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HomeMy WebLinkAboutAgr 2013-03-08-2013 (Downtown Restrooms/Zelinksy Lease)DIGEST TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Date: March 8, 2013 To: Mayor and Town Council From: Ann R. Danforth, Town Attorney Subject: Lease with Zelinsky Properties for Downtown Restrooms The Town Council considered the subject lease at its regular meeting on March 6, 2013. During the Council discussion of the item, Council member Fraser noted that the biannual four percent automatic rate increases would compound, creating a significant increase over the 20 -year life of the lease. He suggested that staff ask Zelinsky Properties if they would amend the lease to provide that the rental increase would be the lesser of 4% or the rise in the consumer price index every two years. I said that I thought that this was a reasonable request and the Council included a note that the issue be explored in its motion approving the agreement. I presented this request to the Zelinsky Properties' attorney, Claude Perasso, on March 7a'. He was unpleasantly surprised, but agreed to convey the request to his client. Mrs. Zelinsky rejected the proposal, indicating that given the low initial rental, the current provisions for four percent biannual increases was fair and appropriate. Staff interpreted the Council's discussion of this item as direction to request the modification of the rent increase provision rather than as a condition of approval. Accordingly, now that the matter is settled, we intend to proceed to finalize and execute the lease. TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed By: BACKGROUND Mayor and Members of the Town Council Office of the Town Attorney Town Council Meeting March 6, 2013 Agenda Item: 4f- Recommend ati on to Approve an Agreement with Zelinsky Properties to Lease Public Restrooms in the Downtown; Authorize Town Manager to Negotiate and Execute Agreement with State Parks; Approve Plans and Specifications and Authorize Solicitation for Bids. For many years, the restrooms at 23 -25 Main Street have served customers of Sam's Anchor Caf6, Angel Island Ferry and the general public. Since 1996, the State of California has leased the restrooms from Zelinsky Properties. Sam's has maintained the restrooms, with financial contributions from Angel Island Ferry, the Chamber of Commerce and the Town. The State's lease will expire in 2014 and the State has decided not to renew it. To ensure that the facilities remain available to downtown visitors, the Town has negotiated a new lease with Zelinsky Properties. The Town intends to perform much - needed reconstruction of the facilities, which will greatly enhance their appearance and comfort. Steve Sears and Brian Wilson, Sam's owners, have agreed to maintain the bathrooms at their cost and make a small contribution to the capital improvements. Staff is currently preparing an agreement to document that commitment. We also have a tentative agreement with the State to end its lease before the 2014 expiration date, with the State paying the Town the rental amount that would otherwise be due to the landlord under the lease. Finally, we are negotiating agreements with both the Angel Island Ferry and Blue and Gold ferry companies to contribute to the on -going costs of leasing the bathrooms and will also negotiate continuing participation from the Chamber of Commerce. I: "L.11 11 W L 1. The Lease The lease would be for a term of 20 years. The lease would commence on the termination of the current lease with the State of California; the current expiration date is June 30, 2014, but we expect to negotiate an earlier termination. The initial rent would be $700 per month, with a 4% increase every two years. This is a small increase from the State's current monthly payment of $684 per month. However, Zelinsky Properties requires a triple -net lease, which means that the Town would also be responsible for the utility, insurance, tax and other costs associated with the practice. We estimate that the initial annual costs would be as follows: TOWN OF TIBURON PAGE 1 OF 3 To\ nCouncilMecting Nlarch 6.2013 Rent: $8400 Insurance: $395 Water: $2700 Electricity: $721 Real Estate Taxes: $1648 Annual Sanitary District No. 5 Assessment: $5470 Total: $19,334 Note that we expect that the actual water cost will be lower, because the improvement project will install low -flow toilets and urinals. We also expect an additional cost for wastewater services, which we have not yet been able to quantify. We are trying to get this figure in advance of the Council meeting. Other significant provisions: 1. The Town is responsible for maintaining the premises, including the fixtures, plumbing, sewer and gas lines and HVAC. 2. The Town will indemnify, defend and hold the landlord harmless from any claims arising from the use of the premises. 3. The premises will be covered by the Town's ABAG plan. In the event of damage to or destruction of the premises that is not fully covered by available insurance proceeds, the Town will have the option of terminating the lease or repairing the premises to their condition prior to the cause of the damage or destruction. In the event that the property at 23 -25 Main Street is damaged to one third or more of its replacement value, the landlord shall have the option of terminating the lease. 4. In addition to the costs detailed above, the Town will be responsible for the premises' proportionate share of other expenses provided jointly to the entire property, such as refuse collection and recycling. We have calculated the proportionate share as 2.9 %, based on square footage. 2. Agreement with State Parks The State of California, Department of Parks and Recreation, has leased the restroom facilities since 1996. That lease will expire on June 30, 2014 and the State has decided not to renew it. Staff recommends completing the bathroom improvements before the next tourist season. Accordingly, we are negotiating an agreement with the State and Zelinsky Properties that would terminate their 1996 lease this spring. 3. Approval of Plans and Specifications; Authorize Solicitation of Bids Bull Stockwell Allen has completed plans and specifications for the proposed improvements, which are available for review at Town Hall. The project will replace the existing bathroom with modem, building code compliant facilities, including new tile and fixtures. ENVIRONMENTAL DETERMINATION Tani % of Tm ' RON Page 2 of 3 Town COUnCil Meeting March 6, 2013 Staff has preliminarily determined that the project is exempt from CEQA pursuant to Section 15301 of the CEQA Guidelines, in that the project is for the maintenance and repair of existing facilities. FINANCIAL IMPACT The architect estimates that the capital improvements will cost approximately $135,000. Sam's Caf6 has agreed to contribute $5000.00 towards the improvements and the Town's current budget includes funding sufficient for the remaining costs. Staff estimates that costs associated with leasing the premises will total approximately $19,334 per year. We anticipate that these costs will be offset to some degree by contributions from Angel Island Ferry, Blue and Gold Ferry and the Chamber of Commerce on an on -going basis and, until June 30, 2014, by payments from the State of California. Maintenance will be the responsibility of Sam's Anchor WE RECOMMENDATION Staff recommends that the Town Council: 1. Move to approve the attached Lease Agreement with Zelinsky Properties and authorize the Town Manager to execute it after making any necessary minor changes.' 2. Move to authorize the Town Manager to negotiate and execute an agreement with the State of California and Zelinsky Properties terminating the lease of March 6, 1996. 3. Authorize the Town Manager to negotiate agreements with Sam's Anchor Caf6, Blue and Gold Ferry, Angel Island Ferry and the Chamber of Commerce and present these agreements to the Town Council for approval at a subsequent meeting. 4. Find the project exempt from CEQA pursuant to Section 15301 of the CEQA Guidelines. 5. Move to approve the draft plans and specifications; and 6. Move to authorize the solicitation of bids Exhibits: 1) Draft Lease with Zelinsky Properties 2) Floor plan of reconstructed restrooms Prepared By: Ann R. Danforth, Town Attorney ' The base document contains a number of formatting inconsistencies, which staff will correct after the Council approves the substance of the agreement. TONV\: OF l -1MiR N Page 3of3 LEASE This lease between, Zelinsky Properties, LLQ'Landlord') and The Town of Tiburon, a municipal corporation of the State of California ("Tenant' )is executed and effective on , 2013 ("Lease'). ARTICLE 1. PREMISES. Landlord leases to Tenant and Tenant leases from Landlord, subject to the following terms and conditions, the real property located in the Town of Tiburon, State of California and more particularly described as follows: Consisting of the interior of approximately 352 square feet of dock space, consisting of a restroom facility as more particularly described as Parcel "C" in Exhibit "A" attached hereto and incorporated herein by this reference (" Restroom Facility") and the unlimited pedestrian use of access including Parcel "A" in Exhibit "A" and common areas associated with said dock ("Premises "). The Restroom Facility is located in a larger building that consists of approximately 12,167 square feet ("Property"). Wherever this Lease requires Tenant to pay a share of the taxes and other expenses associated with said building and the parcel upon which it is located, the Tenant's share shall be calculated based on the square footage of the Restroom Facility relative to the square footage of the Property, which is agreed to be 2.9 % ("Proportionate Share ") unless expressly indicated otherwise herein. Landlord makes no representation or warranty regarding the square footage of the Premises. Any square footage stated above is approximate only, and in the event the actual square footage shall be greater or less than the amount stated, no rental or other adjustment shall be made between the parties. 2.1 Term. This Lease shall begin on the earlier of (a) July 1, 2014 or (b) the termination of the lease between Landlord and the State of California dated March 5, 1996 (Commencement Date) and shall continue for a period of 20 years ( "Tern") ending on the twentieth anniversary of the Commencement Date (Expiration Date), unless otherwise terminated in accordance with the provisions of this Lease. 2.2 Delivery of Possession. Upon execution of lease and recovery of Premises from the current tenant. a. If Landlord has not delivered possession of the Premises to Tenant by July 1, 2014, Landlord or Tenant may terminate this Lease by giving the other party 10 days prior written notice of such election to terminate. Landlord shall not be liable to Tenant for damages of any kind. If either party terminates this Lease in accordance with this section 2.2, all money paid by Tenant to Landlord shall be refunded and both parties shall be released from all obligations under this Lease. b. Landlord agrees that Tenant may take possession of the Premises before the Commencement Date, on the condition that all provisions of this Lease shall apply; however, the Expiration Date of this Lease shall remain the same and Tenant's obligation to pay rent shall commence on the Commencement Date. I\:7111 O)0*34 A19KI� 3.1. Base Rent. Tenant agrees to pay monthly, in advance, to Landlord on the first day of each month during the Term of this Lease, as Base Rent for the Premises in the amount of $700.00 (seven hundred dollars) per month. The Base Rent shall be adjusted by the amount of 4 % (four percent) every two years. If Tenant's obligation to pay Base Rent does not commence on the first day of a calendar month, the Base Rent payable by Tenant for the first fractional month shall be prorated on a thirty (30) day basis. ARTICLE 4. TAXES. 4.1. Real Estate Taxes. The term "real estate taxes" shall mean any assessments, reassessments, supplemental assessments, license fees, rental taxes, sewer and/or waste disposal charges of any kind, penalties, levies, fees, taxes (other than estate, inheritance, or gift taxes) of any kind, or charges in lieu of taxes, levied by any federal, state, county or municipal government or governmental agency on: (a) the Property of which the Premises are a part; (b) Landlord's business of leasing the Premises and said Property; or (c) Landlord's income from the Premises and said Property, excluding any federal or state income taxes assessed on Landlord's net income. Said real estate taxes may be levied pursuant to a tax bill, supplemental tax bill or any other notice supplied that sets forth said levy. From and after the Commencement Date and continuing until the Expiration Date of the Term or any extension thereof, Tenant shall pay to Landlord as additional rent the Proportionate Share of real estate taxes (as defined herein), levied and assessed against the Property of which the Premises are a part and the underlying realty during each year of the Term, with the exclusion of the annual assessment imposed by Sanitation District No. 5's annual assessment ("San 5 Assessment "). Tenant shall pay the portion of the San 5 Assessment that is due to the use of the Premises as calculated by Sanitary District No. 5. If the Commencement Date or Expiration Date of the Term does not coincide with the applicable tax year, then the amount of taxes or San 5 Assessment payable by Tenant for such tax year shall be prorated on a 12 month basis. Tenant shall make all payments due under this section within 30 days after receipt of notice from Landlord setting forth the amount due and the manner by which it was calculated. 4.2. Personal Property. Tenant shall pay when due all taxes levied on Tenant's personal property, including but not limited to any improvements and finniture, fixtures and equipment ( "FF &E ") and any other property located in or on the Premises, and Tenant shall cause such taxes to be assessed and billed separately from Landlord's taxes and cause such tax bill to be sent directly to Tenant. 4.3. Any amount payable by Tenant to Landlord under Article 4 shall be paid by Tenant to and received by Landlord within 30 days after receipt by Tenant from Landlord of a bill setting forth such amount. The failure of Tenant to timely pay said amounts shall subject Tenant to the penalties set forth in Section 3.3 as well as any other remedies set forth herein. 4.4. In addition to the foregoing, Tenant shall pay 100% of any increased real estate taxes based upon or as a result of any improvements made by Tenant or Tenant's Work and/or resulting from any adjustment, including but not limited to transfer of ownership or improvements or alterations made to the Premises. ARTICLE 5. UTILITIES. 5.1 Tenant shall pay for all utilities or services of any kind supplied to the Premises as provided in this section. 5.2 The wastewater services, water and electricity supplied to the Premises are billed pursuant to separate meters. Tenant shall pay the actual cost of providing these services to the Premises as shown by said meters. 5.3 With respect to any other utilities and/or services that are not separately metered and/or billed directly to Tenant, but are metered jointly with other premises, including but not limited to, air conditioning, garbage, recycling and other utilities and services provided to or for the Premises, Tenant shall pay the Proportionate Share of all charges. Additionally, Tenant, upon written notice from Landlord shall reimburse Landlord for any and all costs of installing a separate meter or any other improvement necessary in order for all utilities to be separately metered and billed. Landlord shall not be liable in damages of any kind, including but not limited to consequential damages or damages for interruption and/or loss of business or otherwise for any failure or interruption of any utility service being provided to the Premises, and no such failure or interruption shall entitle Tenant to terminate this Lease or to discontinue the payment of rent or any other amount due hereunder. ARTICLE 6. SECURITY DEPOSIT. N/A ARTICLE 7. USE AND CONDITION OF PREMISES. 7.1. Use. Tenant shall use or permit the Premises to be used only for the operation of a public restroom facility. Tenant shall not use or permit the use of the Premises for any other purpose. Tenant shall not operate or allow the operation of the Premises to create any disturbance, including but not limited to loud music or other entertainment or objectionable odors or noise affecting the other tenants of the Property or the surrounding neighborhood. Tenant shall also install and maintain, pursuant to all applicable laws and regulations, ventilation or other necessary system that will dispose of all smoke, fumes, odors etc., from the Premises and Property. Tenant shall fully comply with all health and police regulations and shall not use or permit the use of the Premises for any purpose or in any manner which may constitute a violation of the laws of the United States or the laws, ordinances, regulations or requirements of any governmental entity having authority in the jurisdiction where the Premises are located. Tenant acknowledges that no warranties or representations have been made regarding the fitness or suitability of the Premises for the conduct of Tenant's business or whether Tenant's use is permitted by law. Tenant shall be responsible for obtaining all permits and approvals necessary and this Lease shall not be contingent upon obtaining all such permits and approvals. 7.2. N/A 7.3. Condition of Premises and Tenant's Work in the Premises. Tenant hereby acknowledges that Tenant has had a reasonable opportunity to inspect the Premises and to investigate all laws, rules and ordinances governing the improvement or use thereof. Tenant hereby accepts the Premises "AS- IS/WHERE -IS" on the date Tenant takes possession hereunder subject to all laws, ordinances and regulations applicable to the Premises, and their use, and any covenants or restrictions of record as well as all requirements of any fire or liability insurance underwriters or rating bureaus. Tenant shall perform all work in the Premises in a good and workmanlike manner and shall diligently prosecute all work to completion. Any work performed by Tenant shall be in accordance with all applicable government laws, ordinances, codes, and regulations, including but not limited to all applicable building codes, the Americans with Disabilities Act, and Title 24 of the California Code of Regulations. If any work performed by Tenant in the Premises or if Tenant's occupancy or use of the Premises triggers any government requirements, including but not limited to the installation of sprinklers or fire suppression measures, additional work or improvements to comply with any provisions of the Americans with Disabilities Act or other disability laws related to the Premises or the Property of which the Premises are a part, Tenant shall comply with those requirements at Tenant's sole cost. Tenant shall be solely responsible for obtaining all required government permits for any work Tenant performs in the Premises. Tenant shall not permit any work in the Premises to damage the Property, injure any person, or interfere with the business of any other occupant or tenant in the Property. ARTICLE 8. MAINTENANCE, REPAIR, REPLACEMENT AND ALTERATIONS. 8.1. Tenant's Obligations. a. Subject to the provisions of Article 11, except for that portion of the Premises to be maintained by Landlord as provided in Section 8.2., Tenant shall, at Tenant's expense, maintain, r] clean, provide janitorial, repair and replace when reasonably necessary, so as to keep in good repair, order and serviceable condition the Premises and every part thereof, including but not limited to all plumbing, sewer, water and gas lines, heating, ventilation and air conditioning ( "HVAC ")and electrical systems and equipment in, on or serving the Premises, exterior and interior windows and doors and their frames, floors, floor framing, the ground floor exterior wall, interior walls and ceilings which are part of the Premises, and all sidewalks, walkways, which are on or adjacent to the Premises. Tenant's obligation shall also include regularly painting the interior of the Premises so as to maintain the Premises in a fast class condition. If necessary, Tenant shall also contract with a pest contractor to regularly prevent the presence of rodents or vermin or their spreading to the rest of the Property. b. Tenant shall not place or leave or permit to be placed or left outside the Premises any garbage, debris or refuse (collectively, "garbage "), except in proper containers designated for trash removal, and shall comply with all rules and regulations promulgated by any applicable health department, or other governmental agency in respect of garbage collection. c. Tenant shall, at Tenant's sole cost, promptly comply with all laws and with the requirements of any governmental authority having jurisdiction over the Premises, boards of fire underwriters, utility companies serving the Premises or other similar bodies now or hereafter constituted, relating to or affecting the Premises and/or the condition, use or occupancy of the Premises, including but not limited to, the obligation to make improvements, repairs, replacements and alterations required by such laws, regardless of the cost thereof, at what point in time during the Term compliance is required and whether such compliance was foreseen or unforeseen. The judgment of any alternative dispute resolution proceeding/court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether Tenant is a party thereto or not, that Tenant has violated any of the foregoing shall be conclusive of the fact between Landlord and Tenant. Within 10 days of receipt by Tenant, Tenant shall furnish Landlord with a copy of any notices received from any governmental agency, insurance company or inspection bureau in connection with the Premises. d. Tenant shall return the Premises to Landlord at the expiration or earlier termination of this Lease in good and sanitary order, condition and repair, free of rubble and debris, and broom clean; and all equipment, machinery, and other items belonging to Landlord, including the HVAC system serving the Premises, shall be returned to Landlord fully serviced and in good working order 8.2. Landlord's Obligations. Subject to the provisions of Article 11, and except for damage caused by the intentional or negligent acts or omissions of Tenant, its employees, agents or invitees, Landlord shall maintain and repair the foundations, exterior walkways, exterior roof and structural members of exterior walls of the Premises, provided, however, Landlord's obligation to make any such repairs shall not arise until receipt of written notice from Tenant that such repairs are needed. After receipt of such notice, Landlord shall have a reasonable period of time to commence and complete such repairs. Landlord's obligations hereunder shall not include the painting of any exterior surface, or the maintenance or repair of any interior portion of the exterior walls or roof, or the maintenance or repair of windows or window frames, doors, or their frames, plate glass or storefronts of the Premises. Landlord shall have no obligation to make any repairs for and Tenant shall hold Landlord harmless from any damage, caused directly or indirectly by other tenants or Tenant's invitees or licensees or others who utilize the Premises. To the extent permitted by law, Tenant waives any statutory right to make repairs at Landlord's expense, to withhold rental or other payments due hereunder, or to terminate this Lease because of Landlord's failure to make any repairs. 8.3. Landlord's Rights. If Tenant refuses or neglects to make repairs, replacements and/or maintain the Premises, or any part thereof, pursuant to the terms of this Lease and in a manner reasonably satisfactory to Landlord, without prejudice to any other remedy Landlord may have hereunder, upon giving Tenant 10 days prior written notice, Landlord shall have the right to enter the Premises and perform such maintenance or make such repairs on behalf of and for the account of Tenant and/or declare a default. In the event Landlord elects to perform such work, Tenant shall pay the cost of such repairs, replacements or maintenance promptly following Tenant's receipt of a bill therefore, with interest thereon at the prime rate reported by the Federal Reserve Bank at the time of the award plus one percent (1 %) from the date of Tenant's receipt of such bill until the date paid. Tenant agrees to permit Landlord or its agent to enter the Premises at any time during normal business hours for the purpose of inspecting the Premises. 8.4. Alterations and Additions. a. Except as provided in Section 8.4 (b), Tenant shall not make any additions, alterations, or improvements to the Premises: i) consisting of cosmetic changes (i.e., painting or replacement of fumiture and fixtures) resulting in an annual expenditure in excess of $25,000; or ii) affecting the balance of the Property and/or the structural, plumbing, HVAC, electrical or other systems of the Premises or Property without obtaining the prior written consent of Landlord, which consent may be withheld, conditioned or delayed at Landlord's sole discretion. Landlord's consent may be conditioned upon Tenant's removing any such additions, alterations, or improvements upon the expiration of the Term hereof and restoring the Premises to the same condition as on the date Tenant took possession. All work with respect to any addition, alteration, or improvement shall be done in a good and workmanlike manner by properly qualified and licensed personnel, and such work shall be diligently prosecuted to completion. No satellite dish or other electronic equipment shall be attached to the exterior of the Property without the prior written consent of Landlord, which consent may be withheld, conditioned or delayed at Landlord's sole discretion. b. Landlord hereby consents to the improvements described in plans titled "Tiburon Guest Facilities" prepared by Bull Stockwell Allen dated 12/13/2012 and on file in the Town of Tiburon Community Development Department, incorporated herein by this reference as if fully set forth in this Lease. Notwithstanding the foregoing, Tenant is not obligated to make any of the improvements listed on said Exhibit unless expressly so required by this Lease. c. Tenant shall pay the costs of any work done on the Premises pursuant to section 8.4(a) and (b), and shall keep the Premises as well as the improvements, and FF &E free and clear of liens of any kind. In no event shall Tenant mortgage or hypothecate said Lease, improvements or FF&E. Tenant shall indemnify, defend against, and keep Landlord free and harmless from all liability, loss, damage, costs, attorneys' fees and any other expense incurred on account of claims of lien by any person performing work or famishing materials or supplies for Tenant or any person claiming under Tenant. Tenant shall keep Tenant's leasehold interest, and any additions or improvements which are or become the property of Landlord under this Lease, free and clear of all attachment or judgment liens. Before the actual commencement of any work for which a claim of lien may be filed, Tenant shall give Landlord notice of the intended commencement date a sufficient time before said date to enable Landlord to post notices of non - responsibility or any other notices that Landlord deems necessary for the proper protection of Landlord's interest in the Premises and Landlord shall have the right to enter the Premises and post such notices at any reasonable time. c. Any such work, alterations and improvements by Tenant shall comply with all applicable federal, state, and local laws, ordinances, rules, and regulations, including but not limited to, local building codes, the requirements of the Americans with Disabilities Act, and the requirements of Title 24 of the California Code of Regulations. Tenant shall supply Landlord with a full and complete set of as -built plans and all original permits with all required sign -off signatures of applicable governmental officials upon completion of any work completed. d. Unless their removal is required by Landlord, all additions, alterations and improvements made on the Premises shall become the property of Landlord and be surrendered with the Premises upon the expiration or earlier termination of the Term of this Lease, provided, however, Tenant's FF &E, which can be removed without damage to the Premises shall remain the property of Tenant and may be removed, subject to the provisions herein ARTICLE 9. INSURANCE AND INDEMNIFICATION. 9.1. Liability and Casualty Insurance. At all times during Tenant's possession of the Premises, Tenant shall have and maintain insurance as provided in this section. a. Tenant shall provide comprehensive general public liability insurance insuring both Landlord and Tenant against liability arising out of the ownership, use, occupancy or maintenance of the Premises and appurtenant areas. Tenant shall, at Tenant's expense, maintain such insurance in full force and effect during the any period of possession and during the Tenn with coverage limits of not less than $2,000,000 combined for each occurrence. The limits of said insurance shall not, however, limit the liability of Tenant hereunder. b. From and after the Commencement Date, Tenant shall maintain insurance covering Tenant's leasehold improvements, alterations, additions or improvements permitted under section 8.4, FF &E, merchandise and personal property which are from time to time in or on the Premises. Said insurance shall be in an amount which is not less than 100% of full replacement cost as such may be determined from time to time during the Term, providing protection against any peril included within the generally accepted classification of "Fire and Extended Coverage," and against sprinkler and water damage from any source in and about the Property, vandalism 7 and malicious mischief. Any policy proceeds shall be used for the repair or replacement of the property damaged or destroyed. Landlord shall be named the insured under such policy. Tenant shall also maintain Workers' Compensation insurance in compliance with California law. c. Tenant is a member of the Association of Bay Area Governments ( "ABAG) and is covered by the a risk- sharing memorandum of coverage administered by ABAG Plan Corporation ( "ABAG MOC "). The ABAG MOC provides the coverage set forth as Exhibit which is attached hereto and incorporated herein by reference, which satisfies the requirements of this section. Tenant shall maintain insurance coverage that provides Landlord with protections similar to or higher than established by the AB MOC during the period that Tenant occupies the Premises. If Tenant fails to procure and maintain such coverage as is required hereunder, Landlord may, but shall not be required to, procure and maintain such insurance at the expense of Tenant. In the event that Tenant ceases to participate in the ABAG MOC program, Tenant shall obtain new coverage in a form reasonably satisfactory to Landlord, with companies reasonably satisfactory to Landlord. 9.2. Subrogation Waiver. Tenant hereby waives any rights of recovery it may have against Landlord for any loss or damage to Tenant, or its property, the Premises or its contents, arising from any risk insured by fire, extended coverage and any other property insurance policies in effect at the time of such loss or damage. 9.3. Indemnification. a. Tenant shall indemnify and hold Landlord harmless against and from liability and claims of any kind for loss or damage to property of Tenant or any other person, or for any injury to or death of any tenant of the Property or their agent, licensee, guest, invitee or any other person on the Premises arising out of: (a) Tenant's use and occupancy of the Premises, or any work, activity or other things allowed or suffered by Tenant to be done in or on the Premises, including but not limited to, any fire thereon; (b)any breach or default by Tenant of any of Tenant's obligations under this Lease; or (c) any negligent or otherwise tortious act or omission of Tenant, its agents, employees, invitees or contractors. Tenant shall, at Tenant's expense, defend Landlord in any action or proceeding arising from any such claim, shall pay as they accrue and indemnify Landlord against all costs, attorneys' fees, expert witness fees, and any other expenses incurred in or for such action or proceeding. As a material part of the consideration for Landlord's execution of this Lease, Tenant hereby assumes all risk of damage or injury to any person or property in or on the Premises from any cause. This Section 9.3 shall not apply to any damage or injury caused by the gross negligence, deliberate misconduct or criminal act of Landlord. b. Landlord shall defend, indemnify and hold Tenant harmless from and against all claims, causes of action, liabilities, losses, costs and expenses arising from or in connection with any injury or other damage to any person or property caused by the gross negligence, deliberate misconduct or criminal act of Landlord. 9.3. Acts of Other Tenants. Landlord shall not be liable to Tenant and Tenant hereby releases, indemnifies and holds harmless Landlord, or any person claiming under Tenant, for any injury or damage arising out of 1) any act or omission of any other tenant, resident, guest, visitor or person of or from the second or third upper floors of the Property or use of the Property by another tenant or third party, of which the Premises are a part; 2) mold, fire, explosion, falling plaster, steam, gas, electricity, water, rain, flood or leaks from any part of the Premises or Property or from the pipes, appliances, equipment, plumbing works, roof or subsurface of any floor or ceiling or from the street or any other place or by dampness or by any other cause whatsoever. 9.4. Use of Premises. Tenant agrees that it will not, at any time during the Term of this Lease, do or permit anything to be done in, on or about the Premises which will in any way tend to cause a cancellation of any insurance or cause a cancellation of any insurance or increase the insurance rates on the Premises or the Property of which the Premises are a part. In addition to Tenant's obligation to pay insurance premiums pursuant to Section 9.6. below, Tenant shall pay Landlord, upon demand therefore, 100% of the amount of any increase in premiums charged during the Term of the Lease for fire and extended coverage insurance carried by Landlord on the Property of which the Premises area is a part, as a result of Tenant's doing or permitting anything to be done in, on or about the Premises which does so increase the insurance rates, notwithstanding Landlord's consent to such action by Tenant. 9.5. Landlord's Insurance. Tenant shall pay to Landlord during the Term or any extension of the Lease its Proportionate Share of premiums for reasonable insurance covering fire, extended coverage, liability and any other type of insurance customary and appropriate for the Premises and Property. a. Customary and appropriate property and casualty insurance shall mean coverage for not more than the replacement costs of the improvements on the Property purchased at the prevailing market rate for such insurance. b. Landlord's insurance hereunder, if any, is secondary in event of overlapping coverage required to be maintained by Tenant. Tenant shall pay to and Landlord shall receive said payment within 30 days of Landlord's delivery to Tenant of a copy of Landlord's applicable insurance premium statement. 9.6 Any amount payable by Tenant to Landlord under Article 9 shall be paid by Tenant to Landlord within thirty (30) days after receipt by Tenant from Landlord of a bill setting forth such amount. The failure of Tenant to timely pay said amounts shall subject Tenant to the penalties set forth in Section 3.3 as well as any other remedies set forth herein. ARTICLE 10. N/A ARTICLE 11. DAMAGE OR DESTRUCTION. 11.1. As used in this Article, "Casualty" shall mean an event that (a) causes damage to the Premises that is not insured or is underinsured; (b) causes damage to the Premises that cannot 0 reasonably be repaired within 120 days from the date of damage under the laws and regulations of state, federal, county, municipal authorities or other authorities with jurisdiction; (c) occurs during the last 12 months of the Lease term unless the Tenant has the right under the terms of this Lease to extend the term for an additional period and does so within 30 days of the date of the Casualty,, or (d) causes a total destruction of the Premises. In the event of a Casualty, either party may terminate this Lease as of the date of the Casualty upon written notice to the other party. Tenant shall receive a refund of any rent paid for occupancy subsequent to the date of the Casualty. 11.2. Unless terminated pursuant to Section Article 11.1 above, this Lease shall continue in full force and effect and the Premises shall be reconstructed with the obligations of the parties being as is set forth in Article 11.3. In no event shall there be any reduction or abatement of rent. 11.3. In the event of any reconstruction of the Premises under this Article 11, Landlord's obligation to reconstruct the Premises shall be: (a) to the extent reasonably practicable, to restore the Premises to the condition existing on the date of Delivery of Possession, as set forth at Section 2.2 above; and (b) to reconstruct only if the insurance proceeds are adequate to cover all costs incurred by Landlord. Construction shall proceed as insurance proceeds and any other necessary funds become available and Landlord's repair obligations shall in no way include any construction obligations imposed on or undertaken by Tenant. Tenant's obligation shall be to reconstruct the Premises to the condition they were in prior to the casualty, to the extent not so reconstructed by Landlord. Landlord, as insured, shall be entitled to all proceeds of all insurance provided by Tenant, as set forth in Article 9. In the event that this Lease is not terminated pursuant to the provision of this Article 11 and the Premises are reconstructed, pursuant to this Section 11.3, Tenant shall be allowed to use the proceeds of the insurance policy carried by Tenant to reconstruct the Premises. To the extent that the insurance proceeds exceed the cost of reconstruction, Landlord is entitled to said excess. To the extent that the insurance proceeds are insufficient to cover the cost of said reconstruction, Tenant shall pay any difference or terminate this Lease pursuant to Section 11.1. Landlord, at its sole discretion, may collect and retain the proceeds of any policy provided by Tenant and remit payments to the contractors and other service or material providers contracted with by Tenant. 11.4. In the event that the Property in which the Premises are situated is destroyed to the extent of not less than 33 1/3% of the replacement cost thereof, Landlord may elect to terminate this Lease, whether the Premises be injured or not, in the same manner as in Article 11.1. ARTICLE 12. CONDEMNATION. 12.1. Total Taking. If the entire Premises are taken under the power of eminent domain, this Lease shall terminate as of the date Tenant is required to vacate the Premises, and Landlord and Tenant shall each thereafter be released from any further liability under this Lease. 12.2. Partial Taking. If a portion in excess of 25% of the floor area of the Premises is taken under the power of eminent domain, or if, as a result of any taking regardless of the extent, EG the remainder of the Premises is not one undivided parcel of property, either Landlord or Tenant may terminate this Lease as of the date Tenant is required to vacate the Premises, by serving written notice of such election within 30 days after receipt by Tenant of written notice from Landlord that the Premises have been so taken. If this Lease is so terminated each party shall thereafter be released from any further liability hereunder. If both parties elect not to terminate this Lease, Tenant shall remain in that portion of the Premises not so taken and, in that event, Landlord agrees, at Landlord's cost and expense, to restore the remaining portion of the Premises as soon as possible to a complete unit of like quality and character as existed prior to such taking; and thereafter the Base Rent set forth in Article 3 hereof shall be equitably reduced, taking into account the relative value of the portion taken as compared to the portion remaining. 12.3. Compensation. In the event of any taking and regardless of whether such taking results in termination of this Lease, Landlord shall be entitled to the entire award or compensation in such proceeding, including but not limited to, any value of the Lease. Tenant's right to receive compensation or damages for its fixtures and personal property shall not be affected hereby, however any compensation received by Tenant shall not reduce or in any way diminish any compensation received by Landlord. 12.4. Voluntary Sale; Waiver. For purposes of this Article 12, a voluntary sale or conveyance in lieu of condemnation, under threat of condemnation, shall be deemed a taking under the power of eminent domain. Tenant hereby waives any statutory rights of termination Tenant may have by reason of any partial taking of the Premises under the power of eminent domain. ARTICLE 13. ASSIGNMENT, SUBLEASE, TRANSFER a. For purposes of this Article 13, the terms "assign" and "assignment" shall mean any act attempting to or document purporting to assign, transfer, sublet, enter into license or concession agreements for Tenant's interest in the Premises or any part thereof. b. Tenant shall not assign this Lease or Tenant's interest in the Premises without obtaining the prior written consent of Landlord, which consent may be withheld at Landlord's sole discretion. Any attempt to assign this Lease without the prior written consent of Landlord shall, at Landlord's option, be null and void and shall be a breach hereof. c. Any assignment to which Landlord has consented shall be by an instrument in writing, satisfactory to Landlord, and any assignee, sublessee, transferee, licensee, concessionaire or mortgagee shall agree for the benefit of Landlord to be bound by, assume and perform all the terms, covenants, and conditions of this Lease. Consent by Landlord to any assignment shall not constitute consent to any subsequent assignment and notwithstanding Landlord's consent, Tenant shall remain fully liable hereunder as primary obligor during the unexpired term of this Lease. d. Landlord need not commence its review of any proposed assignment or respond to any request by the Tenant with respect thereto unless and until it has received from the Tenant such information as may reasonably be required in order to form a prudent judgment as to the 11 acceptability of the proposed transfer, including, without limitation, the following: (i) adequate descriptive information concerning the business to be conducted by the proposed transferee; (ii) the transferee's financial capacity; (iii) the past two years Federal Income Tax return(s) of the proposed transferee; (iv) banking references of the proposed transferee; (v) a resume of the business background and experience of the proposed transferee; (vi) a statement of the business plan of the retail business to be conducted in the Premises by the transferee, including a description of the type of service and merchandise, advertising plan, and a forecast of results projected for the first 3 full years of operation; (vii) at least 3 business and personal references for the proposed transferee; (viii) an executed copy of the instrument by which Tenant proposes to effectuate the transfer; and (ix) a check in the amount of $2,000, as a non - refundable deposit to reimburse Landlord for its reasonable out of pocket expenses and administrative time. ARTICLE 14. DEFAULT. 14.1. Tenant's Default. The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Tenant: a. Abandoning or vacating of the Premises; or b. Failing to pay any rental payment or any other charges when due and payable by Tenant; or c. Failing to promptly and fully perform any other covenant, condition or agreement . contained in this Lease should such failure continue for 30 days after written notice thereof from Landlord to Tenant. 14.2. Remedies. In the event of Tenant's default hereunder, in addition to any other rights or remedies Landlord may have under any law, Landlord shall have the right, at Landlord's option, without further notice or demand of any kind to do the following: a. Terminate this Lease and Tenant's right to possession of the Premises and reenter the Premises and take possession thereof, and Tenant shall have no further claim to the Premises or under this Lease; or b. Continue this Lease in full force and effect, reenter and occupy the Premises for the account of Tenant and collect any unpaid rental or other charges which have or may thereafter become due and payable; or c. Re -enter the Premises under the provisions of subparagraph (b), and thereafter elect to terminate this Lease and Tenant's right to possession of the Premises. Should Landlord re -enter the Premises under the provisions of subparagraphs (b) or (c) above, Landlord shall not be deemed to have terminated this Lease or the obligation of Tenant to W pay any rental or other charges thereafter accruing, unless Landlord notifies Tenant in writing of Landlord's election to terminate this Lease and release Tenant of all of their respective obligations. In the event of any re -entry or retaking of possession by Landlord, Landlord shall have the right, but not the obligation, to remove all or any part of the personal property in the Premises and to place such property in storage at a public warehouse at the expense and risk of the Tenant. Should Landlord elect to terminate this Lease under the provisions of subparagraph (a) or (c) above, Landlord may recover as damages from Tenant the following: 1. The worth at the time of award of any unpaid rental which had been earned at the time of termination; plus 2. The worth at the time of the 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 Tenant proves could have been reasonably avoided; plus 3. The worth at the time of the award of the amount by which the unpaid rental for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus 4. Any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to any costs or expenses, including attorney's fees, incurred by Landlord in (a) retaking possession of the Premises, (b) maintaining the Premises after Tenant's default, (c) preparing the Premises for reletting to a new tenant including any repairs or alterations, and (d) reletting the Premises including brokers' commissions. "The worth at the time of the award," as used in above, is to be computed by allowing interest at the prime rate reported by the Federal Reserve Bank at the time of the award plus one percent (1 %). per annum. "The worth at the time of the award," as used in (3) above, is to be computed by discounting the amount at the discount rate of the Federal Reserve Bank situated nearest to the location of the Premises at the time of the award plus one percent (1 %). The purported waiver by Landlord of any breach of any term, covenant, or condition of this Lease shall not be deemed a waiver of such term, covenant or condition or of any subsequent breach of the same or any other term, covenant or condition, unless such waiver is contained in a writing executed by Landlord. Acceptance of rental by Landlord subsequent to any breach hereof shall not be deemed a waiver of any preceding breach other than the failure to pay the particular rental so accepted, regardless of Landlord's knowledge of any breach at the time of such acceptance to rental. 13 14.3 Landlord's Default. If Landlord fails to perform any covenant, condition or agreement contained in the Lease within 30 days after receipt of written notice from Tenant specifying such default, or if such default cannot reasonably be cured within 30 days, if Landlord fails to commence to cure within said 30 day period, then Landlord shall be in default hereof. Tenant's sole remedy in the event of any default by Landlord shall be limited to seeking actual, proven damages and/or an injunction. In no event shall consequential or punitive damages be awarded. ARTICLE 15. N/A ARTICLE 16. HAZARDOUS MATERIALS. For purposes hereof, "Hazardous Materials" shall mean any and all flammable explosives, radioactive material, hazardous waste, toxic substance or related material, including but not limited to those materials and substances defined as "hazardous substances ", "hazardous materials ", "hazardous wastes" or "toxic substances" in the Environmental Laws. For purposes hereof, "Environmental Laws" shall include: The Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 U.S.C. Section 9601 et seq.; the Hazardous Materials Transportation Act, 39 U.S.C. Section 1801, et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Federal Clean Water Act, 33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Porter - Cologne Water Quality Act, California Water Code Section 13020 et seq.; the California Health and Safety Code, Section 25100 et seq., and California Proposition 65 (including its statutory implementation), including all amendments thereto, replacements thereof, and regulations adopted and publications promulgated pursuant thereto. a. Tenant agrees that during the Term of this Lease, Tenant shall not be in violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene, soil, water, or environmental conditions on, under or about the Premises including but not limited to„ the Environmental Laws. b. Tenant further agrees that during the Term of this Lease, there shall be no use, presence, disposal, storage, generation, release, or threatened release of Hazardous Materials on, from or under the Premises by Tenant or its employees, agents, contractors, guests, or invitees. C. Subject to Landlord's obligation to remove asbestos, as set forth in the Work Letter Agreement attached hereto as Exhibit 'B ", Tenant acknowledges that neither Landlord nor any agent, officer, broker, or other representative thereof has made any warranty or representation to Tenant regarding the presence or absence of Hazardous Materials on, under or about the Premises and that if Hazardous Materials inspection, monitoring, testing, removal or remediation be required in respect of Premises, and if such removal or other work shall have been caused by or resulted from Tenant's use or alteration of the Premises, such shall be performed by Tenant at its sole cost and expense, and whether the work be structural or not. 14 d. Tenant shall indemnify, defend, protect and hold harmless Landlord, its brokers, directors, officers, employees, partners, and agents from and against any and all losses, claims, demands, actions, damages (whether direct or consequential), penalties, liabilities, costs and expenses, including all attorneys' fees and legal expenses, arising out of any violation or alleged violation by Tenant, its agents, employees, contractors, customers and invitees of any of the laws or regulations referred to in this Article, or breach of any of the provisions of this Article. ARTICLE 17. GENERAL PROVISIONS 17.1. Sale of Landlord's Interest. In the event of any sale or transfer by Landlord of the Premises or the Property, assignment of this Lease by Landlord and assumption of said lease by Landlord's successor, Landlord shall be and is hereby entirely freed and relieved of any and all liability and obligations contained in or derived from this Lease arising out of any act, occurrence or omission relating to the Premises or this Lease. If any security deposit or prepaid rent has been paid by Tenant, Landlord may transfer the security deposit or prepaid rent to Landlord's successor and upon such transfer, Landlord shall be relieved of any and all further liability with respect thereto. 17.2. Estoppel Statement. Within 10 days following Tenant's receipt of written notice from Landlord, Tenant shall execute and deliver to Landlord or Landlord's designee, a written statement certifying (a) that this Lease is unmodified and in full force and effect, or in full force and effect as modified and stating the modifications; (b) the amount of Base Rent and Percentage Rent and the date to which said rent and other charges have been paid; (c) the amount of any security deposited with Landlord; and (d) that Landlord is not in default hereunder or, if Landlord is claimed to be in default, stating the nature of any claimed default. Any such statement may be relied upon by a purchaser, assignee or lender. Tenant's failure to execute and deliver such statement within the time allowed shall be conclusive upon Tenant that: (1) this Lease is in full force and effect and has not been modified except as represented by Landlord; (2) there are no uncured defaults in Landlord's performance and that Tenant has no right of offset, counter -claim or deduction against rental; and (3) not more than one month's rent has been paid in advance. 17.3. Financial Statement. N/A 17.4. Subordination; Attornment. Upon written request of Landlord, or any mortgagee, or deed of trust beneficiary of Landlord, Tenant shall, in writing, subordinate its rights hereunder to the lien of any mortgage, or deed of trust, and to all advances made or hereafter to be made upon the security therefore. The holder of any security interest may, upon written notice to Tenant, elect to have this Lease prior to such security interest regardless of the time of the granting or recording of such security interest. In the event of any foreclosure sale, or transfer in lieu of foreclosure, Tenant shall attom to the purchaser or transferee, and recognize such party as Landlord under this Lease, 15 provided such parry acquires and accepts the Premises subject to and agrees not to disturb this Lease. 17.5 Access to Premises. a. Landlord and Landlord's agents shall have the right to enter the Premises to show the Premises to lenders, prospective tenants, or others, or to repair the Premises and/or the Property or for any other purpose not in conflict with the provisions of this Lease. b. The use thereof, together with the right to install, maintain, use, repair and replace, pipes, ducts, conduits, wires, and structural elements leading through the Premises serving other parts of the Property, are hereby reserved unto Landlord. Tenant understands that gas, sewer, electrical and water lines, water heaters and other items serving the upper second and third floors of the Property are located in the basement, walls and ceiling of the Premises and Landlord shall have the right to access these areas to service these and other items. Such reservation shall in no way affect the maintenance obligations imposed and established herein. C. Landlord may at any time, place "For Sale" signs on or about the Premises and may, during the last 6 months of the term hereof, place "For Lease" signs on or about the Premises. Tenant shall furnish Landlord with: 1) two full sets of keys for each door entering the Premises and any keys necessary to access any part of the interior of the Premises; and 2) any and all alarm codes in effect at all times of the Term. Tenant shall not place additional locks or deadbolts of any kind on any of the doors for which Landlord is not provided a full set of keys. d. Tenant shall not be responsible for any claims arising from this Section 17.5. Landlord shall indemnify, defend and hold Tenant harmless from any liability or claims of loss of any kind that may arise from Landlord's exercise of its right of access. 17.6 Holding Over. If Tenant, with Landlord's consent, retains possession of the Premises after the expiration of the Term or termination of this Lease, such possession shall be deemed to be a month -to -month tenancy terminable upon 30 days written notice given at any time by either party. Any such month -to -month tenancy shall be subject to all provisions of this Lease except those pertaining to Term. 17.7 Merger. The voluntary or other surrender of this Lease by Tenant of termination hereof shall not cause a merger but shall, at Landlord's option, terminate any existing subtenancies or operate as an assignment to Landlord of any such subtenancies. 17.8 Recording. This Lease or a memorandum thereof shall not be recorded by Tenant. Landlord shall be entitled to record a memorandum of this Lease. 17.9 Prior Agreements; Amendments. This Lease represents the entire agreement between the parties pertaining to the Premises and supersedes and cancels any and all previous negotiations, agreements, representations, agreements and communications between the parties whether written or oral, and none of the foregoing shall be used to construe or interpret this 16 Lease. This Lease may be amended or modified only by a written instrument executed by both Landlord and Tenant. 17.10. Attorneys' Fees. In the event of any action at law or suit inequity to interpret or enforce the provisions of this Lease, the prevailing parry shall be entitled to recover from the other reasonable attorneys' fees and costs. 17.11 Remedies; Choice of Law. No remedy or election exercised hereunder shall be deemed exclusive but shall be cumulative with all other remedies at law or in equity. The laws of the State of California shall govern this Lease and the venue for resolving any disputes arising therefrom shall be the County of Marin. 17.12 Successors and Assigns. Subject to the provisions regarding assignment contained herein, this Lease shall apply to and bind the heirs, personal representatives, successors and assigns of the parties hereto. 17.13 Severability/Interpretation. A final determination by a court of competent jurisdiction or any person acting as an Arbitrator, as defined herein, (collectively "Judge ") that any provision of this Lease is invalid shall not affect the validity of any other provision, and any provision so determined to be invalid shall, to the extent possible, be construed to accomplish its reflected intent. In the event that a dispute arises regarding the interpretation of one or more provisions of this Lease, the Landlord shall not be prejudiced by the decision of the Judge, based upon the fact that the Landlord drafted this Lease document. 17.14 Authority. If Tenant is a corporation or partnership, each individual executing this Lease on behalf of Tenant hereby warrants and represents that he is duly authorized to execute this Lease on behalf of said corporation or partnership and upon execution of this Lease, will deliver to Landlord a certified copy of the resolution of the Board of Directors of said corporation or certified copy of the partnership agreement of said partnership, as the case may be, authorizing execution of the Lease and naming the officers or partners who are authorized to execute this Lease on behalf of Tenant. 17.15 Signs. Tenant shall not place or suffer to be placed or maintained on the Premises any interior or exterior sign, advertisement, decoration, marquee or awning that is visible from the exterior of the Premises ( Signage) without the prior written consent of Landlord which Landlord shall not unreasonably withhold. In no event shall any signs, credit card emblems, or other identification or materials be attached to or placed against any windows on or about the Premises, with the sole exception that lettering and/or logos may be applied directly to the inside of any such windows, backed with a clear sealant, provided that Landlord has previously consented to the design, location, and size therefore. Tenant, upon request of Landlord, shall immediately remove any such Signage which, in the opinion of Landlord, is objectionable or offensive, nonconforming, or erected without consent, and if Tenant fails so to do, Landlord may enter upon said Premises and remove the same. Tenant, at its sole expense, shall obtain all approvals required by any and all governmental agencies for said signage. All Signage shall be 17 maintained by Tenant at its own expense. Landlord has reserved the exclusive right to the exterior walls of the second floor and roof of the Property. 17.16 Time of Essence. Time is of the essence in the performance of each and every term, covenant and condition of this Lease. 17.17 Covenants and Conditions. Each and every provision of this Lease to be performed by Tenant shall be deemed both a covenant and condition. 17.18 Captions. The article and section captions contained herein are for reference purposes only and are not a part of this Lease. 17.19 Waiver. A waiver by Landlord of any breach or default shall not be deemed a waiver of any other breach or default. Landlord's consent to or approval of any act by Tenant requiring such consent or approval shall not be deemed to waive or abrogate the requirement of Landlord's consent or approval of any subsequent or similar act. 17.20 No Setoffs. All payments to be made by Tenant hereunder shall be paid to Landlord without notice or demand and without adjustment, deduction or setoff, in lawful money of the United States. 17.21 Force Majeure. Any prevention, delay or stoppage which is due to strikes, labor disputes, inability to obtain labor, materials, equipment or reasonable substitutes therefore, acts of God, governmental restrictions or regulations or controls, judicial orders, enemy or hostile government actions, civil commotion, fire or other casualty, or other causes beyond the reasonable control of Landlord, shall excuse performance by Landlord for a period equal to the duration of such prevention, delay or stoppage. 17.22 Notices. Wherever in this Lease it is required or permitted that notice or demand be given or served by either party to this Lease to or on the other, such notice or demand shall be in writing and shall be deemed duly served or given only if personally delivered or three business days after the date it is sent by United States mail, certified, or registered, postage prepaid, to the address of the parties as specified below. Notwithstanding the foregoing, bills for rent and other sums due hereunder may be sent by regular first -class mail and shall be deemed delivered when mailed. To Landlord: To Tenant: Zelinsky Properties 130 Main St Tiburon, CA 94920 Landlord and Tenant may change their respective addresses for notices by giving notice of such new address in accordance with this section 17.22. iI 17.23 Brokers. Tenant warrants that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Lease and Tenant knows of no other real estate broker or agent who is entitled to a commission in connection with this Lease. This Lease has been prepared for submission to Tenant's broker and attorney for its review. Tenant shall rely on its advisors to interpret all terms and conditions herein. ARTICLE 18. N/A LANDLORD: Zelinksy Properties, LLC IM Its: APPROVED AS TO FORM Ann R. Danforth, Town Attorney 19 TENANT: Town of Tiburon BY: Margaret A. Curran, Town Manager: Claude Perasso, Attorney for Zelinsky Properties .......... ............ .:::: Zl ....... CC, va'e w uj -fit LU cy cc In (L CL V a "T W. ry Ju CC CC U) moo' o CIQ 0i 1,4 Is N I v w 0 z Lu X of U C Z 0- cli < M a: .......... ............ .:::: Zl ....... 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