HomeMy WebLinkAboutReso 55-2020 (20-284)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 55-2020
File Number: 20-284 Enactment Number: RES 55-2020
RESOLUTION APPROVING AND AUTHORIZING THE CITY
MANAGER TO ENTER INTO A LEASE AGREEMENT WITH
THE CALIFORNIA DEPARTMENT OF TRANSPORTATION TO
ALLOW FOR THE SUBSURFACE INSTALLATION OF TIE
BACK SUPPORTS ADJACENT TO STATE ROUTE 82 (EL
CAMINO REAL) AS PART OF THE CONSTRUCTION OF THE
CIVIC CAMPUS PROJECT.
WHEREAS, in 2019 staff from the City of South San Francisco and the California Department of
Transportation ("Caltrans") began negotiating the terms of an agreement to allow for temporary
encroachment onto Caltrans property for the purpose of erecting a structural system for the Community
Civic Campus - Phase 2 project; and
WHEREAS, the proposed lease rate of $38,000 for the two-year term is in line with other project -related
Caltrans lease agreements of this nature; and
WHEREAS, the City of South San Francisco and Caltrans wish to enter into a two-year lease agreement
to allow the temporary installation of components of a structural system below State Route 82, which is
a necessary part of the plan for construction of the Community Civic Campus, which is adjacent to the
roadway; and
WHEREAS, staff recommends that the City enter into the proposed lease with Caltrans to allow the
Community Civic Campus project to continue progress toward construction.
NOW, THEREFORE, BE IT RESOLVED that the City Council of South San Francisco hereby approves
and authorizes the City Manager to enter into a Lease Agreement with the California Department of
Transportation, attached as Exhibit A, to allow for the subsurface installation of tie back supports
adjacent to State Route 82 (El Camino Real) as part of the construction of the Civic Campus project.
BE IT FURTHER RESOLVED that the City Manager is authorized to make any revisions, amendments,
or modifications to the Lease Agreement, deemed necessary to carry out the intent of this resolution
which do not materially alter or increase the City's obligations thereunder, subject to approval as to form
by the City Attorney; and to take any other related action necessary to further the intent of this
resolution.
City of South San Francisco Page 1
File Number: 20-284
Enactment Number: RES 55-2020
At a meeting of the City Council on 5/13/2020, a motion was made by Vice Mayor Addiego, seconded by
Councilmember Nagales, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Garbarino, Vice Mayor Addiego, Councilmember Nagales, Councilmember
Nicolas, and Councilmember Matsumoto
Attest by
M X4�X WL—
Rfa Govea Acosta, City Clerk
City of South San Francisco Page 2
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04-SM-82-5004-01
AIRSPACE LEASE AGREEMENT
TIE BACK SUPPORTS
ARTICLE 1. SUMMARY OF LEASE AGREEMENT PROVISIONS
LESSOR: State of California Department of Transportation
LESSEE: City of South San Francisco
PREMISES: _Subsurface of right of way adjacent to State Route (SR) 82 at along a portion of
frontage running along 1010 El Camino Real
Located in the City of South San Francisco,
County of San Mateo, State of California,
commonly known as Lease Area No. 04-SM-82-5004
and more particularly described in Article 2.
Lease Term: Two (2) Years
Commencing July 1, 2020 and expiring on June 30, 2022 (Article 3)
Rent: $_38,000_(Lump sum) (Article 4)
Security Deposit: $-0- (Article 17)
Use: Temporary Tie-Back Foundation Supports (Article 5)
Comprehensive General Liability Insurance: $5,000,000. (Article 10)
Insurance provider: ________________________________________________.
Policy Number: ___________________________________________________.
Excess/Umbrella Insurance: $20,000,000. (Article 10)
Insurance provider: ________________________________________________.
Policy Number: ___________________________________________________.
Address for Notices: (Article 18)
To LESSOR: State of California Department of Transportation
Right of Way Airspace Development MS 11
U.S. Mail: P.O. Box 23440, Oakland, CA 94623-0440
Street Address: 111 Grand Ave., 13th Floor, Oakland, CA 94612-1371
To LESSEE: City of South San Francisco
City Manager’s Office
Attn: Mike Futrell
400 Grand Avenue
[email protected]
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References in this Article 1 to the other Articles are for convenience and designate other
Articles where references to the particular item contained in the Summary of Lease Agreement
Provisions appear. Each reference in this Lease to the Summary of Lease Agreement Provisions
contained in this Article 1 shall be construed to incorporate all of the terms provided under the
Summary of Lease Provisions. In the event of any conflict between the Summary of Lease
Agreement Provisions and any other part of the Lease, the latter shall control.
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(Lease Area No. _04-SM-82-5004)
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
AIRSPACE LEASE AGREEMENT
TIE-BACK SUPPORTS
This Airspace Lease Agreement (“Lease”), dated July 1, 2020, is by and between the
STATE OF CALIFORNIA, acting by and through its Department of Transportation, hereinafter
called "Lessor," and the City of South San Francisco, hereinafter called "Lessee."
W I T N E S S E T H
For and in consideration of the rental and of the covenants and agreements hereinafter set
forth to be kept and performed by the Lessee, Lessor hereby leases to Lessee and Lessee hereby
leases from Lessor the PREMISES herein described for the term, at the rental amounts, and subject
to and upon all of the terms, covenants and agreements hereinafter set forth.
ARTICLE 2. PREMISES
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, for the term, at the
rent, and upon the covenants and conditions hereinafter set forth, that certain premises known as
Airspace Lease Area No. 04-SM-82-5004, situated in the City of South San Francisco, County of
San Mateo, said land or interest herein being shown on the map, design overlays and elevations
marked "Exhibit A," attached hereto and by this reference made a part hereof (PREMISES). The
PREMISES shall consist solely of subsurface rights; Lessee shall have no right to occupy or use
the surface area above the PREMISES. EXCEPTING THEREFROM all those portions of the
PREMISES occupied by the supports and foundations of the existing structure.
ARTICLE 3. TERM
The term of this Lease shall be for no more than two (2) years, commencing July 1, 2020,
and expiring June 30, 2022. Lessee shall have the option to extend the term for one (1) six (6)
month period. Lessee shall have no further option to extend the term.
ARTICLE 4. RENT
Lessee shall pay to Lessor in advance of the commencement of the lease term the lump
sum of $ 38,000.00 as the full rent due and payable for the Term of this Lease. All rent shall be
paid to Lessor at the following address: State of California, Department of Transportation,
Attention: Cashier, P.O. Box 168019, Sacramento, CA 95816-3819 or State of California,
Department of Transportation, 1820 Alhambra Boulevard, 2nd Floor, Sacramento, CA.
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ARTICLE 5. USE
Section 5.1 Specified Use
The PREMISES shall be used and occupied by Lessee only and exclusively for the purpose
of the placement of 38 tie-back foundation supports beneath the Lessor’s right of way (as described
in Exhibit A) and for no other purpose whatsoever without obtaining prior written consent of
Lessor. Under no circumstances at the end of the Lease term shall the tie-back rods left in the
State’s right of way remain functional and/or under tension.
Section 5.2 Condition of Premises
Lessee hereby accepts the PREMISES (as described in the attached “Exhibit A”
incorporated herein.) in the condition existing as of the date of the execution hereof, subject to all
applicable zoning, municipal, county, state, and federal laws, ordinances and regulations
governing and regulating the use of the PREMISES, and accepts this Lease subject thereto and to
all matters disclosed thereby and by any exhibits attached hereto. Lessee acknowledges that
neither Lessor, nor any agent of Lessor, has made any representation or warranty with respect to
the condition of the PREMISES or the suitability thereof for the conduct of Lessee. Further Lessor
has not agreed to undertake any modification, alteration or improvement to the PREMISES except
as provided in this Lease.
As a condition of possession and use of the PREMISES, the Lessee shall obtain and
maintain a valid Encroachment Permit from the Traffic Operations Division of the Department of
Transportation (Caltrans).
Except as may be otherwise expressly provided in this Lease, the taking of possession of
the PREMISES by Lessee shall in itself constitute acknowledgement that the PREMISES are in
good and useable condition, and Lessee agrees to accept the PREMISES in its presently existing
conditions "as is," and that the Lessor shall not be obligated to make any improvements or
modifications thereto except to the extent that may otherwise be expressly provided in this Lease.
Lessee represents and acknowledges that it has made a sufficient investigation of the
conditions of the PREMISES existing immediately prior to the execution of this Lease, including
but not limited to investigation of the surface, subsurface, and groundwater for contamination and
hazardous materials) and is satisfied that the PREMISES will safely support the project type to be
constructed by Lessee upon the PREMISES, that the PREMISES is otherwise fully fit physically
and lawfully for the uses required and permitted by this Lease and that Lessee accepts all risks
associated therewith.
Lessee acknowledges that (1) Lessor has informed Lessee prior to the commencement of
the term of this Lease that the Lessor does not know nor has reasonable cause to believe that any
release of any hazardous material has come to be located on or beneath the PREMISES; (2) prior
to the commencement of the term of this Lease, the Lessor has made available to Lessee, for review
and inspection, records in the possession or control of the Lessor which might reflect the potential
existence of hazardous materials on or beneath the PREMISES; (3) Lessor has provided Lessee
access to the PREMISES for a reasonable time and upon reasonable terms and conditions for
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purposes of providing to Lessee the opportunity to investigate, sample, and analyze the soil and
groundwater on the PREMISES for the presence of hazardous materials; (4) by signing this Lease
Lessee represents to Lessor that, except as otherwise may be stated on Exhibit "B" attached hereto
and by this reference incorporated herein, Lessee does not know nor has reasonable cause to
believe that any release of hazardous material has come to be located on or beneath the
PREMISES; and (5) with respect to any hazardous material which Lessee knows or has reasonable
cause to believe has come or will come to be located on or beneath the PREMISES, Lessee has
listed the hazardous material on attached Exhibit "B" and agrees promptly to commence and
complete the removal of or other appropriate remedial action regarding the hazardous material
introduced to the PREMISES during Lessee’s period of use at no cost or expense to Lessor and in
full compliance with all applicable laws, regulations, permits, approvals, and authorizations. The
phrase "hazardous material," as used herein, has the same meaning as that phrase has in Section
5.6 of this Lease.
In the event Lessee breaches any of the provisions of this Section, this Lease may be
terminated immediately by Lessor.
Lessee agrees that, except as otherwise expressly provided in this Lease, Lessee is solely
responsible, without any cost or expense to the Lessor, to take all actions necessary, off as well as
on the PREMISES, to continuously use the PREMISES as required by this Lease and in
compliance with all applicable laws and regulations.
Section 5.3 Compliance with Law
Lessee shall not use the PREMISES or permit anything to be done in or about the
PREMISES which will in any way conflict with any law, statute, zoning restriction, ordinance, or
governmental rule or regulation or requirements of duly constituted public authorities now in force
or which may hereafter be in force, or with the requirements of the State Fire Marshal or other
similar body now or hereafter constituted, relating to or affecting the condition, use or occupancy
of the PREMISES. The judgment of any court of competent jurisdiction or the admission of Lessee
in any action against Lessee, whether Lessor be a party thereto or not, that Lessee has violated any
law, statute, ordinance or governmental rule, regulation, or requirement, shall be conclusive of that
fact as between Lessor and Lessee. Lessee shall not allow the PREMISES to be used for any
unlawful purpose, nor shall Lessee cause, maintain or permit any nuisance in, on or about the
PREMISES. Lessee shall not commit or suffer to be committed any waste in or upon the
PREMISES.
Section 5.4 Explosives and Flammable Materials
The PREMISES shall not be used by Lessee or its contractors, employees, agents or
invitees for the storage of flammable materials, explosives, or other materials or other purposes
deemed by Lessor to be a potential fire or other hazard to the transportation facility. The operation
and maintenance of the PREMISES shall be subject to regulation by Lessor so as to protect against
fire or other hazard impairing the use, safety and/or appearance of the transportation facility. The
occupancy and use of the PREMISES by Lessee shall not be such as will permit hazardous or
unreasonably objectionable smoke, fumes, vapors or odors to rise above the surface of the traveled
way of the transportation facility.
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Section 5.5 Hazardous Materials
Lessee shall at all times and in all respects comply with all federal, state, and local laws,
ordinances and regulations, including, but not limited to, the Federal Water Pollution Control Act
(33 U.S.C. section 1251, et seq.), Resource Conservation and Recovery Act (42 U.S.C. section
6901, et seq.), Safe Drinking Water Act (42 U.S.C. section 300f, et seq.), Toxic Substances Control
Act (15 U.S.C. section 2601, et seq.), Clean Air Act (42 U.S.C. section 7401, et seq.)
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. section
9601, et seq.), Safe Drinking Water and Toxic Enforcement Act (California Health and Safety
Code section 25249.5, et seq.), other applicable provisions of the California Health and Safety
Code (section 25100, et seq., and section 39000, et seq.), California Water Code (section 13000,
et seq.), and other comparable state laws, regulations, and local ordinances relating to industrial
hygiene, environmental protection or the use, analysis, generation, manufacture, storage, disposal,
or transportation of any oil, flammable explosives, asbestos, urea formaldehyde, radioactive
materials, or waste, or other hazardous, toxic, contaminated or polluting materials, substances or
wastes, including, without limitation, any "hazardous substances" under any such laws, ordinances
or regulations (collectively "Hazardous Materials Laws"). As used in the provisions of this Lease,
"hazardous materials" include any "hazardous substance" as that term is defined in section 25316
of the California Health and Safety Code and any other material or substance listed or regulated
by any Hazardous Materials Law or posing a hazard to health or the environment. Except as
otherwise expressly permitted in this Lease, Lessee shall not use, create, store or allow any
hazardous materials on the PREMISES.
Except for the steel tie-backs and necessary grouting, in no case shall Lessee cause or allow
the deposit or disposal of any hazardous materials of any kind on the PREMISES. Lessor, or its
agents or contractors, shall at all times have the right to go upon and inspect the PREMISES and
the operations thereon to assure compliance with the requirements herein stated. This inspection
may include taking samples of substances and materials present for testing, and/or the testing of
surface soils and soils below or underground tanks on the PREMISES. In the event Lessee
breaches any of the provisions of this Section, this Lease may be terminated immediately by Lessor
It is the intent of the parties hereto that Lessee shall be responsible for and bear the entire
cost of removal and disposal of any and all hazardous materials introduced to the PREMISES by
Lessee or its contractors, employees or agents during Lessee's period of use of the PREMISES.
Lessee shall also be responsible for any clean-up and decontamination on or off the PREMISES
necessitated by the introduction of such hazardous materials within the PREMISES or any surface
below the PREMISES by Lessee or its contractors, employees or agents, or of the introduction of
hazardous materials by a trespasser within an adjacent property possessed and controlled by Lessee
or its contractors, employees or agents, and such hazardous materials leech into Lessor’s adjacent
right of way. Lessee shall not be responsible for or bear the cost of removal or disposal of
hazardous materials introduced to the PREMISES (a) by any party other than a Lessee or (b) during
any period prior to commencement of Lessee's period of use of the PREMISES.
Lessee shall further defend, indemnify, and hold harmless Lessor, and Lessor’s directors,
officers, and employees, from any and all responsibilities, liabilities, penalties, and claims for
damages resulting from the presence or use of hazardous materials within the PREMISES by
Lessee or its contractors, employees or agents, or of the introduction of hazardous materials by a
trespasser within an adjacent property possessed and controlled by Lessee or its contractors,
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employees or agents during Lessee’s period of use of the PREMISES, as required under Article
10.
Section 5.6 Encroachment Permit and Lease
Prior to using the PREMISES, Lessee shall apply for and be issued an Encroachment
Permit from Lessor’s Division of Traffic Operations specifically permitting Lessee to enter the
PREMISES. Lessee shall maintain a valid encroachment permit for the entire term of this Lease.
Any suspension, termination or revocation of the issued Encroachment Permit for any
reason shall be a material breach of this Lease as provided in Article 13 of this Lease. The Lease
shall be terminated immediately upon revocation of Encroachment Permit by Lessor.
If the Encroachment Permit and this Lease conflict, the requirements of the Encroachment
Permit shall prevail. While this Lease solely provides Lessee with subsurface rights to install
tiebacks within the PREMISES as more particularly described in Section 5.1, the required
Encroachment Permit may provide Lessee with specific permission to occupy the ground surface
or sub-surface located below the PREMISES for temporary sidewalk or roadway safety closures
or other uses indirectly related to the tieback operations within the PREMISES.
Section 5.7 Signs
No advertising signs or banners of any size may be erected on the PREMISES. Lessee
shall not place, construct or maintain upon the PREMISES, and shall not allow others to place,
construct, or maintain upon the PREMISES, any advertising media that include moving or rotating
parts, searchlights, flashing lights, loudspeakers, phonographs or other similar visual or audio
media. The term "sign" means any card, cloth, paper, metal, painted, or wooden sign of any
character placed for any purpose on or to the ground or any tree, wall, bush, rock, fence, building,
structure, trailer, or thing. Lessor may remove any sign, banner or flag existing on the PREMISES,
and Lessee shall be liable to and shall reimburse Lessor for the cost of such removal plus interest
as provided in Section 18.11 from the date of completion of such removal.
Section 5.8 Lessor's Rules and Regulations
Lessee shall faithfully observe and comply with the rules and regulations that Lessor shall
from time to time promulgate for the protection of the transportation facility and the safety of the
traveling public. Lessor reserves the right to make modifications to said rules and regulations at
any time without prior notice to Lessee and without Lessee’s consent. The additions and
modifications to those rules and regulations shall be binding upon Lessee upon delivery of a copy
of them to Lessee.
Section 5.9 Water Pollution Control
Lessee shall comply with all applicable State and Federal water pollution control
requirements regarding storm water and non-storm water discharges from the Lessee’s leasehold
area and will be responsible for all applicable permits including but not limited to the National
Pollutant Discharge Elimination System (NPDES) General Permit and Waste Discharge
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Requirements for Discharges of Stormwater Associated with Industrial Activities (Excluding
Construction), the NPDES General Permit for Stormwater Discharges Associated with
Construction and Land Disturbance Activities, and the Caltrans Municipal Separate Storm Sewer
System NPDES Permit, and permits and ordinances issued to and promulgated by municipalities,
counties, drainage districts, and other local agencies regarding discharges of storm water and non-
storm water to sewer systems, storm drain systems, or any watercourses under the jurisdiction of
the above agencies. Copies of the current storm water related NPDES permits are available on the
State Water Resources Control Board’s website at www.swrcb.ca.gov under Stormwater.
Lessee understands the discharge of non-storm water into the storm sewer system is
prohibited unless specifically authorized by one of the permits or ordinances listed above. In order
to prevent the discharge of non-storm water into the storm sewer system, vehicle or equipment
washing, fueling, maintenance and repair on the PREMISES is prohibited.
In order to prevent the discharge of pollutants to storm water resulting from contact with
hazardous material, the storage or stockpile of hazardous material on PREMISES is strictly
prohibited. Lessee shall implement and maintain the Best Management Practices (BMPs) shown
in the attached Stormwater Pollution Prevention Fact Sheet for: General Land Use marked “Exhibit
B”. Lessee shall identify any other potential sources of storm water and non-storm water pollution
resulting from Lessee’s activities on the PREMISES, which are not addressed by the BMPs,
contained in the attached Fact Sheet(s), and shall implement additional BMPs to prevent pollution
from those sources. Additional BMPs may be obtained from 2 other manuals, (1) Right of Way
Property Management and Airspace Storm Water Guidance Manual (RW Storm Water Manual)
available for review at the Lessor’s District Right of Way office or online at
www.dot.ca.gov/hq/row/rwstormwater and (2) Construction Site Best Management Practices
(BMPs) Manual, which is available online at
www.dot.ca.gov/hq/construc/stormwater/manuals.htm. In the event of conflict between the
attached Fact Sheet(s), the manuals and this Lease, this Lease shall control.
Lessee shall provide Lessor with the Standard Industrial Classification (SIC) code
applicable to Lessee’s facilities and activities on the lease PREMISES. A list of SIC codes
regulated under the General Industrial Permit SIC codes may be found at the State Water
Resources Control Board (SWRCB) website at
http:/www.waterboards.ca.gov/water_issues/programs/stormwater/gen_indus.shtml. Other SIC
codes may be found at www.osha.gov/pls/imis/sicsearch.html.
Lessor, or its agents or contractors, shall at all times have the right to enter and inspect the
PREMISES and the operations thereon to assure compliance with the applicable permits, and
ordinances listed above. Inspection may include taking samples of substances and materials
present for testing PREMISES.
ARTICLE 6. IMPROVEMENTS
No improvements of any kind, except the tie-back rods and supports (including injected
grout) below the surface shall be placed below, above, in, on, or, upon the PREMISES, and no
alterations shall be made in, on, or, upon the PREMISES without the prior written consent of
Lessor and the concurrence of the Federal Highway Administration (FHWA). In the event Lessee
violates any of the provisions of this Article, this Lease may be terminated immediately by Lessor.
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ARTICLE 7. SURRENDER OF PREMISES AT EXPIRATION OR TERMINATION OF
LEASE
Immediately upon the expiration or earlier termination of this Lease, Lessee shall
peaceably and quietly leave, surrender, and yield up to Lessor the PREMISES together with all
appurtenances and fixtures in good order, condition and repair, reasonable wear and tear excepted.
ARTICLE 8. REMOVAL OF PERSONAL PROPERTY
Where relevant, appurtenances placed on the PREMISES by Lessee under this Lease are
the personal property of Lessee. At the expiration or earlier termination of this Lease, Lessee shall
remove all personal property placed on the PREMISES and shall restore the PREMISES to its
previous condition, except surfacing, wheel rails, column guards, tie-backs and associated
grouting, at Lessee's sole expense. Any personal property not removed by Lessee after thirty (30)
days from Lessor's sending written notice to Lessee may be removed by Lessor. Lessee shall be
liable to Lessor for all costs incurred by Lessor in effecting the removal of personal property and
restoring the PREMISES. Lessor may, in its sole discretion, declare all personal property not
removed by Lessee to be abandoned by Lessee and this property shall, without compensation to
Lessee, become Lessor's property, free and clear of all claims to or against it by Lessee or any
other person.
ARTICLE 9. MAINTENANCE AND REPAIRS
Section 9.1 Lessee's Obligations
Lessee, at its own cost and expense, shall maintain the PREMISES, and keep it free of all
debris of every description. Lessee shall ensure that the PREMISES is at all times in an orderly,
clean and safe condition. Lessor requires a high standard of cleanliness, consistent with location
of the PREMISES as an adjunct of the California State Highway System. Lessee shall dispose of
swept or picked up material properly and shall not deposit such material in the State Highway.
Where relevant, Lessee hereby expressly waives the right to make repairs at the expense
of Lessor and waives the benefit of the provisions of Sections 1941 and 1942 of the California
Civil Code or any successor thereto.
Lessee shall take all steps necessary to protect effectively all Lessor’s improvements
including but not limited to the piers, footings, utilities, columns and all other Lessor owned sub-
surface structures, if any, from damage incident to Lessee's use of the PREMISES and any
improvements, all without expense to Lessor. Lessee shall, at its own cost and expense, repair in
accordance with Lessor's standards any damage to any property owned by Lessor, including, but
not limited to, all fences, guardrails, piers, and columns, regardless of whether such damage is
caused by Lessee, sub-lessees, invitees or other third parties. At Lessee's request, Lessor will
repair the damage to its property on the PREMISES, and Lessee agrees to reimburse Lessor
promptly after demand for the amount Lessor has reasonably expended to complete the repair
work.
Lessee shall designate in writing to Lessor a representative who shall be responsible for
the day-to-day operation on the PREMISES.
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Section 9.2 Lessor's Rights
In the event Lessee fails to perform Lessee's obligations under this Article, Lessor shall
give Lessee written notice to do such acts as are reasonably required to so maintain the
PREMISES. If within ten (10) days after Lessor sends such written notice, Lessee fails to comply
do the work and diligently proceed in good faith to prosecute such maintenance and/or repair it to
completion, Lessor shall have the right, but not the obligation, to do such acts and expend such
funds at the expense of Lessee as are reasonably required to perform such work. Any amount so
expended by Lessor shall be paid by Lessee promptly after demand plus interest as provided in
Section 18.11 of this Lease from the date of completion of such work to date of payment. Lessor
shall have no liability to Lessee for any damage, inconvenience or interference with the use of the
PREMISES by Lessee as a result of performing any such work.
ARTICLE 10. INDEMNITY AND INSURANCE
Section 10.1 Indemnification
Neither Lessor nor any of Lessor’s officers or employees is responsible for any injury,
damage, or liability occurring by reason of anything done or omitted to be done by Lessee under
or in connection with any work, authority, or jurisdiction conferred upon Lessee or arising under
this Lease.
It is understood and agreed Lessee will fully defend, indemnify, and save harmless
Lessor and all of its officers and employees from all claims, suits, or actions of every kind
brought forth under any theory of liability occurring by reason of anything done or omitted to be
done by Lessee under this Lease. Lessee’s obligations to defend, indemnify, and save harmless
Lessor extends to any and all claims, suits, or actions of every kind brought forth under any
theory of liability occurring due to the use of the PREMISES and Lessee’s operations under this
Lease, any accompanying agreement with Lessor, and any encroachment permit issued by
Lessor.
Lessee shall include in any contract it enters with any third party to conduct work in
association with this Lease, including any contractors who design, construct, or maintain
equipment, structures, fixtures or other property, a requirement the contractor will fully defend,
indemnify and save harmless Lessor and its officers and employees from any and all claims, suits
or actions of every kind brought forth under any theory of liability occurring due to the work
conducted in association with this Lease. If Lessee has any additional insured endorsements
executed by any third parties conducting work in association with this Lease naming Lessor to
comply with this provision, Lessee shall provide copies of the additional insured endorsements
and a Certificate of Insurance to Lessor.
If the Lease is terminated for any reason, Lessee also agrees to indemnify, defend, and
save harmless Lessor from any third party claims for damages arising out of the termination of
the Lease due to Lessor’s failure to comply with the requirements of the Lease. Such third party
claims include any claims from any contractors retained by Lessee or its successors.
Furthermore, Lessee agrees it controls the PREMISES. As such, Lessee agrees to
defend, indemnify and hold harmless Lessor, its officers, agents, and employees for any and all
claims arising out of any allegedly dangerous condition of public property based upon the
condition of the PREMISES.
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Lessee agrees to defend, indemnify and save harmless Lessor, its officers, employees, and
agents from any and all claims, suits or actions of every kind brought forth under any theory of
liability with respect to the PREMISES or the activities of Lessee or its officers, employees, and
agents at the PREMISES, excluding those arising by reason of the sole or active negligence of
Lessor, its officers, employees, and agents.
Lessee’s obligations to defend and indemnify Lessor is not excused because of Lessee’s
inability to evaluate liability or because Lessee evaluates liability and determines Lessee is not
liable. Lessee must respond within 30 days to the tender of any defense and indemnity by Lessor,
unless this time has been extended by Lessor.
Section 10.2 Insurance
Nothing in this Lease is intended to establish a standard of care owed to any member of
the public or to extend to the public the status of a third-party beneficiary for any of these
insurance specifications.
A. Workers' Compensation and Employer's Liability Insurance
Lessee shall provide workers’ compensation and employer’s liability insurance as
required under the Labor Code and provide Lessor the following certification before performing
any work (Labor Code § 1861) in connection with this Lease:
I am aware of the provisions of Section 3700 of the Labor Code which require every
employer to be insured against liability for workers' compensation or to undertake self-
insurance in accordance with the provisions of that code, and I will comply with such
provisions before commencing the performance of the work of this contract.
Lessee shall provide Employer's Liability Insurance in amounts not less than:
1. $1,000,000 for each accident for bodily injury by accident
2. $1,000,000 policy limit for bodily injury by disease
3. $1,000,000 for each employee for bodily injury by disease
B. Comprehensive General Liability Insurance
Lessee shall procure Comprehensive General Liability Insurance with $5 million per
occurrence and aggregate limits and Umbrella or Excess Liability Insurance with $20 million
limits covering all operations by or on behalf of Lessee, providing insurance for bodily injury
liability and property damage liability, and including coverage for:
1. PREMISES, operations and mobile equipment
2. Products and completed operations
3. Broad form property damage (including completed operations)
4. Explosion, collapse, and underground hazards
5. Personal injury
6. Contractual liability
Lessee shall provide a complete copy of the Comprehensive General Liability and the
Excess/Umbrella insurance policies with all endorsements, riders, and amendments to Lessor on
or before the commencement of this Lease.
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The Comprehensive General Liability insurance procured by Lessee shall also comply
with the following:
1. Shall extend to all of Lessee’s operations and remain in full force and effect during
the term of this Lease.
2. Must be with an insurance company with a rating from A.M. Best Financial Strength
Rating of A- or better and a Financial Size Category of VII or better.
3. Shall be on Commercial General Liability policy form no. CG0001 as published by
the Insurance Services Office (ISO) or under a policy form at least as broad as policy
form no. CG0001.
4. Shall contain completed operations coverage with a carrier acceptable to LESSOR
through the expiration of the latent and patent deficiency in construction statutes of
repose set forth in Code of Civil Procedure section 337.15.
5. Shall name Lessor, including its officers, directors, agents (excluding agents who are
design professionals), and employees, as additional insureds under the General
Liability and Umbrella Liability Policies with respect to liability arising out of or
connected with work or operations performed in connection with this Lease.
Coverage for such additional insureds does not extend to liability to the extent
prohibited by Insurance Code section 11580.04.
6. Shall provide additional insured coverage by a policy provision or by an endorsement
providing coverage at least as broad as Additional Insured (Form B) endorsement
form CG 2010, as published by the Insurance Services Office (ISO), or other form
designated by Lessor.
7. Shall state the insurance afforded the additional insureds applies as primary
insurance. Any other insurance or self-insurance maintained by Lessor is excess only
and must not be called upon to contribute with this insurance.
Lessee shall carry automobile liability insurance, including coverage for all owned, hired,
and nonowned automobiles. The primary limits of liability must be not less than $1,000,000
combined single limit for each accident for bodily injury and property damage. The umbrella or
excess liability coverage required under this Article shall also apply to automobile liability.
The umbrella or excess policy must contain a clause stating it takes effect (drops down)
in the event the primary limits are impaired or exhausted.
Lessor allows reasonable deductible clauses not overly broad, exceeding $250,000, or
harmful to Lessor. Lessee agrees by executing this Lease it shall defend, indemnify, and hold
harmless Lessor until such deductible is paid or applied to any claim arising out of this Lease,
regardless of Lessee’s evaluation of liability, as discussed in Section 9.1.
Lessor may assure Lessee’s compliance with Lessee’s insurance obligations. Ten days
before an insurance policy lapses or is canceled during the term of this Lease, Lessee must
submit evidence of renewal or replacement of the policy. Lessee is not relieved of its duties and
responsibilities to indemnify, defend, and hold harmless Lessor, its officers, agents, and
employees by Lessor’s acceptance of insurance policies and certificates. The minimum
insurance coverage amounts do not relieve Lessee from liability in excess of such coverage.
C. Self-Insurance
Reasonable self-insurance programs and self-insured retentions in insurance policies are
permitted by Lessor. If Lessee uses a self-insurance program or self-insured retention, Lessee
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must provide Lessor with the same protection from liability and defense of suits as would be
afforded by first-dollar insurance. Further, execution of this Agreement is Lessee’s
acknowledgment Lessee will be bound by all laws as if Lessee were an insurer as defined under
Insurance Code section 23 and Lessee’s self-insurance program or self-insured retention shall
operate as insurance as defined under Insurance Code section 22.
Section 10.3 Failure to Procure and Maintain Insurance
If Lessee fails to procure or maintain the insurance required by this Article in full force and
effect, this Lease may be terminated immediately by Lessor. In addition, if Lessee fails to procure
or maintain the insurance required by this Article, Lessee shall cease and desist from operating
any business on the PREMISES and the improvements erected thereon and shall prevent members
of the public from gaining access to the PREMISES during any period in which such insurance
policies are not in full force and effect.
Section 10.4 Waiver of Subrogation
Lessee hereby waives any and all rights of recovery against Lessor, or against the officers,
employees, agents and representatives of Lessor, for loss of or damage to Lessee or its property or
the property of others under its control to the extent that such loss or damage is insured against
under any insurance policy in force at the time of such loss or damages. Lessee shall give notice
to its insurance carrier or carriers that the foregoing waiver of subrogation is contained in the
Lease.
ARTICLE 11. PAYMENT OF TAXES
Lessee agrees to pay and discharge, or cause to be paid and discharged when due, before
the same become delinquent, all taxes, assessments, impositions, levies and charges of every kind,
nature and description, whether general or special, ordinary or extraordinary, which may at any
time or from time to time during the term of this Lease, by or according to any law or governmental,
legal, political, or other authority whatsoever, directly or indirectly, be taxed, levied, charged,
assessed or imposed upon or against, or which shall be or may be or become a lien upon the
PREMISES or any buildings, improvements or structures at any time located thereon, or any estate,
right, title or interest of Lessee in and to the PREMISES, buildings, improvements or structures.
Specifically, and without placing any limitation on Lessee's obligations under the immediately
preceding sentence, Lessee shall pay when due, before delinquency, any and all possessory interest
taxes, parking taxes, workers' compensation, taxes payable to the California Franchise Tax Board,
personal property taxes on fixtures, equipment and facilities owned by Lessee, whether or not the
same have become so fixed to the land as to comprise a part of the real estate.
Lessee understands that any possessory interest of Lessee created in the PREMISES by
this Lease may be subject to property taxation and that Lessee may be liable for payment of any
such tax levied on such interest. Any obligation of Lessee under this Article, including possessory
interest tax that the city or county may impose upon Lessee's interest herein, shall not reduce any
rent due hereunder and any such obligation shall become the liability of and be paid by Lessee. In
the event Lessee defaults in the payment of any of the obligations set forth in this Article, this
Lease may be terminated immediately by Lessor and upon such termination Lessee must
immediately cease using the PREMISES.
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ARTICLE 12. RIGHT OF ENTRY
Section 12.1 Inspection, Maintenance, Construction and Operation of Freeway Structures
Lessor, through its agents or representatives, and other city, county, state and federal
agencies, including the Federal Highway Administration, through their agents or representatives,
shall have full right and authority to enter in and upon the PREMISES and any building or
improvements situated thereon at any and all reasonable times during the term of this Lease for
the purpose of inspecting the same without interference or hindrance by Lessee, Lessee’s directors,
officers, employees, agents, and/or representatives.
Lessor further reserves the right of entry for the purpose of inspecting the PREMISES, or
the doing of any and all acts necessary or proper on said PREMISES in connection with the
protection, maintenance, reconstruction, and operation of any and all freeway structures and their
appurtenances; provided, further, that Lessor reserves the further right, at its discretion, to
immediate possession of the same in case of any national or other emergency, or for the purpose
of preventing sabotage, and for the protection of said freeway structures and/or appurtenances, in
which event the term of this Lease shall be extended for a period equal to the emergency occupancy
by Lessor, and during said period Lessee shall be relieved, to the degree of interference, from the
performance of conditions or covenants specified herein.
Lessor further reserves the right of entry by any authorized officer, engineer, employee,
contractor or agent of the Lessor for the purpose of performing any maintenance activities upon
the PREMISES which Lessee has failed to perform. All agreements which Lessee enters into for
the sublease or use of all or any part of the PREMISES shall contain a provision, approved by
Lessor, which describes Lessor's right of entry as set forth in this Article.
Section 12.2 Lessor's Use of the PREMISES
Lessee understands and agrees that Lessor may, from time to time, be required to perform
work on all or a part of the freeway structures which are situated on, above or adjacent to the
PREMISES or be required to use all or a portion of the PREMISES in connection with the
protection, maintenance, reconstruction, and operation of the state highway system. Lessor shall
have the right to impose such restrictions on Lessee's right to enter, occupy, and use the
PREMISES and to construct improvements thereon as Lessor deems are necessary to enable it to
maintain, protect, reconstruct or operate the state highway system without interference from
Lessee and/or anyone acting by, through, or on behalf of Lessee.
In the event Lessor determines that it needs possession of all or a portion of the PREMISES,
or needs to place restrictions on Lessee's use of the PREMISES, Lessor shall, at least thirty (30)
days prior to the effective date of the commencement of such possession or restrictions notify
Lessee in writing describing the extent of the possession or restrictions and the effective date of
their commencement , except in cases of emergency in which cases Lessor will attempt to provide
notice to Lessee in advance of placing such restrictions or taking possession but may place such
restrictions or take possession effective immediately without advance notice to Lessee.. Upon the
effective date of said notice, Lessee shall peaceably surrender possession of all or any specified
portion of the PREMISES and comply with the restrictions as stated therein. The monthly rent
stated in Article 4, shall be reduced by an amount equal to the proportion which the area of the
portion of the PREMISES which Lessee is restricted from using or which has been surrendered to
Lessor bears to the total area of the PREMISES. This reduction in rent shall be Lessee's sole
remedy against Lessor for Lessee's inability to possess or use the entire area of the PREMISES, or
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for any disruption of Lessee's ability to use any part of the PREMISES, and Lessee expressly
agrees to hold Lessor harmless from any and all liability for, and expressly waives any right it may
have to recover compensation from Lessor, waives any right it may have to recover for damages
to the PREMISES or any improvements constructed on the PREMISES, waives any right it may
have to assert or recover lost profits or other revenue, and waives its right to use or possess any
portion of the PREMISES or improvements thereon, and damages to any other property, project
or operation caused by Lessor's possession of the PREMISES, Lessor’s, imposition of restrictions
or Lessee's inability to use or possess all or any portion of the PREMISES.
Lessee shall conduct its operations on the PREMISES in such a manner so as not to
interfere with Lessor's or its contractor's performance of any work done on or above the
PREMISES. Lessee acknowledges that the performance of the work may cause damage to paving
or other improvements constructed by Lessee on the PREMISES.
At the end of the lease, and forever thereafter if remaining tie-back rods are bent, cut or
removed from State’s right of way, the State will have no liability for any damage incurred to
adjacent private property structures by the bending, cutting or removal of those tie-back rods from
the State’s right of way.
ARTICLE 13. TERMINATION OF LEASE
Section 13.1 Termination by Mutual Consent
Notwithstanding any provision herein to the contrary, this Lease may be terminated, and
the provisions of this Lease may be altered, changed or amended by mutual written consent of
Lessor and Lessee.
Section 13.2 Termination by One Party
Notwithstanding any provision herein to the contrary, this Lease may be terminated at any
time by Lessee upon providing Lessor with ninety (90) days prior notice in writing, or by Lessor
upon providing Lessee with ninety (90) days prior notice in writing. In addition, failure of the
Lessee to continually maintain a current, valid encroachment permit issued by Lessor’s Division
of Traffic Operations as required within Section 5.8 of this Lease, shall result in the immediate
termination of this Lease. Notices of termination under this section shall be delivered in
accordance with the provisions of Section 18.13 to the addresses set forth in Article 1.
ARTICLE 14. DEFAULT
Section 14.1 Default
In addition to any other grounds for breach identified elsewhere in this Lease, the
occurrence of any of the following shall constitute a material breach and default of this Lease by
Lessee:
(a) Any failure by Lessee to pay rent or any other monetary sums required to be paid under
this Lease, where such failure continues for ten (10) days after written notice thereof
has been given by Lessor to Lessee.
(b) The abandonment or vacation of the PREMISES by Lessee. Failure to occupy and
operate within the PREMISES for thirty (30) consecutive days following the mailing
of written notice from Lessor to Lessee calling attention to the abandonment shall be
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deemed an abandonment or vacation.
(c) The making by Lessee of any general assignment or general arrangement for the benefit
of creditors; the filing by or against Lessee of a petition to have Lessee adjudged
bankrupt or of a petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Lessee the same is dismissed
within sixty (60) days); the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets, where possession is not restored to Lessee within
forty-five (45) days; or the attachment, execution or other judicial seizure of
substantially all of Lessee's assets, where such seizure is not discharged within thirty
(30) days.
(d) The failure by Lessee to comply with any provision of any law, statute, zoning
restriction, or ordinance, or of any governmental rule, regulation, or requirement as set
forth in Section 5.3 of this Lease.
(e) The failure by Lessee to comply with the requirements regarding explosives and
flammable materials as set forth in Section 5.4 of this Lease, or regarding hazardous
materials as set forth in Section 5.5 of this Lease.
(f) The failure by Lessee to pay any tax, assessment, imposition, levy, or charge of any
kind as set forth in Article 10 of this Lease.
(g) The construction by Lessee of any improvements on the PREMISES contrary to the
provisions of Article 6 of this Lease.
(h) The failure by Lessee to observe and perform any other provision of this Lease to be
observed or performed by Lessee, where such failure continues for thirty (30) days after
written notice thereof by Lessor to Lessee; provided, however, that if the nature of such
default is such that it cannot be reasonably cured within such thirty (30) day period,
Lessee shall not be deemed to be in default if Lessee shall within such period
commence such cure and thereafter diligently prosecute the same to completion.
(i) Failure of the Lessee to continually maintain a current valid Encroachment Permit
issued by Lessor’s Division of Traffic Operations as required within Sections 5.2 and
5.6 of this Lease.
Section 14.2 Lessor's Remedies
In the event of any material breach or default by Lessee, Lessor may at any time thereafter,
without limiting Lessor in the exercise of any right of remedy at law or in equity which Lessor
may have by reason of such default or breach, terminate Lessee's right to possession by any lawful
means, in which case this Lease shall immediately terminate and Lessee shall immediately
surrender possession of the PREMISES to Lessor. In such event Lessor shall be entitled to recover
from Lessee all damages incurred by Lessor by reason of Lessee's breach or default including, but
not limited to, the following:
(a) any unpaid rent for the remaining term of the Lease; plus
(b) any other amount necessary to compensate Lessor for all the detriment proximately
caused by Lessee's failure to perform its obligations under this Lease or which in the
ordinary course of events would be likely to result therefrom; plus
(c) at Lessor's election, such other amounts in addition to or in lieu of the foregoing as may
be permitted from time to time by applicable State law.
The term "rent" as used in this Article shall be deemed to be and to mean rent to be paid
pursuant to Article 4 and all other monetary sums required to be paid by Lessee pursuant to the
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terms of this Lease.
Section 14.3 Late Charges
Lessee hereby acknowledges that late payment by Lessee to Lessor of rent and other sums
due hereunder will cause Lessor to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges. Accordingly, if any installment of rent or any other sum due
from Lessee shall not be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, a late charge equal to one and one-half percent (1.5%) of the payment due
and unpaid plus $100.00 shall be added to the payment, and the total sum shall become
immediately due and payable to Lessor. An additional charge of one and one-half percent (1.5%)
of such payment, excluding late charges, shall be added for each additional month that such
payment remains unpaid. Lessor shall apply any monies received from Lessee first to any accrued
delinquency charges and then to any other payments due under the Lease. The parties hereby
agree that such late charges represent a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Lessee. Acceptance of such late charges by Landlord shall in
no event constitute a waiver of Lessee's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted hereunder.
ARTICLE 15. ASSIGNMENTS, TRANSFERS, SUBLEASES AND ENCUMBRANCES
Section 15.1 Prohibition on Assignments, Transfers and Subleases during the Term
Lessee shall not assign, transfer, or sublease all or any part of its interest in this Lease, and
Lessor will not grant its consent to any purported assignment, transfer, or sublease of all or any
part of this Lease.
Section 15.2 Encumbrances
Lessee has no right to and shall not encumber the PREMISES in any manner whatsoever.
ARTICLE 16. NONDISCRIMINATION
Lessee, for itself, its personal representatives, successors in interest, and assigns, as a part
of the consideration hereof, does hereby covenant and agree as a covenant running with the land
that: (1) no person, on the ground of race, color, or national origin shall be excluded from
participation in, be denied the benefits of, or otherwise subjected to discrimination in the use of
said facilities, (2) in connection with the construction of any improvements on said land and the
furnishing of services thereon, no discrimination shall be practiced in the selection of employees
and contractors, by contractors in the selection and retention of first-tier subcontractors, and by
first-tier subcontractors in the selection and retention of second-tier subcontractors, (3) such
discrimination shall not be practiced against the public in its access to and use of the PREMISES
and (4) Lessee shall use the PREMISES in compliance with all other requirements imposed
pursuant to Title 49, Code of Federal Regulations, Part 21 (49 C.F.R., Part 21) and as said
regulations may be amended. In the event of breach of any of the above nondiscrimination
covenants, the Lessor shall have the right to immediately terminate this Lease, and to re-enter and
repossess the PREMISES, and hold the same as if said Lease had never been made or issued.
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ARTICLE 17. SECURITY DEPOSIT
Concurrently with Lessee's execution of this Lease, Lessee shall deposit with Lessor the
sum of $-0- as a Security Deposit. Said sum shall be held by Lessor as a Security Deposit for the
faithful performance by Lessee of all of the terms, covenants, and conditions of this Lease to be
kept and performed by Lessee during the term hereof. If Lessee defaults with respect to any
provision of this Lease, including but not limited to the provisions relating to the payment of rent
and any of the monetary sums due, Lessor may at Lessor’s option use, apply, or retain all or any
part of this Security Deposit for the payment of any other amount which Lessor may spend by
reason of Lessee's default or use it to compensate Lessor for any other loss or damage which Lessor
may suffer by reason of Lessee's default. If any portion of said Security Deposit is so used or
applied, Lessee shall within ten (10) days after written demand therefor, deposit cash with Lessor
in an amount sufficient to restore the Security Deposit to its original amount, and Lessee's failure
to do so shall be a material breach of this Lease. Lessor shall not be required to keep this Security
Deposit separate from its general funds, and Lessee shall not be entitled to interest on such deposit.
If Lessee shall fully and faithfully perform every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Lessee at the expiration of the Lease
term and after Lessee has vacated the PREMISES.
ARTICLE 18. ADDITIONAL PROVISIONS
Section 18.1 Quiet Enjoyment
Lessor covenants and agrees with Lessee that upon Lessee paying rent and other monetary
sums due under the Lease and performing Lessee’s covenants and conditions, Lessee shall and
may peaceably and quietly have, hold, and enjoy the PREMISES for the Lease term, except as
otherwise provided in this Lease.
Section 18.2 Captions, Attachments, Defined Terms
The captions of the Articles and Sections in this Lease are for convenience only and shall
not be deemed to be relevant in resolving any question of interpretation or construction of any
section of this Lease. Exhibits attached hereto, and addenda and schedules mutually agreed upon
by the parties, are deemed by attachment to constitute part of this Lease and are incorporated
herein. The words "Lessor" and "Lessee," as used herein, shall include the plural as well as the
singular. Words used in neuter gender include the masculine and feminine and words in the
masculine or feminine gender include the neuter. If there be more than one Lessor or Lessee, the
obligations hereunder imposed upon Lessor or Lessee shall be joint and several. If the Lessees are
husband and wife, the obligations shall extend individually to their sole and separate property as
well as to their community property.
Section 18.3 Entire Agreement
This Lease, along with any exhibits and attachments hereto, constitutes the entire
agreement between Lessor and Lessee relative to the PREMISES and this Lease and the exhibits
and attachments may be altered, amended, or revoked only by an instrument in writing signed by
both Lessor and Lessee, except as otherwise provided in this Lease. Lessor and Lessee agree that
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all prior or contemporaneous oral agreements between and among themselves and their agents and
representatives relative to the leasing of the PREMISES are merged in or revoked by this Lease
Agreement.
Section 18.4 Severability
If any term or provision of this Lease is determined by a court of competent jurisdiction to
be invalid or unenforceable to any extent, such term or provision shall be automatically severed
from this Lease and the remainder of this Lease shall not be affected thereby, and the remaining
terms and provisions of this Lease shall be valid and enforceable to the fullest extent permitted by
law.
Section 18.5 Costs of Suit
If Lessee or Lessor shall bring any action for any relief against the other, declaratory or
otherwise, arising out of this Lease, including any suit by Lessor for the recovery of rent or
possession of the PREMISES, the losing party shall pay the successful party a reasonable sum for
attorney's fees which shall be deemed to have accrued on the commencement of such action.
Should Lessor, without fault on Lessor's part, be made a party to any litigation instituted by Lessee
or by any third party against Lessee, or by or against any person holding under or using the
PREMISES by license of Lessee, or for the foreclosure of any lien for labor or materials furnished
to or for Lessee or any such other person or otherwise arising out of or resulting from any act or
transaction of Lessee or of any such other person, Lessee shall defend, indemnify and hold
harmless Lessor, and Lessor’s directors, officers, employees, and representatives, from any and all
such claims and/or judgment rendered against Lessor or the PREMISES or any part thereof, and
Lessee shall pay and/or reimburse Lessor for all costs and expenses, including reasonable
attorney's fees, incurred by Lessor in connection with such litigation.
Section 18.6 Time; Joint and Several Liability
Time is of the essence for this Lease and each and every provision hereof, except as to the
conditions relating to the delivery of possession of the PREMISES to Lessee. All the terms,
covenants, and conditions contained in this Lease to be performed by Lessee, if such Lessee shall
consist of more than one person or organization, shall be deemed to be joint and several among
the component persons and/or organizations making up such Lessee. All rights and remedies of
the parties shall be cumulative and non-exclusive of any other remedy at law or in equity.
Section 18.7 Binding Effect; Choice of Law
The parties hereto agree that all the provisions hereof are to be construed as both covenants
and conditions as though the words importing such covenants and conditions were used in each
separate section hereof; and all of the provisions hereof shall bind and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and assigns. This Lease
shall be governed by the laws of the State of California, without regard for its conflict of law
provisions.
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Section 18.8 Waiver
No covenant, term, or condition, or the breach thereof, shall be deemed waived, except by
written consent of the party against whom the waiver is claimed, and any waiver or the breach of
any covenant, term, or condition shall not be deemed to be a waiver of any preceding or succeeding
breach of the same or any other covenant, term, or condition. Acceptance by Lessor of any
performance by Lessee after the time the same shall have become due shall not constitute a waiver
by Lessor of the breach or default of any covenant, term or condition unless otherwise expressly
agreed to by Lessor in writing.
Section 18.9 Surrender of PREMISES
The voluntary or other surrender of this Lease by Lessee, or a mutual cancellation thereof,
shall not work a merger and shall, at the option of the Lessor, terminate all or any existing subleases
or sub tenancies, or may, at the option of Lessor, operate as an assignment to it of any or all such
subleases or sub tenancies.
Section 18.10 Holding Over
If Lessee remains in possession of all or any part of the PREMISES after the expiration of
the Lease term, with or without the express or implied consent of Lessor, such tenancy shall be
from month to month only and not a renewal hereof or an extension for any further term, and in
such case, rent and other monetary sums due hereunder shall be payable at the time specified in
this Lease and such month-to-month tenancy shall be subject to every other term, covenant,
condition and agreement contained herein, except that the monthly rental rate set forth in Article
4 shall be increased by ten percent (10%) effective the first month of the holdover period. Lessor
further reserves the right to review the rental rates of all holdover Lessees periodically for the
purpose of making reasonable adjustments to the monthly rental payments.
Section 18.11 Interest on Past Due Obligations
Except as expressly provided otherwise in this Lease, any amount due to Lessor not paid
when due shall bear interest at a rate one percent (1%) above the discount rate of the Federal
Reserve Bank of San Francisco, per month, from the original due date. Except as expressly
provided otherwise in this Lease, payment of such interest together with the original amount due
shall excuse or cure any default by Lessee caused by failure to timely pay the original amount due.
Section 18.12 Recording
Neither Lessor nor Lessee shall record this Lease.
Section 18.13 Notices
All notices or demands of any kind required or desired to be given by Lessor or Lessee
hereunder shall be in writing and shall be deemed delivered two (2) calendar days after depositing
the notice or demand in the United States mail, certified or registered, postage prepaid, addressed
to the Lessor or Lessee respectively at the addresses set forth in Article 1.
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Section 18.14 No Reservation
Submission of this instrument for examination or signature by Lessee does not constitute
a reservation of or option for lease; it is not effective as a lease or otherwise until execution and
delivery by both Lessor and Lessee.
Section 18.15 Corporate Authority
If Lessee is a corporation, each individual executing this Lease on behalf of said
corporation represents and warrants that he/she is duly authorized to execute and deliver this Lease
on behalf of said corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said corporation, and that this
Lease is binding upon said corporation in accordance with its terms. If Lessee is a corporation,
Lessee shall, within thirty (30) days after execution of this Lease, deliver to Lessor a certified copy
of a resolution of the Board of Directors of said corporation authorizing or ratifying the execution
of this Lease.
Section 18.16 Force Majeure
If either Lessor or Lessee shall be delayed or prevented from the performance of any act
required under this Lease by reason of acts of God, or by governmental restrictions, regulations,
or controls (except those reasonably foreseeable in connection with the uses contemplated by this
Lease), or by other cause without fault and beyond the control of the party obligated (except
financial inability), then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period equivalent to the
period of such delay. Nothing in this section shall excuse Lessee from prompt payment of any rent,
taxes, insurance or any other charge required of Lessee, except as may be expressly provided in
this Lease.
In Witness Whereof Lessor and Lessee have executed this Lease as of the date first written
above.
LESSOR: STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION
Dated: ________________ By: ____________________________________
JULIE MCDANIEL, Right of Way-
District Office Chief
Airspace Development, Local Programs,
Relocation Assistance &Utility Relocations
LESSEE: CITY OF SOUTH SAN FRANCISCO
Dated: ________________ By: ____________________________________
MIKE FUTRELL, City Manager
City of South San Francisco
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