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HomeMy WebLinkAboutAgr 1995-03-01 (Landmarks Society)INDENTURE OF LEASE THIS INDENTURE OF LEASE is made the 1st of March, 1995, by and between the Town of Tiburon, a municipal corporation ("Lessor"), and the Belvedere-Tiburon Landmarks Society, a California corporation (".Lessee"). W I T N E S S E T H: FOR AND IN CONSIDERATION of the covenants and agreements herein contained, by this Indenture of Lease, Lessor does hereby lease to Lessee, and Lessee does hereby take and hire from Lessor, that certain real property, with all buildings and improvements presently or from time to time hereafter thereon, including without limitation the "Donahue Building", and all appurtenances, situated in the Town of Tiburon, County of Marin, State of California, marked by cross-hatching on the plat map in Exhibit A, such Exhibit being attached hereto and by this reference incorporated herein (the "premises"); TO HAVE AND TO HOLD the premises unto Lessee, and the successors and assigns of Lessee, for and during a term of 99 years commencing on the 1st day of March, 1995, and expiring on the 28th day of February, 2094 (unless this Lease shall sooner terminate as hereinafter provided), it being mutually agreed as follows: ARTICLE I Pavment of Rent Section 1. Lessee shall pay rental hereunder (hereinafter referred sum of $1.00 per annum. Section 2. The basic rent fi paid in advance, concurrently with the this Lease, receipt of which is hereby to Lessor net annual basic to as "basic rent") the or the entfre~term has been execution and delivery of acknowledged,by Lessor. ";ii ARTICLE II Delivery of Premises Lessor shall deliver possession of the premises to Lessee on the date hereof free and clear of any other occupancy rights therein. ARTICLE III Use of Premises Section 1. Lessee shall use the premises for a railroad, ferry and local history museum and related uses, for office and storage space for Lessee related thereto and any other use from time to time permitted by Lessor. Lessee shall not use the premises in a manner that would conflict with the uses set forth in that certain Subdivision Improvement Agreement among The Innisfree Companies, Point Tiburon Condominiums and Lessor, dated February 15, 1984. Section 2. Subject to the prior written approval of Lessee, Lessor may use the premises for occasional and non- recurring events sponsored by Lessor that do not conflict or otherwise interfere with the uses permitted by this Lease or by the Subdivision Improvement Agreement. ARTICLE IV Regulation of Premises Lessor has the right to impose reasonable regulations relating to parking on the premises, and hours of use of any buildings now or at any time erected on the premises, consistent with regulations governing other commercial and public uses of buildings in Lessor's jurisdiction. Lessor and Lessee shall meet periodically to establish, review and, if necessary, revise such hours of use. ARTICLE V Insurance Section 1. Lessor shall, at Lessor's sole cost and expense, maintain during the term of this lease, a standard all risk property insurance policy in an amount consistent with other public buildings owned or occupied by Lessor. -2- Section 2. Lessee shall, at Lessee's sole cost and expense, maintain during the term of this lease a policy of commercial general liability insurance in an amount not less than $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. The level of insurance required by this section shall be reviewed by Lessor every five years or at such time as use of the property may change in order to ensure that the level is consistent with then current standards. The Town of Tiburon, its officers, employees, agents and volunteers shall be named as additional insureds with respect to liability arising out of activities performed by or on behalf of Lessee. For any claims related to Lessee's use or occupation of the premises, Lessee's insurance shall be primary. Any insurance or self-insurance maintained by Lessor shall be in excess of Lessee's insurance. The insurance policy required by this section shall be endorsed to state that coverage shall not be suspended, voided, cancelled or reduced in its limits without thirty (30) days prior written notice. Lessee shall provide Lessor with proof of this insurance on an annual basis. Section 3. Lessee agrees to indemnify and hold harmless Lessor, its officers and employees from any and all claims, demands, actions, causes of action, losse-s, damages, liabilities and all costs and expenses, including reasonable attorneys' fees, arising from any injury or damage to persons or property arising out of or in any way connected with the act, omission or negligence of Lessee, its officers, employees or agents. -3- ARTICLE VI Condition of Premises Lessee accepts the premises in "as is" condition as of the date of this Lease, except that Lessor shall remove all files and other personal property currently in the premises, and shall deliver the premises broom clean. ARTICLE VII Repairs and Maintenance Section 1. Lessee, at Lessee's sole cost and expense, shall keep and maintain all buildings and improvements at any time erected on the premises, and all landscaping immediately adjacent thereto as shown on Exhibit A (such area consisting of the space between the existing building and the edge of the sidewalk nearest such building), in good and sanitary order, condition and repair, and shall promptly make all' necessary repairs thereto, interior and exterior, structural and non- structural, including without limitation all lighting attached thereto. Section 2. Lessor, at Lessor's sole cost and expense, shall keep and maintain the premises and the adjacent sidewalks, parking areas and open space (including landscaping) in good and sanitary condition and repair, and shall promptly make all necessary repairs thereto, structural and non-structural, excepting only the maintenance and repair to the premises that is the responsibility of Lessee pursuant to Section 1. ARTICLE VIII Compliance with orders, Ordinances, Etc. Section 1. Lessee, at Lessee's sole cost and expense, shall comply with all laws and ordinances and the orders, rules, regulations and requirements of all federal, state and municipal governments and other governmental or quasi-governmental authorities which are applicable to the premises or to any buildings now or at any time erected thereon (including without limitation the Americans with Disabilities Act (to the extent applicable to the premises) and all ordinances adopted by Lessor -4- in its capacity as Town Council with respect to architectural, site plan and sign review); provided, however, Lessee shall be entitled to any and all exceptions, exclusions, exemptions or other benefits available for historical buildings or other similar uses or purposes. Section 2. Lessee shall have the right to contest by appropriate legal proceedings, without cost or expense to Lessor, the validity of any law, ordinance, order, rule, regulation, or requirement of the nature referred to in this Article VII, and if compliance with any such law, ordinance, order, rule, regulation, or requirement may legally be held in abeyance without subjecting Lessee or Lessor to any liability of whatsoever nature for failure to comply therewith, Lessee may postpone compliance therewith until the final determination of any such proceedings, provided that all such proceedings shall be prosecuted with all due diligence and dispatch. Section 3. Subject to the requirements of Section 1 of this Article, Lessee may undertake to alter, renovate or restore any building now or at any time erected on the premises without the consent of any other party. Notwithstanding the foregoing, Lessee shall not alter the exterior color of any building now or at any time erected on the premises without the prior written consent of Lessor and the Point Tiburon Homeowners Association, which consent shall not be unreasonably withheld or delayed. ARTICLE IX Mechanic's Liens Section 1. Lessee shall not suffer or permit any liens to be filed against the premises, against Lessee's leasehold interest, or against any part of any thereof, by reason of work, labor, services or materials supplied or claimed to have been supplied to Lessee or to any one holding the premises or any part of or interest in the premises. Section 2. Lessee, however, shall have the right to contest any such lien or liens provided, that, within thirty (30) days after any such lien is filed or record Lessee shall give -5- notice to Lessor of intention to contest the same specifying the amount of the lien or liens to be contested, and provided that Lessee shall proceed with reasonable diligence to contest the validity or amount of such lien or liens by appropriate legal proceedings which operate to prevent the foreclosure or enforcement of such lien. ARTICLE X Changes and Alterations, Demolition, Construction Section 1. If at any time during the term of this Lease any building or buildings on the premises are totally or partially destroyed by fire or other casualty to such an extent that the cost to repair and restore the same would exceed 50% of the cost to replace the entire building or buildings immediately prior to such destruction, or if Lessee desires for any reason to change or alter such building or buildings on the premises, then, in any such event, Lessee shall have the right to change or alter such building or buildings or to demolish the existing building or buildings and, with the prior written approval of Lessor, which approval shall not be unreasonably withheld, construct a new building or buildings which, to the extent practicable, shall be substantially in the form of the previously existing building or buildings, as the case may be, upon and subject to all of the following terms and conditions which Lessee shall observe and perform: (a) No work shall be undertaken until - (i) Lessee shall have obtained and paid for all permits and authorizations of the various state and municipal departments or other governmental or quasi-governmental authorities having jurisdiction necessary for completion of the work, and (ii) Lessee shall have given Lessor at least ten (10) days prior written notice setting forth in reasonable detail the nature of the intended work and the date upon which the work is to be commenced and given Lessor an adequate opportunity to post and file due notices of nonresponsibility; -6- (b) All work shall be undertaken and conducted under the supervision of reputable and competent personnel, and no work shall be undertaken or conducted by any contractor or subcontractor for any portion of the work who is not competent, reputable and financially responsible; and (c) All work shall be done promptly in a good and workmanlike manner, shall be prosecuted to completion (including, in the case of demolition of any existing building or buildings, completion of a replacement building or buildings in compliance with the requirements of this Section) with reasonable dispatch, delays due to fires, explosions, strikes, lockouts, acts of God, inability to obtain labor or materials, governmental restrictions or other causes of a force majeure nature beyond the control of Lessee excepted. Section 2. Any improvements constructed on the premises in compliance with the provisions of this Article shall belong to Lessor; provided, however, that the term "premises" as used in this Lease shall nevertheless at all times mean and refer to the original premises together with all buildings and improvements from time to time thereon. ARTICLE XI Entry of Premises by Lessor Lessor and its representatives shall be permitted to enter the premises at all times during usual business hours for the purpose of inspecting the same and posting and maintaining notices of nonresponsibility. ARTICLE XII Assignment and Subleases Section 1. Lessee may not, at any time or from time to time, sublease all or any part of the premises, or assign its entire interest in this Lease, to another entity without the prior written approval of Lessor, which approval shall not be unreasonably withheld or delayed. Each sublease shall expressly provide that the rights, title and estate of the sublessees are subordinate and inferior to the rights, title and estate of -7- Lessor hereunder and that the subtenant thereunder shall be bound by the provisions of this Lease. Section 2. Except as authorized by Sections 1 of this Article, Lessee shall not assign, sublet, transfer, hypothecate or otherwise voluntarily or involuntarily alienate or encumber the Lessee's interest under this Lease, the rents, issues or profits from the premises or any buildings thereon, or any right or interest in any thereof, or attempt so to do, without the prior written consent of Lessor, which consent shall not be unreasonably withheld. Following any outright assignment of Lessee's entire interest under this Lease either pursuant to Section 1 of this Article, to which Lessor shall have consented or to which Lessor shall have unreasonably refused to consent despite being obligated hereunder not to unreasonably refuse to consent, Lessee named herein (or in the case of each subsequent assignment, the then assignor) shall be relieved from and after such assignment of all personal liability as respects performance of any covenants or obligations on the part of Lessee contained in this Lease thereafter to be performed; provided, however, that the Lessee named herein (or such subsequent assignor) shall remain personally liable for the performance of (but need not personally perform) all covenants and obligations of Lessee under this Lease to be performed to and including the assignment. Section 3. The rights of any sublessee, assignee, trustee or transferee shall be subject and subordinate to the terms of this Lease, and no consent to any assignment, mortgage, deed of trust, subletting, or other hypothecation or transfer shall be deemed a waiver of the conditions and requirements of this Article with respect to any further assignment, subletting, hypothecation or transfer. Section 4. Neither the voluntary nor other surrender of this Lease by Lessee nor a mutual cancellation or other early termination thereof shall work a merger but shall, at the option of Lessor, terminate any existing subleases, or may, at the -8- option of Lessor, operate as an assignment to Lessor of any and all such subleases in which event the subtenants thereunder shall attorn to Lessor and Lessor shall not (a) be liable for any act or omission of Lessee, (b) be subject to any off-sets of deficiencies which any subtenant may be entitled to assert against Lessee or (c) be bound by any payment of rent or additional rent made by such subtenant to Lessee for more than one month in advance. ARTICLE XIII Public Utility Charges Lessee shall pay or cause to be paid all charges for telephone lines, and all utilities which are separately metered, in connection with the premises throughout the term of this Lease. The cost of any new meters to separately charge the premises shall be paid for by Lessor. ARTICLE XIV Damage or Destruction Section 1. In the event of damage to or destruction of any building or other improvements on the premises, by fire or otherwise, whether insured or uninsured and whether foreseeable or unforeseeable, unless Lessee shall be privileged pursuant to the provisions of Article IX of this Lease to demolish and shall demolish the buildings on the premises with all reasonable diligence in compliance with the terms and provisions in Article IX set forth, Lessee shall have the right to either (a) promptly and diligently, at its sole cost and expense, repair, restore and rebuild the same as nearly as possible to the condition that existed immediately prior to such damage or destruction with such changes or alterations as may be practicable under the then existing and circumstances, or (b) surrender the premises in the condition herein required and thereupon terminate this Lease. The provisions and conditions of Article IX shall similarly apply to work required by this Article. Section 2. Any and all proceeds of insurance on account of damage or destruction, less the cost, if any, of -9- recovery thereof shall be released and paid out to Lessee upon Lessee's delivery of written evidence to Lessor that the proceeds will be used to repair the damaged building or other improvements on the premises. Section 3. Lessor shall not be responsible for the collection or noncollection of any insurance money in any event, but only for such insurance money as Lessor may actually receive. ARTICLE XV Default Section 1. Lessee shall not, during the term of this Lease: (a) make an assignment for the benefit of creditors; (b) suffer any receiver of any of Lessee's property to be appointed by reason of the insolvency or alleged insolvency. of Lessee and remain undischarged for a period of 60 days; (c) suffer any department of the state of federal government, or any officer thereof duly authorized, to take possession of the business or property of Lessee by reason of the insolvency or alleged insolvency of Lessee; (d) file any petition under any law having for its purpose the adjudication of Lessee as a bankrupt or the extension of the time of payment composition, adjustment, modification, settlement or satisfaction of the liabilities of Lessee or to which any property of Lessee may be subject, or the reorganization or liquidation of Lessee (other than a reorganization not involving the liabilities of Lessee); (e) suffer any such petition to be filed and remain undismissed for a period of 60 days; or (f) suffer any such petition to be approved, or any adjudication of Lessee as a bankrupt. Section 2. In the event that, within 3.0 days after written notice to Lessee of breach or default by Lessee in fulfilling any of the covenants of this Lease, Lessee shall not have cured such default (or if the default is of such a nature that it cannot be cured within such 30 day period, Lessee shall not have commenced to cure such default within said 30 day period or thereafter Lessee shall have failed to proceed with all due diligence to cure such default or shall have failed to cure the -10- same within a reasonable period of time), then, in any such event, in addition to any other rights and remedies of Lessor at law or in equity, Lessor shall have the right either to terminate Lessee's right to possession of the premises and thereby terminate this Lease or to have this Lease continue in full force and effect with Lessee at all times having the right to possession of the premises. Should Lessor elect to terminate Lessee's right to possession of the premises and terminate this Lease, then Lessor shall have the immediate right of entry and may remove all persons and property from the premises and to use all necessary force so to do; and Lessor may store any property so removed in a public warehouse or elsewhere at the cost and for the account of Lessee. Should Lessor, following any breach or default of this Lease by Lessee, elect to keep this Lease in full force and effect, Lessee retaining the right to possession of the premises (notwithstanding the fact that Lessee may have abandoned the premises), then besides all other rights and remedies Lessor may have at law or in equity, Lessor shall have the right to enforce all of Lessor's rights and remedies under this Lease. Notwithstanding any election to have this Lease remain in full force and effect, Lessor may at any time thereafter elect to terminate Lessee's right to possession of said premises and thereby terminate this Lease for any previous breach or default which remained uncured, or for any subsequent breach of default. ARTICLE XVI Invalidity of Particular Provisions If any term or provision of this Lease or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is 'invalid or unenforceable, shall not be affected thereby, and each term and -11- provision of this Lease shall be valid and enforced to the fullest extent permitted by law. ARTICLE XVII Notices All notices, demands and requests which may or are required to be given by either party to the other, shall be in writing and shall be sent by United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: If to Lessee, at 1600 Juanita Lane, Belvedere-Tiburon, California 94920, attention: President, or at such other place as Lessee may from time to time designate in a written notice to Lessor; If to Lessor, 1155 Tiburon Boulevard, Tiburon, California 94920, attention: Town Manager, or at such other place as Lessor may from time to time designate in a written notice to Lessee; or If to any leasehold mortgagee or beneficiary under leasehold deed of trust, at the premises or at such other place as such mortgagee or beneficiary may from time to time designate in a written notice to Lessor. Notices, demands and requests which shall be served in the manner aforesaid shall be deemed sufficiently served or given when deposited in the United States Mail as aforesaid at a point within the continental limits of the United States. However, the time period in which response to any such notice, demand or request must be given or within which action must or may be taken pursuant thereto shall commence to run from the date of receipt on the return receipt of the notice, demand or request by the addressee thereof. Rejection or other refusal to accept or the inability to deliver at the address as designated because of changed address of which no notice was given or because of failure to provide procedures for the delivery of mail at such address shall be deemed to be receipt of the notice, demand or request sent. -12- ARTICLE XVIII Surrender of Premises on the expiration or prior termination of this Lease, the premises and all buildings, improvements, alterations, additions and new buildings, shall be the absolute property of Lessor without payment therefor by Lessor, and shall be surrendered to Lessor in good and sanitary order, condition and repair except for ordinary wear and tear and free of subleases, liens, charges, restrictions or encumbrances; and Lessee shall execute any and all deeds, bills of sale, assignments and other documents which in Lessor's sole judgment may be necessary or appropriate to transfer or evidence clear title to the premises and such buildings, structures, improvements, alterations, additions and new buildings. ARTICLE XIX Quiet Enjoyment Upon and observing and keeping the covenants, agreements and conditions of this Lease on its part to be kept, Lessee shall lawfully and quietly hold, occupy, and enjoy the premises during the term of this Lease without hindrance or molestation of Lessor or any person or persons claiming under Lessor. ARTICLE XX Estoppel Certificates Lessee and Lessor shall each, at any time and from time to time upon not less than 10 days prior written request by the other, execute, acknowledge and deliver to the other party a statement certifying that this Lease is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as modified and stating the modification), and the dates to which the basic rent, additional rent and other charges have been paid in advance, if any, and the nature and extent or absence of any defaults by Lessor or Lessee, it being intended that any such statement delivered pursuant to this Article may be relied upon by any prospective purchaser, -13- mortgagee or beneficiary under deed of trust of the Lessee's interest hereunder or of the Lessor's fee interest and by any prospective assignee of any such mortgagee or beneficiary. The statement so delivered by Lessee to any prospective mortgagee or beneficiary under deed of trust of the Lessor's fee interest, or prospective assignee of any such mortgagee or beneficiary, shall include Lessee's written undertaking, for the benefit of such prospective beneficiary, mortgagee or assignee, not to pay any basic rent, additional rent or other sum payable hereunder to Lessor more than 30 days prior to accrual. ARTICLE XXI Cumulative Remedies - No Waiver - No Oral Change Section 1. The specified remedies to which Lessor may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Lessor may be lawfully entitled in case of any breach or threatened breach by Lessee of any provision of this Lease. The failure of Lessor to insist in any one or more cases upon the strict performance of any of the covenants of this Lease or to exercise any option herein contained shall not be construed as a waiver or a relinquishment for the future of such covenant or option. Section 2. This Lease cannot be amended, modified or changed orally but only by an instrument in writing executed by the then holders of the respective interests of Lessee and Lessor and by the holder or holders of record of the beneficiary interest under each then existing deed of trust or mortgage of either Lessee's interest hereunder or Lessor's fee interest, which deed of trust or mortgage is authorized as provided in this Lease. ARTICLE XXII Option to Terminate Lease . Lessor hereby grants to Lessee the right to terminate this Lease, which right may be exercised by Lessee upon not less than one (1) years' prior written notice to Lessor. Except as -14- provided in Article XXII, any such termination shall not relieve Lessee of any and all duties and obligations of Lessee under Lease which arise or accrue prior to the date of any such termination. ARTICLE XXIII Hazardous Materials Any hazardous materials, substances or wastes present on the premises at the inception of the lease term are and will remain the obligation of the Lessee to remediate; provided, however, if Lessee in its sole discretion determines that it does not wish to undertake remediation, Lessee shall have the right to terminate this Lease upon not less than 60 days' prior written notice to Lessor, and upon the exercise of such right Lessee shall have no obligation to remediate such hazardous materials, substances or wastes. Hazardous materials, substances or wastes deposited on the premises by Lessee after the inception of the lease term shall be the responsibility of the Lessee. ARTICLE XXIV Miscellaneous Section 1. Subject to the express terms of this Lease, the covenants and agreements herein contained shall bind and inure to the benefit of Lessor and Lessee and their respective successors and assigns. Section 2. The captions of this Lease are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease nor of any provision hereof. -15- Section 3. This Lease shall be construed and enforced in accordance with the laws of the State of California. IN WITNESS WHEREOF, this Lease has been executed the day and year first above written. TOWN OF TIBURON, a municipal corporation B a 3-)4~ andpNDR,F.vv 4cmpsok~ 7AYyo? BELVEDERE-TIBURON LANDMARKS SOCIETY, a California corporation By -16- D N { a c~ N LA 0 Tn p a b d c~ G ~l N O T44 ~ N M W I N O V C OC O Q O J J t ~ O O~ r % 1 ~ ~ 1 ru .45 rm w.-p p LO C\j 7 0) V C o~a O A . NdU • _T o ~O ZQ O 5 mm 0 1 ~V Q m J n: w W LL 1 m LL = Q O 7 M , LLJ m LL- p 0 O S m ►-~I m~ IJ-1 O _m " r .-i O W p ® ru c 1 a O