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HomeMy WebLinkAboutResolution No. 6515 (Lease Beach Park Road)I<ECORDED AT REOUEST OF ~.,'. ( . RESOLUTION NO. 6515 OFr-IGlliL i;ECORCS ~1ARIN COUNTY CALlFORNlI~ W. Rf,;UCE SHtIFER No Fee GC8103 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL PROVIDING FOR THE LEASE OF PUBLIC REAL PROPERTY AT BEACH PARK ROAD TO THE SAN RAFAEL YACHT CLUB The City of San Rafael, hereinafter referred to as City, does hereby declare, find and determine that: 1. WHEREAS, it has been determined that a portion of certain public real property at Beach Park Road is not required for public purposes at this time; and 2. WHEREAS, the public interest could best be served by entering into a Lease Agreement, a copy of which is on file with the City Clerk and bv reference is incorporated herein; and 3. WHEREAS, Article III, Section 12 of the City Charter provides that leases of five (5) years or less and/or leases with a total rent of Six Thousand Dollars ($6,000) or less need not be approved by ordinance; and 4. WHEREAS, staff finds this project to be categorically exempt under CEO A guidelines, pursuant to Section 15101, Division 6, Title 14 of the California Administrative Code. NOW THEREFORE, the City takes the following action: RESOLVED, the City Council of the City of San Rafael determines that this project is categorically exempt under CEQA guidelines, pursuant to Section 15101, Division 6, Title 14 of the California Administrative Code, Accessorv Structures. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, . , hereby certify that the foregoing resolution was duly and reqularlv introduced and adopted at a regular meeting of the City Council of 330 I 5 8·5 7 RESOLUTION NO. 6515 said Citv held on the fourth day of April 1983, by the following vote, to sit: AYES: COUNCILMEMBERS: Breiner, Frugoli, Jensen, Miskimen & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Clerk /- " PROPERTY LEASE ARTICLE 1. PARTIES AND PREMISES Parties Section 1.01. This Lease is entered into between the CITY OF SAN RAFAEL, a municipal corporation, hereafter called "Lessorll, and THE SAN RAFAEL YACHT CLUB, A MUTUAL BENEFIT, NON-PROFIT ASSOCIATION 1 hereafter called "Lessee"G Leased Property Section 1G02. Lessor leases to Lessee, and Lessee hires from Lessor the real property, with appurtenances, situated in the City of San Rafael, County of Marin. State of California, and more particu- larly desc.rtbed in the schedule attached hereto as Ex-hibi t "Air rand shown on the plat attached hereto as Exhibj.t fln ll , both of which are made p a rt hereof. Such property shall he referred to FtS the flJ...,eased Property" and shall include the real property above described and any improvements now located thereon or hereafter existing durtng the term hereoL Lessee shall accept possession of the demised premises in their existing condition and make all improvements, repairs, alterations and all other work that may be required, including but not limited to the installation of any streets, sidewalks, parking areas, building, utility services and sewers, subject to the provisions of Sectlon 6.04 herein. In the event lessee shall be required to make improve- ments, lessee may request lessor enter into renegotiations regarding the term or rental sum of the lease.1l ARTICLE 2. TERM Fixed Commencement and Termination Dates Section 2.01. The Leased Property is leased for the term of thirty (30) years commencing on April 1, 1983, and ending on March 141 2013; subject, however, to earlier termination as hereinafter provided. Lessor shall deliver possession of the Leased Property on or before April 1, 1983. -1 - -.... ~ " Holding Over Section 2.02. This Lease shall terminate and become null and void without further notice upon the termination of the term speci- fied, and any holding over by Lessee after the expiration of said term shall not constitute a renewal hereof or give Lessee any rights hereunder in or to the Leased Property. ARTICLE -3. RENT Fixed Sum -Annual Installments Section 3.01. Lessee agrees to pay to Lessor as rental sum for the use and occupancy of the Leased Property under this Lease subject to rent adjustment as hereinafter set forth, the following sums: Two Hundred and Fifty-Five Thousand Dollars ($255 s 000.00)s payable in annual installments of Eight Thousand Five Hundred Dollars ($8,500) commencing on April 1, 1983, and each successive March 15th thereafter until the entire rental sum is paid in fulL. In the event that the commencement and ending dates of this Lease Term are modifies as heretofore provided, the dates upon which rent is due and payable as set forth above shall be correspondingly modified. In the event the rent is adjusted in accordance with Section 3.02 below the total rent payable shall be correspondingly modified. Rent Adjustment Section 3.02. Lessor shall have the right to increase the rental to be paid by Lesee, commencing on April 1, 1988 and at intervals of every five (5) years thereafter. The rent shall be increased or decreased in the same proportion that the index figure for the Consumer Price Index for all urban consumers San Francisco -Oakland, U.S. Department of Labor, Washington, D.C. has increased or decreased, on 1 April 1988 and at intervals of every five years thereafter. In the event the Consumer Price Index exceeds twenty-five (25%) percent in the latest five-year period, lessor shall limit the increase to a net maximum of twenty-five (25%) percent for that five-Year period. In the event the Consumer Price Index decreases during any -2 - .. five-year period, the rental shall not be decreased below the amount specified above under the caption "Rental". Lessee at any time following April 1, 1988, may request Lessor enter into renegotiations regarding the rate and method of calculation of the rent increase. If the said Bureau of Labor Statistics should, at any time during the term hereof, revise or change the methods or basic data used in calculating the said Index in such a way as to affect the direct comparability of such revised or changed Index with the Index of March 1983, then the Bureau shall be requested to furnish a conversion factor designed to adjust to the new basis, the aforesaid base index of March 1983. If said Consumer Price Index: as now constituted, compiled and published shall cease to be compiled and published during the term hereof, then the Bureau of Labor Statistics shall be requested to furnish a statement converting the basic index figure of March 1983 to a figure that would be comparable in another index published by the Bureau of Labor Statistics and such other index shall be used in computing the rental incease provided above. No Offsets Against Rent Section 3.03. Lessee agrees that no deductions or offsets shall be made against the rentals accruing and becoming due in any year during the Lease Term. ARTICLE 4. TAXES AND ASSESSMENTS Lessee to Pay Taxes Section 4.01. In addition to the rentals, Lessee shall pay and discharge all taxes, general and special assessments and other charges of every description which during the term of this Lease may be levied upon or assessed against the Leased Property and all interests therein and all improvements and other property thereon, whether belonging to Lessor, or to which either of them may become liable. In the event lessee shall be required and obligated to pay any taxes or special assessments levied by the City of San Rafael - 3 - ,f, ..... ' . ~ .. ~. ~-.. : . , ., upon such imposition lessee may request lessor enter into renego- tiations regarding the term or price of the lease. Possessory Interest Section 4.02. In addition to any other taxes and assessments, Lessee recognizes and understands that this lease may create a pos- sessory interest subject to property taxation and that the Lessee may be subject to and obligated for the payment of property taxes levied on such interest. Payment and Furnishing of Receipts or Tax Service Section 4.03. Subject to Lessee's right to pay taxes in in- stallments, as provided below, all payments to be made by Lessee pursuant to this article shall be made not later than ten (JO) days before any fine, penaltys interest, or costs may be added thereto for nonpayment. Lessee shall furnish the lessor, within ten (10) days after the date of payment, as provided in this articles with officia1 4 receipts or photocopies thereof, evidencing that the tax has been paid. In the alternative, Lessee shall order and pay for a tax agency service which will report payment and delinquencies of such taxes to Lessor for the term of this Lease. Installment Payment Section 4.04. If by any law any such tax is payable or may at the option of the taxpayer be paid in installments, Lessee may pay the tax, together with any accrued interest on the unpaid balance of the tax, in installments as they become due. Proration for Time Section 4.05. If the Lessee is not in default under this Lease, the last year of this Lease shall be prorated between the Lessor and Lessee on the basis of a tax fiscal year commencing July 1 and ending June 30. - 4 - ) It Proration for Other Property of Lessor Section 4.06. If the Leased Property is assessed for taxation purposes with other lands of the Lessor, until the Leased Property is separately assessed, all real estate taxes and assessments imposed upon the entire parcel of which the Leased Property is a part shall be prorated and the Leesee shall pay that portion that the area of the Leased Property hereunder bears to the total area .of all property within the assessment block. Contest Section 4.07. Lessee shall have the right to contest the amount or validity of any such imposition by appropriate legal proceedings, but this right shall not be deemed or construed in any way as relieving or modifying or extending Lessee's covenant to pay any such imposition at the time and in the manner as in this Article provided. Lessor shall, upon request, join in any such proceedings if Lessee determines that it shall be necessary or convenient for Lessor to do so in order for Lessee to prosecute properly such proceedings, but Lessor shall not be subject to any liability for the payment of any costs or expenses in connection with any such proceeding brought by Lessee. Lessee hereby covenants to indemnify and save Lessor harmless from any such costs and expenses. Separate Assessment of Lessee's Personal Property Section 4.08. During the Lease Term, Lessee shall cause all taxes, assessments, and other charges levied upon or imposed upon any personal property situated in, on, or about the Leased Property to be levied or assessed separately from the Leased ~roperty and not as a lien thereon. Lessee shall pay before delinquency all personal property taxes assessed against personal property of Lessee in or about the Leased Property at any time during the Lease Term. Indemnification of Lessor Section 4.09. Lessee shall protect and hold harmless Lessor and the Leased Property and all improvements in, on. or about the same from all liability for any and all such taxes, assessments, and charges, together with any interest, penalties, or other sums thereby -5 - ). imposed, and from any sale or other proceeding to enforce payment thereof. ARTICLE 5. USE Description of Use Section 5.01. During the Lease Term, Lessee shall use and occupy the Leased Property as permitted under the C-2 District providing, however, that any and -all improvements and developments of the Leased Property by the Lessee shall comply wi~h any and all applicable zoning ordinances, statutes, laws and regula- tions of the appropriate public agencies then in effect. Lessee shall provide for incidental private off-street automobile parking, appropriate landscaping and plantings and other facilities incidental to such use and purposes as provided herein. Permanent improvements to the entire 3.7 acre site (AP 14-152-27) may be made in conjunction with development of a 40 berth mar i na. improvements to the City's Beach Park. and Yacht Club. Such a proposal is currently in a .~ preliminary stage and this lease only pertains to the western portion of the site occupied by the San Rafael Yacht Club. Should the proposal for marina and park improvements not occur within one year or by April 1, 1984, the San Rafael Yacht Club shall be responsible for general improvements to the western half of the site (property description identified in Exhibit A). At the end of a one year period, a design review application shall be filed with submittal of a site plan indicating general site improvements. These improvements shall include new pavement and striping 0 fthe parking area (for up to 35 spaces), landscaping, islands and planting around the western edge of the turning basin. In the event Lessee cannot provide the number of parking spaces within the subject leasehold property as required by Lessor's ordinances and regulations, Lessor shall permit Lessee to lease additional space on a portion of Assesor's Parcel No. 14-152-27, subject to imposition and completion of reasonable conditions, including ~ut not limited to roadway and related improvements and execution of hold harmless and indemnification agreements. Lessee - 6 - , ..... - ) · . must request. if at all. the additional leased space within five (5) years following execution of this lease. Public Mooring Section 5.02. Lessee shall maintain a float contiguous to said premises, adequate and suitable for the mooring of pleasure boats of a non-burdensome size and nature, and with access therefrom to the public streets, and to permit said float to be used, without charge, and by the public generally, for the transient (twenty four hours or less) mooring of visiting pleasure boats, and maintain and adequate < sign inviting the public to so use said float without charge. The parties hereto agree that Lessor is obligated to require Lessee to maintain a float for public use. however, if the relevant state agencies should determine during the term of this Lease that such public mooring is not required to be provided by Lessor or Lessee then Lessee may request Lessor enter into renegotiations regarding the terms of this Lease. Limits on Use Section 5.03. During the Lease Term, the Leased Property and all improvements constructed and maintained thereon shall be used by ~. the Lessee for the use specified as provided herein. Lessee shall not use or permit any other person to use the premises, or any part thereof, for any purposes tending to injure the reputation thereof or for any improper or offensive use or to constitute a nuisance; and Lessee shall at all times during said term conform to, and cause all persons using or occupying any part of said premises to comply with, all public laws, ordinances, and regulations from time to time applicable thereto and to all operations thereon. Indemnity for Violation of Law Section 5.04. (a) Lessee covenants and agrees to indemnify and save Lessor harmless from any penalties, damages, or charges imposed for any violation of any and all laws, ordinances, and regulations applicable to the use and occupancy of the Leased Property, whether occasioned by neglect. omission, or willful act of Lessee or any -7- .,,- 0(.. \' •• ~.' ; .. I.:'~ .... J person ,.upon the Leased Property by license or invitation of Lessee or holding or occupying the same or any part thereof under or by right of Lessee. Contest of Validity of Law (b) Lessee shall have the right to contest by appropriate legal proceedings, without cost or expense to Lessor, the validity of any law, ordinance, or regulation of the nature herein referred to, if the terms of such law, ordinance, or regulation compliance therewith may be legally held in abeyance without subjecting Lessor to any ' liability of whatsoever nature for the failure so to comply therewitb, in which event compliance therewith may be postponed until the final determination of any such proceeding. Lessee, upon commencing such contest, shall furnish to Lessor a. document guaranteeing that Lessor and Lessor's interest in the Leased Property shall be saved harmless from any penalty, damage, charge, or claim resulting from such contest. ARTICLE 6. IMPROVEMENTS Lessor's Approval Required Section 6.01. Notwithstanding the provisions of Section 5.03, no improvements to the Leased Property shall be undertaken by Lessee without first obtaining written approval of Lessor. Such approval shall not be unreasonably withheld. Lessor's Approval Not Required Section 6.02. Notwithstanding the provisions of Section 5.03, the following items do not require written approval by the Lessor: (a) Improvements to the Leased Property at an aggregate cost of less than Six Thousand Dollars ($6,000,00) in any calendar year; or (b) Such changes and alterations in the Leased Property as may be required by an authorized public official having authority or juris- diction over such structures or improvements, in order to comply with legal requirements. - 8 - t!" --.... Effect of Approval Section 6.03. By approving any and all proposed improvements, Lessor assumes no liability or responsibility therefor or for any defect in any structure constructed as a result of the approval of such proposed improvements. Ownership of Improvements Section 6.04. All of Lessee's improvements, and all subsequent additions thereto and alterations therein and replacement thereof, shall become and remain a part of the Leased Property, subject to the use and occupancy of Lessee, and none of the same shall be encumbered, transferred, removed, or materially altered, except as otherwise provided in this Lease. In the event of the early termination of the Lease, all of the improvements shall become the property of Lessor upon remittance to Lessee by Lessor of a sum equal to the value of the unamortized cost of the improvements. Should Lessor not compensate Lessee for the unamortized cost of the improvements, upon the early termination of the Lease all of the improvements shall become the property of Lessee. Both parties agree that the unamortized cost of the remaining improvements shall equal the depreciated cost of said improvements and shall not equal Lessee's actual cost of such improve- ments. Both parties agree that the term of amortization shall be as allowed by the Internal Revenue Service for tax purposes. ARTICLE 7. ENCUMBRANCE OF LEASEHOLD ESTATE Lessee's Right to Encumber Section 7.01. (a) Lessee may, at any time, encumber the lease- hold interest in the Leased Property, by deed of trust, mortgage, or other security instrument, upon obtaining the prior written consent of Lessor (which consent shall not be unreasonably withheld), but no such encumbrance shall constitute a lien on the fee title of Lessor to an'y portiop. of the Leased PropertYm Lessor's Consent and Execution of Documents (b) Lessor shall, on Lessee's request, execute written consent to an assignment of this Lease to a Trustee under a deed of trust - 9 - It (hereafter ~'Trust Deed ") for the benefit of a lender (hereafter "Lender"), and to sign all necessary papers that need to be signed by Lessor for Lessee to encumber his leasehold interest. Trust Deed Subject to Lease (c) The Trust Deed and all rights acquired thereunder shall be subject to each and all of the covenants, conditions, and restrictions set forth in this Lease and to all rights and interest of the Lessor, except as otherwise provided in this Lease. In the event of any conflict between the provisions of this Lease and the provisions of any such Trust Deed, the provisions of the Lease shall control. Loan Documents Furnished to Lessor (d) Concurrently with the execution of the Trust Deed, Lessee shall furnish to Lessor a complete copy of the Trust Deed a.nd Note secured thereby, together with. the name and address of the holder thereof. Recording of Request for Notice of Default (e) Upon and immediately after the recording of the Trust Deed, Lessee, at Lessee's expense, shall cause to be recorded in the office of the Recorder of Marin County, California, a written request executed and acknowledged by Lessor for a copy of any notice of default and of any notice of sale under the Trust Deed as provided by the statutes of the State of California. Duplicate Notices Mailed to Lender (f) The Lessor shall mail to the Lender a duplicate copy of any and all notices which Lessor may from time to time give to or serve upon the Lessee under the terms of this Lease. The Lessee shall advise Lessor in writing of the Lender's mail address and any changes thereof. Lessor's Right to Cure Default Section 7.02. Lessee shall be deemed to be in default under this Lease if there is a default under any loan made pursuant to the -10 - ) · . provisions of this article and Lessee shall fail to cure such default within the period provided under the instruments evidencing any such loan, or by law but in any case not later than thirty (30) days after notice thereof or the filing of a declaration of default therefor, whichever first occurs. If the applicable laws of the State of California are amended to shorten the period after which the power of sale under a deed of trust may be exercised, then such curation by Lessee must, in any event, be accomplished not later than thirty (30) days before the expiration of such period. In the event of such C defaultJ including the nonpayment of money, under any such loan, Lessor shall hae the right to cure the same during the period provided under any such loan instrument, or by law, and if not reimbursed by Lessee for all advances, costs, and expenses of Lessor in connection with the curing of such default within such period, Lessor shall further have the right to continue to keep and maintain any such loan in good standing, and in which event Lessor may, at its option, upon the expiration of the original period within which said nonpayment default is to be cured, declare Lessee to be in default under this Lease. Lessor shall be subrogated to Lessee's position and Lessor shall be entitled to exercise the remedies provided in Article 13 for C'. any default described in this section without the requirements of notice, Lessor1s Consent Not Required for Transfer of Lease on Foreclosure Section 7.030 (a) The written consent of Lessor shall not be required: (1) To a transfer of this Lease at foreclosure sale under the Trust Deed, judicial fore- closure, or an assignment in lieu of fore- closure; or (2) To any subsequent transfer by the Lender if the Lender is an established bank, savings and loan association, or insurance company, and is the purchaser at such foreclosure sale; provided that in either such event the Lender -" - · . forthwith gives notice to the Lessor in writing of any such transfer, setting forth the name and address of the transferee, the effective date of such transfer, and the express agreement of the transferee assuming and agreeing to perform all of the obliga- tions under this Lease, together with a copy of the document by which such transfer was made. Liability of Transferee (b) Any transferee under the provisions of Subparagraph (a) (1) above shall be liable to perform the obligations of the Lessee under this Lease only so long as such transferee holds title to the leasehold. Lender's Rights on Termination of Lease -Cure Default or Exercise Power of Sale Section 7.04. Lessor shall not terminate this Lease because of any default or breach hereunder on the part of Lessee if the Lender under such Trust Deed, within sixty (60) days after service of written notice on the Lender by Lessor of its intention to terminate this Lease for such default or breach. shall: cure such default or breach if. the same can be cured by the payment or expenditure of .money provided to be paid under the terms of this Lease, or if such default or breach is not so curable, cause the Trustee under the Trust Deed to commence and thereafter to diligently pursue to completion steps and proceedings for the exercise of the power of sale under and pursuant to the Trust Deed in the manner provided by law; and keep and perform all of the covenants and conditions of this Lease requiring the payment or expenditure of money by Lessee until such .time as .said leasehold shall be sold upon foreclosure pursuant to the Trust Deed or shall be released or reconveyed thereunder; provided, however, that if the hold of the Trust Deed shall fail or refuse to comply with any and all of the conditions of this paragraph, then and thereupon Lessor shall be released from the covenants of forebearance herein contained. Any notice to the Lender provided for .i:·: _". _ 12 _ in thi~ paragraph may be given concurrently with or after Lessor's notice of default to Lessee as hereinafter provided in this Lease. ARTICLE 8. REPAIRS AND RESTORATION No Responsibility of Lessor '!. -"" ,,~, ".f';; Section 8.01. (a) Lessor shall not be required or obligated to make any changes~ alterations, additions, improvements, or repairs in, on, or about the Leased Property, or any part thereof, during the term of this Lease. Lessee's Duty to Maintain Premises (b) At all times during the term Lessee shall, at its cost and expense, keep and maintain the Leased Property and all improvements thereon and all facilities appurtenant thereto in good order and repair and safe condition, and the whole of the Leased Property, improvements, and landscaping in a clean; sanitary} orderly, and attractive condition. Lessee shall make any and all additions to or alterations or repairs in and about the Leased Property and the improvements which may be required and shall otherwise observe and comply with all public laws, ordinances, and regulations from time to time applicable to the Leased Property; and Lessee shall indemnify and save harmless Lessor against all actions, claims, and damages by reason of Lessee's failure to comply with and perform the provisions of this Section. Lessee's Duty to Restore Damage or Destruction Section 8.02. (a) If during the term hereof any building or improvement on the Leased Property, or any part thereof, shall be damaged or destroyed by fire or other casualty, Lessee shall, at its cost and expense, repair or restore the same according to the original plans thereof or to such modified plans as shall be previously approved in writing by Lessor. Commencement and Completion of Restoration (b) Such work of repair or restoration shall be commenced within one hundred twenty (120) days after the damage or loss occurs and -13 - , . shall be ,completed with due diligence but not longer than one (1) year after such work is commenced, and such work shall be otherwise done in a workmanlike fashion. Use of Insurance Proceeds (c) All insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restora- tion, and if such insurance proceeds shall be insufficient for such purpose, Lessee shall make up the deficiency out of its own funds. Failure to Restore (d) Should Lessee fail or refuse to make the repairs or res- toration as hereinabove provided, or if the authorized encumbrancer of Lessee, if any, after thirty (30) days' written notice by Lessor, shall fail or refuse to undertake and complete such work on behalf of Lessee, then in either of such events such failure or refusal shall constitute a default under the covenants and conditions hereof and all insurance proceeds so collected shall be forthwith paid over to and retained by Lessor on its own account and Lessor may, but shall not be required to, use and apply the same for and to the repair or restoration of the Leased Property, and Lessor may, at its option, terminate this Lease. Lessee 1 s Option to Terminate for Damage During Last Five Years Section 8,.03. (a) Notwithstanding anything to the contrary con- tained in Section 8.02, if during any time of the Lease Term any building erected on the Leased Property shall be damaged by fire or other casualty and if the cost of repairing or restoring the same shall exceed the insurance proceeds payable for such damage, then Lessee shall have the option, to be exercised within thirty (30) days after. such event, (1) to repair or restore the building, or (2) subject to the prior written consent of the authorized encumbrancer, if any, to terminate this Lease by written notice to Lessor. -14 - < · , Conuitions of Option -Clean-D~ (b i Such option to terminate shall be conditioned as follows: (1) Lessee shall, at its expense, within ninety (90) days after the damage occurs, tear dc~ and remove all parts of the building and other improvements then remaining and the debris resulting from such fire or other casualty and otherwise clean up and restore the Leased Property, as far as practicable, to its original condition, free and clear of liens;. and (2) Within ten (10) days after the completion of the clean-up and restoration Lessee shall surrender to Lessor possession of the Land, cleaned up and restored, and shall pay to Lessor any rent accruing to the date of (3) such surrender and Lessee's pro rata share of all unpaid taxes and assessments that then shall have become a lien upon the premises; and The insurance proceeds collected and paid for such damage, to the extent available for such purposes" shall be applied to the cost of such clean-up and restoration, and the unexpended balance, if any, shall be paid over to Lessor prior to termination by Lessee. (4) Thereupon, but not before, said Lease shall terminate .. ARTICLE 9. MECHANIC'S LIENS Prohibition Against Mechanic's Liens -Indemnification of Lessor Section 9.01. Lease shall not suffer or permit to ~e enforced against the Leased Property. or any part thereof, any mechanic's, materialman's, contractor's, or subcontractor's liens arising from or -15 - .~---------- c · , any claim for damage growing out of the work of any construction, repair, restoration, replacement, or improvement, or any other claim or demand howsoever the same may arise, but Lessee shall payor cause to be paid all of such liens, claims, or demands before any action is brought to enforce the same against the Leased Property; &nd Lessee agrees to indemnify and hold Lessor and said Leased Property free and harmless from all liability for any and all such liens, claims, and demands, together with reasonable attorney's fees and all costs and expenses in connection therewith. Contest by Lessee Section 9.02. If Lessee shall in good faith contest the valid- ity of any such lien, claim, or demand, then Lessee shall, at its expense. defend itself and Lessor against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against Lessor or the Leased Property. Lessor's Rights to Remove Lien Section 9.03. If Lessee fails to discharge such lien or furnish a bond against the foreclosure thereof as provided by the statutes of the State of California, Lessor may, but is not obligated to, discharge the same or take such other action as Lessor deems necessary to prevent a judgment of foreclosure upon said lien from being executed against the property, and all costs and expense, including reasonable attorney'~ fees incurred by Lessor, shall be repaid by Lessee upon demand 1 and if unpaid may be treated as additional rent. Notice of Nonresponsibility Section 9.040 Nothing in this Lease shall be deemed or con- strued in any way as constituting the consent or request of Lessor, expressed, or implied, by inference or otherwise, to any contractor, subcontractor, laborer, or materialman for the performance of any labor or the furnishing of any materials for any specific improvement, alteratioll, or repair of or to the Leased Property, any buildings or improvements thereof, or any part thereof. Lessor shall have the right at all reasonable times to post and keep posted on the Leased Property such notices of nonresponsibility as Lessor may deem -16 - ( · , necessa ~y for the protection of Lessor and the fee of the Leased Property from mechanic's and materialman's liens. ARTICLE 10. EMINENT DOMAIN Definition of Total and Partial Taking Section 10.01. The term "total taking" as used in this article means the taking of the entire Leased Property under the power of eminent domain or a taking of so much of such Leased Property as to prevent or substantially impair the conduct of Lessee's business thereon. The term "partial taking" means the taking of a portion only of such Leased ,Property which does not constitute a total taking as above defined. Total Taking -Termination Section 10.02. If during the term hereof there shall be a total taking by public authority under the power of eminent domain, then the leasehold estate of Lessee in and to the Leased Property shall cease and terminate as of the date the actual physical possession thereof shall be so taken. Partial Taking -Partial Termination and Rent Abatement Section 10.03. If during the Lease Term there shall be a partial taking of the Leased Property, this Lease shall terminate as to the portion of the Leased Property taken upon the date upon which actual possession of the portion of the Leased Property is taken pursuant to the eminent domain proceedings but the Lease shall continue in force and effect as to the remainder of the Leased Property. The basic rental payable by Lessee for the balance of the term shall be abated in the ratio that the square footage ground area of the Leased Property taken bears to the total ground area of such Leased Property at the time of such taking. Allocation of Award Section 10.04. All compensation and damages awarded for the taking of the Leased Property or any portion thereof shall, except as otherwise herein provided, belong to and be the sole property of -17 - -L~Esor, and Lessee &_all not have any claim or _~ entitled to any award for diminution in value of its leasehold hereunder or for the value of any unexpired term of this Lease; provided, however, that Lessee shall be entitled to any award that may be made feor the taking of or injury to Lessee's improvements, or on account of any cost or loss Lessee may sustain in the removal of Lessee's fixtures, equipment, and furnishings, or as a result of any alterations, modifications, or repairs which may be reasonably required by Lessee in order to place the remaining portion of the Leased Property not so condemned in a suitable condition for the continuance of Lessee's tenancy. Effect of Termination Section 10.05. If this Lease is terminated, in whole or in part, pursuant to any of the provisions of this Article, all rentals and other charges payable by Lessee to Lessor hereunder and attributable to the Leased Property taken, shall be paid up to the date upon which actual physical possession shall be taken by the condemnor, and the parties shall thereupon be released from all further liability. Lessor's Right to Exercise Eminent Domain Section 10.06. Nothing contained herein shall preclude Lessor from bringing an action in eminent domain against the Lessee for any remaining term of the Lease. AR'rrCLE 11. INSURANCE AND INDEMNIFICATION Lessee's Fire Insurance Section 11.01. (a) At all times during the Lease Term, Lessee shall keep all improvements insured against loss or damage by fire, with extended coverage hazards endorsement or its equivalent in such responsible insurance companies as Lessee shall select and Lessor shall approve, and in amounts not less than ninety percent (90%) of the insurable value of the buildings and other improvements insured, with loss payable to Lessor and Lessee and to any authorized encum- brancer of Lessee in accordance with their respective interests therein as provided in this Lease and in any written consent to such encumbrance by the Lessor; provided, however, any such policy may -18 - c · { provide that a loss of less than Five Thousand Dollars ($5,000.00) may be paid directly to Lessee and any authorized encumbrancer without the prior consent of Lessor. Lessee shall pay all premiums and other charges in connection with such insurance and from time to time shall deposit with Lessor the certificate of the insurance carrier as to each policy of such insurance and satisfactory evidence of the payment of premiums and other charges. Such insurance policies shall contain an express waiver of any right of subrogation against Lessor. Lessee's Liability Insurance Section 11.02. Lessee shall, at its cost and expense, at all times during the term of this Lease, maintain in force, for the joint benefit of Lessor and Lessee, a broad form comprehensive coverage policy of public liability insurance by the terms of which Lessor and Lessee are named as insured and are indemnified against liability for damage or injury to the property or person (including death) of any Lessee or invitee of Lessee or any other person entering upon or using the Leased Property, or any structure thereon, or any part thereof, or any boat or vessel moored or otherwise, and arising from the use and occupancy thereof. Such insurance policy or policies shall be maintained on the minimum basis of One Million Dollars ($1,000,000.00) for bodily injury or death of any lll."unber of persons in one occurrence, Five Hundred Thousand Dollars ($500,000.00) for bodily injury or death of anyone person in anyone accident and Three Hundred Thousand Dollars ($300,000.00) for damage to property. Such insurance policy or policies shall be stated to be primary and noncontributing with any insurance which may be carried by Lessor, and Lessee shall deliver to Lessor the certificate of each insurance carrier as to each such insurance policy. Indemnification of Lessor Section 11.03. Lessor shall not be liable for any loss, damage, or injury of any kind or character to any person or property arising from any use of the Leased Property, or any part thereof, or caused -19 - ( · . by .any g efect in any building, structure, or other improvement thereon or in any equipmetn or other facility therein, or caused by or arising from any act or omission of Lessee, or of any of its agents, employees, licensees, or invitees, or by or from any accident on the Leased Property or any fire or other casualty therEon, or occasioned by the failure of Lessee to maintain the premises in safe condition, or arising from any other cause whatsoever; and Lessee, as a material part of the consideration of this Lease, hereby waives on its behalf all claims and demands against Lessor for any such loss, damage, or injury of Lessee, and hereby agrees to indemnify and hold Lessor entirely free and harmless from all liability for any such loss, damage, or injury of other persons, and from all costs and expenses arising therefrom. Failure of Lessee Section 11.04. In the event of the failure of the Lessee either to effect said insurance in the names herein called for within ten (10) days after the commencement this Lease Term and thereafter at least fifteen (15) days prior to the expiration of any policy, or to pay the premiums therefore when required, or to deliver said policies or certificates thereof, unto Lessor at least ten (10) days before the same became effective, the Lessor shall be entitled, but shall have no obligation, to effect said insurance and pay the premiums therefor, which premiums shall be repayable to Lessor with the next installment of rental, and failure to repay same shall carry with it the same consequences as failure to pay any installment of rental_ Each insurer mentioned in this Article shall agree, by endorsement upon the policy or policies issued by it, or by independent instrument furnished to Lessor, that it will give the Lessor fifteen (15) days written notice by registered mail before the policy or policies in question shall be altered or cancelled. Modification of Insurance Section 11.05. In the event that either party shall at any time deem the limits of the bodily injury or property damage lia- bility insurance then carried to be either excessive or insufficient, -20 - -( t h e parties shall e~_eavor to agree upon the Pl ~per and reasonable limits for such insurance then to be carried and such insurance shall thereafter be carried with the limits thus agreed upon until further change pursuant to the provisions of this Article, but, if the parties shall be unable to agree thereon, the proper and reasonable limits for such insurance then to be carried shall be determined by arbitration as provided in this Lease. ARTICLE 12. ASSIGNMENTS AND SUBLETTING Lessor's Approval Required Section 12.01. (a) Lessee shall not encumber, assign, sublet or otherwise transfer this Lease, or any right or interest hereunder, or in or to any of the improvements that hereafter may be constructed or installed on the Leased Property without the prior written consent of the Lessor. No such encumbrance, assignment, or other transfer, whether voluntary or involuntary, by operation of law, under legal process, through receivership or bankruptcy, or otherwise shall be valid or effective without such prior written consent and approval, which consent shall not be unreasonably withheld. Termination (b) Should Lessee attempt to make or suffer to be made any such enclmbrance, assignment, sublet or transfer except with Lessor's written consent, thereupon Lessor may, at its option p terminate this Lease :Eorthwi th by written D:otice, and upon such termination this Lease shall cease and end and be of no further force or effect, except as hereinafter other provided. Effect of Lessor's Consent (c) Should Lessor consent to any such encumbrance, assignment, or transfer, none of the restrictions of this paragraph shall be thereby waived, but the same shall apply to each successive encum- brance, assignment or transfer or subletting hereunder, if any, and shall be severally binding upon each and every encumbrancer, assignee, transferee, and other successor in interest of Lessee. -21 - .' . 1 " ~I:"'-, _ J'C .' .. _. ----------------~------"--------------------.---------=--( ~~~---- ~. · " Written Assumption Agreement Section 12.02. In the event that Lessor gives consent and approval to any transfer, assignment, or sublet, then be~ore such transfer, assignment, or sublet becomes effective for any purpose, the transferees, assignees, or subtenants must, in writing, assume all the obligations of this Lease and agree to be bound by all terms of the Lease. ARTICLE 13. DEFAULT AND REMEDIES Termination by Lessor on Specified Defaults Section 13.01. Should Lessee (a) fail to payor cause to be paid any tax, assessment, insurance premium, lien, claim, charge, or demand herein provided to be paid or caused to be paid by Lessee· at the times and in the manner herein provided; or (b) default in the payment of any installment of rent or any other sum when due as herein provided; or (c) fail to commence and thereafter to continuously conduct its operations thereon within the times and in the manner herein provided; or (d) fail to use, maintain, and operate the Leased Property as herein required; or (e) default in the performance of or breach of any other covenant, condition, or restriction of this Lease herein provided to be kept or performed by Lessee; and if any such default or breach (other than any breach of the restrictions of Article 12 hereof for which immediate notice of termination may be given) shall continue uncured for a period of thirty (30) days from and after the date of such def~ult or breach, then and in shall be exclusive of the other, and Lessor shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law, whether or not stated in this Lease. No waiver by Lessor of a breach of any of the covenants, conditions, or restrictions of this Lease shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other covenant, condition, or restriction herein contained. ARTICLE 14. SURRENDER AND REMOVAL Surrender of Possession Section 14.01. (a) Upon the expiration of the Term of this -22 - Le~se or any' earlier termination thereof, Lessee shall surrender to Lessor possession of the Leased Property and all improvements con- structed and installed thereon. Removal of Personal Property (b) If Lessee shall not then be in default under any of the covenants and conditions hereof, Lessee may remove or cause to be removed all movable furniture, furnishings, and equipment installed in the buildings on the Leased Property. Any of said personal ( property that is not removed from said premises within thirty (30) days after the date of any termination of this Lease therea.fter shall belong to Lessor without the payment of any consideration. Lessee's Quitclaim Section 14.02. Upon the expiration of the Lease Term, or any sooner termination of this Lease, Lessee agrees to execute, acknow- ledge, and deliver to Lessor a proper instrument in writing, releasing and quitclaiming to Lessor all right, title, and interest of Lessee in and to the Leased Land and all improvements. ARTICLE 150 LESSOR'S GENERAL PROTECTIVE PROVISIONS Lessor's Right of Entry and Inspection Section 15.01. Lessee shall permit Lessor or Lessor's agent representatives, or employees to enter upon the Leased Property for the purpose of inspection, determining whether agreements in this Lease are being complied with, for purposes of maintaining, repairing or altering the Leased Property, or for the purpose of showing the Leased Property to prospective Lessees, purchasers, mortgages, or beneficiaries under Trust Deeds. Lessor's Right to Cure Default Section 15.02. In the event Lessee shall fail to pay and discharge or cause to be paid and discharged, when due and payable, any tax, assessment, or other charge upon or in connection with the Leased Property, or any lien or claim for labor or material employed or used in or any claim for damages arising out of the construction, -23 - -. ~,. "' V' .. . , repair, restoration, replacement, maintenance, and use of the Leased Property and the improvements, or any judgment on any contested lien or claim, or any insurance premium or expense in connection with the Leased Property and improvements, or any other claim, cha,rge, or demand which Lessee has agreed to payor cause to be paid under the covenants and conditions of this Lease, and if Lessee, after ten (10) days' written notice from Lessor so to do, shall fail to pay and discharge the same, then Lessor may, at its option, pay any such tax, assessment, insurance expense, lien, claim, charge, or demand, or settle or discharge any action therefor, or judgment thereon, and all costs, expenses,-and other sums incurred or paid by Lessor in connection with any of the foregoing shall be paid by Lessee to Lessor upon demand, together with interest thereon at the rate of ten percent (10%) per annum from the date incurred or paid, and any default in such repayment shall constitute a breach of the covenants and conditions of this Lease. Accord and Satisfaction Section 15.03. No payment by Lessee or receipt by Lessor of a lesser amount than the rental shall be deemed to be other than on account of the rental, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Lessor may accept such check or payment without prejudice to Lessor's right to recover the balance of the rental or pursue any other remedy provided for in this Lease. Transfer by Lessor -Release from Liability Section 15.04. In the event Lessor shall sell or transfer the Leased Property or any part thereof and as a part of such trans- action shall assign its interest as Lessor in and to this Lease, then from and after the effective date of such sale, assignment, or trans~er, the.Lessor shall have no further liability under this Lease to the Lessee except as to matters of liability which shall have accrued and are unsatisfied as of such date, it being intended that the covenants and obligations contained in this Lease on the part of the Lessor shall be binding upon Lessor and its successors and -24 - --~-'--' ----_ ... _- ( C>" · , assigns only during and in respect of their respective successive periods of ownership of the fee. Notwithstanding the above, in the event Lessor elects to declare surplus the leasehold property to make same available for purchase upon the open market, Lessee shall have the first right of refusal in advance of said declaration and sale and shall have the right to enter into negotiations with Lessor for purchase of the property. Joint and Several Liability Section 15.05. If more than one Lessee or Lessor is named under this Lease the obligation of all such Lessees or Lessors shall be and is joint and several. ARTICLE 16. GENERAL PROVISIONS Conditions and Covenants Section 16.01. All of the provisions of this Lease shall be deemed as running with the land, and construed to be "conditions" as well as "covenants" as though the words specifically expressing or imparting covenants and conditions were used in each separate provision. No Waiver of Breach Section 16.02. No failure by either Lessor or Lessee to insist upon the strict performance by the other of any covenant, agreement, term, or condition of this Lease or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of such covenant, condition, agreement, and term of this Lease shall continue in full force and effect with respect to any other then existing or subsequent breach. Time of Essence Section 16.03. Time is of the essence in this Lease, and in each provision. -25 - .. J ., ... . Computation of Time Section 16.04. The time in which any act provided by this Lease is to be done is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or holiday, and then it is also excluded. The term "holiday!! shall mean all holidays specified in Sections 6700 and 6701 of the Government Code. Unavoidable Delay -Force Majeure Section 16.05. If either party shall be delayed or prevented from the performance of any act required by this Lease by reason of acts of God, strikes, lockouts, labor troubles, inability to procure materials, restrictive governmental laws, other than those enacted, implemented or enforced by Lessor, or regulations or other cause, without fault and beyond the reasonable control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of such delay; and the period for the perform- ance of any such act shall be extended for a period equivalent to the period of such delay, provided, however, nothing in this section shall excuse Lessee from the prompt payment of any rental or other charge required of Lessee except as may be expressly provided else- where in this Lease. Successors in Interest Section 16.06. Each and all of the covenants, conditions) and re s trictions in this Lease shall inure to the benefit of and shall be binding upon the successors in interest of Lessor, and subject to the restriction of Article 12, the authorized encumbrancers, assignees, transferees, subtenants, licensees, and other successors in interest oJ: Lessee. Entire Agreement Section l6.07. This Lease contains the entire agreement of the parties with respect to the matters covered by this Lease, and no other agreement, statement, or promise made by any party, or to any employee, officer, or agent of any party, which is not contained in this Lease shall be binding or valid. -26 - Partial Invalidity Section 16.08. If any term, covenant, condition, or provision of this Lease is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. Relationship of Parties Section 16.09. Nothing contained in this Lease shall be deemed or construed by the parties or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between Lessor and Lessee, and neither the method of computation of rent nor any other provisions contained in this Lease nor any acts of the parties shall be deemed to create any relationship between Lessor and Lessee, other than the relation- ship of Lessor and Lessee. Interpretation and Definitions Section 16.10. (a) The language in all parts of this Lease shall in all cases by simply construed according to its fair meaning and not strictly for or against Lessor or Lessee. Unless otherwise provided in this Lease, or unless the context otherwise requires, the following definitions and rules of construction shall apply to this Lease" Number' and Gender (b) In this Lease the neuter gender includes the feminine and masculine} and the singular number includes the plural, and the word "person" includes corporation, partnership, firm, or association wherever the context so requires. Mandatory and Permissive (c) "Shall," "will," and "agrees" are mandatory, "may" is permissive. -27 - · '. Index and Captions (d) The Index and Captions of the articles, sections, and paragraphs of this Lease are for convenience and reference only, and the words contained therein shall in no way be held to e~plain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Lease. Term Includes Extensions (e) All references to the term of this Lease or the Lease Term < shall include any extensions of such Term. ~. Land and Premises (f) Leased Property, Land, Leased Premises, Premises shall include the improvements to the Land. Parties (g) Parties shall include the Lessor and Lessee named in this Lease. Sublessee (h) As used herein, the word "sublessee" shall mean and include in addition to a sublessee and SUbtenant, a licensee, concessionaire, or other occupant or user of any portion of the leased premises or buildings or improvements thereon. Attorney's Fees Section 16.11. In the event either Lessor or Lessee shall bring any action or proceeding for damages for an alleged breach of any provision of this Lease, to recover rents, or to enforce, protect, or establish any right or remedy of either party, the prevailing party shall be entitled to recover as a part of such action or proceedings reasonable attorney's fees and court costs. Interest Section 16.12. Any sum accruing to Lessor or Lessee under the provisions of this Lease which shall not be paid when due shall bear -28 - ( • ,. I • interesh at the rate of ten percent (10%) per annum from the date written notice specifying such nonpayment is served on the defaulting party, until paid. Modification Section 16.13. This Lease is not subject to modification except in writing. Delivery of Rent and Notices -Method and Time Section 16.14. (a) All rents or other sums, notices, demands, or requests from one party to another may be personally delivered or sent by mail, certified or registered, postage prepaid, to the addresses stated in this section, and shall be deemed to have been given at the time of personal delivery or at the time of mailing or at the end of the second full day following the date of mailing. Payment of Rent (b) All rents and other sums payable by Lessee to Lessor shall be in lawful United States money or by check drawn on a bank, savings and loan or other authorized fiduciary agent, payable in United States dollars that is payable to the City of San Rafael, delivered in person or mailed to Lessor at 1400 Fifth Avenue, San Rafael. California 94901. Notices to Lessor (c) All notices, demands, requests from Lessee to Lessor shall be given to Lessor at 1400 Fifth Avenue, San Rafael, California 94901. Notices to Lessee (d) All notices, demands, or requests from Lessor to Lessee shall be given to Lessee at P.O. Box 821, San Rafael. California 95915. Change of Address (e) Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this section. -29 - ( ". .J I -(4 j.... .. • Multiple Parties (f) If more than one Lessor or Lessee is named in this Lease, service of any notice on any of the Lessees or Lessors shall be deemed service on all of the Lessees or Lessors, respectiv ely. Broker's Commissions Section 16.15. Each of the parties represents and warrants that there are no claims for broker's commissions or finder's fees in connection with the execution of this Lease, except as listed below, and each of the par~ies agrees to indemnify the other against all liabilities arising from any such claim. ARTICLE 17. EXECUTION, RECORDING, AND INCORPORATION BY REFERENCE Offer and Acceptance Section 17.01. Execution of this Lease by Lessee constitutes an offer which shall not be deemed accepted by Lessor until Lessor has executed this Lease and delivered a duplicate original to Lessee. This offer is not valid unless accepted before April 5, 1983. The submission of an unexecuted copy of this Lease for examination does not constitute an offer, reservation, or option for the Leased r;.~ Property. '. Recording Section 17.02. Neither party shall record this Lease without the written consent of the other party; however, upon the request of either party, the other party shall join in the execution of a meraorandumor "short form" of this Lease for the purpose of recorda- tion. The memorandum or short form shall describe the parties, the leased premises, and the term of this Lease, and shall incorporate this Lease by reference~ Counterparts Section 17.03. This Lease, consisting of 30 pages, plus Exhibits "A" and "B", has been executed by the parties in several counterparts, each of which shall be deemed to be an original copy. -30 - • I .. ~..... -III Exhibits Section 17.05. This Lease has been executed by Lessor on April 4, 1983 and by Lessee on April 1, 1983 LESSOR -CITY OF SAN RAFAEL Attesth}t·~ City Clerk B~ Mayor LESSEE -SAN RAFAEL YACHT CLUB 17 Ajl -31 - .-J ( / EXHIBIT p.~ Beginning at a point on the most northwesterly corner of Parce1 ·3 of the Lands of . City of San Rafael as described and recorded in Book 155 of Deeds at page 445, Marin County Records; thence running S13028'54 11 W, for a distance of 16.66 feet to the true point of beginniho; thence running thereon S68010'13" E, 34.84 feet; thence ° J ° S 32 38'30" E, 12.125 feet; thence S 29 53'23" E, 14.99 feet; thence S 5°44'9" E, 14.61 feet; thence S 9°14'19" H, 70.01 feet; thence S 13°28'54" W, 67.03 feet; thence N 76 0 31' 6" \v, 63.49 feet to the most westerly line of the aforesaid parcel; thence N 13°28'54" E, 175.00 feet along the said westerly line to the true point of beginning. · ", , . ; , / SA JJ RAFA £L CAN,L\ L - ..sAN' ;eAFA·El CAf..../A/.. J?/W VOl cc5 DEEDS PC;--4'.3/ J 81(' 15 OS" Pt;-62. r-S 32°38"30"£ .. 12~/25" 529'5323''1; 14'-99 ' 5 5" f.y 19"£ lit-6/' PARCEL .3 LAMDS Or CITY OF S4N .€AFA£L _155 .D£EDS -PA {j£ 44'3. ill .sCALE" /~ =30' .-. " ; .... -... I N D E X ARTICLE 1. PARTIES AND PREMISES Section 1.01 Parties 1.02 Leased Property ARTICLE 2. TERM Section 2.01 Fixed Commencement and Termination Dates 2.02 Hold Over ARTICLE 3. RENT Section 3.01 Fixed Sum -Annual Installments 3.02 Rent Adjustment 3.03 No Offsets Against Rent ARTICLE 4. TAXES AND ASSESSMENTS Section 4.01 Lessee to Pay Taxes e" 4.02 Possessory Interest 4.03 Payment and Furnishing of Receipts or Tax Service 4.04 Installment Payment 4.05 Proration for Time 4.06 Proration for Other Property of Lessor 4.07 Contest 4.08 Separate Assessment of Lessee's Personal Property 4.09 Indemnification of Lessor ARTICLE 5. USE Section 5.01 Description of Use 5.02 Public Mooring 5.03 Limits on Use 5.04 Indemnity for Violation of Law fS '" "., , " I N D E X (continued) ARTICLE 6. IMPROVEMENTS Section 6.01 Lessor's Approval Required 6.02 Lessor's Approval Not Required 6.03 Effect of Approval 6.04 Ownership of Improvements < ARTICLE 7. ENCmfBRANCE OF LEASEHOLD ESTATE Section 7.01 Lessee's Right to Encumber 7.02 Lessor's Right to Cure Default 7.03 Lessor's Consent Not Required for Transfer of Lease on Foreclosure 7.04 Lender's Rights on Termination of Lease -Cure Default or Exercise Power of Sale ARTICLE 8. REPAIRS AND RESTORATION Section 8.01 No Responsibility of Lessor 8.02 Lessee's Duty to Restore Damage or Destruction 8.03 Lessee's Option to Terminate for Damage During Last Five Years ARTICLE 9. MECHANIC'S LIENS Section 9.01 Prohibition Against Mechanic's Liens Indemnifi- cation of Lessor 9.02 Contest by Lessee 9.03 Lessor's Rights to Remove Lien 9.04 Notices of Nonresponsibility ARTICLE 10. EMINENT DOMAIN Section 10.01 Definition of Total and Partial Taking 10.02 Total Taking -Termination 10.03 Partial Taking -Partial Termination and Rent Abatement < ~. . . I N D E X (continued) 10.04 Allocation of Award 10.05 Effect of Termination 10.06 Lessor's Right to Exercise Eminent Domain ARTICLE 11. INSURANCE AND INDEMNIFICATION Section 11. 01 Lessee's Fire Insurance 11. 02 Lessee's Liability Insurance 11. 03 Indemnification of Lessor 11. 04 Failure of Lessee 11. 05 Modification of Insurance ARTICLE 12. ASSIGNMENTS AND SUBLETTING Section 12.01 Lessor's Approval Required 12.02 Written Assumption Agreement ARTICLE 13. DEFAULT AND REMEDIES Section 13.01 Termination by Lessor on Specified Default ARTICLE 14. SURRENDER AND REMOVAL Section 14.01 Surrender of Possession 14.02 Lessee's Quitclaim ARTICLE 15. LESSOR'S GENERAL PROTECTIVE PROVISIONS Section 15.01 Lessor's Right of Entry and Inspection 15.02 Lessor's Right to Cure Default 15.03 Accord and Satisfaction 15.04 Transfer by Lessor -Release from Liability 15.05 Joint and Several Liability -. I N D E X (continued) ARTICLE 16. GENERAL PROVISIONS Section 16.01 Conditions and Covenants 16.02 No Waiver of Breach 16.03 Time of Essence 16.04 Computation of Time 16.05 Unavoidable Delay -Force 1~jeure 16.06 Successors in Interest 16.07 Entire Agreement 16.08 Partial Invalidity 16.09 Relationship of Parties 16.10 Interpretation and Definitions 16.11 Attorney's Fees 16.12 Interest 16.13 Modification 16.14 Delivery of Rent and Notices -Method and Time 16.15 Broker's Commissions ARTICLE 17. EXECUTION, RECORDING AND INCORPORATION BY REFERENCE Section 17.01 Offer and Acceptance 17.02 Recording 17.03 Counterparts 17.04 Exhibits 17.05 Execution