HomeMy WebLinkAboutCM Airspace Lease(Lease Area No. Mrn- 10 1 -00 12)
(Account No. Mrn-101-0012-01)
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
AIRSPACE LEASE
THIS LEASE, dated June 28, 2021 is by and between the STATE OF CALIFORNIA, acting by and
through its Department of Transportation, hereinafter called "Landlord," and
the City of San Rafael, a California municipal corporation, hereinafter called "Tenant."
WITNESSETH
For and in consideration of the rental and of the covenants and agreements hereinafter set forth to be
kept and performed by the Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises herein described for the term, at the rental and subject to and upon all of the terms,
covenants and agreements hereinafter set forth.
ARTICLE 1. SUMMARY OF LEASE PROVISIONS
Landlord: California Department of Transportation
Tenant: City of San Rafacl
PremisLs: The area under the Highway 101 viaduct between 3rd and 4th Streets, 4`i' Street and 511'
Avenue portions of the Hetherton Park and Ride lot), and the entire Mission Avenue Park and Ride lot
located in the City of San Rafael, County of Marin, State of California, and more particularly described
in Article 2.
Lease Term One (1) year, commencing July 8, 2021 and expiring July 7, 2022.
Monthly Rent: $ 500.00 (Article 4)
Security Deposit: $ 0.00 (Article 18)
Use: Daily parking lot of operable vehicles only for commuters and others (Article 5)
Insurance:
Commercial General Liability Insurance: $5,000,000. (Article 10)
Business Automobile Liability Insurance: $1,000,000. (Article 10)
Workers' Compensation Insurance: $1,000,000. (Article 10)
Addresses for Notices:
To Landlord:
Department of Transportation
Right of Way Airspace Development MS 11
US Mail: PO Box 23440, Oakland, CA 94623-0440
Street Address: 111 Grand Avenue, 13th floor Oakland, CA 94612-3771
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To Tenant: City of San Rafael Contact: Jim Schutz, City Manager
1400 Fifth Avenue
San Rafael. CA 94901
Email: Phone: (415) 485-3070
References in this Article 1 to the other Articles are for convenience and designate other Articles
where references to the particular item contained in the Summary of Lease Provisions appear. Each
reference in this Lease to the Summary of Lease Provisions contained in this Article 1 shall be construed
to incorporate all of the terms provided under the Summary of Lease Provisions. In the event of any
conflict between the Summary of Lease Provisions and the balance of the Lease, the latter shall control.
ARTICLE 2. PREMISES
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, for the term, at the
rent, and upon the covenants and conditions hereinafter set forth, that certain Premises known as Freeway
Lease Area No. Mrn- 10 1 -00 12, located at the area under the Highway 101 viaduct between 3`d and 4th
Streets, 4`h Street and 5`I' Avenue (portions of the Hetherton Park and Ridc Lot), and the entire Mission
Avenue Park and Ride lot, in the City of San Rafael and County of Marin , said land or interest therein
being shown on the map or plat marked "Exhibit A," attached hereto and by this reference made a part
hereof.
EXCEPTING THEREFROM all those portions of the above-described Premises occupied by the
supports and foundations of the existing structure.
ALSO EXCEPTING THEREFROM all that portion of the Premises above a horizontal plane 5
feet below the underside of the superstructure of the existing structure, which plane extends to a line 10
feet, measured horizontally, beyond the outermost protrusion of the superstructure of the structure.
California Civil Code Section 1938 requires commercial landlords to disclose to tenants whether
the property being leased has undergone inspection by a Certified Access Specialist ("CASp") to
determine whether the property meets all applicable construction -related accessibility requirements.
Tenant is hereby advised that the Premises have NOT been inspected by a CASp.
A CASp can inspect the subject Premises and determine whether the subject Premises comply
with all of the applicable construction -related accessibility standards under state law. Although state law
does not require a CASp inspection of the subject Premises, the commercial property owner or Landlord
may not prohibit Tenant from obtaining a CASp inspection of the subject Premises for the occupany or
potential occupancy of the Tenant or tenant, if requested by the Tenant or tenant. Theparties shall
mutually agree on the arrangement for the time and manner of the CASp inspection, the payment of the
fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of
construction -related accessibility standards within the Premises. Any CASp inspection shall be
conducted in compliance with reasonable rules in effect at the Premises with regard to such inspections
and shall be subject to Landlord's prior written consent. Tenant shall be responsible for all costs
associated with a CASp inspection.
This Lease is subject to (1) all easements, covenants, conditions, restrictions, reservations, rights
of way, liens, encumbrances and other matters of record, (2) all matters discoverable by physical
inspection of the Premises or that would be discovered by an accurate survey of the Premises and (3) all
matters known to Tenant or of which Tenant has notice, constructive or otherwise including, without
limitations, those shown on attached Exhibit "A".
If Premises are located on an Interstate designated highway, this Lease shall not be effective until
the Federal Highways Administration (FHWA) approves: (a) the proposed use of the Premises, and (b)
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the specific terms of this Lease, and Landlord has given Tenant notice of such approvals ("Lease
Effective Notice").
ARTICLE 3. TERM
The term of this Lease shall be for one (1) year, commencing July 8, 2021, and expiring on July
7, 2022. Tenant shall notify Landlord in writing 30 days prior to vacating the Premises to arrange a
Premises inspection. If Tenant vacates without notice to Landlord, or remains in possession of all or any
part of the Premises after the expiration of the term hereof, with or without the express or implied consent
of Landlord, such tenancy shall be from month to month per Section 19.10 herein.
ARTICLE 4. RENT
4.1 Monthly Rent
Tenant shall pay to Landlord as rent, without deduction, setoff, prior notice, or demand, the sum
of $ 500.00 per month in advance on the first day of each month, commencing on the date the term
commences and continuing during the term. Rent for any partial month shall be prorated at the rate of
1 /30th of the minimum monthly rent per day. All rent shall be paid to Landlord at the following address:
State of California, Department of Transportation, Attention: Cashier, P. O. Box 168019, Sacramento,
CA 95816-8019.
Each payment shall state on the check the rental account number Mrn-101-0012-01.
4.2 Landlord's Compensation upon Assignment, Transfer or Sublease of Tenant's Leasehold
(a) In the event that Tenant voluntarily assigns, transfers or subleases any of Tenant's rights in
the Premises, Tenant shall pay to Landlord compensation in connection with the transaction in an amount
equal to fifty percent (50%) of any and all consideration, whether in present payments or in future
payments, which Tenant receives from an assignee, transferee or subtenant in excess of the amount of
rent Tenant is obligated to pay to Landlord under this Lease.
(b) Payment by Tenant of the amount of compensation required under this Section 4.3 is a
condition to Landlord's giving its consent to any assignment, transfer or sublease under Section 16.2,
and Landlord may withhold its consent to any such assignment, transfer or sublease until this
compensation has been paid. In addition, before Landlord gives its consent to any such transaction,
Tenant shall deliver to the assignee, transferee or subtenant a written summary of all sums due and owing
to Landlord under this section and shall deliver to Landlord a written acknowledgement by the assignee,
transferee or subtenant that said person affirms that the sums are due and owing to Landlord and that
said person assumes responsibility for ensuring that such sums are paid directly to Landlord.
4.3 Reevaluation on Change in Use
Landlord expressly reserves the right to establish in its sole discretion a new monthly rent as a
condition to Landlord's approval of any use of the Premises not specifically permitted by Section 5.1 and
as a condition to any amendment to or changes in the uses permitted by that section.
ARTICLE 5. USE
5.1 Specified Use
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The Premises shall be used and occupied by Tenant only and exclusively for the purpose of daily
parking lot of operable vehicles only for commuters and others and for no other purpose whatsoever
without obtaining prior written consent of Landlord and the concurrence of the Federal Highway
Administration. Landlord expressly reserves the right to establish a new minimum monthly rent as a
condition to Landlord's approval of any use of the leased Premises not specifically permitted by this
section.
5.2 Condition of Premises
Tenant hereby accepts the Premises in the AS -IS condition existing as of the date of the
execution hereof subject to all applicable zoning, municipal, county, state and federal laws, ordinances
and regulations governing and regulating the use of the Premises, and accepts this Lease subject thereto
and to all matters disclosed thereby and by any exhibits attached hereto. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the
condition of the Premises or the suitability thereof for the conduct of Tenant's business, nor has Landlord
agreed to undertake any modification, alteration or improvement to the Premises except as provided in
this Lease.
Except as may be otherwise expressly provided in this Lease, the taking of possession of the
Premises by Tenant shall in itself constitute acknowledgement that the Premises are in good and
Tenantable condition, and Tenant agrees to accept the Premises in its presently existing condition "as
is", and that the Landlord shall not be obligated to make any improvements or modifications thereto
except to the extent that may otherwise be expressly provided in this Lease.
Tenant represents and acknowledges that it has made a sufficient investigation of the conditions
of the Premises existing immediately prior to the execution of this Lease (including investigation of the
surface, subsurface and groundwater for contamination and hazardous materials) and is satisfied that the
Premises will safely support the type of improvements, if any, to be constructed and maintained by
Tenant upon the Premises, that the Premises is otherwise fully fit physically and lawfully for the uses
required and permitted by this Lease and that Tenant accepts all risks associated therewith.
Tenant acknowledges that (1) Landlord has informed Tenant prior to the commencement of the
term of this Lease that the Landlord does not know nor has reasonable cause to believe that any release
of any hazardous material has come to be located on or beneath the Premises; (2) prior to the
commencement of the term of this Lease, the Landlord has made available to Tenant, for review and
inspection, records in the possession or control of the Landlord which might reflect the potential
existence of hazardous materials on or beneath the Premises; (3) Landlord has provided Tenant access
to the Premises for a reasonable time and upon reasonable terms and conditions for purposes of providing
to Tenant the opportunity to investigate, sample and analyze the soil and groundwater on the Premises
for the presence of hazardous materials; (4) by signing this Lease Tenant represents to Landlord that,
except as otherwise may be stated on "Exhibit C" attached hereto and by this reference incorporated
herein, Tenant does not know nor has reasonable cause to believe that any release of hazardous material
has come to be located on or beneath the Premises and (5) with respect to any hazardous material which
Tenant knows or has reasonable cause to believe has come or will come to be located on or beneath the
Premises, Tenant has listed the hazardous material on attached "Exhibit C" and agrees promptly to
commence and complete the removal of or other appropriate remedial action regarding the hazardous
material at no cost or expense to Landlord and in full compliance with all applicable laws, regulations,
permits, approvals and authorizations. The phrase "hazardous substance," as used herein, has the same
meaning as that phrase has under Section 25359.7 of the California Health and Safety Code.
Tenant agrees that, except as otherwise expressly provided in this Lease, Tenant is solely
responsible without any cost or expense to the Landlord to take all actions necessary, off as well as on
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the Premises to improve and continuously use the Premises as required by this Lease and in compliance
with all applicable laws and regulations.
5.3 Compliance with Law
Tenant shall not use the Premises or permit anything to be done in or about the Premises which
will in any way conflict with any law, statute, zoning restriction, ordinance or governmental rule or
regulation or requirements of duly constituted public authorities now in force or which may hereafter be
in force, or with the requirements of the State Fire Marshal or other similar body now or hereafter
constituted, relating to or affecting the condition, use or occupancy of the Premises. The judgment of
any court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any law, statute, ordinance or governmental
rule, regulation or requirement, shall be conclusive of that fact as between Landlord and Tenant. Tenant
shall not allow the Premises to be used for any unlawful purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
5.4 Petroleum Products
Tenant shall not install facilities for, nor operate on the Premises, a gasoline or petroleum supply
station. Tenant shall not permit on the Premises any vehicles used or designed for the transportation or
storage of gasoline or petroleum products. Tenant shall also not permit on the Premises any bulk storage
of gasoline or petroleum products.
5.5 Explosives and Flammable Materials
The Premises shall not be used for the manufacture of flammable materials or explosives, or for
any storage of flammable materials, explosives or other materials or other purposes deemed by Landlord
to be a potential fire or other hazard to the transportation facility. The operation and maintenance of the
Premises shall be subject to regulations of Landlord so as to protect against fire or other hazard impairing
the use, safety and appearance of the transportation facility. The occupancy and use of the Premises
shall not be such as will permit hazardous or unreasonably objectionable smoke, fumes, vapors or odors
to rise above the surface of the traveled way of the transportation facility.
5.6 Hazardous Materials
Tenant shall at all times and in all respects comply with all federal, state and local laws,
ordinances and regulations, including, but not limited to, the Federal Water Pollution Control Act (33
U.S.C. Section 1251, et seq.), Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et
seq.), Safe Drinking Water Act (42 U.S.C. Section 300f, et seq.), Toxic Substances Control Act (15
U.S.C. Section 2601, et seq.), Clean Air Act (42 U.S.C. Section 7401, et seq.), Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601, et seq.), Safe
Drinking Water and Toxic Enforcement Act (California Health and Safety Code Section 25249.5, et
seq.), other applicable provisions of the California Health and Safety Code (Section 25100, et seq., and
Section 39000, et seq.), California Water Code (Section 13000, et seq.), and other comparable state laws,
regulations and local ordinances relating to industrial hygiene, environmental protection or the use,
analysis, generation, manufacture, storage, disposal or transportation of any oil, flammable explosives,
asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or
polluting materials, substances or wastes, including, without limitation, any "hazardous materials" under
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any such laws, ordinances or regulations (collectively "Hazardous Materials Laws"). As used in the
provisions of this Lease, "hazardous materials" include any "hazardous substance" as that term is defined
in Section 25316 of the California Health and Safety Code and any other material or substance listed in
or regulated by any Hazardous Materials Laws or posing a hazard to a person's health or the
environment. Except as otherwise expressly permitted in this Lease, Tenant shall not use, create, store
or allow any hazardous materials on the Premises. Fuel stored in a motor vehicle for the exclusive use
in such vehicle is excepted. Household cleaning supplies limited to quantities that are reasonably
necessary to support shelter/feeding program operations are excepted. Tenant is prohibited from
stockpiling large quantities of cleaning supplies. All cleaning supplies shall be properly stored under
safe conditions. Cleaning supplies that are incompatible shall be stored separately. Except as otherwise
expressly permitted in this Lease, Tenant shall not use, create, store or allow any hazardous materials on
the Premises. Fuel stored in a motor vehicle for the exclusive use in such vehicle is excepted.
In no case shall Tenant cause or allow the deposit or disposal of any hazardous materials on the
leased Premises. Landlord, or its agents or contractors, shall at all times have the right to go upon and
inspect the leased Premises and the operations thereon to assure compliance with the requirements herein
stated. This inspection may include taking samples of substances and materials present for testing,
and/or the testing of soils or underground tanks on the Premises.
Breach of any of these covenants, terms and conditions shall give Landlord authority to
immediately terminate this Lease. It is the intent of the parties hereto that Tenant shall be responsible
for and bear the entire cost of removal and disposal of hazardous materials introduced to the Premises
during Tenant's period of use and possession as owner, operator or Tenant of the Premises. Tenant shall
also be responsible for any clean-up and decontamination on or off the leased Premises necessitated by
the introduction of such hazardous materials on the leased Premises. Tenant shall not be responsible for
or bear the cost of removal or disposal of hazardous materials introduced to the Premises by any party
other than Tenant during any period prior to commencement of Tenant's period of use and possession of
the leased Premises as owner, operator or Tenant.
Tenant shall further hold Landlord, and its officers and employees, harmless from all
responsibility, liability and claim for damages resulting from the presence or use of hazardous materials
on the Premises during Tenant's period of use and possession of the Premises.
5.7 Signs
Not more than four (4) advertising signs of a size not greater than thirty (30) square feet of surface
area may be erected on the Premises. The wording on these signs shall be limited to Tenant's name or
trade name, the words "Parking," or "Auto Parking," a statement of rates, and a directional arrow. The
location of all these signs shall be subject to Landlord's prior approval. None of these signs shall be
attached to or painted on any bridge structure or building without the express written consent of
Landlord. All of these signs shall also comply with all applicable requirements of local governmental
entities, including governmental approval and payment of any fees.
Except as set forth in the previous paragraph of this Section, Tenant shall not construct, erect,
maintain or permit any sign, banner or flag upon the Premises without the prior written approval of
Landlord. Tenant shall not place, construct or maintain upon the Premises any advertising media that
include moving or rotating parts, searchlights, flashing lights, loudspeakers, phonographs or other
similar visual or audio media. The term "sign" means any card, cloth, paper, metal, painted or wooden
sign of any character placed for any purpose on or to the ground or any tree, wall, bush, rock, fence,
building, structure, trailer or thing. Landlord may remove any unapproved sign, banner or flag existing
on the Premises, and Tenant shall be liable to and shall reimburse Landlord for the cost of such removal
plus interest as provided in Section 19.11 from the date of completion of such removal.
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5.8 Landlord's Rules and Regulations
Tenant shall faithfully observe and comply with the rules and regulations that Landlord shall
from time to time promulgate for the protection of the transportation facility and the safety of the
traveling public. Landlord reserves the right from time to time to make reasonable modifications to said
rules and regulations. The additions and modifications to those rules and regulations shall be binding
upon Tenant upon delivery of a copy of them to Tenant.
5.9 Wrecked Vehicles
Tenant shall not park or store wrecked or inoperable vehicles of any kind on the Premises.
5.10 Vending
No third party vending of any kind shall be conducted, permitted or allowed upon the Premises
without the prior express written consent of Landlord.
5.11 Water Pollution Control
Tenant shall comply with all applicable State and Federal water pollution control requirements
regarding storm water and non -storm water discharges from the Tenant's leasehold area and will be
responsible for all applicable permits including but not limited to the National Pollutant Discharge
Elimination System (NPDES) General Permit and Waste Discharge Requirements for Discharges of
Stormwater Associated with Industrial Activities (Excluding Construction), the NPDES General Permit
for Stormwater Discharges Associated with Construction and Land Disturbance Activities, and the
Caltrans Municipal Separate Storm Sewer System NPDES Permit, and permits and ordinances issued to
and promulgated by municipalities, counties, drainage districts, and other local agencies regarding
discharges of storm water and non -storm water to sewer systems, storm drain systems, or any
watercourses under the jurisdiction of the above agencies. Copies of the current storm water related
NPDES permits are available on the State Water Resources Control Board's website at
www.swreb.ca.gov under Stormwater.
Tenant understands the discharge of non -storm water into the storm sewer system is prohibited
unless specifically authorized by one of the permits or ordinances listed above. In order to prevent the
discharge of non -storm water into the storm sewer system, vehicle or equipment washing, fueling,
maintenance and repair on the Premises is prohibited.
In order to prevent the discharge of pollutants to storm water resulting from contact with
hazardous material, the storage or stockpile of hazardous material on Premises is strictly prohibited.
Tenant shall implement and maintain the Best Management Practices (BMPs) shown in the attached
Stormwater Pollution Prevention Fact Sheet(s) for: Parking Lots. (Exhibit `B") Tenant shall identify any
other potential sources of storm water and non -storm water pollution resulting from Tenant's activities
on the Premises, which are not addressed by the BMPs, contained in the attached Fact Sheet(s), and shall
implement additional BMPs to prevent pollution from those sources. Additional BMPs may be obtained
from 2 other manuals, (1) Right of Way Property Management and Airspace Stonn Water Guidance
Manual (RW Storm Water Manual) available for review at the Landlord's District Right of Way office
or online at.www.dot.ca.gov/lig/row/rwstoi-i-nwatcr and (2) Construction Site Best Management Practices
(BMPs) Manual, which is available online at https:Hdot.ca.pov/programs/construction/stonn-water-and-
waterpollution-control/manuals-and-handbooks. In the event of conflict between the attached Fact
Sheet(s), the manuals and this Lease, this Lease shall control.
Tenant shall provide Landlord with the Standard Industrial Classification (SIC) code
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applicable to Tenant's facilities and activities on the lease Premises. A list of SIC codes regulated under
the General Industrial Permit SIC codes may be found at the State Water Resources Control Board
(SWRCB) site at http:/www.waterboards.ca.pov/water issues/programs/stonnwater/gen indus.shtml.
Other SIC codes may be found at www.oslia.gov/pis/imis/sicscarch.html.
Landlord, or its agents or contractors, shall at all times have the right to enter and inspect the
Premises and the operations thereon to assure compliance with the applicable permits, and ordinances
listed above. Inspection may include taking samples of substances and materials present for testing the
Premises.
ARTICLE 6. IMPROVEMENTS
No improvements of any kind shall be placed in, on, or upon the Premises, and no alterations
shall be made in, on, or upon the Premises without the prior written consent of Landlord and the
concurrence of the Federal Highway Administration (FHWA). In the event Tenant violates any of the
provisions of this Article, this Lease may be terminated immediately by Landlord. Removal of Tenant's
improvements shall be at no cost to FHWA. Tenant may, at its sole expense, install and maintain any
additional fencing and entrances that may be required by its use of the Premises, subject to the approval
of the location by Landlord and the City of San Rafacl and County of Marin; provided that Tenant shall
at its sole expense construct and maintain sidewalks and driveways at the locations where the additional
entrances are installed. In the event Tenant violates any of the provisions of this Article, this Lease may
be terminated immediately by Landlord and be of no further force or effect. Existing Improvements
include: asphalt paved parking lot and fencing within the Premises.
ARTICLE 7. SURRENDER OF PREMISES AT EXPIRATION OR TERMINATION OF LEASE
At the expiration or earlier termination of this Lease, Tenant shall peaceably and quietly leave,
surrender, and yield up to Landlord the Premises together with all appurtenances and fixtures in good
order, condition and repair, reasonable wear and tear excepted.
ARTICLE 8. OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND PERSONAL
PROPERTY
8.1 Ownership of Improvements During the Lease Term
All improvements constructed and placed on the Premises pursuant to Article 6 shall, at the
expiration or termination of this Lease, vest in Landlord. Tenant shall not remove any of these
improvements from the Premises nor waste, destroy or modify them in any way. Tenant shall deliver
these improvements to Landlord in good condition and repair, reasonable wear and tear excepted,
without compensation to Tenant, any subtenant or third party, free and clear of all claims to or against
them by Tenant, any subtenant or third party, and Tenant shall defend and hold Landlord harmless from
all liability arising from such claims or from the exercise by Landlord of its rights under this section.
Landlord and Tenant covenant for themselves and all persons claiming under or through them that the
improvements are real property.
8.2 Removal of Personal Property and Ownership at Termination
Any signs or other appurtenances placed on the Premises by Tenant under this Lease are the
personal property of Tenant. At the expiration or earlier termination of this Lease, Tenant shall remove
all personal property placed on the Premises and shall restore the Premises to its previous condition,
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except surfacing, wheel rails and column guards, at Tenant's sole expense. Any personal property not
removed by Tenant after thirty (30) days from Landlord's sending written notice to Tenant may be
removed by Landlord. Tenant shall be liable to Landlord for all costs incurred by Landlord in effecting
the removal of personal property and restoring the Premises. Landlord may, in its sole discretion, declare
all personal property not removed by Tenant to be abandoned by Tenant and this property shall, without
compensation to Tenant, become Landlord's property, free and clear of all claims to or against it by
Tenant or any other person. Removal of Tenant's personal property shall be at no cost to FHWA.
ARTICLE 9. MAINTENANCE AND REPAIRS
9.1 Tenant's Obligations
Tenant, at its own cost and expense, shall maintain the Premises, and keep it free of all grass,
weeds, debris, and flammable materials of every description. Tenant shall ensure that the Premises is at
all times in an orderly, clean, safe, and sanitary condition. Landlord requires a high standard of
cleanliness, consistent with the location of the Premises as an adjunct of the California State Highway
System.
Landlord and Tenant recognize that because of the length of the term of this Lease it may be
necessary for Tenant to perform certain substantial maintenance, repair, rehabilitation or reconstruction
(hereinafter collectively referred to as "repair" or "repairs") of the improvements in order to ensure that
the Premises are kept in first-class order, repair and condition.
Tenant hereby expressly waives the right to make repairs at the expense of Landlord and waives
the benefit of the provisions of Sections 1941 and 1942 of the California Civil Code or any successor
thereto.
Tenant shall take all steps necessary to protect effectively the fences, guardrails, and the piers
and columns, if any, of the all structures from damage incident to Tenant's use of the Premises and any
improvements, all without expense to Landlord. Tenant shall, at its own cost and expense, repair in
accordance with Landlord's standards any damage to any property owned by Landlord, including, but
not limited to, all fences, guardrails, piers and columns, caused by Tenant, subtenants, invitees or other
third parties. At Tenant's request, Landlord may elect to repair the damage to its property, and Tenant
agrees to reimburse Landlord promptly after demand for the amount Landlord has reasonably expended
to complete the repair work.
Tenant shall be responsible at its sole cost for the care, maintenance, and any required pruning
of trees, shrubs, or any other landscaping on the Premises. Tenant assumes the liability for any damage
or injury caused by any falling branches or other such materials from any tree or shrub whether the
branches fall due to lack of maintenance or act of god or any other natural or unnatural causes. Tenant's
liability insurance required within Article 10 shall cover any damage caused by any falling tree or shrub
branches or other materials; and, furthermore, per the same Article 10, Tenant covenants and agrees to
indemnify and save harmless Landlord from all liability, loss, cost, and obligation on account of any
injuries or losses caused by any falling branches or material from any tree or shrub.
Tenant shall be responsible at its sole cost for the removal and abatement of any graffiti on the
Premises within 30 days of application of the graffiti. If the graffiti is upon one of Landlord's concrete
columns or walls, Tenant shall first consult with Landlord for direction regarding acceptable paint to be
employed to cover the graffiti.
Tenant shall designate in writing to Landlord a representative who shall be responsible for the
day-to-day operation and level of maintenance, cleanliness and general order.
9.2 Landlord's Rights
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In the event Tenant fails to perform Tenant's obligations under this Article, Landlord shall give
Tenant notice to do such acts as are reasonably required to so maintain the Premises. If within ten (10)
days after Landlord sends written notice to repair, Tenant fails to do the work and diligently proceed in
good faith to prosecute it to completion, Landlord shall have the right, but not the obligation, to do such
acts and expend such funds at the expense of Tenant as are reasonably required to perform such work.
Any amount so expended by Landlord shall be paid by Tenant promptly after demand plus interest as
provided in Section 19.11 from the date of completion of such work to date of payment. Landlord shall
have no liability to Tenant for any damage, inconvenience or interference with the use of the Premises
by Tenant as a result of performing any such work.
ARTICLE 10. INSURANCE
10.1 Indemnification
Neither Landlord nor FHWA nor any of Landlord's and FHWA's officers or employees are
responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be
done by Tenant under or in connection with any work, authority, or jurisdiction conferred upon Tenant
or arising under this Lease.
It is understood and agreed Tenant will fully defend, indemnify, and save harmless Landlord and
FHWA and all Landlord and FHWA officers and employees from all claims, suits, or actions of every
kind brought forth under any theory of liability occurring by reason of anything done or omitted to be
done by Tenant under this Lease. Tenant's obligations to defend, indemnify, and save harmless Landlord
extends to any and all claims, suits, or actions of every kind brought forth under any theory of liability
occurring due to the use of the Premises and Tenant's operations under this Lease, any accompanying
agreement with Landlord, and any encroachment permit issued by Landlord.
Tenant shall include in any contract it enters with any third party to conduct work in association
with this Lease, including any contractors who design, construct, or maintain equipment, structures,
fixtures or other property, a requirement the contractor will fully defend, indemnify and save harmless
Landlord and FHWA and its officers and employees from any and all claims, suits or actions of every
kind brought forth under any theory of liability occurring due to the work conducted in association with
this Lease. If Tenant has any additional insured endorsements executed by any third parties conducting
work in association with this Lease naming Landlord to comply with this provision, Tenant shall provide
copies of the additional insured endorsements and a Certificate of Insurance to Landlord.
If the Lease is terminated for any reason, Tenant also agrees to indemnify, defend, and save
harmless Landlord and FHWA from any third party claims for damages arising out of the termination of
the Lease due to Landlord's failure to comply with the requirements of the Lease. Such third party
claims include any claims from any contractors retained by Tenant or its successors.
Furthermore, Tenant agrees it controls the Premises. As such, Tenant agrees to defend,
indemnify and hold harmless Landlord, its officers, agents, and employees for any and all claims arising
out of any allegedly dangerous condition of public property based upon the condition of the Premises.
Tenant agrees to defend, indemnify and save harmless Landlord, its officers, employees, and
agents from any and all claims, suits or actions of every kind brought forth under any theory of liability
with respect to the Premises or the activities of Tenant or its officers, employees, and agents at the
Premises, excluding those arising by reason of the sole or active negligence of Landlord, its officers,
employees, and agents.
Tenant's obligations to defend and indemnify Landlord and FHWA is not excused because of
Tenant's inability to evaluate liability or because Tenant evaluates liability and determines Tenant is not
liable. Tenant must respond within 30 days to the tender of any defense and indemnity by Landlord or
FHWA, unless this time has been extended by Landlord.
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10.2 Liability Insurance
Nothing in this Lease is intended to establish a standard of care owed to any member of the public or to
extend to the public the status of a third -party beneficiary for any of these insurance specifications.
A. Workers' Compensation and Employer's Liability Insurance
Tenant shall provide workers' compensation and employer's liability insurance as required under
the Labor Code and provide Landlord the following certification before performing any work (Labor
Code § 1861) in connection with this Lease: "I am aware of the provisions of Section 3700 of the Labor
Code which require every employer to be insured against liability for workers' compensation or to
undertake self-insurance in accordance with the provisions of that code, and I will comply with such
provisions before commencing the performance of the work of this contract."
Tenant shall provide Employer's Liability Insurance in amounts not less than:
1. $1,000,000 for each accident for bodily injury by accident
2. $1,000,000 policy limit for bodily injury by disease
3. $1,000,000 for each employee for bodily injury by disease
B. Commercial General Liability Insurance
Tenant shall procure Commercial General Liability Insurance with $5 million per occurrence and
aggregate limits covering all operations by or on behalf of Tenant, providing insurance for bodily injury
liability and property damage liability, and including coverage for:
1. Premises, operations and mobile equipment
2. Products and completed operations
3. Broad form property damage (including completed operations)
4. Explosion, collapse, and underground hazards
5. Personal injury
6. Contractual liability
Tenant shall provide proof of the Commercial General insurance policy with all endorsements,
riders, and amendments to Landlord on or before the commencement of this Lease by a Certificate of
Additional Insured.
The Commercial General Liability insurance procured by Tenant shall also comply with the
following:
1. Shall extend to all of Tenant's operations and remain in full force and effect during the term of
this Lease.
2. Must be with an insurance company with a rating from A.M. Best Financial Strength Rating of
A- or better and a Financial Size Category of VII or better.
3. Shall be on Commercial General Liability policy form no. CG0001 as published by the Insurance
Services Office (ISO) or under a policy form at least as broad as policy form no. CG0001.
4. Shall contain completed operations coverage with a carrier acceptable to Landlord through the
expiration of the latent and patent deficiency in construction statutes of repose set forth in Code
of Civil Procedure section 337.15.
5. Shall name Landlord, including its officers, directors, agents (excluding agents who are design
professionals), and employees, as additional insureds under the General Liability Policy with
respect to liability arising out of or connected with work or operations performed in connection
with this Lease. Coverage for such additional insureds does not extend to liability to the extent
prohibited by Insurance Code section 11580.04.
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6. Shall provide additional insured coverage by a policy provision or by an endorsement providing
coverage at least as broad as Additional Insured (Form B) endorsement form CG 2010, as
published by the Insurance Services Office (ISO), or other form designated by Landlord.
7. Shall state the insurance afforded the additional insureds applies as primary insurance. Any other
insurance or self-insurance maintained by Landlord is excess only and must not be called upon
to contribute with this insurance.
Tenant shall carry automobile liability insurance, including coverage for all owned, hired, and
non -owned automobiles. The primary limits of liability must be not less than $1,000,000 combined
single limit for each accident for bodily injury and property damage.
Landlord allows reasonable deductible clauses not overly broad, exceeding $250,000, or harmful
to Landlord. Tenant agrees by executing this Lease it shall defend, indemnify, and hold harmless
Landlord until such deductible is paid or applied to any claim arising out of this Lease, regardless of
Tenant's evaluation of liability, as discussed in Section 9.1.
Landlord may assure Tenant's compliance with Tenant's insurance obligations. Ten days before
an insurance policy lapses or is canceled during the term of this Lease, Tenant must submit evidence of
renewal or replacement of the policy. Tenant is not relieved of its duties and responsibilities to
indemnify, defend, and hold harmless Landlord, its officers, agents, and employees by Landlord's
acceptance of insurance policies and certificates. The minimum insurance coverage amounts do not
relieve Tenant from liability in excess of such coverage.
10.3. Self -Insurance
Landlord acknowledges that Tenant may be self-insured. Reasonable self-insurance programs
and self-insured retentions in insurance policies are permitted by Landlord. If Tenant uses a self-
insurance program or self-insured retention, Tenant must provide Landlord with the same protection
from liability and defense of suits as would be afforded by first -dollar insurance. Further, execution of
this Agreement is Tenant's acknowledgment Tenant will be bound by all laws as if Tenant were an
insurer as defined under Insurance Code section 23 and Tenant's self-insurance program or self-insured
retention shall operate as insurance as defined under Insurance Code section 22. Tenant shall notify
Landlord in writing not less than thirty (30) days prior to the effective date of the termination of its
self-insurance coverage and shall obtain the insurance coverage required by this section effective on that
termination date.
10.4 Failure to Procure and Maintain Insurance
If Tenant fails to procure or maintain the insurance required by this Article in full force and
effect, this Lease may be terminated immediately by Landlord. In addition, if Tenant fails to procure or
maintain the insurance required by this Article, Tenant shall cease and desist from operating any business
on the Premises and the improvements erected thereon and shall prevent members of the public from
gaining access to the Premises during any period in which such insurance policies are not in full force
and effect.
10.5 Waiver of Subrogation
Tenant hereby waives any and all rights of recovery against Landlord, or against the officers,
employees, agents and representatives of Landlord, for loss of or damage to Tenant or its property or the
property of others under its control to the extent that such loss or damage is insured against under any
insurance policy in force at the time of such loss or damages. Tenant shall give notice to its insurance
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carrier or carriers that the foregoing waiver of subrogation is contained in the Lease.
ARTICLE 11. PAYMENT OF TAXES
Tenant agrees to pay and discharge, or cause to be paid and discharged when due, before the
same become delinquent, all taxes, assessments, impositions, levies and charges of every kind, nature
and description, whether general or special, ordinary or extraordinary, which may at any time or from
time to time during the term of this Lease, by or according to any law or governmental, legal, political,
or other authority whatsoever, directly or indirectly, be taxed, levied, charged, assessed or imposed upon
or against, or which shall be or may be or become a lien upon the Premises or any buildings,
improvements or structures at any time located thereon, or any estate, right, title or interest of Tenant in
and to the Premises, buildings, improvements or structures. Specifically, and without placing any
limitation on Tenant's obligations under the immediately preceding sentence, Tenant shall pay when due,
before delinquency, any and all possessory interest taxes, parking taxes, workers' compensation, taxes
payable to the California Franchise Tax Board, personal property taxes on fixtures, equipment and
facilities owned by Tenant, whether or not the same have become so fixed to the land as to comprise a
part of the real estate.
Tenant understands that any possessory interest of Tenant created in the Premises by this Lease
may be subject to property taxation and that Tenant may be liable for payment of any such tax levied on
such interest. Any obligation of Tenant under this Article, including possessory interest tax that the city
or county may impose upon Tenant's interest herein, shall not reduce any rent due Landlord hereunder
and any such obligation shall become the liability of and be paid by Tenant. In the event Tenant defaults
in the payment of any of the obligations set forth in this Article, this Lease may be terminated
immediately by Landlord and be of no further force or effect.
ARTICLE 12. RIGHT OF ENTRY
12.1 Inspection, Maintenance, Construction and Operation of Freeway Structures
Landlord, through its agents or representatives, and other city, county, state and federal agencies,
including the Federal Highway Administration, through their agents or representatives, shall have full
right and authority to enter in and upon the Premises and any building or improvements situated thereon
at any and all reasonable times during the tern of this Lease for the purpose of inspecting the same
without interference or hindrance by Tenant, its agents or representatives.
Landlord further reserves the right of entry for the purpose of inspecting the Premises, or the
doing of any and all acts necessary or proper on said Premises in connection with the protection,
maintenance, reconstruction, and operation of the freeway structures and its appurtenances; provided,
further, that Landlord reserves the further right, at its discretion, to immediate possession of the same in
case of any national or other emergency, or for the purpose of preventing sabotage, and for the protection
of said freeway structures, in which event the term of this Lease shall be extended for a period equal to
the emergency occupancy by Landlord, and during said period Tenant shall be relieved, to the degree of
interference, from the performance of conditions or covenants specified herein. Landlord further
reserves the right of entry by any authorized officer, engineer, employee, contractor or agent of the
Landlord for the purpose of performing any maintenance activities upon the Premises which Tenant has
failed to perform.
12.2 Landlord's Use of the Premises
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Tenant understands and agrees that Landlord may, from time to time, be required to perform
retrofit work on all or a part of the freeway structures which are situated on, above or adjacent to the
Premises or be required to use all or a portion of the Premises in connection with the protection,
maintenance, reconstruction, and operation of the state highway system. Landlord shall have the right
to impose such restrictions on Tenant's right to enter, occupy, and use the Premises and to construct
improvements thereon as Landlord deems are necessary to enable it to maintain, protect, reconstruct or
operate the state highway system without interference from Tenant.
In the event Landlord determines that it needs to obtain possession of all or a portion of the
Premises, or needs to place restrictions on Tenant's use of the Premises, Landlord shall, at least thirty
(3 0) days prior to the effective date of the commencement of such possession or restrictions notify Tenant
in writing describing the extent of the possession or restrictions and the effective date of their
commencement. Upon the effective date of said notice, Tenant shall peaceably surrender possession of
all or any specified portion of the Premises and comply with the restrictions as stated therein. Tenant
shall have no claim upon Landlord and waives any and all claims for compensation, damages or
relocation assistance. The monthly rent stated in Section 4.1, as adjusted in accordance with Article 4,
shall be reduced by an amount equal to the proportion which the area of the portion of the Premises
which Tenant is restricted from using or which has been surrendered to Landlord bears to the total area
of the Premises. This reduction in rent shall be Tenant's sole remedy against Landlord for Tenant's
inability to possess or use the entire area of the Premises, or for any disruption of Tenant's ability to use
any part of the Premises, and Tenant expressly agrees to hold Landlord harmless from any and all liability
for, and expressly waives any right it may have to recover compensation from Landlord, waives any
right it may have to recover for damages to the Premises or any improvements constructed on the
Premises, waives any right it may have to assert or recover lost profits or other revenue, and waives its
right to use or possess any portion of the Premises or improvements thereon, and damages to any other
property, project or operation caused by Landlord's possession, imposition of restrictions or Tenant's
inability to use or possess all or any portion of the Premises. In addition, Tenant expressly recognizes
that it is not entitled to receive benefits under the federal or state Uniform Relocation Assistance Acts
(United States Code, title 42, Section 4601, et seq.; California Government Code, Section 7260, et seq.)
as a result of Landlord's use or possession of any portion of the Premises.
Tenant shall conduct its operations on the Premises in such a manner so as not to interfere with
Landlord's or its contractor's performance of any work done on or above the Premises. Tenant
acknowledges that the performance of the work may cause damage to paving or other improvements
constructed by Tenant on the Premises.
ARTICLE 13. TERMINATION OF LEASE
13.1 Termination by Mutual Consent
Notwithstanding any provision herein to the contrary, this Lease may be terminated, and the
provisions of this Lease may be altered, changed or amended by mutual consent of Landlord and Tenant.
13.2 Termination by One Party
Notwithstanding any provision herein to the contrary, this Lease may be terminated at any time
by Tenant upon providing Landlord with NINETY (90) days prior notice in writing, or by Landlord upon
providing Tenant with NINETY (90) days prior notice in writing. Notices of termination under this
section shall be delivered in accordance with the provisions of Section 19.13 to the addresses set forth
in Article 1. If Tenant exercises its right to terminate the Lease under this Section, it immediately forfeits
any right to bid at the next lease auction for the Premises. In addition, if at the time Tenant terminates
RW Use Agreement short Tenn FHWA - 052021 14
this Lease, the entire cost of Tenant's improvements has not been amortized over the remaining term,
those improvements shall become the property of Landlord, and Landlord shall not refund or otherwise
reimburse Tenant for the remaining unamortized cost of the improvements.
ARTICLE 14. UTILITIES
Tenant shall pay when due, and shall hold Landlord harmless from any liability for, all charges
for water, gas, heat, light, power, telephone, sewage, air conditioning and ventilating, scavenger,
janitorial and landscaping services and all other materials and utilities supplied to the Premises. Landlord
shall not be liable in damages or otherwise for any failure or interruption of any utility service furnished
to the Premises, and no such failure or interruption shall entitle Tenant to terminate this Lease.
ARTICLE 15. DEFAULT
15.1 Default
The occurrence of any of the following shall constitute a material breach and default of this Lease
by Tenant.
(a) Any failure by Tenant to pay rent or any other monetary sums required to be paid hereunder,
where such failure continues for ten (10) days after written notice thereof has been given by Landlord to
Tenant.
(b) The abandonment or vacation of the Premises by Tenant. Failure to occupy and operate the
Premises for thirty (30) consecutive days following the mailing of written notice from Landlord to
Tenant calling attention to the abandonment shall be deemed an abandonment or vacation.
(c) The making by Tenant of any general assignment or general arrangement for the benefit of
creditors; the filing by or against Tenant of a petition to have Tenant adjudged bankrupt or of a petition
for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition
filed against Tenant the same is dismissed within sixty (60) days); the appointment of a trustee or receiver
to take possession of substantially all of Tenant's assets, where possession is not restored to Tenant within
forty-five (45) days; or the attachment, execution or other judicial seizure of substantially all of Tenant's
assets, where such seizure is not discharged within thirty (30) days.
(d) The failure by Tenant to comply with any provision of any law, statute, zoning restriction,
ordinance or governmental rule, regulation or requirement as set forth in Section 5.3 of this Lease.
(e) The failure by Tenant to comply with the requirements of the Caltrans Non -Residential
Rental Application, including providing erroneous information on the application.
(f) The failure by Tenant to comply with the requirements regarding hazardous materials as set
forth in Article 5 of this Lease.
(g) The construction by Tenant of any improvements on the Premises contrary to the provisions
of Article 6 of this Lease.
(h) The failure by Tenant to pay any tax, assessment, imposition, levy or charge of any kind as
set forth in Article 11 of this Lease.
(i) The failure by Tenant to observe and perform any other provision of this Lease to be observed
or performed by Tenant, where such failure continues for thirty (30) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of such default is such that it cannot be
reasonably cured within such thirty (30) day period, Tenant shall not be deemed to be in default if Tenant
shall within such period commence such cure and thereafter diligently prosecute the same to completion.
0) The failure by Tenant to observe and perform any provision of any other Caltrans rental
agreement or lease for a different premises owned and leased to Tenant by Landlord, which failure
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constitutes a material breach and default of the other agreement, shall immediately constitute a material
breach of this Lease.
15.2 Landlord's Remedies
In the event of any material default or breach by Tenant, Landlord may at any time thereafter,
without limiting Landlord in the exercise of any right of remedy at law or in equity which Landlord may
have by reason of such default or breach, terminate Tenant's right to possession by any lawful means, in
which case this Lease shall immediately terminate and Tenant shall immediately surrender possession
of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default including, but not limited to, the following:
(a) the worth at the time of award of any unpaid rent which had been earned at the time of such
termination; plus
(b) the worth at the time of award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the amount of such rental loss that is proved
could have been reasonably avoided; plus
(c) the worth at the time of award of the amount by which the unpaid rent for the balance of the
term after the time of award exceeds the amount of such rental loss that is proved could be reasonably
avoided; plus
(d) any other amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of events
would be likely to result therefrom; plus
(e) at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may
be permitted from time to time by applicable State law. Upon any such re-entry Landlord shall have the
right to make any reasonable repairs, alterations or modifications to the Premises, which Landlord in its
sole discretion deems reasonable and necessary. As used in subparagraphs (a) and (b), above, the "worth
at the time of award" is computed by including interest on the principal sum at a rate one percent (1%)
above the discount rate of the Federal Reserve Bank of San Francisco from the date of default. As used
in subparagraph (c), above, the "worth at the time of award" is computed by discounting such amount at
a rate one percent (I%) above the discount rate of the Federal Reserve Bank of San Francisco at the time
of award. The term "rent" as used in this Article shall be deemed to be and to mean rent to be paid
pursuant to Article 4 and all other monetary sums required to be paid by Tenant pursuant to the terms of
this Lease.
15.3 Late Charges
Tenant hereby acknowledges that late payment by Tenant to Landlord of rent and other sums due
hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and
accounting charges. Accordingly, if any installment of rent or any other sum due from Tenant shall not
be received by Landlord or Landlord's designee within ten (10) days after such amount shall be due, a
late charge equal to one and one-half percent (1.5%) of the payment due and unpaid plus $100.00 shall
be added to the payment, and the total sum shall become immediately due and payable to Landlord. An
additional charge of one and one-half percent (1.5%) of such payment, excluding late charges, shall be
added for each additional month that such payment remains unpaid. Landlord shall apply any monies
received from Tenant first to any accrued delinquency charges and then to any other payments due under
the Lease. The parties hereby agree that such late charges represent a fair and reasonable estimate of the
costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charges by
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Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amount,
nor prevent Landlord from exercising any of the other rights and remedies granted hereunder.
ARTICLE 16. ASSIGNMENTS, TRANSFERS, SUBLEASES AND ENCUMBRANCES
16.1 Prohibition on Assignments, Transfers and Subleases
Tenant shall not assign, transfer or sublease all or any part of its interest in this Lease or in the
Premises, and Landlord reserves the right to deny its consent to any request for assignment, transfer or
sublease of all or any part of this Lease or the Premises.
16.2 Voluntary Assignments and Subleases
In addition, with respect to transactions not expressly prohibited under Section 16. 1, Tenant shall
not voluntarily assign or transfer all or any part of its interest in this Lease or in the Premises, or sublet
all or any part of the Premises, or allow any other person or entity (except Tenant's authorized
representatives) to occupy or use all or any part of the Premises without first obtaining Landlord's written
consent and the concurrence of the Federal Highway Administration.
Landlord may, at its sole discretion, elect to consent to any such assignment, transfer or sublease
if all of the following express conditions are satisfied:
(a) Landlord receives compensation from Tenant upon the assignment, transfer, sale or sublease
of any of Tenant's rights in the Premises per the provisions of Article 4.3.
(b) The prospective assignee, transferee or subtenant completes a Lease Application and meets
all of the requirements for eligibility to lease from the State of California.
Tenant's failure to obtain Landlord's required written approval prior to any assignment, transfer
or sublease shall render such assignment, transfer or sublease void. Occupancy of the Premises by a
prospective transferee, subtenant or assignee before approval of the transfer, sublease or assignment by
Landlord shall constitute a breach of this Lease. Landlord's consent to any assignment, transfer or
sublease shall not constitute a waiver of any of the terms, covenants or conditions of this Lease. Such
terms, covenants and conditions shall apply to each and every assignment, sublease and transfer of rights
under this Lease and shall be severally binding upon each and every party thereto. Any document to
transfer, sublet, or assign the Premises or any part thereof shall incorporate directly or by reference all
the provisions of this Lease.
16.3 Change in Tenant's Vesting
Any change in the legal status of Tenant shall be deemed an assignment in violation of the lease
unless approved in advance in writing by Landlord
16.4 Assignment of Rent from Subtenants
Tenant immediately and irrevocably assigns to Landlord, as security for Tenant's obligations
under this Lease, all rent from any subletting of all or a part of the Premises as permitted by this Lease,
and Landlord, as assignee and attorney-in-fact for Tenant, or a receiver for Tenant appointed on
Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease;
except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such
rent.
16.5 Information to be Supplied to Landlord
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Tenant shall supply Landlord with all information Landlord determines to be necessary on all
persons or firms to which Tenant proposes to sublet, transfer or assign any of its interest in the Premises,
or which might establish rights to enter, control, or otherwise encumber the Premises by reason of any
agreement made by Tenant. In addition, with respect to any proposed sublease, transfer or assignment,
Tenant shall provide Landlord with:
(a) a copy of all documents relating thereto,
(b) a statement of all terms and conditions of said transaction, including the consideration
therefor, and
(c) a copy of the financial statement of the prospective subtenant, transferee or assignee.
(d) a copy of all documents showing compliance by the prospective subtenant, transferee or
assignee with all of the bid eligibility requirements contained in the bid package.
16.6 Processing Fees for Assignments, Transfers and Subleases
(a) In addition to the sum specified in Section 4.3, a fee of one thousand five hundred dollars
($1,500) shall be paid to Landlord for processing each consent to assignment, transfer, or sublease to
Landlord as required by this Lease. This processing fee shall be deemed earned by Landlord when paid
and shall not be refundable.
(b) If a processing fee has been paid by Tenant for another phase of the same transaction, a
second fee will not be charged.
(c) The amounts specified above for processing fees shall be automatically adjusted at the end
of the first year of this Lease and every year thereafter in accordance with an annual fee schedule adopted
by Landlord. Landlord shall make said fee schedule available to Tenant upon receiving a request
therefor.
16.7 Encumbrances
Tenant shall not encumber the Premises in any manner whatsoever.
ARTICLE 17. NONDISCRIMINATION
Tenant, for itself, its personal representatives, successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) no
person, on the ground of race, color, or national origin shall be excluded from participation in, be denied
the benefits of, or otherwise subjected to discrimination in the use of said facilities, (2) in connection
with the construction of any improvements on said land and the furnishing of services thereon, no
discrimination shall be practiced in the selection of employees and contractors, by contractors in the
selection and retention of first-tier subcontractors, and by first-tier subcontractors in the selection and
retention of second-tier subcontractors, (3) such discrimination shall not be practiced against the public
in its access to and use of the facilities and services provided for public accommodations (such as eating,
sleeping, rest, recreation, and vehicle servicing) constructed or operated on, over, or under the Premises,
and (4) Tenant shall use the land in compliance with all other requirements imposed pursuant to Title
49, Code of Federal Regulations, Part 21 (49 C.F.R., Part 21) and as said regulations may be amended.
In the event of breach of any of the above nondiscrimination covenants, the Landlord shall have the right
to terminate this Lease, and to re-enter and repossess said land and the facilities thereon, and hold the
same as if said Lease had never been made or issued.
ARTICLE 18. SECURITY DEPOSIT
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Concurrently with Tenant's execution of this Lease, Tenant shall deposit with Landlord the sum
of $ 0.00 as a Security Deposit. Said sum shall be held by Landlord as a Security Deposit for the faithful
performance by Tenant of all of the terms, covenants and conditions of this Lease to be kept and
performed by Tenant during the term hereof. If Tenant defaults with respect to any provision of this
Lease, including but not limited to the provisions relating to the payment of rent and any of the monetary
sums due herewith, Landlord may use, apply or retain all or any part of this Security Deposit for the
payment of any other amount which Landlord may spend by reason of Tenant's default or use it to
compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said Deposit is so used or applied, Tenant shall within ten (10) days after
written demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount; Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on such deposit. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof shall be returned to Tenant
at the expiration of the Lease term and after Tenant has vacated the Premises.
ARTICLE 19. ADDITIONAL PROVISIONS
19.1 Quiet Enjoyment
Landlord covenants and agrees with Tenant that upon Tenant paying rent and other monetary
sums due under the Lease and performing its covenants and conditions, Tenant shall and may peaceably
and quietly have, hold and enjoy the Premises for the term.
19.2 Captions, Attachments, Defined Terms
The captions of the Articles of this Lease are for convenience only and shall not be deemed to be
relevant in resolving any question of interpretation or construction of any section of this Lease. Exhibits
attached hereto, and addenda and schedules initiated by the parties, are deemed by attachment to
constitute part of this Lease and are incorporated herein. The words "Landlord" and "Tenant," as used
herein, shall include the plural as well as the singular. Words used in neuter gender include the masculine
and feminine and words in the masculine or feminine gender include the neuter. If there be more than
one Landlord or Tenant, the obligations hereunder imposed upon Landlord or Tenant shall be joint and
several. If the Tenants are husband and wife, the obligations shall extend individually to their sole and
separate property as well as to their community property.
19.3 Entire Agreement
This instrument along with any exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this agreement and the exhibits and
attachments may be altered, amended or revoked only by an instrument in writing signed by both
Landlord and Tenant. Landlord and Tenant agree hereby that all prior or contemporaneous oral
agreements between and among themselves and their agents and representatives relative to the leasing
of the Premises are merged in or revoked by this agreement.
19.4 Severability
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If any terms or provision of this Lease shall, to any extent, be determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforceable to the fullest extent permitted by
law.
19.5 Costs of Suit
If Tenant or Landlord shall bring any action for any relief against the other, declaratory or
otherwise, arising out of this Lease, including any suit by Landlord for the recovery of rent or possession
of the Premises, the losing party shall pay the successful party a reasonable sum for attorney's fees which
shall be deemed to have accrued on the commencement of such action and shall be paid whether or not
such action is prosecuted to judgment. Should Landlord, without fault on Landlord's part, be made a
party to any litigation instituted by Tenant or by any third party against Tenant, or by or against any
person holding under or using the Premises by license of Tenant, or for the foreclosure of any lien for
labor or materials furnished to or for Tenant or any such other person or otherwise arising out of or
resulting from any act or transaction of Tenant or of any such other person, Tenant shall save and hold
Landlord harmless from any judgment rendered against Landlord or the Premises or any part thereof,
and all costs and expenses, including reasonable attorney's fees, incurred by Landlord in connection with
such litigation.
19.6 Time, Joint and Several Liability
Time is of the essence of this Lease and each and every provision hereof, except as to the
conditions relating to the delivery of possession of the Premises to Tenant. All the terms, covenants and
conditions contained in this Lease to be performed by either party if such party shall consist of more
than one person or organization shall be deemed to be joint and several, and all rights and remedies of
the parties shall be cumulative and non-exclusive of any other remedy at law or in equity.
19.7 Binding Effect; Choice of Law
The parties hereto agree that all the provisions hereof are to be construed as both covenants and
conditions as though the words importing such covenants and conditions were used in each separate
section hereof; and all of the provisions hereof shall bind and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns. This Lease shall be governed
by the laws of the State of California.
19.8 Waiver
No covenant, term or condition or the breach thereof shall be deemed waived, except by written
consent of the party against whom the waiver is claimed and any waiver or the breach of any covenant,
term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same
or any other covenant, term or condition. Acceptance by Landlord of any performance by Tenant after
the time the same shall have become due shall not constitute a waiver by Landlord of the breach or
default of any covenant, term or condition. Acceptance by Landlord of any performance by Tenant after
the time the same shall have become due shall not constitute a waiver by Landlord of the breach or
default of any covenant, term or condition unless otherwise expressly agreed to by Landlord in writing.
19.9 Surrender of Premises
RW Use Agreement Short Tenn FHWA 05/2021 20
The voluntary or other surrender of this Lcase by Tcnant, or a mutual cancellation thereof, shall
not work a merger and shall, at the option of the Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it of any or all such subleases
or subtenancies.
19.10 Holding Over
If Tenant remains in possession of all or any part of the Premises after the expiration of the term
hereof, with or without the express or implied consent of Landlord, such tenancy shall be from month to
month only and not a renewal hereof or an extension for any further term, and in such case, rent and
other monetary sums due hereunder shall be payable at the time specified in this Lease and such month-
to-month tenancy shall be subject to every other term, covenant, condition and agreement contained
herein, except that the monthly rental rate set forth in Section 4.1 may be increased by Landlord effective
the first month of the holdover period, or upon 30 days notice any time thereafter.
19.11 Interest on Past Due Obligations
Except as expressly herein provided, any amount due to Landlord not paid when due shall bear
interest at a rate one percent (1%) above the discount rate of the Federal Reserve Bank of San Francisco
from the due date. Payment of such interest together with the amount due shall excuse or cure any
default by Tenant under this Lease.
19.12 Recording
Neither Landlord nor Tenant shall record this Lease.
19.13 Notices
All notices or demands of any kind required or desired to be given by Landlord or Tenant
hereunder shall be in writing and shall be deemed delivered forty-eight (48) hours after depositing the
notice or demand in the United States mail, certified or registered, postage prepaid, addressed to the
Landlord or Tenant respectively at the addresses set forth in Article 1.
19.14 No Reservation
Submission of this instrument for examination or signature by Tenant does not constitute a
reservation of or option for lease; it is not effective as a lease or otherwise until execution and delivery
by both Landlord and Tenant.
19.15 Corporate Authority
If Tenant is a corporation, each individual executing this Lease on behalf of said corporation
represents and warrants that he/she is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of Directors of said corporation
or in accordance with the Bylaws of said corporation, and that this Lease is binding upon said corporation
in accordance with its terms. If Tenant is a corporation, Tenant shall, within thirty (30) days after
execution of this Lease, deliver to Landlord a certified copy of resolution of the Board of Directors of
said corporation authorizing or ratifying the execution of this Lease.
RW Use Agreement Short Term F11WA 05/2021 21
19.16 Force Majeure
If either Landlord or Tenant shall be delayed or prevented from the performance of any act
required hereunder by reason of acts of God, governmental restrictions, regulations or controls (except
those reasonably foreseeable in connection with the uses contemplated by this Lease) or other cause
without fault and beyond the control of the party obligated (except financial inability), performance of
such act shall be excused for the period of the delay and the period for the performance of any such act
shall be extended for a period equivalent to the period of such delay. Nothing in this clause shall excuse
Tenant from prompt payment of any rent, taxes, insurance or any other charge required of Tenant, except
as may be expressly provided in this Lease.
19.17 Tenant Contact Information
Tenant shall immediately notify Landlord of any changes to Tenant's contact information,
including the contact name, telephone numbers, mailing address, and email address.
In Witness Whereof Landlord and Tenant have executed this Lease as of the date first written
above.
LANDLORD: STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION
t
Dated: 07/01/2021 By:
JULIE McDANIEL
District Office Chief
Right of Way Airspace Development
TENANT: CITY OF SAN RAFAEL
Dated: Z lt..... By:
ATTEST:
LIN AY LARA, City Clerk
APPROVED AS TO FORM:
41 0, h�tt-10- -
ROBERT F. EPSTEIN, City Attorney
RW Use Agreement Short Term FHWA 05/2021 22
EXHIBIT A (2 pages)
June 28 2021 1 1.05
u1 r r
i. Right of Way Boundary o";e.9 - 03
-1541, 0111
0
June 28, 2021 1.1 KI
h. ... Right orWay Boundary C-31 1 F-
13
F -Q "Ll
RW Use Agreement Short Term FHWA. 05 2021 23
lune 29. N21
Right or Way Boundary F !Cr2, 1 f ).A w. re, 1
sn jk
31) , L,l
TI• -S'S lll.lc Q1, "It"
RW Use Agreement Short Term FFIWA — 05/2021 24
EXHIBIT B
Stormwater Pollution Prevention
Parking Lots
Leaking Vehicles
Clean parking lots on a regular basis to prevent accumulated wastes r
and pollutants from being discharged into storm drain systems t
during rainy conditions When cleaning heavy oily deposits, use
absorbent materials on oily spots prior to sweeping or washing .
Dispose of used absorbents appropriately
Allow sheet runoff to flow into biofilters (vegetated strip and Swale) T4s
and/or infiltration devices Utilize sand filters or oleophilic collectors ay
for oily waste in low concentrations. Clean out oil/water/sand
separators regularly, especially after heavy storms.
Have designated personnel conduct inspections of the parking
facilities and storm drain systems associated with them on a regular
basis. Inspect cleaning equip ment/sweepers for leaks on a regular
basis.
Have spill cleanup materials readily available and in a known location Cleanup spills immediately and use dry methods if
possible Properly dispose of spill cleanup material.
Trash
■ Post "No Littering" signs and enforce anti -litter laws.
■ Provide trash receptacles in parking lots to discourage litter. Clean out and cover trash receptacles frequently to prevent
spillage. Regularly inspect, repair, and/or replace trash receptacles.
• Routinely sweep, shovel and dispose of litter in the trash. Remove litter and debris from drainage grates, trash racks and
ditch lines to reduce discharge to the storm waterdrainage systems and watercourses
• Provide regular training to field employees and/or contractors regarding cleaning of paved areas and proper operation of
equipment
RW Use Agreement Short Term FNWA — 05/2021 25
EXHIBIT C
Per Section 5.2, Tenant does not know nor has reasonable cause to believe that any release of
hazardous material has come to be located on or beneath the Premises
RW Use Agreement Short Term FHWA 05/2021 26