Thursday, September 29, 2022 AGENDA Page 1
AGENDA
BERKELEY CITY COUNCIL MEETING
Thursday, September 29, 2022
6:00 PM
JESSE ARREGUIN, MAYOR
Councilmembers:
DISTRICT 1 – RASHI KESARWANI DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – TERRY TAPLIN DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – RIGEL ROBINSON
DISTRICT 4 – KATE HARRISON DISTRICT 8 – LORI DROSTE
PUBLIC ADVISORY: THIS MEETING WILL BE CONDUCTED EXCLUSIVELY THROUGH
VIDEOCONFERENCE AND TELECONFERENCE
Pursuant to Government Code Section 54953(e) and the state declared emergency, this meeting of the City Council will be conducted exclusively through teleconference and Zoom videoconference. The COVID -19 state of emergency continues to directly impact the ability of the members to meet safely in person and presents imminent risks to the health of attendees. Therefore, no physical meeting location will be available.
Live captioned broadcasts of Council Meetings are available on Cable B -TV (Channel 33) and via internet accessible video stream at
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To submit a written communication for the City Council’s consideration and inclusion in the public record, email [email protected].
This meeting will be conducted in accordance with the Brown Act, Government Code Section 54953. Any member of the public may attend this meeting. Questions regarding this matter may be addressed to Mark Numainville, City Clerk, (510) 981-6900. The City Council may take action related to any subject listed on the Agenda. Meetings will adjourn at 11:00 p.m. - any items outstanding at that time will be carried over to a date/time to be specified.
Thursday, September 29, 2022 AGENDA Page 2
Preliminary Matters
Roll Call:
Ceremonial Matters: In addition to those items listed on the agenda, the Mayor may add additional ceremonial matters.
1. Presentation by Leilani Farha, former Special Rapporteur on the right to adequate housing for the United Nations
City Manager Comments: The City Manager may make announcements or provide information to the City Council in the form of an oral report. The Council will not take action on such items but may request the City Manager place a report on a future agenda for discussion.
Public Comment on Non-Agenda Matters: Persons will be selected to address matters not on the Council agenda. If five or fewer persons wish to speak, each person selected will be allotted two minutes each. If more than five persons wish to speak, up to ten persons will be selected to address matters not on the Council agenda and each person selected will be allotted one minute each. The remainder of the speakers wishing to address the Council on non-agenda items will be heard at the end of the agenda.
Consent Calendar
The Council will first determine whether to move items on the agenda for “Action” or “Information” to the “Consent Calendar”, or move “Consent Calendar” items to “Action.” Three members of the City Council must agree to pull an item from the Consent Calendar for it to move to Action. Items that remain on the “Consent Calendar” are voted on in one motion as a group. “Information” items are not discussed or acted upon at the Council meeting unless they are moved to “Action” or “Consent”.
No additional items can be moved onto the Consent Calendar once public comment has commenced. At any time during, or immediately after, public comment on Information and Consent items, any Councilmember may move any Information or Consent item to “Action.” Following this, the Council will vote on the items remaining on the Consent Calendar in one motion.
For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again at the time the matter is taken up during the Action Calendar.
Public Comment on Consent Calendar and Information Items Only: The Council will take public comment on any items that are either on the amended Consent Calendar or the Information Calendar. Speakers will be entitled to two minutes each to speak in opposition to or support of Consent Calendar and Information Items. A speaker may only speak once during the period for public comment on Consent Calendar and Information items.
Additional information regarding public comment by City of Berkeley employees and interns: Employees and interns of the City of Berkeley, although not required, are encouraged to identify themselves as such, the department in which they work and state whether they are speaking as an individual or in their official capacity when addressing the Council in open session or workshops.
Thursday, September 29, 2022 AGENDA Page 3
Consent Calendar
1. Lease Agreement: 80 (North Building), 82/84 & 90 Bolivar Drive in Aquatic Park with Waterside Workshops
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,831-N.S. authorizing the City Manager to execute a lease agreement with Waterside Workshops to use the 80 (North Building), 82/84 & 90 Bolivar Drive in Aquatic Park for a lease term anticipated to begin November 1, 2022 and ending November 1, 2031.
First Reading Vote: All Ayes.
Financial Implications: See report
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
2. Ordinance Amendment: Correction to the COVID-19 Emergency Response Ordinance, BMC Chapter 13.110.
From: Mayor Arreguin (Author), Councilmember Hahn (Co-Sponsor), Councilmember Harrison
Recommendation: Adopt second reading of Ordinance No. 7,832-N.S. correcting BMC Chapter 13.110, the COVID-19 Emergency Response Ordinance, to clarify the effect of Ordinance No. 7,762-N.S. upon tenant protections that were inadvertently omitted during the last update of BMC Chapter 13.110.
First Reading Vote: All Ayes.
Financial Implications: None
Contact: Jesse Arreguin, Mayor, (510) 981-7100
3. An Ordinance Repealing Chapter 12.76 of the Berkeley Municipal Code and Repealing Ordinance No. 7,643-NS.
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,833-N.S. repealing Chapter 12.76 of the Berkeley Municipal Code and repealing Ordinance No. 7,643-NS.
First Reading Vote: All Ayes.
Financial Implications: None
Contact: Farimah Brown, City Attorney, (510) 981-6950, Dee Williams-Ridley, City Manager, (510) 981-7000, Paul Buddenhagen, City Manager's Office, (510) 981- 7000
4. Urgency Ordinance Extending the Lease for Real Property at 742 Grayson Street
From: City Manager
Recommendation: Adopt an Urgency Ordinance to extend an existing lease for the real property located at 742 Grayson Street, Berkeley, CA for an additional month, through October 31, 2022.
Financial Implications: Measure P Funds - $26,379
Contact: Peter Radu, City Manager's Office, (510) 981-7000
Consent Calendar
Thursday, September 29, 2022 AGENDA Page 4
5. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on September 29, 2022
From: City Manager
Recommendation: Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval.
Financial Implications: Various Funds - $15,891,000
Contact: Henry Oyekanmi, Finance, (510) 981-7300
6. Contract - Gaumard Scientific Company, Inc. for High Fidelity Training Equipment
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to issue purchase orders with Gaumard Scientific Company, Inc. using the General Services Agency’s (GSA) Contract No. 47QSEA21D002V for high fidelity training equipment in an amount not to exceed $375,000 through June 30, 2024.
Financial Implications: Measure FF - $375,000
Contact: David Sprague, Fire, (510) 981-3473
Action Calendar
The public may comment on each item listed on the agenda for action as the item is taken up. For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again at the time the matter is taken up during the Action Calendar.
The Presiding Officer will request that persons wishing to speak use the "raise hand" function to determine the number of persons interested in speaking at that time. Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker. Speakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may, with the consent of persons representing both sides of an issue, allocate a block of time to each side to present their issue.
Action items may be reordered at the discretion of the Chair with the consent of Council.
Action Calendar – Public Hearings
Staff shall introduce the public hearing item and present their comments. This is followed by five -minute presentations each by the appellant and applicant. The Presiding Officer will request that persons wishing to speak use the "raise hand" function to be recognized and to determine the number of persons interested in speaking at that time.
Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker.
The Presiding Officer may with the consent of persons representing both sides of an issue a llocate a block of time to each side to present their issue.
Each member of the City Council shall verbally disclose all ex parte contacts concerning the subject of the hearing. Councilmembers shall also submit a report of such contacts in writing prior to the commencement of the hearing. Written reports shall be available for public review in the office of the City Clerk.
Consent Calendar
Thursday, September 29, 2022 AGENDA Page 5
7. ZAB Appeal: 1201-1205 San Pablo Avenue, Use Permit #ZP2021-0070 From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt a Resolution affirming the Zoning Adjustments Board (ZAB) decision to approve Use Permit #ZP2021-0070 to construct a six-story, mixed-use building on a vacant lot, with 66 units (including five Very-Low-Income units), 1,680 square feet of commercial space, 2,514 square feet of usable open space, and 17 to 28 ground-level parking spaces, and dismiss the appeal.
Financial Implications: None
Contact: Jordan Klein, Planning and Development, (510) 981-7400 Information Reports
8. Audit Recommendation Status - Berkeley Police: Improvements Needed to Manage Overtime and Security Work for Outside Entities
From: City Manager
Contact: Jennifer Louis, Police, (510) 981-5900
9. New Audit Recommendation Dashboard
From: Auditor
Contact: Jenny Wong, Auditor, (510) 981-6750
Public Comment – Items Not Listed on the Agenda
Adjournment
NOTICE CONCERNING YOUR LEGAL RIGHTS: If you object to a decision by the City Council to approve or deny a use permit or variance for a project the following requirements and restrictions apply: 1) No lawsuit challenging a City decision to deny (Code Civ. Proc. §1094.6(b)) or approve (Gov. Code 65009(c)(5)) a use permit or variance may be filed more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90- day period will be barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a use permit or variance, the issues and evide nce will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project.
Archived indexed video streams are available at:
https://berkeleyca.gov/your-government/city-council/city-council-agendas.
Channel 33 rebroadcasts the following Wednesday at 9:00 a.m. and Sunday at 9:00 a.m.
Comm
unications to the City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service to the City Clerk Department at 2180 Milvia Street. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk Department for further information.
Thursday, September 29, 2022 AGENDA Page 6
Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the public counter at the City Clerk Department located on the first floor of City Hall located at 2180 Milvia Street as well as posted on the City's website at https://berkeleyca.gov/.
Agendas and agenda reports may be accessed via the Internet at:
https://berkeleyca.gov/your-government/city-council/city-council-agendas and may be read at reference desks at the following locations:
City Clerk Department - 2180 Milvia Street, First Floor Tel: 510-981-6900, TDD: 510-981-6903, Fax: 510-981-6901 Email: [email protected]
Libraries: Main – 2090 Kittredge Street,
Claremont Branch – 2940 Benvenue, West Branch – 1125 University, North Branch – 1170 The Alameda, South Branch – 1901 Russell
COMMUNICATION ACCESS INFORMATION:
To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at (510) 981-6418 (V) or (510) 981-6347 (TDD) at least three business days before the meeting date.
Captioning services are provided at the meeting, on B-TV, and on the Internet. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the agenda for this meeting of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building , 2134 Martin Luther King Jr. Way, as well as on the City’s website, on September 15, 2022.
Mark Numainville, City Clerk
Communications – September 29, 2022
Council rules limit action on Communications to referral to the City Manager and/or Boards and Commissions for investigation and/or recommendations. All communications submitted to Council are public record.
Item #4: ZAB Appeal: 1201-1205 San Pablo Avenue, Use Permit #ZP2021-0070
1. Dan Hayes
2. Margaret Pritt (5)
3. Yvette Bozzini
4. Melissa and Carlos Blanco
5. Jean Molesky-Poz (2)
6. Eric Danysh
7. Matt Culliname
8. Diana Wood
Thursday, September 29, 2022 AGENDA Page 7
Missed Refuse Pickup
9. Barbara Gilbert
Parking Tickets
10. Michael Wright
11. Tony Benado
Tree Problem at Indian Rock Park
12. Richard Beahrs
13. Tony Benado
Police Accountability Board and Office of the Director of Police Accountability Year-End Report
14. Maritza Martinez, on behalf of the Office of the Director of Police Accountability
Toxic Pesticide Federal Bill
15. Maya Cohen
Supportive Housing at 1367 University Avenue
16. Homeless Services Panel of Experts
Opposition to Measure L
17. Margots999@
Wildfire Prevention
18. Bruce Feingold
Supplemental Communications and Reports
Items received by the deadlines for submission will be compiled and distributed as follows. If no items are received by the deadline, no supplemental packet will be compiled for said deadline.
• Supplemental Communications and Reports 1
Available by 5:00 p.m. five days prior to the meeting.
• Supplemental Communications and Reports 2
Available by 5:00 p.m. the day before the meeting.
• Supplemental Communications and Reports 3
Available by 5:00 p.m. two days following the meeting.
Ordinance No. 7,831--N.S. Page 1 of 1
ORDINANCE NO. 7,831-N.S.
LEASE AGREEMENT WITH WATERSIDE WORKSHOPS TO USE CITY
PROPERTIES LOCATED AT 80, 82/84, & 90 BOLIVAR DRIVE IN AQUATIC PARK BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The City Manager, or his designee, is hereby authorized to execute a lease agreement with Waterside Workshops for the property location at 80 (North Building), 82/84 and 90 Bolivar Drive in Aquatic Park with a lease term beginning on November 1, 2022, ending November 1, 2031. The estimated revenue is $24,750. The lease shall be substantially in the form attached hereto as Exhibit “A”.
Section 2. All revenue from said lease shall be deposited in the Park Tax Fund in a specific revenue account (Budget Code 450-5801-363.10-04) and used to maintain public facilities in Aquatic Park.
Section 3. Copies of this bill shall be posted for two days prior to adoption in the display case located near the walkway in front of Old City Hall, 2134 Martin Luther King Jr. Way. Within fifteen calendar days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
At a regular meeting of the Council of the City of Berkeley held on September 13, 2022, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Bartlett, Droste, Hahn, Harrison, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.
Noes: None.
Absent: None.
1 Exhibit A: Lease Agreement
CITY OF BERKELEY
IMPROVED PROPERTY LEASE
Between
THE CITY OF BERKELEY, A CHARTER CITY
ORGANIZED AND EXISTING UNDER THE LAWS
OF THE STATE OF CALIFORNIA
as Landlord,
and
WATERSIDE WORKSHOPS
as Tenant.
For the Properties at
80 (North Building), 82, 84 & 90 Bolivar Drive
Berkeley, CA
2 80, 82, 84 & 90 Bolivar Drive Lease – Waterside Workshops, Tenant
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................................................2
1. DEFINITIONS ...................................................................................................................................................5
2. TERM.................................................................................................................................................................6
3. RENT .................................................................................................................................................................6
4. PROPERTY AND OTHER TAXES..................................................................................................................8
5. USE OF PROPERTY AND THE AQUATIC PARK MAIN LAGOON ..........................................................9
6. USE OF AQUATIC PARK PROPERTY ........................................................................................................13
7. SERVICES .......................................................................................................................................................14
8. OBLIGATION OF TENANT TO REMOVE PERSONAL PROPERTY.......................................................15
9. ALTERATIONS AND IMPROVEMENTS ....................................................................................................15
10. LIENS...............................................................................................................................................................18
11. TENANT AND LANDLORD MAINTENANCE OBLIGATIONS ...............................................................18
12. ENVIRONMENTAL .......................................................................................................................................19
13. DAMAGE OR DESTRUCTION .....................................................................................................................19
14. INDEMNIFICATION......................................................................................................................................20
15. INSURANCE ...................................................................................................................................................21
16. COMPLIANCE WITH LAWS ........................................................................................................................23
17. ASSIGNMENT AND SUBLEASE .................................................................................................................24
18. INSPECTION...................................................................................................................................................25
19. DEFAULT........................................................................................................................................................25
20. REMEDIES UPON DEFAULT.......................................................................................................................27
21. ENVIRONMENTAL OBLIGATIONS ...........................................................................................................28
22. LANDLORD'S RIGHT TO CURE..................................................................................................................29
23. EMINENT DOMAIN ......................................................................................................................................30
24. SUBORDINATION .........................................................................................................................................30
25. NO MERGER ..................................................................................................................................................31
26. TRANSFER BY LANDLORD........................................................................................................................31
27. ESTOPPEL CERTIFICATES..........................................................................................................................31
28. HOLDING OVER............................................................................................................................................31
29. CHANGES BY LANDLORD .........................................................................................................................32
30. GOVERNING LAW ........................................................................................................................................32
31. SECURITY DEPOSIT.....................................................................................................................................32
32. SIGNAGE ........................................................................................................................................................33
33. NO PARTNERSHIP ........................................................................................................................................33
34. NO WAIVER ...................................................................................................................................................34
35. NOTICES .........................................................................................................................................................34
36. COMPLETE AGREEMENT ...........................................................................................................................34
37. REQUESTS FOR CONSENT; WAIVER OF CLAIM ...................................................................................35
38. INTERPRETATION........................................................................................................................................35
3 80, 82, 84 & 90 Bolivar Drive Lease – Waterside Workshops, Tenant
39. SUCCESSORS AND ASSIGNS .....................................................................................................................35
40. AUTHORITY...................................................................................................................................................35
41. UNAVOIDABLE DELAYS ............................................................................................................................35
42. TIME OF THE ESSENCE...............................................................................................................................36
43. BROKERAGE .................................................................................................................................................36
44. CITY NON-DISCRIMINATION ORDINANCE............................................................................................36
45. NON-DISCRIMINATION AGAINST PERSONS WITH DISABILITIES ...................................................36
46. CONFLICT OF INTEREST PROHIBITED....................................................................................................37
47. NUCLEAR FREE BERKELEY ......................................................................................................................37
48. OPPRESSIVE STATES...................................................................................................................................37
49. BERKELEY LIVING WAGE ORDINANCE (LWO)....................................................................................38
50. BERKELEY EQUAL BENEFITS ORDINANCE (EBO)...............................................................................39
51. AUDIT .............................................................................................................................................................40
52. CITY BUSINESS LICENSE, PAYMENT OF TAXES, TAX I.D. NUMBER ..............................................40
53. SURVIVAL......................................................................................................................................................40
54. EXHIBITS........................................................................................................................................................40 Exhibit “A”: Leased Premises..........................................................................................................................42 Exhibit “B”: Berkeley Municipal Code, Chapter 6.04.....................................................................................43 Exhibit “C”: Proposed Repair/Renovation Schedule .......................................................................................44 Exhibit “D”: Kitchell Report............................................................................................................................45
4 80, 82, 84 & 90 Bolivar Drive Lease – Waterside Workshops, Tenant
PROPERTY LEASE
BASIC LEASE INFORMATION
1. Landlord: City of Berkeley, a California municipal corporation 2180 Milvia Street
Berkeley, CA 94704
Attention: Director, Parks, Recreation & Waterfront
Telephone: (510) 981-6437
Email: [email protected]
2. Tenant: Waterside Workshops
3. Tenant Trade Name: Waterside Workshops
4. Effective Date: November 1, 2022
5. Premises:
Four buildings (as depicted in Exhibit “A”) located at the northeast side of Aquatic Park Approx. ½ an acre, including 4 buildings that together are approx. 5,265 square feet, plus outdoor space between the buildings. Public dock and garden area shared with BORP.
6. Permitted Uses:
The premises shall be used for public bicycle rentals and sales, community bicycle repair space, boat building space, storage area, and a small café.
7. Initial Term: Ten (10) year(s), commencing as of November 1, 2022 (“Commencement Date”).
8. Option Period: Five (5) years.
9. Base Rent: $1,800 per year with $150 increase annually
10. Improvements
Tenant will invest approx. $166,200 in capital improvements. This includes ADA bathroom renovations, dry rot repairs, window and door repairs and replacements, painting, siding repairs, and ADA repairs and improvements throughout the premises.
11. Maintenance
Tenant will invest approx. $50,000 in ongoing maintenance, including landscaping, graffiti abatement, pest control, and maintenance of plumbing, electrical and building systems.
12. Services
Landlord pays for water and sewer. Tenant pays for all other utilities including electricity, gas, garbage, and telephone. Tenant pays electrical services associated with Dreamland bathrooms.
The Basic Lease Information set forth above and the Exhibits attached hereto are incorporated into and made a part of the following Lease. In the event of any conflict between the Basic Lease Information and terms of the Lease, the terms of the Lease shall control.
LANDLORD
’S INITIALS _______ TENANT’S INITIALS _______
5 LEASE
THIS LEASE is made by and between the CITY OF BERKELEY, a Charter City organized and existing under the laws of the State of California ("Landlord or City") and WATERSIDE WORKSHOPS, a non-profit organization doing business at 80, 82, 84 & 90 Bolivar Drive, in Berkeley, CA ("Tenant").
W I T N E S S E T H :
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the term and subject to the terms, covenants, agreements and conditions set forth below, to each and all of which Landlord and Tenant hereby mutually agree.
1. DEFINITIONS
Unless the context otherwise specifies or requires, the following terms shall have the meanings herein specified:
A. "Affiliate," as to any person, shall mean such person's partners, members, commissioners, officers, employees, volunteers and agents.
B. "Building" shall mean a building on the Premises as shown on Exhibit A.
C. "Lease Year" shall mean each twelve-month period during the term of the Lease commencing upon the effective date of the Lease.
D. "Aquatic Park" shall mean the Aquatic Park as defined in Chapter 6.04 of the Berkeley Municipal Code ("B.M.C.") (attached hereto as Exhibit “B”), as amended or succeeded, and any buildings and other improvements constructed or to be constructed therein. Without limiting the provisions of Section 36 of this Lease, Tenant acknowledges it is not relying on any representations or warranties made by Landlord, Landlord's agents or anyone else in regard to the size or configuration of Aquatic Park or in regard to the nature, location, or appearance of any buildings, improvements, or unimproved property therein.
E. "Main Lagoon" or “Aquatic Park Lake” shall mean that body of water lying between West Bolivar Drive on the west, Addison Street on the north, the Southern Pacific railroad tracks on the east, and the service road on the south.
F. "Premises" are depicted in Exhibit A and shall mean the following portions of 80, 82, 84, and 90 Bolivar Drive:
1. At 80 Bolivar Drive, the North Building as described on Exhibit “A”, bounded to the north by the lagoon and bounded to the east by the pathway. The areas to the south and west of the building are shared spaces with BORP, the tenant at Main Building A at 82 Bolivar Drive.
2. At 82 Bolivar Drive, the southern portion of the main building, called Main Building B and depicted in Exhibit “A”. This also includes shared use of the common area, public dock, and the garden area shown on Exhibit “A”.
3. At 84 Bolivar Drive, the building, bounded to the south by the southern edge of the
6 building, to the east by the pathway, to the west by the lagoon. This also includes the outdoor area between 82 and 84 Bolivar Drive, which is bounded by the buildings to the north and south, lagoon to the west, and the pathway to the east.
4. At 90 Bolivar Drive, the exterior area of five feet around the perimeter of the building, provided the Premises are setback a minimum of eight feet from any structures or objects including but not limited to the pathways. Where the setback requirements cannot be met, the boundary line of the Premises will be the building itself. On the east side of the building, the property boundary is up to the street. The Premises include the unimproved foundation to the West of the building. The Premises does not include any portion of the lagoon, or any docks or other appurtenances that expend into the lagoon. It does not include exclusive use of any of the surrounding Aquatic Park land beyond that mentioned above.
G. "Facilities Condition Assessments" shall mean the comprehensive review and report of maintenance and repair needs of City-owned buildings conducted by Kitchell Capital Expenditure Managers, Inc., during 2013 and 2014 (dated 2/20/2015). The section of the report pertaining to Building (pages 45) is attached hereto as Exhibit "D", which lists the recommended capital improvements by building system class along with the estimated cost to repair or replace each specified building element or system (Table: CIP Cost Summary, page 45). This list of recommended capital improvements informs the List of Required Improvements set forth in Exhibit “C”.
I. "Public Dock" shall mean the public boat launching dock serving the Main Lagoon and located adjacent to the parking area of the Premises (as depicted in the aerial view of the Premises appearing in Exhibit "A").
2. TERM
A. Initial Term and Term of Renewal. The initial term is for a period of approximately ten years. Tenant has the option, under certain terms and conditions as described below, to renew this lease for an additional five-year term. This Lease shall take effect once duly approved by the Berkeley City Council and executed by both Landlord and Tenant (“the Effective Date”). The Initial Lease Term will expire at midnight October 30, 2032 (“the Termination Date”).
B. Procedure for Renewal. If Tenant wishes to renew the Lease beyond the Initial Lease Term, Tenant must provide written notice of such intent to Landlord at least one hundred and twenty (120) days prior to the expiration of the Initial Term. If Landlord, in its sole discretion, determines that Tenant has complied with all terms and conditions of the Lease, at least sixty (60) days prior to expiration of the Lease, Landlord shall provide written notice to Tenant of any additional improvements that will be required to be completed by Tenant or increase in rent for a single five-year renewal term and shall provide notice of its determination to grant renewal of the lease upon condition that Tenant agrees to the additional improvements and increase in rent, if any, at least thirty (30) days prior to the expiration of the Initial Term.
3. RENT
A. Rent. Tenant shall pay to Landlord as a minimum rental for its use and occupancy of the Premises an annual rent of ONE THOUSAND AND EIGHT HUNDRED DOLLARS
7 ($1800.00) for the first year of the Lease. For purposes of determining Rent, the first year of the Lease is the period up to October 31, 2023 and will be pro-rated for a partial year. In each subsequent Lease Year during the Term, the Rent shall increase by ONE HUNDRED AND FIFTY DOLLARS ($150.00) per year.
B. Percentage of Gross Income from Special Events.
1. In the event that Tenant operates a concession or a revenue-generating special event on the Premises or on the Main Lagoon, then Tenant agrees to pay Landlord, in addition to any fees levied by the City, an amount equal to FIVE PERCENT (5%) of the gross income realized by each such concession or special event during the term of the Lease. A special event is defined as any event in which the participants (groups or individuals) pay an entry fee to the Tenant. Tenant shall make this payment to the Landlord within thirty (30) calendar days from the last day of each special event, together with a financial statement of the gross income from said event. Tenant shall keep true and accurate books and records of each special event.
Said books and records shall be retained for at least two (2) years after occurrence of the events to which they relate. Landlord, and/or its designee, shall have the right at reasonable periods and at all reasonable times, and upon at least five (5) days' advance notice to Tenant to inspect such books and records. Income from special events does not include any grants or donations Tenant receives.
2. If any special event is likely to preclude some or all users of Aquatic Park from exercising a different use, and/or is a regatta, race, or pageant in Aquatic Park and/or on the Main Lagoon, Tenant shall first obtain a permit from the City, as required by Resolution No. 58,644-N.S. and Section 6.04.060 of the Berkeley Municipal Code. The fees for such permits shall be set by the City Council. Water use permits (by definition, for an event lasting no more than two weeks), may be issued by the Parks Recreation and Waterfront Department. Tenant understands that this Lease does not guarantee that the City, in its regulatory capacity, will grant any particular request for a permit. Tenant understands that the City may grant or deny such permit in its sole discretion, and may impose such terms and conditions as it deems consistent with that discretion.
C. Manner of Payment. All rent and other payments due from Tenant shall be made to Landlord in lawful money of the United States of America at Landlord's address for notice hereunder, or to such other person or at such other place as Landlord may from time to time designate in writing.
D. Delinquency and Late Charges; Interest.
1. Tenant hereby acknowledges that its late payment of rent and other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult or impracticable to ascertain. Such costs include, without limitation, processing and accounting charges and overtime wages. Accordingly, any payment of rent or other sum due hereunder that remains due and unpaid for a period of ten (10) days after it becomes due and payable shall be subject to a delinquency charge of ten percent (10%) of the delinquent amount. The parties agree that such charge represents a fair and
8 reasonable estimate of the costs Landlord shall incur by reason of Tenant's late payment. Landlord shall apply any monies received from Tenant first to any accrued delinquency charges and then to any rent then due. Acceptance of such delinquency charges by Landlord shall not constitute a waiver of Tenant's default with respect to such overdue amount. The delinquency charge is in addition to all other remedies that Landlord may have under this Lease or at law.
2. Any amount due to Landlord, if not paid when due, shall bear interest from the date due until paid at the rate of the twelve percent (12%) per annum. Interest shall not be payable on delinquency or late charges nor on any amounts upon which such charges are paid by Tenant, to the extent such interest would cause the total interest to exceed that legally permitted. Payment of interest shall not excuse nor cure any default hereunder by Tenant.
E. Accord and Satisfaction. Landlord's acceptance of a lesser amount of rent or other sum due hereunder shall not be deemed to be other than on account of the earliest rent or payment due and shall be applied by Landlord as provided in subsection D. 1. No endorsement or statement on any check or letter accompanying any such check or payment shall be deemed an accord and satisfaction, and Landlord may accept such check or payment and pursue any other remedy available under this Lease or at law. Landlord may accept any partial payment from Tenant without invalidation of any contractual notice required hereunder (if required) and without invalidation of any notice required pursuant to California Code of Civil Procedure Section 1161, et seq., or any successor statute.
4. PROPERTY AND OTHER TAXES
A. Possessory Interest Taxes. The property interests created by this Lease may be subject to property taxation and Tenant, in whom the possessory interest is vested, will be responsible for the timely payment of any property taxes levied on such possessory interest.
Tenant agrees to pay before delinquency all lawful taxes, assessments, fees or charges which at any time may be levied by the state, county, city or any tax or assessment levying body against the transfer of the leasehold interest hereunder upon recordation or otherwise, or upon any activity carried on under this Lease, any interest in this Lease or any possessory right which Tenant may have in or to the Property or the Premises by reason of its use or occupancy thereof or otherwise.
B. City of Berkeley Assessments. Tenant also shall be responsible for and shall pay prior to delinquency all assessments imposed against the Property and/or the Premises by the City. Tenant acknowledges that City has established certain assessment districts within the City of Berkeley and that all properties within the assessment districts are subject to annual assessments. The City reserves the right to create additional districts and to terminate any such district(s). Tenant shall be billed for each such assessment in the same manner as other property owners and lessees in the City.
C. Personal Property and Other Taxes. In addition to all other sums to be paid by Tenant hereunder, Tenant shall pay, before delinquency, any and all taxes levied or assessed during the term of the Lease on Tenant's equipment, furniture, fixtures, merchandise, and other
9 personal property located in the Premises, and shall pay, or shall reimburse Landlord for, any and all assessments (including, without limitation, all assessments for public improvements, services or benefits, irrespective of when commenced or completed), excises, levies, business taxes, Lease, permit, inspection and other authorization fees, transit fees, service payments in lieu of taxes and any other fees or charges of any kind, which are levied, assessed, or imposed by any public authority: (i) upon or measured by rental payable hereunder, including without limitation, any gross income tax or excise tax levied by the City of Berkeley, Alameda County, the State of California, the Federal Government or any other government body with respect to the receipt of such rental; (ii) upon or with respect to the development, possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the or any portion thereof; (iii) upon, measured by or reasonably attributable to the cost or value of Tenant's equipment, furniture, fixtures, merchandise, and other personal property located at or in the Premises or by the cost or value of any improvements made by Tenant to the Premises, regardless of whether title to such improvements shall be in Tenant or Landlord; or (iv) upon this Lease or any document to which Tenant is a party creating or transferring an interest in the Premises.
D. Tenant's Right to Contest. Tenant may, at no cost to Landlord, reasonably contest the legal validity or amount of any taxes, assessments, or charges for which Tenant is responsible under this Lease, and institute such proceedings as Tenant considers necessary; provided, however, that Tenant shall at all times protect Landlord from foreclosure of any lien, and that Landlord shall not be required to join in any proceeding or contest brought by Tenant.
5. USE OF PREMISES AND THE AQUATIC PARK MAIN LAGOON
A. The Premises shall be used for public bicycle rentals and sales, community bicycle repair space, public boat rentals, boat building space, storage area, and a small café.
B. Tenant shall operate its business on and about the Premises in a manner consistent with the use permitted herein and the standards promulgated by Landlord.
C. Tenant understands that motorboats may be used on the Main Lagoon at Aquatic Park only from May 1st through September of each Lease Year on a schedule to be approved by the City of Berkeley’s Director of Parks, Recreation, and Waterfront. For safety and instructional purposes while using the Main Lagoon, Tenant may use three motorboats, power by four-stroke outboard motors, provided the speed of said boats does not exceed 11 MPH, except in case of emergencies. At all times, Tenant agrees to provide adequate personnel to ensure the safe and efficient management of its use of the Premises and the Main Lagoon. Tenant must comply with all applicable regulations governing the use of the Main Lagoon and Aquatic Park. Tenant may not use motorboats on any portion of the Main Lagoon from October 1st through April 30th, due to the fact that environmental studies show use during those months would impact migratory birds. Any such use of the Main Lagoon during this period is subject to approval of the City Council and other affected regulatory agency.
D. At all times, Tenant agrees to provide adequate personnel to ensure the safe and efficient management of its use of the Premises and the Main Lagoon. Tenant must comply with all applicable regulations governing the use of the Main Lagoon and Aquatic Park. Tenant
10 acknowledges that the City may alter the permitted scope of usage of the Main Lagoon and Aquatic Park in its sole discretion, and the City’s regulations shall take precedence over any agreements between Lagoon users.
E. Prior to entering and using the Main Lagoon, Tenant shall have complied with Section 15 - Insurance, of this Lease. In addition, Tenant, and any of its participants or guests of guests of its participants entering and using the Main Lagoon shall sign a waiver and release form to be provided by the Tenant that holds the City of Berkeley harmless in case of any accidents or loss of any type. Such release shall include, but not be limited to, the following:
“Participant releases and forever discharges the City of Berkeley, its divisions, subsidiaries, affiliates, officers, agents, employees, and the heirs, executors or assigns of any of the foregoing, from any and all claims, demands, and causes of action of every kind, known or unknown, whether based in tort, contract, breach of warranty, strict liability, negligence or any other legal theory of recovery, and whether for general, special, compensatory or punitive damages, arising out of or in any way related to use of the Main Lagoon at Aquatic Park.”
In the event Tenant fails to obtain a signed waiver and release form from any member or guest of its participants who uses the Main Lagoon or is in any way connected to the use of the Main Lagoon, Tenant at all times will still be bound by Section 14 of this Agreement.
F. Tenant will comply with all applicable safety standards in effect at any given time, and take all necessary steps to ensure that its participants and guests of its participants are properly supervised and trained to prevent injury to themselves and others. Tenant will provide adequate supervision and training of its participants and guests of in their use of the Premises and/or Main Lagoon.
G. Landlord shall have no responsibility for Tenant’s equipment, vehicles or personal property that may be lost, stolen, or damaged.
H. With the exception of Tenant's equipment stored within the Premises, no items will be allowed to be stored in the exterior Premises without written approval by Landlord. In no circumstances shall items not related to the Tenant’s programs be allowed to be stored on the Premises, either inside or outside.
I. Tenant agrees to require its participants and guests of participants who use the Premises and/or Main Lagoon to respect other Aquatic Park lessees, licensees and visitors and to abide by standards of behavior common to the sport of rowing, bike riding, and general park use.
J. Business may be conducted with the public on the Premises during park hours, provided that Tenant shall have obtained all required permits and provided Tenant shall comply with all rules applicable to Aquatic Park.
K. Tenant agrees to cooperate with the City in promoting community participation in Tenant’s programs and activities held on the Premises.
11 L. Tenant shall not, without the written consent of Landlord:
1. place, construct or maintain in, on, or about the Premises or within Aquatic Park any advertisement media, including without limitation, searchlights, flashing lights, loudspeakers, or other similar media or device;
2. place or permit the use in or on the Premises of any video games, pinball machines or other devices or equipment for amusement or recreation, or any vending machines, newspaper racks or other coin operated devices (excepting pay telephones).
3. warehouse or stock on the Premises any goods, wares or merchandise other than that which is directly related to the Tenant's use of the Premises;
4. store, display or sell goods or merchandise on the Premises or place or permit portable signs or other devices to be stored or to remain on the Premises;
5. use or permit any portion of the Premises to be used as living or sleeping quarters; and
6. sell, distribute, display, or offer for sale any item, which, in Landlord's good faith judgment, may tend to detract from the image of Aquatic Park.
M. Tenant shall not do or permit to be done in, on, or about the Premises anything which is prohibited by or may conflict with any law, statute, ordinance or governmental rule or regulation now in force or hereafter enacted or promulgated, which is prohibited by the standard forms of special form or commercial general liability insurance or which may cause a cancellation of any insurance policy covering Aquatic Park or the Premises or any of its contents, or (except with the prior written consent of Landlord) which may increase the existing rate of or affect any special form or commercial general liability insurance or other insurance upon Aquatic Park or the Premises, or any of its contents. In the event Tenant does or permits to be done anything or keeps or permits to be kept anything on or about the Premises or the Aquatic Park which increases the existing rate of such insurance upon Aquatic Park or the Premises or any of its contents, Tenant shall pay the amount of any such increase promptly upon Landlord's demand. Tenant shall not do or permit anything to be done which will in any way obstruct or interfere with the rights of other lawful users of Aquatic Park, including, without limitation, tenants, their employees or invitees, disturb or annoy them, or use or allow the Premises to be used for any improper, unlawful or objectionable purpose. Tenant shall not maintain or permit any nuisance in or about the Premises or commit or suffer to be committed any waste in or upon the Premises.
N. No auction, fire, bankruptcy, distress, clearance, or going-out-of-business sale shall be conducted on the Premises nor shall any sign or advertisement regarding such activity be posted in or about the Premises.
O. Tenant shall not use or permit the Premises to be used in any manner or permit anything to be brought into or kept therein which would (i) violate the certificate of occupancy
12 for the Premises; (ii) make it impossible or extraordinarily difficult to obtain special form coverage, commercial general liability or other insurance required to be furnished by Tenant under this Lease; (iii) cause structural injury to any part of the Premises or the Building; (iv) impair or interfere with the proper operation and maintenance of the Premises and/or Aquatic Park; or (v) violate any of Tenant's other obligations under this Lease.
P. If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Tenant's business, Tenant shall procure and maintain such license or permit and submit the same for inspection by Landlord. Tenant at all times shall comply with the terms and conditions of each such license or permit.
Q. Nothing shall be done in or about the Premises by Tenant or anyone having a contractual relationship with Tenant that will result in substantial interference, by themselves or third parties, with normal operation and use of Aquatic Park or the means of ingress and egress thereto ("Substantial Interference"). Tenant shall use every effort to eliminate Substantial Interference, including legal action. If Tenant fails to bring an immediate halt to any Substantial Interference, Landlord shall have the right (i) to take action and require Tenant to undertake and eliminate such Substantial Interference and (ii) to commence any legal action to eliminate such Substantial Interference. Any agreement entered into by Tenant with regard to use of the Premises shall contain a provision reserving to Tenant all of the necessary rights and remedies to permit Tenant to comply with its obligations under this provision and authorizing Landlord to enforce the terms of such provision if Tenant fails to do so.
R. Tenant acknowledges that West Bolivar Drive is closed to vehicular traffic and that Landlord has installed a gate to prohibit such traffic. Landlord agrees that Tenant and its Affiliates may use West Bolivar Drive to access the Premises, provided that Tenant and its Affiliates shall close the gate after each entry and exit.
S. Tenant agrees to submit to the Landlord, by June 1 st of each Lease Year, an annual report that describes the Tenant’s community activities in the prior year, including:
1. List tenant’s community activities in the previous year, with the number of participants volunteering and the total hours at each day of community activity.
2. List number of participants, number of participants from Berkeley, number of participants who are under 18 or other member subgroups the organization believes is appropriate to mention.
3. Tenant shall identify the fee structure utilized during the previous year, including dues for Berkeley residents, non-Berkeley residents, and different sub-groups if applicable.
4. Approximate level of usage, such as number of people per day, number of person- hours per day, or comparable information. If there is variation from one time of year to another, then this information shall be reported by season.
5. Tenant shall discuss any Aquatic Park lagoon use scheduling or issues with other park users. If there are no issues, a statement to that effect is required.
T. Tenant agrees to post on the Premises references to the Organization's website for
13 information concerning the Organization's programs and goals, events, and contacts to discuss and facilitate participation.
6. USE OF AQUATIC PARK PROPERTY
A. The parties acknowledge that Tenant has, as a member of the general public, the non-exclusive right, in common with others duly authorized by Landlord, and subject to all generally applicable laws and regulations, to use Aquatic Park, including the Main Lagoon.
B. Tenant agrees that except as otherwise provided in this Lease, it is not a covenant or condition of this Lease or of any other agreement with Tenant that Landlord undertake or cause to be undertaken any development or redevelopment of the Premises or Aquatic Park, and Landlord shall incur no liability whatsoever to Tenant for failure to undertake such development or redevelopment.
C. Landlord at all times shall have the right and privilege of making such changes in and to Aquatic Park (other than to the Premises) from time to time which in its sole opinion are deemed to be desirable or appropriate, including the location and relocation of stairways, sidewalks, pathways, driveways, streets, entrances, exits, automobile parking spaces, the direction and flow of traffic, designation of prohibited areas, landscaped areas, utilities and all other facilities; provided, however, that the foregoing is not intended to entitle Landlord to unreasonably effect changes that would materially and adversely affect access to or visibility of the Premises, except temporarily during periods of construction. Landlord shall have the right to establish, promulgate, and enforce such reasonable rules and regulations concerning Aquatic Park, as it may deem necessary or advisable for the proper and efficient management, operation, maintenance and use thereof, and Tenant shall comply with the same.
D. Landlord at all times shall have the sole and exclusive management and control of Aquatic Park, including without limitation, the right to lease, license or permit the use of space within Aquatic Park to persons for the sale of merchandise and/or services and the right to permit advertising displays, educational displays, displays of art, and promotional activities and entertainment.
E. Nothing contained herein shall be deemed to create any liability to Landlord for any personal injury, or any damage to motor vehicles, vessels, or other Premises of Tenant's participants, employees or others, unless caused by the gross negligence or willful misconduct of Landlord, its agents, servants or employees. Tenant is solely responsible for the security of the Premises, and for the safety of its participants and guests using the Premises and/or the Main Lagoon pursuant to this Lease or any permits or licenses from the City. Tenant acknowledges that if Landlord provides security guards or police patrols for Aquatic Park or any portion thereof, Landlord does not represent, guarantee or assume responsibility that Tenant or any person or entity will be secure from losses or injury caused by the acts of third parties and does not assume responsibility for any such illegal acts. Tenant hereby waives any present or future claims Tenant may have against Landlord, whether known or unknown, for bodily injury or property damage arising from the performance of such security agents. City shall not be obligated to provide any public liability or property damage or loss insurance for the benefit of
14 Tenant or any other person or entity.
F. Tenant will use its best efforts to maintain effective relations with other users of Aquatic Park and with neighbors. Tenant shall park vehicles only in legal and/or designated parking areas and only for the legal period of time; shall deposit all trash in legal containers; shall not deposit food or material of any kind on adjacent Premises; and shall respect the sensitive environment of Aquatic Park. Landlord has the right at any time to revise the traffic flow on Bolivar Drive, provided Tenant continues to have vehicular access to the Premises.
G. Tenant shall not interfere with the free and unobstructed access by the public to Aquatic Park. Tenant shall not preclude other users of Aquatic Park from exercising a different use without first obtaining any and all appropriate permits. Tenant shall be obligated to permit such access to Aquatic Park as required for consistency with applicable laws of the State of California, and/or City's plans adopted from time to time; however, this sentence is not intended to, and shall not be construed to, confer any right of action upon any third party.
H. Landlord reserves to itself the right to grant to others in the future nonexclusive utility easements over, under, through, across, in or on the Premises in locations that will not unreasonably interfere with Tenant's access to or use of the Premises. Any interference shall be temporary, and all work on the Premises shall proceed expeditiously. Tenant shall be given reasonable notice before commencement of any work on the Premises. In the event the installation or maintenance of such future utility lines in such easements causes any damage to the Premises, or any portion thereof, or to the Building, or other facilities located upon the Premises, including but not limited to pavement, curbs and sidewalks, the same shall be repaired by Landlord at its expense, if not so repaired by the party installing and maintaining the line.
Landlord shall hold harmless and indemnify Tenant from all claims arising out of the grant or use of such a utility easement, except to the extent they result from the negligence or willful misconduct of Tenant or its sub-lessees or sub-tenants.
7. SERVICES
A. Landlord shall provide and maintain water and sewer service to the Premises.
Tenant shall maintain the water and sewer lines within the Building. Landlord shall pay the costs of the water and sewer service. Tenant shall pay for and be responsible for all other utilities and services, including electric, gas, garbage and telephone, and all fees and periodic charges related thereto. Tenant agrees to pay electrical services associated with Dreamland bathrooms, as they share a meter with 90 Bolivar Drive.
B. Landlord makes no representation or warranty that the supply of any utility or service to the Premises and/or the Building will not be interrupted, delayed or reduced.
C. Landlord shall not be liable for damages to either person or property; nor shall Landlord be deemed to have evicted Tenant; nor shall there be any abatement of any rent; nor shall Tenant be relieved from performance of any covenant on its part to be performed hereunder by reason of any (i) breakdown of equipment or machinery utilized in supplying utilities or services; (ii) interruption of or failure to supply or delay in supplying any such utilities or services; (iii) the limitation or restriction on use of water, electricity gas, or telecommunications
15 service serving the Premises or Aquatic Park; or (iv) failure to repair or cure any of the foregoing, except in the case of Landlord's gross negligence or willful misconduct.
8. OBLIGATION OF TENANT TO REMOVE PERSONAL PROPERTY
Upon the expiration of this Agreement, Tenant is obligated to remove any personal property placed in the Premises by the Tenant. If any personal property does remain on the Premises upon the expiration of the Agreement it will be considered abandoned personal property, which will be removed, by the City and the Tenant will be responsible for all costs associated with removing the personal property from the Premises.
9. ALTERATIONS AND IMPROVEMENTS
A. Tenant acknowledges that Landlord owns the Premises. Tenant accepts the Premises from Landlord in its "as is" condition, the conditions that exist as of the Effective Date of this Lease. Tenant acknowledges that Landlord makes no representation or warranty concerning (i) the physical condition of the Premises; (ii) the Premises suitability for Tenant's proposed use; or (iii) the presence of any Hazardous Substance in or about the Premises, except as otherwise expressly set forth in this Lease. Landlord has encouraged Tenant to make its own physical inspection of all aspects of the Premises and to conduct its own investigation as to the suitability of the Property and the Premises for Tenant's use.
B. Upon the execution of this Lease, Landlord approves and requires the improvements to the Premises listed on Exhibit “C” that shall be completed by Tenant. Tenant shall complete the improvements within the timeframe as stated in Exhibit “C” (Tenant’s Work).
Tenant shall not make any alterations, additions or improvements to the Premises (i) costing in excess of $5,000 for any single instance or $15,000 in the aggregate for any twelve (12) consecutive months or (ii) affecting the Building structure or utility systems, or attach any fixture or item of equipment thereto without Landlord's prior written consent except for the Fence and the improvements listed in Exhibit “C”. All such alterations, additions, or improvements shall be made at Tenant's sole expense in accordance with Landlord's General Design Requirements (if any) and the plans and specifications (including specifications for materials to be used in connection therewith) and a statement of the estimated cost of such work submitted to and approved by Landlord (collectively the "Plans and Specifications"). If the cost thereof exceeds $5,000 for any single instance, or if such Tenant's Work involves the Building structure or utility systems, any contractor or person selected by Tenant must be a licensed contractor. Landlord, in its sole discretion, shall approve or disapprove Tenant's request and may disapprove Tenant's use of any materials or substances, including but not limited to asbestos and fiberglass, which Landlord, in its sole discretion, deems potentially hazardous, toxic or threatening to health. To the extent that Tenant's Work shall require a building permit or other permits from the City of Berkeley, Bay Conservation and Development Commission ("BCDC") and/or any other governmental agency, Tenant shall not perform any of Tenant's Work until Tenant has obtained all requisite permits. Tenant further shall comply with all prevailing wage requirements of California Labor Code Sections 1720 et seq., to the extent such requirements are applicable to Tenant's work.
C. Except as otherwise expressly provided in this Lease, Tenant shall not repair,
16 replace or modify any utility system located within the Building without the Landlord's prior written consent. Tenant is responsible for the repair of any damage to any utility system, structural element of the Building(s), facilities of Landlord or any other facilities arising out of Tenant's construction activities or Tenant's negligence or willful misconduct; provided, however, such provision is not intended to and shall not be interpreted to make any other person or entity a third party beneficiary thereof.
D. This Lease specifically prohibits Tenant, or any other party, from expanding uses or structures allowed on the Premises beyond those designated in use permits approved by the City of Berkeley. Notwithstanding approval of any new Use Permit allowing expansion, or any future expansion of the uses in existing buildings, or additions to existing buildings or docks, or construction of any new buildings or docks, or moving existing buildings onto the Premises, are all subject to the prior written approval of the Landlord (with the exception of the Exhibit “C” Improvements) and all improvements (including Exhibit “C” Improvements) are subject to the environmental review and permit regulations and approvals of same by all applicable local, state, and federal agencies.
E. If Tenant proposes to make or construct any alterations, improvements, additions or fixtures (other than Exhibit “C” Improvements) that affect any portion of the Premises or any structures located on the Premises that are allowed under an existing use permit, Tenant shall first provide the Landlord with thirty (30) days prior written notice. If Landlord raises no objections within thirty (30) days after receipt of such notice, Tenant may proceed, provided Tenant obtains all required permits.
F. Except for Exhibit “C” Improvements, Tenant shall not substantially deface or change any floors, walls, ceilings, roofs, or partition any of the structures or improvements on the Premises without first providing thirty (30) days written notice to Landlord. If Landlord raises no objections within thirty (30) days after receipt of such notice, Tenant may proceed, provided Tenant obtains all required permits. Except as may be specifically approved in writing by Landlord, Tenant shall require all contractors to provide a labor and materials bond for the full amount of any contract for improvements that exceed $50,000, including any applicable Exhibit “C” Improvements. Tenant shall pay, when due, all sums of money that may be due or become due for any labor, services, materials, supplies or equipment furnished to or for Tenant in, at, upon or about the Premises and which may be secured by any mechanic's, material men’s or other lien against the Premises or Landlord's interest therein.
All alterations, improvements or additions that are now or in the future attached permanently to the Premises shall be the Property of Landlord and shall remain with the Property at the termination of this Lease, except that Landlord can elect within thirty (30) days of the termination of the Lease to require Tenant, at its cost, to remove any equipment that Tenant has affixed to the Premises.
G. 1. Tenant hereby agrees in accordance with the schedule set forth in Exhibit "C" to undertake and complete all of the recommended capital improvements.
2. Tenant understands the Premises were inspected by the City’s Certified Access Specialist CASp. The Lessee acknowledges receipt of their findings and many of these are
17 incorporated into planned improvements in Exhibit C. City makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee’s use of the Premises requires modifications or additions to the Premises in order to comply with the ADA or similar legislation, Lessee agrees to make any such necessary modifications and/or additions at Lessee’s expense. City shall have no responsibility to make any repairs or modifications to the premises in order to comply with accessibility standards, except as set forth in other provisions of this Lease.
3. The parties acknowledge and agree that one of the principles underlying the terms and conditions of this Lease is Tenant's agreement to perform specified capital improvements on the Premises in exchange for abated rent and a 10-year term of occupancy. The parties have thoroughly inspected the Building and Premises and have entered into this Lease on the assumption that the capital improvements set forth in Exhibit C represents a reasonable estimate of the improvements necessary to preserve, enhance and improve the condition of the Building through the term of this Lease. However, the parties also acknowledge and agree that certain events (for example, latent or unanticipated defects or damage to the Premises, accessibility requirements, etc.) may give rise to substantial, unavoidable expenses that materially and adversely affect Tenant's ability to perform its obligations under this Lease. In such event, upon Tenant's written notice to Landlord, Landlord shall temporarily defer declaring default pursuant to Section 19 of this Lease, and the parties, in good faith, shall employ their best efforts to negotiate amendments to the Lease that recognize Tenant's financial hardship while preserving to the extent possible the original terms and intent of the Lease. In the event the parties are unable to reach agreement on such amendments, either party may terminate this lease upon 30 days’ written notice to the other. Upon such termination, Tenant shall vacate the Premises in accordance with Section 2.B. and shall be relieved of all other obligations under this Lease.
H. 1. Tenant agrees that to the extent it is required to comply with the prevailing wage requirements, Tenant shall assure that all workers are paid the prevailing rate of per diem wages, and travel and subsistence payments (defined in applicable collective bargaining agreements filed in accordance with Section 1773.8 of the California Labor Code), in effect on the date of Landlord's first approval of a building permit or other approval of the work. Copies of the applicable prevailing rate of per diem wages are on file at Landlord's principal office and will be made available to any interested party on request. Tenant agrees to post a copy of the prevailing rate of per diem wages at the Premises. Tenant, as a penalty to Landlord, shall forfeit Twenty-Five Dollars ($25) for each calendar day, or portion thereof (or such other sum as specified from time to time by Section 1775 of the California Labor Code), for each worker paid less than the applicable prevailing rates for such work or craft in which such worker is employed.
The difference between such prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by Tenant.
2. Tenant agrees to keep or cause to be kept by each contractor and subcontractor an accurate payroll record for each worker employed on Tenant's Work covered by this subsection H showing all of the information specified in subsection (a) of Section 1776 of the California Labor Code. All such payroll records shall be certified, available for inspection and filed in accordance with the procedures specified in subsections (b)-(e) inclusive of Section
18 1776 of the California Labor Code. In the event of noncompliance with the foregoing requirements concerning payroll records which continues for more than ten (10) days after Landlord gives Tenant written notice specifying in what respects Tenant must comply, Tenant shall forfeit, as a penalty to Landlord, for each worker Twenty-Five Dollars ($25) for each calendar day, or portion thereof, until strict compliance is effectuated. Tenant shall be responsible for complying with Section 1777.5 of the California Labor Code concerning apprenticeable occupations, with respect to all work covered by that section. For purposes of the prevailing wage requirements of this subsection, Tenant shall be deemed to be a "contractor" as that term is used in Sections 1720 et seq., of the California Labor Code. Except where the context otherwise requires, the definitions of terms and phrases contained in the State prevailing wage law, Sections 1720 et seq., of the California Labor Code, and in the implementing administrative regulations, shall apply to the same terms and phrases which are used in the prevailing wage requirements of this subsection H.
10. LIENS
Tenant shall keep the Premises, the Building, and Aquatic Park free from any liens arising out of any work performed, materials furnished or obligations incurred by Tenant. In the event that Tenant shall not cause any such liens to be released of record, Landlord shall have, in addition to all other remedies provided herein or by law, the right (but not the obligation) to cause the same to be released by such means as Landlord shall deem proper, including payment of the claim giving rise to such lien. All sums paid and all expenses incurred by Landlord in connection therewith shall be reimbursed by Tenant promptly on demand. Landlord shall have the right to post and keep posted on the Premises any notices (including, without limitation, notices of non-responsibility pursuant to California Civil Code Section 3094) that Landlord may deem proper for protection of Landlord and the Premises. Tenant shall give Landlord at least ten (10) business days' prior notice of the date of commencement of any Tenant's work on or in the Premises to allow Landlord to post such notices.
11. TENANT AND LANDLORD MAINTENANCE OBLIGATIONS
A. Tenant agrees that during the entire term of this Lease, at its own cost and expense, it shall keep and maintain the Building on the Premises, and all leasehold improvements, fixtures, furniture, and other improvements located on the Premises in good-quality order, repair and condition. Except as otherwise provided in this Lease, Tenant shall perform, at its own cost and expense, any and all maintenance, removal of graffiti, repairs, or rehabilitation to the Building, Public Dock, or other area in the Premises, whether required by deterioration or by operations of Tenant or otherwise. This obligation includes any repairs to the roof or building structure.
B. To the extent applicable, Tenant hereby waives the provisions of Civil Code Sections 1941 and 1942, and any other provision of law now or hereafter in effect, with regard to the habitability of the Property and the Premises.
C. "Good-quality order, repair and condition", as used herein, shall mean the maintenance, repair, or renovation of the Building, equipment, furniture, fixtures, outdoor
19 lighting, signage, and appurtenances necessary to keep and maintain the Building in efficient and attractive condition, given the nature and age of the Building, at any time during the term of this Lease.
D. Tenant shall provide its own janitorial service for the Premises, and all of Tenant's rubbish shall be removed by Tenant to such location(s) on the Premises or within Aquatic Park as may be designated by Landlord for pick-up and disposal by the Landlord.
E. Tenant shall maintain or cause to be maintained, at Tenant’s expense, the Public Dock adjacent to the Premises.
F. In the event of a dispute that Landlord and Tenant cannot informally resolve, Tenant’s only remedy against Landlord shall be the right to terminate this Lease, effective thirty (30) days from the delivery of written notice to Landlord.
G. Nothing in this Section 11 shall be deemed to affect or impair Landlord's rights under Section 9 of this Lease. Tenant acknowledges that Landlord has no obligation and has made no promises to alter, remodel, improve, repair, decorate or paint the Building or to improve the Premises, or any part thereof. Other than as set forth in the Facilities Condition Assessments, Landlord has made no representations respecting the condition of the Building, the Premises, or Aquatic Park, except as specifically set forth in this Lease.
12. ENVIRONMENTAL
A. Tenant shall follow all environmental rules and regulations as they apply to City agencies. Specifically, Tenant shall minimize waste and recycle and compost. Tenant must participate in a recycling service provided by the City or provide an acceptable alternative with the approval of the City’s Recycling Supervisor. To that end, Tenant shall:
1. Assign someone to be in charge of its recycling programs, and to communicate needs and questions to the City’s Zero Waste Division.
2. Recycle corrugated cardboard, office papers and beverage containers (glass bottles, plastic bottles, and cans)
3. Place collection containers for paper at convenient locations.
4. Educate employees and program participants about recycling procedures.
5. Recycle batteries and office equipment (contact the City’s Zero Waste Division for information about vendors).
6. Tenant shall recycle construction waste from tenant improvements.
7. Tenant shall conserve energy.
13. DAMAGE OR DESTRUCTION
A. In the event the Premises are damaged by fire, flood, earthquake, act of God, the elements, or other casualty, then (unless this Lease is terminated pursuant to this Section 13) Tenant shall forthwith repair the same, at its sole expense. In this event, Tenant shall be solely responsible for the loss, repair, and replacement of its equipment and leasehold improvements.
20 B. Anything in subsection A to the contrary notwithstanding, neither Tenant nor Landlord shall have any obligation to repair or rebuild the Premises or the Buildings following damage or destruction thereto if the damage or destruction is due to any cause or casualty other than one against which the responsible party is required to carry insurance or actually does carry insurance and such party reasonably estimates that the cost of repair or rebuilding exceeds ten percent (10%) of the replacement cost of the Premises or Buildings, as the case may be. If the responsible party elects not to repair any damage or destruction pursuant to this provision, such party shall give the other party notice of such election within sixty (60) days after the date of such damage or destruction; and this Lease shall terminate as of the date of such damage or destruction.
C. Tenant hereby waives the provisions of California Civil Code Sections 1932 and 1933 and any other statutes now or hereafter in effect which relate to termination of a lease when leased Premises is damaged or destroyed and agrees that such event shall be governed by the terms of this Lease.
14. INDEMNIFICATION
A. To the fullest extent permitted by law, Tenant shall (1) immediately defend and (2) indemnify Landlord, and its directors, officers, and employees from and against all liabilities regardless of nature, type, or cause, arising out of or resulting from or in connection with the Lease. Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. The Tenant's obligation to indemnify applies regardless of whether a liability is a result of the negligence of any other person, unless it is adjudicated that the liability is caused by the sole active negligence or sole willful misconduct of an indemnified party.
B. The duty to defend is a separate and distinct obligation from the Tenant’s duty to indemnify. The Tenant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by the Landlord, the Landlord and its directors, officers, and employees, immediately upon submittal to the Tenant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. A determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Tenant from its separate and distinct obligation to defend Landlord. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Tenant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Tenant may submit a claim to the Landlord for reimbursement of reasonable attorneys’ fees and defense costs.
C. The review, acceptance or approval of any of Tenant’s work or work product by any indemnified party shall not affect, relieve or reduce the Tenant’s indemnification or defense
21 obligations. This Section survives the termination of this Lease. The provisions of this Section are not limited by and do not affect the provisions of this Lease relating to insurance.
D. Liabilities subject to this Section include any claim of discrimination or harassment, including but not limited to sexual harassment, arising from the conduct of the Tenant or any of the Tenant’s officers, employees, agents, licensees, or subcontractors. In the event of a discrimination or harassment complaint against any employee, agent, licensee or subcontractor of the Tenant or its subcontractors, the Tenant shall take immediate and appropriate action in response to such complaint, including, but not limited to termination or appropriate discipline of any responsible employee, agent, licensee or subcontractor.
15. INSURANCE
A. Tenant, at its sole expense, shall procure and maintain the following insurance:
1. Commercial general liability insurance insuring Tenant against any liability arising out of its use, occupancy, repair or maintenance of the Premises, the Building, Aquatic Park or the Main Lagoon, with a combined single limit of not less than $2,000,000 for injury to or death of one or more persons in any one accident or occurrence and Property damage in any one accident or occurrence. Such comprehensive general liability insurance shall include fire liability coverage and public liability and Property damage insurance, including personal injury, broad form Property damage, blanket contractual, and other coverage as may be reasonably required by Landlord. Landlord shall have the right, from time to time, to require Tenant to increase the amount of its comprehensive general liability insurance coverage if, in Landlord's reasonable opinion, the amount of such coverage is not sufficient in light of the risks insured and Tenant's use of the Premises or Aquatic Park.
2. Special Form Property insurance for cost of damage to the Premises, including, without limitation, during any term of construction of Tenant's Work, builders' All- Risk Insurance. Such insurance shall include coverage for vandalism and malicious mischief and cost of demolition and increased cost of construction by reason of changes in applicable ordinances/laws and shall not contain a co-insurance clause.
B. All policies of insurance and all renewals thereof shall be approved as to form and sufficiency by Landlord's Risk Manager and shall be issued by good and responsible companies qualified to do and doing business in California and rated A+: XIII or better in the most recent version of Best's Insurance Guide. Each of the required insurance coverages except for workers compensation (i) shall name Landlord and each of its Affiliates as additional insureds and, with respect to casualty insurance, as their respective interests may appear and (ii) shall provide that it may not be canceled or altered by the insurer in such manner as to adversely affect the coverage unless sixty (60) days' prior notice is given by certified mail to Landlord at the address set forth in Section 35 below, or to such place as Landlord may from time to time designate in a notice to Tenant.
C. An original certificate of each policy of insurance shall be delivered to Landlord prior to the date the Premises is delivered to Tenant and from time to time during the Term. If
22 Tenant shall fail to procure or maintain any insurance required hereunder or shall fail to furnish to Landlord any duplicate policy or certificate, Landlord may obtain such insurance; and any premium or cost paid by Landlord for such insurance shall be reimbursed by Tenant promptly upon Landlord's demand. Tenant shall make good faith efforts to ensure that at least sixty (60) days prior to the expiration of any such policy, an extension endorsement showing that such insurance coverage has been or will be renewed or extended shall be delivered to Landlord and if, despite such good faith efforts, such extension endorsement cannot be timely delivered, Tenant shall cause to be delivered to Landlord within said time other reasonable documentary evidence of renewal of coverage and shall continue exercising diligent efforts to deliver to Landlord the required extension endorsement. If such coverage is canceled or reduced, Tenant, within ten (10) days after receipt of written notice of such cancellation or reduction in coverage but in no event later than the effective date of cancellation or reduction, shall deliver to Landlord a certificate showing that the required insurance has been reinstated or provided through another insurance company(ies). Upon Tenant's failure to so deliver such certificate, Landlord may, without further notice and at its option, (1) exercise Landlord's rights as provided in this Lease or (2) procure such insurance coverage at Tenant's expense and Tenant shall promptly reimburse Landlord for such expense.
D. If any of the insurance required in this Section 15 is provided under a claims- made form of policy, Tenant shall maintain such coverage continuously throughout the Term and without lapse for a period of not less than five (5) years beyond the termination of this Lease, to the effect that should occurrences during the Term give rise to claims made after termination of this Lease, such claims shall be covered by such claims-made policies.
E. Each of Tenant's Property insurance policies insuring the Premises and Tenant's Property in the Premises shall include a waiver of the insurer's right of subrogation against Landlord, or, if such waiver should be unobtainable or unenforceable, (i) an express agreement that such policy shall not be invalidated if the assured waives, before the casualty, the right of recovery against any party responsible for a casualty covered by the policy or (ii) any other form of permission concerning the assured's right to waive its right of recovery. If such waiver, agreement or permission shall not be, or shall cease to be, obtainable, Tenant shall so notify Landlord promptly after learning thereof.
F. Tenant hereby releases Landlord with respect to any claim (including a claim for negligence) which Tenant might otherwise have against Landlord for loss, damage or destruction of Tenant's Property occurring during the Term to the extent to which Tenant is insured under a policy (ies) containing a waiver of subrogation or agreement or permission to release liability, as provided in E. above. If, notwithstanding the recovery of insurance proceeds by Tenant for such loss, damage or destruction, Landlord is liable to Tenant with respect thereto or is obligated under this Lease to make replacement, repair, restoration or payment, then (provided Tenant's right of full recovery under its insurance policies is not thereby prejudiced or otherwise adversely affected) the amount of the net proceeds of the Tenant's insurance against such loss, damage or destruction shall be offset against Landlord's liability to Tenant therefore or shall be made available to Landlord to pay for replacement, repair or restoration, as the case may be. Nothing contained herein shall relieve either party of any duty to repair, restore or rebuild imposed elsewhere in this Lease or shall nullify any abatement of rent provided for elsewhere in this Lease.
23 G. If Tenant employs any person, it shall carry workers' compensation and employer's liability insurance and shall provide a certificate of insurance to the Landlord. The workers' compensation insurance shall: provide that the insurance carrier shall not cancel, terminate, or otherwise modify the terms and conditions of said insurance except upon thirty (30) days prior written notice to the Landlord; provide for a waiver of any right of subrogation against Landlord to the extent permitted by law; and be approved as to form and sufficiency by the Landlord's Risk Manager.
H. If a death, serious personal injury, or substantial Property damage occurs in connection with the performance of this Lease, Tenant shall immediately notify the Landlord's Risk Manager. If any accident occurs in connection with this Lease, Tenant shall promptly submit a written report to Landlord, in such form as the Landlord may require. This report shall include the following information: 1) name and address of the injured or deceased person(s); 2) name and address of Tenant's subtenant, if any; 3) name and address of Tenant's liability insurance carrier; and 4) a detailed description of the accident, including whether any of Landlord's equipment, tools or materials were involved.
I. Tenant shall forward all insurance documents to:
Parks, Recreation & Waterfront
City of Berkeley
2180 Milvia St., 3rd Floor
Berkeley, CA 94704
16. COMPLIANCE WITH LAWS
A. Tenant, at its sole expense, shall promptly comply with all applicable laws, ordinances, rules, regulations, permits or requirements now or hereafter in effect (whether foreseen or unforeseen by Landlord or Tenant), with the requirements of any board of fire underwriters or similar body now or hereafter constituted; with any occupancy certificate issued by any public officer and with the provisions of all recorded documents affecting the Premises, insofar as any of the foregoing relate to or affect the condition, use or occupancy of the Premises or the Building. Such compliance by Tenant shall include, without limitation, compliance with all obligations to alter, maintain, or restore the Premises (and, as applicable, the Building), or construct improvements in or to the Premises, regardless of cost and regardless of when during the term of the Lease the work is required.
B. Tenant acknowledges that conducting its operations at the Premises and making certain alterations and improvements may require an authorization, approval or permit (collectively, "Regulatory Approval") from a governmental authority having jurisdiction over the Premises, including but not limited to the Bay Conservation and Development Commission.
Tenant shall be solely responsible for obtaining any such Regulatory Approval, and Tenant shall not seek any Regulatory Approval without first obtaining the approval of Landlord, except for the Fence and items listed on Exhibit “C”. All costs associated with applying for and obtaining any necessary Regulatory Approval shall be borne by Tenant. Tenant shall be solely responsible
24 for complying with any and all conditions imposed by regulatory agencies as part of a Regulatory Approval; however, Landlord shall not take any action that would materially interfere or prevent Tenant from complying with all such conditions. Any fines or penalties imposed as a result of the failure of Tenant to comply with the terms and conditions of any Regulatory Approval shall be paid and discharged by Tenant, and Landlord shall have no liability, monetary or otherwise, for said fines and penalties, except to the extent that such fines or penalties were caused by the willful acts or omissions of Landlord. To the fullest extent permitted by law, Tenant agrees to indemnify and hold Landlord and its officers, agents and employees harmless from and against any loss, expense, cost, damage, attorneys' fees, penalties, claims or liabilities which Landlord may incur as a result of Tenant's failure to timely obtain or comply with the terms and conditions of any Regulatory Approval. Landlord agrees to cooperate (but only to the same extent and in the same manner as a non-public entity could so cooperate, and not as an exercise of Landlord's police or regulatory power) with Tenant in filing, processing and obtaining all Regulatory Approvals, and upon request of Tenant, to join with Tenant as co- applicant in filing, processing and obtaining all Regulatory Approvals; provided, however, that Landlord may refuse to file, process or obtain Regulatory Approvals or to join Tenant as a co-- applicant if Landlord determines in its sole and absolute discretion that it is not in Landlord's best interest to do so. Nothing contained herein shall be deemed to limit or otherwise constrain Landlord's discretion, powers, and duties as a regulatory agency with certain police powers.
C. Tenant understands and agrees that Landlord is entering into this Lease in its capacity as a landowner with a proprietary interest in the Premises and not as a regulatory agency of the City of Berkeley with certain police powers. Landlord's legal status shall in no way limit the obligation of Tenant to obtain any required approvals from Landlord's departments, boards, or commissions that have jurisdiction over the Premises. By Landlord's entering into this Lease, neither Landlord nor any of City Council, boards, commissions, agencies, departments, or Affiliates obligates itself to any other governmental agent, board, commission or agency, or to Tenant, or to any other individual or entity, with regard to any discretionary action relating to development or operation of the Premises or Aquatic Park. Discretionary action includes but is not limited to rezonings, variances, environmental clearances, or any other governmental agency approvals that may be required or desirable for the improvement, alteration, or operation of the Premises or Aquatic Park. By entering into this Lease, Landlord is in no way modifying or limiting the obligation of Tenant to cause the Premises to be used and occupied in accordance with all laws.
17. ASSIGNMENT AND SUBLEASE
A. Any provision of this Lease to the contrary notwithstanding, Tenant shall not directly or indirectly, by operation of law or otherwise, transfer, assign, pledge, encumber or hypothecate this Lease or all or any portion of the Premises or Tenant's interest in and to the Premises (collectively, an "Assignment") or sublet the Premises or any portion thereof or permit the Premises or any portion thereof to be used, occupied or managed by anyone other than Tenant pursuant to any Lease, use or concession agreement or otherwise (collectively, a "Sublease") without first obtaining Landlord’s written consent. Any assignment, encumbrance, or sublease without Landlord's written consent shall be voidable and, at Landlord's election, shall constitute a default. City has the sole discretion to determine whether to agree to any sublease or
25 assignment. No consent to any assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this subsection.
B. Neither this Lease nor any interest therein shall be assignable or transferable in proceedings in attachment, garnishment, or execution against Tenant, in voluntary or involuntary proceedings in bankruptcy or insolvency or receivership taken by or against Tenant or by any process of law. Possession of the Premises shall not be divested from Tenant in such proceedings or by any process of law without the prior written consent of Landlord.
C. Tenant expressly waives any rights that it might otherwise be deemed to possess pursuant to applicable law, including without limitation, Section 1997.040 of the California Civil Code, to limit any remedy of Landlord pursuant to Section 1951.2 or 1951.4 of the Code by means of proof that enforcement of a restriction on use of the Premises would be unreasonable.
18. INSPECTION
Landlord may enter the Premises at all reasonable times (with reasonable advance notice except in case of emergency) (i) to inspect the same; (ii) to exhibit the same to prospective purchasers, mortgagees or tenants; (iii) to conduct tests, inspections and surveys to determine whether Tenant is complying with all of its obligations hereunder; (iv) to post notices of nonresponsibility or other notices that may be permitted hereunder; (v) to post "to Lease" signs of reasonable size upon the Premises during the last ninety (90) days of the Term; and (vi) to make repairs required or permitted to be made by Landlord or repairs to any adjoining space or any utility systems or to make repairs, alterations or additions to any other portion of the Building or Aquatic Park; provided, however, that all such work shall be done as promptly and with as little interference to Tenant as reasonably possible. Tenant hereby waives all claims against Landlord for any injury or inconvenience to or interference with Tenant's business or any loss of occupancy or quiet enjoyment of the Premises resulting from Landlord's entry into the Premises or any work performed therein by Landlord. Landlord shall at all times have a key to all doors in and about the Premises (excluding Tenant's vaults, safes and similar areas designated by Tenant in writing in advance), and Landlord shall have the right to use any and all means which Landlord may deem proper in an emergency to obtain entry to the Premises. Tenant also shall provide Landlord with written notice of the name, address, telephone number, and Tenant's account number of the burglar alarm company (if any) utilized by Tenant for the Premises. Any entry to the Premises by any of said means or otherwise shall not under any circumstances be deemed a forcible or unlawful entry into or a detainer of the Premises or an eviction (actual or constructive) of Tenant from the Premises.
19. DEFAULT
The occurrence of any one of the following shall constitute an event of default on the part of Tenant:
A. Failure to Use Premises. Failure to use the Premises as specified in Sections 5 and 6.
26 B. Nonpayment of Rent. Failure to pay any installment of rent or any other sum due and payable hereunder upon the date when such payment is due, such failure continuing for a period of five (5) days after written notice of such failure; provided, however, that Landlord shall not be required to provide such notice more than twice during any consecutive twelve (12) months with respect to non-payment of any portion of rent, the third such non-payment during any consecutive twelve (12) months constituting an event of default without requirement of notice.
C. Other Obligations. Failure to perform any obligation, agreement or covenant under this Lease, such failure having continued for thirty (30) days after notice of such failure from Landlord or such longer period as is reasonably necessary to remedy such default, provided that Tenant has commenced to remedy the default within such thirty (30) day period and shall continuously and diligently pursue such remedy until such default is cured.
D. General Assignment. A general assignment by Tenant for the benefit of creditors.
E. Bankruptcy. The filing of a voluntary petition in bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. In the event that under applicable law the trustee in bankruptcy or Tenant has the right to affirm this Lease and to continue to perform the obligations of Tenant hereunder, such trustee or Tenant, in such time period as may be permitted by the bankruptcy court having jurisdiction, shall cure all defaults of Tenant hereunder outstanding as of the date of affirmance and shall provide to Landlord such adequate assurances as may be necessary to ensure Landlord of the continued performance of Tenant's obligations hereunder. Any transferee (by operation of law or otherwise) must provide Landlord with adequate assurance of its future performance under this Lease. In the event of Tenant's bankruptcy, insolvency or reorganization, the parties specifically intend that the actions of the trustee or Tenant in assuming and/or assigning this Lease shall be governed by Section 365 of Title 11 of the United States Code applicable to shopping center leases.
F. Receivership. The employment of a receiver to take possession of all or substantially all of Tenant's assets in the Premises.
G. Insolvency. The attachment, execution or other judicial seizure of all or substantially all of Tenant's assets in or on the Premises; the admission by Tenant in writing of its inability to pay its debts as they become due; the filing by Tenant of a petition seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future law or regulation; the filing by Tenant of an answer admitting or failing timely to contest a material allegation of a petition filed against Tenant in any such proceeding or if, within thirty (30) days after the commencement of any proceeding against Tenant seeking reorganization or arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future law or regulation, such proceeding shall not have been dismissed.
H. Release of Hazardous or Toxic Substances or Materials and Other Environmental Impacts. Any release or discharge in, on, under, around, or from the Premises
27 and/or Aquatic Park by Tenant, its agents or employees of Hazardous Substances which has not been fully cleaned up within ten (10) days after such release or discharge. Any negative impacts to the natural habitat and environment of Aquatic Park and/or the Main Lagoon caused by Tenant that are documented by a qualified, independent source and for which reasonable remediation measures are not available, or the Tenant fails to cooperate with the Landlord in implementing in a timely manner reasonable measures intended to mitigate any negative impacts.
I. Illegal Drugs. Any release or discharge of chemicals, toxics, solution in connection with the manufacturing and mixing of any illegal substance on the premises.
J. Non-compliance with lease term. Failure to perform any of the obligations and improvements listed on Exhibit “C”, such failure continuing for 30 days after notice from the landlord of said default.
20. REMEDIES UPON DEFAULT
A. Termination. In the event of the occurrence of any event of default, Landlord shall have the right immediately to terminate this Lease by written notice and at any time thereafter to recover possession of the Premises or any part thereof and to expel and remove Tenant, any other person or party occupying the same and all Premises located therein, by any lawful means and to reenter the Premises without prejudice to any of the remedies that Landlord may have under this Lease or under law or equity.
B. Continuation after Default. In the event of any default, this Lease shall continue in effect for so long as Landlord does not terminate this Lease under subsection A above. In such case, Landlord may enforce all its rights and remedies under this Lease, including without limitation, the right to recover rent as it becomes due, and all of its rights and remedies under law. Acts of maintenance, preservation, efforts to relet the Premises for Tenant's account or the appointment of a receiver upon application of Landlord to protect Landlord's interest under this Lease shall not constitute an election to terminate this Lease or Tenant's right to possession.
C. Damages upon Termination. Should Landlord terminate this Lease pursuant to subsection A above, in addition to any other rights and remedies to which it may be entitled under applicable law, Landlord shall be entitled to recover from Tenant: (i) the worth at the time of the award of the unpaid rent and other amounts which had been earned at the time of termination; plus (ii) the worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination until the time of the award exceeds the amount of such rent loss that Tenant proves reasonably could have been avoided; plus (iii) the worth at the time of the award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rent loss that Tenant proves reasonably could be avoided; plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which, in the ordinary course of things, would likely result therefrom, including without limitation, the costs and expenses (including brokerage commissions and advertising costs) incurred by Landlord, with or without terminating the Lease, (1) in retaking possession of the Premises; (2)
28 in cleaning and making repairs and alterations to the Premises reasonably necessary to return the Premises to good condition for the use permitted by this Lease and otherwise to prepare the Premises for reletting;(3) in removing all persons and personal property from the Premises and transporting and storing any of Tenant's personal property left at the Premises, although Landlord shall have no obligation to remove, transport, or store any of such personal property; and (4) in reletting the Premises for such term, at such rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisable; plus (v) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under California law. The "worth at the time of award" of the amounts referred to in (i) and (ii) shall be computed with interest at the maximum rate allowed by law. The "worth at the time of award" of the amount referred to in (iii) shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%).
D. Computation of Rent for Purposes of Default. For purposes of computing unpaid rent which would have accrued and become payable pursuant to subsection C above, unpaid rent shall include the total rent for the balance of the term of the Lease.
E. Remedies Cumulative. All rights, privileges and elections or remedies of the parties are cumulative and not alternative to the extent permitted by law and except as otherwise specifically provided herein.
F. No Waiver. Landlord's waiver of any breach of a covenant or condition hereof, or Landlord's failure to declare any default immediately upon occurrence thereof or a delay in taking any action in connection therewith shall not waive such breach or such covenant or condition or any subsequent breach thereof. The subsequent acceptance of rent or other monies by Landlord shall not be deemed a waiver of any preceding default by Tenant, other than the failure of Tenant to pay the particular rent or other sum so accepted, regardless of Landlord's knowledge of such default at the time of its acceptance of rent.
G. No Right of Redemption. Tenant waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179 or any other present or future law in the event Tenant is evicted or Landlord takes possession of the Premises by reason of Tenant's default.
21. ENVIRONMENTAL OBLIGATIONS
A. Tenant shall not, without Landlord's prior written consent (which consent may be granted or denied in Landlord's sole discretion), install, bring into or release or discharge in, on, under, around, or from the Premises any (i) asbestos-containing materials, (ii) electrical transformers, fluorescent light fixtures with ballasts or other equipment containing PCB's or (iii) materials which constitute hazardous, extremely hazardous or toxic materials under the Resource Conservation and Recovery Act, the California Hazardous Waste Control Act, the Comprehensive Environmental Response Compensation and Liability Act, the California Safe Drinking Water and Toxic Enforcement Act of 1986 or any other applicable law or regulation concerning hazardous or toxic materials, (collectively "Hazardous Substances") and has not done so prior to the effective date of this Lease. Any Hazardous Substances which are used, stored,
29 treated, disposed of or released from the Premises by Tenant or its representatives, agents, employees or invitees, shall be used, stored, treated, released and disposed of in accordance with all applicable laws and regulations.
B. If Tenant knows or has reasonable cause to believe that any Hazardous Substance has been released on or beneath the Premises, Tenant shall immediately notify the Berkeley Police Department and the Toxic Management Office and promptly give written notice of same to Landlord. If Tenant knows or has reasonable cause to believe that such substance is an imminent and material danger to public health or safety, Tenant shall take all actions necessary to alleviate such danger. Tenant shall provide to Landlord as promptly as possible, and in any event within five business days after Tenant first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Premises or Tenant's use thereof and concerning Hazardous Substances. Tenant shall not negotiate or enter into any settlement agreement, consent decree or other compromise in respect of Hazardous Substances affecting the Premises or the Premises without first giving Landlord prior written notice and full opportunity to appear, intervene or otherwise protect Landlord's rights and interests.
C. Without limitation of the provisions of Section 14 hereof, Tenant shall indemnify, defend and hold Landlord and its affiliates harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses which arise during or after the term of this Lease as a result of the handling of Hazardous Substances on the Premises, or Aquatic Park by Tenant, its agents or invitees, including without limitation, all costs of monitoring, investigating, and remediation of the same, damages for diminution in the value of the Premises, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Premises, damages arising from any adverse impact on marketing of any such space and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees. This indemnification by Tenant includes, but is not limited to, costs incurred in connection with any investigation of site conditions or any clean-up, remediation, removal or restoration work requested by Landlord or required by any federal, state or local governmental agency or political subdivision because of Hazardous Substance present in the soil or groundwater in, on or under the Premises or in any improvements. Without limiting the foregoing, if the presence of any Hazardous Substance in, on, under or about the Premises caused or permitted by Tenant results in any contamination of the Premises or Aquatic Park, Tenant, at its sole expense, promptly shall take all action that is necessary to return the Premises to the condition existing prior to the introduction of such Hazardous Substance in, on, under or about the Premises; provided that Landlord's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions could not potentially have any material adverse effect upon the Premises. Tenant's obligations under this Section 21.C. shall survive the expiration or termination of this Lease.
22. LANDLORD'S RIGHT TO CURE
All covenants to be performed by Tenant shall be performed at Tenant's sole cost and expense and without abatement of rent. Without limiting Landlord's rights under any other provision of this Lease, if Tenant shall fail to pay any sum of money or shall fail to perform any other act and such failure shall have become an event of default under Section 19, Landlord,
30 without waiving or releasing Tenant from any of its obligations, may make (but shall not be obligated to make) any such payment or perform any such other act. All sums so paid by Landlord and all necessary incidental costs shall be deemed additional rent and shall be payable to Landlord immediately upon Landlord's written demand.
23. EMINENT DOMAIN
A. If all or any part of the Premises shall be taken as a result of the exercise of the power of eminent domain, this Lease shall terminate as to the part so taken on the earlier of the dates that title vests in the condemning authority or such authority takes possession of the Premises. In the case of a partial taking, either Landlord or Tenant shall have the right to terminate this Lease as to the balance of the Premises by written notice to the other party within thirty (30) days after such date of taking; provided, however, that Tenant shall have no right to terminate this Lease unless the portion of the Premises taken shall be of such extent and nature as substantially to impede or impair Tenant's use of the balance of the Premises. In the event of any such taking, Landlord shall be entitled to all compensation, damages, income, rent, awards and interest that may be paid or made in connection with such taking. Tenant shall have no claim against Landlord for the value of any unexpired Term; however, Landlord shall cooperate with Tenant if Tenant seeks to recover, at its sole expense, proceeds or awards paid to compensate for damage to the "goodwill" associated with Tenant's business. Any such amounts recovered shall belong to Tenant.
B. If any part of the Premises shall be so taken and this Lease shall not be terminated, then this Lease shall continue in full force and effect, except that the Rent shall be reduced in the same proportion that the rentable area of the Premises taken bears to the original rentable area of the Premises. Landlord, upon receipt of the award, shall make all necessary repairs and alterations (exclusive of Tenant's trade fixtures, furniture, furnishings, personal Premises, decorations, signs and contents) to restore the portion of the Premises remaining to as near its former condition as the circumstances will permit and to restore the Building to the extent necessary to constitute the portion of the Building not so taken a complete architectural unit. Landlord, in any event, shall not be required to spend for such repairs and alterations an amount in excess of the amount received by Landlord as damages for the taking of such part of the Premises and/or Building; and Tenant, at its sole cost and expense, shall make all necessary repairs and alterations to Tenant's trade and lighting fixtures, furniture, furnishings, personal Premises, decorations, signs and contents.
C. As used herein, the "amount received by Landlord" shall mean that portion of the award received by Landlord as damages from the condemning authority which is free and clear of all prior claims or collections by Landlord and less reasonable attorneys' and appraisers' fees and expenses.
24. SUBORDINATION
A. This Lease shall be subject and subordinated to (i) all ground or underlying leases which have been or may hereafter be executed affecting the Premises, (ii) any Declaration of Covenants, Conditions and Restrictions now or hereafter recorded affecting Aquatic Park, all
31 without the necessity of having further instruments executed on behalf of Tenant to effectuate such subordination.
B. Tenant agrees to execute and deliver upon demand such further instruments or documents as may reasonably be required by Landlord to evidence any such subordination of this Lease. Tenant hereby constitutes and appoints Landlord, as Tenant's attorney-in-fact, coupled with an interest, to execute and deliver any such instrument(s) on behalf of Tenant.
25. NO MERGER
The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger and shall, at the option of Landlord, terminate all or any existing subleases or subtenancies or operate as an assignment to it of any or all such subleases or subtenancies.
26. TRANSFER BY LANDLORD
In the event the original Landlord or any successor owner of Aquatic Park shall sell or convey the Premises or the Building, or any portion thereof that includes the Premises, all liabilities and obligations on the part of the original Landlord or such successor owner shall terminate. All such liabilities and obligations thereupon shall be binding only upon the new owner. Tenant agrees to attorn to such new owner.
27. ESTOPPEL CERTIFICATES
From time to time, Tenant shall execute and deliver to Landlord promptly upon request a certificate certifying (i) that this Lease is unmodified and in full force and effect or, if there has been any modification, that this Lease is in full force and effect as modified, and stating the date and nature of each such modification; (ii) the date to which rent and other sums payable hereunder have been paid; (iii) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in such certificate; (iv) that Landlord is not in default under this Lease and that Tenant has no claims, charges, offsets or defenses against Landlord, or specifying the nature of any such default or claim, charges, offsets or defense; and (v) such other matters as may be reasonably requested by Landlord. Any such certificate may be relied upon by any prospective purchaser, vendee, or other party. If Tenant fails to execute and deliver any such certificate within ten (10) business days after Landlord's written request, such failure, at Landlord's election, shall be conclusive against Tenant that this Lease is in full force and effect, without modification (except as may be represented by Landlord), that there are no uncured defaults in Landlord's performance, and that not more than one month's rent has been paid in advance.
28. HOLDING OVER
If, after the expiration of the Term of the Lease, Tenant remains in possession of the Premises with Landlord’s consent all provisions of this Lease shall remain in effect with the following exceptions: (1) Tenant shall become a tenant from month-to-month, such tenancy
32 terminable on thirty (30) days’ notice given at any time by either party; and (2) the Rent shall increase to 120% of the amount of the rent when the Lease expired.
29. CHANGES BY LANDLORD
A. The description of the Premises and the location of any Premises utility system(s), including without limitation electrical, plumbing, shall be subject to such minor changes as Landlord determines to be necessary or desirable in the course of any construction performed by or under the authorization of Landlord. No such changes shall invalidate or affect this Lease. Landlord shall effect such changes using reasonable efforts not to disturb Tenant's business. Tenant shall have no claim against Landlord for abatement of rent or loss of business as a result of any such disturbance.
B. Landlord shall have the right in its sole discretion to, among other things, change permitted land uses, install, maintain and remove public improvements, change the arrangement, character, use or location of entrances or passageways, walkways, streets, sidewalks, parking areas, stairs, landscaping, toilets, and other facilities and portions of Aquatic Park, and to change the name, number or designation by which the Building is commonly known. None of the foregoing shall be deemed an actual or constructive eviction of Tenant, nor shall it entitle Tenant to any reduction of rent hereunder or result in any liability of Landlord to Tenant; provided, however, Landlord shall not unreasonably obstruct or interfere with access to or the lines of sight toward the Premises.
30. GOVERNING LAW
This Lease shall be governed by the laws of the State of California.
31. SECURITY DEPOSIT
As security for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease, Tenant shall deposit with Landlord in an amount of THREE HUNDRED DOLLARS ($300), unless waived in whole or in part by Landlord. Such security shall be deposited on or before the Effective Date of this Lease.
If Tenant defaults in respect to any of the terms, provisions, covenants and conditions of this Lease, including but not limited to the payment of rent, Landlord may use the security deposit or any portion of it to cure the default or compensate the Landlord for all damage sustained by Landlord resulting from Tenant's default. If Landlord so uses any portion of the security deposit, Tenant will restore the security deposit to its original amount within ten (10) days after written demand from Landlord.
Landlord will not be required to keep the security deposit separate from its own funds and Tenant shall not be entitled to interest on the security deposit. The security deposit will not be a limitation on Landlord's damages or other rights under this Lease, or a payment of liquidated damages or an advance payment of the rent. If Tenant pays the rent and performs all of its other obligations under this Lease, Landlord shall return the unused portion of the security deposit to
33 Tenant within sixty (60) days after the end of the term. Landlord may deliver the security deposit to a purchaser of the Premises and be discharged from further liability with respect to it.
32. SIGNAGE
The size, design, material and location of any sign, marquee, awning, decoration or other attachment, advertising material or lettering on the Premises or on the exterior of the Building (collectively "signage") shall be subject to Landlord's prior written approval. All such signage shall comply with the criteria outlined in Landlord's General Design Requirements (if any) and shall be subject to the following provisions:
A. Tenant, at its sole expense, shall submit to Landlord a written description of all proposed signage, including dimensions, color, proposed location and other pertinent information ("Signage Proposal"). Landlord shall review the Signage Proposal and shall notify Tenant in writing of its approval, or reason(s) for its disapproval, within thirty (30) business days after Landlord's receipt of the Signage Proposal. If disapproved, Tenant shall make all required modifications to the Signage Proposal and shall resubmit the same to Landlord within seven (7) days after its receipt of Landlord's disapproval.
B. Within ten (10) days after Landlord's approval of the Signage Proposal, Tenant, at its sole expense, shall cause to be prepared and submitted to Landlord two (2) sets of plans ("Sign Plans") reflecting in detail the information contained in the approved Signage Proposal.
Landlord shall review the Sign Plans within thirty (30) days after Landlord's receipt of the same.
C. Upon Tenant's receipt of its sign permit from Landlord, Tenant shall construct and/or install all signage shown on the Sign Plans; in any event, however, Tenant shall complete such construction and/or installation not later than thirty (30) days after the sign permit is issued, unless otherwise agreed to by the City in writing.
D. Upon Landlord's request, Tenant immediately shall remove any signage that Tenant has placed or permitted to be placed in, on or about the Premises or Building contrary to the terms of this Section 32. If Tenant fails to do so, Landlord may enter upon the Premises and remove the same at Tenant's expense. Tenant, at its sole expense, shall maintain and replace all approved signage and shall repair, at its sole expense, any damage to the Building caused by the erection, maintenance or removal of any signage, including any damage caused by Tenant's removal of its signage at the expiration or earlier termination of the Lease. Tenant also shall comply with such regulations as may from time to time be promulgated by Landlord governing the signage of all tenants in Aquatic Park.
33. NO PARTNERSHIP
It is expressly understood and agreed that Landlord shall not be deemed in any way or for any purpose a partner, agent or principal of Tenant, in the conduct of its business or otherwise, or a joint venture or member of a joint enterprise with Tenant.
34. NO WAIVER
34 Landlord's waiver of Tenant's breach of any covenant or condition shall not be deemed a waiver of any subsequent breach of the same or any other covenant or condition, nor shall any custom or practice which may develop between the parties in the administration of the terms hereof be construed to waive or to lessen the right of Landlord to insist upon Tenant's performance in strict accordance with the terms of this Lease.
35. NOTICES
All notices, demands, consents or approvals which may or are required to be given by either party shall be in writing and shall be deemed to have been received when delivered personally or on the earlier of the date of actual receipt or two (2) business days following deposit in the United States mail, registered or certified, postage prepaid, addressed as follows:
To Tenant: Waterside Workshops
84 Bolivar Drive
Berkeley, CA 94710
To Landlord: Parks, Recreation & Waterfront
City of Berkeley
2180 Milvia Street, 3rd Floor
Berkeley, CA 94704
With copies to: City Manager Parks Superintendent
City of Berkeley City of Berkeley
2180 Milvia Street, 5th Floor 1325 Bancroft Way
Berkeley, CA 94704 Berkeley, CA 94702
Notices to Landlord regarding Hazardous Substances required by Section 21 hereof shall be sent both to the above addresses and to such other place as either party may from time to time designate in a written notice to the other party, or in the case of Tenant, delivered to the Premises.
Tenant will appoint an agent to receive the service of all proceedings, demands, and notices hereunder the person in charge of or occupying the Premises at the time. If no person shall be in charge of or occupying the same, then such service may be made by attaching the same on the main entrance of the Premises
36. COMPLETE AGREEMENT
This Lease is intended by the parties as the final expression of their agreement with respect to such terms as are included herein and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Lease constitutes the complete and exclusive statement of its terms, and no extrinsic evidence whatsoever may be introduced in any judicial or other proceeding involving this Lease. The language and all parts of this Lease shall be construed as a whole and in accordance with its fair meaning and not
35 restricted for or against either party. This Lease may be modified or amended only by a written instrument signed by both parties.
37. REQUESTS FOR CONSENT; WAIVER OF CLAIM
Tenant hereby waives any claim for damages against Landlord that it may have based upon any assertion that Landlord unreasonably has withheld or has delayed any consent or approval, and Tenant's sole remedy shall be an action for specific performance of such provision, injunction or declaratory judgment. In the event of a final determination in Tenant's favor, the requested consent or approval shall be deemed to have been granted.
38. INTERPRETATION
The use of masculine, feminine, or neuter genders shall include the other genders, and the singular shall include the plural and vice-versa. Headings are intended for convenience only and shall not be referred to in construing any provision. If there is more than one party as Tenant, the obligations imposed upon Tenant shall be joint and several. If any provision(s) of this Lease shall be found, to any extent, to be invalid or unenforceable the remainder of the Lease shall not be affected thereby.
39. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and shall inure to the benefit of Landlord, its successors and assigns, and shall be binding upon and shall inure to the benefit of Tenant, its heirs, successors and (to the extent assignment may be permitted hereunder) assigns.
40. AUTHORITY
If Tenant is a corporation or partnership, each of the persons executing this Lease on behalf of Tenant covenants and warrants that Tenant is a duly authorized and existing corporation or partnership, that Tenant has and is qualified to do business in California, that Tenant has full right and authority to enter into this Lease and that each person signing on behalf of Tenant is authorized to do so.
41. UNAVOIDABLE DELAYS
A. In the event that Tenant or Landlord is delayed, directly or indirectly, from the performance of any act or thing required to be done or performed under the terms or conditions hereof by acts of the other party to this Lease, acts of God, fire, floods, inclement weather, unavoidable governmental action, strikes or labor difficulties of any and all kinds, shortages of or delay in the delivery of materials, acts of war, riot and civil commotion, or by any other cause beyond the reasonable control of Tenant or Landlord, as the case may be, such failure shall not be deemed to be a breach of this Lease or a violation of any such covenants or conditions and the time within which Tenant or Landlord must perform any such act shall be extended by a period of time equal to the period of delay arising from any of such causes.
36 B. Notwithstanding any provision of this Section 41 or any other provision of this Lease to the contrary, it is understood and agreed that there shall be no abatement of, or delay in the commencement of, or payment of any sum due to Landlord under this Lease.
42. TIME OF THE ESSENCE
Time is of the essence of each and every covenant and condition of this Lease.
43. BROKERAGE
Landlord and Tenant hereby represent and warrant, each to the other, that they have not disclosed this Lease or the subject matter hereof to, and have not otherwise dealt with, any broker, finder or any other person, firm, corporation or other legal entity so as to create any legal right or claim of whatsoever kind or nature for a commission or similar fee or compensation with respect to the Premises or this Lease. Landlord and Tenant hereby indemnify each other against, and agree to hold each other harmless from, any liability or claim (and all expenses, including attorneys' fees, incurred in defending any such claim or in enforcing this indemnity) for a real estate brokerage commission or similar fee or compensation arising out of or in any way connected with any claimed dealings with the indemnitor and relating to the Premises or this Lease.
44. CITY NON-DISCRIMINATION ORDINANCE
A. Tenant hereby agrees to comply with the provisions of the Berkeley Municipal Code ("B.M.C."), including without limitation Chapter 13.26, as amended from time to time. In the performance of its obligations under this Lease, Tenant agrees as follows:
1. Tenant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, age (over 40), sex, pregnancy, marital status, disability, sexual orientation or AIDS.
2. Tenant shall permit Landlord access to records of employment, employment advertisements, application forms, EEO-1 forms, affirmative action plans and any other documents which, in the reasonable opinion of Landlord, are necessary to monitor compliance with this non-discrimination provision. In addition, Tenant shall fill out, in a timely fashion, forms supplied by Landlord to monitor this non-discrimination provision.
B. Tenant understands that this Lease is governed by City Council Resolution No. 58,664 – N.S. This resolution, as may be amended from time, stipulates that Tenant's membership policies may be reviewed by the City for compliance therewith at any time, and that unsatisfactory membership policies may result in non-renewal of this Lease or termination by the City.
45. NON-DISCRIMINATION AGAINST PERSONS WITH DISABILITIES A. If Tenant provides any aid, service or benefit to others on the Landlord’s behalf,
37 Tenant shall, in the provision of such aid, service or benefit, observe and comply with all applicable provisions of Title II of the Americans with Disabilities Act of 1990 and any amendments thereto. Tenant shall further observe and comply with all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination against individuals with disabilities or ensuring that individuals with disabilities are not excluded from participating in or receiving benefits, services or activities of the Landlord.
B. If Tenant is or becomes a "public accommodation" as defined in Title III of the Americans with Disabilities Act of 1990, Tenant shall observe and comply with all applicable provisions of the Act and any amendments thereto, and all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations offered by the Tenant. All of Tenant's activities must be in accordance with these laws, ordinances, codes, and regulations, and Tenant shall be solely responsible for complying therewith.
46. CONFLICT OF INTEREST PROHIBITED
A. In accordance with California Government Code Section 1090, Berkeley City Charter Section 36 and B.M.C. Chapter 3.64, neither Tenant nor any employee, officer, director, partner or member of Tenant, or immediate family member of any of the preceding, shall have served as an elected officer, an employee, or a board, a committee or commission member of Landlord, who has directly or indirectly influenced the making of this Lease.
B. In accordance with California Government Code Section 1090 and the Political Reform Act, (Government Code Section 87100 et seq.,) no person who is a director, officer, partner, trustee, employee or consultant of Tenant, or immediate family member of any of the preceding, shall make or participate in a decision made by Landlord or any of its boards, commissions or committees, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Tenant, except to the extent permitted by 2 California Code of Regulations, Section 18700(c)(2).
C. Interpretation of this subsection shall be governed by the definitions and provisions used in the Political Reform Act, Government Code section 87100 et seq., its implementing regulations, manuals and codes, Government Code section 1090, Berkeley City Charter section 36 and B.M.C. Chapter 3.64, as amended from time to time.
47. NUCLEAR FREE BERKELEY
Tenant agrees to comply with B.M.C. Chapter 12.90, the Nuclear Free Berkeley Act, as amended from time to time.
48. OPPRESSIVE STATES
A. In accordance with Resolution No. 59,853 – N.S., Tenant certifies that it has no contractual relations with, and agrees during the term of this Lease to forego contractual relations
38 to provide personal services to, the following entities:
(1) The governing regime in any Oppressive State.
(2) Any business or corporation organized under the authority of the governing regime of any Oppressive State.
(3) Any individual, firm, partnership, corporation, association, or any other commercial organization, and including parent-entities and wholly-owned subsidiaries (to the extent that their operations are related to the purpose of this Lease) for the express purpose of assisting in business operations or trading with any public or private entity located in any Oppressive State.
B. For purposes of this Lease, the Tibet Autonomous Region and the provinces of Ado, Kham, and U-Tsang shall be deemed oppressive states.
C. Tenant’s failure to comply with this subsection shall constitute a default of this Lease and Landlord may terminate this Lease pursuant to Section 19. In the event that Landlord terminates this Lease due to a default under this provision, Landlord may deem Tenant a non- responsible bidder for five (5) years from the date this Lease is terminated.
49. BERKELEY LIVING WAGE ORDINANCE (LWO)
A. Tenant agrees to comply with Berkeley Municipal Code Chapter 13.27, the Berkeley Living Wage Ordinance (LWO). If Tenant employs six (6) or more part-time or full- time employees, and generates $350,000 or more in annual gross receipts, Tenant will be required to provide all eligible employees with City mandated minimum compensation during the term of this lease, as defined in B.M.C. Chapter 13.27, and well as comply with the terms enumerated herein.
B. Tenant shall be required to maintain all reasonable records and documents that would establish whether Tenant is subject to Berkeley's Living Wage Ordinance. If Tenant is subject to the LWO, as defined therein, Tenant shall be further required to maintain monthly records of those employees located on the leased premises. These records shall include the total number of hours worked, the number of hours spent providing service on the leased Premises, the hourly rate paid, and the amount paid by Tenant for health benefits, if any, for each of its employees providing services under the lease. The records described in this subsection shall be made available upon the City's request. The failure to produce these records upon demand shall be considered a default, subject to the provisions contained in Section 19 herein.
C. If Tenant is subject to the LWO, Tenant shall include the requirements of the ordinance, as defined in B.M.C. Chapter 13.27, in any and all subleases in which Tenant enters with regard to the subject premises. Subtenants shall be required to comply with this ordinance with regard to any employees who spend 25% or more of their compensated time on the leased Premises.
39 D. If Tenant fails to comply with the requirements of this the LWO and this lease, the City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.
Tenant's failure to comply with this Section shall constitute default of the lease, upon which City may terminate this lease pursuant to Section 19.
In addition, at City's sole discretion, Tenant may be responsible for liquidated damages in the amount of $50 per employee per day for each and every instance of an underpayment to an employee. It is mutually understood and agreed that Tenant's failure to pay all of its eligible employees at least the applicable living wage rate will result in damages being sustained by the City; that the nature and amount of the damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damage for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty of forfeiture for Tenant's breach.
50. BERKELEY EQUAL BENEFITS ORDINANCE (EBO)
A. Tenant hereby agrees to comply with the provisions of the Berkeley Equal Benefits Ordinance, B.M.C. Chapter 13.29. If Tenant is currently subject to the Berkeley Equal Benefits Ordinance, Tenant will be required to provide all eligible employees with City mandated equal benefits during the term of this lease, as defined in B.M.C. Chapter 13.29, as well as comply with the terms enumerated herein.
B. If Tenant is currently or becomes subject to the Berkeley Equal Benefits Ordinance, Tenant agrees to supply the City with any records the City deems necessary to determine compliance with this provision. Failure to do so shall be a considered a default, subject to the provisions of Section 19 of this lease.
C. If Tenant fails to comply with the requirements of this Section, City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.
Tenant’s failure to comply with this Section shall constitute default of the lease, upon which City may terminate this lease pursuant to Section 20.
In addition, at City’s sole discretion, Tenant may be responsible for liquidated damages in the amount of $50.00 per employee per day for each and every instance of violation of this Section. It is mutually understood and agreed that Tenant’s failure to provide its employees with equal benefits will result in damages being sustained by City; that the nature and amount of these damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damages for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty or forfeiture for Tenant’s breach.
51. BERKELEY SANCTUARY CITY ORDINANCE
40 Tenant hereby agrees to comply with the provisions of the Sanctuary City Contracting Ordinance, B.M.C. Chapter 13.105. In accordance with this Chapter, Tenant agrees not to provide the U.S. Immigration and Customs Enforcement Division of the United States Department of Homeland Security with any Data Broker or Extreme Vetting Services as defined herein:
a. “Data Broker” means either of the following: (1) The collection of information, including personal information about consumers, from a wide variety of sources for the purposes of reselling such information to their customers, which include both private-sector business and government agencies; (2) the aggregation of data that was collected for another purpose from that for which it is ultimately used.
b. “Extreme Vetting” means data mining, threat modeling, predictive risk analysis, or other similar services. Extreme Vetting does not include: (1) The City’s computer-network health and performance tools; (2) Cybersecurity capabilities, technologies and systems used by the City of Berkeley Department of Information Technology to predict, monitor for, prevent, and protect technology infrastructure and systems owned and operated by the City of Berkeley from potential cybersecurity events and cyber-forensic based investigations and prosecutions of illegal computer-based activity.
52. AUDIT
Pursuant to Section 61 of the Berkeley City Charter, the City Auditor's Office, or its designee, may conduct an audit of Tenant's financial, performance and compliance records maintained in connection with the operations and services performed under this Lease, and with the payments made under this Lease. In the event of such audit, Tenant agrees to make all such financial, performance and compliance records available to the Auditor's Office, or to its designee. City agrees to provide Tenant an opportunity to discuss and respond to any findings before a final audit report is filed.
53. CITY BUSINESS LICENSE, PAYMENT OF TAXES, TAX I.D. NUMBER Tenant has obtained a City business license as required by B.M.C. Chapter 9.04, and its license number is written below; or, Tenant is exempt from the provisions of B.M.C. Chapter
9.04 and has written below the specific B.M.C. section under which it is exempt. Tenant shall pay all state and federal income taxes and any other taxes lawfully assessed and due. Tenant certifies under penalty of perjury that the taxpayer identification number written below is correct.
54. SURVIVAL
The provisions of this Lease and obligations of Tenant, that by their nature, are to be performed after or are to survive termination of this Lease shall survive such termination.
55. EXHIBITS
Exhibits A, B, C, and D and any other exhibit, addendum or schedule referenced in this Lease are made a part hereof by this reference.
IN WITNESS WHEREOF, the parties hereto have executed this Lease at Berkeley, California
41 effective as of the Effective Date.
LANDLORD:
CITY OF BERKELEY
A municipal corporation
By: __________________
City Manager Date
Approved as to form: Registered by:
___________________ __________ City Attorney Date City Auditor Date
Attest:
__________________
City Clerk Date
TENANT:
WATERSIDE WORKSHOPS
A non-profit organization
By: ______________________________
Neil Larsen, Executive Director Date
TENANT INFORMATION
Tax Identification No. ____________________
Incorporated: Yes No
Certified Woman Business Enterprise: Yes ____ No X
Certified Minority Business Enterprise: Yes ____ No X
Certified Disadvantaged Business Enterprise: Yes No City Business License No. ___________, or Exempt pursuant to B.M.C. Section __________
42 Exhibit “A”
43 Exhibit “B”: Berkeley Aquatic Park
44 Exhibit “C”:
Proposed Repair/Renovation Schedule 2023-2031
Ordinance No. 7,832-N.S. Page 1 of 9
ORDINANCE NO. 7,832--N.S.
ORDINANCE AMENDING CHAPTER 13.110 OF THE BERKELEY MUNICIPAL CODE, THE COVID-19 EMERGENCY RESPONSE ORDINANCE
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The Berkeley Municipal Code Chapter 13.110 is amended to read as follows:
Chapter 13.110
COVID-19 EMERGENCY RESPONSE ORDINANCE
Sections:
13.110.010 Findings and Purpose
13.110.020 Prohibited Conduct
13.110.030 Definitions
13.110.040 Collection of Back Rent and Late Fees
13.110.050 Application
13. 110.060 Implementing Regulations
13.110.070 Waiver
13.110.080 Remedies
13.110.090 Severability
13.110.100 Liberal Construction
13.110.010 Findings and Purposes
International, national, state and local health and governmental authorities are responding to an outbreak of respiratory disease caused by a novel coronavirus named "SARS-CoV-
2." And the disease it causes has been named "coronavirus disease 2019," abbreviated COVID-19, ("COVID-19"). In response to this emergency, on March 3, 2020, the City Manager acting as the Director of Emergency Services declared a local State of Emergency based on COVID-19 (hereinafter referred to as "the Local Emergency"), which the City Council subsequently ratified on March 10, 2020. On April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, and July 26, 2022, the council ratified an extension of the local emergency. In addition, on March 4, 2020, the Governor declared a state of emergency in California and the President of the United States declared a national state of emergency on March 13, 2020 regarding the novel coronavirus and COVID-19.
On March 16, 2020, the City of Berkeley Public Health Officer, along with several other neighboring jurisdictions issued a Shelter in Place Order directing all individuals living in the City of Berkeley to shelter at their place of residence except that they may leave to
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provide or receive certain essential services or engage in certain essential activities, and prohibiting non-essential gatherings and ordering cessation of non-essential travel. On March 31, 2020 this Shelter in Place Order was extended to May 3, 2020, and restricted activities further.
Furthermore, on March 16, 2020, the Governor issued Executive Order N-28-20, specifically authorizing local governments to halt evictions for commercial tenants, residential tenants, and homeowners who have been affected by COVID-19, emphasizing that the economic impacts of COVID-19 have been significant and could threaten to undermine housing security as many people are experiencing material income loss as a result of business closures, the loss of hours or wages or layoffs related to COVID-19, hindering their ability to keep up with rents, mortgages and utility bills.
The Order also stated that because homelessness can exacerbate vulnerability to COVID-19, Californians must take measures to preserve and increase housing security for Californians to protect public health and specifically stated that local jurisdictions may take measures to promote housing security beyond what the state law would otherwise allow.
On April 21, 2020, Alameda County enacted an urgency ordinance prohibiting eviction for any reason other than withdrawal of rental property under the Ellis Act or court-ordered eviction for public safety. Although the Alameda County ordinance does not have effect within the incorporated area of Berkeley, it is desirable to ensure that Berkeley residents have at least the same level of protection as the residents of unincorporated Alameda County.
During this State of Emergency, and in the interests of protecting the public health and preventing transmission of the COVID-19, it is essential to avoid unnecessary displacement and homelessness. It is the intent of this Ordinance to fully implement the suspension of the statutory bases for eviction for nonpayment of rent and for default in the payment of a mortgage as authorized by Executive Order N-28-20.
At the same time, the Governor, as well as, the Berkeley Health Officer, and those of other jurisdictions ordered the closure of businesses, except those deemed essential.
Many businesses, such as restaurants, are open only for take-out or pick up services and face a critical loss of business.
The City Council is aware that some landlords of commercial properties are seeking significant rent increases during the period when many commercial tenants are closed or are experiencing substantial and catastrophic reductions in their business and income.
Such rent increases force tenants who are closed or have substantially reduced revenues face the choice of accepting a significant rent increase, moving at a time when it is virtually impossible, or closing altogether. Accepting a rent increase while closed or in a reduced state of operations means that the commercial tenants face even more debt to the landlord when the emergency is over, and may face a substantially increased rent when the tenant returns to normal operations, if ever.
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Landlords of commercial property that unreasonably increases rents on tenants of commercial property during the COVID-19 emergency significantly impacts vulnerable small businesses, nonprofits, and artists who form a large part of the backbone of Berkeley’s economy, revenue sources, and employment opportunities These rent increases are coming at a time when the commercial rents are likely falling due to business closures and potential loss of businesses at the end of the emergency. Thus, these rent increases appear as a way of evading the Governor’s and Berkeley’s commercial tenant eviction moratorium by forcing tenants to agree to rent increases or leave. Such conduct constitutes constructive evictions in contravention of the eviction moratorium. Furthermore, such rent increases may affect businesses providing goods and essential services, resulting in increases in those costs of essential goods and services contravening the intent of anti-price gouging laws.
On expiration of leases when the emergency order is in place, unreasonable rent increases have already forced the closure of businesses and will result in closing of additional business causing loss of income for the business owners, loss of employment for the employees and of revenue to the city, and an increase in homelessness. To reduce the spread of COVID-19, it is essential to avoid unnecessary displacement and homelessness. Because of the emergency restrictions, businesses forced out due to increased rents will be unable to move to new locations and new businesses will be unable to open during this emergency period. During a state of emergency cities have extraordinary powers and jurisdiction to create legislation in order to counteract the effects of the emergency situation on its people and businesses. Protecting tenants from excessive rent increases will prevent additional loss of employment and essential services for Berkeley residents. In order to effectively implement an eviction moratorium, the City Council finds it imperative to prevent constructive eviction through unreasonable rent increases.
Accordingly, the City of Berkeley adopts the following amendments to Berkeley Municipal Code Chapter 13.110.
13.110.020 Prohibited Conduct
A. During the Covered Period, no Landlord or Lender shall evict or attempt to evict a Resident of real property, or otherwise require a Tenant to vacate, unless necessary to stop an imminent threat to the health and safety of other occupants. For purposes of this Ordinance, the basis for an exception to this Ordinance cannot be the Resident’s COVID- 19 illness or exposure to COVID-19, whether actual or suspected.
B. Residential Eviction Moratorium. It shall be a complete defense to any action for unlawful detainer that the notice upon which the action is based was served or expired, or that the complaint was filed or served, during the Covered Period.
C. No landlord of an Impacted Business or Nonprofit may upon expiration of a lease increase rent for an Impacted Business or Nonprofit in an amount greater than ten (10) percent over the rent in effect at the commencement of the local emergency declared by the Director of Emergency Services. For purposes of this section, rent means all
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consideration for the use and enjoyment of the rented premises, including base rent and any additional rent or other charges for costs such as utilities, maintenance, cleaning, trash removal, repairs and any other charges to the tenant required under the rental agreement. This section 13.110.020 C. shall expire on May 31, 2020, concurrent with Executive Order N-28-20; provided, however, that this section shall be automatically extended if Executive Order N-28-20 is extended or the tenant protections therein are extended pursuant to another Governor’s Executive Order.
D. For the duration of the Covered Period, if a tenant has a Covered reason for delayed payment, the tenant may terminate a lease or rental agreement with 30 days ’notice without penalty. A tenant may also exercise rights under this subsection if the tenants or roommates of the tenants are or were registered at an educational institution that cancelled or limited in-person classes due to the COVID-19 pandemic.
13.110.030 Definitions
A. “Covered Period” means the period of time beginning with March 17, 2020 and concluding upon the expiration of the local emergency. However, the City Council may vote by resolution to extend the duration of the Covered Period.
B. "Covered Reason for Delayed Payment" means:
(1) The basis for the eviction is nonpayment of rent, arising out of a material decrease in household, business, or other rental unit occupant(s)’s income (including, but not limited to, a material decrease in household income caused by layoffs or a reduction in the number of compensable hours of work, or to caregiving responsibilities, or a material decrease in business income caused by a reduction in opening hours or consumer demand), or material out-of-pocket medical expenses, or a reduction in the number of tenants living in the unit (including due to difficulty finding new tenants and/or subtenants willing and able to cover a sufficient share of rent) which reduces the ability of the remaining tenants to pay rent, or a rent increase that exceeds the Annual General Adjustment for the current year; and
(2) The decrease in household, business, or other rental unit occupant’s income or the expenses or reduction in number of tenants described in subparagraph (1) was caused by the impacts of COVID-19 pandemic, or by any local, state, or federal government response to COVID-19.
C. “Delayed Rent Payment Agreement” means a mutual agreement between a landlord and tenant regarding the timing and amount of payments for rent that is delayed by a Covered Reason for Delayed Payment.
D. “Homeowner” means the owner or owners of a Residential Unit subject to a mortgage or similar loan secured by the residential unit. “Homeowner” is limited to owners who reside in the unit and includes the individuals residing in the unit with the homeowner.
E. “Impacted Business or Nonprofit” means a business or nonprofit organization that had a business license in 2019 or 2020 in the City of Berkeley or is a registered nonprofit in either or both of those years and:
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1. whose operation has been shut down due to the COVID-19 emergency, or
2. that is unable to accept customers at its location and is open for limited virtual, take-out or pickup services only, or
3. who suffered a material loss of income.
F. "Landlord" includes owners, lessors, or sublessors of either residential or commercial rental property, and the agent, representative, or successor of any of the foregoing.
G. "Lender” means the mortgagee of a purchase money or similar mortgage, or the holder or beneficiary of a loan secured by one or more units, which person has the right to mortgage or similar payments from the owner as mortgagor, including a loan servicer, and the agent, representative, or successor of any of the foregoing.
H. “Resident” means a Tenant, Homeowner, or their household.
I. "Tenant" includes a tenant, subtenant, lessee, sublessee, lodger or any other person entitled by written or oral rental agreement to use or occupancy of either residential or commercial property.
13.110.040 Collection of Back Rent and Late Fees
A. Nothing in this Chapter shall relieve the tenant of liability for unpaid rent, which the landlord may seek after expiration of the local State of Emergency. Notwithstanding any lease provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment. The City will develop standards or guidelines for tenants to repay unpaid rent accrued during the Covered Period course of the local State of Emergency. Landlords are encouraged to work with local agencies that will be making rental assistance available for qualifying tenants.
B.
1. For rent accrued through January 31, 2021, Tenants shall have until March 31, 2022, or the date adopted by state law, as applicable, to pay rent that was delayed by a Covered Reason for Delayed Payment unless the landlord and tenant come to a mutual repayment agreement ("Delayed Rent Payment Agreement").
2. For rent accrued beginning February 1, 2021, Tenants shall have until twenty-four (24) months after the conclusion of the Covered Period to pay rent that was delayed by a Covered Reason for Delayed Payment, or the period of time adopted by state law, as applicable, unless the landlord and tenant come to a mutual repayment agreement ("Delayed Rent Payment Agreement").
3. Notwithstanding any lease provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment.
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C. A Tenant is not required to provide documentation to the Landlord in advance to qualify for the delayed repayment of rent. However, upon the request of a Landlord, a Tenant shall provide such documentation to the Landlord within forty-five (45) days after the request or within thirty (30) days after the Covered Period, whichever is later. A declaration sworn under penalty of perjury shall constitute documentation for the purpose of this requirement. In the case of nonpayment of rent, the failure of a Tenant to notify the landlord in advance of being delinquent in the payment of rent prior to being served with a notice pursuant to Code of Civil Procedure sections 1161(2) et seq. does not waive the Tenant’s right to claim this Chapter as a complete defense to nonpayment of rent in an unlawful detainer action.
D. Any medical or financial information provided to the landlord shall be held in confidence, and shall not be disclosed to other entities unless such disclosure is permitted or required by the law, or unless the tenant explicitly authorizes the disclosure of the information in writing.
E. Any relief from the City of Berkeley either directly to a property owner on their own application or as a pass through for City relief payments to the tenant shall directly reduce the amount of any rent that was delayed by a Covered Reason for Delayed Payment.
This requirement shall be applied into any Delayed Rent Payment Agreement, regardless of the terms of that agreement.
13.110.050 Application
A. This Chapter applies to eviction notices and unlawful detainer actions based on notices served, filed, or which expire during the Covered Period. It does not apply to commercial leases where the term has expired and the City has issued a permit for the demolition or substantial alteration of the commercial unit, or to units ordered by the City to be vacated for the preservation of public health, including where the City deems necessary to control the spread of COVID-19.
B. Except where expressly required by state law (such as Assembly Bill 3088 or any subsequent statewide COVID-19 relief legislation), a landlord may seek rent accrued during the Covered Period as set forth in Section 13.110.040, but may not file an action pursuant to Code of Civil Procedure sections 1161(2) et seq. or otherwise seek to recover possession of a rental unit based on the failure to pay rent that accrued during the Covered Period. In any action to evict based on alleged nonpayment of rent, it shall be a complete defense to such action if any part of the rent in dispute accrued at any time during the Covered Period, or if the action otherwise demands any fees or amounts contrary to the provisions of this Chapter. A landlord shall not apply any rent payment towards rent that is delayed by a Covered Reason for Delayed Payment before applying it towards any other Rent owed without the explicit written permission of the Tenant.
C. A Landlord or Lender shall not retaliate against a Resident for exercising their rights under this Ordinance, including but not limited to shutting off any utilities reducing services or amenities, refusing to make or delaying repairs to which the Resident would otherwise be entitled, or taking actions which hurt the Resident’s credit rating based on non-
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payment of rent during the Covered Period as allowed under this ordinance.
D. In addition to the affirmative defenses set forth above, in any action to recover possession of a rental unit filed under Berkeley Municipal Code section 13.76.130(A)(1), it shall be a complete defense that the landlord impeded the tenant’s effort to pay rent by refusing to accept rent paid on behalf of the tenant from a third party, or refusing to provide a W-9 form or other necessary documentation for the tenant to receive rental assistance from a government agency, non-profit organization, or other third party. Acceptance of rental payments made on behalf of the tenant by a third party shall not create a tenancy between the landlord and the third party.
13.110.060 Implementing Regulations
The City Manager may promulgate implementing regulations and develop forms to effectuate this Ordinance. This includes the option of requiring Landlords and Lenders to give a notice to Residents informing them of this Chapter and the right to seek the benefits of this Chapter.
13.110.070 Waiver.
A. By entering into a Delayed Rent Payment Agreement, Tenants do not waive any rights under this Chapter.
B. Any agreement by a Tenant to waive any rights under this ordinance shall be void and contrary to public policy.
13.110.080 Remedies
A. In the event of a violation of this Ordinance, any person or entity aggrieved by the violation may institute a civil proceeding for injunctive relief, and money actual damages as specified below, and whatever other relief the court deems appropriate.
1. An award of actual damages may include an award for mental and/or emotional distress and/or suffering. The amount of actual damages awarded to a prevailing plaintiff shall be trebled by the Court outside of the presence, and without the knowledge of, the jury, if any, if a defendant acted in knowing violation of, or in reckless disregard for, the provisions of this Chapter.
2. A defendant shall be liable for additional civil penalties of up to five thousand dollars for each violation of this Chapter committed against a person who is disabled within the meaning of California Government Code section 12926, et seq., or aged sixty-five or over.
3. In addition to the above awards of damages in a civil action under this Chapter, a prevailing plaintiff shall be entitled to an award of reasonable attorney’s fees. A prevailing defendant in a civil action under this Chapter shall only be entitled to an award of attorney’s fees if it is determined by the Court the action was wholly without merit or frivolous.
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4. In addition, this Chapter grants a complete defense to eviction in the event that an eviction notice or unlawful detainer action is commenced, filed, or served in violation of this Chapter.
B. The protections provided by this ordinance shall be available to all Residents, regardless of any agreement wherein a Resident waives or purports to waive their rights under this Ordinance, with any such agreement deemed void as contrary to public policy.
C. A. Violations of Section 13.110.020(C) - (Commercial rent restrictions).
1. Violations of Section 13.110.020(C) may be enforced by an administrative fine of up to $1,000 pursuant to Chapter 1.28. Each day a commercial property landlord demands rent in excess of the amount permitted pursuant to Section 13.110.020(C) is a separate violation. The City may also charge the costs of investigating and issuing any notices of violations, and any hearings or appeals of such notices.
2. The City Attorney may refer those violators of Section 13.110.020(C) to the Alameda County District Attorney for redress as a violation of Business and Professions Code section 17200, et seq. or, if granted permission by the District Attorney, may bring an action pursuant to Business and Professions Code section 17200, et seq.
D. Nonexclusive Remedies and Penalties. The remedies provided in this subdivision are not exclusive, and nothing in this Chapter shall preclude any person from seeking any other remedies, penalties or procedures provided by law.
13.110.090 Severability.
If any section, subsection, sentence, clause, phrase, or word of this Chapter, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this Chapter. The Council of the City of Berkeley hereby declares that it would have passed this Chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter or application thereof would be subsequently declared invalid or unconstitutional.
13.110.100 Liberal Construction
The provisions of this Chapter shall be liberally construed so as to fully achieve its purpose and provide the greatest possible protections to tenants.
Section 2.
Effective Date
This ordinance shall go into effect thirty days from the time of its final passage.
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Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
At a regular meeting of the Council of the City of Berkeley held on September 13, 2022, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Bartlett, Droste, Hahn, Harrison, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.
Noes: None.
Absent: None.
Ordinance No. 7,833-N.S. Page 1 of 1
ORDINANCE NO. 7,833-N.S.
REPEALING CHAPTER 12.76 OF THE BERKELEY MUNICIPAL CODE, REPEALING ORDINANCE NO. 7,643-N.S., AND AMENDING SECTION 14.40.120 BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 12.76 is hereby repealed.
Section 2. That Ordinance No. 7,643-N.S. is hereby repealed, and Berkeley Municipal Code Section 14.40.120 is amended to read as follows:
14.40.120
A. It is unlawful for any person to park any heavy-duty commercial vehicle on any street between the hours of two a.m. and five a.m. for a greater length of time than one hour.
B. For the purpose of this section, heavy duty commercial vehicle shall mean a single vehicle or combination of vehicles having more than two axles, a single vehicle or combination of vehicles 20 feet or more in length, or a single vehicle or combination of vehicles six feet six inches or more in width, and shall include, but shall not be limited to dump trucks, moving vans, tractors, pole or pipe dollies.
Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
At a regular meeting of the Council of the City of Berkeley held on September 13, 2022, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Bartlett, Droste, Hahn, Harrison, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.
Noes: None.
Absent: None.
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
CONSENT CALENDAR
September 29, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Peter Radu, Assistant to the City Manager Subject: Urgency Ordinance for Extending the Lease for Real Property at 742 Grayson Street
RECOMMENDATION
Adopt an Urgency Ordinance to extend an existing lease for the real property located at 742 Grayson Street, Berkeley, CA for an additional month, through October 31, 2022.
FISCAL IMPACTS OF RECOMMENDATION
Approving this recommendation will result in a total outlay of $26,379 ($16,500 rent + $4,994 Zero Waste expenses + $4,885 toilets and hygiene expenses). These funds will be paid for from the Measure P appropriation to the continuation of the Horizon shelter that was approved by Council with the adoption of the FY23-24 Biennial Budget.
CURRENT SITUATION AND ITS EFFECTS
On April 27, 2021, the Council adopted Urgency Ordinance No. 7,759–N.S. to authorize the lease of 742 Grayson St for the purposes of operating interim shelter for persons experiencing homelessness. That lease was originally set to terminate on Sept 30, 2022. The City uses the property at Grayson to operate both the 50-bed Horizon Transitional Village Program shelter as well as the 40-slip SPARK safe RV parking program.
The City continues to evaluate options and explore leads for continuing the Horizon program, including the potential lease of a motel at 1720 San Pablo Ave (the Berkeley Inn). As this process has taken longer than originally anticipated, staff have requested, and the owners of 742 Grayson have agreed, to a one-month extension of the original lease, with all other terms (including rent at $16,500/month) in full force and effect.
To avoid any gaps in service as staff continue working on a continuation of the program at a new location, staff recommend that Council approves this lease extension by passing an urgency ordinance. The costs of this additional month are already covered by a Measure P allocation to the continuation of the Horizon program as part of the FY23-24 Budget.
Urgency Ordinance for Extending Lease of Real Property at 742 Grayson St CONSENT CALENDAR September 29, 2022
BACKGROUND
On April 27, 2021, the Council adopted Urgency Ordinance No. 7,759–N.S. to authorize the lease of 742 Grayson St for the purposes of operating interim shelter for persons experiencing homelessness. Also on April 27, 2021, Council adopted Resolution No. 69,808–N.S., which authorized a contract with Dorothy Day House to operate the Horizon Transitional Village Program, a 50-bed interim shelter, at this site. This lease will terminate on September 30, 2022. On June 28, 2022, Council adopted the FY23-24 Biennial Budget, including $1,011,900 annually in Measure P funds to continue the Grayson shelter.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Continuing to provide interim housing with no gaps in service for persons experiencing homelessness in Berkeley will help reduce the overall negative impact of encampments on Berkeley’s environment and waterways, including fire and vector hazards, the accumulation of trash/debris, and unmitigated human and animal waste.
RATIONALE FOR RECOMMENDATION
Adopting the agreement by Urgency Ordinance is appropriate in light of the current shelter crisis and imminent loss of the 742 Grayson St site. By adopting this agreement through an Urgency Ordinance on Sept 29, 2022, it will be possible to continue negotiations for the extension of the program at another location, and will eliminate any gaps in service (and the return of shelter guests to the streets) in the interim.
ALTERNATIVE ACTIONS CONSIDERED
None. Allowing the lease to end would result in a gap in service between the Grayson location and a new location identified by staff. This would force shelter guests back to the streets, and would also cause Dorothy Day House serious financial challenges in meeting payroll for staff that would be needed to continue the program at another location.
CONTACT PERSON
Peter Radu, Assistant to the City Manager, 510 981-7045 Attachments:
1: Ordinance
Exhibit A: Lease Amendment for 742 Grayson St
Exhibit B: April 27, 2021 Council report and original lease
Urgency Ordinance for Extending Lease of Real Property at 742 Grayson St CONSENT CALENDAR September 29, 2022
ORDINANCE NO. X,XXX N.S.
AUTHORIZING THE CITY MANAGER OR HER DESIGNEE TO EXECUTE A LEASE AND ANY NECESSARY AMENDMENTS WITH 742 GRAYSON OWNER, LLC, FOR REAL PROPERTY LOCATED AT 742 GRAYSON ST, BERKELEY, CA.
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The City Council finds as follows:
a. The City of Berkeley is facing an ongoing crisis of street homelessness: while overall homelessness declined in Berkeley by 5% from 2019 to 2022, unsheltered homelessness stayed roughly the same during this period, declining only 1%. b. To help address this crisis, on April 27, 2021, the City Council authorized the lease of 742 Grayson St and a contract with Dorothy Day House to operate the 50-bed Horizon Transitional Village Program; and
c. Since July 2021, the Horizon Transitional Village Program has served over 125 residents of Berkeley’s most impactful and dangerous encampments; and d. On September 30, 2022, the City’s lease for 742 Grayson Street will terminate, necessitating a new location to continue the Horizon program; and e. On June 28, 2022, with the adoption of the FY23-24 Biennial Budget, the City Council authorized $1,011,900 annually through FY24 for the continuation of the Grayson shelter, signaling its intent to continue this program beyond the current location at Grayson; and
f. City staff continue to explore other locations to continue this program and avoid any lapse in service to the shelter guests; and
g. Extending the existing lease for one month will allow the City sufficient time to fully transition the program to another, more permanent location.
Section 2. The City Manager or her designee is hereby authorized to amend the existing lease with 742 Grayson Owner, LLC for real property located at 742 Grayson Street on the same terms as set forth in Exhibit A. The rent will be $16,500 for the single month of this extended term. Lease costs will be paid for by Measure P funding previously appropriated for this purpose by the City Council.
Section 3. This Ordinance is adopted as an urgency ordinance pursuant to the Charter of the City of Berkeley, Article XIV, Section 93 and shall be effective immediately. The City Council finds and determines that the adoption of this Ordinance as an urgency ordinance is necessary for the immediate preservation of the public peace, health and safety of the residents of the City of Berkeley.
Section 4. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Old City Hall, 2134 Martin Luther King Jr. Way within fifteen calendar days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
LEASE AMENDMENT FOR 742 GRAYSON STREET
This lease amendment (“Amendment”) is made on ________________ between 742 GRAYSON OWNER LLC, a Delaware limited liability company (“Landlord”) and the CITY OF BERKELEY ("Landlord"), a Charter City organized and existing under the laws of the State of California ("Tenant"), who agree as follows:
This lease amendment is made with reference to the following facts and objectives:
A. Landlord is the owner of the real property at 742 Grayson Street, Berkeley, California, ("Premises").
B. Tenant entered into a lease (“Lease ”) with Landlord on May 13, 2021. The Lease provides that the Term shall extend no later than September 30, 2022.
C. Tenant is operating a homeless shelter and safe parking program at the Premises.
In order to allow the City to complete negotiations for a new shelter location prior to the expiration of the Lease, Landlord and Tenant agree to extend the Lease’s expiration date by one month, at the current base rent and subject to all other terms of the Lease.
Therefore, Landlord and Tenant agree to amend the Lease as follows:
1. Section 1.7. Term, is amended to read as follows:
Term: The “Term” is the period of time starting on the Commencement Date and expiring on March 31, 2022, after which the tenancy shall convert to month to month until no later than September 30, 2022 October 31, 2022, subject to Landlord and Tenant each having the independent right to terminate such month-to-month tenancy on thirty (30) days prior written notice to the other party. The “Expiration Date” shall be March 31, 2022, subject to extension for a month-to-month basis as provided above, but in no event shall the Expiration Date be later than September 30, 2022 October 31, 2022. Notwithstanding the foregoing, Tenant shall have the right to terminate the Term of this Lease at any time after not less than thirty (30) days prior written notice to Landlord. Landlord may not terminate the Term prior to March 31, 2022, except due to Default by Tenant or in connection with any casualty or condemnation.
2. In all other respects, the Lease executed on May 13, 2021 shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this lease amendment as of the date written on the first paragraph of this lease.
Exhibit A
LANDLORD:
Signature:______________________________
Title: _________________________________
APPROVED AS TO FORM: TENANT
CITY OF BERKELEY
________________________ By: _____________________
City Manager
City Attorney
REGISTERED BY:
______________________________
City Auditor
ATTEST:
_______________________________
Deputy City Clerk
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
CONSENT CALENDAR
April 27, 2021
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Darrin Rafferty, Acting Assistant to the City Manager Subject: Referral Response: Urgency Ordinance for leasing the real property at 742 Grayson
RECOMMENDATION
Adopt an urgency Ordinance to enter into a lease for the real property located at 742 Grayson St., Berkeley for a term of 11 months, after which it becomes a month to month lease through September 30, 2022.
FISCAL IMPACTS OF RECOMMENDATION
Total rent for the subject property will be $16,500 per month, inclusive of utilities, as described in Exhibit A. Lease will be funded with general fund associated with Measure P.
CURRENT SITUATION AND ITS EFFECTS
This report responds to the referral “Establishing an Outdoor Emergency Shelter,” that originally appeared on the agenda of the January 21, 2020 Council meeting and was sponsored by Councilmembers Harrison, Davila, Mayor Arreguin and Councilmember Robinson.
Staff spent more than one year looking for a suitable location for the outdoor emergency shelter, however to date, one had not been identified that would be suitable to the community or logistically feasible for operations. Given the lack of an outdoor location, staff entered into negotiations with the property owner of 742 Grayson St. to lease the property for the purpose of an indoor emergency shelter. This property has approximately 45,000 feet of indoor space that could presently accommodate over 50 individuals, appropriately spaced for ample social distancing. There is also a large paved area on the property that could provide other suitable uses, such as off-street recreational vehicle (RV) parking.
BACKGROUND
As of the 2019 Point in Time count, there were 813 unsheltered homeless individuals living in Berkeley. Though the PIT count was not undertaken this year, these numbers have surely increased since the last count was complete with impacts from the COVID- 19 pandemic and the financial and employment instability it has caused in many
Exhibit B
Referral Response: Ordinance for leasing the real property at 742 Grayson St. CONSENT CALENDAR April 27, 2021
different populations. The City has made robust investments in shelter, permanent supportive housing, affordable housing and supportive services, and this effort will support helping more unhoused residents move indoors. In January 2020 the City Council directed the City Manager to establish an outdoor emergency shelter as a short- term solution to address the immediate needs of people living outdoors. This item has been significantly delayed due to the unprecedented efforts endeavored by City staff in response to the COVID-19 crisis.
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental impacts associated with this report.
RATIONALE FOR RECOMMENDATION
If adopted, this lease agreement will bring about the opportunity to shelter at least 50 individuals at a time in a location that is not exposed to the outdoor elements. It will also serve as an opportunity to implement an off-street RV parking program, though this aspect of the program is still being developed. This will provide much needed emergency shelter for unsheltered homeless individuals.
This lease agreement is also subject to an Urgency Ordinance pursuant to the Charter of the City of Berkeley, and would be effective immediately for the critical preservation human health and safety.
ALTERNATIVE ACTIONS CONSIDERED
Staff have not identified another location that would have accommodated the emergency shelter.
CONTACT PERSON
Darrin Rafferty, Acting Assistant to the City Manager, 510-981-7000 Attachments:
1: Ordinance
Exhibit A: Lease Agreement
2: Original Referral Report from the January 21, 2020 City Council meeting titled “Establishing an Outdoor Emergency Shelter” sponsored by Councilmembers Harrison, et al
ORDINANCE NO. X,XXX N.S.
AUTHORIZING THE CITY MANAGER OR HER DESIGNEE TO EXECUTE A LEASE AND ANY NECESSARY AMENDMENTS WITH 742 GRAYSON OWNER LLC, FOR REAL PROPERTY LOCATED AT 742 GRAYSON STREET
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The City Council finds as follows:
a. The 2019 Alameda County Point in Time count identified 813 unsheltered people living in Berkeley; and
b. This number has almost certainly increased in light of the economic impacts of the COVID-19 crisis; and
c. While the City has made significant investments in affordable housing and supportive services in recent years, these interventions are not yet sufficient to serve the entire unsheltered population in the City; and d. On January 21, 2020 City Council directed the City Manager to establish an outdoor emergency shelter as a short-term solution to address the immediate needs of people living outdoors and exposed to the elements, transportation- related risks, among other dangerous conditions; and
e. The City Manager’s Office has researched a number of potential sites for such a shelter, and identified the large warehouse and outdoor spaces at 742 Grayson Street as an ideal location; and
f. The property provides over 45,000 square feet of indoor space that can easily accommodate over 50 tents indoors spaced appropriately for social distancing; and
g. The large off-street parking lot can be used for RV parking for unsheltered individuals living in RVs; and
h. The property owner, 742 Grayson Owner LLC, has offered to lease the property to the City for purposes of establishing a homeless shelter for 17 months, at a monthly rent of $16,500, including most utilities.
Section 2. The City Manager or her designee is hereby authorized to enter into a lease and necessary amendments starting May 1, 2021 with 742 Grayson Owner LLC for real property located at 742 Grayson Street on substantially the same terms as set forth in Exhibit A. The rent will be $16,500 per month, and will be paid from general fund Measure P monies.
Section 3. This Ordinance is adopted as an urgency ordinance pursuant to the Charter of the City of Berkeley, Article XIV, Section 93 and shall be effective immediately. The City Council finds and determines that the adoption of this Ordinance as an urgency ordinance is necessary for the immediate preservation of the public peace, health and safety of the residents of the City of Berkeley. This Ordinance shall go into effect immediately upon a seven-ninths vote of the City Council, in satisfaction of the Charter of the City of Berkeley.
742 Grayson/Berkeley Lease-10
LEASE
742 GRAYSON S
TREET,
BERKELEY, CALIFORNIA
LANDLORD
:
742 GRAYSON OWNER LLC,
a Delaware limited liability company
TENANT:
City of
Berkeley,
a Municipal corporation
Exhibit A - Page 1 of 51
Page
742 Grayson/Berkeley Lease-10
ARTICLE 1 - LEASE SUMMARY AND PROPERTY SPECIFIC PROVISIONS ................................. 1 ARTICLE 2 - LEASE ................................................................................................................................ 7 ARTICLE 3 - PREMISES ......................................................................................................................... 7 ARTICLE 4 - TERM AND POSSESSION ............................................................................................... 7 ARTICLE 5 - RENT .................................................................................................................................. 8 ARTICLE 6 - SECURITY DEPOSIT ....................................................................................................... 9 ARTICLE 7 - TAXES AND OTHER EXPENSES ................................................................................... 9 ARTICLE 8 - MAINTENANCE AND REPAIR .................................................................................... 10 ARTICLE 9 - USE ................................................................................................................................... 11 ARTICLE 10 - HAZARDOUS MATERIALS ........................................................................................ 11 ARTICLE 11 - PARKING ....................................................................................................................... 12 ARTICLE 12 - TENANT SIGNS ............................................................................................................ 12 ARTICLE 13 - ALTERATIONS ............................................................................................................. 13 ARTICLE 14 - TENANT’S INSURANCE ............................................................................................. 15 ARTICLE 15 - LANDLORD’S INSURANCE ....................................................................................... 16 ARTICLE 16 - INDEMNIFICATION AND EXCULPATION .............................................................. 17 ARTICLE 17 - CASUALTY DAMAGE/DESTRUCTION .................................................................... 18 ARTICLE 18 - CONDEMNATION ........................................................................................................ 19 ARTICLE 19 - WAIVER OF CLAIMS; WAIVER OF SUBROGATION............................................. 20 ARTICLE 20 - ASSIGNMENT AND SUBLETTING ........................................................................... 20 ARTICLE 21 - SURRENDER AND HOLDING OVER ........................................................................ 20 ARTICLE 22 - DEFAULTS .................................................................................................................... 21 ARTICLE 23 - REMEDIES OF LANDLORD ....................................................................................... 22 ARTICLE 24 - ENTRY BY LANDLORD .............................................................................................. 24 ARTICLE 25
- LIMITATION ON LANDLORD’S LIABILITY ........................................................... 24 ARTICLE 26 - SUBORDINATION ........................................................................................................ 24 ARTICLE 27 - ESTOPPEL CERTIFICATE ........................................................................................... 25 ARTICLE 28 - Intentionally Deleted....................................................................................................... 25 ARTICLE 29 - MORTGAGEE PROTECTION ..................................................................................... 25 ARTICLE 30 - QUIET ENJOYMENT ................................................................................................... 25 ARTICLE 31 - MISCELLANEOUS PROVISIONS ............................................................................... 25
EXHIBITS:
Exhibit A Site Plan of the Property
Exhibit B Notice of Lease Term Dates
Exhibit C Rules and Regulations
Exhibit D Estoppel Certificate
Exhibit E Technical Memorandum from Terraphase Engineering Inc.
Exhibit A - Page 2 of 51
1 742 Grayson/Berkeley Lease-10
THIS LEASE dated as of March __, 2021 for reference purposes is by and between 742 GRAYSON OWNER LLC, a Delaware limited liability company hereinafter referred to as "Landlord", and the CITY OF BERKELEY, a municipal corporation, hereinafter referred to as "Tenant".
ARTICLE 1 - LEASE SUMMARY AND PROPERTY SPECIFIC PROVISIONS
1.1 Landlord's Address: 742 Grayson Owner LLC
c/o REDCO Development
Four Embarcadero Center, Suite 1400
San Francisco, California 94111
Attention: Chris Freise
With copies to: REDCO Development
Four Embarcadero Center, Suite 1400
San Francisco, CA 94111
Attention: Elizabeth C. Trowbridge, Vice President of
Operations
Rent Payment by Mail: 742 Grayson Owner LLC
c/o REDCO Development
Four Embarcadero Center, Suite 1400
San Francisco, CA 94111
For payment of Rent by wire, electronic and ACH: Pursuant to separate instructions from Landlord.
1.2 Tenant's Address: City Manager’s Office
City of Berkeley
2180 Milvia Street
Berkeley, CA 94704
Attn: Darrin Rafferty
Telephone: 510-981-7000
Email: [email protected]
With a copy to: Dorothy Day House
c/o Robbi Montoya
PO Box 12701
Berkeley, CA 94712
Telephone: 510-228-7587
Email: [email protected]
1.3 Buildings: The two Buildings located on the Land and having a commonly known address as 742 Grayson Street, Berkeley, California 94710. Each building may be referred to as a “Building” and together as the “Buildings.”
1.4 Premises and Property: The “Premises” or “Property” means (i) both of the Buildings, including without limitation all space in the Buildings, (ii) the parcel(s) of land where the Building s are located (the “Land”), and (iii) the Exterior Areas (hereinafter defined). Attached hereto as Exhibit A is a site plan that shows a general outline of the Property.
1.5 City: The City of Berkeley, County of Alameda, State of California.
Exhibit A - Page 3 of 51
2 742 Grayson/Berkeley Lease-10
1.6 Commencement Date: The “Commencement Date” shall be the date of this Lease.
1.7 Term: The “Term” is the period of time starting on the Commencement Date and expiring on March 31, 2022, after which the tenancy shall convert to month to month until no later than September 30, 2022, subject to Landlord and Tenant each having the independent right to terminate such month -to- month tenancy on thirty (30) days prior written notice to the other party. The “Expiration Date” shall be March 31, 2022, subject to extension for a month-to-month basis as provided above, but in no event shall the Expiration Date be later than September 30, 2022. Notwithstanding the foregoing, Tenant shall have the right to terminate the Term of this Lease at any time after not less than thirty (30) days prior written notice to Landlord. Landlord may not terminate the Term prior to March 31, 2022, except due to Default by Tenant or in connection with any casualty or condemnation.
1.8 Monthly Base Rent: The “Monthly Base Rent” shall be $16,500.00 each month payable in advance by the first day of each month as provided in this Lease. Monthly Base Rent for any partial month shall be prorated on a daily basis.
1.9 Security Deposit: None.
1.10 Permitted Use: The “Permitted Use” shall be for the City, through its employees, agents, and cont ractors, to establish and operate a temporary homeless shelter at the Property, including the placement and use of recreational vehicles and portable toilet, showers, hand wash facilities in the parking area at the property , and for solid waste service , subject to the provisions set forth in this Lease and as permitted by law.
1.11 Parking: All of the existing parking spaces at the Property, subject to the terms of Article 11 of the Standard Lease Provisions.
1.12 Brokers: None.
1.13 Interest Rate: The lesser of: (a) Ten percent (10%) or (b) the maximum rate permitted by law in the State where the Property is located.
1.14 Insurance Amounts:
a. Commercial General Liability Insurance: General liability of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate. b. Commercial Automobile Liability Insurance: Limit of liability of not less than One Million Dollars ($1,000,000.00) per accident.
c. Worker’s Compensation and Employers Liability Insurance: W ith limits as mandated pursuant to the laws in the State in which the Property is located, or One Million Dollars ($1,000,000.00) per person and accident, whichever is greater. d. Umbrella Insurance: Limits of not less than Five Million Dollars ($ 5,000,000.00) per occurrence.
1.15 Tenant Improvements: The improvements installed by the Tenant in the Premises, if any.
1.16 Exterior Areas; Definitions; Tenant's Rights . During the Term, Tenant shall have the right to use, and subject to the Rules and Regulations referred to in Article 9 of the Standard Lease Provisions, those portions of the Property outside of the Buildings on the Property (the "Exterior Areas").
The Exterior Areas shall include all areas outside of the Buildings on the Property, including access ways, Exhibit A - Page 4 of 51
3 742 Grayson/Berkeley Lease-10
loading docks, ramps, drives and platforms and any passageways and service ways thereto, the parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas on the Property, fixtures, systems, decor, facilities and landscaping contained, maintained or used in connection with those areas, and shall be deemed to include any city sidewalks adjacent to the Property, any pedestrian walkway system, park or other facilities located on the Land and open to the general public.
1.17 Operating Expenses. Tenant shall not be required to pay or reimburse Landlord for real estate taxes for the Property or for Landlord’s insurance premiums and other costs and expenses incurred by Landlord in connection with ownership of the Property, except as provided in this Lease.
1.18 Utilities and Services.
a. Utilities. As used in this Lease, " Utilities Costs" shall mean all actual charges for utilities for water, sewer, gas (if applicable) and electricity for the Property. Tenant shall not be responsible for payment of the Utilities Costs except as hereinafter provided. At its sole cost, Tenant shall be responsible for arranging and contracting for telephone and any internet communication services for the Property. In no event shall Landlord be liable for any interruption or failure in the supply of any such utility or other services to Tenant. In no event shall any Rent owed Landlord under this Lease be abated by reason of the failure to furnish, delay in furnishing, unavailability or diminution in quality or quantity of any such utility or other services or interference with Tenant’s business operations as a result of any such occurrence; nor shall any such occurrence constitute an actual or constructive eviction of Tenant or a breach of an implied warranty by Landlord, except in the case of the gross negligence or willful misconduct of Landlord as hereinafter provided. Notwithstanding the foregoing, if any portion of the Premises become s unfit for occupancy because Landlord fails to provide water, sewer, gas, or electricity (individually or collectively, “Essential Services”) to the Premises (or any portion thereof) for a period in excess of three (3) business day, and the lack of such utility prevents Tenant from making reasonable use of the Premises (or any portion thereof) for the purpose intended by Tenant, then Tenant shall be entitled to a day-for- day abatement of Rent for each consecutive day (after such three (3) business day period that Landlord fails to deliver the utility. In addition, if (a) the Essential Service s are not restored within five (5) business days after such utility is interrupted; and (b) the lack of such Essential Services prevents Tenant from making reasonable use of the Premises (or any portion thereof) for the purpose intended by Tenant, then Tenant may immediately terminate this Lease and receive a pro-rata refund of that month’s rent payment as its sole and exclusive remedy.
b. Excess Utility Usage Costs. After the initial first six months of the Term, Landlord shall have the right to notify Tenant of Tenant’s excess usage of utilities at the Property resulting in Utilities Costs in excess of $2,500 per month.(“Excess Utility Usage”). The estimated amount of such excess Utilities Costs shall be referred to as the “Excess Utility Costs.” The parties shall negotiate in good faith to either require Tenant to increase the Monthly Base Rent to include the estimated amount of the Excess Utility Costs for the remainder of the Term or to have Tenant pay such Excess Utility Costs as additional rent on a monthly estimated basis within ten (10) days after receipt of a billing from Landlord. c. Intentionally Omitted.
d. Tenant’s Other Obligation to Maintain: At its expense, Tenant shall be responsible for the following during the Term of this Lease:
(1) General. Tenant shall clean and maintain in good order, condition, and repair and replace when necessary all interio r: (i) fixtures, walls, floors, carpets and ceilings; (ii) doors, interior plate glass, showcases (including cleaning both interior and exterior surfaces) of the Property; and (iii) all electrical facilities and all equipment (including all lighting fixtur es, lamps, bulbs, fans, vents, exhaust Exhibit A - Page 5 of 51
4 742 Grayson/Berkeley Lease-10
equipment and systems) for the Property; and (v) any automatic fire extinguisher equipment in or servicing the Buildings to as good of a condition that existed at the commencement of this Lease. (2) Windows and Doors . Tenant shall repair any damage to the interior and exterior windows and doors of the Buildings.
(3) Intentionally Omitted.
(4) Cleaning and Janitorial . Tenant shall arrange for all cleaning and janitorial service the Property, including without limitation, all cleaning standards recommended by any local, State or Federal authority or by the Center for Disease Control and Prevention to prevent or limit the transmission of COVID-19 and other viral pathogens, such as by way of example only frequent cleaning disinfecting areas touched surfaces, including bathrooms and maintaining daily records of the performance of such cleaning services.
e. Landlord’s Obligation to Maintain. Landlord shall maintain and repair, but not replace, the roof and roof membrane, the exterior walls, and the structural portions of the Property, and subject to the obligations of Tenant under the provisions of this Lease. Landlord shall repair plumbing, utility, and/or sewer lines and mains which service the Premises, except for any damage caused by Tenant, any of Tenant Parties or any of Tenant’s occupants at the Premises in which case Tenant, at its expense, shall make such repair. If the replacement of the roof, roof membrane, exterior walls, or structural portions of the Premises or plumbing, utility or sewer lines and mains is required and Landlord does not agree in its discretion to perform such work, then Tenant, as its sole and exclusive remedy, shall have the right to terminate this Lease upon prior written notice to Landlord if the failure to perform such work renders the Premises untenantable for Tenant’s permitted use under this Lease. f. Management and Security. At its sole cost and expense, Tenant shall be responsible for the management of the Property and for pr oviding security at the Property. Tenant acknowledges and agrees that the operation of a homeless shelter requires constant monitoring and security personnel 24 hours a day, seven days a week. Tenant shall contract with third party vendors to perform all management security service for the Property 24 hours a day, seven days a week. Such security service shall include coverage for all areas of the Property. Under no circumstances shall Landlord be responsible or liable for any damage to any property or injury or death to any person at or about the Property except for the gross negligence or intentional misconduct of Landlord.
g. Trash Removal. At its expense, Tenant shall contract for the removal of all trash and refuse from the Property on no less than a weekly basis. If necessary, Landlord will arrange for the removal of bulk trash deposited outside of the perimeter fencing around the Propert y on a periodic basis as determined by Landlord. Landlord will pay for the cost of removal of such trash, except to the extent it is determined that the trash has been deposited by Tenant or any occupants or users at the Property, in which case Tenant shall be responsible for the removal of such trash.
1.19 Additional Hazardous Materials Requirements. In addition to Tenant's obligations under Article 10 of the Standard Lease Provisions, Tenant shall comply with the following provisions with respect to Hazardous Materials (as that term is defined in Article 10):
a. Environmental Questionnaire; Disclosure. Prior to the execution of the lease and not more than once every year thereaf ter, Tenant shall complete, execute and deliver to Landlord an environmental questionnaire and disclosure statement (the "Environmental Questionnaire") in the form required by Landlord, and Tenant shall certify to Landlord all information contained in the Environmental Questionnaire as true and correct to the best of Tenant's knowledge and belief. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord Exhibit A - Page 6 of 51
5 742 Grayson/Berkeley Lease-10
shall be entitled to rely fully on the information contained therein. Such Environmental Questionnaire shall include the names and amounts of all Hazardous Materials, or any combination thereof, if any, that that Tenant intend s to store, generate, use or dispose of on, under or about the Premises through the next Disclosure Date. In addition to the foregoing, Tenant shall promptly notify Landlord of, and shall promptly provide Landlord with true, correct, complete and legible copies of, all of the following environmental items relating to the Premises: reports filed pursuant to any self -reporting requirements; reports filed pursuant to any Environmental Laws or this Lease; all permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices, and all other reports, disclosures, plans or documents (even those that may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, underground storage tanks or Hazardous Materials; all orders, reports, notices, listings and correspondence (even those that may be considered confidential) of or concerning the release, investigation, compliance, clean up, remedial and corrective actions, and abatement of Hazardous Materials whether or not required by Environmental Laws; and all complaints, pleadings and other legal documents filed against Tenant related to Tenant's use, handling, storage or disposal of Hazardous Materials; provided, however, that Tenant shall have no responsibility under this paragraph to disclose, report on, or complete any Environmental Questionnaire regarding any environmental condition that existed on the Property prior to the commence ment of the Lease, or regarding any discharge, release, disposal, migration, investigation, remediation, or abatement of any Hazardous Materials or pollutants that were used or deposited on the Property or that migrated onto the Property prior to the commence of the Lease or as the result of the acts or omission of any third party. b. Inspection; Compliance. Landlord and Landlord Parties (as that term is defined in Article 10) shall have the right in its sole discretion, but not the obligation, to inspect, investigate, test, sample and/or monitor the Premises, including any air, soil, water, groundwater or other sampling, and any other testing, digging, drilling or analyses or other study or test, including any invasive test at the Premises, at any time following prior written notice to Tenant (a minimum of twenty -four (24) hours except in the case of emergency) . Tenant shall provide Landlord with access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the provisions of this Section 1.19 and Article 10, or in the event of a release of any Hazardous Materials on, under, from or about the Premises, Landlord and Landlord Parties shall have the right, but not the obligation, without limitation on any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises and to discharge Tenant's obligations under this Section 1.19 and Article 10 at Tenant's expense, including without limitation the taking of emergency or long term remedial action. Landlord and Landlord Parties shall endeavor to minimize interference with Tenant's business but shall not be liable for any such interference. In addition, Landlord shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims or causes of action arising out of the storage, generation, use or disposal by Tenant or Tenant's Parties of Hazardous Materials on, under, from or about the Premises Landlord agrees that if any testing proves that the Tenant or Tenant's Parties have no responsibility for the presence of said Hazardous Materials, Tenant shall not be liable for any costs or expenses in connection with such inspection, testing and monitoring.
c. Tenant Obligations. If the presence of any Hazardous Materials on, under or about the Premises caused or permitted by Tenant or Tenant's Parties results in (i) injury to any person, (ii) injury to or contamination of the Premises, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its sole cost and expense, shall promptly take all actions necessary to return the Premises to the condition existing prior to the introduction of such Hazardous Materials to the Premises and to remedy or repair any such injury or contamination. Without limiting any other rights or remedies of Landlord under this Lease, Tenant shall pay the cost of any cleanup work performed on, under or about the Premises as required by this Lease or any Environmental Laws in connection with the remov al, disposal, neutralization or other treatment of such Hazardous Materials caused or permitted by Tenant or Tenant's Parties. If Landlord has reason to believe that Tenant or Tenant's Parties may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, then Landlord may require Exhibit A - Page 7 of 51
6 742 Grayson/Berkeley Lease-10
Tenant, at Tenant's sole cost and expense, to conduct monitoring activities on or about the Premises satisfactory to Landlord, in its sole and absolute judgment, concerning such release of Hazardous Materials on, under, from or about the Premises. Notwithstanding anything to the contrary contained in the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Haz ardous Materials on, under or about the Premises, or enter into any settlement agreement, consent decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided, however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises (i) poses an immediate threat to the health, safety or welfare of any individual, or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. Tenant's failure to timely comply with this Section 1.19 shall constitute an event of default under this Lease.
Notwithstanding any provision in this Lease to the contrary, in no event shall Tenant be liable to Landlord for any Hazardous Materials stored, released, or disposed of on, under or about the Premises prior to the Commencement Date by anyone other than the Tenant or any of Tenant Parties, or for any contamina tion due to Hazardous Materials on, under or about the Premises before, during, and after the Commencement Date that was not caused by Tenant or any Tenant Parties. d. Tenant's Responsibility at Conclusion of Lease. Promptly upon the expiration or sooner termination of this Lease, Tenant shall represent to Landlord in writing that (i) Tenant has made a diligent effort to determine whether any Hazardous Materials are on, under or about the Premises, as a result of any acts or omissions of Tenant or Tenant's Parties and (ii) no such Hazardous Materials exist on, under or about the Premises, other than as specifically identified to Landlord by Tenant in writing or that existed on the Property prior to the commencement of the Lease . If Tenant or any of Tenant Parties caused or permitted the storage, release or disposal of any Hazardous Materials on, under, from or about the Premises during the Term of this Lease, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord within thirty (30) days after such request a comprehensive plan, subject to Landlord's approval, specifying the actions to be taken by Tenant to return the Premises to the condition existing prior to the introduction of such Hazardous Materials by Tenant or any of Tenant Partie s. Upon Landlord's approval of such clean up plan, Tenant shall, at Tenant's sole cost and expense, without limitation on any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to clean up such Hazardous Materials in accordance with all Environmental Laws and as required by such plan and this Lease.
[REST OF PAGE INTENTIONALLY BLANK]
Exhibit A - Page 8 of 51
7 742 Grayson/Berkeley Lease-10
STANDARD LEASE PROVISIONS
ARTICLE 2 - LEASE
2.1 Lease Elements; Definitions; Exhibits. The Lease is comprised of the Lease Summary and Property Specific Provisions (the " Summary"), these Standard Lease Provisions (" Standard Lease Provisions") and all exhibits attached hereto (collectively, " Exhibits"), all of which are incorporated together as part of one and the same instrument. All references in any such documents and instruments to "Lease" means the Summary, these Standard Lease Provisions and all Exhibits attached hereto. All terms used in this Lease shall have the meanings ascribed to such terms in the Summary, the se Standard Lease Provisions and any Exhibits. To the extent of any inconsistency between the terms and conditions of the Summary, these Standard Lease Provisions, or any Exhibits attached hereto, the Summary and any Exhibits attached hereto shall control over these Standard Lease Provisions.
ARTICLE 3 - PREMISES
3.1 Lease of Premises . Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises, upon and subject to, the terms, covenants and conditions of this Lease. Each party covenants and agrees, as a material part of the consideration for this Lease, to keep and perform their respective obligations under this Lease.
3.2 Landlord's Reserved Rights. L andlord reserves the right from time to time , and upon reasonable prior written notice to Te nant, to do any of the following: (a) make any changes, additions, improvements, maintenance, repairs or replacements in or to the Property if required to do so by any applicable Laws or to the extent necessary in conjunction with any improvements to the Property; (b) close temporarily any areas of the Property while engaged in making repairs, improvements or alterations to the Property; and ( c) perform such other acts and make such other changes with respect to the Property, as Landlord may, in the exercise of good faith business judgment, deem to be appropriate. If Landlord is required to reconfigure the Premises as a result of Landlord’s exercise of its rights under this Section 3.2, Landlord shall provide Tenant with reasonable advance written notice of the construction schedule to the extent that the Premises are affected, and Landlord shall endeavor to minimize, as reasonably practicable, the interference with Tenant’s business as a result of any such construction. All measurements of rentable area in this Lease shall be deemed to be correct.
ARTICLE 4 - TERM AND POSSESSION
4.1 Term; Notice of Lease Dates. The Term shall be for the period designated in the Summary commencing on the Commencement Date and ending on the Expiration Date, unless the Term is sooner terminated or extended as provided in this Lease. If the Commencement Date falls on any day other than the first day of a calendar month then the Term will be measured from the first day of the month following the month in which the Commencement Date occurs. Within ten (10) days after Landlord's written request, Tenant shall execute a written confirmation of the Commencement Date and Expiration Date of the Term in the form of the Notice of Lease Term Dates attached hereto as Exhibit B. The Notice of Lease Term Dates shall be binding upon Tenant unless Tenant reasonably objects thereto in writing within such ten (10) day period. The failure or dela y by Landlord to request such confirmation or the failure or delay by Tenant to execute and deliver such confirmation shall not delay the Commencement Date or the date Tenant must commence the payment of Rent.
4.2 Possession. Tenant acknowledges it will accept possession of the Premises in its then as- is condition, subject to any latent and patent defects, without the construction of any improvements or the grant of any allowances or concessions of any kind. Notwithstanding the foregoing, Tenant will not be Exhibit A - Page 9 of 51
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entitled to possession of the Premises until Landlord has received from Tenant all of the following: (i) a copy of this Lease fully executed by Tenant; (ii) the first installment of Monthly Base Rent due under this Lease; and (iii) copies of Tenant's insurance certificates as required hereund er; however, any delay in Tenant’s possession under this sentence shall not delay the date by which Tenant must pay Rent or the Commencement Date.
4.3 Condition of Premises. Pursuant to Section 1938 of the California Civil Code, Landlord hereby advises Tenant that as of the date of this Lease the Premises have not undergone inspection by a Certified Access Specialist. Further, pursuant to Section 1938 of the California Civil Code, Landlord notifies Tenant of the following: “A Certified Access Specialist (CASp) can inspect the Premises and determine whether the Premises comply with all of the applicable construction -related accessibility standards under state law. Although California state law does not require a CASp inspection of the Premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the Premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of any such CASp inspection, the payment of the costs and fees for the CASp inspection and the cost of making any repairs necessary to correct violations of construction- related accessibility standards within the Premises.” Therefore and notwithstanding anything to the contrary contained in this Lease, Landlord and Tenant agree that (a) Tenant may, at its option and at its sole cost, cause a CASp to inspect the Premises and determine whether the Premises complies with all of the applicable construction-related accessibility standards under California law, (b) the parties shall mutually coordinate and reasonably approve of the timing of any such CASp inspection so that Landlord may, at its option, have a representative present during such inspection, and (c) Tenant shall be solely responsible for the cost of any repairs necessary to correct violations of construction-related accessibility standards within the Premises, in any Building or at the Property identified by any such CASp inspection, any and all such alterations and repairs within the Premises to be performed by Tenant in accordance with Article 13 of this Lease and if any alterations and repairs to other portions of the Build ing or the Property are required as a result of Tenant’s CASp inspection then Tenant shall reimburse Landlord upon demand, as Additional Rent, for the cost to Landlord of performing such alterations and repairs; provided, however, unless such repair or alterations relate solely to other alterations to the Premises w hich Tenant is obligated to, or elects to, remove upon the expiration or earlier termination of the Lease Term (in which case Tenant shall simultaneously also remove any CASp identified alterations and repairs), Tenant shall have no obligation to remove any repairs or alterations made pursuant to a CASp inspection under this Section 4.3.
ARTICLE 5 - RENT
5.1 Monthly Base Rent. Tenant agrees to pay Landlord, the Monthly Base Rent as designated in the Summary. Monthly Base Rent shall be paid by Tenant in advance on the first day of each and every calendar month ("Due Date") during the Term, except that the first full month's Monthly Base Rent shall be paid upon Tenant's execution and delivery of this Lease to Landlord. Monthly Base Rent for any partial month shall be prorated in the proportion that the number of days this Lease is in effect during such month bears to the actual number of days in such month.
5.2 Additional Rent. All amounts and charges payable by Tenant under this Lease in addition to Monthly Base Rent, if a ny, to the extent payable by Tenant under this Lease shall be considered "Additional Rent", and the word " Rent" in this Lease shall include Monthly Base Rent and all such Additional Rent unless the context specifically states or clearly implies that only Monthly Base Rent is referenced. Rent shall be paid to Landlord, without any prior notice or demand therefor and without any notice, deduction or offset, in lawful money of the United States of America.
5.3 Late Charges & Interest Rate. If Landlord does not receive Rent or any other payment due from Tenant within five (5) business days after the Due Date, Tenant shall pay to Landlord a late Exhibit A - Page 10 of 51
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charge equal to five percent (5%) of such past due Rent or other payment. Tenant agrees that this late charge represents a fair and reasonable estimate of the cost Landlord will incur by reason of Tenant’s late payment. Accepting any late charge shall not constitute a waiver by Landlord of Tenant’s default with respect to any overdue amount nor prevent Landlord from exercising any other rights or remedies available to Landlord. If any installment of Monthly Base Rent or Additional Rent, or any other amount payable by Tenant hereunder is not received by Landlord within five (5) business days after the Due Date, it shall bear interest at the Interest Rate set forth in the Summary from the sixth day after the Due Date until paid. All interest, and any late charges imposed pursuant to this Section 5.3, shall be considered Additional Rent due from Tenant to Landlord under the terms of this Lease.
ARTICLE 6 - SECURITY DEPOSIT
Intentionally Deleted.
ARTICLE 7 - TAXES AND OTHER EXPENSES
7.1 Taxes. As used in this Lease, the term " Taxes" means: All real property taxes and assessments, possessory interest taxes, sales taxes, perso nal property taxes, business or license taxes or fees, gross receipts taxes, license or use fees, excises, transit charges, and other impositions of any kind (including fees "in -lieu" or in substitution of any such tax or assessment) which are now or herea fter assessed, levied, charged or imposed by any public authority upon the Building, Land , Property and/or Premises or any portion thereof, its operations or the Rent derived therefrom (or any portion or component thereof, or the ownership, operation, or t ransfer thereof), and any and all costs and expenses (including, without limitation, reasonable attorneys' fees) incurred in attempting to protest, reduce or minimize the same. Taxes shall not include penalties or interest arising from Landlord’s late payment of Taxes as they are due and payable, inheritance or estate taxes imposed upon or assessed against the interest of Landlord, gift taxes, excess profit taxes, franchise taxes, or similar taxes on Landlord's business or any other taxes computed upon the basis of the net income of Landlord. If it shall not be lawful for Tenant to reimburse Landlord for any such Taxes, the Monthly Base Rent payable to Landlord under this Lease shall be revised to net Landlord the same net rent after imposition of any such Taxes by Landlord as would have been payable to Landlord prior to the payment of any such Taxes. Tenant shall pay for or contribute to Taxes as provided in the Summary. Notwithstanding anything herein to the contrary, Tenant shall be liable for all taxe s levied or assessed against personal property, furniture, fixtures, above- standard Tenant Improvements and alterations, additions or improvements placed by or for Tenant in the Premises.
Furthermore, Tenant shall pay prior to delinquency any (i) rent tax or sales tax, service tax, transfer tax or value added tax, or any other applicable tax on the rent or services provided herein or otherwise respecting this Lease, (ii) taxes assessed upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion of the Property; or (iii) taxes assessed upon this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Premises.
7.2 Insurance Costs. As used in this Lease, " Insurance Costs" means the cost of insurance obtained by Landlord pursuant to Article 15 (including self -insured amounts and deductibles, if any).
Tenant shall pay for or contribute to Insurance Costs as provided in the Summary.
7.3 Interruption of Utilities. Landlord shall have no liability to Tenant for any interruption in utilities or services to be provided to the Premises when such failure is caused by all or any of the following: (a) accident, breakage or repairs; (b) strikes, lockouts or other labor disturbances or labor disputes of any such character; (c) governmental regulation, moratorium or other governmental action; (d) inability, despite the exercise of reasonable diligence, to obtain electrici ty, water or fuel; (e) service interruptions or any other unavailability of utilities resulting from causes beyond Landlord's control Exhibit A - Page 11 of 51
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including without limitation, any electrical power "brown- out" or "black- out"; or (f) any other cause beyond Landlord's re asonable control. In addition, in the event of any such interruption in utilities or services, Tenant shall not be entitled to any abatement or reduction of Rent (except as expressly provided in Articles 17 and 18 if such failure is a result of any casual ty damage or taking described therein), no eviction of Tenant shall result, and Tenant shall not be relieved from the performance of any covenant or agreement in this Lease. In the event of any stoppage or interruption of services or utilities which are not obtained directly by Tenant, Landlord shall diligently attempt to resume such services or utilities as promptly as practicable. Tenant hereby waives the provisions of any applicable existing or future Law, ordinance or governmental regulation permitting the termination of this Lease due to an interruption, failure or inability to provide any services (including, without limitation, the provisions of California Civil Code Section 1932(1)).
ARTICLE 8 - MAINTENANCE AND REPAIR
8.1 Landlord's Repair Obligations. As provided in Section 1.18(e), Landlord shall maintain and repair the roof and roof membrane, the exterior walls, and the structural portions of the Property, and subject to the obligations of Tenant under the provisions of this Lease. Landlord shall repair plumbing, utility, and/or sewer lines and mains which service the Premises. Tenant waives the right to make repairs at Landlord's expense under any applicable Laws (including, without limitation, to the extent the Premises are located in California, the provisions of California Civil Code Sections 1941 and 1942 and any successor statutes or laws of a similar nature).
8.2 Tenant's Repair Obligations. Except for Landlord's obligations specifically set forth in Section 8.1 above, Tenant shall at all times and at Tenant's sole cost and expense, keep, maintain, clean, repair, preserve and replace, as necessary, the Premises, Building s and Property and all parts thereof including, without limitation, all Exterior Areas, Tenant Improvements, Alterations, and all f urniture, fixtures and equipment, including, without limitation, all computer, telephone and data cabling and equipment, Tenant's signs, if any, door locks, closing devices, security devices, interior of windows, window sashes, casements and frames, floors and floor coverings, shelving, kitchen, restroom facilities and/or appliances of any kind located within the Premises, if any, custom lighting, and any additions and other property located within the Premises, and all landscaping and paving at the Property so as to keep all of the foregoing elements of the Property in good condition and repair, reasonable wear and tear and casualty damage excepted. Tenant shall replace, at its expense, any and all plate and other glass in and about the Building which is damaged or broken from any cause whatsoever except due to the negligence or willful misconduct of Landlord, its agents or employees. Such maintenance and repairs shall be performed with due diligence, lien -free and in a first -class and workmanlike manner, by licensed contractor(s) that are selected by Tenant and approved by Landlord, which approval Landlord shall not unreasonably withhold, conditioned or delay. If Tenant refuses or neglects to repair and maintain the Premises, Building or Property properly as required hereunder to the reasonable satisfaction of Landlord, then at any time following ten (10) days from the date on which Landlord makes a written demand on Tenant to effect such repair and maintenance, Landlord may enter upon the Premises, Building or Property, upon prior written notice to Tenant (a minimum of twenty-four (24) hours except in the case of emergency), and make such repairs and/or maintenance. U pon completion thereof, Tenant agrees to pay to Landlord as Additional Rent, Landlord's costs for making such repairs plus an amount not to exceed ten percent (10%) of such costs for overhead, within ten (10) days after receipt from Landlord of a written itemized bill therefor. Any amounts not reimbursed by Tenant within such ten (10) day period will bear interest at the Interest Rate until paid by Tenant.
Exhibit A - Page 12 of 51
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ARTICLE 9 - USE
Tenant shall procure, at its sole cost and expense, any and all permits required by applicable Law for Tenant’s use and occupancy of the Premises. Tenant shall use the Premises solely for the Permitted Use specified in the Summary, and shall not use or permit the Premises to be used for any other use or purpose whatsoever without Landlord’s prior written approval. Tenant shall observe and comply with the Rules and Regulations attached hereto as Exhibit C , as the same may be modified by Landlord from time to time, provided that said Rules and Regulations including any amendments (a) are reasonable; (b) are non-discriminatory; (c) do not materially and adversely affect Tenant’s Permitted Use of the Premises; and (d) shall be provided to Tenant at least fifteen (15) days prior to enactment. Tenant shall, at its sole cost and expense, observe and comply with all Laws and all requirements of any board of fire underwriters or similar body relating to the Premises now or hereafter in force relating to or affecting the condition, use, occupancy, or alteration or improvement of the Premises (whether, except as otherwise provided herein, structural or nonstructural, including unforeseen and/or extraordinary alterations and/or improvements to the Premises and regardless of the period of time remaining in the Term). Tenant shall not use or allow the Premises to be used for any improper, unlawful or reasonably objectionable purpose. Tenant shall not cause, maintain or permit any nuisance in, on or about the Premises, the Building or the Property, nor commit or suffer to be committed any waste in, on or about the Premises. Without limiting the foregoing, Tenant is prohibited from engaging or permitting others to engage in any activity which would be a violation of any state and/or federal laws relating to the use, sale, possession, cultivation and/or distribution of any controlled substances (whether for commercial or personal purposes) regulated under any applicable law or other applicable law relating to the medicinal use and/or distribution of marijuana (otherwise known as the Compassionate Use Act of 1996) (“Prohibited Drug Law Activities”).
ARTICLE 10 - HAZARDOUS MATERIALS
As used in this Lease, the term "Environmental Law(s)" means any past, present or future federal, state or local Law relating to (a) the environment, human health or safety, including, without limitation, emissions, discharges, releases or threatened releases of Hazardous Materials (as defined below) into the environment (including, without limitation, air, surface water, groundwater or land), or (b) the manufacture, generation, refining, processing, distribution, use, sale, treatment, receipt, storage, disposal, transport, arranging for transport, or handling of Hazardous Materials. As used in this Lease, the term " Hazardous Materials" means and includes any hazardous or toxic materials, substances or wastes as now or hereafter designated or regulated under any Environmental Laws including, without limitation, asbestos, petroleum, petroleum hydrocarbons and petroleum based products, urea formaldehyde foam insulation, polychlorinated biphenyls (" PCBs"), and freon and other chlorofluorocarbons. Except for ordinary and general office supplies, such as copier toner, liquid paper, glue, ink and common household cleaning materials, and motor vehicle fuel stored in fuel tanks of motor vehicles used on site in compliance with all Environmental Laws (some or all of which may constitute Hazardous Materials), Tenant agrees not to cause or permit any Hazardous Materials to be brought upon, stored, used, handled, generated, released or disposed of on, in, under or about any Building, the Exterior Areas or any other portion of the Property by Tenant, its agents, officers, directors, shareholders, members, managers, partners, employees, subtenants, assignees, licensees, contractors or invitees (collectively, "Tenant’s Parties "), without the prior written consent of Landlord, which consent Landlord may withhold in its sole and absolute discretion. Upon the expiration or earlier terminatio n of this Lease, Tenant agrees to promptly remove from the Premises, the Building and the Property, at its sole cost and expense, any and all Hazardous Materials, including any equipment or systems containing Hazardous Materials which are installed, brough t upon, stored, used, generated or released upon, in, under or about the Premises, the Building and/or the Property or any portion thereof by Tenant or any of Tenant's Parties. To the fullest extent permitted by law, Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord and Landlord's members, shareholders, partners, officers, directors, managers, employees, agents, contractors, successors and assigns (collectively, Exhibit A - Page 13 of 51
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"Landlord Parties") from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, clean- up, removal, remediation and restoration costs, sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees and court costs) which arise or result from the use, release, storage or disposal during the Term of the Lease by Tenant or any of Tenant Parties of Hazardous Materials on, in, under or about the Premises, the Building or any other portion of the Property. The provisions of this Article 10 will survive the expiration or earlier termination of this Lease. Tenant shall give Landlord written notice of any evidence of Mold, water leaks or water infiltration in the Premises promptly upon discovery of same. Tenant shall give Landlord written notice of any evidence of cracks in any B uilding’s concrete slabs which may result in a vapor intrusion pathway promptly upon discovery of same . Upon receipt of any such notice from Tenant under the preceding two sentences, Landlord shall have the right in its discretion to elect to make or not make the required repair to correct the condition. If Landlord elects not to make such repair, then Tenant as its sole and exclusive remedy may make the repair at Tenant’s expense or elect to terminate this Lease upon written notice to Landlord. Tenant shall make such election within thirty (30) days after notice from Landlord that Landlord will not be making the repair. Landlord has provided Tenant notification of ongoing environmental concerns on, in, under or about the Property related to petroleum hydrocarbons and chlorinated volatile or ganic compounds (CVOCs) detected in soil -vapor and groundwater samples at concentrations exceeding screening criteria established by the San Francisco Bay Regional Water Quality Control Board. Attached hereto as Exhibit E is a copy of the Technical Memoran dum dated February 9, 2021 from Terraphase Engineering Inc. outlining the ongoing environmental concerns on, in, under or about the Property. Landlord has notified Tenant that additional relevant documentation regarding the environmental status of the Property can be accessed using the publicly available GeoTracker website.
To the fullest extent permitted by law, Landlord agrees to promptly indemnify, protect, defend and hold harmless Tenant and Tenant’s subcontractors, officers, directors, shareholders, employees, agents, successors and assigns from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, clean- up, removal, remediation and restoration costs, sums paid in settlement of claims, attorneys’ fees, consultant fees and expert fees and court costs) which arise or result from the presence of environmental contamination and Hazardous Materials which existed on the Premises prior to Tenant’s occupancy in violation of applicable Law, or which are caused by the negligence or willful misconduct of Landlord or any of Landlord’s subcontractors, officers, directors, shareholders, employees, agents, successors and assigns before, during and after the Term or any extensions. The obligations of Landlord hereunder shall survive the expiration or termination of the Term or any extensions . The indemnification obligations of Landlord created by this section shall be in addition to the indemnification obligations set forth elsewhere herein or provided by applicable law.
ARTICLE 11 - PARKING
During the Term, Tenant shall be entitled to utilize the number of parking spaces specified in the Summary within the parking areas for the Property. Tenant's visitors shall be entitled to access to the parking areas on the Property designated for visitor use.
ARTICLE 12 - TENANT SIGNS
Tenant shall have the right to install and maintain, at Tenant’s sole cost and expense, one (1) sign (restricted solely to Tenant's name) on the exterior of the Building above the doorway to the Premises or such other location as may be reasonably determined by Landlord, subject to the provisions of this Article
12. Subsequent changes to Tenant's sign and/or any additional signs, to the extent permitted by Landlord herein, shall be made or installed at Tenant's sole cost and expense. All aspects of any such signs shall be subject to the prior written consent of Landlord (which shall not be unreasonably withheld), and shall be Exhibit A - Page 14 of 51
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per Landlord's standard specifications and materials, as revised by Landlord from time to time. Tenant shall have no right to install or maintain any other signs, banners, advertising, notices, displays, stickers, decals or any other logo or identification of any person, product or service whatsoever, in any location on or in the Property except as (i) shall have been expressly approved by Landlord in writing prior to the installation thereof (which approval may be granted or withheld in Landlord's sole and absolute discretion), (ii) shall not violate any signage restrictions or exclusive sign rights contained in any then existing leases with other tenants of the Property, if any, and (iii) are consistent and compatible with all applicable Laws, and the design, signage and graphics program from time to time implemented by Landlord with respect to the Property, if any. Landlord shall have the right to remove any signs or signage material installed without Landlord's permission, without being liable to Tenant by reason of such removal, and to charge the cost of removal to Tenant as Additional Rent hereunder, payable within ten (10) days after written demand by Landlord. Any additional sign rights of Tenant, if any, shall be as provided in the Summary.
ARTICLE 13 - ALTERATIONS
13.1 Alterations. After installation of the initial Tenant Improvements for the Premises, Tenant may, at its sole cost and expense, make alterations, additions, improvements and decorations to the Premises ("Alteration(s)") subject to and upon the following terms and conditions:
a. Tenant shall not make any Alterations which: (i) affect any area outside the Premises including the outside appearance, character or use of any portions of the Building or other portions of the Property; (ii) affect the Building's roof, roof membrane, any structural component or any base Building equipment, concrete slab, services or systems (including fire and life/safety systems), or the proper functioning thereof, or Landlord's access thereto; (iii) in the reasonable opinion of Landlord, lessen the value of the Building or the Property; (iv) will violate or require a change in any occupancy certificate applicable to the Premises; or (v) would trigger a legal requirement which would require Landlord to make any alteration or improvement to the Premises, Building or other aspect of the Property.
b. Tenant shall not make any Alterations not prohibited by Section 13.1(a), unless Tenant first obtains Landlord's prior written consent, which consent Landlord shall not unreasonably withhold, condition or delay, provided Landlord's prior approval shall not be required for any Alterations that is not prohibited by Section 13.1(a) above and is of a cosmetic nature that satisfies all of the following conditions (hereinafter a "Pre-Approved Alteration"): (i) the costs of such Alterations do not exceed $5,000; (ii) to the extent reasonably required by Landlord or by law due to the nature of the work being performed, Tenant delivers to Landlord final plans, specifications, working drawings, permits and approvals for such Alterations at least ten (10) days prior to commencement of the work thereof; (iii) Tenant and such Alterations otherwise satisfy all other conditions set forth in this Section 13.1; and (iv) the making of such Alterations will not otherwise cause a default by Tenant under any provision of this Lease. Tenant shall provide Landlord with ten (10) days' prior written notice before commencing any Alterations. In addition, before proceeding with any Alteration, Tenant's contractors shall obtain, on behalf of Tenant and at Tenant's sole cost and expense: (A) all necessary governmental permits and approvals for the commencement and completion of such Alterations, and (B) if the cost of such Alterations exceeds $ 50,000.00, a completion and lien indemnity bond, or other surety satisfactory to Landlord for such Alterations.
Landlord's approval of any plans, contractor(s) and subcontractor(s) of Tenant shall not release Tenant or any such contractor(s) and/or subcontractor(s) from any liability with respect to such Alterations and will create no liability or responsibility on Landlord's part concerning the completeness of such Alterations or their design sufficiency or compliance with Laws. c. All Alterations shall be performed: (i) in accordance with the approved plans, specifications and working drawings, if any; (ii) lien-free and in a first-class workmanlike manner; Exhibit A - Page 15 of 51
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(iii) in compliance with all building codes and Laws; (iv) in such a manner so as not to impose any additional expense upon nor delay Landlord in the maintenance and operation of the Building; (v) by licensed and bondable contractors, subcontractors and vendors selected by Tenant and reasonably approved by Landlord (provided Landlord reserves the right to require Tenant to utilize Landlord’s preferred contractors, subcontractors and vendors for certain work performed within the Premises or as to systems serving the Premises as approved by Landlord such as for fire/life safety, HVAC control work, architectural and engineering services), and (vi) at such times, in such manner and subject to such rules and regulations as Landlord may from time to time reasonably designate.
Tenant shall pay to Landlord, within ten (10) days after written demand, the costs of any increased insurance premiums incurred by Landlord to include such Alterations in the causes of loss – special form property insurance obtained by Landlord pursuant to this Lease, if Landlord elects in writing to insure such Alterations; provided, however, Landlord shall not be required to include the Alterations under such insurance. If the Alterations are not included in Landlord’s insurance, Tenant shall insure the Alterations under its causes of loss-special form property insurance pursuant to this Lease.
d. Tenant shall pay to Landlord, as Additional Rent, the reasonable costs of Landlord's engineers and other consultants for review of all plans, specifications and working drawings for the Alterations, within ten (10) business days after Tenant's receipt of invoices either from Landlord or such consultants. In addition to such costs, Tenant shall pay to Landlord, within ten (10) business days after completion of any Alterations, a construction supervision fee equal to five percent (5%) of the total cost of the Alterations and the actual, reasonable costs incurred by Landlord for any services rendered by Landlord's management personnel and engineers to coordinate and/or supervise any of the Alterations to the extent such services are provided in excess of or after the normal on-site hours of such engineers and management personnel. e. Throughout the performance of the Alterations, Tenant shall obtain, or cause its contractors to obtain, workers compensation insurance and commercial general liability insurance in compliance with the insurance provisions of this Lease.
13.2 Removal of Alterations . All Alterations and the initial Tenant Improvements in the Premises (whether installed or paid for by Landlord or Tenant), shall become the property of Landlord, to the extent that the Tenant Improvements cannot be removed with out damaging the Property. Tenant Improvements that are permanently affixed to the Property shall remain upon and be surrendered with the Premises at the end of the Term; provided, however, Landlord may, by written notice delivered to Tenant within thirty (30) days after Landlord's receipt of plans for any Alterations identify those Alterations which Landlord shall require Tenant to remove at the end of the Term. If Landlord requires Tenant to remove any such Alterations, Tenant shall, at its sole cost, remove the identified items on or before the expiration or sooner termination of this Lease and repair any damage to the Premises caused by such removal to its original condition (or, at Landlord's option, Tenant shall pay to Landlord all of Landlord's costs of such removal and repair).
13.3 Liens. Tenant shall not permit any mechanic's, materialmen's or other liens to be filed against all or any part of the Property or the Premises, nor against Tenant's leasehold interest in the Premises, by reason of or in conn ection with any repairs, alterations, improvements or other work contracted for or undertaken by Tenant or any of Tenant's Parties. If any such liens are filed, Tenant shall, at its sole cost, immediately cause such liens to be released of record or bonded so that such lien(s) no longer affect(s) title to the Property, the Building or the Premises. If Tenant fails to cause any such lien to be released or bonded within ten (10) days after filing thereof, Landlord may cause such lien to be released by any means it shall deem proper, including payment in satisfaction of the claim giving rise to such lien, and Tenant shall reimburse Landlord within five (5) business days after receipt of invoice from Landlord, Exhibit A - Page 16 of 51
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any sum paid by Landlord to remove such liens, together with interest at the Interest Rate from the date of such payment by Landlord.
ARTICLE 14 - TENANT’S INSURANCE
14.1 Tenant’s Insurance. On or before the earlier of the Commencement Date or the date Tenant commences or causes to be commenced any work of any type in the Premises, and continuing during the entire Term, Tenant shall obtain and keep in full force and effect, the following insurance with limits of coverage as set forth in Section 1.14 of the Summary:
a. Special Form (formerly known as "all risk") insurance, in cluding fire and extended coverage, sprinkler leakage, vandalism, malicious mischief upon property of every description and kind owned by Tenant and located at or about the Premises, or for which Tenant is legally liable or installed by or on behalf of Tenant including, without limitation, furniture, equipment and any other personal property, and any Alterations and initial tenant i mprovements previously existing or installed in the Premises, in an amount not less than the full replacement cost thereof. In the event that there shall be a dispute as to the amount which comprises full replacement cost, the decision of Landlord or the Mortgagees of Landlord shall be presumptive. b. Commercial general liability insurance coverage on an occurrence basis, including personal injury, bodily injury (including wrongful death), broad form property damage, operations hazard, owner’s protective coverage, contractual liability (including Tenant’s indemnification obligations under this Lease), liquor liability (if Tenant serv es alcohol on the Premises), products and completed operations liability. The limits of liability of such commercial general liability insurance may be increased every three (3) years during the Term upon reasonable prior notice by Landlord to an amount r easonably required by Landlord and appropriate for tenants of buildings comparable to the Building.
c. Commercial Automobile Liability covering all owned, hired and non-owned automobiles. d. Worker’s compensation, in statutory amounts and employers liability, covering all persons employed in connection with any work done in, on or about the Premises for which claims for death, bodily injury or illness could be asserted against Landlord, Tenant or the Premises. e. Umbrella liability insurance on an occurrence basis, in excess of and following the form of the underlying insurance described in Section 14.1.b. and 14.1.c. and the employer’s liability coverage in Section 14.1.d. which is at least as broad as each and ev ery area of the underlying policies. Such umbrella liability insurance shall include pay on behalf of wording, concurrency of effective dates with primary policies, blanket contractual liability, application of primary policy aggregates, and shall provide that if the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance, subject to customary commercially reasonable deductible amounts imposed on umbrella policies.
f. Any other form or forms of insurance as Tenant or Landlord or the Mortgagees of Landlord may reasonably require from time to time, in form, amounts and for insurance risks against which a prudent tenant of a building similar to the Building would protect itself, but only to the extent such risks and amounts are available in the insurance market at commercially reasonable costs.
14.2 Requirements. Each policy required to be obtained by Tenant hereunder shall: (a) be issued by insurers which are approved by Landlord and/or Landlord’s Mortgagees and are authorized to do business in the state of California (provided that, in any event, the same insurance company shall provide the coverages described in Sections 14.1.a. and 14.1.g. above); (b) be in form reasonably Exhibit A - Page 17 of 51
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satisfactory from time to time to Landlord; (c) name Tenant as named insured thereunder and shall name Landlord, Landlord’s property manager and lender and, at Landlord’s request, such other persons or entities of which Tenant has been informed in writing, as additional insureds thereunder, all as their respective interests may appear; (d) not have a deductible amount exceeding Three Hundred and Fifty Dollars ($ 350,000.00), which deductible amount shall be deemed self -insured with full waiver of subrogation; (e) specifically provide that the insurance afforded by such policy for the benefit of Landlord and any other additional insureds shall be primary, and any insurance carried by Landlord or any other additional insureds shall be excess and non-contributing; (f) require the insurer to notify Landlord and any other additional insureds in writing not less than thirty (30) days prior to any material change, reduction in coverage, cancellation or other termination thereof; ( g) allows a cross liability or severability of interest endorsement; and (h) be in amounts sufficient at all times to satisfy any coinsurance requirements thereof.
Tenant agrees to deliver to Landlord, as soon as practicable after the placing of the required insurance, but in no event later than the date Tenant is required to obtain such insurance as set forth in Section 14.1 above, certificates from the insurance company evidencing the existence of such insurance and Tenant’s compliance with the foregoing provisions of this Article 14. Tenant shall cause replacement certificates to be delivered to Landlord not less than ten (10) days after the expiration of any such policy or policies.
If any such initial or replacement certificates are not furnished within the time(s) specified herein, Landlord shall have the right, but not the obligation, to procure such policies and certificates at Tenant’s expense.
14.3 Effect on Insurance . Tenant shall not do or permit to be done anything which will (a) violate or invalidate any insurance policy or coverage maintained by Landlord or Tenant hereunder, or (b) increase the costs of any insurance policy maintained by Landlord. If Tenant’s occupancy or conduct of its business in or on the Premises results in any increase in premiums for any insurance carried by Landlord with respect to the Building or the Property, Tenant shall either discontinue the activities affecting the insurance or pay such increase as Additional Rent within ten (10) days after being billed therefor by Landlord. If any insurance coverage carried by Landlord pursuant to this Lease or otherwise with respect to the Building or the Property shall be cancelled or reduced (or cancellation or reduction thereof shall be threatened) by reason of the use or occupancy of the Premises other than as allowed by the Permitted Use by Tenant or by anyone permitted by Tenant to be upon the Premises, and if Tenant fails to remedy such condition within five (5) business days after notice thereof, Tenant shall be deemed to be in default under this Lease and Landlord shall have all remedies provided in this Lease, at law or in equity, including, without limitation, the right (but not the obligation) to enter upon the Premises and attempt to remedy such condition at Tenant’s cost.
ARTICLE 15 - LANDLORD’S INSURANCE
During the Term, Landlord shall maintain property insurance written on a Special Form (formerly known as "all risk") basis covering the Property and the Building (excluding, however, Tenant's furniture, equipment and other personal property and Alterations, unless Landlord otherwise elects to insure the Alterations pursuant to Section 13.1 above) against damage by fire and standard extended coverage perils and with vandalism and malicious mischief endorsements, rental loss coverage, earthquake damage coverage (at Landlord's option), and such additional coverage as Landlord deems appropriate. Landlord shall also carry commercial general liability in such reasonable amounts and with such reasonable deductibles as would be carried by a prudent owner of a similar building in the state in which the Building is located. At Landlord's option, all such insurance may be carried under any blanket or umbrella policies that Landlord has in force for other buildings and projects. In addition, at Landlord's option, Landlord may elect to self -insure all or any part of such required in surance coverage. Landlord may, but shall not be obligated to carry any other form or forms of insurance as Landlord or the Mortgagees or ground lessors of Landlord may reasonably determine is advisable. The cost of insurance obtained by Landlord pursuant to this Article 15 (including self-insured amounts and deductibles) shall be included in Insurance Costs, except that any increase in the premium for the property insurance attributable to the replacement cost of the Tenant Exhibit A - Page 18 of 51
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Improvements in excess of Building standard shall not be included as Insurance Costs, but shall be paid by Tenant within thirty (30) days after invoice from Landlord.
ARTICLE 16 - INDEMNIFICATION AND EXCULPATION
16.1 Tenant's Assumption of Risk and Waiver . Except to the extent such matter is attributable to the negligence or willful misconduct of Landlord, Landlord and Landlord Parties shall not be liable to Tenant, or any of Tenant’s Parties, and Tenant hereby releases Landlord and Landlord Parties, from and against any of the following: (i) any damage to property of Tenant, or of others, located in, on or about the Premises, (ii) the loss of or damage to any property of Tenant or of others by theft or otherwise, (iii) any injury or damage to persons or property resulting from fire, explosion, falling c eiling tiles masonry, steam, gas, electricity, water, rain or leaks from any part of the Premises or from the pipes, appliance of plumbing works or from the roof, street or subsurface or from any other places or by dampness or by any other cause of whatsoever nature, (iv) any such damage caused by other tenants or persons in the Premises, occupants of any other portions of the Property, or the public, or caused by operations in construction of any private, public or quasi -public work, (v) any interruption of utilities and services , or (vi) any environmental condition on, in, under or around the Property, including matters disclosed in Exhibit E attached hereto or otherwise publicly available to Tenant , except as otherwise provided in this Lease. Landlord shall in no event be liable to Tenant or any other person for any consequential damages, special or punitive damages, or for loss of business, revenue, income or profits and Tenant hereby waives any and all claims for any such damages. Notwithstanding anything to the contrary contained in this Section 16.1, all property of Tenant and Tenant’s Parties kept or stored on the Premises, whether leased or owned by any such parties, shall be so kept or stored at the sole risk of Tenant and Tenant shall hold Landlord harmless from any claims arising out of damage to the same, including subrogation claims by Tenant's insurance carriers. Landlord or its agents shall not be liable for interference with light or other intangible rights.
16.2 Tenant's Indemnification. Tenant shall be liable for, and shall indemnify, defend, protect and hold Landlord and the Landlord Parties harmless from and against, any and all claims, damages, judgments, suits, causes of action, losses, liabilities and expenses, including, without limitation, attorneys' fees and court costs (collectively, "Indemnified Claims"), arising or resulting from (a) any occurrence in the Premises following the date Landlord delivers possession of all or any portion of the Premises to Tenant, except to the extent caused by the negligence or willful misconduct of Landlord, (b) any act or omission of Tenant or any of Tenant's Parties; (c) the use of the Building and the Property and conduct of Tenant's business by Tenant or any of Tenant's Parties, or any other activity, work or thing done, permitted or suffered by Tenant or any of Tenant's Parties, in or about the Premises, the Building or elsewhere on the Property; and (d) any default by Tenant as to any obligations on Tenant's part to be performed under the terms of this Lease or the terms of any contract or agreement to which Tenant is a party or by which it is bound, affecting this Lease or the Premises .. The foregoing indemnification shall include, but not be limited to, any injury to, or death of, any person, or any loss of, or damage to, any property on the Premises, or on adjoining sidewalks, streets or ways, connected with the use, condition or occupancy thereof, whether or not Landlord or any Landlord Parties has or should have knowledge or notice of the defect or conditions causing or contributing to such injury, death, loss or damage. In case any action or proceeding is brought against Landlord or any Landlord Parties by reason of any such Indemnified Claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by counsel approved in writing by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant’s indemnification obligations under this Section 16.2 and elsewhere in this Lease shall surv ive the expiration or earlier termination of this Lease. Tenant's covenants, agreements and indemnification in Section 16.1 and this Section 16.2 are not intended to and shall not relieve any insurance carrier of its obligations under policies required to be carried by Tenant pursuant to the provisions of this Lease.
Exhibit A - Page 19 of 51
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16.3 Landlord’s Indemnification. Except for the gross negligence or willful misconduct of Tenant and/or any of the Tenant's Parties (as hereinafter defined), Landlord shall indemnify and hold harmless Tenant and Tenant's officers, agents, employees, partners, successors, and assigns (collectively, the "Tenant Parties") from and against any and all claims arising from Landlord's use of the Premises in the performance of any repairs or maintenance required of Landlord under this Lease, or from the conduct of Landlord's business or from any activity, work, or things done by Landlord in, on, or about the Premises, and shall further indemnify and hold harmless the Tenant Parties from and against any and all claims arising from any breach or default in the performance of any obligation on Landlord's part to be performed under the terms of this Lease, or arising from any negligence of the Landlord, the Landlord Parties, or any of Landlord's agents, contractors, or employees, and from and against all cost, attorneys' fees, expenses, and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon; and in case any action or proceeding shall be brought against Tenant by reason of any such claim, Landlord, upon notice from Tenant, shall defend the same at Landlord's expense by counsel satisfactory to Tenant.
ARTICLE 17 - CASUALTY DAMAGE/DESTRUCTION
17.1 Landlord's Rights and Obligations. If the Premises or any Building is damaged by fire or other casualty (“Casualty”) Landlord may elect it is sole and absolute discretion to either (a) terminate this Lease upon written notice to Tenant, or (b) elect to restore the damaged area to a condition acceptable to Landlord. If this Lease is not terminated due to such Casualty, then Landlord shall repair, reconstruct and restore the portion of the Premises or Building, excluding any improvements and Alterations made by Tenant or for any of Tenant’s property. At its expense, Tenant shall be responsible for the repair, reconstruction and restoration of the Tenant ’s improvements, Alterations and personal property. Under any of the conditions of this Section 17.1, Landlord shall give written notice to Tenant of the estimated time for Landlord to restore the damage within the later of sixty (60) days after the occurrence of such Casualty, or fifteen (15) days after Landlord's receipt of the estimate from Landlord's contractor or, as applicable, thirty (30) days after Landlord receives approval from Landlord's Mortgagee to rebuild.
17.2 Tenant's Costs and Insurance Proceeds. In the event of any damage or destruction of all or any part of the Premises, Tenant shall immediately: (a) notify Landlord thereof; and (b) deliver to Landlord all insurance proceeds received by Tenant with respect to the Tenant Improvements and Alterations (to the extent such items are not covered by Landlord's casualty insurance obtained by Landlord pursuant to this Lease) and with respect to Alterations in t he Premises that Tenant is required to insure pursuant to Section 13.1, excluding proceeds for Tenant's furniture trade fixtures and other personal property. If, for any reason (including Tenant's failure to obtain insurance which Tenant is required to insure pursuant to Section 13.1 hereof), Tenant fails to receive insurance proceeds covering the full replacement cost of such Alterations which are damaged, Tenant shall be deemed to have self-insured the replacement cost of such Alterations and Tenant i mprovements, and upon any damage or destruction thereto, Tenant shall immediately pay to Landlord the full replacement cost of such items, less any insurance proceeds actually received by Landlord from Landlord's or Tenant's insurance with respect to such items.
17.3 Abatement of Rent . If as a result of any such damage, repair, reconstruction and/or restoration of the Premises or any Building, Tenant is prevented from using, and does not use, the Premises or any portion thereof, then Rent shall be abated or reduced, as the case may be, during the period that Tenant continues to be so prevented from using and does not use the Premises or portion thereof, in the proportion that the rentable square feet of the portion of the Premises that Tenant is prevented from using, and does not use, bears to the total rentable square feet of the Premises. Notwithstanding the foregoing to the contrary, if the damage is due to the negligence or willful misconduct of Tenant or any of Tenant's Parties, there shall be no abatement of Rent. Except for abatement of Rent as provided hereinabove, Tenant shall not be entitled to any compensation or damages for loss of, or interference with, Tenant's business or Exhibit A - Page 20 of 51
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use or access of all or any part of the Premises resulting from any such damage, repair, reconstruction or restoration.
17.4 Tenant's Termination Right. Tenant’s termination rights shall be as set forth in section
1.7. 17.5 Waiver of Termination Right. This Lease sets forth the terms and conditions upon which this Lease may terminate in the event of any damage or destruction. Accordingly, except as expressly provided herein, Tenant hereby waives any and all provisions of applicable Law that provide alternative rights for the parties in the event of damage or destruction (including, without limitation, to the extent the Premises are located in California, the provisions of California Civil Code Section 1932, Subsection 2, and Section 1933, Subsection 4 and any successor statute or laws of a similar nature).
ARTICLE 18 - CONDEMNATION
18.1 Substantial or Partial Taking . Subject to the provisions of Section 18.3 below, either party may terminate this Lease if any material part of the Premises is taken or condemned for any public or quasi -public use under law, by eminent domain or private purchase in lieu thereof (a " Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking of any portion of the Building or the Property which would have a material adverse effect on Landlord’s ability to profitably operate the remainder of the Building and/or the Property. The terminating party shall provide written notice of termination to the other party within thirty (30) days after it first receives notice of the Taking. The termination shall be effective as of the effective date of any order granting possession to, or vesting legal title in, the condemning authority. If this Lease is not terminated, Base Rent and all other elements of this Lease which are dependent upon the area of the Premises, the Building or the Property shall be appropriately adjusted to account for any reduction in the square footage of the Premises, Building or Property, as applicable. All co mpensation awarded for a Taking shall be the property of Landlord. The right to receive compensation or proceeds are expressly waived by Tenant, however, Tenant may file a separate claim for Tenant's furniture, fixtures, equipment and other personal property, loss of goodwill and Tenant's reasonable relocation expenses, provided the filing of the claim does not diminish the amount of Landlord’s award.
18.2 Condemnation Award. Subject to the provisions of Section 18.3 below, in connection with any Taking of the Premises or the Building, Landlord shall be entitled to receive the entire amount of any award which may be made or given in such taking or condemnation, without deduction or apportionment for any estate or interest of Tenant, it being expressly understood and agreed by Tenant that no portion of any such award shall be allowed or paid to Tenant for any so- called bonus or excess value of this Lease, and such bonus or excess value shall be the sole property of Landlord. Tenant shall not assert any claim aga inst Landlord or the taking authority for any compensation because of such taking (including any claim for bonus or excess value of this Lease); provided, however, if any portion of the Premises is taken, Tenant shall be granted the right to recover from t he condemning authority (but not from Landlord) any compensation as may be separately awarded or recoverable by Tenant for the taking of Tenant's furniture, fixtures, equipment and other personal property within the Premises, for Tenant's relocation expenses, and for any loss of goodwill or other damage to Tenant's business by reason of such taking.
18.3 Temporary Taking. In the event of a Taking of the Premises or any part thereof for temporary use, (a) this Lease shall be and remain unaffected thereby and Rent shall not abate, and (b) Tenant shall be entitled to receive for itself such portion or portions of any award made for such use with respect to the period of the taking which is within the Term, provided that if such taking shall remain in force at the expiration or earlier termination of this Lease, Tenant shall perform its obligations with respect to surrender of the Premises and shall pay to Landlord the portion of any award which is attributable Exhibit A - Page 21 of 51
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to any period of time beyond the Term expiration date. For purpose of this Section 18.3, a temporary taking shall be defined as a taking for a period of two hundred seventy (270) days or less.
18.4 Waiver. Tenant hereby waives any rights it may have pursuant to any applicable Laws (including, without limitation, to the extent the Premises are located in California, any rights Tenant might otherwise have pursuant to Section 1265.130 of the California Code of Civil Procedure) and agrees that the provisions hereof shall govern the parties' rights in the event of any Taking.
ARTICLE 19 - WAIVER OF CLAIMS; WAIVER OF SUBROGATION
19.1 Waiver. Tenant hereby waives its rights against Landlord for any claims or damages or losses, including any deductibles and self -insured amounts, which are caused by or result from (a) any occurrence insured under any property insurance policy carried by Tenant or Landlord, as the case may be, or could be insured against, or (b) any occurrence which would have been covered under any property insurance required to be obtained and maintained by Tenant under this Lease had such insurance been obtained and maintained as required. The foregoing waiver shall be in addition to, and not a limitation of, any other waivers or releases contained in this Lease.
19.2 Waiver of Insurers. Tenant shall cause each property insurance policy carried by Tenant to provide that the insurer waives all rights of recovery by way of subrogation against Landlord, in connection with any claims, losses and damages covered by such policy. If Tenant fails to maintain insurance for an insurable loss, such loss shall be deemed to be self-insured with a deemed full waiver of subrogation as set forth in the immediately preceding sentence.
ARTICLE 20 - ASSIGNMENT AND SUBLETTING
20.1 Restriction on Transfer. Tenant shall not assign this Lease or any interest herein or sublet the Premises or any part thereof, or permit the use or occupancy of the Premises by any party other than Tenant, Tenant’s contractors, and individuals receiving services from Tenant (any such assignment, encumbrance, sublease, license or the like being sometimes referred to as a "Transfer"). In no event may Tenant encumber or hypothecate this Lease or the Premises. This prohibition against Transfers shall be construed to include a prohibition against any assignment or subletting by operation of law.
ARTICLE 21 - SURRENDER AND HOLDING OVER
21.1 Surrender of Premises. Upon the expiration or sooner termination of this Lease, Tenant shall surrender all keys for the Premises and exclusive possession of the Premises to Landlord broom clean and in good condition and repair, reasonable wear and tear excepted (and casualty damage excepted), with all of Tenant's personal property, electronic, fiber, phone and data cabling and related equipment that is installed by or for the exclusive benefit of Tenant (to be removed in accordance with the National Electric Code and other applicable Laws) and those items, if any, of Alterations identified by Landlord pursuant to Section 13.2, removed therefrom and all damage caused by such removal repaired. In this regard, reasonable wear and tear shall be construed to mean wear and tear caused to the Premises by the natural aging process which occurs in spite of prudent application of commercially reasonable standards for maintenance, repair and cleaning and janitorial practices. In any event, Tenant shall cause the following to be done prior to the expiration or the sooner termination of this Lease: (i) all surface areas and bathrooms and showers shall be cleaned and disinfected in accordance with the best protocol practices for the prevention of infection; (ii) all carpets shall be cleaned and shampooed , and all tile or con crete floors cleaned; (iii) all broken, marred, stained or nonconforming acoustical ceiling tiles shall be replaced; ( iv) all interior and exterior windows shall be washed; and (v) the plumbing and electrical systems and lighting shall be placed in good order and repair (including replacement of any burned out, discolored or broken Exhibit A - Page 22 of 51
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light bulbs, ballasts, or lenses). If Landlord so requests, Tenant shall, prior to the expiration or sooner termination of this Lease, (a) remove any Tenant’s Alterations which Tenant is required to remove pursuant to this Lease and repair all damage caused by such removal, and (b) return the Premises or any part thereof to its original configuration existing as of the time the Premises were delivered to Tenant. If Tenant fails to remove by the expiration or sooner termination of this Lease all of its personal property and Alterations identified by Landlord for removal pursuant to this Lease, Landlord may, (without liability to Tenant for loss thereof), at Tenant's sole cost and in addition to Landlord's other rights and remedies under this Lease, at law or in equity: (1) remove and store such items in accordance with applicable Law; and/or ( 2) upon ten (10) days' prior notice to Tenant, sell all or any such items at private or public sale for such price as Landlord may obtain as permitted under applicable Law. Landlord shall apply the proceeds of any such sale to any amounts due to Landlord under this Lease from Tenant (including Landlord's attorneys' fees and other costs incurred in the removal, storage and/or sale of such items), with any remainder to be paid to Tenant.
21.2 Holding Over. Tenant will not be permitted to hold over possession of the Premises after the expiration or earlier termination of the Term and extension period without the express written consent of Landlord, which consent Landlord may withhold in its sole and absolute discretion. If Tenant holds over after the expiration or earlier termination of the Term and extension period with or without the express written consent of Landlord, then, in addition to all other remedies available to Landlord, Tenant shall become a tenant at sufferance only, upon the terms and conditions set forth in this Lease so far as applicable (including Tenant's obligation to pay all Additional Rent under this Lease), but at a Monthly Base Rent equal to three hundred percent (300%) of the Monthly Base Rent applicable to the Premises immediately prior to the date of such expiration or earlier termination of this Lease. Any such holdover Rent shall be paid on a per month basis without reduction for partial months during the holdover. The foregoing rate for holdover Monthly Base Rent and any a cceptance by Landlord of Monthly Base Rent , including any Monthly Base Rent at the holdover rate, after or for any period after such expiration or earlier termination of the Term of this Lease, shall not constitute consent to or a right to a holdover hereunder or result in an extension of the Term of this Lease. Tenant acknowledges and agrees that Landlord shall have the right to initiate and pursue an unlawful detainer proceeding , and any other proceeding, at any time to recover possession of the Premises as a result of the expiration or termination of the Term of this Lease and to the extent permissible under applicable law, Tenant shall not impose or allege any defense or claim to or otherwise delay any such proceeding. Tenant acknowledges that any holding over in the Premises by Tenant without Landlord's express written consent may compromise or otherwise affect Landlord's ability to develop the Premises and enter into new leases with prospective tenants at the Premises. Therefore, if Tenant fails to vacate and deliver the Premises to Landlord upon the expiration or earlier termination of the Term of this Lease, in addition to any other liabilities and remedies available to Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless from and against any and all claims and liability resulting from such failure, including, without limiting the g enerality of the foregoing, any losses, damages and/or additional costs suffered by Landlord resulting therefrom. Tenant shall be liable, and shall pay to Landlord within ten (10) days after demand, for all losses incurred, damages and expenses incurred by Landlord as a result of such holdover, and shall indemnify, defend and hold Landlord and the Landlord Parties harmless from and against all liabilities, damages, losses, claims, suits, costs and expenses (including reasonable attorneys’ fees and costs) arising from or relating to any such holdover tenancy, including without limitation, any claim for damages made by a succeeding tenant.
Tenant’s indemnification obligations hereunder shall survive the expiration or earlier termination of this Lease.
ARTICLE 22 - DEFAULTS
22.1 Tenant's Default . The occurrence of any one or more of the following events shall constitute a "Default" under this Lease by Tenant:
Exhibit A - Page 23 of 51