee may pay the sum of $4.00 in advance to cover the annual
rent for the Term.
7. Compliance with Law. During the Term of this Lease, Lessee must comply with all
applicable federal, state, and local laws, ordinances, codes, rules, and regulations,
now or hereinafter in effect.
8. Maintenance, Repair, and Alteration of the Premises and Leasehold
Improvements.
8.1. Repairs to Be Made By City. City is not at any time required to maintain or
make any hnprovements or repairs whatsoever to the Premises, including any
leasehold improvements located on or equipment in the Premises.
Notwithstanding the foregoing, City may, in its sole discretion and solely to
the extent thai City has funds available and specifically allocated for the
improvement and 1naintenance-of the Premises, make or cause to be made,
without cost or expense to Lessee, all required improve1nents, repai.rs, and
replacements to the following:
A HVAC units (including window units and roof top unit);
B. Exhaust fans and make-up air unit;
C. Fire sprinklers and fire alarm system;
D. Boiler and hot water storage tank on the roof of the Premises;
E. Plumbing, except for plumbing repairs as described in Section 8.2.B that
are Lessee's responsibility;
F. Roof;
G. Paint building exterior;
H. Structural repairs, including the slab floor and foundations;
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I. Site drainage system; and
J. Exterior hardscaping, including driveways, sidewalks, and pavement.
The foregoing items are City's responsibility, and not Lessee. In the event that
the above repairs are not made by City after written request from Lessee,
Lessee may perfonn such repairs, provided that City consents to the proposed
repairs, method of the proposed repairs, and reasonable costs of such repairs,
which consent will not be unreasonably withheld.
Notwithstanding the foregoing, if the necessity for above repairs arises from
or is caused by the negligence or willful misconduct of Lessee, its agents,
officers, directors, employees, or contractors, City may, whether or not City
has funds available, make or cause the same to be made, but will not be
obligated to do so, and Lessee agrees to pay to City within 10 days following
City's demand therefore, as Additional Rent, the cost of such repairs, if
made, with interest thereon at tbe Default Rate from such tenth day until
paid. In the event that City elects not to make such repairs caused by Lessee's
negligence or willful misconduct, City may require Lessee to make such
repairs at Lessee's sole cost and expense, and Lessee agrees to make such
repairs at Lessee's sole cost and expense and within the time periods set forth
by City. The foregoing limitations on Lessee's liability shall not limit the
Lessee's obligations to repair items as required pursuant to Section 8.2 below.
The term "Default Rate" shall mean an annual rate of interest equal to the
lesser of (i) the maximum rate of interest for which Lessee may lawfully
contract in the State of California or (ii) twelve percent (12%).
8.2. Repairs to be Made by Lessee. Lessee is responsible, at its sole cost and
expense, for all routine maintenance and custodial services required during
the Term, including the following:
A Clean and repair drains and gutters;
B. Routine maintenance, repair, and replacement of plumbing fixtures,
including toilets, shower heads, faucets, sinks, and drip pans;
C. Repair of plumbing leaks and clogs;
D. Replacement of light fixtures, including globes, bulbs, plates, outlets,
receptacles, and ballasts;
E. Maintenance, repair, and replacement of data lines and systems for
telephones, cotnputers, intercom systetns, and catnera security;
F. Maintenance of counters and cabinets;
G. Maintenance, repair, and replacement oflaundry and kitchen appliances;
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H. Painting of interior walls;
!. Repair of damaged walls;
J. Maintenance, repair, and replacement of doors, gates, and locks;
K. Maintenance, repair, and replacement of glazing and window coverings;
L. Maintenance, repair, and replacement of carpeting and linoleum;
M. Maintenance and repair of floor, tile, and grout;
N. Maintenance, repair, and replacement of refrigeration equipment;
0. Abatement of graffiti on exterior and interior of the Premises;
P. Maintenance and repair of irrigation;
Q. Maintenance oflandscape planting;
R. Repair of ceilings;
S. Replacement of all plate glass;
T. Maintenance and repair of Lessee's signs, locks and closing devices, and
window sashes, frarnes, doors, and door frames;
U. Pest control and abatement; and
V. Maintenance and repair of all playground equipment.
Lessee is required to tnaintain the Prernises in first.·class, clean, safe, and
attractive order, condition, and repair, free of graffiti. All maintenance,
repair, and replacement materials shall be of equal or comparable quality to
the original materials. Lessee will provide City with semi-annual maintenance
reports in accordance with the terms and conditions of the Grant Agreement.
Such reports must specifY the maintenance performed on the Premises and
leasehold improvements.
Lessee will not overload the electrical wiring or plumbing serving the Premises
or within the Premises, and will install at Lessee's own cost and expense,
subject to the provisions of Section 8.4, any additional electrical wiring or
plumbing that may be required in connection with Lessee's apparatus. Any
damage or injury sustained by any person or property because of Lessee's
failure to properly maintain any mechanical, electrical, plumbing or any
other equipment or installations, whose maintenance and repair shall be the
responsibility of Lessee, will be paid for by Lessee, and Lessee shall indemnifY,
defend, and hold harmless City (including members of its City Council,
boards and comtnissions, officers, ernployees, representatives, and agents)
from and against all claims, actions, damages, and liability in connection
therewith, including attorneys' and other professional fees, and any other cost
that City might reasonably incur. Lessee consents to periodic inspections by
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City for the purpose of determining maintenance violations and agrees to
immediately correct each and every violation. Except in the event of an
emergency, such inspections will only be conducted during daytime business
hours and only after City provides Lessee with at least 24 hours' notice, which
notice can be either written or oral.
If Lessee fails to correct any unsafe, unclean, unwholesome or unsanitary
condition within 48 hours after being notified in writing to do so by City,
then City may enter the Premises and remedy the condition or conditions,
and charge the cost thereof to Lessee, as Additional Rent, without any
liability for any resulting business loss or damage to Lessee. If a matter
reasonably requires more than 48 hours to correct, City's right to enter and
effect repairs provided in this Section 8 will arise if Lessee fails to begin to
correct the condition within such 48-hour period or fails to diligently pursue
such correction thereafter. In the event of an emergency, City may
immediately enter the Premises to remedy any unsafe, unclean, or unsanitary
condition and charge the cost thereof to Lessee. City shall notify Lessee of
such emergency as soon as reasonably possible.
Lessee will not allow refuse, garbage or trash to accumulate on or adjacent to
the Premises, except on the date of scheduled pick-up service, and then only
in appropriate receptacles located in areas designated for such purposes.
8.3. Damage to Premises and Leasehold Improvements. Lessee will repair
promptly at its sole cost and expense any damage to the Premises and
leasehold improvements caused, in whole or in part, by the negligence or
willfulrnisconduct of Lessee, its employees, guests, custorners, and invitees,
contractors or agents, or for which Lessee is otherwise responsible as provided
in Section 8.2. If Lessee fails to commence such repairs within 5 days after
notice to do so from City, City =ay make or cause the same to be made and
Lessee agrees to pay to City within 10 days of City's demand, as Additional
Rent, the cost thereof with interest thereon at the Default Rate until paid.
8.4. Repairs in Compliance with Law. Lessee shall make all necessary repairs to
maintain the Premises and leasehold improvements, including the repairs or
replacement of equipment, structures, or other physical improvements on the
Premises in confonnity with any applicable regulations, laws or ordinances of
the United States, State of California, County of Los Angeles, City of Santa
Monica, or other governmental body, including all applicable building, safety,
and contractor licensing laws and regulations.
8.5. Structural Alterations, Additions, Changes or Installations to or on the
Premises and Leasehold Improvements; Prior City Consent Required.
Except as otherwise expressly stated herein, Lessee may not make any
alterations, renovations, additions, installations, improvetnents, repairs, or
otherwise demolish or remove all or any part of the Premises, or any existing
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or future leasehold improvetnents or installations in, on, or to the Pretnises
or any part thereof (including any alterations of the signs, structural
alterations, or any cutting or drilling into any part of the Premises)
(collectively "Alterations"), unless and until Lessee provides City, for City's
prior written review and approval, a detailed scope of work, cost breakdown,
proposed contractor, compliance with insurance requirements set forth by
City's Risk Manager, perfonnance bond, and labor and material bond. City
will review Lessee's proposal for Alterations in a timely manner, and approval
will not be unreasonably withheld. If such approval is granted, Lessee will
cause the work described in the proposal to be perfom1ed, at its sole cost and
expense, promptly, efficiently, competently, and in a good and workmanlike
manner by duly qualified or licensed persons or entities, using first grade
materials. All such work must comply with all applicable laws, ordinances,
and regulations. Lessee and its contractors and subcontractors are required to
obtain all necessary permits and licenses for consttuction or installation of
any Alterations.
Upon tennination of this Lease, all Alterations made by Lessee will
automatically become owned by, and the property of, City. City has the
option, at its sole discretion, to require Lessee to remove any Alterations at
Lessee's sole expense. All personal property, furniture, trade fixtures,
equipment, and signs installed by Lessee or subtenants will remain the
property of the person, firm or corporation installing the same and removable
at any time during the term of this Lease. The removal of any such fixtures,
equipment, and signs must be completed within I 0 days of the expiration or
earlier termination of this Lease, at Lessee's expense. The removal of any
Alterations as requested by City must be made within 10 days of City's
written request. Lessee must repair any damage or injury to the Premises,
including any building or structure located thereon, occasioned by the
installation or retnoval of any fixtures, equiptnent, signs or Alterat:iens, and
must reimburse City for any resulting damage.
Notwithstanding any language to the contrary in this Section 8, Lessee is not
.required to obtain City's prior \Vritten consent for costnetic Alterations, such
as interior painting, to the extent that the cost of such Alterations does not
exceed $5,000. However, Lessee must send written notice to City of any such
Alterations that are being done without City's prior written consent and
comply with all other provisions of this Section 8.
8.6. Access and Inspections by Lessor. City and City's agents shall have the right
to enter the Premises at all times to:
A. Conduct safety inspections;
B. Examine the Premises, leasehold improvements, Alterations, and
equipmenti
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C. Serve, post, and keep posted notices required by law or that City deems
in its sole discretion as necessary for the protection of City or for the
leasehold improvements, Alterations, and equipment;
D. Show the Premises to prospective purchasers, lenders or tenants of the
Premises;
E. Make such repairs, alterations, improvements or additions as may be
required in connection with the maintenance of the Premises or as City
considers necessary or desirable (without obligation to do so);
F. Take possession due to any breach of this Lease; and
G. Perform any covenants if Lessee fails to perfonn.
None of the foregoing actions by City constitutes an eviction of Lessee, in
whole or in part, or a trespass. Except in the event of an emergency, City will
endeavor, if at all possible, to conduct such inspections, showings or repairs
before or after normal business hours and to provide Lessee with no less than
24 hours' notice, which notice can be either written or oral. Nothing
contained in this Lease will be deemed or construed to impose upon City any
obligation, responsibility or liability whatsoever for the care, maintenance or
repair of the Premises, leasehold improvements, Alterations, or equipment, or
any part thereof, except as otherwise specifically provided in this Lease.
9. Title to Improvements; Removal and Demolition.
9.1. Ownership of Improvements during Term. All leasehold improvements and
installations, and all subsequent improvements, alterations, installations,
additions, construction, or betterments, constructed on the Premises by
Lessee as permitted or required by this Lease shall, during the Tenn, be and
retnain Lessee's property. However, Lessee shall have no right to waste,
destroy, demolish or remove any leasehold improvements or Alterations
except as expressly provided in this Lease; and Lessee's rights and powers with
respect to the leasehold improvements and Alterations are subject to the
terms and limitations of this Lease.
9.2. Removal and Demolition. During the Tenn of this Lease, Lessee shall not
remove or demolish, in whole or in part, any leasehold improvement or
Alterations on the Pren1ises without City's prior written consent, which
consent may be conditioned upon the obligation of Lessee to replace the
satne by an improvement or improvetnents specified in such consent.
9.3. Ownership of Improvements at Termination. All Alterations and any other
leasehold in1provetnents, bettennents, structures, additions, fixtures,
buildings and installations placed or constructed on the Premises, except
moveable personal property equipment and trade fixtures, made, installed or
placed in or on the Premises by Lessee or any other person, will be considered
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part of the real property of the Premises and will become the property of City
upon termination or expiration of this Lease, free and clear of any liens or
encumbrances whatsoever, and without the payment of any consideration
therefor.
10. Liability and Insurance. At all times from the Execution Date of this Lease, and
prior to occupying and using the Pren1ises or commencing construction or
ilnprovements on the Premises, Lessee is required to procure and 1naintain at
Lessee's own cost and expense for the duration of this Lease insurance against
claims for injuries to persons or damages to property which may arise from or in
connection with Lessee's possession, occupancy, operation, and use of the Pre1nises
by Lessee, its agents, representatives, e1nployees, contractors, subcontractors, guests,
customers, and invitees as set forth in Exhibit B, Insurance Requirements and
Verification.
11. Indemnification and Hold Harmless. Lessee agrees to indemnify, defend, and hold
harmless City (including members of its City Council, boards and commissions,
officers, agents, employees, and volunteers) from and against any and all loss,
damage, cost, expense, liability, claitns, de1nands, suits, attorneys' fees, and
judgments arising directly or indirectly from or in any manner related to Lessee's
possession, occupancy or use of the Pre1nises, or arising fro1n or in any 1nanner
connected to Lessee's business, activities, operations, service or work conducted in
or about the Premises, regardless of the active or passive negligence by City, except
as otherwise stated herein.
Lessee agrees to also indemnify, defend, and hold hannless City (including
members of its City Council, boards and commissions, officers, agents, employees,
and volunteers) from and against any and all loss, damage, costs, expense, liability,
claims, demands, suits, attorneys' feeS and judg1nents arising fro1n or in any 1nanner
connected to the furnishing or supplying of any work, services, materials,-
equipment or supplies by any persons, firms, corporations or Other entities in, on
or about the Premises.
Notwithstanding the foregoing, Lessee is not responsible when such liability arises
from the sole active negligence of City. Lessee will pay City for any costs incurred in
enforcing this Section 11. The pro\,isions of this Section 11 will survive the
tennination of this Lease with respect to any loss occurring prior to termination.
12. Nondiscrimination.
12.1. Non-discrimination in Services.
A. Lessee agrees to not discriminate in the provision of services hereunder
because of race, color, religion, national origin, ancestry, sex, age, sexual
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orientation, marital status, AIDS or disability in accordance with the
requirements of City, State and Federal law. For the purpose of this
Section 12.1, discrimination in the provision of services may include, but
is not limited to the following:
i. Denying any person any service, benefit or availability of a facility.
ii. Providing any service or benefit to any person which is not
equivalent, or in a non~equivalent 1nanner or at a non,equivalent
time, from that provided to others.
iii. Subjecting any person to segregation or separate treatment in any
manner related to the receipt of any service.
iv. Restricting any person in any way in the enjoYJ-nent of any advantage
or privilege enjoyed by others receiving any service or benefit.
v. Treating any person differently ftom others in determining
admission, enrollment, quota, eligibility, membership, or any other
requirement or condition that persons must meet in order to be
provided any service or benefit.
B. Lessee will take affirmative action to ensure that intended beneficiaries of
this Lease are provided services without regard to race, color, religion,
national origin, ancestry, sex, age, sexual orientation, marital status, AIDS
or disability.
C. Lessee will further establish and maintain written procedures under
which any person applying for or receiving services hereunder may seek
resolution from Lessee of a complaint with respect to any alleged
discrimination in the provision of services by Lessee's personnel.
D. At any time any person applies for services under this Lease, he or she
must be advised by Lessee of these procedures. Lessee will pos.tJl copy of
such procedures in a conspicuous place, available and open to the public,
in each of Lessee's facilities where services are provided hereunder.
12.2. Non-discrimination in Employment.
A. Lessee certifies and agrees that it will not discriminate against any
employee or applicant for employment because of race, color, religion,
national origin, ancestry, sex, age, sexual orientation, marital status, AIDS
or disability in accordance with requirements of City, State or Federal
law. Lessee will take affirmative action to ensure that qualified applicants
are employed, and that employees are treated during employment
without regard to race, color, religion, national origin, ancestry, sex, age,
sexual orientation, marital status, AlDS or disability, in accordance with
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requirements of City, State and Federal law. Such actions will include,
but not be limited to, the following:
i. Employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff or termination, rates of pay or other
fon11s of compensation.
ii. Selection for training, including apprenticeship.
B. Lessee agrees to post notices setting forth the provisions of this Section
12 in conspicuous places in each of Lessee's facilities providing services
hereunder, available and open to employees and applicants for
employment.
C. Lessee will, in any of its solicitations or advertisements for employees,
state that all qualified applicants will receive consideration for
employtnent without regard to race, color, religion, national origin,
ancestry, sex, age, sexual orientation, marital status, AIDS or disability, in
accordance with requirements of City, State or Federal law.
D. Lessee will send to each labor union or representative co~workers with
which it has a collective bargaining agreement or other contract or
understanding, a notice advising the labor union or workers'
representative of Lessee's cmntnittnents under this Section 12.2.
E. Lessee certifies and agrees that it will deal with its subcontractors, bidders,
or vendors without regard to race, color, religion, national origin,
ancestry, sex, age, sexual orientation, tnarital status, AIDS or disability, in
accordance with the requirements of City, State and Federal law.
F. In accordance with applicable State and Federal law, Lessee will allow
duly authorized representatives of the County, State, and Federal
governrnent access to Lessee's etnployment records during regular
business hours in order to verify compliance with the provisions of this
Section 12.2. Lessee agrees to provide such other information and
records as such representatives tnay require in order to verify con1pliance
with this Section 12.2.
G. If City finds that any of the provisions of this Section 12.2 have been
violated, the same will constitute a material breach of this Lease upon
which City may cancel, terminate, or suspend this Lease. While City
reserves the right to determine independently that this Section 12.2 has
been violated, in addition, a determination by the California Fair
Employment and Housing Commission or the Federal Equal
Employment Opportunity Commission that Lessee has violated State or
Federal anti-discrimination laws will constitute a finding by City that
Lessee has violated this Section 12.2.
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H. The parties agree that in the event Lessee violates any of the provisions of
this Section 12.2, City is entitled, at its option, to the sum of $500
pursuant to Civil Code Section 1671 as liquidated damages in lieu of
canceling, terminating or suspending this Agreement.
I. Lessee agrees that it will comply with Section 504 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 794), all requirements imposed by
applicable federal regulations, and all guidelines and interpretations
issued pursuant thereto, to the end that no qualified disabled person
may, on the basis of disability, be excluded from participation in, be
denied the benefits of, or otherwise be subjected to discrimination under
any program or activity of Lessee receiving federal financial assistance.
13. No Assignments or Snbleases. Lessee has been selected to lease the Premises in
reliance upon Lessee's stated and unique expertise, skill, and experience in
operating a child care facility. Lessee is prohibited from assigning, subleasing or
transferring its interest in this Lease either in whole or in part, directly or indirectly,
without the prior written consent of City, which may be withheld in its sole and
complete discretion. Any assignment or transfer by Lessee without City's consent is
voidable and, at City's election, will constitute a material default under this Lease.
A sale or transfer of the stock, assets or other equitable interests of Lessee that has
the effect of a material change in Lessee's ownership, as determined by City in its
sole discretion, will constitute a transfer of this Lease requiring City's prior written
approval pursuant this Section 13.
14. Covenant Against Liens. Lessee will not be the cause or object of any liens or allow
such liens to exist, attach to, or be placed on, or encumber City's interest in the
Premises by operation of law or otherwise. Lessee agrees to keep the Premises free
and clear of any mechanic's liens, and other liens, and liens for labor, services,
supplies, equipment, or material furnished or claimed to have been furnished to
Lessee or the PremiBes. If any lien is attached or Lessee. receives notice_ o.(any lien,
Lessee will cause the lien to be released and removed of record immediately, and
will notify City of the existence of such lien. Despite any other provision of thh'
Lease, if the lien is not released and removed by Lessee, City may take all action
necessary to release and remove the lien. All expenses, including reasonable
attorneys' fees, incurred by City in connection with the lien will be considered
Additional Rent under this Lease and immediately due and payable by Lessee.
15. Taxes And Assessments. This Lease may create a possessory interest in public
property that is subject to taxation. In the event that such interest is created, Lessee
will pay any taxes levied on such interest. Lessee will pay all taxes assessed upon the
value of personal property and improvements belonging to Lessee and upon
Lessee's possessory interest, if any, in the Premises and improvements. Lessee will
pay all sales, use and other taxes levied against the operation of its business.
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16. Signs. All signs must be in compliance with the requirements, regulations, and
ordinances of the City of Santa Monica. Lessee agrees to maintain adequate interior
lighting and illumination of the Premises during open hours.
17. Damage or Destruction to the Premises or Improvements.
17 .1. Obligation to Repair or Reconstruct the Premises and Improvements. In
the event of substantial damage to the Premises or any improvements thereon
by fire, earthquake, flood, other elements, accident or any other casualty
whatsoever (collectively, "Casualty"), City will have no obligation to restore or
to reconstruct the Premises. However, City may, in its sole discretion, elect to
do so.
17 .2. Termination of the Lease. If City elects not to restore or reconstruct the
Premises within 90 days from the date of Casualty, then either City or Lessee
may terminate this Lease upon 30 days' written notice to the other party. In
the event of such tennination by either party, all proceeds of insurance on
Lessee's personal property will belong to Lessee. City will not be liable for
interruption to Lessee's business operations or for datnage to or replacement
or repair of Lessee's personal property (including inventoty, trade fixtures,
floor coverings, furniture, cquiptnent, vehicles, and other property removable
by Lessee under the provisions of this Lease) or to any leasehold
improvements installed in the Premises.
17.3. Closure of Premises. If the Premises are damaged such that it is reasonably
necessary, in City's judgment, to close the Premises for safety, reconstruction
or other purposes, City may close the same for such time as it reasonably
determines.
17 .4. Insurance Proceeds. Except as otherwise specifically provided herein, all
insurance proceeds payable with respect to the Premises (excluding proceeds
payable to Lessee for Lessee's personal property, including Lesse~:'s _trade
fixtures, furnishings, and equipment, or business interruption) shall be
payable to City, subject to Lessee's right to use any such insurance proceeds to
satisfY its repair and restoration obligations hereunder.
17.5. No Claim Against City. Lessee will have no claim against City (including
members of its City Council, boards and commissions, officers, agents, and
employees) for any damage, loss of business or good will, alterations,
ilnprovements, fixtures, furnishing, equipment, buildings, structures, vehicles,
and inventory suffered by reason of any damage, destruction, repair or
restoration of the Premises.
17 .6. Waiver. City and Lessee waive the provisions of any statutes relating to
tennination ofleases when leased property is destroyed and agree that such
event will be governed by the terms of this Lease to the extent of any conflict
between said statutes and this Lease.
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18. Surrender of Premises. Upon the tennination or expiration of this Lease, Lessee
agrees to surrender possession of the Pre1nises and all improve1nents thereon
immediately to City. Any fixtures placed upon the Premises by Lessee will become
City's property, free and clear of any liens or encumbrances.
19. Notices. All notices required to be given in writing pursuant to this Lease shall be
in writing and either served personally or sent by certified mail to the address listed
below, or at such other address as shall be provided by written notice. Notice will be
deemed communicated within 4 days from the time of mailing if mailed as
provided in this Section 19.
19.1. To City: Community & Cultural Services
City of Santa Monica
1685 Main Street, Room 212
Santa Monica, California 90405
Attn: Human Services Manager
19.2. To Lessee: The Growing Place
1406 Marine Street
Santa Monica, CA 90405
Attn: Executive Director
19.3. This Section 19 will replace rather than supplement any equivalent or similar
statutory requirement as to notice or service of notice, including any
requirements of California Code of Civil Procedure Sections 1161 and 1162.
20. Defaults and Remedies for Defaults.
20.1. Events Constituting Material Default by Lessee. The occurren<;e_(lf any one
or more of the following events constitutes a material default and breach of
this Lease:
A. Lessee's failure to comply with the tenns and conditions of the Grant
Agreement.
B. Lessee's failure to pay any rent, Additional Rent, or other monetary
payment due, where such failure continues for 3 business days after
notice from City to Lessee. In the event that City serves Lessee with a
Notice to Pay Rent or Quit pursuant to applicable unlawful detainer
statutes, such Notice to Pay Rent or Quit shall also constitute the notice
required by this Section 20.l.B.
C. Lessee's failure to perfonn any nonmonetary obligation under this Lease,
including the failure to provide child care services and programming
13
consistent with the tenns and conditions of the Grant Agreement, if the
failure continues for 14 days after written notice of the failure from City
to Lessee. Notwithstanding the above, if City, at its sole discretion, deems
that the nature of Lessee's default requires more than 14 days for its cure,
then Lessee will not be deemed to be in default if Lessee commences to
cure within 14 days and thereafter diligently prosecutes the cure to
completion to City's satisfaction.
D. Lessee's abandonment of the Premises, including the absence of Lessee's
employees from the Premises, for 7 consecutive days while in default of
any provision of this Lease.
E. Lessee's rnaking any arrangernent or assignment of its interests in the
Premises or improvements under this Lease for the benefit of creditors.
F. The filing by or against Lessee of any proceeding under federal
bankruptcy law, unless the proceeding is dismissed within 60 days.
G. The appointment of a trustee or receiver to take possession of all or
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, unless possession is unconditionally restored to
Lessee and the trusteeship or receivership is dissolved.
H. The attachment, execution or judicial seizure of substantially all of
Lessee's assets located at the Prernises or of Lessee's interest in this Lease,
unless that seizure is discharged within 30 days.
I. The discovery by City that any financial statement or enrollment statistics
or scholarship statistics given to City by Lessee are materially false.
J. Lessee's failure to discharge and remove any lien or encumbrance filed
against the Premises.
K. Any attempt to assign Lessee's interest in any portion of this_ Le_ase
without the prior written consent of City.
20.2. Remedies for Default. In the event of any occurrence of material default or
breach of this Lease by Lessee, City will notify Lessee of the breach and if
applicable, the time for cure as specified above. In the event that Lessee fails
or refuses to cure, or if the material default is not subject to cure, City may:
A. Terminate Lessee's right to possession of the Premises by any lav.ful
means pursuant to Section 21. In the event of termination, Lessee must
immediately surrender the Premises to City. In such event, City will be
entitled to recover from Lessee all damages incurred by City by reason of
Lessee's default, including the cost of recovering possession of the
Premises, expenses of reletting, including necessary renovation and
alteration of the Premises, and reasonable attorneys' fees.
14
B. Maintain Lessee's right to possession, in which case this Lease will
continue in effect. In such event, City will be entitled to enforce all of
City's rights and remedies under this Lease.
C. Pursue any other remedy now or hereafter available to City under the
laws and judicial decisions of the State of California.
21. Termination.
21.1. Termination by City for Lessee's Breach. In the event that Lessee fails or
refuses to perform any of the requirements of this Lease in the time and
manner required, City may tenninate this Lease by giving Lessee written
notice of tennination. Upon tennination, all rights, powers, privileges, and
authority granted to Lessee under this Lease will cease, and Lessee must
immediately vacate the Premises. City's tennination right under this Section
21 is not its exclusive remedy, but is in addition to all other remedies
provided to it under this Lease, at law or in equity.
21.2. Termination by Either Party. Either party may, in their sole discretion, with
or without cause, terminate this Lease by giving 120 days' prior written notice
of termination to the other party, in the manner provided in this Lease.
21.3. Duties Upon Termination. Upon termination of this Lease, Lessee will pay
all rent, Additional Rent, and any other payments due to City under the
terms of this Lease. Lessee agrees to do all other things reasonably necessary
to cause an orderly transition and surrender of the Premises and operations
thereon.
22. Miscellaneous Provisions.
22.1. Authority. Both parties have full power and authority to enter this-Lease.
22.2. Relationship of the Parties. Lessee, in the perfonnance of this Lease and its
business operations, will be acting in a wholly independent capacity and not
as agent, etnployee, partner, or joint venturer of City.
22.3. Integrated Agreement. This Lease constitutes the sole agreement of the
parties with respect to its subject matter. It supersedes any prior written or
oral agreements or communications between the parties. It may not be
modified except in a writing signed by the parties.
22.4. City's Proprietary Capacity. Lessee understands that City is entering into this
Lease in its proprietary capacity. Nothing in this Lease directly or indirectly
restricts or impairs City's governmental powers or rights with respect to the
leasehold, or with respect to Lessee's use, occupancy, and operations of the
Premises pursuant to this Lease. Lessee agrees to fulfill and comply with all
15
requirements that may be imposed by any governmental agency or authority
of City having jurisdiction over the Premises in City's governmental capacity.
22.5. Non-waiver. If either party fails to require the other party to perfonn any
term of this Lease, that failure does not prevent the party from later enforcing
that term. If either party waives the other party's breach of a term, that waiver
is not treated as waiving a later breach of that tenn or any other tenn. Any
waiver by the parties of any term must be in writing. Such waiver affects only
the provision specified and only for the time and in the manner stated in the
writing.
22.6. Attorneys' Fees and Costs. If either party brings an action or proceeding
against the other party by reason of a default under this Lease, or otherwise
arising out of this Lease, the prevailing party in such action or proceeding is
entitled to receive from the losing party all costs and expenses in such amount
as the court may adjudge to be reasonable attorneys' fees and costs. Such
attorneys' fees must be paid whether or not such action is prosecuted to
judgment. Where City is entitled to recover attorneys' fees, City will be
entitled to recover an amount equal to the fair market value of legal services
provided by attorneys (authorized to provide such services) employed by it as
well as any attorneys' fees actually paid by it to third parties in connection
with such action.
22.7. Governing Law. California law applies to this Lease without regard for any
choice-of-law rules that might direct the application of the laws of any other
jurisdiction.
22.8. Time is of the Essence. Time is of the essence as to each provision of this
Lease.
22.9. Severability. If any part of this Lease is for any reason held to be
unenforceable by a court of competent jurisdiction, the rest of it remains
enforceable.
22.10. Headings. Headings are for convenience only and do not affect the
interpretation of this Lease.
22.11. "Including." Unless the context requires otherwise, the term "including"
means uincluding but not lhnited to."
22.12. Recitals. The foregoing Recitals are incorporated by this reference and made
part of this Lease.
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22.13. Counterparts. This Lease may be signed in counterparts, each of which is an
original, but all of which constitute one and the same instrument.
22.14. Exhibits. The following exhibits are incorporated by reference into this
Agreement as though fully set forth herein.
Exhibit A
Exhibit B
Premises -The Growing Place
Insurance Require1nents
IN WITNESS WHEREOF, the parties have executed this Lease as of the date and
year first above written.
ATTEST:
SARAHP. GORMAN
City Clerk
17
By: __ ~--~~----~--~~
ICKCOLE
ity Manager
THE GROWING PLACE, a California non-
c·" , --.... profit c.o. rp. .oration . c
By: \ .d~ . VV\. . J-L--( 4'
Name: VciCC \lV\t' 1'\f\t B:ctt?£
Title: f:X I'T. \.H\ \,}f 0( '(tc-±cnf
ExhibitA·
The Growing Place
1406 Marine Street
Santa Monica, CA 90405
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. \::: IIIII . I\., [STJ . . -Q< ~ QCX . . TODDLERS · . V,_ ~f< X · PLAY Yll:.RD .~\ . ~ X :;:1< X 0;x yxE-< X . 0 29< :X~ E§ >\ TODDLERS i= . X<x ~ o >)( ~ AUDI IIORIUM ' ,>(< ;x. 0 »< ><;< )<;x. >6?:'0
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ExhibitB
The Growing Place Lease Agreement Ins~rance Requirements and Verification
Lessee shall procure and maintain for the duration of the Agreement insurance against claims for injuries
to persons or damages to property that may arise from or in connection with the performance of the
work hereunder by the Lessee, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance. Coverage shall be at least as broad as:
A. Commercial General Liability (CGL): Insurance Services Office Form CO 00 01
covering COL on an "occurrence" basis, including property damage, bodily injuty and
personal injutywith limits no less than $1,000,000 per occurrence. If a general aggregate
limit applies, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be twice the required occurrence
limit.
B. Workers' Compensation and Employer's Liability: Workers' Compensation insurance
as required by the State of California and Employer's Liability Insurance with limits of
no less than $1,000,000 per accident for bodily injury or disease. If Lessee does not have
employees, then Workers' Compensation insurance coverage is not required; however,
Lessee must execute City's Workers' Compensation Coverage Exemption Form.
C. Property: Insurance against all risks ofloss to any tenant improvements or betterments,
personal property on the premise at full replacement cost with no coinsurance penalty
provision.
If the Lessee maintains higher limits than the minimums shown above, the City of Santa Monica requires
and shall be entitled to coverage for the higher limits maintained by the Lessee. Any available insurance
proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the
City of Santa Monica.
Other Insurance Provisions.
A. The policies are to contain, or be endorsed to contain, the following provisions:
i. Additional Insured Status (CGL policy only): The City of Santa Monica, its officers,
officials, employees, and volunteers are to be covered as insureds on the COL policy
with respect to liability arising out of ownership, maintenance or use of the premises
leased to Lessee.
ii. Primary Coverage (all policies): Lessee's insurance coverage shall be primary as
respects the City of Santa Monica, its officers, officials, employees, and volunteers.
Any insurance or self-insurance maintained by City, its officers, officials, employees
or volunteers, will be excess of Lessee's insurance and will not contribute with it.
B. Notice of Cancellation (all policies): Each insurance policy will be endorsed to state that
coverage shall not be cancelled except after 30 days' prior written notice (10 days for non-
payment) has been given to City.
C. Waiver of Subrogation (all policies): Lessee hereby grants to City a waiver of any right to
subrogation which any insurer of said Lessee may acquire against City by virtue of
payment of any loss under such insurance. This provision applies regardless of whether
or not City has received a waiver of subrogation endorsement form the insurer. The
Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of
City for all activities in connection with the use of the premises by Lessee, its employees,
agents, and subcontractors.
D. Loss Payee (Property policy): The Property insurance shall name the City of Santa
Monica as Loss Payee as its interests may appear.
Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating
of no less than A: VII unless otherwise approved by the City's Risk Manager.
Deductibles and Self Insured Retentions. Any deductibles or self-insured retentions must be
declared to and approved by the City. City may require Lessee to reduce or eliminate the
deductible or retention applicable to an acceptable level or provide satisfactory proof of ability to
pay losses and related investigations, claim administration, and defense expenses within the
retention.
Verification of Coverage. Lessee shall fumish City with original certificates and amendatory
endorsements or copies of the applicable policy language providing the insurance coverage
required above. All certificates and endorsements are to be received and approved by City before
work commences. However, failure to obtain the required documents prior to work beginning
shall not waive Lessee's obligation to provide them. City reserves the right to require complete,
certified copies of all required insurance policies, including endorsements required by these
specifications, at any thne.
Failure to Maintain Insurance Coverage. If Lessee, for any reason, fails to maintain insurance
coverage as required in this Lease, the same will be deemed a material breach of contract. City, at
its sole option, may terminate this contract and obtain damages from Lessee resulting from said
breach. Altematively, City may purcl1ase such coverage (but has no special obligation to do so), and
without further notice to Lessee, City may deduct from sums due to the Lessee any premium costs
advanced by City for such insurance.
Lessee's Contractor's Insurance. Lessee shall require and verifY that any contractors or
subcontractors maintain insurance meeting the requirements stated herein for Co1nmercial
General Liability and Workers' Compensation.
REFERENCE:
LEASE NO. 10841 (CCS)