83886.00001\44330917.283886.00001\44330917.1
SECOND AMENDED & RESTATED LEASE
DOWNTOWN LA PLAZA PARK FIRE STATION
1 EAST COTATI AVENUE, COTATI
THIS LEASE is made on ______________________, by and between the CITY OF COTATI, a municipal corporation, hereinafter called “LESSOR”, and the COTATI RANCHO ADOBE FIRE PROTECTION DISTRICT, hereinafter called “LESSEE”.
RECITALS
WHEREAS, LESSOR and LESSEE are were parties to an existing initial lease which commenced on April 1, 1965, and was scheduled to terminates on March 31, 2015.
WHEREAS, prior to the expiration of the initial lease, LESSOR and LESSEE are parties to an existing leaseentered into an amended and restated lease, which commenced on August 22April 1, 1989, and terminates on March 31, 20152039.
WHEREAS, LESSEE desires to enter into a new lease agreement to extend the term of its leasehold rights to lease the subject premises. until March 31_________, 20__39.
WHEREAS, LESSEE desires to construct certain improvements and additions to the leased premises.
WHEREAS, LESSOR agrees to extend the lease term and to consent to certain improvements being installed on the premises by LESSEE.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
LESSOR leases to LESSEE and LESSEE hires from LESSOR the premises hereafter described under the following terms and conditions.
1. Premises.
The “premises” are described in Exhibit “A” attached hereto and incorporated by this reference.
2. Term of Lease.
The term of this Lease is fiftyfifty ________ (50__50) calendar years, beginning on January 31, 2026April _________ 1, ____1989, and ending at midnight on January 31, 2076March 31__________, ____2039, unless extended or sooner terminated as provided for in this Lease. 83886.00001\44330917.283886.00001\44330917.1
2 3. Restated Lease.
This Lease supersedes that Lease entered into by and between the parties pertinent to the premises on August 22April 1, 19651989. This Lease restates and memorializes all of the terms and conditions under which LESSOR leases the premises to LESSEE.
4. Rent.
For each year of this Lease, LESSEE shall pay to the LESSOR, in advance on the first day of each year beginning on January 31, 2026April 1_______, ____1989, the amount of ONE DOLLAR ($1.00).
5. Use.
A. LESSEE shall use the premises for a fire station plus the storage of materials and equipment related to that activity and shall not use or permit the premises to be used for any other purpose without the prior written consent of LESSOR. LESSEE shall not do or permit anything to be done in or about the premises nor bring or keep anything therein which will in any way increase the existing rate of or affect any fire or other insurance upon the premises or any of its contents, or cause cancellation of any insurance policy covering said premises or any part thereof or any of its contents. LESSEE shall not use or allow the premises to be used for any improper, immoral, unlawful or objectionable purpose, nor shall LESSEE cause, maintain or permit any nuisance in, on or about the premises. LESSEE shall not commit or suffer to be committed any waste in or upon the premises.
B. Except for oils and solvents used and stored in the normal operation and maintenance of Lessee’s LESSEE’S equipment and property, neither Lessee LESSEE nor, to the best of Lessee’s LESSEE’S knowledge (after due and diligent inquiry), any third party may use, generate, manufacture, produce, store or dispose of, on, under or about the premises or transport to or from the premises any flammable explosives, asbestos, radioactive materials, hazardous waste, toxic substances or related injurious materials, whether injurious by themselves or in combination with other materials (collectively called “hazardous materials”). For the purpose of this agreement, “hazardous materials” shall include, but not be limited to, substances defined as “hazardous substances”, “hazardous materials” or “toxic substances” in federal and/or state law.
C. LESSEE shall have the exclusive right to use six (6) designated parking spaces within the parking area serving the premises, in locations mutually agreed upon by LESSOR and LESSEE, and further identified in Exhibit B (“Parking Area”). LESSOR shall not reassign or materially interfere with LESSEE’s use of such spaces without LESSEE’s prior written consent, except temporarily as necessary for emergency repairs, maintenance, or public safety, and in such case LESSOR shall use reasonable efforts to minimize disruption. LESSEE may, at its sole cost and expense, install appropriate markings or signage, subject to LESSOR’Ss prior written approval, which shall not be unreasonably withheld, to identify the reserved spaces. LESSOR at its sole discretion may revoke LESSEE’S exclusive right to use the Parking Area upon thirty (30) days written notice to LESSEE. LESSOR will engage in good faith discussions with LESSEE to identify a different mutually agreeable location for a different location for designated parking spaces.
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3 C. All landscape areas on or adjacent to the premises served by the building water meter shall be irrigated and maintained by LESSEE. All landscape areas on or adjacent to the premises served by the park water meter(s) shall be irrigated and maintained by the LESSOR.
6. Compliance with Law.
LESSEE shall not use the premises or permit anything to be done in or about the premises which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. LESSEE shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements now in force or which may hereafter be in force, and with the requirements of any board of fire insurance underwriters or other similar bodies now or hereafter constituted, relating to, or affecting the condition, use or occupancy of the premises, including structural changes not related to or affected by LESSEE’S improvements or acts. The judgment of any court of competent jurisdiction or the admission of LESSEE in any action against LESSEE, whether LESSOR be a party thereto or not, that LESSEE has violated any law, statute, ordinance or governmental rule, regulation or requirement, shall be conclusive of that fact as between the LESSOR and LESSEE.
7. Alterations and AdditionsNot Used.
LESSEE shall not make or suffer to be made any alterations, additions or improvements to or of the premises or any part thereof without the written consent of LESSOR first had and obtained and any alterations, additions or improvements to or of said premises shall on the expiration of the term become a part of the realty and belong to the LESSOR and shall be surrendered with the premises. In the event LESSOR consents to the making of any alterations, additions or improvements to the premises by LESSEE, the same shall be made by LESSEE at LESSEE’S sole cost and expense, and any contractor or person selected by LESSEE to make the same must first be approved of in writing by the LESSOR. Upon the expiration or sooner termination of the term hereof, LESSEE shall, upon written demand by LESSOR, given at least thirty (30) days prior to the end of the term, at LESSEE’S sole cost and expense, forthwith and with all due diligence remove any non-permanent, obsolete, or superseded alterations, additions, or improvements made by LESSEE, designated by LESSOR to be removed, and LESSEE shall, forthwith and with all due diligence at its sole cost and expense, repair any damage to the premises caused by such removal.
LESSOR shall not require removal of improvements that were approved by LESSOR and remain in good and serviceable condition at the time of termination, unless such removal is reasonably necessary for the future use of the premises as determined by LESSOR. If LESSOR requires removal of any such approved and serviceable improvements, the parties shall meet and confer in good faith regarding cost-sharing or reimbursement of LESSEE’sS reasonable removal costs.
8. Other Rights Reserved.
All oil, gas, and mineral rights are expressly reserved from this Lease.
9. Improvements, Alterations and Additions.
A. At any time, from time to time, during the term of the Lease, LESSEE may, but is not obligated to, construct or otherwise make new improvements on any part or all of the 83886.00001\44330917.283886.00001\44330917.1
4 premises and to demolish, remove, replace, alter, relocate, reconstruct or add to any existing improvements in whole or in part, and to modify or change the contour of or grade, or both, of the land, provided LESSEE is not then in default under any condition or provision of this Lease and provided the improvements following the work are at least equal in value to any improvements as they were before being demolished, removed, replaced, altered, relocated, reconstructed, modified or changedof a nature and quality reasonably acceptable to LESSOR pursuant to the approval process set forth in this Paragraph 9(C). All salvage shall belong to LESSEE.
A. LESSEE shall not make or suffer to be made any alterations, additions or improvements to the exterior, or that are visible from the exterior of the premises without the prior written consent of LESSOR, regardless of other permitting requirements or regulations. Consent of LESSOR shall be given or denied in writing within thirty (30) days after receipt from LESSEE of all materials requested by LESSOR to evaluate the proposed alterations, additions or improvements. Any alterations, additions or improvements to or of said premises shall on the expiration of the term become a part of the realty and belong to the LESSOR and shall be surrendered with the premises. In the event LESSOR consents to the making of any alterations, additions or improvements to the premises by LESSEE, the same shall be made by LESSEE at LESSEE’S sole cost and expense, and any contractor or person selected by LESSEE to make the same must first be approved of in writing by the LESSOR. Upon the expiration or sooner termination of the term hereof, LESSEE shall, upon written demand by LESSOR, given at least thirty (30) days prior to the end of the term, at LESSEE’S sole cost and expense, forthwith and with all due diligence remove any non-permanent, obsolete, or superseded alterations, additions, or improvements made by LESSEE, designated by LESSOR to be removed, and LESSEE shall, forthwith and with all due diligence at its sole cost and expense, repair any damage to the premises caused by such removal. LESSOR shall not require removal of improvements that were approved by LESSOR and remain in good and serviceable condition at the time of termination, unless such removal is reasonably necessary for the future use of the premises as determined by LESSOR. If LESSOR requires removal of any such approved and serviceable improvements, the parties shall meet and confer in good faith regarding cost-sharing or reimbursement of LESSEE’S reasonable removal costs.
B. All work shall be performed in a good and workmanlike manner, shall substantially comply with plans and specifications submitted to LESSOR as required by this Lease, and shall comply with all applicable City and other governmental permits, laws, ordinances and regulations. Upon completion, said addition shall become part of the premises and be subject to this Lease. In the event of a dispute, improvements shall be completed to the City’s sole satisfaction.
C. Conditions of Major Construction. Before any major work of construction, addition or alteration, or repair (as defined in Paragraph 9(N)) is commenced on the premises, and before any building materials have been delivered to the premises by LESSEE or under LESSEE’S authority, LESSEE shall comply with all the following conditions or procure LESSOR’S written waiver of the condition or conditions specified in the waiver:
(1) Deliver to LESSOR for LESSOR’S approval two (2) sets of preliminary construction plans and specifications prepared by an architect or engineer licensed to practice as such in the 83886.00001\44330917.283886.00001\44330917.1
5 State of California, all sufficient to enable potential contractors and subcontractors to make reasonably accurate bid estimates and to enable LESSOR to make an informed
judgment about the design and quality of construction and about any effect on the reversion. All improvements shall be constructed within the exterior property lines of the premises; provided that required work beyond the premises on utilities, access, and conditional use requirements do not violate this provisionwould be permitted separately.
(1) With the plans, LESSEE shall deliver to LESSOR the
certificate of the person or persons who prepared the plans and specifications certifying that LESSEE has fully paid for them or waiving payment and waiving any right to a lien for preparing them.
(2) LESSOR shall not unreasonably disapprove preliminary plans and specifications. Approval or disapproval shall be communicated in the manner provided for notices, and
disapproval shall be accompanied by specification of the grounds for disapproval. LESSEE shall not deliver working drawings to any governmental body for a building permit until preliminary plans are approved as in this paragraph.
Following LESSOR’S first or any subsequent disapproval, LESSEE may elect (1) to submit revised plans and
specifications or (2) to give notice contesting the
reasonableness of LESSOR’S disapproval. A contest of
reasonableness shall be resolved by the parties, acting in good faith, within twenty (20) days of the date LESSEE
mails or serves notice of his contest of reasonableness.
Disapproval and election to submit revised plans and
specifications shall reasonably not extend time for
completing construction, to the extent they delay is caused by LESSOR’s review.
(3) Deliver to LESSOR the written approval of the plans and specifications by the financial institution that shall have made the commitment for financing the construction, if any. (4) LESSEE shall prepare final working plans and specifications substantially conforming to preliminary plans previously approved by LESSOR, and deliver to LESSOR one
complete set as approved by the LESSOR. Changes from
the preliminary plans shall be considered to be within the scope of the preliminary plans if they are not substantial or if they are made to comply with suggestions, requests, or requirements of the LESSOR or official in connection with 83886.00001\44330917.283886.00001\44330917.1
6 the application for permit or approval, and if they do not depart substantially in size, utility, or value from the minimum requirements of the work required to construct the improvements.
(5) Notify LESSOR of LESSEE’S intention to commence a
work of improvement at least ten (10) days before
commencement of any such work or delivery of any
materials. The notice shall specify the approximate location and nature of the intended improvements. LESSOR shall
have the right to post and maintain on the premises any notices of non-responsibility provided for under applicable law, and to inspect the premises in relation to the
construction at all reasonable times.
(6) Furnish LESSOR with a true copy of LESSEE’S contract with the general contractor and with evidence of the general contractor’s financial condition for LESSOR’S approval.
The contract shall give LESSOR the right but not the
obligation to assume LESSEE’S obligations and rights under that contract if LESSEE should default.
LESSOR may disapprove of the contractor and/or the
contract by notice given within ten (10) days following delivery of the copy of the contract. The notice shall specify the grounds for disapproval. LESSOR shall not
unreasonably disapprove and shall be considered to have approved in the absence of notice of disapproval given
within ten (10) days after LESSEE furnishes the contract and evidence specified above. If LESSEE elects to act as general contractor, the reference above to contractor and evidence shall be considered to apply to the subcontractor of each subcontract in excess of THREE THOUSAND FIVE
HUNDRED DOLLARS ($3,500.00).
(7) Deliver to LESSOR true copies of all documents to evidence the commitment of financing for any new construction.
“Financing” includes both the construction (or interim) financing and the take- out (also called permanent or longterm) loan. LESSOR may require by notice that no construction commence until the take-out financing is firmly committed but may disapprove the financing only if it
violates an express provision of this Lease.
(8) LESSOR shall have the right but not the obligation to assume LESSEE’S financing for any improvements on the
premises. LESSEE shall cause the lender to execute all
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7 documentation facilitative of this right. LESSOR’S exercise of this right shall not constitute a waiver of any other right LESSOR may have against LESSEE, any surety or
guarantor, or anyone else.
(2) Furnish LESSOR payment and performance bonds as
described below after LESSEE
(3) Liability, Workers Compensation, Automotive Insurance.
All contractors providing services or performing any type of construction or repair shall maintain, at a minimum,
insurance at the policy limits typically maintained by the LESSOR for similar work performed for the LESSOR. The
policy limits, additionally insured and form of insurance shall be provided by LESSOR, as may be updated from time to time.
(9)(4) Payment & Material Bonds. Any construction, addition or alteration work in excess of $100,000 shall include payment and material bonds. has complied with all the foregoing conditions of major construction. The bonds shall be that of a responsible surety company, licensed to do business in California, in an amount not less than 100% of the estimated cost of the improvement and shall remain in effect until the entire cost of the work shall have been paid in full and the new improvements shall have been insured as provided in this Lease. The bonds shall be in the form attached hereto as Exhibit “C”.
(10) LESSEE shall keep LESSOR reasonably informed
regarding the method of disbursing any construction-loan funds during the period of construction and shall provide copies of any related documentation upon request. LESSOR shall have no approval rights or other control over the disbursement of such loan funds. LESSOR shall have the
right to approve of the method of disbursing the construction loan funds during the period of construction, if applicable. (5) Builders Risk Insurance. For any work in excess of
$100,000, Ddeliver to LESSOR (1) certificates of insurance evidencing coverage for “builder’s risk,” to protect LESSOR and LESSEE from financial losses due to physical damage or theft to a building during construction or renovation, covering the structure, materials, and equipment from perils like fire, storms, vandalism, and theft until completion. The coverage limits shall be approved by the LESSOR in writing. 83886.00001\44330917.283886.00001\44330917.1
8 (11) (2) evidence of worker’s compensation insurance
covering all persons employed in connection with the work and with respect to whom death or bodily injury claims could be asserted against LESSOR or the premises, and (3)
evidence that LESSEE has paid or caused to be paid all
premiums for the coverage described above in this paragraph and any increase in premiums on insurance provided for in Paragraph 14, sufficient to assure maintenance of all
insurance above during the anticipated course of the work.
LESSEE shall maintain, keep in force, and pay all premiums required to maintain and keep in force all insurance above at all times during which such work is in progress.
(6) The provision to the cityLESSOR of all necessary permits from all governmental agencies having jurisdiction over the work of improvement.
(12) All approvals or consents required of LESSOR under this Paragraph 9(C) shall be given or denied in writing within thirty (30) days after receipt of the complete submission from LESSEE. Any disapproval shall specify the grounds
therefor in reasonable detail. Failure of LESSOR to respond within such period shall be deemed approval of the matter submitted. LESSOR’s review shall be limited to
confirmation that the proposed work is consistent with this Lease and applicable laws and shall not unreasonably delay LESSEE’Ss construction activities.
D. Not Used. Plans Already Approved. The Parties acknowledge that LESSEE has already submitted to the LESSOR certain elevations and other preliminary site plans dated January 11, 1989 and prepared by Avila Enterprises consisting of 7 number of sheets. Those plans, which are maintained by the LESSOR’s director of planning, have already been approved by LESSOR. Such approval, however, does not relieve LESSEE of the responsibility of complying with paragraph 9(C).
E. Conditions of Premises. LESSOR makes no covenants or warranties respecting the condition of the soil, subsoil, the improvements thereon or any other condition of the premises. LESSEE may enter onto the premises to make structural engineering tests that LESSEE considers necessary. All such tests made by or on behalf of LESSEE shall be at LESSEE’S sole expense and shall be evidenced by a separate contract. A copy of any such report shall be delivered to LESSOR on commencement of the term.
F. Financing. If the LESSEE intends to utilize any type of financing that would utilize the improvements constructed by LESSEE as security, the LESSEE must provide copies of all final documents to the LESSOR. In no case shall the LESSEE obtain any type of financing with a repayment term that extends beyond the term of this Lease or uses the underlying LESSOR’s property or improvements not constructed by LESSEE as security. LESSEE’Ss Right to Grant 83886.00001\44330917.283886.00001\44330917.1
9 easements. LESSOR grants to LESSEE the right to grant to public entities or public service corporations, for the purpose of serving only the premises, rights of way or easements on or over the premises for poles or conduits or both for telephone, electricity, water, sanitary or storm sewers or both, and for other utilities and municipal or special district services. Grants made under the authority of this provisions shall be limited to the period of time required to complete construction.
G. Protection of LESSOR Against Cost or Claim. LESSEE shall pay or cause to be paid the total cost and expense of all works of improvement, as that phrase is defined in the Mechanics’ Lien Law in effect at the place of construction when the work begins. No such payment shall be construed as rent. LESSEE shall not suffer or permit to be enforced against the premises or any part of it any mechanic’s, materialman’s, contractor’s, or subcontractor’s lien arising from any work of improvement, however it may arise. However, LESSEE may in good faith and at LESSEE’S own expense contest the validity of any such asserted lien, claim, or demand, provided LESSEE has furnished the bond required in California Civil Code Section 3143 (or any comparable statute hereafter enacted for providing a bond freeing the premises from the effect of a lien claim).
LESSEE shall defend and indemnify LESSOR against all liability and loss of any type arising out of work performed on the premises by LESSEE, together with reasonable attorney’s fees and all costs and expenses incurred by LESSOR in negotiating, settling, defending, or otherwise protecting against such claims.
LESSEE shall reimburse LESSOR for all sums paid by LESSOR under this paragraph, together with all LESSOR’s reasonable attorney’s fees and costs, plus interest on those sums, fees, and costs at the rate of twelve percent (12%) per year from the date of payment until the date of reimbursement.
H. Notice of Completion. On completion of any substantial work of improvement during the term, LESSEE shall file or cause to be filed a notice of completion.
LESSEE hereby appoints LESSOR as LESSEE’S attorney-in-fact to file the notice of completion on LESSEE’S failure to do so after the work of improvement has been substantially completed.
I. Notice of Change in PlansRecord Documents. On completion of any work of improvement, LESSEE shall give LESSOR one (1) hard copy of the “as-built” drawings and one (1) digital copy of the “as-built” drawings, specifications and complete project file within 90 calendar days of the completion of the work. The drawings shall be on archival mylar, 24” x 36” (unless waived or otherwise agreed to by LESSOR) and the project file shall be pdf or other digital file type acceptable to the LESSOR. notice of all changes in plans or specifications made during the course of the work. LESSOR acknowledges that it is common practice in the construction industry to make numerous changes during the course of construction on substantial projects.
Changes that do not substantially alter plans and specifications previously approved by LESSOR do not constitute a breach of LESSEE’S obligations, but LESSEE shall inform LESSOR of any changes and LESSOR may determine whether the changes substantially alter plans and specifications previously approved. Approval of such changes shall not be unreasonably withheld.
J. Notice of Take-Out (Permanent) Financing. LESSEE shall promptly deliver to LESSOR:
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10 (1) Evidence that the supplier of any construction financing has accepted or approved of the completed improvements; and (2) Evidence that the take-out (permanent) financing has been recorded and the funds properly disbursed, together with copies of the note and the encumbrance securing it.
K. Ownership of New Improvements During Term. All improvements constructed on the premises by LESSEE as permitted by this Paragraph 9 shall be owned by LESSEE until the termination of this Lease. LESSEE shall not, however, remove any improvements from the premises nor waste, destroy, or modify any improvements on the premises, except as permitted by this Lease.
L. Ownership at Termination. All improvements constructed on the premises by LESSEE as permitted by Paragraph 9, at the end of this Lease, or upon sooner termination of this Lease shall, without compensation to LESSEE, then become LESSOR’S property free and clear of all claims to or against them by LESSEE or any third person, and LESSEE shall defend and indemnify LESSOR against all liability and loss arising from such claims or from LESSOR’S exercise of the rights conferred by this paragraph.
M. Diligent Prosecution to Completion. Once the work has begun, LESSEE shall with reasonable diligence prosecute to completion all construction of improvements, additions, or alterations. All work shall be performed in a good and workperson-like manner, shall substantially comply with plans and specifications submitted to LESSOR as required by this Lease, and shall comply with all applicable governmental permits, laws, ordinances and regulations.
N. Major and Minor Repairs Distinguished. LESSOR’s approval is not required for LESSEE’Ss minor repairs, alterations, or additions. “Minor” means construction costs not exceeding THREE THOUSAND DOLLARS ($3,000.00), none of which is derived from funds advanced on the security of an encumbrance on the leasehold or the property. “Construction costs” includes the cost of labor, materials, and reasonable profit to general contractor and subcontractors, engineering and design costs, testing costs and all costs that would constitute the basis of a valid claim under the mechanic’s lien laws for any demolition and any removal of existing improvements or parts of improvements as well as for preparation, construction, and completion of all new improvements or parts of improvements. The dollar amount stated above shall be adjusted by the percentage change in the index known as the United States Department of Commerce Composite Construction Cost Index as published in the survey of current business by the U.S. Department of Commerce, or successor index. If the index is discontinued and there is no successor index, the reference figure shall be determined by LESSOR. “Major” repairs, alterations, or additions are those not defined as “minor” above. For major repairs, alterations or additions, LESSEE shall comply with all conditions of major construction elsewhere described in this Lease.Not used.
10. Repairs.
A. By taking possession of the premises, LESSEE shall be deemed to have accepted the premises as being in good sanitary order, condition and repair. LESSEE shall, at 83886.00001\44330917.283886.00001\44330917.1
11 LESSEE’S sole cost and expense, keep the premises and every part thereof in good condition and repair, damage thereto from causes beyond the reasonable control of LESSEE and ordinary wear and tear excepted. LESSEE shall upon the expiration or sooner termination of this Lease hereof surrender the premises to the LESSOR in good condition, ordinary wear and tear and damage from causes beyond the reasonable control of LESSEE excepted. LESSOR shall have no obligation whatsoever to alter, remodel, improve, repair, decorate or paint the premises or any part thereof, and the parties hereto affirm that LESSOR has made no representations to LESSEE respecting the condition of the premises or any part thereof and the parties hereto affirm that LESSOR has made no representations to LESSEE respecting the condition of the premises or any improvements located thereon.
B. LESSEE waives the right to make repairs at LESSOR’S expense under any law, statute or ordinance now or hereafter in effect.
C. All parts, equipment, garbage, refuse and other debris either used or discarded as part of LESSEE’S business on the premises shall always be stored or discarded in such a manner so as not to be visible by persons located on any property other than on the premises.
C.D. LESSEE shall obtain any necessary permits or approvals required prior to performing the work. Repairs shall be subject to the same workmanship standard, insurance and bonding requirements described in Paragraph 9.
11. Financing Without Fee Subordination.
A. LESSEE shall have the right at any time and from time to time to subject the leasehold estate and any or all improvements to one or more mortgages as security for a loan or loans or other obligation of LESSEE provided that:
(1) The mortgage and all right required under it shall be subject to each and all of the covenants, conditions, and restrictions stated in this Lease and to all rights and interest of LESSOR except as otherwise provided in this Lease.
(2) LESSEE shall give LESSOR thirty (30) days prior notice of any such mortgage, and shall accompany the notice with a true copy of the note and mortgage.
(3) The repayment term of the mortgage shall not extend beyond the term of this Lease.
(2)
B. The mortgage documents shall provide that any proceeds from fire or extended coverage insurance shall be used for repairs or rebuilding of the leasehold improvements and not to repay part of the outstanding mortgage.
C. The mortgage documents shall contain provisions that all notices of default under the note and mortgage must be sent to LESSOR and LESSEE and that LESSOR shall have 83886.00001\44330917.283886.00001\44330917.1
12 the right to cure any default if LESSEE fails to do so. LESSOR shall have sixty (60) days in which to cure any default if the time for LESSEE to cure it has expired. Neither LESSOR’S right to cure any default nor any exercise of such a right shall constitute an assumption of liability under the note or mortgage. If any default is not curable, it shall not be grounds for foreclosure of the mortgage if LESSOR, or LESSEE in possession of the premises, promptly performs all other provisions of the note and mortgage then required to be performed.
D. On the recording of the mortgage, LESSEE shall, at expense, cause to be recorded in the office of the county of the county where the premises are located a written request executed and acknowledged by LESSOR for a copy of all notices of default and all notices of sale under the mortgage as provided by the State of California. Inclusion in the body of the recorded mortgage itself of a request for notice having the effect described above shall constitute compliance with this provision.
E. The leasehold mortgagee (lender) shall not be liable to perform LESSEE’Ss obligations under this Lease until the mortgagee acquires LESSEE’Ss rights by foreclosure. After acquiring LESSEE’S rights by foreclosure, mortgagee shall be liable to perform LESSEE’S obligations only until mortgagee assigns or transfers the leasehold as permitted by this Lease.
Mortgagee shall not, however, be required to cure LESSEE’Ss defaults occurring before mortgagee’s acquisition of LESSEE’Ss rights by foreclosure.
F. No permitted mortgage shall cover any interest in any real property other than interests specifically subjected to mortgage by this Lease. No mortgage permitted by this Lease shall cover more than one (1) indebtedness.
G. On termination of this Lease by LESSOR on LESSEE’S default, or on mortgagee’s acquisition of the leasehold by foreclosure, LESSOR shall enter into a new lease with mortgagee covering the premises covered by the terminated or foreclosed lease if mortgagee (1) gives notice of request within thirty (30) days after termination or foreclosure, (2) pays all costs resulting from default and termination, and (3) remedies all defaults construed as though the Lease had not been terminated. The new lease shall be for the remainder of the term of the terminated or foreclosed lease, effective at the date of termination or foreclosure, at the rent and on the covenants, agreements, conditions, provisions, restrictions, and limitations contained in the terminated or foreclosed Lease.
12. Assignment and Subletting.
A. Except as expressly permitted pursuant to this Paragraph 12. LESSEE shall not, without the prior written consent of the LESSOR, assign or hypothecate this Lease or any interest herein or sublet the premises or any part thereof, or permit the use of the premises by any party other than LESSEE. Any of the foregoing acts without such consent shall be void and shall, at the option of LESSOR, terminate this Lease. This Lease shall not, nor any interest herein, be assignable as to the interest of LESSEE by operation of law without the written consent of LESSOR, such consent not to be unreasonably withheld; provided, however, that no such consent shall be required for any assignment or transfer of LESSEE’Ss interest to a successor public agency that assumes LESSEE’Ss powers and responsibilities pursuant to proceedings of the Sonoma County Local Agency Formation Commission (LAFCo) or other lawful governmental 83886.00001\44330917.283886.00001\44330917.1
13 reorganization. In such event, the successor public agency shall automatically succeed to all rights and obligations of LESSEE under this Lease..
B. If at any time or from time to time during the term of this Lease LESSEE desires to sublet all or any part of the premises, LESSEE shall give notice to LESSOR setting forth the terms of the proposed subletting and the space so proposed to be sublet. In the event LESSOR consents to such proposed subletting, such consent shall be subject to the following conditions:
(1) the sublease shall be on the same terms set forth in the notice given to LESSOR; (2) no sublease of the premises shall be subleased until an executed counterpart of such sublease has been delivered to LESSOR; (3) no sublessee shall have the right to assign its sublease or further to sublet without the prior written consent of LESSOR; and (4) any sums or other economic consideration received by LESSEE as a result of such subletting, whether denominated rentals under the sublease or otherwise, which exceed, in the aggregate, the total sums which LESSEE is obligated to pay LESSOR under this Lease (prorated to reflect obligations allocable to that portion of the premises subject to such sublease) shall be payable to LESSOR as additional rental under this Lease without affecting or reducing any other obligations of LESSEE hereunder.
C. Regardless of LESSOR’S consent, no subletting or assignment shall release LESSEE of LESSEE’S obligations or alter the primary liability of LESSEE to pay the rental and to perform all other obligations to be performed by LESSEE hereunder. The acceptance of rental by LESSOR from any other person shall not be deemed to be a waiver by LESSOR of any provision hereof. Consent to one assignment or subletting shall not be deemed to be consent to any subsequent assignment or subletting. In the event of default by any assignee of LESSEE or any successor of LESSEE in the performance of any of the terms hereof, LESSOR may proceed directly against LESSEE without the necessity of exhausting remedies against such assignee or successor. LESSOR may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignee of LESSEE, provided, however, that LESSOR shall not amend or modify this Lease with any assignee in a manner that increases or materially alters the obligations or liabilities of the original LESSEE without first providing written notice to, and obtaining the written consent of, the original LESSEE. without notifying LESSEE, or any successor of LESSEE, and without obtaining his consent thereto and such actions Any consent by LESSOR under this Section shall not relieve LESSEE of liability under this Lease., for obligations accruing prior to such assignment.
D. In the event LESSEE shall assign or sublet the premises or request the consent of LESSOR for any act that LESSEE proposes to do, then LESSEE shall pay LESSOR’S reasonable attorneys’ fees incurred in connection therewith.
E. The following are conditions precedent to LESSEE’Ss right of assignment:
(A) LESSEE shall give LESSOR reasonable notice of the proposed assignment with appropriate documentation as evidence that the proposed assignee qualifies as a permitted assignee.
(B) Except as otherwise provided in this Lease for a permitted mortgagee, the proposed assignee shall, in recordable form, expressly assume all of the covenants and conditions of this Lease.
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14 (C) LESSEE shall pay LESSOR the sum of THREE HUNDRED FIFTY DOLLARS ($350.00)a lump sum, determined by LESSOR, to enable LESSOR adequately to investigate the proposed assignee’s qualifications as a permitted assignee. LESSOR shall not be required to account for the use of the sum paid.
13. Hold Harmless.
A. LESSEE, shall indemnify and hold harmless LESSOR against and from any and all claims arising from LESSEE’S use of the premises for the conduct of its business or from any activity, work, or other thing done, permitted or suffered by the LESSEE in or about the premises, and shall further indemnify and hold harmless LESSOR against and from any and all claims arising from any breach or default in the performance of any obligation on LESSEE’S part to be performed under the terms of this Lease, or arising from any act or negligence of the LESSEE, or any officer, agent, employee, guest, or invitee of LESSEE, and from all and against all costs, attorney’s fees, expenses and liabilities incurred in or about any such claim or any action or proceeding brought thereon, and, in any case, any action or proceeding brought against LESSOR by reason of any such claim, LESSEE upon notice from LESSOR shall defend the same at LESSEE’S expense by counsel reasonably satisfactory to LESSOR. LESSEE, as a material part of the consideration to LESSOR, hereby assumes all risk of damage to property or injury to persons, in, upon or about the premises, from any cause other than LESSOR’S sole negligence, and LESSEE hereby waives all claims in respect thereof against LESSOR.
B. LESSOR or its agents shall not be liable for any damage to property entrusted to LESSEE’S employees, nor for loss or damage to any property by theft or otherwise, nor for any injury to or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the buildings, the dock, the wharf, or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other place resulting from dampness or any other cause whatsoever, unless caused by or due to the sole negligence of LESSOR, its agents, servants or employees. LESSOR or its agents shall not be liable for interference with the light or other incorporeal hereditaments, loss of business by LESSEE, nor shall LESSOR be liable for any latent defect in the premises or in the building. LESSEE shall give prompt notice to LESSOR in case of fire or accidents in the premises or in the building or of defects therein or in the fixtures or equipment.
14. Insurance.
A. LESSEE agrees to and shall at its own cost and expense procure and maintain during the entire lease term and any extension thereof comprehensive public liability and property insurance covering the leased premises (Exhibit A) and their surrounding areas in a an amount of THREE MILLION DOLLARS ($3,000,000.00) combined single limit at a minimum amount carried by LESSOR at similarly situated facilities and with such company or companies with the same or better rating asas shall be agreeable toapproved by LESSOR’s insurance.
LESSEE shall have the covered premises appraised from time to time to ensure proper property valuation for insurance coverage. Such public liability insurance shall (1) be procured from an insurer authorized to do business in California and approved by LESSOR; (2) provide primary and not excessive coverage; (3) name LESSOR as an additional insured; (4) waive subrogation rights, if any, which the insurer may have against LESSOR by reason of any claim, liability, loss, or 83886.00001\44330917.283886.00001\44330917.1
15 expense as described in Paragraph 13 of this Lease; (5) require that LESSOR be given at least thirty (30) days’ written notice before any such insurance can be cancelled or changed with respect to parties, coverage, or limits of liability; and (6) include cross-liability provisions. LESSEE shall, prior to commencement of the Lease term, deliver to LESSOR a certificate of insurance in the form attached as Exhibit “DC”, as may be updated from time to time, together with the schedule of insurance coverages in effect, as well as satisfactory evidence that the premiums have been paid, and before each expiration of any such insurance coverage during the Lease term and any extension thereof shall deliver to LESSOR satisfactory evidence that such insurance has been renewed and that the required premium or premiums therefor have been paid. (1) Throughout the term, at LESSEE’S sole cost and expense, LESSEE shall keep or cause to be kept insured for the
mutual benefit of LESSOR and LESSEE, on the
improvements against loss or damage by fire and such other risks as are now or hereafter included in an extended
coverage endorsement in common use for residential
structures, including vandalism and malicious mischief. The amount of the insurance shall be sufficient to prevent either LESSOR or LESSEE from becoming a coinsurer under the
provisions of the policies, but in no event shall the amount be less than ninety percent (90%) of the then actual
replacement cost of said improvement, (herein called FULL INSURABLE VALUE). LESSOR shall not carry any
insurance the effect of which would be to reduce the
protection or payment to LESSEE under any insurance that this Lease obligates LESSEE to carry. If any dispute
whether the amount of insurance complies with the above cannot be resolved by agreement, LESSOR may, not more
often than once every six (6) months, request the carrier of the insurance then in force to determine the full insurable value as defined in this provision, and the resulting
determination shall be conclusive between the parties for the purpose of this paragraph.
(2) All the proceeds from the insurance prescribed by this Paragraph 14 shall be deposited with a mutually agreed upon escrow holder to be applied by the escrow holder for the repair, restoration, or reconstruction of any improvements damaged or destroyed by the casualty giving rise to the insurance claim. Said proceeds shall be disbursed by the escrow holder in the same manner as if the proceeds were a construction loan from an institutional lender to LESSEE made under the provisions of this Lease. LESSEE shall pay all escrow fees and charges.
(2)(3) Notwithstanding anything to the contrary in this Lease, insurance proceeds shall be applied to repair, restoration, or 83886.00001\44330917.283886.00001\44330917.1
16 reconstruction of the improvements unless LESSOR and LESSEE mutually agree in writing to an alternative
disposition. If the parties agree not to restore, any remaining proceeds shall be used to restore and improve the former premises for park or other community uses. Any remaining proceeds shall be remitted to LESSEE by LESSOR.
equitably distributed between the parties based on their respective interests in the damaged improvements.
(3) In the event LESSOR is given the authority hereunder to elect not to restore, reconstruct or repair the damage done to said improvements and LESSOR exercises said election, the proceeds of said insurance shall be paid to LESSOR.
(4) Any insurance proceeds remaining after reconstructing, repairing and/or restoring said improvement shall be the LESSEE’S sole property.
B. If either party at any time during the term hereof should fail to secure or maintain the foregoing insurance, the other party shall be permitted to obtain such insurance in the defaulting party’s name or as the agent of the defaulting party and shall be compensated by the defaulting party for the cost of the insurance premiums. The defaulting party shall pay the other interest on paid insurance premiums at the rate of twelve percent (12%) per annum computed from the date written notice is received that the premiums have been paid.
C. Not UsedBefore commencement of any demolition or construction, LESSEE shall procure, and shall maintain in force until completion and acceptance of the work, “all risks” builders’ risk insurance including vandalism and malicious mischief, in form and with a company reasonably acceptable to LESSOR, covering improvements in place and all material and equipment at the job site furnished under contract, but excluding contractor’s, subcontractors’ and construction manager’s tools and equipment and property owned by contractor’s or subcontractor’s employees, with limits of at least ONE MILLION DOLLARS ($1,000,000.00) per loss for all work at the job site.
15. Subrogation.
As long as their respective insurers so permit, LESSOR and LESSEE hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage and other property insurance policies existing for the benefit of the respective parties.
Each party shall obtain any special endorsements, if required by their insurer, to evidence compliance with the aforementioned waiver.
16. Services and Utilities.
At LESSEE’S sole cost, LESSEE shall provide electricity, heating, water and telephone service to the premises. LESSOR shall not be liable for, and LESSEE shall not be entitled to any reduction of rental by reason of, any failure to furnish any of the foregoing. 83886.00001\44330917.283886.00001\44330917.1
17 17. Property Taxes.
LESSEE shall pay, or cause to be paid, to LESSOR, before delinquency, any and all taxes levied or assessed and which become payable during the term hereof upon all of LESSEE’S leasehold improvements described in Paragraphs 1 and 9. LESSEE shall pay, or cause to be paid, before delinquency, any and all taxes levied or assessed and which become payable during the term hereof upon all of LESSEE’S personal property, equipment, furniture and fixtures located on the premises.
18. Estoppel Certificate.
At any time and from time to time but on not less than ten (10) days prior written request by LESSOR, LESSEE shall execute, acknowledge and deliver to LESSOR, promptly upon request, a certificate certifying (a) that this Lease is unmodified, and in full force and effect; (or if there have been modifications, that this Lease is in full force and effect, as modified, and stating the date and nature of each modification), (b) the date, if any, to which rental and other sums payable hereunder have been paid, (c) that no notice has been received by LESSEE of any default which has not been cured, except as to defaults specified in said certificate and (d) such other matters as may be reasonably requested by LESSOR. Any such certificate may be relied upon by any prospective purchaser, mortgagee or beneficiary under any deed of trust of the building or any part thereof.
19. Holding Over.
If LESSEE remains in possession of the premises or any part thereof after the expiration of the term hereof, with the express written consent of LESSOR, such occupancy shall be a tenancy from month-to-month at a rental in an amount determined by LESSOR in its sole discretion, plus all other charges, payable hereunder, and upon all the terms hereof applicable to a month-to-month tenancy.
20. Entry by LESSOR.
LESSOR reserves and shall at any and all reasonable timesduring all normal business hours have the right to enter the premises, upon reasonable prior notice to LESSEE (except in cases of emergency), to inspect the same, to submit said premises to prospective purchasers or tenants, to post notices of non-responsibility, and to alter, improve or repair the premises and any portion of the premises that LESSOR may deem necessary or desirable, without abatement of rent and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, always providing that the entrance to the premises shall not be blocked thereby, and further providing that the business operations of the LESSEE shall not be interfered with unreasonably. LESSEE hereby waives shall not be deemed to have waived, and expressly retains, hereby waives any claim for damages or for any injury or inconvenience to or interference with LESSEE’S businessbusiness, any loss of occupancy or quiet enjoyment of the premises, and any loss occasioned thereby arising from the negligence or willful misconduct of LESSOR, its officers, employees, or agents in connection with such entry or work. For each of the aforesaid purposes, LESSOR shall at all times have and retain a key with which to unlock all of the doors in, upon and about the premises, excluding LESSEE’S vaults, safes and files, and 83886.00001\44330917.283886.00001\44330917.1
18 LESSOR shall have the right to use any and all means which LESSOR may deem proper to open said doors in an emergency, in order to obtain entry to the premises without liability to LESSEE except for any failure to exercise due care for LESSEE’S property. Any entry to the premises obtained by LESSOR by and of said means, or otherwise, if conducted in accordance with this Lease, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the premises, or an eviction of LESSEE from the premises or any portion thereof.
21. Reconstruction.
A. In the event the premises or improvement(s), of which the premises are a part, are damaged by fire or other perils covered by extended coverage insurance, LESSEE agrees to forthwith repair the same; and this Lease shall remain in full force and effect, except that LESSEE shall be entitled to a proportionate reduction of the rent while such repairs are being made, such proportionate reduction to be based upon the extent to which the making of such repairs shall materially interfere with the business carried on by the LESSEE in the premises. If the damage is due to the fault or neglect of LESSEE or its employees, there shall be no abatement of rent.
B. In the event the premises or the building, wharf, dock, or new improvement(s) of which the premises are a part, are damaged as a result of any cause other than the perils covered by fire and extended coverage insurance, then LESSEE shall forthwith repair the same, provided the extent of the destruction be less than twenty percent (20%) of the then full replacement cost of the premises or improvements, of which the premises are a part. In the event the destruction of the premises or the new improvement(s), is equal to twenty percent (20%) or to an extent greater than twenty percent (20%) of the full replacement cost, the LESSEE shall have the option: (1) to repair or restore such damage, this Lease continuing in full force and effect, but the rent to be proportionately reduced as hereinabove in this Paragraph 21 provided; or (2) give notice to LESSOR at any time within sixty (60) days after such damage terminating this Lease as of the date specified in such notice, which date shall be no less than thirty (30) and no more than sixty (60) days after the giving of such notice. In the event of giving such notice, this Lease shall expire and all interest of the LESSEE in the premises shall terminate on the date so specified in such notice and the rent, reduced by a proportionate amount, based upon the extent, if any, to which such damage materially interfered with the business carried on by the LESSEE in the premises, shall be paid up to date of such termination.
C. Notwithstanding anything to the contrary contained in this Paragraph 21, LESSEE shall not have any obligation whatsoever to repair, reconstruct or restore the premises when the damage resulting from any casualty covered under this Paragraph occurs during the last six (6) months of the term of this Lease or any extension thereof.
D. LESSOR shall not be required to repair any injury or damage by fire or other cause, or to make any repairs or replacements of any panels, decoration, office fixtures, railings, floor covering, partitions, or any other property installed in the premises by LESSEE.
E. The LESSEE shall not be entitled to any compensation or damages from LESSOR for loss of the use of the whole or any part of the premises, LESSEE’S personal property 83886.00001\44330917.283886.00001\44330917.1
19 or any inconvenience or annoyance occasioned by such damage, repair, reconstruction or restoration.
22. Default.
The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by LESSEE:
A. The vacating or abandonment of the premises by LESSEE.
B. The failure by LESSEE to make any payment of rent or any other payment required to be made by LESSEE hereunder, as and when due where such failure shall continue for a period of thirty three (30) days after written notice thereof by LESSOR to LESSEE.
C. The failure by LESSEE to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by LESSEE other than described in Paragraph 22(B) above, where such failure shall continue for a period of thirty (30) days after written notice thereof by LESSOR to LESSEE; provided, however, that if the nature of LESSEE’S default is such that more than thirty (30) days are reasonably required for its cure, then LESSEE shall not be deemed to be in default if LESSEE commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion.
D. The making by LESSEE of any general assignment or general arrangement for the benefit of creditors; or the appointment of a trustee or a receiver to take possession of substantially all of LESSEE’S assets located at the premises or of LESSEE’S interest in this Lease, where possession is not restored to LESSEE within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of LESSEE’S assets located at the premises or of LESSEE’S interest in this Lease, where such seizure is not discharged in thirty (30) days.
23. Remedies in Default.
In the event of any such material default or breach by LESSEE, LESSOR may at any time thereafter, with or without notice or demand and without limiting LESSOR in the exercise of a right or remedy which LESSOR may have by reason of such default or breach:
A. Terminate LESSEE’S right to possession of the premises by giving LESSEE notice of termination, in which case this Lease shall terminate and LESSEE shall immediately surrender possession of the premises to LESSOR. In such event LESSOR shall be entitled to recover from LESSEE all damages incurred by LESSOR by reason of LESSEE’S default including, but not limited to, the cost of recovering possession of the premises; expenses of reletting, including necessary renovation and alteration of the premises, reasonable attorney’s fees, any real estate commission actually paid; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that LESSEE proves could be reasonably avoided; that portion of the leasing commission paid by LESSOR and applicable to the unexpired term of this Lease. Unpaid installments of rent or other sums shall bear interest from the date due at the rate of twelve percent (12%) per annum. In the event LESSEE shall have abandoned the premises, LESSOR has the option of (a) taking possession of the 83886.00001\44330917.283886.00001\44330917.1
20 premises and recovering from LESSEE the amount specified in this paragraph, or (b) proceeding under the provision of the following paragraph 23(B).
B. Maintain LESSEE’S right to possession, in which case this Lease shall continue in effect whether or not LESSEE shall have abandoned the premises. In such event LESSOR shall be entitled to enforce all of LESSOR’S rights and remedies under this Lease, including the right to recover the rent as it becomes due hereunder.
C. LESSOR may at LESSOR’S election use LESSEE’S personal property and trade fixtures or any of such property and fixtures without compensation and without liability for use or damage, or store them for the account and at the cost of LESSEE. The election of one remedy for any one item shall not foreclose an election of any other remedy for another item or for the same item at a later time.
D. Pursue any other remedy now or hereafter available to LESSOR under the laws or judicial decisions of the State in which the premises are located.
24. Notice of LESSOR’Ss Default; LESSEE’Ss Waiver.
LESSOR shall not be considered to be in default under this Lease unless (1) LESSEE has given notice specifying the default and (2) LESSOR has failed for thirty (30) days to cure the default, if it is curable, or to institute and diligently pursue reasonable corrective or ameliorative acts for non-curable defaults. LESSEE shall have the right of termination for LESSOR’S default only after notice to and consent by all mortgagees under mortgages then existing under provisions of this Lease relating to purchase or construction of improvements. LESSEE waives the protections of Civil Code Sections 1932 and 1933.
25. Eminent Domain.
A. If more than twenty-five percent (25%) of the premises shall be taken or appropriated by any public or quasi-public authority under the power of eminent domain, either party hereto shall have the right, at its option, to terminate this Lease, and LESSOR shall be entitled to any and all income, rent, award, or any interest therein whatsoever which may be paid or made in connection with such public or quasi-public use or purpose, and LESSEE shall have no claim against LESSOR for the value of any unexpired term of this Lease, except that LESSEE shall be entitled to any portion of such award that is specifically attributable to the unamortized cost or remaining useful value of improvements constructed or paid for by LESSEE. If more than twentyfive percent (25%) of the premises is taken, and neither party elects to terminate as herein provided, the rental thereafter to be paid shall be equitably reduced. If any part of the real property described in Exhibit “A” may be so taken or appropriated, LESSOR shall have the right at its option to terminate this Lease and shall be entitled to the entire entire award as above provided.
B. If more than twenty-five percent (25%) of the premises is taken, LESSEE shall have the right to elect to terminate this Lease. If LESSEE elects not to terminate this Lease because of said taking (25% or less), the rental thereafter to be paid shall not be reduced or abated. 83886.00001\44330917.283886.00001\44330917.1
21 C. LESSOR shall be entitled to any and all award, judgment or payment made by any public or quasi-public entity condemning all or portion of the premises and LESSEE hereby waives any and all right to such compensation, award or payment.
26. Access.
A. LESSEE shall have access to the premises twenty-four (24) hours each day.
B. Notwithstanding any other provision of this Lease, LESSOR shall be entitled to construct improvements to or around the premises related to LESSOR’S use of La Plaza Park and adjacent roadways. LESSOR shall ensure LESSEE continues to have ingress and egress from the premises. LESSOR shall not be liable for, and LESSEE shall not be entitled to any payment to LESSEE for changes in LESSEE’S access to the premises.
27. General Provisions.
A. Plats and Riders. Clauses, plats and riders, if any, signed by the LESSOR and the LESSEE and endorsed on or affixed to this Lease are a part hereof.
B. Waiver. The waiver by LESSOR or any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition on any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by LESSOR shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease, other than the failure of the LESSEE to pay the particular rental so accepted, regardless of LESSOR’S knowledge of such preceding breach at the time of the acceptance of such rent.
C. Notices. All notices and demands which may or are to be required or permitted to be given by either party to the other hereunder shall be in writing. All notices and demands by the LESSOR to the LESSEE shall be sent by United States mail, postage prepaid, addressed to the LESSEE at the premises, or to such other place as LESSEE may from time to time designated in a notice to the LESSOR. All notices and demands by the LESSEE to the LESSOR shall be sent by United States mail, postage prepaid, addressed to the City of Cotati, City Manager, 201 W. Sierra Avenue, Cotati, California 94931-4217, or to such other person or place as the LESSOR may from time to time designate in a notice to the LESSEE.
D. Joint Obligation. If there be more than one LESSEE the obligations hereunder imposed upon LESSEE shall be joint and several.
E. Marginal Headings. The marginal headings and paragraph titles to the paragraphs of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part hereof.
F. Time. Time is of the essence of this Lease and each and all of its provisions in which performance is a factor.
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22 G. Successors and Assigns. The covenants and conditions herein contained subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto.
H. Recordation. A short form memorandum of this Lease shall be recorded immediately after its execution.
I. Quiet Possession. Upon LESSEE paying the rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on LESSEE’S part to be observed and performed hereunder, LESSEE shall have quiet possession of the premises for the entire term hereof, subject to all of the provisions of this Lease.
J. Late Charges. LESSEE hereby acknowledges that late payment by LESSEE to LESSOR of rent or other sums due hereunder will cause lessor LESSOR to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges. Accordingly, if any installment of rent or of a sum due from LESSEE shall not be received by LESSOR or LESSOR’S designee within five (5) days after said amount is due, then LESSEE shall pay to LESSOR a late charge equal to twelve (12%) percent of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the cost the LESSOR will incur by reason of the late payment by LESSEE. Acceptance of such late charge by the LESSOR shall in no event constitute a waiver of LESSEE’S default with respect to such overdue amount, nor prevent LESSOR from exercising any of the other rights and remedies granted hereunder.
K. Prior Agreements. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. This Lease shall not be effective or binding on any party until fully executed by both parties.
L. Inability to Perform. This Lease and the obligations of the LESSOR hereunder shall not be affected or impaired because the LESSOR is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of strike, labor troubles, acts of God, or any other cause beyond the reasonable control of the LESSOR.
M. Attorney’s fees. In the event of any action or proceeding, including arbitration, brought by either party against the other under this Lease, the prevailing party shall be entitled to recover all costs and expenses, including the fees of its attorneys in such action or proceeding in such amount as the court or arbitrator may adjudge reasonable as attorney’s fees.
N. Sale of Premises by LESSOR. In the event of any sale of the premises, LESSOR shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale, provided that (i) the purchaser or transferee has executed and delivered to LESSEE a written assumption agreement expressly 83886.00001\44330917.283886.00001\44330917.1
23 assuming all such covenants and obligations of LESSOR under this Lease, and (ii) a copy of such assumption agreement has been delivered to LESSEE; and the purchaser, at such sale or any subsequent sale of the premises shall be deemed, without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the LESSOR under this Lease.
O. Separability. Any provision of this Lease which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof and such other provision shall remain in full force and effect.
P. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
Q. Choice of Law. This Lease shall be governed by the laws of the State of California.
R. Signs and Auctions. LESSEE shall not place any sign upon the premises or building or conduct any auction thereon without LESSOR’S prior written consent.
S. LESSEE’S Duty to Surrender. At the expiration or earlier termination of the term, LESSEE shall surrender to LESSOR the possession of the premises. Surrender or removal of improvements fixtures, trade fixtures, and improvements shall be as directed in provisions of this Lease on ownership of improvements at termination. LESSEE shall leave the surrendered premises and any other property in good and broom-clean condition except as provided to the contrary in provisions of this Lease on maintenance and repair of improvements.
All property that LESSEE is required to surrender shall become LESSOR’S property at termination of the Lease. All property that LESSEE is not required to surrender but that LESSEE does abandon shall, at LESSOR’S election, become LESSOR’S property at termination.
If LESSEE fails to surrender the premises at the expiration or sooner termination of this Lease, LESSEE shall defend and indemnify LESSOR from all liability and expense resulting from the delay or failure to surrender, including, without limitation, claims made by any succeeding LESSEE founded on or resulting from LESSEE’S failure to surrender.
The parties hereto have executed this Lease on the dates specified immediately adjacent to their respective signatures.
[Signatures Continue on Subsequent Page]
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24 LESSOR/CITY OF COTATI:
By: _____________________________ Date: ______________________________ This Lease was approved by the City Council of the City of Cotati on _______________________, by Resolution No. _____________.
LESSEE/COTATI RANCHO ADOBE FIRE PROTECTION DISTRICT:
By: ___________________________ Date: ______________________________ _________________, President
This Lease was approved by the Board of Directors of the Cotati Rancho Adobe Fire Protection District on ______________________, by Resolution No. _____________________.
Approved as to form: Approved as to form:
_________________________________ ____________________________________ ___________________, City Attorney _____________________, Attorney for the Cotati Rancho Adobe Fire Protection District
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25 Exhibit A
Map of Premises
83886.00001\44330917.283886.00001\44330917.1
26 Exhibit B
Parking Area
83886.00001\44330917.283886.00001\44330917.1
27 Exhibit C
Form of Certificate of Insurance