HomeMy WebLinkAboutCC Resolution 11239 (City Hall at the Mall)`1
RESOLUTION NO. 11239
RESOLUTION AUTHORIZING AN AMENDMENT TO THE SPECIALTY
LEASE AGREEMENT BETWEEN MACERICH COMPANY AND CITY OF
SAN RAFAEL FOR CITY HALL AT THE MALL
(February 1, 2003 - January 31, 2004)
Whereas, The City of San Rafael and Macerich Company entered an Agreement dated January 24,
2000, and
Whereas, said Agreement was amended by both parties on January 16, 2001 as well as on January 22,
2002 extending the lease through January 31, 2003, and
Whereas, said Agreement expires on January 31, 2003 and both parties desire to amend the Agreement
extending the term to January 31, 2004,
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as
follows:
The CITY MANAGER is authorized to execute, on behalf of the City of San Rafael, an
amendment to the Specialty Lease Agreement with Macerich Company, a copy of which is hereby
attached and by this reference made a part hereof.
I, JEANNE M. LEONCM, Clerk of the City of San Rafael, hereby certify that the foregoing
Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of
said City held on Tuesday, the 21" day of January, 2003 by the following vote, to wit:
AYES: COUNCILMEMBERS: Heller, Miller and Vice -Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Cohen and Mayor Boro
JEAXNt M. LEONCINI, City Clerk
ORIGINAL
ADDENDUM "A"
Tenant shall use the premises during the Term for the purposes as a police annex and city
hall in the mall and for no other use or purpose. Pursuant to such use, Tenant may
maintain on the Premises such furniture and equipment as Tenant determines is
appropriate for the operation of a community office. Tenant may also have telephone
lines installed to the Premises. Tenant shall not use or occupy the Premises in violation
of law and shall discontinue any use of the Premises which is declared by any
governmental authority to be a violation of law. Tenant, at its sole cost and expense,
shall comply with any directive of any governmental authority which shall impose any
duty upon Tenant or Landlord with respect to the Premises or the use or occupation
thereof, which arises due to the nature of Tenant's use or occupancy of the Premises.
Tenant shall not commit, or suffer to be committed, any waste or nuisance, including
allowing objectionable noises or doors to emanate from Premises, or any act which may
increase the cost of public liability or any other insurance Landlord elects to carry in
connection with ownership, management, maintenance and operation of the Center or
which is otherwise in contravention of insurance underwriting regulations, guidelines and
practices. Tenant shall not allow carts or portable signs, devices or any other objects to
be stored or to remain outside the exterior walls and permanent doorways of the
Premises. This agreement shall obligate Tenant to staff the Premises on a regular basis.
ADDENDUM W; INSURANCE.
Landlord recognizes and understands that Tenant, does not maintain commercial liability
insurance coverage. As permitted under California Government Code section 990, Tenant
is self-insured for the first $500,000.00 of general liability exposure. Additionally, Tenant
participates with other public entities, under a "Memorandum of Coverage" (MOC), in an
excess liability "pool", the California Joint Powers Risk Management Authority
(CJPRMA), for excess liability coverage in excess of the $500,000.00 retention. Tenant
shall provide Landlord a certificate of "Additional Covered Party" naming Landlord an
additional covered party under the MOC. This certificate shall satisfy all of Tenant's
obligations under paragraph 16 of the Lease.
Landlord:
Northgate Mall Associates
By: Macerich Management Company or
Macerich Property management Company,
LLC, a Delaware limited liability company
(as the case may be), its Managing Agent
By:N=:;eWWW_-1
Jennife Cic one
Sr. M , operty Manager
5800 Northgate Mall
San Rafael, CA 94903
415-479-5956
Date: 3 -1 -7k --s
Tenant:
City of San Rafael, a Municipal
Corporation under the laws of
The State of California, dba
"City Hall at the Mall"
Rod Gould
City Manager
1400 Fifth Ave.
San Rafael, CA 94915-1560
415-485-3070
Fed EIN: 9440383-9
Date: //-2- 1 ( j3
IOPY
SPECIALTY LEASE AGREEMENT
This Specialty Lease Agreement ("Agreement") is made as of this 9th day of January 2003, by and between
Northgate Mall Associates (the "Landlord") and City of San Rafael dba Citv Hall at The Mall (the "Tenant"), based on the
following facts and circumstances:
A. Landlord is the owner of certain real property, commonly known as The Mall at Northgate. San Rafael. Ca
94903 ("Center"); and
B. Tenant desires to lease certain premises at the Center.
C. If Tenant is also leasing personal property (CART UNIT) from Landlord see exhibit "C" attached.
In consideration of the rent and other charges to be paid and the covenants to be performed by Tenant hereunder,
Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease and take from Landlord, the Premises
hereinafter described, upon the terms and conditions hereinafter set forth:
1. Premises. The "Premises" are located within the portion of the Center known as In -Line space # 82 containing
approximately 1,425 square feet, which location is depicted on Exhibit "A" attached hereto and made a part hereof by this
reference, where the Tenant is permitted to display and sell its merchandise. No other portion of the Center may be used by
Tenant except for the Common Area in common with other persons. As used herein, the term "Common Area" shall mean
all realty and improvements in or at the Center now or hereafter made available by Landlord for the general use, convenience
and benefit of Tenant and other tenants upon the Center. Tenant agrees that the Premises may be relocated at any time at the
discretion of, and without liability to, the Landlord.
2. Term. The "Term" of this Agreement shall commence on February 1, 2003 (the "Commencement Date") and
will expire on January 31, 2004 unless sooner terminated as provided herein. Tenant will operate its business upon the
Premises throughout the Term. Tenant agrees that Tenant's rights under this Agreement may be terminated upon 30 day's
written notice from Landlord in Landlord's sole and absolute discretion and without cause.
3. Use. Tenant shall use the Premises during the Term for the sole purpose of displaying and selling (subject to the
approval of Landlord) to the public at retail Please see attached Addendum "A" and for no other use or purpose.
4. Securitv Deaosit. On or before the Commencement Date, Tenant shall deposit with Landlord a Security Deposit
for full performance of all Tenant's obligations under the Agreement in the amount of N/ADollars ($N/A). Under no
circumstances whatsoever shall the Security Deposit be deemed to constitute payment of any portion of Base Rent,
Percentage Rent or any other sum due to Landlord. In the event of cancellation by Tenant prior to the Commencement Date
or expiration date, Landlord shall retain the Security Deposit. This deposit shall not be in lieu of Landlord's other remedies
under this Agreement or at law, and acceptance by Landlord of such charge shall not preclude Landlord from seeking any
other available remedy.
�C
Qs4xchanges and Refund Policv. Tenant shall be required to exchange or refund all merchandise with receipt, to
customer within s from the purchase date. Tenant shall not limit the return of merchandise to exchanges or
enchant credits, and "Exchanges imilar signs are not permitted. In the event Tenant violates any provisions of
the exchange/refund policy, Landlord shall be entit e W ' e Tenant's security deposit, to remedy any such violations, and
Tenant shall immediately replenish the security deposit to its origina t.
6. Fees. Tenant shall pay to Landlord the following Fees for Tenant's use of the Premises, the sum of $1.00 for the
term total of this lease agreement Unless otherwise provided herein, all fees due Landlord pursuant to this Agreement shall
be paid in advance on or before the first day of each calendar month during the Term by Tenant by Certified Check or
Money Order payable to Landlord and sent to the following lock box address: Northgate Mall Associates, Dent 2596-3105,.
Los Angeles, Ca 90084-2596 In the event the Term covers only a portion of any specific calendar month, the Base Rent and
the Other Rent/Contributions for such month, as well as the base sales dollar amount(s) provided in Paragraph 7 below, shall
be prorated by multiplying such amounts by a fraction, the numerator of which is the number of days in such calendar month
which fall within the Term and the denominator which is 30.
Payment Schedule: Fees shall be allocated and billed yearly
zbe i 9paRW i911;ftW*for Landlord accounting purposes ff:Kxa`Il6as follows:
Payment Marketing
Dates PerTerm Min Rent CAM RTAX Fund Cart Rental Fee
02/01103- $1.00 $1.00 -0- -0- -0- -0-
01/031/04
The fees noted below are in addition to those noted in paragraph 6 and will not be included with any % rent
calculation. These fees will cover any miscellaneous fees for visual merchandising, utility, application fees etc.
Payment Due Per Term Fee Description
Revised 11/6/02
p
7. Percentage Rent. Tenant shall pay to Landlord, as "Percentage Rent," an amount equal to N/A% of the excess
of all gross sales and revenues (as hereinafter defined) made at the Premises during each calendar month during the Term
over base sales of $N/A. Percentage Rent shall be due and payable for each month on or before the 15th day of the
following calendar month during the Term (and within 15 days after the end of the Term) and delivered to the Landlord.
IfBreaknoint changes during the term olease note here
From to
% of the excess of all gross sales and revenues made at the Premises during the term over base sales of $
per month
From to
% of the excess of all gross sales and revenues made at the Premises during the term over base sales of $
per month
From to
% of the excess of all gross sales and revenues made at the Premises during the term over base sales of $
per month
From to
% of the excess of all gross sales and revenues made at the Premises during the term over base sales of $
per month
8. Utilities. In the event electricity and/or any other utility is separately metered to the Premises, Tenant shall
solely be responsible for contracting for such separately metered utility and shall pay all costs directly to the utility supplier.
Tenant shall be solely responsible for using any and all utilities in a safe and hazardless manner, complying in all respects
with applicable codes and ordinances.
Plans and Specifications. Tenant shall perform, at Tenant's sole cost and expense, any and all refurbishing to
#IV/rcmises ecessary to bring the Premises into an appropriate operating condition, all in accordance with architectural
and construction p and other data approved by Landlord. Tenant agrees to submit for Landlord's approval all such
architectural and construc ' plans and other data not later than fifteen (15) days from the date of this Agreement. Upon
approval by Landlord of such p and data, Tenant shall commence and diligently prosecute to completion the construction
and installation of Tenant's improve s in the Premises strictly in accordance with such approved plans and data. All
store signage must be approved by Landlo rior to installation by authorized sign company or installation contractor..
Tenant must have storefront signage installed prior tore opening.
No changes, modifications or alterations may be made �impr
plans or other data without the prior written
consent of Landlord. In the event Tenant's improvements have nocted in strict accordance with said approved
plans, Tenant, upon Landlord's request, shall immediately removments and other personal property from the
Premises and this Agreement shall thereon immediately terminate. In such even-t,11,andlord may recover from Tenant the
unpaid rent which would have been earned after termination and any other amount neces to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations under this Agreement.
Upon the expiration or earlier termination of this Agreement, Landlord shall have the option, whiRch option may be
exercised in Landlord's sole and absolute discretion, to require Tenant to either (i) quit and surrender the Premis�ith all
improvements thereon or (ii) remove all Tenant's improvements from the Premises and take all steps necessary to restore -the`
Premises to its condition on the date hereof.
1 echanirs' Liens. Tenant agrees not to permit or cause any mechanic's lien to be filed against the Premises or
SnheCenter by reason of any ws;k,,labor, services or material performed at or furnished to the Premises, to Tenant, or to
one holding the Premises through or under thZ-T-en$n±- Nothing in this Agreement shall be construed as consent on the
of the Landlord to subject the Landlord's estate in the Premises to any uiud'havin's liens or liability under the mechanic's
lien laws in the state in which the Center is located.
IJ,Sales Resort. Within 5 days after the end of each calendar month during the Tenn, Tenant shall submit to
a
andlord all gr ales and revenues during the month just ended certified as true and correct signed by Tenant. Sales can
e mailed to: Landlo r The Mall at Northeate c/o Macerich Comaanv. Attn: Accounts Receivable. P.O. Box
188, Santa Monica, C7 , 90406-2188 or faxed to: (310) 395-5193 or emailed to:
ortheate salesrenortinaQmacerich.co . or purposes of this Agreement, "gross sales and revenues" shall mean the
selling price of all goods, merchandise and services leased, licensed or delivered in, upon and/or from the Premises by
Tenant, its subtenants, licensees and/or concessionaires ora ther person, firm or entity; provided, however, that gross
sales and revenues shall exclude sales tax specifically paid by custome art of the sales price and collected by Tenant to
be paid to the taxing authority. In the event Tenant fails to deliver such reportu h date, in addition to all other rights and
remedies of Landlord, Tenant shall pay Landlord a late charge of Fifty Dollars ($50. _ich shall become immediately
due and payable. Such_• charge shall not be in lieu of Landlord's other remedies under this wement or at law, and
acceptance by Landlord of such charge shall not preclude Landlord from seeking any other available remedy --Land lord will
have the right from time to time, upon three (3) days written notice, to audit or examine all of Tenant's sales record3- any
2
Revised 11/6/02
deficiency in the payment of the Percentage Rent is disclosed by such audit, Tenant shall immediately pay such deficiency to
Landlord plus the cost of the Landlord s audit.
12. Late Charges. If Tenant shall fail to make any payment of Security Deposit, Fees (as noted in paragraph 6),
Percentage Rent, or any other charge to be paid hereunder when due, Tenant shall pay Landlord a late charge equal to Fifty
dollars 50.00. Payment will be due within 3 days of written notice of default. If default continues for a period in excess of
five (5) days, Tenant in addition shall pay Landlord interest on the amounts owing (until paid) at a rate equal to the lesser of:
(i) twelve percent (12%) per annum; or (ii) the maximum legal rate. These late charges shall not be in lieu of Landlord's
other remedies under this Agreement or at law, and acceptance by Landlord of such charges shall not preclude Landlord
from seeking any other available remedy.
13. Duty to Maintain. Tenant shall, at its sole cost and expense, keep the Premises and all equipment, fixtures and
plate glass therein in a clean and wholesome condition, in good order and repair, free and clear of litter and debris and free
from any objectionable noises, odors or nuisances and in compliance with all health and police regulations, in all respects
and at all times. In the event the Premises involve a kiosk or are otherwise within the Common Area, Tenant's duty to
maintain as provided by the foregoing sentence shall also apply to the Common Area within a radius of twenty feet (20') of
the Premises. Tenant agrees to dispose of litter and debris only in receptacles designated by Landlord. If Tenant refuses or
neglects to make repairs or perform maintenance as required hereby, Landlord shall have the right (without notice in
emergency situations and upon reasonable notice in other situations), but not the obligation, to make such repairs or perform
such maintenance and to bill Tenant for the reasonable costs thereof, which costs shall be immediately payable by Tenant to
Landlord as additional rent.
14. Compliance with Laws. Tenant shall, at its sole cost and expense, comply with all laws, ordinances, orders,
rules and regulations (state, federal, municipal or any other agency having or claiming jurisdiction) related to the use,
occupancy or condition of the Premises. All business licenses and other applicable permits and licenses shall be secured and
paid for by Tenant.
15. Manner of Operation. At all times, Tenant shall conduct its activities in a tasteful manner in accordance with
Landlord's rules and regulations for the Center as described in Paragraph 18 of this Agreement and in a manner that will
compliment the aesthetics of the Premises and the Center.
16. Insurance. Tenant, at its sole cost and expense, shall obtain and keep in full force and effect during the Term a
policy of comprehensive general liability and special form (all-risk) insurance, including without limitation broad form
property damage liability and personal injury liability coverage, insuring Landlord and Tenant against any liability arising
out of the use or occupancy of the Premises and all areas appurtenant thereto. Said insurance shall at all times be in an
amount of not less than One Million Dollars ($1,000,000.00) combined each occurrence in the aggregate for personal and
bodily injury and property damage. All such insurance shall specifically insure the performance by Tenant of the indemnity
agreement as to liability for injury to or death of persons and injury or damage to property contained in Paragraph 17 of this
Agreement. Said policy shall also name as additional insured's Landlord, the Center's management company and the
Center's Merchants' Association and all other entities requested by Landlord. Tenant shall also obtain and keep in full force
and effect during the term of this Agreement, Workers' Compensation Insurance as required by the laws of the State in
which the Center is located. A certificate evidencing the coverage required under this Paragraph 16 shall be delivered to
Landlord not less than fifteen (15) days prior to Tenant entering upon the Center. Such certificate shall contain a provision
that Landlord and Tenant shall be given a minimum of ten (10) days written notice by the insurer prior to cancellation,
termination or material change in such insurance. ** City of San Rafael is self—insured.
17. Indemnity. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all loss, cost,
damage, injury or expense arising out of or in any way related to claims of injury to or death of persons, or damage to
property, occurring or resulting directly or indirectly from the use or occupancy of the Premises or activities of Tenant in or
about the Premises or Center, except to the extent such claims arise solely from the gross negligence of Landlord; such
indemnity shall include, without limitation, the obligation to provide all costs of defense against such claims.
18. Rules and Regulations. Tenant agrees to comply with (and cause its officers, employees, contractors, invitees
and all others doing business with Tenant, to comply with) all rules and regulations of general applicability regarding the
Center as may be established by Landlord at any time and from time to time during the Term, including without limitation
rules and regulations pertaining to signs. See exhibit "B" attached for detailed operating rules.
19. Hours of Operation. Tenant shall be open for business at the Premises during all regular Center hours, and at
such other hours as a majority of the other businesses operating at the Center are open. Accordingly, with respect to any day
during the Term that Tenant shall fail to be open for all the hours provided for above, Tenant shall pay a charge of Fifty
Dollars ($50.00), which shall become immediately due and payable, within 3 days of written notice of default. Such charge
shall not be in lieu of Landlord's other remedies under this Agreement or at law, and acceptance by Landlord of such charge
shall not preclude Landlord from seeking any other available remedy. Please see #19 Attachment
20. Assignment. This Agreement, and the rights granted hereunder, are personal to Tenant and are non -assignable
and non -transferable by Tenant. Any attempted assignment or other transfer of this Agreement, or sublease of any rights
hereunder, by Tenant (collectively, "assign" and/or an "assignment") shall be null and void, have no effect and confer no
rights upon any third party. Subject to the foregoing, the terms and conditions of this Agreement shall be binding upon and
inure to the benefit of Landlord and Tenant and their respective successors, assigns, heirs, administrators, executors and
representatives.
21. Default. The occurrence of any of the following shall constitute an event of default on the part of Tenant:
Revised 11/6/02
19. Operation of Hours: Tenant shall be open for business on the premises with such
hours agreed to by the Tenant and Landlord. Landlord shall pay the sum of $5,000 in
monthly installments of $416.67 in consideration of Tenant providing city staff to be on
duty during the agreed upon hours by Tenant and Landlord.
i. Any failure by Tenant to pay any sums due hereunder if such failure continues for a period of time in
excess of three (3) days after notice from Landlord to Tenant (which notice shall be in lieu of, and not in addition to, any
notice required by law);
ii. Any failure by Tenant to perforin any other of the terms, conditions, or covenants of this Agreement to
be observed or performed by Tenant if such failure continues for a period of time in excess of 3 days after notice from
Landlord to Tenant (which notice shall be in lieu of, and not in addition to, any notice required by law);
iii. If (1) Tenant should institute any proceedings under the Bankruptcy Act, as such now exists or under
any amendments, reenactments, or replacements thereof that may hereinafter be enacted, or under any other act relating to
the subject of insolvency or bankruptcy, whether in such proceeding Tenant seeks to be adjudicated a bankrupt, or to be
discharged of its debts or to effect a plan of liquidation, composition or reorganization; or (2) any involuntary proceeding
should be filed against Tenant under any such bankruptcy laws; or (3)Tenant should become insolvent or be adjudicated a
bankrupt in any court of competent jurisdiction, or a receiver or trustee should be appointed of Tenant's property, or Tenant
should make assignment for the benefit of creditors; or (4) there should occur the attachment, execution, or other judicial
seizure of substantially all of Tenant's assets located at the Premises, or if a writ of attachment is executed on this
Agreement; or (5) this Agreement, or any interest therein or to the Premises, should otherwise by operation of law dissolve or
pass to any person or persons other than Tenant;
iv. Tenant's abandonment of the Premises; in which case remainder of Fees for the term of the agreement
are immediately due and payable; or
v. Tenant's attempt to "assign" this Agreement or any of Tenant's rights hereunder contrary to Paragraph
20 of this Agreement.
If an event of default occurs, then Landlord, in addition to any other rights or remedies it may have at law or in equity or
under this Agreement, shall have the immediate right to unilaterally terminate this Agreement and to remove all persons and
property from the Premises (such property may be removed and stored in a public warehouse or elsewhere at the cost of and
for the account of Tenant), all without service of notice or resort to legal process and without being deemed guilty of
trespass, or becoming liable for any loss or damage which may be occasioned thereby.
22. Termination. Upon the expiration or earlier tennination of this Agreement for any reason whatsoever, Tenant
shall leave the Premises in a neat and broom clean condition, free of debris and in as good condition as when the Premises
were originally delivered to Tenant, ordinary wear and tear and casualty damage excepted, and shall promptly remove all
personal property placed on the Premises by or on behalf of Tenant. Tenant hereby authorizes and irrevocably appoints
Landlord as its true and lawful attorney-in-fact to remove all such personal property upon Tenant's failure to remove all
personal property from the Center within three (3) days after the expiration or earlier termination of this Agreement. Tenant
hereby waives any and all loss or damage thereto arising from the exercise of this power, and covenants to indemnify and
hold harmless Landlord from and against any costs, claims, liens, damages or attorney fees, costs and disbursements arising
from such removal.
23. Suitability of Premises. Tenant hereby accepts the Premises in an "AS IS" condition and Landlord expressly
disclaims any warranty or representation with regard to the condition, safety, security or suitability of the Center or Premises.
It is understood by Tenant that Landlord does not provide security protection for the Premises and/or Tenant's personal
property.
24. Landlord's Access to Premises. Tenant agrees that Landlord, its agents, employees or any person authorized
by Landlord may enter the Premises at reasonable times for the purpose of inspecting its condition, making repairs or
improvements to the Premises or the Center as Landlord may elect (or be required) to make or exhibiting the Premises to
prospective lessees. Landlord agrees not to disturb Tenant's conduct of business during such access except in the case of
emergency.
25. Entire Agreement. This Agreement contains the entire agreement of the parties. Any representations or
modifications concerning this instrument shall be of no force and effect, excepting a subsequent modification in writing
signed by the party to be charged.
26. Notices. All notices required hereunder shall be in writing and may be delivered by personal service to the
other party (in which case such notice shall be deemed delivered as of the day of such delivery), or sent postage prepaid by
certified mail, return receipt requested (in which case such notice shall be deemed delivered as of the third day after the date
of such mailing), to the address set forth below each party's signature block.
27. Severabilitv. If any term or provision of this Agreement or any portion of a teen or provision hereof or the
application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement shall not be affected thereby, and each term and provision of this Agreement and each portion thereof shall be
valid and be enforced to the fullest extent permitted by law.
28. Captions and Terms. The captions and section numbers appearing in the Agreement are for convenience only
and are not a part of the Agreement and do not in any way limit, amplify, define, construe or describe the scope or intent of
the terms and provisions of this Agreement, nor in any way affect this Agreement.
29. Hazardous Materials. Tenant shall at all times in all respects comply with all federal, state and local laws,
ordinances and regulations relating to industrial hygiene, environmental protection or the use, analysis, generation,
manufacture, storage, presence, disposal or transportation of petroleum products or by-products, or hazardous or toxic
4
Revised 11/6/02
substances, materials or waste which is or becomes regulated by any local, state or federal agency (collectively, "Hazardous
Materials"). Tenant shall not cause or permit any Hazardous Materials to be brought upon, kept or used in or about the
Premises without the prior written consent of Landlord, which consent may be withheld in Landlord's sole and absolute
discretion.
30. Waste/Trash Removal. Without limiting the generality of the foregoing paragraph, in the event waste and
or trash removal for the Premises is separately provided to the Premises, Tenant shall be solely responsible to pay all
costs directly to the service provider as designated by the Landlord.
31. Unauthorized Communications Devices., Tenant shall not install or operate (excluding cellular phones or
pagers) or permit the installation or operation, at the Center or within the premises of any device, equipment of facility for
transmitting, receiving, relaying or amplifying communications signals used or operated as a part of a telecommunications
network or global positioning system, or otherwise emitting or receiving signals, frequencies, video date or voice
communications, including, without limitation, any dish, panel, antenna, satellite or cellular communications equipment,
amplifiers, microcells, picocells or other similar devices or equipment (collectively, "Communications Devices"). If Tenant
fails to comply with the provisions of this Section 31, then in addition to Landlord's other remedies under this Lease,
Landlord shall have the right to collect from Tenant in addition to to other Rent, a sum equal to twice the Fixed Minimum
Rent (prorated on a daily basis) for each full or partial day Tenant fails to comply with the provisions of this Section 31.
Tenant acknowledges that its failure to comply with this Section 31 will cause Landlord to suffer damages, which will be
difficult to ascertain, and that the sum payable by Tenant under this section 31 represents a fair estimate of such damages.
The preceding prohibition shall not preclude Tenant from the use of any of the following, if in each such case such
telephones, cellular phones, computers and other permitted devices are used only by Tenant and used only in the ordinary
course of Tenant's business at the Premises for the Permitted Use: (a) Telephones and computers connected directly to
telephone lines provided to the Premises, (b) cellular telephones using cellular transmission stations outside the Center of (c)
low-key cellular telephones used only for internal communications within the Premises or to a station within the Premises
when the station is connected to a telephone line provided to the Premises.
32. Time of the Essence: Nonwaiver. Time is of the essence of each and every provision of this Agreement. The
waiver by Landlord in any instance of any term, covenant or condition herein contained shall not be deemed to be a waiver
of such tenn, covenant or condition in any other instance and shall not be deemed a waiver of Landlord's rights and remedies
with respect to any subsequent breach of the same or any other term, covenant or condition herein contained. The
subsequent acceptance of Base Rent, Percentage Rent, Other Rent/Contribution or any other sum hereunder by Landlord
shall not be deemed to be a waiver of any preceding default by Tenant of any term, covenant or condition of this Agreement
regardless of Landlord's knowledge of such preceding default at the time of the acceptance of such sum.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written it is understood
that all terns and conditions of this lease are confidential.
Revised 11/6/02
Landlord: Tenant:
Northgate Mall Associates City of San Rafael
By: Macerich Management Company or dba: Citv Hall at The Mall
Macerich Property Management Company,
LLC, a Delaware limited liability company By:
(as the case may be), its Managing Agent
By:
Name: Jennifer is ne
Title: Sr. Mer., Proaerty Manaeer ss
Name(s): Rod Gould
Address: 5800 Northeate Mall ---7
San Rafael, Ca 94903
Phone: 415-479-5956
Date: Title: Citv Manner
Address: 1400 Fifth Avenue
San Rafael. CA 94915-1560
Phone: (415) 485-3070
Fax: (415) 459-2242
Date: // 5).7 "b
SSN or Federal Employer Identification
Number: 9440383-9
(Note: Must be supplied or Landlord will
not enter into this agreement.)
ATTEST:
J E A &t LEb J T, City e r k
6
Revised 11/6/02
EXHIBIT B
OPERATING RULES
Tenant covenants and agrees that Tenant will comply with the rules and regulations set by Landlord
from time to time for the operation of the Center, including but not limited to those described in the
Specialty Leasing Operations manuals and the following:
1. Tenant shall use and occupy the Premises in a careful, safe and proper manner and shall keep the Premises
in a clean and safe condition.
2. All loading and unloading of goods shall be done only at such time, in the area and through the entrances
designated for such purpose by Landlord.
3. Set up or takedown of cart display, or delivery of boxed merchandise must be accomplished before or after
Center hours.
4. All garbage and refuse shall be kept in the interior of the cart or kiosk storage and shall be placed for
collection in the malls main trash receptacles usually located at various dock entrances.
5. No loudspeakers, televisions, photographs, radio, flashing lights or other devices shall be used without the
prior written consent of the Landlord.
6. Tenant shall not operate any equipment, which emits an odor deemed offensive in nature, with the
exception of soap and potpourri odors.
7. Tenant and or its employees shall not distribute any handbills or other advertising material in the Center or
on automobiles parked in the parking areas.
8. All premises must be adequately stocked with the merchandise permitted to be sold as detailed in the use
clause of the Agreement and be kept neat in appearance and manned during all operating hours. Tenant is
required to accept mall Gift Certificates as a form of payment for merchandise sold.
9. Any signage must be approved by Center management and be professionally printed. A maximum of two
(2) signs are allowed per cart/kiosk and may only be attached to the cart or merchandise display.
10. Tenant shall, within fourteen (14) days prior to the commencement date, provide Landlord with a visual
merchandising plan. If using a visual merchandiser, it is Tenants responsibility to contact the visual
merchandiser and meet to discuss details regarding set up. All Tenant supplied fixtures must be
professionally made. Any exceptions to the above display regulations must receive prior approval from
Center management.
H. Cart & kiosk tenants and their employees may not eat, smoke or drink at their operation at any time.
12. Fraternizing with friends and family or reading books while working the cart or kiosk is unprofessional
behavior and discourages business and therefore, is unacceptable.
13. Tenant and Tenant's employees shall not park their motor vehicles in those portions of the parking area
designed for customer parking by Landlord. If Tenant or Tenant's employees shall park in portions of the
parking area designate for customer parking, Center management or Security may attach violation stickers
or notices to such cars and have any such vehicle removed at employee's expense.
14. Storage of excess inventory, security curtain, trash cans and miscellaneous supplies or personal belongings
must be inside the cart or kiosk storage areas or storage areas, which can be leased from the Center's
management (available on a limited bases).
15. Tenant shall, at ALL TIMES offer customers a satisfactory return and/or exchange policy on all purchases
within thirty (30) days with receipt and merchandise. In the event Tenant cannot satisfy customer with an
exchange, Tenant shall be required to fully refund to customer the complete purchase price in the form of
payment made the to Tenant. This policy shall not apply if due to customer negligence. This policy is
enforceable to the extent that it does not otherwise contradict applicable City, State or Federal safety,
hygiene or food laws.
16. If Tenant should fail to comply with any rule or regulation set forth in the Agreement or these Operating
Rules, and Landlord shall become involved in attempting to enforce compliance by Tenant, Tenant agrees
to pay Landlord a $50.00 administrative fee, per each occurrence, upon demand. The payment of an
administrative fee by Tenant shall not waive any other remedies available to Landlord under this
Agreement or by law.
17. Failure to comply with any of these Operating Rules will result in termination of the Agreement.
18. Items 3,4,11,12, and 14 apply to common area cart and kiosk units only.
Revised 11/6/02