HomeMy WebLinkAboutRDA Reso 06-2008
RESOLUTION NO. 06-2008
REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF
THE CITY OF SOUTH SAN FRANCISCO AUTHORIZING
THE EXECUTION OF A LEASE WITH RESPECT TO 80
CHESTNUT AVENUE BY AND BETWEEN THE AGENCY
AND THE SOUTH SAN FRANCISCO HISTORICAL SOCIETY
WHEREAS, the Redevelopment Agency of the City of South San Francisco (the
"Agency") is a redevelopment agency formed, existing and exercising its powers pursuant to the
provisions of the California Community Redevelopment Law, Health and Safety Code Section
33000 et seq. (the "Community Redevelopment Law"); and
WHEREAS, the Agency is charged with implementing the Redevelopment Plan (the
"Redevelopment Plan") as adopted for the EI Camino Corridor Redevelopment Area (the
"Project Area") within the City of South San Francisco (the "City"); and
and
WHEREAS, the Agency has adopted an implementation (the "Implementation Plan");
WHEREAS, the Agency is authorized to convey land under Sections 33431 and 33433 of
the Health and Safety Code upon the consent of the City Council of the City of South San
Francisco ("City Council") an in furtherance of the implementation of the Redevelopment Plan;
and
WHEREAS, the Agency owns that certain real property located at 80 Chestnut Street,
known as a portion of San Mateo County Assessor's Parcel Number 011-324-160 and which
consists of approximately 30,000 square feet of land together with improvements consisting of a
building, landscaping and paved surfaces, located within the Project Area (the "Property"); and
WHEREAS, in order to carry out and implement the Redevelopment Plan, the Agency
desires to enter into that certain Lease (the "Lease") between the Agency and the South San
Francisco Historical Society (the "Lessee") with respect to the Property setting forth the terms
and conditions under which the Ag'ency shall lease the Property to the Lessee and Lessee shall
develop the Property for a historical museum (the "Project"); and
WHEREAS, the Lease furthers the goals of the Agency set forth in the Implementation
Plan as it will avoid blighting conditions by ensuring that the Property is not vacant, is
maintained to a high standard, and the Project to be located thereon will provide a service to the
community; and
WHEREAS, under the Lease, the Lessee shall ground lease the Property from the
Agency for a term of up to twenty-five (25) years as more particularly described in the summary
report made in accordance with Section 33433 of the California Health and Safety Code (the
"33433 Summary Report"); and
WHEREAS, pursuant to Section 33433 of the Community Redevelopment Law the
Agency is authorized, with the approval of the City Council after a duly noticed public hearing,
to convey the Property pursuant to the Redevelopment Plan upon a determination by the City
Council that the conveyance of the Property will assist in the elimination of blight, that the
consideration for the Property is not less than the fair market value or fair reuse value of the
Property in accordance with the covenants and conditions governing the ground lease of the
Property and improvement costs required thereof, and that the ground lease of the Property under
the terms and conditions set forth in the Lease is consistent with the Implementation Plan; and
WHEREAS, a public hearing of the City Council on the proposed Lease, held on April 9,
2008, was duly noticed in accordance with the requirements of Health and Safety Code Sections
33431 and 33433; and
WHEREAS, the proposed Lease and the 33433 Summary Report were available for
public inspection prior to the joint public hearing consistent with the requirements of Health and
Safety Code Section 33433; and
WHEREAS, at the public hearing on the proposed Lease the City Council and Agency
reviewed and evaluated all of the information, testimony, and evidence presented, including the
33433 Summary Report, pertaining to the findings required pursuant to Health and Safety Code
Section 33433; and
WHEREAS, the City Council has previously determined, in its adoption of the ordinance
approving the Redevelopment Plan, that the Property is a portion of a blighted area, and is
underutilized, as further set forth in the Implementation Plan as previously adopted and amended
by the Agency; and
WHEREAS, the Agency has duly considered all of the terms and conditions of the
proposed Lease and believes that the redevelopment of the Property pursuant to the Lease is in
the best interests of the City and the health, safety, and welfare of its residents, and in accord
with the public purposes and provisions of applicable state and local laws and requirements; and
WHEREAS, all actions required by all applicable law with respect to the proposed Lease
have been taken in an appropriate and timely manner.
NOW, THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH
SAN FRANCISCO DOES RESOLVE AS FOLLOWS:
Section 1. The Agency finds and determines that, based upon substantial evidence
provided in the record before it, the consideration for the Agency's disposition of the Property
pursuant to the terms and conditions of the Lease is not less than the fair reuse value taking into
account the use and with the covenants and conditions and development costs authorized by the
Lease.
Section 2. The Agency hereby finds and determines that the disposition of the
Property pursuant to the Lease will further the purposes identified in the Redevelopment Plan to
eliminate blight within the Project Area.
Section 3. The Agency hereby finds and determines that the Lease is consistent with
the provisions and goals of the Implementation Plan.
Section 4. The Executive Director of the Agency (or his designee) is hereby
authorized on behalf of the Agency to execute the Lease and to make such revisions to the Lease,
with approval of legal counsel, which do not materially or substantially increase the: Agency's
obligations thereunder, to sign all documents, to make all approvals and take all actions
necessary or appropriate to carry out and implement this Resolution and to administer the
Agency's obligations, responsibilities and duties to be performed under the Lease and related
documents.
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I hereby certify that the foregoing Resolution was regularly introduced and adopted by
the Redevelopment Agency of the City of South San Francisco at a regular meeting held on
the 9th day of April 2008 by the following vote:
AYES:
Boardmembers Mark N. Addiego Richard A. Garbarino, Kevin Mullin,
Vice Chair Karvl Matsumoto and Chair Pedro Gonzalez
NOES: None
ABSTAIN: None
ATTEST:
ABSENT: None
LEASE AGREEMENT
by and between the
REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO
and
THE SOUTH SAN FRANCISCO HISTORICAL SOCIETY
(ElO Chestnut Avenue)
April 1,2008
TABLE OF CONTENTS
RE C ITA l S ................................................................................ ...... ........ ........... . .. ...... ...... .. .. ... .... .. .. ........ ...... ... ..... ......... 1
ARTICLE I DEFINITIONS; DEMISE OF PROPERTY ...........................................................................................................1
1.1 DEFINITIONS...................................... .................................................................................................................. 1
1.2 INCORPORATION OF RECITALS. ............................................................................................................................... 2
1.3 CREATION OF LEASE. ..... .... ........... ........................ .......... .............................................. ......... ............... ................2
ARTICLE II TERM OF LEASE; RENT; USE OF PREMISES ................................................................................................ 3
2.1 TERM............................................................................................................................................ ..................... 3
2.2 RENT. ........................................................................................................................................................ ........ 3
2.3 ADDITIONAL RENT. ............................................................................................................................................... 3
2.4 USE OF PREMISES. ................ ...... .................... .............. ..................... .......... .............. ........... ....... ........................ 3
ARTICLE III TAXES, ASSESSMENTS AND OTHER CHARGES .........................................................................................3
3.1 IMPOSITIONS. ..................................................................................................................................................... .3
3.1.1 Installments.................... ...... ......... ....... ............ .......... ............. ......... .................. ......... .................... .........3
3.1.2 Evidence of Payment .................................................................................................... ...........................4
3.2 TENANT RIGHT TO CONTEST. ................................................................................................................................. 4
3.3 TENANT DUTY TO FilE. .......... ...... ............. .......... ....... ..... ........... ............ ..... .......... ..... ........................................... 4
ARTlC LE IV UT I LIT I ES AND SERVICES ........ ......n ............ .......... ....... ............ .... ................ ......................... ........ ....... ...... 4
4.1 LANDLORD'S 0 BLIGA TION S.. .............. ................ .............. ...... ........... .............. ............... .............. ........... ............. 4
4.2 I NT ERRUPTI ON OF i ELEPHON E SERVIC E" ..................... ....... .... ............... ...................... ................ ............... ...... 4
4.3 TENANT'S OB LIGATIONS..... ............... ......".... ..... ................ ..................... .............. ..... ............... ................. .......... 5
ARTICLE V ALTERATIONS AND NEW CONSTRUCTION .................................................................................................. 5
5.1 CHANGES AND ALTERATIONS......................"......... ....... ........................ ..... ........... ......... ...... .... ........ .................. ...... 5
5.2 No RIGHT TO DEMOLISH........................................................................................................................................ 6
5.3 COMPLIANCE WITH LAws. ........... .............................................................. ..... ......... .... .... .... ........... ................. .......6
5.4 RIGHTS OF ACCESS. ................................. ............................................................................................................6
5.5 INDEMNITY. .......................................................................................................................................... ...............6
5.6 MECHANIC'S liENS. .............................................................................................................................................. 7
ARTICLE VI MANAGEMENT, USE AND OPERA TI()N OF THE PROPERTy........................................................................ 7
6.1 PERMITTED USES. ................ ..... ... .............. .................. ....... .......................................... ... .............. ......................7
6.2 NONDiSCRIMINATION....................................................................................................................... ......................7
6.3 EASEMENTS; RESERVATION OF RIGHTS. ................................................................................................................... 7
6.4 MAINTENANCE AND INSPECTION OF THE PREMISES. ....................................................................................................7
6.4.1 Maintenance. . ......... ............... ...... ............ ........ .............. ........ ..................... ....... ......... .................. ..... ...... 7
6.4.2 Inspection. ... ........ ................... ............... ...... ....... ....... ....... .................. ....................................... ....... .......8
6.5 AGENCY'S RIGHT TO PERFORM TENANT OBLIGATIONS. ............................................................................................... 8
6.6 AGENCY NOT OBLIGATED TO PERFORM REPA.lRS. ...................................................................................................... 8
6.7 COMPLIANCE WITH LAWS. ...... .......... .......................... ....... ..................... ................... ............. .................. ..............8
6.8 TENANT RIGHT TO CONTEST. ................................................................................................................................. 8
ARTICLE VII CONDITION OF THE PREMISES; ENVIRONMENTAL MATTERS ................................................................... 9
7.1 CONDITION OF THE PREMiSES..................................................................................................................... ............ 9
7.1.1 AS-IS Condition. ............................................................................................... ........................................9
7.1.2 No Representations. .................................................................................................................................9
7.2 TENANT'S COVENANTS. ......................................................................................................................................... 9
7.3 RELEASE OF CLAIMS. ......... ...... ............................................. ..... ..... ... ................... ..... ....... ................... ............... 10
7.4 ENVIRONMENTAL INDEMNITY. ............ ..... .... ....... ... ............................ ............................... .... ......... .......... ..............11
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7.~ DEFiNITIONS............................................................................................................................................. ......... 11
7.5.1 Hazardous Materials. ..............................................................................................................................11
"52 Hazardous Materials Laws.......................................................................................................................12
ARTl C LE VIII [RESERVED] ...................... ....... ....... ......... ........... ............. ........ ......... ......... ............... ................. ............. 12
ARTICLE IX INDEMNITY AN D INSU RANC E ............ ...... ...... ............... ......... .............. ............. ........ ......... ........... ....... ...... 12
9.1 INDEMNITY. ................................................................................................................................................... .... 12
9.2 INSURANCE REQUIREMENTS. ................................................................................................................................ 12
ARTIC LE X DAMAGE AN D DESTRUCT ION.......... .......... .......... .................... ............................. ........ .............................. 13
10.1 DAMAGE OR DESTRUCTION. ..................................................................................................................................13
10.2 NOTICE REQUIRED. .......... ...... ....... ...... ..................... .............. ...... ........ ........ .......... .......... ..... .......... ....... .... ......... 13
10.3 AGENCY'S RIGHT TO TERMINATE. ................. ......................................................................................................... 13
ARTICLE XI AGENCY'S RIGHT TO PERFORM TENANT'S COVENANTS......................................................................... 14
ARTICLE XII MORTGAGE 5 ..................... .............. .......... ........ .......... ................... ............ ......... ...... ....... .......... ............. 14
12.1 NON-SUBORDINATION OF FEE. .............................................................................................................................14
ARTICLE XIII ASSIGNMENT, TRANSFER, SUBLETTING; NONDISTURBANCE AND ATTORNMENT ................................14
13.1 RESTRICTIONS ON TRANSFER, ASSIGNMENT AND ENCUMBRANCE................................................................................14
13.2 No INVOLUNTARY TRANSFERS. ........ ......... ...... .................. .............................. ......... ...................... .......... ........ ..... 14
13.3 ASSUMPTION AGREEMENT AND RELEASE. ............................................................................................................... 15
13.4 SALE BY AGENCY. ..............................................................................................................................................15
13.5 NON-DISTURBANCE. .......... ...... ... ........ ....... ............................. ... ......................................................... ...... .......... 15
ARTICLE XIV DEFAULT, REMEDIES AND TERMINATION ..............................................................................................15
14.1 EVENT OF DEFAULT. ........................................................................................................................................... 15
14.2 NOTICE AND OPPORTUNITY TO CURE. ....................................................................................................................17
14.2.1 Notice of Oefault. ....................................................................................................................................17
14.2.2 Failure to Give Notice; No Waiver.............................................................................................................17
14.3 REMEDIES UPON DEFAULT. .................................................................................................................................. 17
14.3.1 Agency's Remedies. ...............................................................................................................................17
14.3.2 Remedies Upon Abandonment. ...............................................................................................................17
14.3.3 Agency Right to Continue Lease. .............................................................................................................17
14.3.4 Right to Injunction; Specific Performance. .................................................................................................18
14.3.5 Right to Receiver. ...................................................................................................................................18
14.4 REMEDIES CUMULATIVE. .............. ............. .... ........ .............. .............. ............ ...... ........... ...... ........... .... ... ............. 18
14.5 No ELECTION OF REMEDIES. ................................................................................................................................18
14.6 SURVIVAL OF OBLIGATIONS. ........ ....... ............................ ............ ........ .............. ....... ............... ....... ...... ................. 18
ARTICLE y.;.J G EN ERAL PRO VI SI ONS .............. .................. ......... .......... ........... ................ .......................................... ....18
15.1 FORCE MAJEURE; EXTENSION OF TIMES OF PERFORMANCE. ......................................................................................18
15.3 AGENCY'S RIGHTTO ENTER THE PREMISES. ...........................................................................................................19
15.4 REPRESENTATIONS OF AGENCY AND TENANT. .........................................................................................................19
15.5 MISCELLANEOUS. ........................................................................................................................................... .... 20
15.5.1 Severability. .............................. ............... .......... ............................................. ..... .................. ...... .......... 20
15.5.2 Notices. . ............................ ................................. .............................................. ........ ..... .............. .......... 20
15.5.3 Captions; Construction. ........... .......... .......... .......... ......... ..... ..... ........... ........................ .......... .................. 21
15.5.4 Successors and Assigns. .............................................. .......................................................................... 21
15.5.5 Memorandum of Lease. .... .................................. ........... .................. ....... ........................ ........... .............21
15.5.6 Governing Law. .................. ....... ....... ............................................ ................................ .......................... 21
15.5.7 Attorney's Fees. ... ............. ........................ ......... ....................... ....................... ..... .......................... .......21
15.5.8 Indemnity Includes Defense Costs.............. .............................................. ......... ............. ................. .........21
15.5.9 No Third-Party Beneficiaries; Oisclaimer of Partnership, Lender/Borrower Relationship. ................................ 21
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15.5.10
15.5.11
15.5.12
15.5.13
15.5.14
15.5.15
Exhibit A
Exhibit B
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Entire Agreement....... .... ....... ...... ................... ......... ........... ................... ........ ....................... .............. 22
Waiver; Modification................. ........... ................ .............................. .............. ..... ....... ............. ..........22
Time is of the Essence. .................. ............... .......... ...................... ............. ........................................ 22
Counterparts. ................................................................................................................................. ...22
Action by the Parties. .................. .......................................................... ............................................. 22
Non-Liability of Officials, EmploYE~es and Agents. .................................................................................. 22
Property (legal description)
Form of Memorandum of Lease
iii
This LEASE AGREEMENT (this "ILease" or this "Agreement"), dated as of July 1, 2008 (the
"Effe~t.ive Date"), is entered into by and between the Redevelopment Agency of the City of South
San Francisco, a public body, corporate and politic (hereafter the "Agency" or the "Landlord") and The
South San Francisco Historical Society, a California non-profit corporation (the "Tenant"). Landlord and
Tenant are hereafter each referred to as a "Party" and collectively referred to as the "Parties."
RECITALS
A. The Agency is a Redevelopment Agency formed, existing and exercising its powers
pursuant to the provisions of the California Community Redevelopment Law, Health and Safety Code
Section 33000 et seq. (the "Community Redevelopment Law"). Ordinance No. 1132-93 in June, 1993,
(as thereafter amended and as may be amended from time to time, the "Redevelopment Plan"), and
establishing the EI Camino Corridor Redev6!lopment Project Area (the "Project Area").
B. The Agency has heretofore adopted an Implementation Plan for the redevelopment of the
Project Area (the "Implementation Plan").
C. The Agency is the owner of fee title of real property located at 80 Chestnut Avenue, City of
South San Francisco (the "Property"), as more particularly described in Exhibit A attached hereto and
incorporated herein by this reference. The Property is located in the Project Area and is governed by the
Redevelopment Plan.
D. The Property is improved with a one-story building, paving and landscaping (the
"Premises") .
E. The Tenant desires to lease the Premises from the Agency and for the operation of a
historical museum ("Museum") and related parking, and the Agency desires to lease the Premises to the
Tenant.
F. The Agency has determined that this Agreement is consistent with the Redevelopment
Plan and the Implementation Plan for the Project Area, will be of benefit to the Project Area, and will be
consistent with and further the goals of the Community Redevelopment Law and the Redevelopment Plan
by assisting in the elimination of blight, ilncreasing employment opportunities in the Project Area, and
providing entertainment and recreational sE~rvices to residents of the City and the Project Area.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Agency and the Tenant hereby agree as of the Effective Date as follows.
ARTICLE I
DEFINITIONS; DEMISE OF PROPERTY
1.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth
in this Section. Additional definitions are set forth in the Recitals and the text of this Agreement.
(a) "Applicable Laws" is defined in Section 5.3.
(b) "Claims" is defined in Section 3.2.
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(C) "Commencement Date" is defined in Section 2.1.
ld) "Default Rate" is defined in ~A.rticle XI.
(e) "Expiration Date" is defined in Section 2.1.
(D "Force Majeure" is defined in Section 15.1.
(g) "Hazardous Materials" is dl3fined in Section 7.5.1.
(h) "Hazardous Materials Claims" is defined in Section 7.2(c).
(i) "Hazardous Materials Laws" is defined in Section 7.5.2.
U) "Impositions" is defined in Section 3.1.
(k) "Improvements" is defined in Section 5.1.
(I) "Indemnitees" is defined in Section 3.2.
(m) "Late Payment Penalty" is defined in Section 2.2.
(n) "Lease Termination" is defined in Section 2.1.
(0) "Museum" is defined in Recital E.
(p) "Premises" is defined in Recital D.
(q) "Property" is defined in Recital C.
(r) "Remedial Work" is defined in Section 7.2(e).
(s) "Rent" is defined in Section 2.2.
(t) "Term" is defined in Section 2.1.
1.2 Incorporation of Recitals. The Parties hereby acknowledge the Recitals set forth above, and all
such Recitals are hereby incorporated into this Agreement.
1.3 Creation of Lease. Agency hereby leases to Tenant, and Tenant hereby leases from Agency, the
Premises for the Term subject to the terms and conditions and for the purposes set forth in this Agreement.
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ARTICLE \I
TERM OF LEASE:; RENT; USE OF PREMISES
2.1 .' erm. The term of this Agreement (the "Term") shall commence on April 1, 2008 (the
"Commencement Date"), and unless terminated earlier pursuant to the provisions hereof, shall expire on
April 1 , 2013 (the "Expiration Date"). The Term will automatically renew on the Expiration Date for one
year, and will renew annually on April 1 of each year until April 1 , 2033, unless either Party sooner
terminates this Agreement by ninety (90) days written notice to the other Party, or Tenant's default under
this Agreement ("Lease Termination.") The Parties agree to execute and record a Memorandum of this
Lease in the Official Records of San Mateo County in accordance with Section 15.5.5 of this Agreement.
2.2 Rent. Commencing on the Commencement Date, the Tenant shall pay to the Agency One Dollar
($1.00) rent per year for the Premises ("Rent"). Rent shall be due and payable to the Agency annually on
April 1 of each year during the Term, at the address shown in Section 15.5.2 or such other place as the
Agency may designate in writing.
2.3 Additional Rent. As additional Rent, the Tenant shall pay and discharge when due, all Impositions
described in Article III, all insurance premiums, utility costs, and all other liabilities and obligations which the
Tenant assumes or agrees to payor undertake pursuant to this Agreement.
2.4 Use of Premises.
Tenant shall use all, or substantially all, of the Premises as a Historical Museum. The hours and
days of operation will be negotiated by and between Tenant and the Executive Director of
Agency (or his designee) and are subject to Executive Director's approval.
ARTICLE III
TAXES, ASSESSMENTS AND OTHER CHARGES
3.1 Impositions. Throughout the Term, the Tenant shall pay prior to delinquency, all real property
taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments
whether general or special, ordinary or extraordinary, unforeseen, as well as foreseen, of any kind or nature
whatsoever, pertaining to the Premises or part thereof, including, but not limited to (i) any assessment, levy,
imposition or charge in lieu of or in substitution for real estate taxes, and (ii) any assessment for public
improvements or benefits which is assessed, levied, or imposed upon or which becomes due and payable
and a lien upon (a) the Premises or any part thereof or any personal property, equipment or other facility
used in the operation thereof, (b) the rent or income received by the Tenant from subtenants or licensees,
(c) any use or occupancy of the Premises or part thereof, or (d) this transaction or any document to which
the Tenant is a party creating or transferrin9 an estate or interest in the Premises or part thereof. All of the
foregoing are hereinafter referred to as "Impositions."
3.1.1 Installments. If by law any Imposition is payable, or may at the option of the taxpayer be
paid in installments (whether or not interest shall accrue on the unpaid balance of such Imposition), the
Tenant may pay the same together with any accrued interest on the unpaid balance of such Imposition in
installments as the same respectively become due and before any fine or penalty may be added thereto for
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the.npayment of any such installment and interest. Any Impositions relating to tax years that are only
r=,;:aily included in the Term of this Agreement shall be prorated between the Tenant and the Agency.
3.1.2 Evidence of Payment. Upon request by the Agency, the Tenant shall furnish, in form
satisfactory to the Agency, evidence of payment prior to delinquency of all Impositions payable by the
Tenant.
3.2 Tenant Riqht to Contest. The Tenant shall have the right before any delinquency occurs to contest
or object to the amount or validity of any Imposition by appropriate legal proceedings, but such right shall
not be deemed or construed in any way as relieving, modifying or extending the Tenant's covenant to pay
any such Imposition at the time and in the manner required by law. Any such contest shall be conducted in
accordance with and subject to the requirements of all Applicable Laws and otherwise in a manner that
does not subject the Agency's title to the Property to foreclosure or forfeiture. The Tenant shall indemnify,
defend, and hold the Agency and its elected and appointed officers, officials, employees, agents and
representatives (all of the foregoing, collectively the "Indemnitees") harmless from and against all liabilities,
losses, damages, fines, deficiencies, penalties, claims, demands, suits, actions, causes of action, legal or
administrative proceedings, judgments, costs and expenses (including without limitation reasonable
attorneys' fees and court costs) (all of the foregoing, collectively "Claims") arising as a result of or in
connection with any such contest brought by the Tenant. During any contest of an Imposition, the Tenant
shall (by payment of disputed sums, if necessary) prevent any advertisement of tax sale, foreclosure of, or
any divesting of the Agency's title, reversion or other interest in the Property or the Premises. Upon final
determination of the amount or validity of any Imposition contested pursuant to this Section 3.2, the Tenant
shall immediately pay such Imposition and all costs and expenses relating to such challenge.
3.3 Tenant Dutv to File. The Tenant shall have the duty of making or filing any declaration, statement
or report which may be necessary or advisable in connection with the determination, equalization, reduction
or payment of any Imposition which is or which may become payable by the Tenant under the provisions of
this Article III, and shall notify the Agency in writing upon making such filing, declaration, statement or
report, and the Agency shall not be responsible for the contents of any such declaration, statement or
report; provided however, the Agency shall cooperate with the Tenant in connection with the foregoing,
including joinder in any application pertaining thereto to the extent required under Applicable Law, all at no
cost to the Agency.
ARTICLE IV
UTILITIES AND SERVICES
4.1 Landlord's Obliqations. Landlord shall provide telephone service ("Telephone Service") to the
Premises, subject to Section 4.2, except to the extent that Tenant has, or in the future chooses to contract
separately for such service.
4.2 Interruption of Telephone Service. Tenant agrees that Landlord shall not be liable for damages, by
abatement of Rent or otherwise, for failure to furnish or delay in furnishing Telephone Service or for
diminution in the quality or quantity of Telephone Service when the failure, delay, or diminution is entirely or
partially caused by: (a) breakage, repairs, replacements, or improvements; (b) strike, lockout, or other labor
trouble; (c) inability to secure Telephone S,arvice after reasonable effort to do so; (d) accident or casualty;
(e) act or default of Tenant or other parties; or (D any other cause beyond Landlord's reasonable control.
Such failure, delay, or diminution shall not be considered to constitute an eviction or a disturbance of
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Te It'S L!:?'; and possession of the Premises or relieve Tenant from paying Rent or performing any of its
. ' '~atior;) under this Agreement. Without limiting the generality of the foregoing, Landlord shall not be
iiaole und~r any circumstances for a loss of or injury to property or for injury to or interference with Tenant's
bus:libs, Including loss of profits through, in connection with, or incidental to a failure to furnish the
Telephone Service in accordance with this Article IV, Landlord may comply with mandatory or voluntary
controls or guidelines promulgated by any government entity relating to the Telephone Service without
creating any liability of Landlord to Tenant under this Agreement as long as compliance with voluntary
controls or guidelines does not materially and unreasonably interfere with Tenant's use of the Premises.
Landlord reserves the right to terminate Telephone Service at any time upon sixty (60) days prior notice to
Tenant with no abatement of Rent or other compensation to Tenant.
4.3 Tenant's Obliqations. Subject to Sections 4.1 and 4.2, Tenant shall pay all costs and expenses
relating to the Premises of any kind or nature whatsoever. Such costs and expenses shall include, without
limitation, all amounts attributable to, paid or incurred in connection with the ownership, operation, repair,
restoration, maintenance and management of the Premises; real property taxes; rent taxes; gross receipt
taxes (whether assessed against the Agency or assessed against the Tenant and collected by the Agency,
or both); water and sewer charges; insurance premiums; utilities; refuse disposal; lighting (including outside
lighting); fire detection systems including monitoring, maintenance and repair; security; janitorial services;
labor; air-conditioning and heating; maintenance and repair costs and service contracts; costs of licenses,
permits and inspections; and all other costs and expenses paid or incurred with respect to the Premises.
ARTICLE V
AL TERA TIOINS AND NEW CONSTRUCTION
5.1 Chanqes and Alterations. During the Term of this Agreement, the Tenant shall not make any
change, alteration or addition to the Premises (collectively, the "Improvements") that would materially alter
the function or exterior appearance of the Premises without the prior written consent of the Agency. All
alterations and additions shall be made at the Tenant's sole cost and expense and shall comply with all of
the following:
(a)
Premises.
The improvements shall not materially impair the value or structural integrity of the
(b)
The Improvements shall be necessary for the operation of the Business.
(c) No Improvements shall be undertaken until the Tenant shall have obtained all required
permits and authorizations of any federal, state or local government or departments or subdivisions of any
of them, having jurisdiction.
(d) The Improvements shall be made in a good and workmanlike manner and in accordance
with all applicable permits and all Applicable Laws.
(e) During the construction of any Improvements in, to or of, the Premises, or the permitted
demolition or new construction or any restoration, the Tenant shall comply with the insurance requirements
set forth in Section 9,2, which policy or policies by endorsement thereto, if not then covered, shall also
1065228.2
5
ins .:; an' change, alteration or addition or new construction, including all materials and equipment
J,porElLed in, on or about the Premises.
(f) Prior to commencement of any construction, change, alteration or repair, the Tenant shall
deliver to the Agency not later than ten (10) business days written notice of the proposed work, a general
description of the proposed work and sufficient information to permit the Agency to post a notice of non-
responsibility on the Property and/or Premises.
5.2 No Riqht to Demolish. Notwithstanding any other provisions of this Article V, the Tenant shall have
no right to demolish the Improvements, once built, unless the Tenant shall have received the prior written
approval of the Agency.
5.3 Compliance with Laws. The Tenant shall carry out the construction of the Improvements in
conformity with all applicable state and federal laws and regulations, including without limitation, all
applicable state and federal labor laws and standards, and all applicable disabled and handicapped access
requirements, including without limitation, the Americans with Disabilities Act, 42 U .S.C. Section 12101, et
seq., California Government Code Section 4450, et seq., California Government Code Section 11135, et
seq., and the Unruh Civil Rights Act, California Civil Code Section 51, et seq. The Tenant shall comply with
all City ordinances and regulations relating to the conduct of construction, including without limitation, all
City ordinances and regulations relating to noise, construction hours, and maintenance of the construction
site. All of the foregoing state, federal and local laws, regulations and ordinances are hereafter referred to
as the "Applicable Laws."
5.4 Riqhts of Access. The Agency shall have the right of access to the Premises during normal
construction hours for purposes of assuring compliance with this Agreement, so long as the Agency
complies with all safety rules and does not unreasonably interfere with the progress of construction of the
Improvements. The Agency shall give the Tenant reasonable advance notice prior to exercising its rights
pursuant to this Section 5.4 except in the event of emergency in which case notice shall not be required.
5.5 Indemnitv. In lieu of and not withstanding any statute, regulation or rule that may otherwise affect
the terms of this Agreement, the Parties agree that all losses or liabilities incurred by a party shall not be
shared pro rata, but instead the Tenant and the Agency agree to the following:
The Tenant shall defend (with counsel reasonably acceptable to the Agency), indemnify and hold
harmless the Indemnitees from and against any and all present and future Claims arising during the term of
this Agreement from or in connection with the Tenant's failure to comply with all Applicable Laws relating to
the operation or maintenance of the Premises or the Improvements, or the Tenant's activities or
performance under this Agreement, whether such activity or performance is by the Tenant or by anyone
directly or indirectly employed by or contracted with by the Tenant and whether such Claim shall be
discovered before or after Lease Termination. The Tenant's indemnity obligations under this Section 5.5
shall not extend to Claims to the extent they arise as a result of the Indemnitees' gross negligence or willful
misconduct.
At its sole discretion, the Agency may participate at its own expense in the defense of any claim,
action or proceeding, but such participation shall not relieve the Tenant of any obligation imposed by this
Agreement. The Agency shall notify the Tenant promptly of any claim, action or proceeding and cooperate
fully in its defense.
1065228.2
6
1 ne Tenant agrees to defend, indemnify and hold harmless the Indemnitees from any claim, action
or prr"'eeding against the Indemnitees, arising solely out of the acts or omissions of the Agency in the
pei ;ic:H1Ce of this Agreem3nt. At its sole discretion, the Agency may participate at its own expense in the
defense of any claim, action or proceeding, but such participation shall not relieve the Agency of any
obligation imposed by this Agreement. The Agency shall notify the Tenant promptly of any claim, action or
proceeding and cooperate fully in the defensE~.
5.6 Mechanic's Liens. Subject to the right to contest the same prior to payment, the Parties agree and
shall keep the Premises and the Property free and clear of all mechanics' liens and other liens on account
of work done by or for a Party. Each Party shall indemnify, defend (with counsel reasonably acceptable to
the other Party) and hold such Party's Indemnitees harmless from and against all liability, loss, damages,
costs and expenses (including reasonable attorney's fees) incurred by or brought against a Party for claims
of lien of laborers or materialmen or others for work performed or materials or supplies furnished to a Party
or persons claiming under it. In the event any lien is recorded, the appropriate Party shall, within twenty
(20) days following such recordation, cause such lien to be removed of record by bonding or otherwise.
ARTICLE VI
MANAGEMENT, USE: AND OPERATION OF THE PROPERTY
6.1 Permitted Uses. The Tenant may use the Premises for the operation of the Museum as described
herein and for no other purposes without thE:: prior written consent of the Agency. The Tenant shall not use
or permit the Premises to be used in whole or in part during the Term for any purpose other than as
permitted pursuant to this Agreement or by the Agency's written consent.
6.2 Nondiscrimination. The Tenant herein covenants by and for the himself or herself, his or her heirs,
executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease
is made and accepted upon and subject to the following conditions: that there shall be no discrimination
against or segregation of any person or group of persons, on account of any basis listed in subdivision (a)
or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the
Premises nor shall the Tenant himself or herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation.
6.3 Easements: Reservation of Riqht~~. The Agency reserves the right to locate and construct its own
utilities and to grant nonexclusive easements across the Property for utility and other purposes including
the installation, maintenance, repair and mplacement of utilities; provided that the exercise of such rights
do not unreasonably interfere with the Tenant's use of the Premises for the purposes set forth herein.
6.4 Maintenance and Inspection of the Premises.
6.4.1 Maintenance. At the Tenant's sole cost and expense throughout the Term, the Tenant
shall operate, maintain and manage the Flremises including all landscaping and improvements thereon in
good order and repair and in neat, clean sanitary and safe condition in compliance with all local, state and
federal laws, statutes and regulations relating to the use, occupancy or operation of the Premises. The
Tenant shall ensure that the Premises is served by adequate lighting in accordance with applicable building
1065228.2
7
co' . Th fenant shall promptly, at the Tenant's own cost and expense, make all necessary repairs,
uJL 19 eplacements or renewals when necessary, and all such repairs shall be at least equal in quality
LO thp nrigina! work, reasonable wear and tear accepted. The Tenant shall keep and maintain all portions
of tn0 f. remises in a clean and orderly condition, free of accumulation of dirt, rubbish, and graffiti. The
Tenant's failure to maintain the Premises in accordance with this Agreement shall, in the Agency's
discretion, be grounds for termination of this Agreement pursuant to Article XIV.
6.4.2 Inspection. At any time during the Term, upon reasonable advance notice and during
normal business hours, the Agency may conduct interior and/or exterior inspections of the Premises to
confirm that it is being properly maintained as required herein. Following its inspection, the Agency may
deliver to the Tenant written notification of any portions of the Premises which the Agency has determined
are not being properly maintained, and the Tenant shall promptly prepare and deliver to the Agency the
Tenant's proposed plan for remedying the indicated deficiencies. The Tenant's failure to deliver a remedial
plan and to complete remedial work within a reasonable time as determined by the Agency in its
reasonable discretion shall be a default under this Agreement.
The failure of the Agency to inspect or to notify the Tenant of any deficiency shall not be a waiver
of default or of the Agency's right to enforce the Tenant's maintenance and repair obligations. The Tenant
shall defend (with counsel reasonably aCCl:lptable to the Agency), indemnify and hold the Indemnitees
harmless from and against any and all Claims arising out of the Tenant's failure to fully and timely fulfill its
obligations to maintain and repair the Premises as required hereunder.
6.5 Agency's Riqht to Perform Tenant Obliqations. If following notice and the expiration of any
applicable cure period as set forth in Section 14.2.1, the Tenant fails to perform its obligations to maintain
the Premises in accordance with the standards set forth in this Agreement, the Agency shall have the right,
but not the obligation, to perform such work upon delivery of written notice to the Tenant, and the Tenant
shall reimburse the Agency for all expenditures the Agency incurs in connection with such work together
with interest thereon at the Default Rate spE~cified in Article XI. The Agency's election to undertake such
obligation shall not operate as a waiver of any other right or remedy the Agency may have pursuant to this
Agreement.
6.6 Agency Not Obliqated to Perform Repairs. Notwithstanding any contrary provision herein, the
Agency shall not be obligated to make any repairs, alterations, additions, improvements or betterments to
the Premises during the term of this Agreement nor shall the Agency be obligated to maintain or operate
the Premises.
6.7 Compliance with Laws. The Tenant, at its sole cost and expense, shall comply with all Applicable
Laws pertaining to the use, operation, and management of the Premises. The Tenant shall not itself use
the Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon
or about the Property or the Premises which would result in a nuisance or a violation of law. The Tenant
shall use its best efforts to not permit any permittees, licensees, guests or invitees to use the Premises for
any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the
Property or the Premises which would result in a nuisance or a violation of law.
6.8 Tenant Riqht to Contest. The Tenant shall have the right to contest by appropriate proceedings, in
the name of the Tenant, and without cost or expense to the Agency, the validity or application of any
Applicable Law. If compliance with any Applicable Law may legally be delayed pending the prosecution of
8
1065228.2
any such proceeding without the incurrence of any lien, charge or liability against the Premises or Tenant's
interest therein, and without subjecting the Tenant or the Agency to any liability, civil or criminal, for failure
so to comply therewith, the Tenant may delay compliance therewith until the final determination of such
proceeding. The Tenant shall indemnify, defend (with counsel approved by the Agency), protect and hold
the Indemnitees harmless from and against all Claims arising in connection with any such contest brought
by the Tenant. The foregoing indemnity obligation shall survive the expiration or earlier termination of this
Agreement.
ARTICLE VII
CONDITION OF THE PREMISES; ENVIRONMENTAL MATTERS
7.1 Condition of the Premises.
7.1.1 AS-IS Condition. The Tenant will lease the Premises in its "AS IS" condition as such
condition exists as of the Commencement Date.
7.1.2 No Representations. The Tenant acknowledges that except as expressly set forth herein,
the Agency makes no representations or warranties expressed or implied regarding the condition of the
Premises or the fitness or suitability thereof for the Tenant's purposes, including but not limited to, the
condition of the soil, its geology, topography, the presence or absence of fill, the presence or absence of
Hazardous Materials, drainage, flood zone designation, or compliance with Hazardous Materials Laws, and
no patent or latent defect or deficiency in the condition of the Premises shall affect the rights of the Tenant
or the Agency hereunder. The Tenant shall rely solely on its own independent investigation and judgment
as to all matters relating to the Premises. The Tenant acknowledges and agrees that prior to the Effective
Date it has made such investigations of the Premises, including without limitation such inquiries of
governmental agencies, soils testing, tests and inspections as Tenant deemed necessary to determine the
condition of the Property, and has approved all such characteristics and conditions and shall lease the
Property in its condition as of the Effective Date "AS-IS" "WHERE-IS" AND WITH ALL FAULTS. The
Tenant further acknowledges that the Agency has made available all data and information on the Property
available to the Agency, but without warranty or representation by the Agency as to the completeness,
correctness or validity of such data and information, except as otherwise set forth in this Agreement.
7.2 Tenant's Covenants. The Tenant hereby covenants and agrees that throughout the Term:
(a) The Premises, and the use and operation thereof, shall be in compliance with all
Hazardous Materials Laws, and the Tenant shall not cause or permit the Premises or any portion thereof to
be in violation of any Hazardous Materials Laws.
(b) The Tenant shall not permit the Premises or any portion thereof to be a site for the use,
generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials nor shall
the Tenant permit the presence or release of Hazardous Materials in, on, under, about or from the
Premises with the exception of materials customarily used in construction, operation, use or maintenance
of the Museum, provided such materials are used, stored and disposed of in compliance with Hazardous
Materials Laws.
1065228.2
9
(c) Upon receiving knowledge of the same, the Tenant shall immediately advise the Agency in
writing of: (i) any and a!1 enforcement, cleanup, removal or other governmental OJ regulatory actions
instituted, completed or threatened against the Tenant, the Premises or the Property pursuant to any
applicable Hazardous Materials Laws; (ii) any and all complaints, claims, citations, demands, inquiries,
reports, or notices made or threatened by any third party against the Tenant, the Premises or the Property
relating to damage, contribution, cost recovery, compensatiOil, loss or injury resulting from any Hazardous
Materisis; (iii) the presence or release of any Hazardous Materials in, on, under, about or from the
i:Jremises or the Property; or (iv) Tenant's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of the Property classified as "Border Zone Propertt under the provisions of
California Health and Safety Code, Sections 252:20 et seq., or any regulation adopted in connection
therewith, that may in any way affect the Property pursuant to any Hazardous Materials Laws or cause it or
any part thereof to be designated as Border Zone Property. The matters set forth in the foregoing clauses
(i) through (iv) are hereinafter referred to as "Hazardous Materials Claims," The Agency shall have the
rig t1t to Join and participate in, as a party if it so elects, any legal oroceedings or actions initiated in
connection with any Hazardous Materials Claim, and to have its reasonable attorney's fees in connection
therewith paid by the Tenant.
(0) Without the Agency's prior written consent, which shall not be unreasonably withheld, the
Tenant shall not take any remedial action in response to the presence of any Hazardous Materials in, on,
under, or about the Premises or the Property (other than in emergency situations or as required by
governmental agencies having jurisdiction in which case the Agency agrees to provide its consent), nor
enter into an;' settlement agreement, consent decree, or other compromise with respect to any Hazardous
Materiais Claim.
(e) If the presence of any Hazardous Material on the Premises or the Property results in any
contamination of the Property in violation of Hazardous Materials Laws, except to the extent such
contamination is caused by the City or the Agency, the Tenant shall promptly take all actions at its sole
expense as are necessary to remediate the Property as required by law; provided that the Agency's
approval of such actions shall first be obtained, which approval may be withheld in the Agency's reasonable
discretion. All costs and expenses of any Remedial Work shall be paid by the Tenant, it being understood
th-1t the Agency shall incur no cost, expense or liability in connection with any Remedial Work. The Agency
shall have the right, but no obligation, to join and participate in, as a party if it so elects at the Agency's
cost, any legal proceedings or actions initiated in connection with any Hazardous Material Claims. For
pu')oses of this Agreement, "Remedial Work" means all investigation, testing, analysis, monitoring,
res~oration) abatement, detoxification, containment, handling, treatment, removal, storage,
decontamination, clean-up, transport, disposal or other ameliorative work or response action required by
(i) any Hazardous Materials Laws, (iI) any order or request of any federal, state or local governmental
agency, or (iii) any judgment, consent decree, settlement or compromise with respect to any and all
enforcement, clean-up, removal, remediai or other governmental or regulatory actions or agreements or
orders threatened, instituted, or completed pursuant to any Hazardous Materials Laws or any actions,
proceedings or claims by such entities or third parties relating to or arising out of the breach of any
Hazardous Materials Laws or the presence or release of any Hazardous Material in, on, under or from the
Premises or the Property.
7.3 R.elease of Claims. The Tenant hereby waives, releases and discharges forever the Indemnitees
from all present and future Claims the Tenant may have arising dir8Gtly or indirectly from the presence or
alleged presence of Hazardous Materials on, under, in or about the Premises; provided however, this
1035228.2
10
release excludes and shall not apply to (i) any Hazardous Material that originates from any City- or Agency-
owned property other than the Property and which migrates onto the Premises after the Commencement
Date, or (ii) any Hazardous Materials that are generated or caused by the Indemnitees' acts or omissions
after the Commencement Date.
The Tenant is aware of and familiar with the provisions of Section 1542 of the California Civil Code
which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR.
As such relates to this Section 7.3, the Tenant hereby waives and relinquishes all rights and
benefits which it may have under Section 1542 of the California Civil Code.
Tenant Initials
7.4 Environmental Indemnity. The Tenant shall indemnify, defend (with counsel reasonably acceptable
to the Agency) and hold the Indemnitees harmless from and against all Claims arising during the Term and
resulting, arising, or based directly or indirectly in whole or in part, upon (i) the presence, release, use,
generation, discharge, transport, storage or disposal of any Hazardous Materials on, under, in or about, or
the transportation of any such Hazardous Materials to or from the Premises during the Term, (ii) the failure
of the Tenant, the Tenant's employees, agHnts, contractors, subcontractors, licensees, permittees, or any
person acting on behalf of any of the foregoing to comply with Hazardous Materials Laws, or (iii) the breach
by the Tenant of any of its covenants contained in this Article VII. The foregoing indemnity shall further
apply to any residual contamination in, on, under or about the Premises or affecting any natural resources,
and to any contamination of any property or natural resources arising in connection with the generation,
use, handling, treatment, storage, transport or disposal of any such Hazardous Materials, and irrespective
of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws
and shall include, without limitation, any Claims arising in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work ordered by a court or required by any
federal, state, or local governmental agency or political subdivision. This Section 7.4 shall survive the
expiration or earlier termination of this Agreement.
7.5 Definitions.
7.5.1 Hazardous Materials. As used herein, "Hazardous Materials" means any substance,
material, or waste which is or becomes regulated by any local, state or federal authority, agency or
governmental body, including any material or substance which is: (i) defined as a "hazardous waste,"
"extremely hazardous waste," or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or
listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5
(Hazardous Waste Control Law); (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act); (iii) defined as a "hazardous material," "hazardous substance," or "hazardous
waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95
(Hazardous Materials Release Response Plans and Inventory); (iv) defined as a "hazardous substance"
1065228.2
11
under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls;
(viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title
22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as "hazardous substances"
pursuant to Section 311 of the Clean Water Act (33 U .S.C. 81317); (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. 86901, et seq.
(42 U.S.C. 86903); or (xi) defined as "hazardous substances" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. S9601, et seq., as
the foregoing statutes and regulations now exist or may hereafter be amended.
7.5.2 Hazardous Materials Law~~. As used herein "Hazardous Materials laws" means all
federal, state and local laws, ordinances, re9ulations, orders and directives pertaining to Hazardous
Materials, including without limitation, the laws, statutes and regulations cited in the preceding
Section 7.5.1, as any of the foregoing may be amended from time to time.
ARTICLE VIII
[RESERVED]
ARTICLE IX
INDEMNITY AND INSURANCE
9.1 Indemnity. The Tenant shall indemnify, defend (with counsel reasonably acceptable to the
Agency) and hold the Indemnitees harmless from and against any and all Claims arising during the Term
and arising from or in connection with any of the following: (i) the operation or management of the
Premises, (ii) any work or thing done on or in the Premises, (iii) any condition of any alteration or addition
constructed by the Tenant on the Premises, (iv) any breach or default by the Tenant in the performance of
any covenant or agreement to be performed by the Tenant pursuant to the terms of this Agreement, (v) any
negligence of the Tenant, or any of its agents, contractors, subcontractors, employees, or licensees,
(vi) any accident, injury or damage caused to any person occurring during the Term in or on the Premises,
and (vii) the furnishing of labor or materials by the Tenant or its contractors, subcontractors, employees, or
agents. In the event any such action or proceeding is brought against the Agency by reason of any such
Claim, the Tenant, upon notice from the Agency, covenants to defend such action or proceeding by counsel
reasonably satisfactory to the Agency. If an insurer under insurance required to be maintained by the
Tenant hereunder shall undertake to defend the Agency under a reservation of rights with respect to
ultimate coverage and the Agency shall reasonably deem it necessary to retain independent counsel with
respect to such matter, the Tenant shall pay the reasonable fees of such counsel. The obligations of the
Tenant under this Article IX shall not apply to any Claim or other matter to the extent such arises as a result
of the gross negligence or willful misconduct of the Indemnitees. This Section shall survive the expiration
or earlier termination of this Agreement.
9.2 Insurance Requirements. The Tenant shall procure, at its sole expense, and maintain in full force
and effect during the Term, the following insurance naming the Agency as additional insured and/or loss
payee:
1065228.2
12
a. Comprehensive General Liability insurance against claims for bodily and personal injury,
death and property damage caused by or occurring in conjunction with the operation of the Premises and
the Business with a policy limit of at least Two Million Dollars ($2,000,000) per occurrence.
b. Tenant shall maintain property insurance covering all risks of loss including flood (if
required) for 100% of the replacement value of the Premises and any Improvements, naming the Agency
as loss payee as its interests may appear.
If the Tenant undertakes the construction of the Improvements pursuant to Article V, the Tenant
shall ensure that its general contractor carries liability, property damage, workers' compensation, and
builder's risk insurance throughout construction of the Improvements, naming the Indemnitees as additional
insureds and otherwise in compliance with all requirements set forth in this Section 9.2.
ARTICLE X
DAMAGE AND DESTRUCTION
10.1 Damaqe or Destruction. In the event of any damage to or destruction of the Premises during the
Term, the Agency shall elect by written notice delivered to Tenant within sixty (60) days following the date
of the occurrence of the damage to either namove the Premises or restore and rebuild the Premises as
nearly as possible to their condition immediiately prior to such damage or destruction, subject to any
restrictions imposed by changes in any Applicable Law. If the Agency elects to restore the Premises, the
Agency shall commence diligently and continuously to carry out such rebuilding to full completion as soon
as possible and shall commence reconstruction of the Premises within the earlier of ninety (90) days
following the date of occurrence of the damage or the date upon which insurance proceeds are made
available for such work. Upon the occurrence of damage or destruction, all insurance proceeds paid in
respect of such damage or destruction shaU be applied to the payment of the costs of the restoration and
rebuilding required to be performed by the Agency pursuant to this Agreement. If the Agency does not
elect to restore the Premises and the Agency does not exercise its right to terminate this Agreement
pursuant to Section 14.3 within 120 days following the date of the occurrence of the damage, then at the
Agency's option this Agreement shall terminate upon delivery of written notice to the Tenant. If the Agency
elects to restore the Premises, the Agency shall confer with the Tenant regarding the design and plans for
such restoration of the Premises.
10.2 Notice Required. In the event of material damage to or destruction of the Premises, or any part
thereof, the Tenant shall promptly give the Agency notice of such occurrence and take all actions
reasonably required to protect against hazards caused by such damage or destruction. For purposes of
this Article X, damage or destruction shall be deemed to be material if the estimated cost to repair equals or
exceeds Fifty Thousand Dollars ($50,000).
10.3 Aqency's Riqht to Terminate. Notwithstanding any contrary provision of this Article X, the Agency
shall have the option to terminate this Agreement and be relieved of the obligation to restore the Premises
where all or substantially all of the Premises are substantially damaged or destroyed and such damage or
destruction resulted from a cause not insured against by the Tenant and/or the Agency nor required to be
insured against by the Tenant and/or the Agency under this Agreement.
1065228.2
13
ARTICLE XI
AGENCY'S RIGHT TO PERFORM TENANT'S COVENANTS
If the Tenant shall at any time fail to pay any Imposition or other charge payable by the Tenant to a
third party as required by this Agreement, or to comply with the requirements set forth in Section 9.2
pertaining to insurance, or to make any othE~r payment or perform any other act on its part to be made or
performed hereunder within the time permitted by this Agreement, then the Agency, after thirty (30) days'
written notice to the Tenant and without waiving or releasing the Tenant from any obligation of the Tenant
hereunder, may (but shall not be required to): (i) pay such Imposition or other charge payable by the
Tenant; (ii) pay for and maintain the insurance policies required pursuant to this Agreement, or (iii) make
such other payment or perform such other act on the Tenant's part to be made or performed under this
Agreement; and the Agency may enter upon the Premises for such purpose and take all such action
thereon as may be reasonably necessary therefor.
All sums paid by the Agency and all costs and expenses incurred by the Agency in connection with
any such payment or the performance of any such act (together with interest thereon at the Default Rate
from the respective dates of the Agency's making of each such payment) shall constitute additional Rent
payable by the Tenant under this Agreement and shall be paid by the Tenant to the Agency on demand.
The "Default Rate" shall mean interest calculated at an annual rate equal to the lesser of twelve percent
(12%) or the maximum rate of interest permitted by law.
ARTICLE XII
MORTGAGES
12.1 Non-Subordination of Fee. Nothin~] in this Agreement shall be construed as an agreement by the
Agency to subordinate its fee interest in the Property or its right to rent payments hereunder or any other
right of the Agency herein. Except as expmssly set forth in this Agreement, the Tenant shall not mortgage
its interest in the Premises without the Agency's prior written approval. Notwithstanding anything to the
contrary, the Agency shall have no obligation to encumber or otherwise subordinate its fee interest in the
Property or approve any mortgage of the Tenant's leasehold estate.
ARTICLE XIII
ASSIGNMENT, TRANSFER, SUBLETTING; NONDISTURBANCE AND ATTORNMENT
13.1 Restrictions on Transfer, Assiqnment and Encumbrance. The Tenant shall have no right to sell,
transfer, sublet, assign, encumber, hypothE;cate or otherwise convey ("Transfer") its leasehold interest
hereunder or any portion of its interest in the Premises, any Improvements or this Agreement voluntarily,
involuntarily, by operation of law, or otherwise, without the Agency's prior written consent which shall not be
unreasonably withheld. No voluntary or involuntary assignee, subtenant, or successor in interest of the
Tenant shall acquire any rights or powers under this Agreement absent such consent.
13.2 No Involuntarv Transfers. Without limiting any other restrictions on transfer contained in this
Agreement, no interest of the Tenant in this Agreement, the Premises or part thereof shall be assignable or
transferable: (i) pursuant to any voluntary or involuntary proceeding under federal or state bankruptcy or
1065228.2
14
insolvency law; (ii) pursuant to any assignmHnt of the Tenant's assets for the benefit of its creditors; or
(iii) pursuant to any order of attachment, garnishment, receivership, or similar action.
Any transfer described in this SHction 13,2 shall constitute an Event of Default under this
Agreement by the Tenant, and the Agency shall have the right to terminate this Agreement pursuant to
Article XIV as a result of any such transfer taking place, in which case this Agreement shall not be treated
as an asset of the Tenant.
13.3 Assumption Aqreement and Release. No permitted Transfer shall be effective until any curable
default hereunder shall have been cured and there shall have been delivered to the Agency an assumption
agreement, executed by the transferor and the proposed transferee, whereby such transferee expressly
assumes such obligations as arise and/or accrue at any time after such Transfer takes place; and whereby
such transferee assumes liability for the obligations of this Agreement.
13.4 Sale by Aqency, Nothing contained in this Agreement shall be deemed in any way to limit, restrict
or otherwise affect the right of the Agency to sell, transfer, assign or convey all or any portion of the right,
title and estate of the Agency in the Property and in this Agreement; provided, however, that in each such
instance any such sale, transfer, assignment or conveyance shall be subject to this Agreement, and the
Tenant's other rights arising out of this Agreement shall not be affected or disturbed in any way by any such
sale, transfer, assignment or conveyance. At such time as the Agency shall sell, transfer, assign or convey
the entire right, title and estate of the Agency in the Property and in this Agreement, all obligations and
liability on the part of the Agency arising under this Agreement after the effective date of such sale, transfer,
assignment or conveyance shall terminate as to the Agency, and thereupon all such liabilities and
obligations shall be binding upon the transfHree.
13.5 Non-disturbance. Provided that the Tenant is not in default under this Agreement, the Tenant's
possession, use and enjoyment of the Premises shall not be interfered with, disturbed or diminished, or
otherwise affected in any manner as a result of any act or omission of the 'Agency, or any exercise of any
remedies under this Agreement.
ARTICLE XIV
DEFAULT, REMEDIES AND TERMINATION
14.1 Event of Default. The Tenant shall be in default under this Agreement upon the occurrence of any
of the following ("Events of Default"):
(a) Monetary Obliqation. The Tenant at any time is in default hereunder as to any monetary
obligation (including without limitation, the Tenant's obligation to pay taxes and assessments due on the
Premises or part thereof, subject to the Tenant's rights to contest such charges pursuant to Section 3.2),
and such default continues for thirty (30) days after the date upon which the Agency shall have given the
Tenant a Notice of Default (as defined in Section 14.2.1);
(b) Insurance. The Tenant fails to obtain and maintain any insurance required pursuant to
Section 9.2 of this Agreement, and the Tenant fails to cure such default within ten (10) days following
receipt of Notice of Default;
1065228.2
15
(c) Abandonment. The Tenant abandons the Premises and ceases to use it for the purposes
authorized hereby for a period of ninety (90) days or more or as established pursuant to Section 1951.3 of
the California Civil Code except when prevented by Force Majeure.
(d) Transfer. A voluntary or involuntary Transfer of all or any portion of the Tenant's interest in
this Agreement occurs in violation of the provisions of Article XIII;
(e) Non-Monetary Obliqations. The Tenant defaults in the performance of any term, provision,
covenant or agreement contained in this Agreement other than an obligation enumerated in this
Section 14.1, and unless a shorter cure period is specified for such default, the default continues for
thirty (30) days after the date upon which the Agency shall have given written notice of the default to the
Tenant; provided however, if the default is of a nature that it cannot be cured within thirty (30) days, an
Event of Default shall not arise hereunder if the Tenant commences to cure the default within thirty (30)
days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion
and in no event later than one hundred and eighty (180) days after receipt of a Notice of Default;
(D Bankruptcy. The Tenant files a voluntary petition in bankruptcy or files any petition or
answer seeking or acquiescing in any reorfJanization, arrangement, composition, readjustrnent, liquidation,
dissolution or similar relief for itself under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors; or seeks or consents to or
acquiesces in the appointment of any trustee, receiver or liquidator of the Tenant or of all or any substantial
part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof, or makes any
general assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as
they become due;
(g) Reorqanization. A court of competent jurisdiction enters an order, judgment or decree
approving a petition filed against the Tenant seeking any reorganization, dissolution or similar relief under
any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors, and such order, judgment or decree remains unvacated and unstayed for an
aggregate of sixty (60) days from the first date of entry thereof, or any trustee receiver or liquidator of the
Tenant or of all or any substantial part of its property, or of any or all of the royalties, revenues, rents,
issues or profits thereof is appointed without the consent or acquiescence of the Tenant and such
appointment remains unvacated and unstayed for an aggregate of sixty (60) days, such sixty (60) day
period to be extended in all cases during any period of a bona fide appeal diligently pursued by Tenant;
(h) Attachment. A writ of execution or attachment or any similar process is issued or levied
against all or any part of the interest of the Tenant in the Premises and such execution, attachment or
similar process is not released, bonded, satisfied, or vacated or stayed within sixty (60) days after its entry
or levy, such sixty (60) day period to be extended during any period of a bona fide appeal diligently pursued
by Tenant;
(i) Liens. The Tenant's failure to satisfy the requirements of Section 5.6 hereof within the
time periods specified therein.
1065228.2
16
14.2 Notice and Opportunity to Cure.
14.2.1 Notice of Default. Upon the occurrence of a default hereunder, the non-defaulting party
shall deliver a notice to the nonperforming party (the "Notice of Default"), stating the nature of the
obligation which such nonperforming party has failed to perform, and stating the applicable period of time, if
any, permitted to cure the default.
14.2.2 Failure to Give Notice: No Waiver. Failure to give, or delay in giving, the Notice of Default
shall not constitute a waiver of any obligation, requirement or covenant required to be performed
hereunder. No failure or delay by either party in asserting any rights and remedies as to any breach shall
operate as a waiver of any breach or of any such rights or remedies. Delay by either party in asserting any
of its rights and remedies shall not deprive such party of the right to institute and maintain any action or
proceeding which it may deem appropriate to protect, assert or enforce any such rights or remedies.
14.3 Remedies Upon Default.
14.3.1 Aqency's Remedies. Upon the occurrence of any Event of Default and in addition to any
and all other rights or remedies of the Agency hereunder and/or provided by law, the Agency shall have the
right to terminate this Agreement and/or the Tenant's possessory rights hereunder, in accordance with
applicable law, to re-enter the Premises and take possession thereof and of any Improvements, and except
as otherwise provided herein, to remove all persons and property therefrom, and to store such property at
the Tenant's risk and for the Tenant's account, and the Tenant shall have no further claim thereon or
hereunder. The Agency's re-entry or taking of possession of the Premises shall not be construed as an
election on the Agency's part to terminate this Agreement unless the Agency shall have given written notice
of such intention to the Tenant. In no event shall this Agreement be treated as an asset of the Tenant after
any final adjudication in bankruptcy except at the Agency's option so to treat the same but no trustee,
receiver, or liquidator of the Tenant shall have any right to disaffirm this Agreement.
14.3.2 Remedies Upon Abandonment. If the Tenant should default under this Agreement and
abandon the Premises, the Agency may, at its option, enforce all of its rights and remedies under this
Agreement, including the right to recover the rent as it becomes due hereunder. Additionally, the Agency
shall be entitled to recover from the Tenant all costs of maintenance and preservation of the Premises, and
all costs, including attorneys' and receiver's fees incurred in connection with the appointment of and
performance by a receiver to protect the Premises and the Agency's interest under this Agreement.
14.3.3 Aqencv Riqht to Continue Lease. In the event of any default under this Agreement by the
Tenant (and regardless of whether or not the Tenant has abandoned the Premises), this Agreement shall
not terminate (except by an exercise of the Agency's right to terminate under Section 14.3.1) unless the
Agency makes such election by the giving of any notice (including, without limitation, any notice preliminary
or prerequisite to the bringing of legal proceedings in unlawful detainer) to terminate the Tenant's right to
possession. For so long as this Agreement continues in effect, the Agency may enforce all of the Agency's
rights and remedies under this Agreement, including, without limitation, the right to recover all rent and
other monetary payments as they become due hereunder. For the purposes of this Agreement, the
following shall not constitute termination of the Tenant's right to possession: (a) acts of maintenance or
preservation or efforts to relet the Premises; or (b) the appointment of a receiver upon initiative of the
Agency to protect the Agency's interest under this Agreement.
1065228.2
17
14.3.4 Riqht to Iniunction; Specific Performance. In the event of a default by the Tenant under
this Agreement, the Agency shall have the right to commence an action against the Tenant for damages,
injunction and/or specific performance. The Tenant's failure, for any reason, to comply with a court-ordered
injunction or order for specific performance shall constitute a breach under this Agreement.
14.3.5 Riqht to Receiver. Followinl~ the occurrence of an Event of Default, if the Tenant fails after
receipt of a Notice of Default to cure the default within the time period set forth in this Agreement, the
Agency, at its option, may have a receiver appointed to take possession of the Tenant's interest in the
Premises with power in the receiver (a) to administer the Tenant's interest in the Premises, (b) to collect all
funds available in connection with the operation of the Premises, and (c) to perform all other acts consistent
with the Tenant's obligations under this AgrE!ement, as the court deems proper.
14.4 Remedies Cumulative. No remedy specified in this Article XIV shall be considered exclusive of
any other remedy, but the same shall be cumulative and shall be in addition to every other remedy provided
hereunder or now or hereafter existing at law or in equity or by statute, and every power and remedy
provided by this Agreement may be exercised from time to time and as often as occasion may arise or as
may be deemed expedient, subject to any limitations set forth herein.
14.5 No Election of Remedies. The rights given in this Article XIV to receive, collect or sue for any rent
or rents, moneys or payments, or to enforce the terms, provisions and conditions of this Agreement, or to
prevent the breach or nonobservance thereof, or the exercise of any such right or of any other right or
remedy hereunder or otherwise granted or arising, shall not in any way affect or impair or toll the right or
power of the Agency upon the conditions and subject to the provisions in this Agreement to terminate the
Tenant's right of possession because of any default in or breach of any of the covenants, provisions or
conditions of this Agreement beyond the applicable cure period.
14.6 Survival of Obliqations. Nothing herein shall be deemed to affect the right of the Agency under
Section 3.2, Section 5.5, Section 7.4 and Section 9.1 of this Agreement to indemnification for liability arising
prior to the termination of this Agreement, nor shall anything herein be deemed to affect the right of the
Agency to equitable relief where such relief is appropriate. No expiration or termination of the Term by
operation of law, or otherwise, and no repossession of the Improvements or any part thereof shall relieve
the Tenant of its previously accrued liabilities and obligations hereunder, all of which shall survive such
expiration, termination or repossession.
ARTICLE XV
GIENERAL PROVISIONS
15.1 Force Majeure: Extension of Times of Performance. Subject to the limitations set forth below,
performance by either Party shall not be deemed to be in default, and all performance and other dates
specified in this Agreement shall be extended where delays are due to: war, insurrection, strikes, lockouts,
riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine
restrictions, freight embargoes, governmental restrictions or priority, litigation, including court delays,
unusually severe weather, acts or omissions of the other Party, acts or failures to act of any public or
governmental agency or entity (other than the Parties which shall not excuse delay in performance), or any
other cause beyond the affected Party's reasonable control (all of the foregoing "Force Majeure"). An
extension of time for any such cause shall be for the period of the enforced delay and shall commence to
1065228.2
18
run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent
to the other Party within thirty (30) days of the commencement of the cause and such extension is not
rejected in writing by the other Party within ten (10) days of receipt of the notice. Neither Party shall
unreasonably withhold consent to an extension of time pursuant to this Section.
Times of performance under this Aglreement may be extended in writing by the mutual agreement
of the Tenant and the Landlord (acting in the discretion of its Executive Director unless he or she
determines in his or her discretion to refer such matter to the governing board of the Agency). Each Party
expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether
or not foreseeable as of the Effective Date.
15.2 Reserved.
15.3 Aqency's Riqht to Enter the Premises. The Agency and its agents may enter the Premises from
time to time with reasonable notice, except in the case of emergency in which case no notice shall be
required, to inspect the same, to post notices of nonresponsibility and similar notices, and to discharge the
Tenant's obligations hereunder when the Tenant has failed to do so within a reasonable time after written
notice from the Agency.
15.4 Representations of Aqency and Tenant.
15.4.1 The Tenant hereby represents and warrants that all of the following are true and correct as
of the Effective Date:
(a) The Tenant has taken all requisite action in connection with the execution of this
Agreement and the undertaking of the obli~Jations set forth herein. This Agreement constitutes the legally
valid and binding obligation of the Tenant, enforceable against the Tenant in accordance with its terms,
except as it may be affected by bankruptcy, insolvency or similar laws or by legal or equitable principles
relating to or limiting the rights of contractin!~ parties generally; and
(b) The execution of this Agreement and the acceptance of the obligations set forth
herein do not violate any court order or ruling binding upon the Tenant or any provision of any indenture,
agreement or other instrument to which Tenant is a party or may be bound. Neither the entry into nor the
performance of this Agreement will violate, be in conflict with or constitute a default under any charter,
bylaw, partnership agreement, trust agreement, mortgage, deed of trust, indenture, contract, judgment,
order or other agreement, charge, right or interest applicable to the Tenant.
15.4.2 Agency hereby represents and warrants that all of the following are true and correct as of
the Effective Date:
(a) The Agency has taken all requisite action in connection with the execution of this
Agreement and the undertaking of the obligations set forth herein. This Agreement constitutes the legally
valid and binding obligation of the Agency, enforceable against the Agency in accordance with its terms,
except as it may be affected by bankruptcy, insolvency or similar laws or by legal or equitable principles
relating to or limiting the rights of contracting parties generally; and
1065228.2
19
(b) The execution of this Agreement and the acceptance of the obligations set forth
herein do not violate any court order or ruling binding upon the Agency or any provision of any indenture,
agreement or other instrument to which the Agency is a party or may be bound. Neither the entry into nor
the performance of this Agreement will violate, be in conflict with or constitute a default under any charter,
bylaw, partnership agreement, trust agreement, mortgage, deed of trust, indenture, contract, judgment,
order or other agreement, charge, right or interest applicable to the Agency.
15.5 Miscellaneous.
15.5.1 Severability. If any term or provision of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted
by law.
15.5.2 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this
Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or
to such other address as a Party may designate by written notice delivered to the other parties in
accordance with this Section. All such notioes shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(Ii) certified or registered mail, return receipt requested, in which case notice shall be
deemed delivered on receipt if delivery is confirmed by a return receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged to the
sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery
service; or
(iv) facsimile transmission, in which case notice shall be deemed delivered upon
transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified
mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission
thereof. Any notice given by facsimile shall be considered to have been received on the next business day
if it is received after 5:00 p.m. recipient's time or on a nonbusiness day.
Agency:
Redevelopment Agency of the City of South San Francisco
P.O. Box 111
South San Francisco, CA 94083
Attention: Executive Director
Telephone: (650) 829-6620
Facsimile: (650) 829-6623
With copy to:
Meyers Nave Riback Silver & Wilson
555 12th Street, Suite 1500
Oakland, CA 94607
Attention: Redevelopment Group
Telephone: (510) 808-2000
1065228.2
20
Facsimile: (510) 444-1108
Tenant:
South San Francisco Historical Society
80 Chestnut Avenue
South San Francisco, CA 94080
Attn:
Phone:
Fax:
15.5.3 Captions; Construction. The section headings and captions used herein are solely for
convenience and shall not be used to interpret this Lease. The Parties acknowledge that this Agreement is
the product of negotiation and compromise on the part of both Parties, and the Parties agree that since
both Parties have participated in the negotiation and drafting of this Agreement with the advice of counsel,
this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair
meaning as a whole, as if both Parties had prepared it.
15.5.4 Successors and Assiqns. Subject to the restrictions on Transfer set forth in Article III, this
Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective
successors and assigns. Any reference in this Lease to a specifically named Party shall be deemed to
apply to any permitted successor and assign of such Party who has acquired an interest in compliance with
this Agreement as if in every case so expressed.
15.5.5 Memorandum of Lease. A memorandum of lease substantially in the form attached hereto
as Exhibit B shall be executed by the Parties and recorded in the Official Records of San Mateo County.
15.5.6 Governinq Law. This AgrE~ement shall be governed by and construed in accordance with
the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or
interpret this Agreement shall be filed in the Superior Court of San Mateo County, California or in the
Federal District Court for the Northern District of California.
15.5.7 Attorney's Fees. If either Party commences an action against the other to enforce any
obligation contained herein, or to interpret any provision hereof, the prevailing party shall be entitled to
recover from the other Party reasonable counsel fees, costs and necessary disbursements, as determined
by the court having jurisdiction over the action.
15.5.8 Indemnity Includes Defense Costs. In any case where either Party is obligated under an
express provision of this Lease, to indemnify and to save the other Party harmless from any damage or
liability, the same shall be deemed to include defense of the indemnitee by the indemnitor, such defense to
be through legal counsel reasonably acceptable to the indemnitee.
15.5.9 No Third-Party Beneficiaries; Disclaimer of Partnership, Lender/Borrower Relationship.
Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other
than the Parties any rights or remedies hereunder. The relationship of the parties under this Agreement is
solely that of landlord and tenant, and it is l~xpressly understood and agreed that the Agency does not as a
result of this Agreement in any way nor for any purpose become a partner of the Tenant or a joint venturer
with the Tenant in the conduct of the Tenant's business or otherwise. This Agreement is not intended to,
and shall not be construed to, create the relationship of principal and agent, partnership, joint venture, or
1065228.2
21
association as between the Agency and the Tenant. It is further expressly understood and agreed that this
Agreement is not intended to, and shall not be construed to create the relationship of lender and borrower,
and the Agency does not, solely as a result of this Agreement, become a lender to the Tenant.
15.5.10 Entire Aqreement. This Agreement, together with Exhibits A and B which by this
reference are hereby incorporated herein, contains the entire agreement between the Parties relative to the
transactions covered hereby. All previous correspondence, communications, discussions, agreements,
understandings or proposals and acceptancl;s thereof between the Parties or their representatives,
whether oral or written, are deemed to have been integrated into and superseded by this Agreement and
are of no further force and effect except as expressly provided in this Agreement.
15.5.11 Waiver: Modification. No waiver of any breach of any covenant or provision of this
Agreement shall be deemed a waiver of any subsequent breach of the same or any other covenant or
provision hereof. No waiver shall be valid unless in writing and executed by the waiving party. An
extension of time for performance of any obligation or act shall not be deemed an extension of the time for
performance of any other obligation or act, and no extension shall be valid unless in writing and executed
by the waiving party. This Agreement may be amended or modified only by a written instrument executed
by the Parties.
15.5.12 Time is of the Essence. Time is of the essence of this Agreement and of each provision
hereof.
15.5.13 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be an original and all of which together shall constitute one and the same instrument.
15.5.14 Action by the Parties. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the Agency in its capacity as landlord
hereunder is required or permitted under this Agreement, such action shall be in writing, and such action
may be given, made or taken by the Agency's Executive Director or by any person who shall have been
designated by the Executive Director, without further approval by the Agency Board of Directors unless the
Executive Director determines in his or her discretion that such matter requires consideration by the
Agency Board.
15.5.15 Non-Liability of Officials, Employees and Aqents. No member, official, employee or
agent of the Agency or the City shall be personally liable to Tenant or its successors in interest in the event
of any default or breach by the Agency or for any amount which may become due to the Tenant or the
Tenant's permitted successors in interest pursuant to this Agreement.
SIGNA rURES ON THE NEXT PAGE
1065228.2
22
IN WITNESS WHEREOF, the Parties have entered into this Lease as of the Effective Date.
TENANT:
SOUTH SAN FRANCISCO
HISTORICAL SOCIETY,
a California non-profit corporation
LANDLORD:
REDEVELOPMENT AGENCY OF THE
CITY OF SOUTH SAN FRANCISCO,
a public body, corporate and politic
By:
By:
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM
Agency Counsel
1065228.2
23
Exhibit A
PROPERTY
(Attach legal description.)
1064888.1
A-1
Exhibit B
FORM OF MEMORANDUM OF LEASE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of South
San Francisco
P.O. Box 711
South San Francisco, CA 94083
AUn: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE SS 6103,27383
Space above this line for Recorder's use.
MEMORANDUM OF LEASE
This Memorandum of Lease (this "Memorandum"), dated for reference purposes as of April 1 ,
2008, is executed by and between the Redevelopment Agency of the City of South San Francisco, a public
body, corporate and politic (the "Landlord") and South San Francisco Historical Society, a California non-
profit corporation (the "Tenant"), in reference to and consideration of that certain Lease dated as of April 1 ,
2008, by and between Landlord and Tenant (the "Lease").
1. The purpose of this Memorandum is to provide notice of the existence of the Lease which
is incorporated herein by this reference. This Memorandum incorporates all of the terms and provisions of
the Lease as though fully set forth herein.
2. The Landlord is the owner of fee title to the land located at 80 Chestnut Avenue, in the City
of South San Francisco, California, as more particularly described in Exhibit A attached hereto and
incorporated herein by this reference (the "Property").
3. There exists a building on the Property and paved parking and landscaping to be occupied
as a museum (the "Premises").
4. Pursuant to the Lease, the Landlord leases to the Tenant, and the Tenant leases from the
Landlord, the Premises subject to all of the terms and conditions set forth in the Lease.
5.
Premises.
The Landlord hereby grants and conveys unto the Tenant for the term of the Lease the
1064888.1
B-1
6. The term of the Lease shaH be five (5) years, unless otherwise extended as permitted
under the Lease.
7. This Memorandum may be executed in counterparts, each of which shall be an original,
and all of which together shall constitute one fully-executed agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date first set forth
above.
LANDLORD:
TENANT:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
SOUTH SAN FRANCISCO HISTORICAL
SOCIETY
By:
Executive Director
By:
Attest:
Agency Secretary
Approved as to form:
Agency Counsel
SIGNATURES MUST BE NOTARIZED.
1064888.1
B-2
State of California
County of San Mateo
On
,2008, before me, .
, a Notary Public
from
County, personally appeared
, who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
1064888.1
B-3