No preview available
HomeMy WebLinkAboutED RA Rice Drive Lease ExtensionCITY OF AGENDA ITEM NO.: 5 SAN RAFAEL MEETING DATE: July 20, 2009 San Rafael Redevelopment Agency Agenda Department: Redevelopment Prepared by: Initials: Nancy Mackle, Economic Development Director Executive Director SUBJECT: A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN RAFAEL AUTHORIZING THE EXTENSION OF A LEASE BETWEEN THE AGENCY AND R.A.B. MOTORS, INC. FOR THE PROPERTY LOCATED AT RICE DRIVE AND FRANCISCO BLVD. WEST (APN 013-041-44) RECOMMENDATION: Staff recommends that the Agency adopt the attached resolution approving an extension of a lease agreement with RAB Motors. Section 33431 of the Community Redevelopment Law requires the Agency and City Council to hold a noticed public hearing prior to leasing Agency property. BACKGROUND: In 2004, the Agency conducted interviews with local businesses as part of the business retention program. At that time, auto dealers expressed a need for more new car storage and display space. As automobile sales represent a large portion of the city's sales tax revenue, economic development staff evaluated underutilized properties owned by the City, Agency, other public entities such as Golden Gate Transit and privately owned parcels for temporary storage of new automobiles. This initiative resulted in additional storage space for dealers in the East and West Francisco Blvd. areas, including this parcel located at the corner of Rice Drive and West Francisco Blvd. The parcel is a 7,000 square foot remnant parcel located. between the State owned parcel on West Francisco and a privately owned parcel. In order to lease the property in 2004, Agency staff issued a Request for Proposals to the adjacent property owners and all auto dealers with a business license from the City of San Rafael. Two bids were received. The Agency conducted a public hearing pursuant to CA Health and Safety Code Section 33455. At the conclusion of the public hearing, the Agency approved leasing the property to R.A.B. Motors, the highest bidder, for $2,770 per month for five years. The lease expires in October 2009. FOR AGENCY SECRETARY ONLY File No.: Agency Meeting: Disposition: _ Redevelopment Agency Public Hearing 7/20/09 Page 2 ANALYSIS: As currently configured, the parcel is not large enough to support a building. The parcel may be buildable when combined with the adjacent CAL TRANS and Bacci property. CAL TRANS staff has indicated that the disposition of their property will not be decided until the widening project has been completed and the property declared surplus. Agency staff believes auto storage and display is the best use for the property at this time as it will not preclude future consolidation and development of the parcels for more appropriate highway commercial use. The interim use provides some income while CAL TRANS is undertaking the disposition analysis and allows time for the real estate market to recover. The San Rafael Zoning Administrator approved a use permit and environmental and design review permit on September 9, 2004 with an expiration date of October 2009. The Economic Development staff requests that Agency request the Zoning Administrator to continue the existing use permit on the site to concur with the new lease and extension periods. FISCAL IMPACT: In 2004, RAB Motors was the highest bidder with a proposed a rental payment of $2,770 per month. The lease payment will remain the same during the lease extension. The Agency has netted approximately $95,000 during the term of the current lease inclusive of the approximately $3,000 for spent for survey and advertising costs. Prior to this lease, the Agency had not received any rent on the property. OPTIONS: Staff recommends the Agency extend the lease with R.A. B. Motors for an additional one year term with three additional one year extensions and no other changes to the lease terns. The Agency Board could reject the lease extension but we do not recommend this course of action because; a) the size of the property limits alternative uses; b) the Agency would lose the minimal revenue it is currently receiving; and c) cancelling the lease would negatively impact the auto dealers, a significant source of sales tax for the City. ACTION REQUIRED: Adopt the attached resolution approving the lease extension and extension of the use permit to concur with the time period of the lease extension and authorize the Economic Development Director and Agency Counsel to undertake all actions necessary to effectuate the lease extension. ATTACHMENTS: A: Map B: Current Lease C: Proposed Lease Extension D: Public Hearing Advertisement SAN RAFAEL REDEVELOPMENT AGENCY RESOLUTION NO. 2009 - MOVED BY: MEMBER SECONDED BY: MEMBER A RESOLUTION APPROVING THE CONTINUATION OF A LEASE BETWEEN THE SAN RAFAEL REDEVELOPMENT AGENCY AND R.A.B. MOTORS, INC. FOR THE PROPERTY LOCATED AT RICE DRIVE AND FRANCISCO BLVD WEST (APN 013-041-44) PURSUANT TO HEALTH AND SAFETY CODE SECTION 33430 (one-year lease with three one-year extensions) WHEREAS, the City Council of the City of San Rafael (the "City Council") adopted the Redevelopment Plan for the Central San Rafael Redevelopment Project Area on November 20, 1972, by Ordinance No. 1079, as amended, affecting the Central San Rafael Redevelopment Project Area (the 'Project Area"); and WHEREAS, the City Council adopted the Third Amended and Restated Redevelopment Plan for the Central San Rafael Redevelopment Project Area (the "Restated Redevelopment Plan") on August 19, 2002, by Ordinance No. 1786; amended on March 1, 2004 by Ordinance 1822; and WHEREAS, the San Rafael Redevelopment Agency (the "Agency") is vested with responsibility pursuant to the Community Redevelopment Law (Part I of Division 24 of the Health and Safety Code of the State of California) (the "CRL") to implement the Restated Redevelopment Plan in the Project Area; and WHEREAS, the Agency entered into a lease with R.A.B. Motors on the Agency property located at Rice Drive and Francisco Boulevard West (APN 013-041-44) ("the Lease") in 2004 after conducting a noticed public hearing; and WHEREAS, the Lease is set to expire on September 30, 2009. WHEREAS, in 2004, the San Rafael Zoning Administrator approved a use permit for temporary auto storage on the property that will expire on September 9, 2009; and WHEREAS, Tenant desires to apply to the City of San Rafael to continue the temporary auto storage use of the leased property and Agency and Tenant desire to extend the Lease for a limited period of time for that purpose; and WHEREAS, Section 33431 of the CRL allows the Agency to approve such lease extension after conducting a noticed public hearing; and WHEREAS, notice of the public hearing was advertised in the Marin Independent Journal on July 6 and July 13, 2009; and WHEREAS, on July 20, 2009, the Agency conducted a duly noticed public hearing pursuant to Section 33431 of the CRL to obtain and consider public testimony regarding extending the Lease; and NOW, THEREFORE, IT IS HEREBY RESOLVED as follows: 1. All of the above recitals are true and correct, and the Agency has based the findings and actions set forth in this Resolution, in part, on such recitals. 2. The Agency hereby consents to extending the Lease for an additional term of one year beginning on October 1, 2009, and for three further one-year extensions upon request by the Tenant and written approval by the Economic Development Director (the "Lease Extension"). The Lease Extension shall be in a form approved by Agency Counsel, and shall provide that all other terms of the Lease shall remain in effect and unmodified. The Economic Development Director is hereby authorized to execute the Lease Extension as finalized by Agency Counsel, and to take any and all other actions required to effectuate the Lease Extension. 3. The Agency supports the continued use of the Leased property for temporary auto storage during the term of the Lease Extension and authorizes the Economic Development Director to work with Tenant to obtain approval by the Zoning Administrator of a new or extended use permit for that use during the term of the Lease Extension. This Resolution shall take immediate effect from and after its passage and approval. I, ESTHER BEIRNE, Agency Secretary of the San Rafael Redevelopment Agency, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a special joint meeting of the San Rafael City Council and the San Rafael Redevelopment Agency held on the twentieth day of July 2009, by the following vote: AYES: MEMBERS: NOES: MEMBERS: ABSENT: MEMBERS: 2 Esther Beime, Agency Secretary yea§rDom � . . . . \�\ © E . Ej ��. NO � \Q PI\ ` � \� \ \ � � LEASE THIS LEASE ("Lease") is entered into as of this 22,r'r day of a vrt -e , 2004 by and between the San Rafael Redevelopment Agency ("Agency") as the landlord and RAB Motors, Inc. ("Tenant") as the tenant, with reference to the following facts: RECITALS A. The Agency owns certain real property located in the San Rafael Redevelopment Agency, Marin County, California, located at Rice Drive and West Francisco Boulevard and more particularly described in the attached Exhibit A incorporated herein by reference ("Property"). B. The Agency wishes to lease the Property to the Tenant and the Tenant wishes to lease the Property from the Agency. NOW, THEREFORE, the parties agree as follows: ARTICLE 1 TERM OF LEASE 0�1�67211 Irt1 Agency, for and in consideration of the covenants and agreements to be kept and performed by the Tenant, does now hereby lease the Property to Tenant, and in consideration thereof, Tenant does take, hire and lease the Property from the Agency pursuant to the terms of this Lease. The term of this Lease shall commence on the first of the month following the approval of the Environmental and Design Review Permit and Use Permit by the City of San Rafael Community Development Department and continue on a month-to-month basis for two years until terminated according to the terms of this Lease. This lease may be extended for three one- year periods after the initial lease period. Either party may terminate this Lease by giving at least sixty (60) days prior written notice of termination. ATTACHMENT B � P C A-0 , 0 R1 C" IF, r s ARTICLE 2 RENT P 1?4l#q The rental period will commence on the first day of the month following the finalization of the building permit by the City of San Rafael Building Inspector. On or before the first day of each month during the rental period of this Lease, Tenant shall pay to Agency as rent, without offset or deduction of any kind, the amount of $ 2,770. No invoice or other notice shall be issued by the Agency or be required to be issued for payment of rent. 2.2 Interest. If any rent is not paid within fifteen (15) days following the date it is due, Tenant shall also pay interest on the unpaid rent from the date due until paid at an annual rate equal to the Bank of America prime or reference rate plus 2%. mi0B. of c _ • - Should the Tenant, with consent of the Agency, express or implied, hold over possession of the Property after the term hereof, such holding shall be deemed a tenancy from month to month, at a monthly rental of twice the rent stated in Section 2.1 above payable in advance, on or before the first day of each month. 2.4 Additional Rent, In addition to the rent specified in Section 2.1, Tenant shall also pay when due as additional rent all other amounts Tenant is required to pay under this Lease. ARTICLE 3 USE OF PREMISES Tenant may use the Property, in conjunction with the immediately adjacent parcel (APN 013-041-54), for automobile storage and display as specified in the Use Permit issued by the San Rafael Community Development Department. Tenant must comply with the terms of the use permit issued by the Community Development Department of San Rafael. No auto repairs, washing, or detailing shall be permitted on the site. 3.2 Restriction on Waste, h1ijisance R Hazards, The Tenant will not allow any waste, nuisance, or hazard to occur or exist on the Property. There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, handicap, marital status, sexual orientation, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the improvements thereon, or any part thereof, and the Tenant or any person claiming under or through it, shall not establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the Property or the improvements thereon, or any part thereof. The Tenant shall refrain from restricting the rental, sale or lease of the Property of the improvements thereon, or any portion thereof, on the basis of race, color, creed, religion, sex, age handicap, marital status, sexual orientation, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or non -segregation clauses: (a) In deeds: "The grantee herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, handicap, marital status, sexual orientation, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises herein conveyed, nor shall the grantee itself, or any person claiming or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." (b) In leases and subleases: "The lessee herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through it, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, handicap, marital status, sexual orientation, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased, nor shall the lease itself, or any person claiming under or through it, establish or permit any such practice or practices or discrimination or segregation with reference to the selection, location, number, use or occupancy or tenants, lessees, subtenants, sub lessees or vendees in the premises herein leased." (c) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, handicap, marital status, sexual orientation, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee itself, of any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the premises." ARTICLE 4 LAWS, TAXES AND UTILITIES The Tenant shall comply with all local, state, and federal laws and regulations including those laws whether existing or new which relate to use of the Property, the use, handling, treatment, or disposal of toxic or hazardous substances or relating to the control of rodents, other vermin, or noxious weeds on the Property. In no event shall the Tenant dispose or allow the disposal of any substance on the Property that has hazardous or toxic qualities. This Section 4.1 shall not prevent Tenant from contesting the application of any local, state or federal law, regulation or order or from refraining from compliance with any such local, state or federal law, regulation or order pending the determination of the Tenant's contest of the application thereof. The Tenant shall comply with each and every requirement of all policies of public liability, fire and other insurance that at any time may be in force with respect to the Property or the improvements thereon. "Y\ The Tenant shall pay all taxes; assessments, fees or other government charges levied or assessed that become due and payable during the term hereof against the Property and any and all improvements that may be constructed by or for Tenant on the Property. The Tenant shall have the right, in the manner provided by law, to contest any tax or the amount of any tax it is required to pay pursuant to this Section or to seek a reduction in the assessed valuation of the Property. Tenant acknowledges and agrees that the property is exempt from property tax and that Tenant may be taxed on its possessory interest in the property. The Tenant will pay and discharge all bills for labor and material furnished during the term hereof for use upon the Property and be solely liable and shall hold the Agency harmless from liability for any and all claims, demands and causes of action that are brought arising out of or in any way connected with any claims or liens for labor or materials or similar action. The Tenant shall have the right to contest any bill for labor or materials or the amount thereof of any claims or liens for labor or materials or similar action, and shall have the right to refrain from the payment of any such bill, claim or lien pending the determination of the Tenant's obligation to pay such bill, claim or lien so long as the Agency does not incur apy obligation or liability to pay the claim or lien. If the Tenant, in violation of the provisions of this Lease, shall fail to pay and to discharge any amount it is required to pay pursuant to Section 4.3 or Section 4.4, the Agency may (but shall not be obligated to) pay or discharge such amounts, and the amount paid by the Agency and the amount of all costs, expenses, interest and penalties connected therewith, including attorney's fees, together with interest at the rate set forth in Section 2.4 above, shall be deemed to be and shall, upon demand of the Agency, be payable by the Tenant as additional rent. ARTICLE 5 OWNERSHIP OF IMPROVEMENTS, STATUS OF IMPROVEMENTS AND SUBTENANTS Any improvements existing on the Property as of the commencement of this Lease or placed on the Property following the commencement of this Lease shall be the property of the Tenant. At the expiration or other termination of this Lease, the Tenant shall, at the request of the Agency or City, remove from the Property at Tenant's sole cost any improvements thereon; Tenant shall be permitted to remove any movable furniture, equipment or trade fixtures in any event. Any improvements remaining on the Property at the expiration or other termination of the Lease shall become the property of the Agency. 5.2 Constmction of Tm? rovementg at Tenant Rick, Tenant acknowledges and understands that this Lease may be terminated by the Agency pursuant to Section 1.3 at any time and prior to the end of the term. In such event, Tenant shall have no right to compensation or payment for any improvements Tenant makes on the Property pursuant to this Lease. ARTICLE 6 ASSIGNMENT, SUBLETTING AND TRANSFERS The Tenant shall be allowed to sublease the Property for a use only as allowed by the use permit issued by the San Rafael Community Development Department. Tenants shall not make or attempt any total or partial sale, transfer, conveyance or assignment of this Lease. Tenant acknowledges and understands that the Property has been acquired by the Agency for a public use, that Tenant will not be entitled to payments or assistance under the Relocation Law (Government Code Sections 7260 cL seq.) in the event that this Lease expires or is otherwise terminated and Tenant (or any subtenant) is required to relocate from the Property, and that such termination may occur earlier than otherwise expected because of the Agency's development of the Property for the planned public use. ARTICLE 7 ENCUMBRANCE OF LEASEHOLD ESTATE '. . .�. . u..� The Tenant shall not have the right to encumber the leasehold estate created by this Lease or any improvements located on the Property except for any sublease permitted pursuant to Section 6.1. If any such encumbrance is created in violation of the prohibition in this Section 7. 1, it shall in no event constitute a lien or encumbrance on the fee interest in the Property. ARTICLE 8 REPAIRS AND RESTORATION At all times during the term of this Lease, the Tenant shall at the Tenant's own cost and expense, keep and maintain the Property and all improvements now or hereafter appurtenant to the Property in good order and repair and in a safe and clean condition. Should, at any time during the term of this Lease, the buildings or improvements now or hereafter on the Property be substantially damaged or destroyed in whole or in part by fire, the elements or any other cause, Tenant may terminate this Lease by giving written notice thereof within thirty (30) days following the event giving rise to the damage or destruction. A ARTICLE 9 INSURANCE AND INDEMNIFICATION During the term of this Lease Tenant shall maintain liability insurance in an amount not less than $2,000,000 per occurrence and $3,000,000 total liability limit. The required insurance shall be provided under an occurrence form, and the Lessee shall maintain such coverage continuously throughout the Term. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit shall be two times the occurrence limits specified above. Such policy shall be endorsed to name as additional insured the Agency, the City and their respective board members, officers, agents, and employees. All policies and bonds shall be endorsed to provide thirty (30) days prior written notice of cancellation, reduction in coverage, or intent not to renew to the address established for notices to the Agency pursuant to Section 12.3 below. Upon the Agency's request at any time during the Term, the Developer shall provide certificates of insurance, in a form and with insurers reasonable acceptable to the Agency, evidencing compliance with the requirements of this Section. During the lease period prior to the beginning of the rental period and while any other construction work is undertaken on the Property, the tenant and/or its general contractor shall maintain Worker's Compensation insurance, including Employer's Liability coverage, with limits not less than $2,000,000 each accident. The Tenant shall indemnify, defend and hold the Agency, the City of San Rafael, and their respective officers, agents and employees harmless from and against all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including reasonable attorneys' fees arising out of the Tenant's operations which may be imposed upon or incurred by or asserted against the Agency, the City of San Rafael or their respective officers, agents or employees by reason of any of the following occurrences, unless caused by the negligence or willful misconduct of the Agency or their respective officer, agents or employees during the term of this Lease: (a) Any work or thing done in, on the Property and the improvements thereon or any part thereof, including, without limitation, the construction of improvements on the Property by any parry whatsoever other than the City; or (b) Any use, non-use, possession, occupation, condition, operation, maintenance or management of the Property and the improvements thereon or any part thereof; or (c) Any negligence on the part of the Tenant or any of its agents, contractors, servants, employees, subtenants, operation, licensees or invitees; or (d) Any accident, injury or damage to any person or property occurring on the Property and the improvements thereon or any part thereof; or (e) Any failure on the part of the Tenant to perform or comply with any of the terms, provisions, covenants and conditions contained in this Lease to be performed or complied with on its part. hi case any action or proceeding is brought against the Agency, the City of San Rafael or their respective officers, agents and employees by reason of any such claim, the Tenant, upon written notice from the City, shall, at the Tenant's expense, resist or defend such action or proceeding by counsel selected by the Tenant or the Tenant's insurance carrier and acceptable to the Agency or City of San Rafael. ARTICLE 10 DEFAULT 1 11- . -1.1 (a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease: 1. If the Tenant at any time during the tern (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings in law, in equity or before any administrative tribunal which have or might have the effect of preventing the Tenant from complying with the terms of this Lease) shall fail to make payment, when such payment is due, of any payment the Tenant is required to pay pursuant to this Lease and such failure continues for fifteen (15) days following the date it was due. 2. The Tenant fails to observe or perform any of the covenants, agreements or obligations under this Lease and/or the use permit other than those set forth in subsection (a) 1 above and such default is not cured within thirty (30) days after receipt of written notice thereof by the Tenant; or 3. If the Tenant or any one of them shall file a petition in bankruptcy or for reorganization of any arrangement pursuant to any present or future federal bankruptcy act or under any similar federal or state law, or shall be adjudicated a bankrupt or insolvent or shall make an assignment for the benefit of its creditors, or if a petition or answer proposing the adjudication of the Tenant or anyone of them as a bankrupt or its reorganization under any present or future federal bankruptcy act of any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within one hundred twenty (120) days after the filing thereof; or (b) Upon the occurrence of any such Event of Default and as long as the Event of Default continues, in addition to any and all other rights or remedies of Agency under this Lease or by law or in equity, the Agency may have the sole option to exercise the following rights and remedies: 1. The right of the Agency to declare the term hereof ended and to terminate this Lease, in which event the Tenant shall promptly surrender possession of the Property and the improvements thereon to the City, and pay to the Agency all payments due the Agency under this Lease and the damages specified in subsection (d) below. If the Tenant does not so promptly surrender the Property and the improvements thereon, the Agency shall have the immediate right to reenter the Property and take possession thereof and remove all persons therefrom. -- 2. The right of the Agency, without terminating this Lease, to enter the Property and the improvements thereon and occupy the whole or any part thereof for and on account of the Tenant and to collect rent and any other rent that may thereafter become payable until this Lease is terminated pursuant to subsection (b)3 below. 3. The right of the Agency, even though it may have reentered the Property and the improvements thereon pursuant to subsection (b)2 above, to thereafter elect to terminate this Lease and collect the damages specified in subsection (d) below. (c) In the event the Agency reenters the Property and the improvements thereon pursuant to the provisions of subsection (b) 2 above, the Agency shall not be deemed to have terminated this Lease, and the liability of the Tenant thereafter to pay sums payable under this Lease shall continue unless the Agency notifies the Tenant in writing that the Agency has so elected to terminate this Lease pursuant to subsection (b)3 above. The Tenant further acknowledges and agrees that the service by the Agency of any notice pursuant to the unlawful detainer or similar such statute of the State of California and the surrender of possession pursuant to such notice shall not be deemed to be a termination of this Lease. (d) Upon termination of this Lease pursuant to subsection (b) above, the Agency shall be entitled to recover from the Tenant: (i) The worth at the time of the award of the unpaid rent, which had been earned as of the date of termination; (ii) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after the date of termination until the time of the award exceeds the amount of rental loss the Tenant proves could have been reasonably avoided; (iii) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of rental loss the Tenant proves could be reasonably avoided; and (iv) Any other amount necessary to compensate the Agency for all the detriment proximately caused by the Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom. The "worth at the time of the award" shall be computed under subparagraphs (i) and (ii) by allowing interest at ten percent (10%) per year and shall be computed under subparagraph (iii) by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco in effect as of the date of termination plus one percent (I%). 1111KED-N-M, M-0 No right or remedy herein conferred upon or reserved to the Agency or the Tenant is intended to be exclusive of any other right or remedy, except as expressly stated herein, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute, except such rights or remedies as are expressly limited herein. �- F fiiltll_-;-1 � In the event the Agency shall fail to perform or observe any of the covenants or provisions contained in this Lease on the part of the Agency to be performed or observed within sixty (60) days after written notice from the Tenant to the Agency specifying the particulars of such default or breach of performance, or if more than sixty (60) days shall be reasonably required because of the nature of the default, if the Agency should fail to proceed diligently to cure such default after such notice, then in that event the Agency shall be responsible to the Tenant for any and all actual damages sustained by the Tenant as a direct result of the Agency's default, and in addition, the Tenant shall be entitled to terminate this Lease upon giving the Agency not less than ninety (90) days prior notice of its intention to terminate this Lease for such default. ARTICLE 11 CONDEMNATION During the term of this Lease, should title and possession of all or part of the Property be taken under the power of eminent domain by any public or quasi -public agency or entity, the proceeds of any condemnation award shall be payable solely to the Agency except for any compensation for loss of goodwill or for trade fixtures of the Tenant or other occupants of the Property. 10 ARTICLE 12 MISCELLANEOUS 12.1 Force Ma eure. Except as otherwise expressly provided in this Lease, should the performance of any act required by this Lease to be performed by either the Agency or the Tenant be prevented or delayed by reason of any act of God, strike, lockout, labor trouble, inability to secure materials, restrictive government laws or regulations, or any other cause (except financial inability) not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of the delay and performance of the act during the period of delay will be excused; provided that nothing contained in this Section shall excuse the Tenant's prompt payment of any amounts Tenant is required to pay by this Lease or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act. n �1 The provisions of this Sublease shall be governed by and construed according to the laws of the State of California. 12.3 Notices. All notices given pursuant to this Lease shall be in writing and addressed as follows: if to the : San Rafael Redevelopment Agency 1400 Fifth Avenue San Rafael, California 94901 Attn: Economic Development Director if to the Tenant: RAB Motors, Inc 540 Francisco Boulevard West San Rafael, Ca 94901-3925 Attn: Robin Bacci or such other address as the parties may designate from time to time. Any such notices shall be either personally delivered or sent by certified or registered mail, return receipt requested, postage prepaid, to the parties at such addresses. The date of any such notice shall be the date of receipt if delivered personally or the date seventy-two (72) hours after posting if sent by certified or registered mail. 191 above. WWEKEFORE' the parties have executed this Lease on or as of the date first written ATTEST: i E jSan Rafael Redevelopment Agency Y'eanne Leoncini Agency Secretary 12 By:�_ ti Name: Nancy Mackle Title: Economic Development Director Tenant Name: Ii A -P?_ tito-Tt FA (NC Title: EXHIBIT A (Legal Description of the Property) West Francisco Boulevard at Rice Drive APN 013-04-44 COMMENCING at a point South 530 23' 24" East, 23.21 feet from the most Southerly point of the parcel of land described in the deed recorded March 28, 1980, in Book 3696, Page 159, Official Records of Marin County; thence along a right-of-way line South 530 23' 24" East, 234.84 feet; thence along a right-of-way line, being a left hand curve, whose center bears North 77° 13' 01" East, with a radius of 462.65 feet, through and angle of 20 17' 5311, over an arc - lenggth of 18.56 feet; thence along a right-of-way line, South 510.52' 21" East, 30.68 feet; thence along a right-of-way line, South 400 37' 22' East, 68.04. feet; thence along a right-of-way line, South 360 53' 38" West, 50.58 feet; thence along a left hand curve, whose center bears North 860 17' 08" West, with a radius of 36 feeet, through an angle of 440 35' 2211, over an arc length of 28.00 feet to a point of compound curvature; thence along a left hand curve, whose center bears South 49° 08' 30" West, with a radius of 5991.30 feet, through an angle of 3. 09' 0611, over an arc lenght of 329.56 feet, to the point of commencement. EXCEPTING THEREFROM that portion thereof lying below a depth of 500 feet, measured vertically, from the contour of the surface of said property, however grantor or its successors and assigns shall not have the right-of-way purposes whatsoever to enter upon, into or through the surface of said property or any part thereof lying between said surface and 500 feet below said surface as contained in the Deed from Northwestern Pacific Railroad Co. to San Rafael Redevelopment Agency, recorded in June 28, 1982 Recorder's Serial No. 82-25909, Marin County Records. A.P. No. 013-041-44 MARIN COUNTY 13 DRAFT LEASE EXTENSION THIS LEASE EXTENSION is made as of August 1, 2009 by and between the San Rafael Redevelopment Agency ("Agency") as the landlord and RAB Motors, hic. ("Tenant') as the tenant. RECITALS A. The Agency and the Tenant entered in that certain Lease on June 22, 2004 (the Lease") concerning a property owned by the Agency and located in the City of San Rafael at Rice Drive and West Francisco Boulevard (APN 013-041-44) and more particularly described in the Lease. B. The Lease was for a period of two years and could be extended for three additional one year periods. C. The Lease commenced on October 1, 2004, the first month following the September 9, 2004 approval of the Environmental Design Review and Use Permit by the City of San Rafael. D. The Agency and the Tenant desire to extend the Lease for an additional one year period from October 1, 2009 to September 30, 2010. E. The Agency and the Tenants desire to provide for three additional one year lease extensions after the initial one year lease period. AGREEMENT NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration are hereby acknowledged, the Agency and the Tenant agree as follows: 1. Lease Amendment. The Lease is hereby amended as follows: a) Section 1.2 is hereby deleted and replaced with the following: "The term of this Lease shall commence on October 1, 2009 and continue through September 30, 2010. This Lease may be extended for three additional one-year time periods after the initial lease period, upon request by Tenant made not less ATTACHMENT C 1 than thirty (30) days prior to the end of the then -current lease term and approved in writing by the Agency's Economic Development Director." 2. Full Force and Effect. Except as set forth in this Lease Extension, the Lease remains unmodified and is in full force and effect. 3. Counterparts. This Lease extension may be signed by the different parties in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. WHEREFORE, the parties have executed this Lease Extension as of the date first set forth above. APPROVED AS TO FORM: Robert F. Epstein Agency Counsel SAN RAFAEL REDEVELOPMENT AGENCY Bv: Nancy Mackle Economic Development Director ATTEST: Esther Beirne Agency Secretary RAB MOTORS, INC. By:_ Name: Title: 7 PUBLIC MEETING Legal Notice - Public Hearing SAN RAFAEL REDEVELOPMENT AGENCY NOTICE IS HEREBY GIVEN that the San Rafael Redevelopment Agency will hold a public hearing on Monday, July 20, 2009 at 7:30 p.m., and will be held in the City Council Chambers located at 1400 Fifth Avenue, San Rafael, California. The hearing may be continued from time to time until completed. Any person desiring the opportunity to be heard will be afforded an opportunity to do so. The purpose of the hearing is to consider continuation of a lease to RAB Motors for the Agency owned property located at Rice Drive and West Francisco Blvd. located within the Central San Rafael Redevelopment Project Area boundaries. The hearing is being held pursuant to Section 33430 of the Health and Safety Code. All those interested in matters related to the lease, or who wish to speak on any issue raised by the approval of the lease are invited to attend and be heard at the hearing. If any person desires to challenge in court the proposed action or any proceedings in connection therewith, they may be limited to raising only those issues that they or someone else raised at the hearing described in this notice, or in written correspondence delivered to the Agency at, or prior to, the hearing. Further information regarding this hearing may be obtained by contacting the Agency at (415) 485-3383. SAN RAFAEL REDEVELOPMENT AGENCY Esther Beire, Agency Secretary (To be published in the Marin Independent Journal on Monday, July 6 and Monday July 13, 2009.) Attachment D