HomeMy WebLinkAboutReso 75-1996RESOLUTION NO. 75-96
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION APPROVING A GROUND LEASE BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND MAZZANTI
CARNATIONS, INC. FOR PROPERTY LOCATED AT 820
TENNIS DRIVE. SOUTH SAN FRANCISCO
WHEREAS, the City has purchased property at 820 Tennis Drive
in South San Francisco; and
WHEREAS, Mazzanti Carnations, Inc., pursuant to the Purchase
and Sell Agreement previously approved by the City Council, has
continued to operate their horticultural business at that location;
and
WHEREAS, Mazzanti Carnations, Inc. desires to continue
operating the horticultural business at 820 Tennis Drive; and
WHEREAS, the City desires to lease the property at 820 Tennis
Drive to Mazzanti Carnations, Inc. for a 2-year period, with an
option to extend the agreement to 4 years;
NOW, THEREFORE, the City Council of the City of South San
Francisco does hereby resolve as follows:
1. The City Council approves the ground lease between the
City of South San Francisco and Mazzanti Carnations, Inc. attached
hereto as Exhibit A, and authorizes the City Manager to execute and
implement the agreement.
I hereby certify that the foregoing resolution was adopted by
the City Council of the City of South San Francisco at the regular
meeting held on the 8th day of May , 1996, by the
following vote:
AYES:
Councilmembers Joseph A. Fernekes, Eugene R. Mullin, John R.
Penna, Robert Yee and Mayor Jack Drago
NOES: None
ABSTAIN: None
ABSENT: None
a:\ma~an~.rcs
ATTEST
EXHIBIT A TO RESOLUTION NO. 75-96
GROUND l ]:.ASE
by and between
CITY OF SOUTH SAN FRANCISCO
and
MAZZANTI CARNATIONS, INC.
TABLE OF CONTENTS
LEASED PREMISES ............................................. 1
1.1 Description of Leased Premises ................................ 1
2.1 Initial Term ............................................... 2
2.2 Option to Extend .......................................... 2
2.3 Exercise of Option .......................................... 2
RENT ......................................................... 2
3.1 Rent ..................................................... 2
3.2 Time and Manner of Payment of Rent .......................... 2
3.3 Taxes and Assessments ................ ~ ....................... 3
3.3.1 Obligation to Pay .................................... 3
4. USES, PURPOSES ......................................... 3
4.1 Use of Premises ............................................ 3
4.1.1. Proposed Facilities and Improvements .................... 3
4.2 Operation of Facility ........................................ 3
4.2.1 Use ............................................... 3
4.2.2 Average Hours: Staffing ............................... 4
4.2.3 Utilities ............................................ 4
4.3 Reservations to Landlord .................................... 4
4.3.1 Landlord's Right to Grant Easements ..................... 4
4.3.2 Landlord's Right to Use Premises for Park Purposes ..........5
4.3.3 Other Rights ....................................... 5
5. IMPROVEMENTS .............................................. 5
5.1 Fund Raising. Records and Audit ............................. 5
5.1.1 ................................................... 5
5.1.2 ................................................... 6
5.1.3 ................................................... 6
5.1.4 ................................................... 6
5.2 Tenant's Duty to Construct Improvements ....................... 6
5.3 Conditions of Major Construction ............................. 7
5.3.1 Resolution of Financial Responsibility .................... 7
Page i of v
5.3.2 Plans and Specifications ............................... 7
5.3.3 Final Plans. Specifications. Schedule of Construction ........ 8
5.3.4 Notice of Intent to Construct ..................... ' ..... 8
5.3.5 Construction Contract and Personnel .................... 9
5.3.6 Compliance with Regulations ............. · .............. 9
5.3.7 Insurance .......................................... 9
5.4 Landlord's Duty to Make Available Parking ....................... 9
5.5 Soil Conditions ........................................... 10
5.6 Tenant's Right to Grant Easements ............................ 10
5.7 Diligent Prosecution to Completion ............... ............ 10
5.8 Protection Against Cost or Claim ............................. 10
5.9 Waiver of Fees ............................................ i 1
5.10 Notice of Completion ..................................... 11
5.11 Notice of Changes in Plans ................................. 11
6. MAINTENANCE, REPAIRS, ALTERATIONS, RECONSTRUCTION .... 12
6.1 Tenant's Duty to Maintain Premises ........................... 12
6.1.1 Tenant's Duty to Comply with Laws .................... 12
6.1.2
6.1.3
6.1.4
6.1.5
6.2
6.3
6.4
Waste Disposal .................................... 12
Hazardous Materials ................................. 12
Billboards and Signs .................................. 13
Landlord's Right to Inspections ........................ 14
Duty to Maintain Premises ................................. 14
Repairs. Alteration. Reconstruction ............................ 14
Major and Minor Repairs Distinguished ........................ 15
OWNERSHIP OF IMPROVEMENTS .............................. 15
7.1 Tenant's Right to Improvements During Term ................... 15
7.2 Landlord's Right to Improvements During Term .................. 15
7.3 Landlord's Right to Improvements Upon Termination of Lease ...... 15
7.4 Tenant's Duty to Remove Fixtures ............................ 16
ge
FINANCING, ASSIGNMENT, SUBLETTING ....................... 16
8.1 Encumbrance of Leasehold .................................. 16
8.2 Assignment .............................................. 16
8.3 Subleases ................................................ 16
9. INSURANCE; INDEMNIFICATION .............................. 16
9.1 Duty to Maintain Insurance ................................. 16
9.2 Policy Obligations ......................................... 17
Page ii of v
9.3 Increases in Minimum Policy !,imits ........................... 17
9.4 Certificates of Insurance .................................... 17
9.5 Failure to Maintain Insurance. Proof of Compliance ............... 17
9.5.1 Execution of Lease ........ ' .......................... 17
9.5.2 After Execution of Lease ............................. 17
9.5.3 Renewals and Replacements ........................... 17
9.5.4 Failure to Procure and Maintain Insurance ............... 18
9.6 Indemnity ............................................... 18
9.6.1 Use of Premises .................................... 18
9.6.2 Breach by Tenant ................................... 18
9.6.3 Construction. Maintenance and Operation ............... 18
9.6.4 Other Activities .................................... 18
10. DEFAULT, REMEDIES ........................................ 18
10.1 Tenant's Default ......................................... ! 8
10.1.1 Failure to Perform Covenants ........................ 19
10. 1.2 Attachment or Other Levy ........................... 19
10.1.3 Appointment of Receiver ............................ 19
10.1.4 Insolvency and Banlcruptcy .......................... 19
10.2 Notice and Right to Cure .................................. ! 9
10.3 Tenant's Right to Cure Default: Notice of Default ............... 19
10.4 Landlord's Remedies ...................................... 19
10.4.1 Termination ...................................... 20
10.4.2 Re-entry Without Termination ....................... 20
10.4.3 Tenant's Personal Property ........................... 20
10.4.4 Assignment ....................................... 20
10.5 Notice of Landlord's Default ................................ 21
10.6 Provisions Applicable to Both Parties .......................... 21
10.6.1 Unavoidable Default or Delay ........................ 21
10.6.2 Waiver. Voluntary Acts ............................. 21
1 I. EXPIRATION AND TERMINATION ............................. 21
11.1 Tenant's Duty to Surrender ................................. 21
11.2 Holding Over ..................................... . ...... 22
! 1.30uitclaim Deed .......................................... 22
12.
GENERAL CONDITIONS, MISCELLANEOUS PROVISIONS ........ 22
12.1 Notices ................................................ 22
12.1.1 Definition of Notice: Application of Provision ............ 22
12.1.2 Writing ......................................... 22
Page iii of v
12.1.3 Delivery ............... .............. ~ ........... 23
12.1.4 Change of Recipient or Address ....................... 23
12.1.5 Redpient Named .................................. 23
12.2 Amendment ............................................ 23
12.3 l=~toppel Certificates ...................................... 24
12.4 ~oint and Several Obligations ............................... 24
12.5 Captions, Table of Contents ................................ 24
12.6 C, ender ................................................ 24
12.7 Singular and Plural ....................................... 24
12.8 Exhibits, Addenda ........................................ 24
12.9 Merger ................................................. 24
12.10 Applicable Law ......................................... 25
12.11 Covenants and Conditions ................................ 25
12.12 No Discrimination ...................................... 25
12.13 Time of Essence ......................................... 25
12.14 Construction of Lease: Severability .......................... 25
12.15 Relationship ........................................... 25
12.16 No Benefit to Third Parties ................................ 25
12.17 F~xecution in Counterparts ................................. 26
Page iv of v
TABLE OF EXHIBITS
F, xhibit A
Exhibit B
Lease Plat (inducting Dimensional Sketch)
Insurance Provisions
Page v of v
GROUND LEASE
This Ground Lease is made on M ~ ~-~ ,1996 between the CITY
OF SOUTH SAN FRANCISCO, a municipal corporation of the Sta~e of California
(hereinafter referred to as "Landlord"), and the MAZZANTI CARNATIONS, INC., a
eo~o~a~o~ (hereinafter referred to as '~Tenant"). Landlord and Tenant are sometimes
collectively referred to as the "parties" and singularly, a "party."
R!i~XTALS
WHEREAS, Landlord is the owner of the premises described in Section 1.1
below; and
WHEREAS, as of luly I, 1996, Landlord will made the final installment
payment on the lands sales contract between Landlord and Tenant and will therefore
be in possession of fee title to the premises described in Section I. 1 below;
WHEREAS, Tenant desires to lease said premises for two years for the purpose
of continuing operation of a greenhouse/agricultural enterprise; and
WHEREAS, the parties desire to enter into this ground lease (hereinafter
referred to as the "Lease") upon the terms and conditions set forth below.
NOW THEREFORE, in consideration of the promises, covenants and
agreements of both parties as set forth below, the parties agree as follows:
A~RE!iMENT
1. LEASED PREMISES
1.1 Description of Leased Premises. By this Lease, Landlord has leased and
does hereby lease to Tenant, and Tenant does hereby take and hire from Landlord,
that certain real property commonly known as 820 Tennis Drive (APN Nos. 014-
041-100, 110, and 130), with all buildings and improvements presently or from time
to time hereafter thereon, and all appurtenances thereto, situated in the City of
South San Francisco, State of California, as more particularly described in Exhibit A,
attached hereto and incorporated herein by this reference (the "Premises").
Mazzanti Ground Lease (rev. I)
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Page I of 16
2. TERM
2.1 Initial Term. The term of this Lease shall be two (2) years, commencing
July 1, 1996 (hereinafter referred to as the "Lease Commencement Date"), and ending
on June 30, 1998 unless extended or sooner terminated as provided for in this Lease.
2.2 Option to Extend. Tenant may, upon written approval from Landlord,
extend the initial term of this Lease for one additional period of two (2) years subject
to all the provisions of this Lease.
2.3 Exercise of Option. Not less than ninety (90) days before the last day of
the term, Tenant shall give Landlord notice of its desire to exercise the option. City
shall either approve or deny the requested lease extension within 45 days of receipt of
the Tenant's written request to exerdse the option. Each party shall execute a
memorandum, in recordable form, admowledging the fact that the option has been
exercised and otherwise complying with the requirem~.nts of law for an effective
memorandum or abstract of lease.
3. RENT
3.1 Rent. Tenant shall pay to Landlord annual rent in the amount of THIRTY
THOUSAND DOLLARS ($30,000) (hereinafter referred to as "Rent"). Tenant shall
pay Rent in advance in monthly installments of TWENTY-FIVE HUNDRED
($2,500) payable on the first day of each month with the first payment due on luly
1, 1996. The Rent and any other sums payable by Tenant hereunder shall be paid
by Tenant without notice, demand or offset to the City of South San Francisco, or at
such other place or places as may from time to time be designated by Landlord.
Failure to pay rent shall be deemed a default of the Lease.
Mazzanti Ground Lease (rev. 1)
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Page 2 of 16
3.2 Taxes and Assessments.
3.2.1 Obligation to Pay. To the extent applicable, Tenant is fully
responsible for and agrees to pay, all personal property taxes (including any tax levied
on a possessory interest, as defined in California Revenue and Taxation Code Section
107 or successor statute, if applicable) levied on or assessed by any governmental
agency (except Landlord) against Tenant's interest in personal property located on or
in the land or improvements. Tenant may pursue any exemptions from personal
property taxes as allowed by law.
4. USES, PURPOSES
4.1 Use of Premises. Tenant shall use and permit the use of the Premises only
for the maintenance, and operation of the existing horticultural business operated by
Tenant.
4.1. I Soil Conditions. Landlord makes no covenants or warranties
respecting the condition of the soil, or sub-soil, or any other condition of the
Premises. Tenant shall have the right to conduct any tests, at Tenant's sole cost and
expense, it deems to be necessary to determine the condition of the soil, prior to the
Lease Commencement Date. A copy of such soils report, if any, shall be provided to
Landlord prior to the Lease Commencement Date.
4.2 Operation of Facility.
4.2.1 Use. Tenant shall use and operate the Premises, in a safe, dean,
and sanitary manner. Tenant shall obtain all necessary governmental entitlements to
operate the Premises, and shall abide by any conditions of use imposed by the City of
South San Francisco or any other governmental agency with jurisdiction. During the
term of this Lease, Tenant shall comply with all applicable federal, state and local
statutes,_ codes, ordinances, regulations.
4.2.2 Utilities. Tenant shall fully and promptly pay for all water, sewer
gas, heat, light, power, telephone service, cable television service, trash and recycling
service' and other public utilities of every kind furnished to the property throughout
the term of the Lease, and all other costs and expenses of every kind whatsoever of or
in connection with the use, operation, and maintenance of the Premises and all
activities conducted on such Premises.
Mazzanti Ground Lease (rev. I)
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Page 3 of 16
4.3 Reservations to Landlord.
4.3.1 Landlord's Right to Grant Easements. Landlord reserves the right
to grant franchises, easements, rights-of-way and permits in, over, and upon, along or
across any and all portions of said Premises as Landlord may elect, provided said
franchises, easements, rights-of-way and permits do not materially interfere with
Tenant's operations. In addition, Landlord reserves the right to enter and have
access to the property in order to plan, make, construct or carry out park
improvements, provided said actions do not create a material interference with
Tenant's operations.
4.3.3 Other Rights. Ail oil, gas, geothermal and mineral fights are
expressly reserved from this Lease.
4.4 Protection Against Cost or Claim. Tenant shall not suffer or permit to be
enforced against the Premises, or any part of it, any mechanic's, materialman's,
contractgfs or subcontractors lien, arising from any work of improvement, however it
may arise. However, Tenant may, in good faith, and at Tenant's own expense,
contest the validity of any such asserted lien, claim, or demand, provided Tenant has
furnished, within ten (10) days of recordation of such a lien, the bond required in
Civil Code Section 3143 (or any comparable statute hereafter enacted for providing a
bond freeing the premises from the effect of such a lien claim). Tenant shall defend
and indemnify Landlord against all liability and loss of any type, arising out of work
performed on the Premises by Tenant, together with attorneys' fees and all costs and
expenses incurred by Landlord in negotiating, settling, defending, or otherwise
protecting against such claims.
5. MAINTENANCE, REPAIRS, ALTERATIONS, RECONSTRUCTION
5. i Tenant's Duty to Maintain Premises.
5.1.1 Tenant's Duty to Comply with Laws. Throughout the term,
Tenant s-hall, at Tenant's sole cost and expense, maintain the Premises in good
condition and repair, and in accordance with all applicable laws, rules, ordinances,
orders and regulations of any federal, state, county, munidpal and other
governmental agendes and bodies having or claiming jurisdiction and all their
respective departments, bureaus and offidals.
Mazzanti Ground Lease (rev. 1)
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Page 4 of 16
5.1.2 Waste Disposal. Tenant shall dispose of all sewage and waste in
accordance with all applicable regulations and laws of those governmental agencies
have jurisdiction or authority there over. Tenant shall insure that all solid waste
materials are placed in appropriate covered containers designed for use with the type
of waste involved, which shall remain covered, and that said containers are
maintained within enclosures located on said Premises and designated to keep said
trash containers out of the flow of traffic and obscured from view.
5.1.3 Hazardous Materials.
(a) With the exception of (1) herbicides and pesticides
customarily used in Tenant's existing horticultural business and diesel fuel stored in
Tenant's above ground diesel storage tank, Tenant shall not cause or permit any
Hazardous Materials (as hereinafter defined) to be brought upon, kept or used in or
about the Premises by Tenant, its agents, employees, contractors or invitees.
(b) If Tenant breaches the obligations stated in subparagraph (a)
of this Section 5.1.3 or if the presence of Hazardous Materials on the Premises after
the Commencement Date results in contamination of the Premises or if Hazardous
Materials are otherwise discharged or released from the Premises after the
Commencement Date, then Tenant shall indemnify, defend (with counsel approved
by Landlord) and hold Landlord harmless from and against any and all claims,
judgments, damages, penalties, fines, costs, liabilities and losses (including, without
limitation, diminution in value of the Premises, and sums paid in settlement of
claims, attorneys' fees, consultant fees and expert fees) which arise during or after the
term of this Lease as a result of such breach, contamination, discharge, or release.
This indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state or local
governmental agency or political subdivision because of Hazardous Materials present
in, on or under the Premises or adjacent property caused by or a result of Tenant's
activities. This indemnification pertains to hazardous materials placed, spilled,
discharged, disposed or in any manner transferred to the Premises as a result of
occupation of the property following commencement of this Ground Lease. Without
limiting the foregoing, if the presence of any Hazardous Materials on the Premises
after the Commencement Date results in any contamination of the Premises or
adjacent property, or otherwise results in the release or discharge on, under or from
the Premises of Hazardous Materials, Tenant shall promptly take all actions at its sole
expense as are necessary to return the Premises or adjacent property to the condition
Mazzanti Ground Lease (rev. 1)
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Page 5 of 16
existing prior to Tenant's occupation of the Premises; provided that Landlord's
approval of such actions shall first be obtained, which approval shall not be
unreasonably withheld so long as such actions would not potentially have any
material adverse long-term or short-term effect on the Premises or adiacent property,
will not unreasonably interfere with the use and enioyment of other portions of the
Premises or adjacent property, and will be performed in accordunce with all
Hazardous Materials Laws. Upon the termination of this Lease, Tenant shall
surrender the Premises to Landlord in the condition existing prior to Tenant's
occupancy of the Premises. This indemnification shall survive the termination or
expiration of this Lease.
(d) For the purpose of this Section 5.1.$, the term "Hazardous
Materials" includes, without limitation, any flammable explosives, radioactive
materials, hazardous, materials, hazardous wastes, hazardous or toxic substances, or
related materials defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. §9601 et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. §1801 et seq.), the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §6901 et
seq.), Section 25117 of the California Health & Safety Code, Section 25316 of the
California Health &. Safety Code, and in the regulations adopted and publications
promulga.ted pursuant to them, or any other federal, state, or local environmental
laws, ordinances, rules, or regulations concerning the environment, industrial hygiene
or public health or safety now in effect or enacted after this date.
5.1.4 Landlord's Right to Inspections. Landlord shall have the right to
enter upon the Premises upon twenty-four (24) hours notice to Tenant throughout
the Lease term for the purpose of inspecting the same and posting any notices
required or permitted under California law.
6. OWNERSHIP OF IMPROVEMENTS
6:1 Tenant's Right to Improvements During Term. Tenant shall not remove
any improvements from the Premises nor waste, destroy or modify any improvements
on the Premises, except as permitted by this Lease.
6.2 Landlord's Right to Improvements Upon Termination of Lease. All
improvements on the Premises at the expiration of the term or sooner termination of
this Lease shall, without compensation to Tenant, then become Landlord's property
free and dear of all claims to or against them by Tenant or any third person, and
Mazzanti Ground Lease (rev. i)
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Page 6 of 16
Tenant shall defend and indemnify Landlord against all liability and loss arising from
such claims or from Landlord's exerdse of the fights conferred by this Section.
6.3 Tenant's Duty to Remove Fixtures. At the expiration or sooner
termination of the term, Tenant shall have no duty nor obligation to remove fixtures
or Improvements.
8. FINANCING, ASSIGNMENT, SUBLETTING
8.1 Encumbrance of Leasehold. Tenant shall have no fight to encumber the
leasehold hereunder.
7.2 Assignment. Tenant shall not assign or transfer, whether voluntarily,
involuntarily, or by operation of law, its interest in this Lease or any part thereof
except as provided herein.
7.3 Subleases. Tenant shall not sublet portions of the Premises, except to
grant a license to the Landlord to utilize unused por*.ions for park use purposes as set
forth in Section 4.3.2.
8. INSURAN.CE; INDEMNIFICATION
8.1 Duty to Maintain Insurance. Tenant shall obtain insurance acceptable to
Landlord in company or companies acceptable to Landlord as set forth in Exhibit B.
The required documentation of insurance shall be furnished to Landlord upon the
prior to June 15, 1996.
8.2 Policy Obligations. Tenant's indemnity and other obligations shall not be
limited by the foregoing insurance requirements.
8.3 Certificates of Insurance. Tenant shall furnish Landlord with copies of all
such policies promptly on receipt of them with certificates and endorsements
evidendng the insuranCe. Before commencement of the Lease, Tenant shall furnish
.Landlord with binders representing all insurance required by this Lease.
814 Failure to Maintain Insurance. Proof of Compliance. Tenant shall deliver
to Landlord, in the manner required for notices, copies or certificates of all insurance
policies required by this Lease, together with evidence satisfactory to Landlord of
Mazzanti Ground Lease (rev. I)
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Page 7 of 16
payment required for procurement and maintenance of the policy, within the
following time limits:
8.4.1 F. xecution of Lease. For insurance required at the commencement
of this Lease, upon execution of the Lease.
8.4.2 Renewals and Replacements. For any renewal or replacement of a
policy already in existence, at least thirty (30) days before expiration or other
termination of the existing policy certificates and endorsements received.
8.4.3 Failure to Procure and Maintain Insurance. If Tenant fails or
refuses to procure or maintain insurance as required by this Lease, or fails or refuses
to furnish Landlord with required proof that the insurance has been procured and is
in force and paid for, Tenant shall be deemed in default of this Lease as provided
herein. Landlord may immediately bar Tenant from farther occupancy and use of the
Premises if Tenant fails to procure or maintain the insurance required by this Lease.
8.5. Indemnity. Tenant will indemnify, hold harmless and defend Landlord,
its officers, employees, agents and volunteers, from and against any and all actions,
claims, damages, disabilities or expenses including, without limitation, attorneys' fees,
wimess costs and court costs that may be asserted by any person or entity, including
Tenant, arising out of or in connection with any of the following circumstances:
8.5.1 Use of Premises. Use of the Premises in any manner by Tenant,
its agents, employees, invitees, licensees and contractors, including any use of the
Premises not allowed under this Lease.
8.5.2 Breach by Tenant. Any breach by Tenant of the terms, covenants
or conditions herein contained.
8.5.3 Construction. Maintenance and Operation. The construction,
mainten_ance or operation of the Premises or improvements.
8.5.4 Other Activities. Any other activities of Tenant, its agents,
employees, invitees, licensees and contractors but excluding liability due to
Landlord's use of the facility, and the sole active negligence or sole willful misconduct
of Landlord, for which Landlord shall indemnify Tenant. In the event of concurrent
negligence of Tenant and Landlord, each shall provide indemnification for their
respective proportional share of fault. This indemnification obligation is not limited
Mazzanti Ground Lease (rev. I)
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Page 8 of 16
in any way by any limitation on the mount or type of damages or compensation
payable by or for Tenant or its agents under workers' compensation acts, disability
benefit acts or other employee benefit acts.
9. DEFAULT, REMEDIES
9.1 Tenant's Default. Each of the events described in Sections 9.1.1 through
9.1.5 shall be a default by Tenant and a breach of this Lease.
9.1.1 Failure to Perform Covenants. Abandonment or surrender of the
Premises or of the leasehold estate or failure to perform as required or conditioned by
any other covenant or condition of this Lease, including, but not limited to failure to
pay rent when due.
9.1.2 Attachment or Other Levy. The subjection of any right or
interest of Tenant to attachment, execution or other levy, or to seizure under legal
process, if not released within fifteen (15) days, unless Tenant is contesting such
attachment, execution or other levy in a manner acceptable to Landlord in its
reasonable discretion.
9.1.3 Appointment of Receiver. The appointment of a receiver to take
possession of the Premises or of Tenant's interest in the leasehold estate or of
Tenant's operations on the Premises for any reason, including but not limited to,
assignment for benefit of creditors or voluntary or involuntary bankruptcy
proceedings.
9.1.4 Insolvency and Bankruptcy. An assignment by Tenant for the
benefit of creditors or the filing of a voluntary or involuntary petition by or against
Tenant under any law for the purpose of adjudicating Tenant a bankrupt; or for
extending time for payment, adjustment or satisfaction of Tenant's liabilities; or for
reorganization, dissolution or arrangement on account of or to prevent bankruptcy or
insolvency; unless the assignment or proceeding, and all consequent orders,
adjudications, custodies and supen4sions are dismissed; vacated or otherwise
permanently stayed or terminated within thirty (30) days after the assignment, filing,
or other initial event.
9.2 Notice and Right to Cure. As a precondition to pursuing any remedy for
an alleged default by Tenant, Landlord shall, before pursuing any remedy, give notice
of default to Tenant stating that the notice was for the purpose of notice under this
Mazzanti Ground Lease (rev. 1)
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Page 9 of 16
provision. Each notice of default shall specify in detail the alleged event of default
and the intended remedy.
9.3 Tenant's R~t to Cure Default: Notice of Default. If the default is for
non-payment of taxes or other sums to be paid by Tenant hereunder, Tenant shall
have thirty (30) days after written notice is given Tenant to cure the default. For the
cure of any other default, Tenant shall have thirty (30) days after written notice of
default is given as provided herein to commence curing the default and ninety (90)
days to complete curing of such default, and such time may be extended by option of
Landlord.
9.4 Landlord's Remedies. If any default by Tenant shall continue uncured
following notice of default as required by this Lease, for the period applicable to the
default under the applicable provisions of this Lease, Landlord shall have the remedies
set fo?da in Sections 9.4.1 through 9.4.5 in addition to all other fights and remedies
provided by law or equity to which Landlord may resort cumulatively or in the
alternative.
9.4.1 Termination. Landlord may, at Landlord's election, terminate
this Lease by giving Tenant notice of termination. On the giving of the notice, all
Tenant's rights in the Premises and in all improvements shall tenninate. Promptly
after notice of termination, Tenant shall surrender and vacate the Premises and all
improvements in broom-dean condition and Landlord may re-enter and take
possession of the Premises and all remaining improvements and 'eject all parties in
possession or eject some and not others or eject none. Termination under this
Section 9.4.1 shall not relieve Tenant from the payment of any sum then due to
Landlord or from any claim for damages previously accrued or then accruing against
Tenant.
9.4.2 Re-entry Without Termination. Landlord may, at Landlord's
election, re-enter the Premises and, without terminating this Lease, at any time and
from time to time relet the Premises and improvements or any part or parts of them
for the account and in 'the name of Tenant or othenvise. Landlord may, at Landlord's
.election eject all persons or eject some and not others or eject none.
9.4.3 Tenant's Personal Property. Landlord may, at Landlord's election,
use Tenant's personal property and trade fixtures or any of such property and fixtures
without compensation and without liability for use and damage, or store them for the
account of and at the cost of Tenant. The election of one remedy for any one item
Mazzanti Ground Lease (rev. 1)
4/26/96
Page 10 of 16
shall not foreclose an election of any other remedy for another item or for the same
item at a later time.
9.5 Notice of Iandlord's Default. Landlord shall not be considered to be in
default under this Lease unless: (a) Tenant has given notice specifying the default;
and (b) Landlord has failed for sixty (60) days to cure the default, if it is curable and
institute and diligently pursue reasonable corrective or ameliorative acts for
non-curable defaults.
9.6 Provisions Applicable to Both Parties.
9.6.1 Unavoidable Default or Delay. Any prevention, delay,
non-performance or stoppage due to any of the following causes shall excuse
non-perfo_,znance for a period equal to any such prevention, delay, non-performance
or stoppage, except the obligations imposed by this Lease for the payment of rent,
taxes, insurance or obligations to pay money that is treated as rent. The causes
referred to above are strikes, lock-outs, labor disputes, acts of public enemies of this
state or of the United States, riots, insurrections, civil commotion, inability to obtain
labor or materials or reasonable substitutes therefore, governmental restrictions or
regulations or controls (expect those reasonably foreseeable in connection with the
uses contemplated by this Lease).
9.6.2 Waiver. Voluntary Acts. No waiver of any default shall constitute
a waiver of any other breach or default, whether of the same or any other covenant or
condition. No waiver, benefit, privilege or service voluntarily given or performed by
either party shall give the other any contractual right by custom, estoppel or
othenvise. The subsequent acceptance of rent pursuant to this Lease shall not
constitute a waiver of a preceding default by Tenant other than default in the
payment of the particular rental payment so accepted, regardless of Landlord's
knowledge of the preceding breach at the time of accepting the rent, nor shall the
accepum_ce of rent or any other payment after termination constitute a reinstatement,
extension or renewal of the Lease or revocation of any notice or other act by
Landlord.
10. EXPIRATION AND TERMINATION
10.1 'Tenant's Duty to Surrender. At the expiration or earlier termination of
the term, Tenant shall surrender to Landlord the possession of the Premises, unless
Mazzanti Ground Lease (rev. 1)
4/26/96
Pagellofl6
the parties have agreed in writing to an additional lease or renewal.. Surrender or
removal of improvements shall be as directed in provisions of this Lease on ownership
of improvements at termination. Tenant shall leave the surrendered Premises and
any other property in good and broom-dean condition except as provided to the
contrary in provisions of this Lease on maintenance and repair of improvements. All
property that Tenant is required to surrender shall become Landlord's property at
termination of the Lease. All property that Tenant is not required to surrender but
that Tenant does abandon shall, at Landlord's election, become Landlord's property at
termination. If Tenant fails to surrender the Premises at the expiration or sooner
termination of this Lease, Tenant shall defend and indemnify Landlord from all
liability and expense resulting from the delay or failure to surrender, including,
without limitation, claims made by any succeeding Tenant found on or resulting from
Tenant's failure to surrender.
10.2 Holding Over. This Lease shall terminate without further notice at the
expiration of the term. Any holding-over by Tenant after expiration shall be a month
to month tenancy and shall not constitute a renewal or extension or give Tenant any
rights in or to the Premises except as expressly provided in this Lease.
Notwithstanding the foregoing, no termination of this Lease shall release Tenant from
any liability or obligation hereunder, whether of indemnity or otherwise, resulting
from any acts, omissions or events happening prior to the date of termination, or date
of surrender if it be later.
1 1. GENER~M., CONDITIONS, MISCELLANEOUS PROVISIONS
1 1.1 Notices.
1 1.1.1 Definition of Notice: Application of Provision. As used in this
Lease, the term "notice" includes, without limitation, the communication of notice,
request, demand, approval, statement, report, acceptance, consent, waiver and
appointment. Unless the provisions of this Lease on rent direct othexwise, the rent
shall be sent in the manner provided for giving notice.
1 1.1.2 Writing. All notices shall be in writing, provided that no writing
other than the check or instrument representing the rent payment itself need
accompany the payment of rent.
Mazzanti Grotmd Lease (rev. 1)
4/26/96
Page 12 of 16
1 1.1.S Delivery. Notice is considered given either: (a) when delivered
in person to the recipient named as below;, or (b) live ($) days after deposit in the
United States mail in a sealed envelope or container, by registered or certified mall,
return receipt requested, postage and postal charges prepaid, addressed by name and
address to the party or person intended as follows:
If to Landlord:
If to Tenant:
City Manager
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Mazzanti Carnations, Inc.
820 Tennis Drive
South San Francisco, CA. 94080
11.1.4 Change of Recipient or Address. Either party may, by notice
given at any time or from time to time require subsequent notices to be given to
another individual person, whether a party or an officer or representative, or to a
different address or both. Notices given before actual receipt of notice of change shall
not be invalidated by the change.
11.1.5 Recipient Named. Each recipient named must be an
individual person. If more than one recipient is named, delivery of notice to any one
such recipient is sufficient. If none of the recipients named in the latest designation
of recipient is available for delivery in person, and if the notice addressed by mail to
each recipient named in the latest designation of recipient is returned to the sender
undelivered, notice shall be sufficient if sent by mall as above to the party as named
in this Lease, unless the name or identity of the party has changed as permitted in
this Lease and proper notice of the change has been given, in which event the notice
shall be sufficient if sent by mail as above to the party named in the latest notice
designating the party, and the notice is considered given when the first attempt to
give notice was properly made.
11.2 Amendment. This Lease may be amended upon written agreement of
the parties.
11.3 Estoppel Certificates. At any time, and from time to time, within
thirty (g0) days after notice of request by either party, the other party shall execute,
Mazzanti Ground Lease (rev. I)
4/26/96
Page 13 of 16
acknowledge, and deliver to the requesting party, or to such other recipient as the
notice shall direct, a statement certif~ng that this Lease is unmodified and in full
force and effect, or, if there have been modifications, that it is in full force and effect
as modified in the manner specified in the statement.
1 1.4 Ioint and Several Obligations. If Tenant consists of more than one
person, the obligation of all such persons is ioint and several.
11.5 Captions. Table of Contents. The table of contents of the Lease and
the captions of the various art. ides and sections of this Lease are for convenience and
ease of reference only and do not define, limit, augment or describe the scope,
content, or intent of this Lease or of any part or parts of this Lease.
11.6 Gender. The neuter gender includes the feminine and masculine,
and each includes corporation, partnership or other legal entity when the contex*~ so
requires.
11.7 Singular and Plural. The singular number includes the plural
wherever the context so requires.
11.8 Exhibits. Addenda. All exhibits and addenda to which reference is
made in this Lease are incorporated in the Lease by the respective references to them,
whether or not they are actually attached, provided that they have been signed or
initialed by the parties. Reference to the "Lease" includes matters incorporated by
reference.
11.9 Merger. This Lease is intended both as the final expression of the
agreement between the parties hereto with respect to the included terms, and as a
complete and exclusive statement of the terms of the agreement, pursuant to
California Code of Civil Procedure Section 1856. No modification of this Lease shall
be effective unless and until such modification is evidenced by a writing signed by
both p .arties. No promise, representation, warranty or covenant not included in this
Lease has been or is relied on by either party. Each party has relied on his own
examination of this Lease, the counsel of his own advisors, and the warranties,
representations, and covenants in the Lease itself. This Lease shall be construed
according to the fair meaning of its language. The failure or refusal of either party to
inspect the Premises, to read the Lease or other documents, or to obtain legal or other
advice relevant to this transaction, constitutes a waiver of any objection, contention
or claim that might have been based on such reading, inspection or advice.
Mazzanti Ground Lease (rev. I)
4/26/96
Page 14 of 16
11.10 Applicable I aw. This Lease shall be construed and interpreted in
accordance with the laws of the State of California except as Otherwise expressly
provided herein, or as otherwise required by applicable law from time to time during
the tenn.
1 1.1 1 Covenants and Conditions. All provisions of this Lease whether
covenants or conditions, on the part of Tenant shall be deemed to be both covenants
and conditions and such covenants shall survive termination.
1 1.12 No Discrimination. Tenant shall comply with all applicable federal,
state and local laws, rules and regulations relating to non-discrimination in
employment and services became of race, color, ancestry, national origin, religion,
se~x, marital status, age, medical condition and handicap.
1 1.13 Time of Essence. Time is and shall be of the essence of this Lease
and of each and every provision contained in this Lease.
11.14 Construction of Lease: Severability. To the extent allowed by law,
the terms, covenants, conditions, provisions and agreements in this Lease shall be
construed and given effect in a manner that avoids any violation of statute, regulation
or law. Landlord and Tenant covenant and agree that in the event any term,
covenant, condition, provision or agreement in this Lease is held to be invalid or void
by court of competent jurisdiction, the invalidity of any such term, covenant
condition, provision or agreement shall in no way affect any other term covenant,
condition provision or agreement in this Lease.
1 1.15 Relationship. The parties intend by this Lease to establish the
relationship of Landlord and Tenant only, and do not intend to create a partnership,
joint venture, ioint enterprise, or any business relationship other than that of
Landlord and Tenant.
1 1.16 No Benefit to Third Parties. Nothing herein shall be construed to
be for Me benefit of third parties.
Mazzanti Ground Lease (rev. I)
4/26/96
Page 15 of 16
'1 I. 17 F, xecution in Counterparts. This Lease, or the abstract of this
Lease, or both, may be executed in two (2) or more counterparts, each of which shall
be an original, but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties to this Lease have duly executed
this Lease on the date set forth opposite their signatures.
LANDLORD:
Dated: _6-- / 43 -
CITY OF SOUTH SAN FRANCISCO
a municipal corporation of the
State of California
City Manager I
Approved as to form:
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
No. 5907
State of
County of
On /tt"2~ t/I~ATE/~rq b before me,
personally appeared ~--~z~r-~t 4.. ,L.
NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC"
NAME(S) OF SIGNER(O)
DONALD M. GALBRAITH
,~, ~~ COMM: #1076136
~ ~(~7] NOTARY PUBLIC- CALIFORNIA
._~ ~ SAN MATEO COUNTY
,._My Cornmi%i°n Expires October 29, 1999
to be the person(s) whose name(s) is/are
subscribed to the within instrument and ac-
knowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(les), 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.
WITNESS my hand and official seal.
[~(personally known to me - OR - [] proved to me on the basis of satisfactory evidence
1 I. 17 l:.xecution in Counterparts. This Lease, or the abstract of this
Lease, or both, may be executed in two (2) or more counterparts, each of which shall
be an original, but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties to this Lease have duly executed
this Lease on the date set forth opposite their signatures.
LANDLORD:
CITY OF SOUTH SAN FRANCISCO
a municipal corporation of the
State of California
City Manager
Approved as to form:
By: t ~J~,.~~
City Attorney
Dated:
J:\WPD~ N RSW~40$~AG RE~MAZLEAS E. DFT
Mazzanti Ground Lease (rev. 1)
4/26/96
Page 16 of 16
FXHIRIT "A" -
:')
Page ]
·oraL ~ ~
EXHIBIT "A" - Page
?-~
~EET INDEX
EXHIBIT B
INSURANCE REOLaREMENTS
Tenant shall procure and maintain for the duration of the Ground Lease "occurrence
coverage" insurance against, claims for injuries to persons or damages to property
which may arise from or in connection with the operation of a commercial parking
facility hereunder by the Tenant, its agents, representatives, employees or
subcontractors.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office form number GL 0002 (Ed. 1/73)
covering comprehensive General Liability and Insurance Services
Office form number GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance Services Office
Commerdal General Liability coverage ("occurrence" form
CG 0001.)
Insurance Services Office form number CA 0001 (Ed. 1/78)
covering Automobile Liability, code 1 "any auto" and
endorsement CA 0025.
Workers' Compensation Insurance as required by the Labor Code
of the State of California and Employers Liability Insurance.
(b)
Minimum Limits of Insurance. Tenant shall maintain limits no less
General Liability: $1,000,000 combined single limit per
occurrence for bodily injury, personal injury and property
damage. If commercial General Liability Insurance or other form
with a general, aggregate limit is used, either the general aggregate ·
limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
Automobile Hability: $1,000,000 combined single limit per
accident for bodily injury and property damage.
Exhibit D
J:\WPDLMNRSW~4OS~G REE'xEXHI B rFD.LS E
Page 1 of 4
Workers' Compensation and Employers Liability: Workers'
Compensation limits as required by the Labor Code of the State
of California and Employers Liability limits of $ 1,000,000 per
accident.
(c)
(ct)
Deductibles and Self-Insured Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Agency. At
the option of the Agency, either the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects the Agency, its
officers, officials and employees; or the Tenant shall procure a bond
guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
Other Insurance Provisions. The policies are to contain, or be endorsed
to contain, the following provisions:
1. General Liability and Automobile Liability Coverages.
ao
The Agency, its officers, officials, employees and volunteers
are to be covered as insureds as respects: liability arising
out of activities performed by or on behalf of the Tenant;
products and completed operations of the Tenant, premises
owned, occupied or used by the Tenant, or automobiles
owned, leased, hired or borrowed by the Tenant. The
coverage shall contain no special limitations on the scope
of the protection afforded to the Agency, its officers,
officials, employees or volunteers.
The Tenant's insurance coverage shall be primary insurance
as respects the Agency, its officers, officials, employees and
volunteers. Any insurance or self-insurance maintained by
the Agency, .its officers, officials, employees or volunteers
shall be excess of the Tenant's insurance and shall not
contribute with it.
Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to the Agency,
its officers, officials, employees or volunteers.
Exhibit D
J:V~rPDLMNRSWk405V~3 ~I BITD.L~ E
Page 2 of 4
The Tenant's insurance shall apply separately to each
insured against whom claim is made or suit is brought,
except with respect to the limits of the insure_es liability.
2. Workers' Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against
the Agency, its officers, officials, employees and volunteers for
losses arising from work performed by the Tenant for the Agency.
3. All Coverages.
Each insurance policy required by this clause shall be endorsed to
state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits except after thirty
(30) days' prior written notice by certified mail, return receipt
requested, has been given to the Agency.
(e)
Acceptability of Insurers. Insurance is to be placed with insurers with a
Bests' rating of no less than A:VII.
(0
Verification of Coverage. Tenant shall furnish Agency with certificates
of insurance and with original endorsements effecting coverage required
by this clause. The certificates and endorsements for each insurance
policy are to be signed by a person authorized by that insurer to bind
coverage on its behalf. The certificates and endorsements are to be
received and approved by the Agency before operation of the
commercial parking facilities commences. The Agency reserves the right
to require complete, certified copies of all required insurance policies, at
any time.
(g)
Subcontractors. Tenant shall include all subcontractors as insurers
under its Policies or shall furnish separate certificates and endorsements
for each subcontractor. All coverages for subcontractors shall be subject
to all of the requirements stated herein.
Exhibit D
J:\WP~MNRSW~405h~.GREL=,~dq I BITD.LS E
Page 3 of 4
(~)
The Risk Manager of Agency may approve a variation in those insurance
requirements upon a determination that the coverages, scope, limits and
forms of such insurance are either not commerdally available or that the
Agency's interests are otherwise fully protected.
Exhibit D
J:\WPDhMNRSW~405XAG RE~EXHI B 1TD.LS E
Page 4 of 4